Broadspectrum (Australia) Pty Ltd [formerly Transfield Services (Australia) Pty Ltd] T/A Broadspectrum
[2017] FWC 6304
•29 NOVEMBER 2017
| [2017] FWC 6304 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
Section 222 - Application for approval of a termination of an enterprise agreement
Broadspectrum (Australia) Pty Ltd [formerly Transfield Services (Australia) Pty Ltd] T/A Broadspectrum
(AG2017/4919)
Transfield Services (Australia) Pty Ltd (Woodside) Onshore and Offshore Agreement 2014
| Building, metal and civil construction industries | |
| Deputy President Anderson | ADELAIDE, 29 NOVEMBER 2017 |
Application to terminate enterprise agreement – application by CEPU for order to produce – documents relevant to transfer of business - questions of law may make documents irrelevant – efficient conduct of proceedings - order sought too broad – order made
On 18 October 2017 an employer, Broadspectrum (Australia) Pty Ltd (formerly Transfield Services (Australia) Pty Ltd) applied to the Fair Work Commission (the Commission) for termination of the Transfield Services (Australia) Pty Ltd (Woodside) Onshore and Offshore Agreement 2014 pursuant to section 222 of the Fair Work Act 2009 (the FW Act).
The Agreement is a single enterprise agreement. It covers the work of employees engaged onshore or offshore in the production of hydrocarbons from oil and gas fields owned or operated by Woodside Energy limited.
The Agreement was approved by the Commission on 27 October 2014.[1] It operated from 3 November 2014. It has not yet passed its nominal expiry date, which is 27 October 2018. Variations to the Agreement were approved by the Commission on 21 March 2017.[2]
Three industrial organisations the Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia (CEPU), the Australian Manufacturing Workers Union (AMWU) and the Australian Workers Union (AWU) were bargaining representatives for the Agreement and are covered by it.
The applicant employer is entitled to apply for the termination of the Agreement under section 222 of the FW Act. That sections deals with circumstances where termination of an Agreement is sought on the basis that termination has been agreed to. The applicant says that a majority of employees have agreed to terminate the Agreement in accordance with the provisions of the Act.
On 26 October 2017 I issued directions[3] requiring Broadspectrum to serve the proceedings on the three trade unions covered by the Agreement. I listed the matter for hearing on 14 November 2017.
On 27 October 2017 the CEPU applied under section 590(2)(c) of the FW Act (F52) for an order that Broadspectrum produce documents to inform the Commission’s consideration of the matter. Those documents, broadly expressed, concern any agreement or correspondence relating to the use of assets on the North West Shelf Project facilities in the Carnarvon Basin in Western Australia after 1 July 2017 between three companies:
Broadspectrum (Australia) Pty Ltd (Broadspectrum);
Woodside Energy Ltd (Woodside); and
MWOG Pty Ltd (Monadelphous)
The grounds on which the CEPU make this application are:
1. In September and October 2017, a number of employees of the Applicant accepted employment with MWOG Pty Ltd, a subsidiary of Monadelphous Group Limited, to complete the same work as they had previously been undertaking for the Applicant at the North West Shelf Project in the Carnarvon Basin in the State of Western Australia.
2. The CEPU has reasonable grounds to believe that an arrangement exists between the Applicant and MWOG Pty Ltd, potentially through the Woodside Group or the Monadelphous Group, with respect to MWOG Pty Ltd having the beneficial use of some or all of the assets that the Applicant previously had the beneficial use of and which relates, or is used in connection with, transferring work within the meaning of s.311(3) of the Fair Work Act 2009.
Particulars
Employees of Broadspectrum worked on assets which were for the beneficial use of Broadspectrum prior to taking up employment with MWOG Pty Ltd. The same employees are now performing the same work, at the same location, using the same assets but for the beneficial use of MWOG Pty Ltd.
3. If this is correct, a transfer of business will have occurred and the conditions provided for by the Transfield Services (Australia) Pty Ltd (Woodside) Onshore and Offshore Agreement 2014 will continue to apply to the employees of MWOG Pty Ltd pursuant to s.313 of the Fair Work Act 2009.
4. Making the order sought by the CEPU will assist the FWC to determine whether a transfer of business has occurred and whether it is appropriate to terminate the Transfield Services (Australia) Pty Ltd (Woodside) Onshore and Offshore Agreement 2014 in all of the circumstances.
In support of its application for an order to produce the CEPU filed the following materials:
Statement of James Edward Stedman;
Statement of Nicholas Fraser;
Written Submissions of the CEPU with respect to F52 Application.
I heard oral submissions from the CEPU and from Broadspectrum at a telephone hearing on 31 October 2017. The proceedings were audio recorded. At the conclusion of those proceedings I advised the parties that I would not determine the CEPU application without providing other interested parties, namely Woodside and Monadelphous, the opportunity to be heard.
On 31 October I issued further directions[4] requiring the CEPU to serve its F52 application and supporting materials on Woodside and Monadelphous. This was done.[5]
Both Woodside and Monadelphous separately appeared at telephone proceedings on 14 November 2017. The proceedings were audio recorded. I granted permission under section 596 of the FW Act for Woodside to be represented at that hearing by a lawyer, Mr Lilburne, having regard to the efficiency of the hearing and complexity of the matter. For the same reasons I also granted permission to Mr Stedman who whilst a legal practitioner with a private firm is currently on secondment to the CEPU. In the absence of Mr Stedman being an employee or officer of the CEPU, he too requires permission.
I heard oral submissions from all parties at the 14 November hearing. At its conclusion I reserved my decision and (via further directions[6]) provided Woodside and Monadelphous the opportunity to file further evidence or written submissions and for both the CEPU and Broadspectrum to respond to that material (if filed).
On 21 November I was advised that neither Woodside nor Monadelphous sought to file further written submissions or evidence.[7]
I now proceed to determine the CEPU application to produce.
The Submissions
The CEPU contend that the documents (if they exist) are relevant to its response to the section 222 application that a transfer of business has occurred under section 311 of the FW Act. It contends that under section 311(3) an arrangement exists between the old employer (Broadspectrum) and the new employer (Monadelphous) (possibly with the knowledge or consent of Woodside) for Mondaelphous to have the beneficial use of assets that Broadspectrum owned or had the beneficial use of and that those assets relate to the transferring work.
In support of this contention the CEPU refers to the evidence of Mr Fraser who says that he was employed as a crane driver by Broadspectrum on the North Rankin platform (operated by Woodside) until 5 October 2017. He accepted employment in the same role with Monadelphous on 13 October and commenced with his new employer on 19 October on the same platform performing the same duties operating the same cranes and using the same rigging equipment.
Broadspectrum contend there was no transfer of business between it and its competitor, Monadelphous. It says that its arrangements were with Woodside. As there was no transfer of business at law, then that is not a relevant factor in dealing with its section 222 application.
Broadspectrum also contend that the CEPU, if it was to seriously advance a proposition that a transfer of business occurred, should be making an application under section 318 of the FW Act for an order of the Commission concerning the alleged transfer. It says that it would be content for an order terminating its agreement under section 222 to not take effect until after 31 January 2018 so that no employee would be prejudiced by the termination given (it says) the last employees left Broadspectrum on or before 31 October 2017.
Finally, Broadspectrum also contend that the request is too broad and should be limited to documents between the old and new employer only, and not dealings with their client, Woodside.
At the hearing on 14 November Woodside contended that a determination should be made on the legal issues (including whether a transfer occurred and if so whether at law it could constitute a detriment to employees for the purposes of a section 222 application) before a notice to produce is ordered. It contended that, as a matter of law, there can be no detriment on the termination of an agreement to already transferred employees. In those circumstances it says that the documents sought could not possibly be relevant and that this question of law should be determined as a threshold matter. It also suggested that either the CEPU or Monadelphous could make an application and that an order to produce could be restricted to those parties on that application.
Monadelphous submitted that they had appeared as a consequence of being notified of proceedings but considered that they were being drawn into a legal matter not of their own making.
At a practical level, Monadelphous indicated that if an order to produce was made then it did not believe that there were documents concerning Monadelphous which fall into the categories sought by the CEPU.
For the sake of completeness, no party asserted that Woodside is an associated entity of either Broadspectrum or Monadelphous or vice versa.
The Law
This matter is to be determined in accordance with the provisions of sections 222 and 590 of the FW Act which state as follows:
222 Application for the FWC’s approval of a termination of an enterprise agreement
Application for approval
(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to FWA for approval of the termination.
Material to accompany the application
(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) The application must be made:
(a) within 14 days after the termination is agreed to; or
(b) if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.
590 Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning research;
(h) by conducting a conference (see section 592);
(i) by holding a hearing (see section 593).
The power to order production of documents under section 590(2)(c) of the FW Act is broad and involves the exercise of a general discretion. The legal principles governing the exercise of discretion have been recently summarised in McAuley v Northern Territory Government[8]:
“Documents must be relevant to an issue, and not for the purposes of “fishing” or to test whether a party has a supportable case; relevance does not require that a party demonstrate direct relevance to the contest between the parties, but rather the documents sought must have some apparent relevance to the pleadings as they stand.
In the exercise of its discretion concerning the issuing of orders to produce documents, the Commission will generally be guided by what applies in courts of law, with the test of relevance applied by courts usually also applied by the Commission. Application of the tests requires examination of two questions:
“First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Secondly, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena?”
Consideration of the question of adjectival relevance looks toward the possibility of whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. The documents must be of a nature capable of being relevant to an issue which may arise for determination in a hearing. The concept of relevance for the purposes of production of documents is wider than the concept of relevance for the purposes of admission.
There is a general presumption that a party will not be required to produce documents where to do so would be oppressive; or where the application is a “fishing expedition”, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all.”
Consideration
In order to grant the CEPU application I need to be satisfied that the CEPU’s contention concerning a transfer of business, if made out at law, would be relevant to my determination of the section 222 application, and that there is some reasonable basis on which the CEPU seeks the documents or apprehends that they exist.
I also need to be satisfied that the request is not oppressive, and that it is directed at parties who are able to produce the necessary factual basis for the Commission to make a determination on a relevant issue.
However, I need not make findings as to whether I accept that the evidence advanced by the CEPU (for example, the evidence of Mr Fraser) determines whether a transfer of business, at law, has occurred.
Section 222 requires the Commission to be satisfied, amongst other matters, that employees covered by the agreement were given a reasonable opportunity to decide whether they wished to approve its termination and to then vote on the matter. Necessarily this requires the pool of employees covered by the agreement to be correctly identified. If an agreement has transferred to employees at a given date then the pool of employees involved in a subsequent determination and voting process includes the transferred employees. Further, section 223(d) requires the Commission to consider whether it is appropriate to terminate the agreement after hearing the views of any employee organisation covered by the agreement. The CEPU is covered by the agreement. Thus, its views on whether it is appropriate to terminate the agreement if (on its contention) the agreement has transferred to the employees of Monadelphous is a relevant issue to a finding of appropriateness, and not just relevant to compliance with voting and pre-voting requirements.
For these reasons I am satisfied that the CEPU contention concerning transfer of business is a relevant issue to Broadspectrum’s application for termination. Without in any way expressing a view (even a preliminary view) on the question it appears to be seriously and not vexatiously advanced.
I do not accept Woodside’s submission that the order to produce should not be dealt with unless and until a separate application is made by a party for orders whether a transfer of business has occurred. The Commission does not have general jurisdiction to issue declaratory rulings. While the Commission has the power to make orders (on application) under sections 318, 319 and 320 these are processes that operate separately from and in addition to the provisions of section 311, 312, 313, 314, 315 and 316 which determine, as a matter of law, whether a transfer of business has occurred and, if so, the consequences for instruments that transfer and for organisations covered by those transferring instruments.
There is no application before me under sections 318, 319 or 320. The only application is one under section 222 for termination of an enterprise agreement, and for an order to produce documents. In dealing with the section 222 application I will consider all relevant submissions, including the CEPU contention that a transfer has occurred. I may draw conclusions on that matter based on the application of the facts before me to the law. Those conclusions may, in part, affect my consideration of the factors I am required to deal with under section 222 (a) to (d). I do not consider it to be consistent with my obligation to conduct proceedings efficiently to adjourn section 222 proceedings and then await an application, if any, under sections 318, 319 or 320.
Similarly, while it may be the case, as Woodside suggests, that as a matter of law no detriment can apply to an already transferred employee should an agreement be terminated, I am not vested with separate proceedings that would enable that question to be determined. Rather, it is a submission which arises from the CEPU response to the Broadspectrum application which is before me. I therefore consider it appropriate to make orders that enable material relevant to the section 222 application before me (including responses to it) to be brought before the Commission. This includes evidence, if any, concerning arrangements relating to the use of assets by employees now working for Monadelphous who were working for Broadspectrum and where those assets were owned or beneficially used by Broadspectrum.
However, the orders sought by the CEPU are too broadly framed. They seek agreements “with respect to the use of assets”. The relevant issue for the purposes of section 311(3) is whether agreements exist for the “ownership or beneficial use of assets”. I will frame the order in those terms.
The orders sought also seek correspondence with respect to the use of assets. This potentially includes correspondence that forms part of a commercial negotiation, rather than the outcome of a commercial negotiation. The relevant issue under section 311 is whether there is an “arrangement’. I will confine the order to documents (including electronic documents) that evidence an arrangement. Depending on the context and content of documents, that may or may not include pre-outcome documents.
The orders sought also refer to documents between “directors, office-bearers, employees or agents”. I do not consider that the order need be so specific. It should be an order directed at documents in the possession or control of the relevant entity. It need not designate categories of officer or employee.
I will grant the CEPU’s application but in a revised form. I will issue an order that Broadspectrum (Australia) Pty Ltd produce documents (if any) within 14 days concerning any arrangement between it and Woodside or between it and Monadelphous concerning the use of assets on the North West Shelf Project facilities after 1 July 2017 where Broadspectrum formerly owned or had the beneficial use of those assets.
Once the date for compliance with the order has passed, I will re-list the matter for a further directions hearing with a view to issuing further directions and setting dates for the hearing and determination of the section 222 application.
The Order[9] is published.
DEPUTY PRESIDENT
Appearances:
Mr Z. Costi, for the Applicant
Mr J. Stedman, with permission, for the CEPU
Mr D. Brajevic and Mr T. Clews, for Monadelphous
Mr R. Lilburne, with permission, and Ms A. Reimers, for Woodside
Hearing details:
2017.
Adelaide (by Telephone)
31 October and 14 November.
[1] [2014] FWCA 7628, Deputy President Gostencnik
[2] [2017] FWCA 1614, Commissioner Platt
[3] Directions, Deputy President Anderson, 26 October 2017
[4] Further Directions, Deputy President Anderson, 31 October 2017
[5] Statement of Yolla Abousleiman 2 November 2017
[6] Further Directions, Deputy President Anderson, 14 November 2017
[7] Email correspondence to Chambers 21 November 2017 10.43am (Monadelphous) and 4.14pm (Woodside) respectively
[8] [2017] FWC 5669 (2 November 2017) per Commissioner Wilson citing ANF v VHIA [2011] FWA 8756 at [13]; Australian Gas Light Company v Australian Competition & Consumer Commission [2003] FCA 1101 at [8]; Clermont Coal v Brown and Others[2015] FWCFB 2460 at [19]; Trade Practices Commission v Arnotts Limited [1989] FCA 248 at [13] and [44]; Clerks (Alcoa) Case (1988) Print H2892; Santos Ltd & Others v Pipelines Authority of SA [1996] SASC 5628, [87]; and Australian Municipal, Administrative, Clerical and Services Union v Moreland City Council[2017] FWC 3283 at [35]
[9] PR598171
Printed by authority of the Commonwealth Government Printer
<Price code C, AE410846 PR598166>
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