Chevron Australia Pty Ltd v The Australian Workers' Union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union
[2023] FWC 2445
•21 SEPTEMBER 2023
| [2023] FWC 2445 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.240—Bargaining dispute
s.576(2)(aa)—Promoting cooperative and productive workplace relations and preventing disputes
Chevron Australia Pty Ltd
v
The Australian Workers’ Union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union & Others
(B2023/914 & B2023/916 & CW2023/4)
| COMMISSIONER RIORDAN | PERTH, 21 SEPTEMBER 2023 |
Alleged disputes concerning Chevron Australia Pty Ltd’s proposed Wheatstone Platform, Wheatstone Downstream LNG Plant & Gorgon Barrow Island enterprise agreements
The parties are on the precipice of achieving historical first enterprise agreements for these Chevron LNG facilities in Western Australia. To date, a large number of issues have been settled, on a without prejudice basis, which should form the foundation of enterprise agreements between the parties for the future. However, a failure to settle all of the outstanding issues will result in those agreed provisions simply evaporating.
In an attempt to resolve the bargaining dispute (B2023/914, B2023/916 & CW2023/4), I hereby issue the following recommendation in relation to the outstanding issues.
I note that this industry uses terminology which is industrially unique. A ‘turnaround’ is universally known as a ‘shutdown’ and an ‘overcycle payment’ is universally known as ‘overtime’.
Field Loading Allowance
The Field Loading Allowance is defined in the proposed agreements to be:
“The Field Loading Allowance recognises and is in payment for all current and future aspects of work performed under this Agreement at Remote Work Locations. This includes (but is not limited to) the location and nature of the operation, travel to and from Remote Work Locations (including any delays), accommodation and conditions, all hardships and disabilities of the work, mobilisation and demobilisation impacts and relevant safety controls.”
I note that Field Loading Allowance is paid to compensate employees for travel delays including issues associated with mobilisation and demobilisation. I accept that there is some benefit to increase the Field Loading Allowance to a rate which is competitive within the industry where employees experience a similar level of disability. As such, I recommend an allowance of $103,000 per annum be paid to employees of the Wheatstone Platform and $85,000 per annum to employees at the Gorgon and Wheatstone Downstream facilities. This increase also compensates employees for slight delays in travel arrangements.
Classification Progression
The classification structure currently has a barrier for automatic progression at Level 4. I recommend that all employees be able to progress to level 5 based on the attainment and utilisation of the appropriate competencies. To this end, a committee will be established to work over the next 3 months to complete the list of competencies required to move from Level 4 to Level 5. If agreement cannot be reached, then either party can seek the assistance of the Commission to resolve any dispute.
If Chevron fails to deliver the relevant training or prevent an employee from reasonably obtaining these skills and competencies with a reasonable timeframe (24 months), then the Commission will determine an appropriate operative date for the reclassification of that employee. This date will become the operative date for any back payment once the employee has obtained the required competencies. The employee will have to substantiate their ongoing commitment to competency acquisition during this period.
An anomaly exists in relation to the appropriate remuneration level for Schedulers and Planners at Chevron. Traditionally, these employees are experienced tradespersons who would nominally fit into the classification structure between Level 4 and Level 5. I recommend that Schedulers and Planners be located within Levels 4 and 5 of the classification structure based on the eligibility criteria of the agreement and their skills, competence and training.
Overcycle Payments
Work performed on demobilisation day, when it forms part of an employee’s 168 normal hours of their swing, should not attract any form of penalty payment. However, any work performed beyond the employee’s normal cycle hours will attract a minimum payment of four hours pay at overcycle rates. Any work beyond four hours will be paid for a full shift at overcycle rates.
A significant disagreement between the parties relates to the late arrival of a plane into Perth airport on the last day of cycle. I note that the Field Loading Allowance is in part compensation for delays in the transportation of employees. However, this lateness has the capacity to cause an employee to miss a connecting flight to their place of residence. Where this delay can be attributed to Chevron, then it is appropriate and industry-standard for a penalty payment to be made to the affected employees.
If the plane is more than two hours late, i.e. it lands after 3:50 PM, then Chevron will be required to pay each employee 4 hours pay at overcycle rates. If the plane is more than 4 hours late, then Chevron will be required to pay 12 hours pay at overcycle rates. If an employee misses their connecting flight and cannot travel until the next day, then Chevron will pay for the employee’s accommodation and provide a per diem allowance of $34.95 for breakfast, $49.35 for lunch and $69.20 dinner, in accordance with Taxation Determination 2023/3.
The divisor utilised for the overcycle calculation has been appropriately calculated for those employees who will work the four by ten roster, Monday to Thursday. This calculation is based on the number of days worked per annum for those employees. There is no mathematical or industrial justification to utilise a divisor which does not correlate with the number of shifts these employees work in a year. It is not in dispute that these employees will work 208 shifts in a year.
Cabins
In relation to cabins, it is not appropriate for cabins to be shared by employees in the 2020’s when they are expected to obtain sufficient rest to ensure that fatigue is not an issue in their next twelve-hour shift. However, there will be exceptional circumstances which occur from time to time which require this practice to occur. Chevron will need to be able to justify the use of this practice. Any sharing of cabins should first occur with any contractors or labour hire workers before any direction is given to a Chevron employee to share accommodation.
Hours of Work
The concept of employees being required to stay back and ‘complete a task’ is one which is open to managerial misapplication, particularly in circumstances where employees are rostered on a 24/7 basis. In order to prevent any abuse or misinterpretation of this phrase, the obligation upon an employee to compete a task after the expiry of their normal hours is limited to a requirement to make safe, or the time taken to undertake an appropriate handover to another employee of the same skill and competency, or in exceptional circumstances, to work with the rostered employee in order to facilitate the expeditious return of the plant to service.
Travel Allowance for Training
Due to the vagaries of the operation of these plants, and the tightness of the manning levels, training cannot be accommodated during a normal cycle. This means training has to be undertaken outside of the normal work cycles. This may result in employees being required to attend Perth on the days before or after a cycle or to travel to Perth at times not associated with a cycle. I am of the view that an employee should be paid to travel to Perth to attend this training. For those employees who reside outside of Perth, they should receive flights, accommodation, a per diem as outlined in the ATO Taxation Determination and taxi fares to attend the training. Employees who reside within a six-hour drive of Perth would not be entitled to flights but instead would receive a kilometre allowance for driving their own car of $0.83 per kilometre from their place of residence to their training. This allowance includes any parking fees which may be incurred by the employee and has a maximum limit of $230 per trip.
Salary Continuance
It is the parties’ current intention to establish a workplace consultative committee which will meet on a quarterly basis. Any change to the salary continuance policy should be subject to review by the consultative committee. It is understood that Chevron will only modify this policy in a matter which can be sustained as being fair and reasonable.
Job Security
The job security clause is a very important clause which acknowledges the current industry standard in relation to outsourcing. The only outstanding component of this provision is the actual number of employees to which it applies. I recommend that the parties adopt the actual numbers utilised by the AEC in the ballot for any future agreement.
Travel
All employees will receive a $7,000 allowance. Employees who do not have Perth as their point of engagement will be paid an additional amount for all expenses associated with flights, accommodation, taxis and a per diem as outlined in the ATO Taxation Determination. Regional Western Australian employees will be paid for their accommodation and a per diem as outlined in the ATO Taxation Determination.
Training
The traditional training provisions for Chevron employees over the last ten years have ranged from a full day’s pay for every day of training to zero payment for ten days of training a year. The parties provided a plethora of different proposals in relation to this issue. I recommend that employees be paid single time (consisting of Base and Field Loading Allowance) for the first eight days of training per year. Any additional training will be paid eight hours pay (consisting of Base and Field Loading Allowance) at overcycle rates.
Panel Change
I accept that exceptional circumstances may require an employee to change panels. This panel change has the capacity to significantly modify an employee’s life. I recommend that Chevron give employees who are required to change panels 6 weeks’ notice. Any employee who swaps panels at the direction of Chevron will not be required to make up any shortfall to their cycle hours.
Conclusion
In my view, the parties are close to achieving their desired outcome of registered enterprise agreements to cover the wages and employment conditions for employees working for Chevron at their three facilities in the north-west of Western Australia. The parties have been negotiating for these agreements for a long period of time and have spent countless hours at the negotiating table. These discussions have resulted in widespread agreement on the majority of provisions of the proposed enterprise agreements. It would be a very unfortunate circumstance if the parties did not utilise the good work that has been done during this period in adopting these agreed outcomes. It would be a pity and very frustrating to simply throw out these agreed positions and have the parties return to their respective logs of claims for any future arbitration. As a result, I strongly recommend that the parties adopt the recommendations given above which will hopefully resolve these disputes.
As a result, the parties are required to advise my Chambers of the acceptance or rejection of this recommendation by 9:00 AM (AEST) on 22 September 2023.
COMMISSIONER
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