Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v M&ISS Pty Ltd
[2020] FWC 4043
•3 AUGUST 2020
| [2020] FWC 4043 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.437—Protected action
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
M&ISS Pty Ltd
(B2020/404)
DEPUTY PRESIDENT BINET | PERTH, 3 AUGUST 2020 |
Proposed protected action ballot of employees of M&ISS Pty Ltd.
[1] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has applied to the Fair Work Commission (FWC) for a protected action ballot order (Application) pursuant to section 437 of the Fair Work Act 2009 (Cwth) (FW Act).
[2] The Application was supported by a statutory declaration from Mr Damian Clancey, an Organiser with the CEPU (Mr Clancey).
[3] The Application seeks an order for a ballot to be conducted of employees of M&ISS Pty Ltd (M&ISS) who undertake offshore maintenance work in the hydrocarbons industry in waters off Western Australia or the Northern Territory in the classifications set out in the M&ISS Pty Ltd – O&G Enterprise Agreement 2016 (Current Agreement) who are represented by, or are members of, the CEPU (Employees).
[4] The Current Agreement covers both the CEPU and the Australian Workers’ Union (AWU).
[5] The AWU has also applied for an order for a ballot to be conducted of employees of M&ISS who undertake offshore maintenance work in the hydrocarbons industry in waters off Western Australia or the Northern Territory in the classifications set out in the Current Agreement who are represented by, or are members of, the AWU (AWU Application).
[6] The Application and the AWU Application was listed for a conference (Conference) and subsequent hearing on 3 August 2020 following email advice from M&ISS that the Application and the CEPU Application were opposed.
[7] M&ISS sought permission to be represented by a lawyer at the Conference. The granting of leave to M&ISS was not opposed by the AWU or the CEPU.
[8] Having considered the submissions of the parties, leave was granted to M&ISS 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.
[9] In accordance with directions issued to the parties on 29 July 2020, the parties filed outlines of submission, copies of the authorities on which they relied and, documentary and written evidence in advance of the Conference.
[10] The issues between the parties were resolved at the Conference and the matter did not proceed to a hearing. The Application was determined based on the materials filed by both parties and the submissions made at the Conference.
Background
[11] The Employees are presently covered by the Current Agreement which reached its nominal expiry date on 28 April 2020.
[12] The work presently being performed by the Employees covered by the Current Agreement is with respect to the Prelude facility operated by Shell. Prelude is an operating offshore oil and gas facility located 475kms North North-East of Broome in Western Australia. The normal operations of Prelude involve hydrocarbons being extracted from wells on the seabed, flowing to the facility via flowlines, being processed and stored on the facility, and then exported via tankers that come alongside the facility. When operational, there are substantial quantities of hydrocarbons on the facility.
[13] Strict safety requirements apply in relation to all aspects of the facility, including the training and qualifications of personnel working on the facility. Given its remote location, access to Prelude for personnel is by helicopter, out of Broome, and there are limits on the number of people and supplies that can be transported to and from the Prelude by helicopter. There is limited accommodation on Prelude.
[14] Since the start of the COVID-19 pandemic, there have been additional restrictions on operations on Prelude, including that:
a. Workers who reside in Western Australia mobilizing to the facility must have isolated for 7 days and must be tested for COVID-19;
b. Personnel On Board has been reduced; and
c. COVID-19 has impacted on the availability of labour;
[15] A Notice of Employee Representational Rights was issued by M&ISS to the Employees on 29 November 2020.
[16] Bargaining for a replacement agreement has taken place via exchange of written correspondence and by in person meetings. In person bargaining meetings have taken place on the following dates:
● 17 December 2019;
● 23 January 2020;
● 13 February 2020;
● 22 May 2020; and
● 9 July 2020.
[17] The parties and the CEPU have reached an in-principle agreement on many clauses, however there are a number of clauses and issues still in dispute including:
● Clause 11.17, Casual to permanency conversion;
● Clause 30, Stand by arrangements;
● Clause 14.10, Taxi reimbursement;
● Schedule 1, Rates of pay and allowances; and
● Payment of a sign-on bonus.
[18] The parties have indicated an intention to continue bargaining to resolve these issues.
Consideration
[19] The FWC is obliged to issue a protected ballot order in the following circumstances:
“443 When the FWC Must Make a protected action ballot order
(1) [When FWC must make a protected action ballot order]
The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) [When FWC must not make a protected action ballot order]
The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) [Content of Protected action ballot order]
A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(3A) [Ballot to be conducted expeditiously]
For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(4) [Protected Action ballot order may specify extended period]
If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) [When protected action ballot order may specify extended period]
If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”
[20] Section 437 relevantly provides as follows:
“437 Application for a protected action ballot order
Who may apply for a protected action ballot order:
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) If A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.”
[21] It is not in dispute that the CEPU has standing to make the Application in its capacity as a bargaining representative. The notification time in relation to the replacement agreement is 29 November 2020. The replacement agreement is not a greenfields agreement or a multi-enterprise agreement.
[22] The Application specifies the group of employees who are to be balloted.
[23] The CEPU have proposed that the Australian Electoral Commission conduct the ballot.
[24] The Application also specifies the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
[25] The Application was accompanied by the documents and other information prescribed by the Fair Work Regulations 2009 (Cwth).
[26] I am therefore satisfied that the Application has been made in accordance with section 437 of the FW Act.
[27] The FWC may only make the order sought if the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
[28] The reference to the FWC being “satisfied” means that determining whether or not the requisite circumstance exists is a discretionary decision. The expression “has been, and is”, imports temporal considerations, both of which are to be considered. An applicant for a protected action ballot order must satisfy both.
[29] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers' Union1 the Full Bench stated:
“Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad” (references omitted)
[30] In Total Marine Services Pty Ltd v Maritime Union of Australia 2 a Full Bench of Fair Work Australia relevantly stated:
“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement...”
[31] Both decisions stand for the proposition that a decision rule should not be adopted for the purposes of determining whether an applicant for a protected action ballot order has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The entirety of the circumstances of the case must be taken into account.
[32] The CEPU provided evidence of the steps taken by them to bargain and of the progress of bargaining to date.
[33] In all of the circumstances, I am satisfied that the CEPU has been, and is, genuinely trying to reach an agreement with M&ISS.
[34] Pursuant to section 414 of the FW Act, where an employee is to engage in protected industrial action, their bargaining representative must give written notice of the action. Section 414(2) of the FW Act requires three working days’ notice, or any longer period specified in the PABO.
[35] M&ISS submits that if an order is to be made that the FWC should exercise its discretion to increase the subsection 414(2)(a) notice period of three working days.
[36] Section 443(5) of the FW Act provides that:
“If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.”
[37] This requires consideration of3:
a. whether the circumstances are ‘exceptional’;
b. whether the ‘exceptional circumstances’ justify a requirement of notice longer than the statutory default; and
c. what the period of notice should be up to a maximum of seven days.
[38] The determination of whether the circumstances of a particular case are ‘exceptional’ involves an evaluative judgement of those circumstances. Circumstances may be “exceptional” if they are out of the ordinary course, unusual, special or uncommon. They need not be unique, unprecedented, rare, or unexpected. For this purpose, “circumstances” may include a combination of factors which together produce a situation which is out of the ordinary course, unusual, special or uncommon, notwithstanding that none of them taken in isolation would be “exceptional”.4
[39] Determining whether the “exceptional circumstances” justify a requirement of notice longer than the statutory default inevitably requires balancing the interests of the employer and third parties in having a greater opportunity to take defensive action, against those of the employees which may be adversely affected by a diminution in the effect of their industrial action, and hence their bargaining power.
[40] Having concluded that particular circumstances are exceptional and, that they justify a requirement of a notice period longer than the statutory default, a Member must decide whether to exercise their discretion to grant an additional period of notice and determine how long that period should be. 5
[41] M&ISS provided evidence in support of its assertion that exceptional circumstances currently exist which justify a requirement for a longer notice period.
[42] While each case needs to be considered on its facts characteristics of offshore workplaces, particularly in the hydro carbon industry, have been previously been held by the FWC to be exceptional as compared to other Australian workplaces. 6 This has been the case even where the ballot questions include safety related exclusions, as in the case in this Application.7
[43] Having regard to the remote location of Prelude, the logistical restrictions on mobilizing additional labour and the operational characteristics of the facility, there are significant limits on the ability for M&ISS to respond to any form of industrial action within three days. With the advent of the COVID-19 pandemic and related restrictions, the ability to respond within three days to any form of industrial action is further compromised.
[44] I am satisfied that the nature, and the potential impact, of the proposed industrial action is such that exceptional circumstances do exist justifying the extension of the notice period. In light of the evidence before me I have determined to exercise my discretion to grant an extension of the notice period. I am satisfied that an extension of the notice period from three working days to seven working days is appropriate in all the circumstances.
[45] Having been satisfied that the requirements of section 443 of the FW Act has been complied with, the CEPU application is granted and a protected action ballot order shall be issued.
DEPUTY PRESIDENT
Appearances:
Hearing details:
Final written submissions:
1 [2015] FWCFB 210.
2 [2009] FWAFB 368
3 National Tertiary Education Industry Union v Charles Darwin University[2018] FWCFB 4011 at [23]-[25]
4 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia v Australian Postal Corporation (2007) 167 IR 4; [2007] AIRC 848 at [10]; accepted as a correct statement of the law in Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99 at [7]-[8].
5 National Tertiary Education Industry Union v Charles Darwin University[2018] FWCFB 4011 at [25]
6 See for example AMWU v Skilled Offshore Pty Ltd [2015] FWC 6727 (Gostencnik DP), upheld on appeal in Skilled Offshore Pty Ltd v AMWU [2015] FWCFB 7399; CEPU v M Maintenance Pty Ltd (2019) PR710683; AWU v Sodexo Remote Sites Australia Pty Ltd [2020] FWC 2012 (Platt C); AWU v Sodexo Remote Sites Australia Pty Ltd [2020] FWC3583 (Anderson DP) and PR720839.
7 See AMWU v Skilled Offshore Pty Ltd[2015] FWC 6727 (Gostencnik DP); CEPU v M Maintenance Pty Ltd (2019) PR710683; AWU v Sodexo Remote Sites Australia Pty Ltd (2020) PR720839
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