Construction, Forestry, Maritime, Mining and Energy Union v Go Offshore Pty Ltd
[2021] FWCFB 6069
•16 DECEMBER 2021
| [2021] FWCFB 6069 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Construction, Forestry, Maritime, Mining and Energy Union
v
GO Offshore Pty Ltd
(C2021/6654)
VICE PRESIDENT HATCHER | SYDNEY, 16 DECEMBER 2021 |
Appeal against decision [2021] FWCA 5828 of Commissioner Lee at Melbourne on 15 September 2021 in AG2021/6922
Introduction and background
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal, for which permission is required, against a decision made by Commissioner Lee on 15 September 2021 1 (decision) to approve the GO Offshore Pty Ltd Maritime Offshore Oil and Gas Employee Enterprise Agreement 2021 (2021 Agreement). The CFMMEU contends in its notice of appeal that the decision was attended by appealable error in two respects:
(1) The Commissioner denied the CFMMEU procedural fairness by determining the matter without giving the CFMMEU an opportunity to make submissions and lead evidence in relation to the CFMMEU’s objection to approval of the 2021 Agreement as set out in its Form F18 filed on 3 September 2021.
(2) The Commissioner erred in finding that the 2021 Agreement was genuinely agreed for the purpose of s 186(2)(a) of the Fair Work Act 2009 (FW Act).
[2] The factual background of the matter is as follows. The employer under the 2021 Agreement is GO Offshore Pty Ltd (Go Offshore). Go Offshore provides marine and logistics services to the offshore oil and gas industry, and operates seagoing vessels for that purpose. At the time the 2021 Agreement was made, persons employed by Go Offshore to operate its vessels were covered by either the GO Offshore Pty Ltd Maritime Offshore Oil and Gas Deck Officers Enterprise Agreement 2017 (2017 Officers Agreement), the GO Offshore Pty Ltd Maritime Offshore Oil and Gas Engineering Officers Enterprise Agreement 2017 (2017 Engineers Agreement) or the GO Offshore Pty Ltd Maritime Offshore Oil and Gas Ratings Enterprise Agreement 2017 (2017 Ratings Agreement). Broadly speaking, the 2017 Officers Agreement covered employees eligible to join the Australian Maritime Officers’ Union (AMOU), the 2017 Engineers Agreement covered employees eligible to join the Australian Institute of Marine and Power Engineers (AIMPE), and the 2017 Ratings Agreement covered employees eligible to join the Maritime Union of Australia (the coverage of which is now subsumed into the CFMMEU following amalgamation).
[3] The 2017 Ratings Agreement provides that its coverage of employees falling within its classifications applies “whether or not they are at a particular time performing duties on rostered work time on a vessel” and “in any pre-mobilisation, training, Employer approved leave or on-shore duties that the Employer requires the Employee to undertake before or after commencing work” (clauses 3.1 and 4).
[4] The 2017 Ratings Agreement provides for casual employment in clause 13.4. Unusually, in addition to a 20% casual loading (clause 13.4(b)), clause 30.1(a) provides that casual employees accrue one day’s leave for every “Duty Day” spent on a vessel. Clause 13.4(a) provides:
(a) Casual Employees are engaged from time to time when work is offered to them and are paid as such. Work may not be available each Swing Cycle and the Employer provides no guarantee or expectation of on-going employment.
[5] In relation to termination of employment, clause 15.1 relevantly provides:
15.1 Notice of termination
Termination of employment by either the Employer or Employee, for reasons other than serious misconduct, requires the below notice periods or payment in lieu of notice:
. . .
(b) Casual Employees:
(i) Minimum of three (3) days' notice when onshore and rostered to return to work;
(ii) Minimum of seven (7) days' notice when offshore and notice is given by the Employer for the purpose of facilitating the deployment of a Full-time Employee;
(iii) In the event the Employee gives notice while offshore, the Employee must remain working on the Vessel until crew change or completion of the works, whichever is first;
(iv) When a Casual Employee is informed in writing of the length of a casual engagement and has not accepted the engagement in writing then the notice period will not apply.
(c) When a Vessel contract is completed earlier, or the Vessel is down manned for operational reasons, or a project ceases ahead of the expected completion date and the notice period cannot be reasonably given, then the notice period will not apply.
. . .
[6] Provisions concerning casual employment in the same terms (and with the same clause numbering 2) are contained in the 2017 Officers Agreement and the 2017 Ratings Agreement.
[7] The 2021 Agreement was made on 14 August 2021. Its coverage, broadly speaking, encompasses the previous coverage of the 2017 Officers Agreement, the 2017 Engineers Agreement and the 2017 Ratings Agreement. Specifically, clause 4 of the 2021 Agreement provides for its coverage as follows:
4. Coverage
This Agreement covers the Employer and the Employees in the following circumstances:
(a) When Employees are engaged onboard a Vessel working in the Maritime Offshore Oil and Gas Industry in Australia;
(b) When Employees are engaged in in any pre-mobilisation, training, Employer approved leave or on-shore duties that the Employer requires the Employee to undertake before or after commencing work in the Maritime Oil and Gas Industry in Australia; and
(c) When Employees are engaged onboard a Vessel in the circumstances listed in clause 17.1(d), provided that the Vessel's last scope of work was in the Maritime Offshore Oil & Gas Industry in Australia.
[8] “Employee” is defined in clause 3.1 to mean persons employed by Go Offshore in any of the classifications contained in the Schedules of the Agreement “whether or not they are at a particular time performing duties on rostered work time on a vessel”.
[9] The 2021 Agreement contains the almost identical provisions (with the same clause numbering) concerning casual employment as those identified above contained in the 2017 Officers Agreement, the 2017 Engineers Agreement and the 2017 Ratings Agreement.
[10] On 26 August 2021, Go Offshore lodged a Form F16 application for approval of the 2021 Agreement. The application stated that the CFMMEU, the AIMPE and the AMOU were bargaining representatives for the 2021 Agreement. The application was accompanied by a Form F17 declaration made by Ms Karen Clark, the General Manager Shared Services of Go Offshore. Relevantly, the declaration stated (at [6]) that 25 of the employees covered by the 2021 Agreement were casuals and (at [26]) that 59 employees were covered by the 2021 Agreement at the time of the vote, of which 55 voted and 33 voted to approve the agreement. The declaration (at [22]) also set out the steps taken by Go Offshore to explain the terms of the 2021 Agreement and their effect. These may be summarised as follows:
● 1 July 2021 – an email was sent to the relevant employees outlining changes to be incorporated in the proposed agreement and identifying any changes that were less beneficial than the existing agreement.
● 5 July 2021 – an email was sent to employees in response to frequently asked questions being asked in relation to the proposed content in the 2021 Agreement.
● 8 July 2021 – an email was sent to employees in response to issues raised by one of the unions explaining terms and conditions of concern.
● 5 August 2021 – an email was sent to employees which, among other things, attached a copy of the proposed agreement, an overview of the content of the agreement, and a letter from the CEO outlining times for Q&A sessions and inviting employees to call and discuss the agreement if they could not attend the information sessions;
● 6 August 2021 – employees were provided with a link to access information including a summary of changes between the then-current agreements and the proposed agreement and copies of the current agreements, the relevant modern award and the proposed agreement (this documentation was in excess of 300 pages);
● 6 August 2021 – an email was sent to employees to clarify information provided by the unions;
● 6 August 2021 – all documentation was printed and made available onboard Go Offshore’s vessels working in Australia;
● 3-9 August 2021 – phone calls were made to employees to respond to any questions they might still have in relation to the agreement;
● 10-12 August 2021 – five information sessions were conducted, three of which occurred on Go Offshore’s vessels, one by MS Teams, and an additional Q&A session by phone;
● 12 August 2021 – a letter was sent to employees clarifying information provided by the CFMMEU in relation to a number of terms and conditions of the proposed agreement;
● 12-13 August 2021 – an email was sent to employees providing a Question and Answer sheet of frequently-asked questions; and
● 14 August 2021 – a further information session for employees was available for any questions.
[11] All the emails and other documents referred to above were annexed to the declaration. The declaration also noted that:
● the employees were represented by experienced bargaining representatives (the AMOU, the AIMPE and the CFMMEU);
● the employees themselves had familiarity with working under the existing enterprise agreements which are largely reflected in the terms of the proposed agreement;
● the employees had received regular updates during bargaining from their bargaining representatives; and
● all employees had a good comprehension of English, since this was a mandatory requirement for employment on a seagoing vessel in Australia, and there were no young employees.
[12] The AIMPE and the AMOU filed Form F18 declarations (on 27 August 2021 and 3 September 2021 respectively) supporting the approval of the 2021 Agreement, stating that they did not wish to advise the Commission of any disagreement with any statement in Ms Clark’s Form F17 declaration and giving notice pursuant to s 183 of the FW Act that they wanted the 2021 Agreement to cover them. The CFMMEU also filed a Form F18 declaration on 3 September 2021. In its declaration, the CFMMEU stated that it opposed the approval of the 2021 Agreement on the following grounds:
“1. A number of employees whose employment would be covered by the terms of the Agreement and who were employed at the time were not given an opportunity to vote on the approval of the Agreement; and
2. The Employer failed to take all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to employees before the vote for the Agreement occurred.”
[13] The CFMMEU also declared that it did not wish to advise the Commission of any disagreement with any statement in Ms Clark’s declaration. It gave notice pursuant to s 183 of the FW Act that it wanted to be covered by the 2021 Agreement.
[14] On 6 September 2021, the Commissioner’s chambers sent email correspondence to Go Offshore identifying a number of concerns about the 2021 Agreement. This email was copied to the bargaining representatives, including the CFMMEU. Go Offshore responded to these concerns on 7 September 2021, with the response including a draft undertaking proposed to address an issue concerning trainees. On 8 September 2021, the Commissioner’s chambers sent correspondence to all parties (including the CFMMEU) which, among other things, expressed the Commissioner’s view that the draft undertaking resolved the issue with respect to trainees and, in accordance with s 190(4) of the FW Act, sought the views of the bargaining representatives concerning the undertaking. No bargaining representative responded to this email.
[15] On 15 September 2021, the Commissioner issued his decision approving the 2021 Agreement. In the decision, the Commissioner accepted the undertaking, expressed his satisfaction that each of the requirements of ss 186, 187, 188 and 190 of the FW Act as relevant to the application for approval had been met, and noted that the 2021 Agreement covered the AMOU, the AIMPE and the CFMMEU in accordance with s 201(2).
[16] The Commission’s file for the matter discloses that on 15 September 2021, after the decision had been issued, a representative of the CFMMEU telephoned the Commissioner’s chambers raising the fact that the 2021 Agreement had been approved notwithstanding the CFMMEU’s objection to its approval. The response given was that, due to an error, the CFMMEU’s objection in its Form F18 had not been seen by the Commissioner, otherwise the matter would have been listed for hearing.
CFMMEU’s submissions
[17] The CFMMEU submitted in relation to its first ground of appeal that, apparently due to an oversight, it was denied procedural fairness. It had, by way of its Form F18, indicated that it objected to the approval of the 2021 Agreement and wished to be heard. However, it was submitted, it had been denied an opportunity to be heard in relation to its objection and, further, the grounds of its objection had not been considered in the decision.
[18] In relation to its second ground of objection, the CFMMEU submitted that the Commissioner erred in finding that the 2021 Agreement was genuinely agreed for the purpose of s 186(2)(a) of the FW Act for two reasons:
(1) A number of employees whose employment would be covered by the terms of the 2021 Agreement were not given an opportunity to vote on the approval of the Agreement; and
(2) Go Offshore failed to take all reasonable steps to ensure that the terms of the 2021 Agreement, and the effect of those terms, were explained to employees before the vote for the 2021 Agreement occurred.
[19] In relation to the first of these reasons, the CFMMEU submitted that Go Offshore engages a workforce consisting of permanent and casual employees. The employees are organised in a “Two-Crew Duty System” whereby two crews are appointed per vessel and, at any one time, there is one crew on duty and another off-duty or in transit. It was submitted that, under this system as provided for in the 2021 Agreement and the preceding enterprise agreements:
● such crews are typically engaged for swing cycles of five weeks on and five weeks off or four weeks on and four weeks off;
● permanent employees accrue 1.153 days of leave for each on-duty day spent on a vessel and casual employees accrue 1 day of leave for each on-duty day spent on a vessel;
● the days an employee spends in transit travelling to join a vessel (other than the day of joining) are treated as “Travel Days” which are days for which an employee is paid a day’s pay but neither accrues nor uses a day of leave;
● the day an employee leaves a vessel is treated as a “Dead Day” which is a day for which an employee is paid a day’s pay but neither accrues nor uses a day of leave; and
● as a consequence, employees are at any one time either on duty and accruing leave, in transit and neither using nor accruing leave, or off duty and being paid their leave entitlements.
[20] The CFMMEU submitted that it “understands” that a number of casual employees whose on-duty period had finished shortly before the access period commenced and who had further on-duty periods arranged with Go Offshore after the completion of their off-duty period were denied the opportunity to cast a vote in relation to the approval of the proposed Agreement. These were employees who were, for the purpose of s 181(1) of the FW Act, “employees at the time who will be covered by the agreement” and thus, it was submitted, were entitled to be given an opportunity to vote on the 2021 Agreement. Because this did not occur, the 2021 Agreement could not be approved.
[21] As to the second reason, the CFMMEU submitted that the information concerning the steps taken to explain the terms of the Agreement and their effect was insufficient to permit the Commission to be satisfied that all reasonable steps were taken in accordance with the requirement in s 180(5) of the FW Act.
Consideration
[22] It is apparent, we consider, that due to an oversight, the CFMMEU was denied procedural fairness. The CFMMEU was a bargaining representative for the 2021 Agreement and therefore had a right to be heard in relation to whether the Agreement should be approved. By its Form F18 declaration, the CFMMEU unambiguously indicated that it opposed the approval of the 2021 Agreement on two specified grounds. We do not accept the submission made by Go Offshore that the Form F18 declaration constituted the CFMMEU’s opportunity to be heard, and that the CFMMEU had failed to take advantage of this opportunity by setting out in the declaration a proper case against the approval of the 2021 Agreement. The Form F18 is not intended to be the means by which a union bargaining representative articulates the entirety of its case with respect to an application for approval of an enterprise agreement; it is merely the means by which such a bargaining representative informs the Commission, and the other parties, as to its position in relation to the application.
[23] Once the Form F18 was filed, the CFMMEU was entitled to expect to be heard in relation to its specified grounds of objection. The means by which it could have been heard were flexible: it could have been directed to file written submissions within a specified timeframe, or a formal hearing could have been listed, or a combination of these or other steps could have been taken. However, the CFMMEU was not afforded any opportunity at all to articulate its case in opposition to approval of the 2021 Agreement. It is arguable that the CFMMEU could have been more attentive to its interests; in particular, when the Commissioner sought the response of the bargaining representatives to the draft undertaking, this might have alerted the CFMMEU to the fact that the Commissioner’s consideration of the application for approval of the 2021 Agreement had reached an advanced stage. However, we do not consider that the CFMMEU thereby waived its right to be heard.
[24] Because of this denial of procedural fairness, we grant permission to appeal and uphold the first ground of appeal. However, it does not follow that we should quash the decision to approve the 2021 Agreement under s 607(3)(a) of the FW Act and remit the matter to the Commissioner for further hearing, as sought by the CFMMEU. This appeal, which proceeds by way of rehearing, has given the CFMMEU the opportunity which it was denied at first instance to advance its case in opposition to the approval of the 2021 Agreement. We are in a proper position to assess the merits of that case. There would be no point in us quashing the decision on the basis of the denial of procedural fairness which we have found to have occurred in the absence of at least a reasonably arguable case that the 2021 Agreement should not have been approved.
[25] Having heard the submissions in relation to the CFMMEU’s second ground of appeal, we are not persuaded that there is any substance or merit in the CFMMEU’s contention that the 2021 Agreement was not genuinely agreed to by the employees covered by it, as required by s 186(2)(a) of the FW Act. The first basis of the CFMMEU’s case in this respect is that not all of Go Offshore’s casual employees who were employed at the time of the vote and who would be covered by the proposed Agreement if made were in fact given an opportunity to vote. There is no issue between the parties that casual employees were “employed at the time” under the 2017 Officers Agreement, the 2017 Engineers Agreement or the 2017 Ratings Agreement and were entitled to vote even if they were off-duty and taking leave, or in transit, at that time of the vote. 3 Go Offshore submitted that all such employees were given an opportunity to vote,4 and certainly we know from Ms Clark’s Form F17 declaration that Go Offshore considered that it had 25 casual employees out of a total workforce of 59 who were employed at the time of the vote. The CFMMEU’s case to the contrary rose no higher than the assertion that it “understands” some casuals employed at the time were denied a vote. It did not seek to adduce any evidence in the appeal that any casual employees off-duty and on leave were not allowed to vote, or even foreshadow evidence that it might adduce in this respect if the matter was remitted for rehearing. The following exchange during the appeal hearing makes clear that the CFMMEU in fact has no evidence to support its case but merely seeks the opportunity of a new hearing so that it can engage in a fishing expedition to search for such evidence:
“VICE PRESIDENT HATCHER: Mr Edmonds, I understand the point that you say that if they're on paid leave, they're employed and should have voted. But I don't understand the basis of the factual proposition that any people in that category didn't vote. That is, I understand the legal proposition but I don't understand the factual basis for it. How do we know these persons didn't vote?
MR EDMONDS: Well, that would be the evidence we would seek from [the] opportunity to do so on a rehearing.
VICE PRESIDENT HATCHER: But [we’ve] gone full circle, Mr Edmonds - what evidence is that?
MR EDMONDS: That would be evidence that we could extract from the employer's records.
VICE PRESIDENT HATCHER: That is it's evidence you would hope to get - it's not evidence that you currently have in your possession.
MR EDMONDS: Correct.” 5
[26] During the appeal hearing, the CFMMEU shifted it case, in that it contended in its oral reply submissions that casual employees who were terminated (pursuant to clause 15.1(b) or (c) of the 2017 agreements) before the vote and then told they would be re-engaged four weeks later, after the vote had occurred, were entitled to vote but were not given that opportunity. 6 Its modified case in that respect suffers from two fundamental flaws. The first is that the proposition that casual employees could somehow remain employed after their employment had been terminated in accordance with the termination of employment provisions of the applicable agreement, and their accrued leave entitlements paid out, is self-evidently misconceived. The second is that, again and in any event, there is no evidentiary basis for the proposition that there were any employees who actually fell within this description and were denied a vote.
[27] The second leg of the CFMMEU’s case is that the Commissioner could not properly have reached a state of satisfaction that Go Offshore explained the terms of the 2021 Agreement and their effect to the workforce as required by s 180(5). However, we consider that, on any view, the steps taken by Go Offshore to explain the 2021 Agreement, as described in Ms Clark’s Form F17 declaration and summarised above, were extensive. We consider that it was reasonably open to the Commissioner to conclude, on the basis of the information provided in the declaration, that the s 180(5) requirement was complied with. The CFMMEU conceded that it could not advance a positive case to the contrary. 7
[28] The denial of procedural fairness which occurred did not rob the CFMMEU of the chance of adducing additional evidence that might have caused a different conclusion to be reached in respect of s 180(5) because it had no such evidence. This was made clear in the following submission made by the CFMMEU during the appeal hearing when it sought to explain the approach it would take if the matter was remitted for rehearing:
“What we would seek to do is to cross-examination the person who made the F17 to clarify the steps taken by the employer to explain the terms of the agreement to employees to clarify what information was provided; to clarify when that information was provided; and to clarify what information was given in particular to employees who were on vessels in the north-west of Western Australia at the particular time the vote occurred.
Certainly there was a link provided to a bunch of documents, and the employer says in its F17 in addition to the link, the documents were printed out, and we say some 400 documents - the employer says some 400-odd documents were stuck up on the noticeboards on board the vessels. We simply want to probe the extent to which that occurred. Certainly we've got concerns that the 400 documents or the 350 documents weren't printed out and provided to employees on board the vessels.
The employer's F17 says that the Masters were asked to do that, but there's no evidence in front of the Fair Work Commission that that was actually done. That might be easily disposed of on the day in question, but that's not something we can explore today because we don't have an opportunity obviously to cross-examine the maker of the F17 and we don't have an opportunity to test that evidence.
If we were given an opportunity, we could take that matter further, and it may well be there's nothing in it, but we certainly seek that opportunity if it were granted.” 8 (underlining added)
[29] The above makes it clear that the purpose of a further hearing would only be, again, for the CFMMEU to conduct a fishing expedition rather than to adduce evidence in support of a positive case that s 180(5) was not complied with.
[30] For the above reasons, we conclude that it was reasonably open to the Commissioner to find that the 2021 Agreement was genuinely agreed as required by s 186(2)(a) of the FW Act, that the denial of procedural fairness to the CFMMEU did not deprive it of any realistic possibility of obtaining a different result, and that there would be no practical purpose in remitting the matter for a further hearing. For this reason, although we uphold the first ground of appeal, we will not make any orders under s 607(3) but will simply dismiss the appeal.
Orders
[31] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is dismissed.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR736841>
Appearances:
L Edmonds on behalf of the appellant.
A Pollock of counsel on behalf of the respondent.
Hearing details:
2021.
Sydney and Melbourne (via video-link).
18 November.
1 [2021] FWCA 5828
2 Designation of subclauses is differently expressed.
3 This was accepted by Go Offshore: Transcript, 18 November 2021, PNs 162-163
4 Ibid, PN 161
5 Ibid PNs 95-100
6 Ibid, PNs 202-209
7 Ibid, PNs 44-45
8 Ibid, PNs 39-43
0