Shell Australia FLNG Pty Ltd T/A Shell Australia v The Australian Workers' Union and The, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2022] FWC 2077
•8 AUGUST 2022
| [2022] FWC 2077 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.425 - Application to suspend protected industrial action, cooling off
Shell Australia FLNG Pty Ltd T/A Shell Australia
v
The Australian Workers' Union and The, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2022/1174)
| DEPUTY PRESIDENT BINET | PERTH, 8 AUGUST 2022 |
Application for an Order to suspend protected industrial action.
On 3 August 2022 Shell Australia FLNG Pty Ltd T/A Shell Australia (Shell) applied (Application) to the Fair Work Commission (FWC) for an order pursuant to s 425 of the Fair Work Act 2009 (Cth) (FW Act) in relation to protected industrial action being engaged in by employees to be covered by a proposed enterprise agreement (Proposed Agreement).
The Application sought orders that the protected industrial action being engaged in be partially suspended to allow for the preparation and/or completion of a maintenance shutdown scheduled to occur between September 2022 and November 2022.[1]
The employees to be covered by the orders sought are employees of Shell appointed to an offshore operation classification on the Prelude Facility for whom the Australian Workers' Union (AWU) or the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is the bargaining representative for the purposes of s 176(1)(b) of the FW Act (Employees).[2]
The Application was made on the basis that a cooling off period is appropriate.[3]
Shell sought an urgent determination of the Application on the grounds that Shell must make various operational and commercial decisions on Friday 5 August 2022 in the event that the Application was not successful.
Directions for the filing of materials in advance of a hearing to determine the Application were issued to the parties on 3 August 2022 (Directions).
The Application was initially listed for conference in Perth at 6pm (AWST) on 4 August 2022 and, if not resolved at conference, for a hearing at 7pm (AWST) on 4 August 2022. The hearing was adjourned to enable the parties to continue bargaining facilitated by the FWC on Friday, 5 August 2022, Saturday, 6 August 2022 and Sunday, 7 August 2022.
Significant progress was made in the course of the conferences leaving only two outstanding issues between the parties. However, at 7pm on Sunday, 7 August 2022 Shell indicated that it believed further conciliation was unlikely to resolve those matters within the timeframe it had available to make various commercial and operational decisions.
The hearing of the Application therefore proceeded at 8pm (AWST) on Sunday, 7 August 2022. Shell requested that I inform them of the outcome of the Application at the earliest opportunity on the morning of Monday, 8 August 2022. The parties agreed that my written reasons and any orders would follow as soon as practicable thereafter. Accordingly, the parties were advised this morning of my decision to decline to grant the orders sought, and I now provide my written reasons for that decision.
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.[4]
Shell, the AWU and the CEPU sought permission to be represented at the Hearing.
Having considered the submissions of the parties, leave was granted to Shell, the AWU and the CEPU to be represented pursuant to s 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, Mr Anthony Longland of Corrs Chambers Westgarth (Mr Longland) appeared on behalf of Shell, and Mr Kamal Farouque of Maurice Blackburn (Mr Farouque) appeared on behalf of the CEPU and AWU (together the Unions).
Evidence
Shell filed witness statements setting out the evidence in chief of the following witnesses in advance of the Hearing:
a.Mr Peter Roland Norman (Mr Norman)[5]; and
b.Mr Simon David White (Mr White)[6]
Mr Norman is the Asset Manager of the Prelude Facility. Mr White is the Employee Relations/Industrial Relations Lead, and has been involved in bargaining for the Proposed Agreement. Mr Norman and Mr White were cross examined by Mr Farouque at the Hearing.
The Unions filed a witness statement setting out the evidence in chief of its sole witness Mr Douglas Heath (Mr Heath) in advance of the Hearing.[7]
Mr Heath is employed by the AWU as an Organiser. He represents the industrial interests of members of the AWU engaged in offshore facilities across the hydrocarbon industry off the coast of Western Australia. He has been involved in the bargaining for the Proposed Agreement since bargaining commenced.
Mr Heath was not required by Shell for cross examination.
The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties which was admitted at the Hearing and marked as an exhibit (DCB).
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
Prelude is a 488m long and 74m wide, permanently moored, offshore floating production facility containing utilities, gas processing, and liquefaction units. It is one of the first, and is the largest and most complex, floating liquefied natural gas (LNG) facility to be developed and operated in the world.[8]
Prelude produces LNG, liquefied petroleum gas (LPG) and condensate, and has storage and facilities for offloading these products to gas carriers and condensate tankers. All reservoir, subsea control, processing, storage and loading functions are operated from Prelude. Prelude is capable of producing around 3.6 million tonnes of LNG per year, as well as LPG and condensate.[9]
Periodic major maintenance events, known as “turnarounds”, are required to be carried out in order to ensure the continued safe operation of Prelude, improve stability and efficiency, and to meet certain regulatory commitments.[10]
The first turnaround for Prelude is scheduled to take place between September and November 2022 (Turnaround). Prior to that time, there is approximately six weeks of preparation and planning work that must be completed to ensure Prelude is in a state which would enable the safe and efficient commencement of the Turnaround.[11]
The timing of the Turnaround is co-ordinated between Shell and the other offshore oil and gas operators in Western Australia as the mobile workforce and support equipment available for such activities in Western Australia are not sufficient to support multiple turnarounds occurring simultaneously.[12]
On 19 June 2020 the AWU requested that bargaining commence for the Proposed Agreement. Shell declined to commence bargaining, and on 31 July 2020 the Unions made an application for a majority support determination.[13]
On 14 December 2020 Shell issued a Notice of Employee Representational Rights to the Employees to commence bargaining for the Proposed Agreement.[14]
The first bargaining meeting was held on 17 February 2021. A further 12 meetings were held between March 2021 and May 2022. [15]
On 6 May 2022, the Unions filed applications for Protected Action Ballot Orders (PABOs). Those applications were granted by the FWC on 12 May 2022.[16] On 21 June 2022 the Unions filed a further application for PABOs. These PABO applications were in respect of different types of activities than those in the first PABOs, and targeted (amongst other things) Shell’s ability to offtake hydrocarbons from Prelude. Those applications were granted by the FWC on 27 June 2022.[17]
Between 30 May 2022 and 1 August 2022 the Unions issued Shell with notices that their members would take the protected industrial action described in those notices. The protected industrial action commenced on 10 June 2022 and is scheduled to continue until at least 18 August 2022.[18] The protected industrial action is in the form of numerous complicated bans on specific types of work at particular times (PIA).
A further 4 bargaining meetings were held in June 2022.[19]
On 29 June 2022 Shell sent the Employees a draft Proposed Agreement. A ballot was conducted between 7 and 10 July 2022. Over 94% of Employees who voted did not approve the draft proposed by Shell.[20]
On 11 July 2022 Shell decided to cease production and commence the shutdown of the Prelude.[21]
On 13 July 2022 Shell informed the Unions that it would not meet to bargain while the PIA continued.[22]
On 18 July 2022 Shell informed the Unions that if the PIA which relates to the Turnaround was suspended to allow the Turnaround to occur as scheduled Shell would agree to participate in private mediation with the Unions and the other bargaining representatives in a private mediation with a Perth based barrister.[23]
Mr Heath says that on two occasions during July he requested that Shell seek the assistance of the FWC to assist the parties to reach agreement by mediation. He says that on both occasions Shell declined to agree to do so. Mr Heath also says that the Unions have remained, and continue to be, willing to bargain with Shell directly, in private mediation, or with the assistance of the FWC. [24]
Mr Heath says that he is informed by his members (and based on his own industrial experience he believes) that any suspension of the PIA will undermine the bargaining power of the Employees.[25]
On 15 July 2022 Shell made an application for good faith bargaining orders against the AWU in relation to public comments made by the AWU, which Shell say undermine good faith bargaining between the parties.
On 19 July 2022 the Unions made an application for good faith bargaining orders to compel Shell to comply with the good faith bargaining requirement set out in s 228(1)(a) of the FW Act, requiring bargaining representatives to attend and participate in bargaining meetings at reasonable times.
Both good faith bargaining applications were listed for conference on 22 July 2022. The issues between the parties could not be resolved at that conference and both applications have been programmed for hearing. Neither party sought for the applications to be expedited.
On 4 August 2022 the Unions gave notice that they were withdrawing some of the notified protected industrial action.[26]
Shell say that the PIA currently engaged in, or scheduled to occur, prevents many of the activities required for it to prepare for, and undertake, the Turnaround and that therefore Shell cannot proceed with the Turnaround as scheduled if the PIA is not partially suspended.[27]
In his witness statement filed on 3 August 2022, Mr Norman gave evidence that Shell must make a decision whether to proceed with the Turnaround by no later than Friday 5 August 2022. At the Hearing, Shell indicated that Mr Norman had been able to negotiate an extension of this timeframe until the morning of Monday, 8 August 2022.
Shell say that if the Turnaround does not proceed as scheduled, the earliest Shell will be able to complete the Turnaround is July 2023 due to the need to avoid the cyclone and lightning season, and to coordinate with other operators who have already booked their turnarounds between April 2023 and June 2023.
Shell has not yet taken any employer response action in respect to the PIA.[28]
Relevant Statutory Provisions
Section 425 of the FW Act states that:
“s.425 FWC must suspend protected industrial action--cooling off
(1) The FWC must make an order suspending protected industrial action for a proposed enterprise agreement that is being engaged in if the FWC is satisfied that the suspension is appropriate taking into account the following matters:
(a) whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue;
(b) the duration of the protected industrial action;
(c) whether the suspension would be contrary to the public interest or inconsistent with the objects of this Act;
(d) any other matters that the FWC considers relevant.
(2) The FWC may make the order only on application by:
(a) a bargaining representative for the agreement; or
(b) a person prescribed by the regulations.”
Consideration
The Application was made by Shell in its capacity as a bargaining representative for the Agreement. Shell therefore has standing to make the Application.
There is no dispute and I am satisfied that the PIA being engaged in by the Employees is “protected industrial action” as defined by s 409 of the FW Act.
Shell seeks an order that that PIA be suspended to permit activities required for the preparation and/or completion of the Turnaround. Initially Shell proposed several alternative periods of suspension. However, at the Hearing Shell clarified that it pressed only for a period of up to and including completion of the Turnaround scheduled to occur between September and November 2022.
In closing submissions at the Hearing, in response to a submission by the Unions that no power exists under s 425 of the FW Act for the FWC to partially suspend the PIA, Shell indicated that in the alternative it sought a full suspension of all of the PIA.
Does s 425 permit the partial suspension of PIA?
The Federal Court in 2012 in Australian and International Pilots Association v Fair Work Australia[29] held that an order to suspend protected industrial action made pursuant to s 424 of the FW Act could only suspend that part of the notified action which satisfied the criterion in s 424(1). This approach was adopted by the FWC in the following year in National Tertiary Education Industry Union v Monash University[30] where a Full Bench of FWC held as follows:
“[54] As a result of our conclusion that the s.424(1)(c) criterion has been satisfied in a number of respects, we are required by the Act to make an order suspending or terminating protected industrial action. The only protected industrial action to which the required order may apply is that which we have found satisfies the s.424(1)(c) criterion - that is, the Results Ban only.”
The same approach was more recently adopted by the Full Bench in Transport Workers’ Union of Australia v Broadspectrum (Australia) Pty Ltd.[31]
All of these cases involved consideration of s 424 and not s 425. The capacity to order the partial suspension of protected industrial action pursuant to s 425 was considered by the Full Bench in Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd[32]. In that case, the then Maritime Union of Australia (MUA) appealed an order issued by Watson VP in relation to protected industrial action generally, on the basis that it should have been confined in its terms to only those bans actually being engaged in at the time of the hearing. The MUA contended that because the order suspended industrial action generally, it went beyond the power conferred by s 425(1). The Full Bench rejected this submission at [27]-[29] and [37]:
“While the MUA’s interpretation of s 425(1) is one that may be available on the language of the provision, a range of contextual considerations strongly indicate that it does not accord with the meaning of the provision intended by the legislature. We consider that the correct interpretation of s 425(1) is that the purpose and effect of any order required to be made under the provision is to suspend the protection or immunity attaching to any industrial action authorized to be taken by a protected action ballot.
The strongest indicator of this is s 413(7). …
An order made under s 425 is one made under Division 6 of “this Part” (Part 3-3). The effect of s 413(7) therefore is that once an order is made under s 425 and while it remains in effect, any industrial action would not be protected industrial action.
…
We consider that, on the proper interpretation of s 425(1), once it is found that protected industrial action is being engaged in and a state of satisfaction is reached that suspension of protected industrial action is appropriate, the order that is required to be made is one which suspends, for the duration of the order, the protection attaching to any industrial action. …”
The differing approaches in authorities considering ss 424 and 425 can be explained by reference to the purposes of each of the provisions. Section 425 is concerned with the existence of industrial action per se rather than the consequences of the industrial action specifically. Section 424 is directed at specifically preventing industrial action that is harmful or damaging, it is not directed at preventing industrial action occurring more generally. It is therefore logical that s 424 might allow for partial suspensions while s 425 does not.
That s 425 does not permit partial suspension is consistent with:
a. Section 413(7), the effect of which is that once an order is made under s 425, any industrial action is unprotected, and
b. Section 427, which directs the FWC to specify the period of the order. Presumably the same provision would have directed the FWC to specify the scope of the order issued if it were the case that partial suspensions were permissible.
I am therefore of the view that it is not open to me to order a partial suspension, but in case I am wrong I have considered the merit of both a partial and full suspension in this Decision.
In this Application, Shell appear to support a partial suspension to negate the argument that the granting of the Application would remove all bargaining leverage from Employees. A partial suspension preventing production but allowing the Turnaround, or an undertaking as proffered by Shell to agree not to recommence production during the Turnaround, has limited utility because the evidence is that no production will occur during the Turnaround in any event.
What are the requirements to grant an Order?
In order to grant the Application and make the order sought by Shell, I must be satisfied that the suspension is appropriate taking into account the following matters:
a.whether the suspension would be beneficial to the bargaining representatives for the agreement because it would assist in resolving the matters at issue; and
b.the duration of the protected industrial action; and
c.whether the suspension would be contrary to the public interest or inconsistent with the objects of the FW Act; and
d.any other relevant matters.
The legislative intent of the FW Act is that the statutory right to take PIA is not to be readily interfered with.[33] It follows that a suspension order should not be issued lightly, and only in circumstances where it is appropriate to do so.[34]
Is the suspension beneficial to the bargaining representatives because it would assist resolution of the issues?
Shell says that the benefits of the Turnaround proceeding as scheduled are that:[35]
a.Shell receives the benefit of improving the stability and efficiency of the Prelude, ensuring regulatory compliance requirements are satisfied, and that identification of potential future risks can occur in a timely manner.
b.Employees have the opportunity to work extra shifts thereby earning overcycle payments, act up in higher roles, and have the benefit of learning opportunities.
c.Up to 650 people in the local labour market will be engaged in roles in maintenance, project construction and catering for the period of the Turnaround.
d.Local suppliers of accommodation, transport, plant and equipment will financially benefit from the procurement of their services and equipment in the course of the Turnaround.
Shell do not clearly identify how these benefits would assist the resolution of the issues between the parties other than to assert that the loss of the benefits would further deteriorate the relationship between the parties.
Shell also submit that suspension of the PIA would be beneficial because they say that the PIA is preventing the parties meeting and negotiating a resolution of the issues between them or with the assistance of a private mediator.
The Unions say that many Employees prefer not to work extra shifts given that they already spend significant periods of time away from their families. The Unions also say that given the current skills and labour shortage in Western Australia, those individuals in the local labour market who would otherwise have been engaged for the duration of the Turnaround will readily gain alternative employment if it does not occur as scheduled.[36]
There is no doubt that the suspension would benefit Shell financially, commercially and operationally because it would avoid the costs and disruption arising from the Turnaround being delayed. However, s 425(a) is concerned with the benefit to all bargaining representatives in the resolution of issues. As DP Colman noted in Orora Packaging Australia Pty Ltd t/a Orora Bag Solutions v Australian Manufacturing Workers’ Union (Orora Case) at [27][37]:
“…The consideration in s 425(1)(a) is concerned with the benefit of a suspension to all bargaining representatives, not just one of them. Clearly a suspension would benefit the company as it would be relieved of the economic and operational pressure arising from the protected action. But I do not see how suspension of the protected industrial action would benefit the other bargaining representative, namely the union, which is seeking to use its rights under the Act precisely to exert pressure on the company in support of the bargaining claims that the union and its members are advancing.”
The identified benefit must be causative – that is, beneficial because it would assist in resolving matters, as DP Colman explained in the Orora Case at [28]:
“The consideration in s 425(1)(a) has a causative element. It is concerned not simply with whether the suspension would be beneficial to the bargaining representatives, but whether the suspension would be beneficial because it would assist in resolving the matters at issue. I do not consider that a suspension order would have this effect. The evidence does not establish that the protected industrial action is preventing bargaining meetings from occurring. I accept that the industrial action makes it more difficult for the company to participate in bargaining, but not that it is a significant impediment. The company is evidently prepared to engage in further discussions and is able to do so. The union confirmed during the hearing that it too is willing to negotiate further. In my view, suspension of the protected industrial action would not result in an increased likelihood that the matters at issue would be resolved.”
Both of Shell’s witnesses conceded that the benefits that Shell identify as flowing from the Turnaround to Employees, the local labour market and local suppliers will flow to Employees, the local labour market and local suppliers whether the Turnaround proceeds as scheduled or if it proceeds next year after the cyclone season.
Shell have not explained how benefits flowing to third parties will assist the resolution of the outstanding issues between the parties. Having voted to take the industrial action, it is clear that at least those Employees who voted in favour of the industrial action do not view the Turnaround proceeding as something which will assist the resolution of the outstanding issues, rather they clearly believe the contrary.
Mr Heath has given evidence as to how PIA is relied upon to give Employees bargaining leverage. I accept that the full or even partial suspension of the PIA will remove the bargaining power the Employees have been authorised by the FW Act to utilise.
In Australian Manufacturing Workers’ Union v Paper Australia Pty Ltd (t/as Australian Paper),[38] the Full Bench said that evidence about loss of bargaining power is “invariably a significant piece of evidence” and a “material factual consideration which directly oppose[s] the view that a cooling-off period would be beneficial to the bargaining representatives.”
Shell submit that the Employees retain bargaining power if a partial suspension is granted which allows the Turnaround to proceed but retains a capacity for Employees to prevent production. For the reasons identified above I am not satisfied that I have the power to order a partial suspension. Even if I did, s 413(7) of the FW Act would prevent the Employees taking any protected industrial action. Furthermore, given the complexity of the bans and the work the Employees perform, there would potentially be uncertainty as to whether a particular work ban falls within the scope of the suspended or non-suspended PIA. This is likely to lead to further disputes and potential litigation between the parties distracting them from the resolution of the outstanding bargaining issues.
Even if Shell, as it proffered, provided an undertaking that it would restart production if the bans were lifted to allow the Turnaround to occur so that Employees retained some bargaining leverage, the evidence is that once the Turnaround is underway that production will cease for the duration of the Turnaround in any event. At this point all industrial leverage would be lost to the workforce.
Rather than hasten the progress towards resolution, the removal of bargaining power from the Employees appears more likely to extend the period of time to resolve the outstanding issues as once the Turnaround commences it will not be until next year when the Employees would be a position to impact production and therefore have any bargaining leverage.
There remains available to Shell various remedies including Employee Response Action which it can utilise in order to counter-balance the bargaining power of the Employees and encourage Employees to resolve the limited outstanding issues without the need to remove all bargaining power from Employees. If those issues are resolved and agreement reached, the PIA will cease, and production can recommence without restriction. The Turnaround can then proceed either this year or after the cyclone season has finished without industrial disruption.
The parties have demonstrated that they are able to meet, bargain and resolve issues over this weekend while the PIA continued. The continuance of PIA should not prevent further bargaining occurring particularly given the limited number of issues which require resolution.
These considerations weigh against the Application being granted.
Is the suspension appropriate given the duration of the protected industrial action?
The PIA commenced on 10 June 2022 and is scheduled to continue until 18 August 2022. Shell submit that the duration of the PIA weighs in favour of granting the Application. As Shell point out, in other matters before the FWC the application for a suspension of industrial action has been granted in relation to industrial action of much shorter duration.[39]
There is no decision rule as to what duration weighs in favour for or against a suspension. This is because the duration must be considered in the context of the particular negotiations.[40]
For example, the conduct of the parties over the course of the industrial action may be a relevant consideration. In Patrick Stevedores Holdings Pty Limited v Maritime Union of Australia[41] industrial action had been occurring since December 2010 and suspended in February 2011. No further industrial action was taken until April 2011. From April 2011, Patrick adopted the position that it would not negotiate while industrial action was occurring. Senior DP Kaufman said at [17]:
“…Insofar as the duration of the protected industrial action is concerned, it seems to me that although it has now been occurring since April this year, this factor would have borne greater weight had Patrick been prepared to negotiate during this period.”
Notwithstanding its good faith bargaining obligations to attend and participate in bargaining meetings, Shell refused to negotiate with the Unions from 13 July 2022 until the conference convened by the FWC on 4 August 2022. The issues between the parties cannot be resolved if a party refuses to bargain. It is appropriate to take the period during which Shell refused to negotiate into account when considering what weight should be attached to the duration of the PIA.
Another relevant consideration is at what point in the negotiations has the industrial action occurred. In this Application the Employees have only resorted to industrial action after a long period of bargaining proved unsuccessful in concluding an agreement.
It is also important to consider whether the duration of the industrial action indicates what impact continued industrial action might have on resolving the issues between the parties. In the circumstances of this particular Application I am not satisfied that the duration of the industrial action has been so long that a suspension of the PIA at this point in time will trigger the resolution of the outstanding issues.
On the evidence before me I am satisfied that the duration of the PIA is (as assessed to 18 August 2022) lengthy. It is not such that it is futile or excessive, however the duration to date weighs slightly towards, rather than against, the granting of the Application.
Is the suspension contrary to the public interest?
Shell submit that declining to grant the Application is contrary to the public interest because it would delay the benefits which Shell say derive to Shell, its Employees, the local labour market, and local businesses from the Turnover proceeding as scheduled.
The Unions submit that given that the FW Act authorises the taking of industrial action, and confers an immunity on parties who do so from the legal consequences that would otherwise flow from such industrial action, the FW Act recognises a public interest in allowing parties to bargain. This is so even if it means doing so in a way that is likely to cause some degree of harm to employers, employees, third parties, and the broader economy.
The Unions also submit that suspension would be contrary to the public interest, as it would reward a party who has refused to negotiate due to the taking of protected industrial action, in circumstances where the FW Act promotes enterprise bargaining, underpinned by the right of employees and their bargaining representatives to take protected industrial action.
There is no doubt there is a public interest in financial injections by multinational companies such as Shell into the Western Australian economy. In this case the evidence is that the PIA will only delay rather than prevent the local economy and labour market deriving benefits from the Turnaround. There is no evidence before me to enable me to assess what, if any, diminution of benefits flow to the local economy of a delay of nine months to the injection of those funds. It may be the case that current labour and supply chain issues mean that the delay will not have any diminution of the benefits of Shell’s financial injection. To the extent a diminution of benefit might occur because of the delay this would weigh in favour the granting of the Application.
A party’s refusal to bargain while protected industrial action is on foot is relevant to s 425(c) and will count against a suspension order. As the Full Bench stated in Australian Manufacturing Workers' Union v Paper Australia Pty Ltd (t/as Australian Paper)[42]:
“It is difficult to envisage how the Respondent's refusal to bargain during protected industrial action could conform with the objects of the FW Act. The FW Act allows for “employer response action”, but this does not include the capacity to unilaterally withdraw from the bargaining process…”
The Full Bench continued:
“We accept the Appellant's submission that suspending protected industrial action at the Respondent's request in order to encourage parties to resume bargaining, when it was the Respondent's own decision to stop bargaining in the first place because the applicant was engaging in protected industrial action, would be to “reward” non-compliance with the requirements of the FW Act. It is contrary to the public interest and inconsistent with the objects of the FW Act for the Commission to condone such conduct, even when the application before it is not for a bargaining order nor to deal with a bargaining dispute.”[43]
Shell did reengage in bargaining over the weekend, dedicating significant resources and personnel to the task, and approaching the task of creative resolution of outstanding issues with an open mind. Hopefully both parties will continue to approach the task of bargaining in the manner in which they have done so over the last three days.
Notwithstanding Shell’s efforts over the last three days, the public interest in not interfering in the statutory right to take protected action without good reason, and the public interest in parties observing the good faith bargaining principles, weigh against granting the Application.
While the possibility of some loss of benefit to the Western Australian economy weighs in favour of granting the Application, the lack of detailed evidence before me limits the weight I can attach.
Is the suspension inconsistent with the objects of the FW Act?
The Unions submit it would be inconsistent with the objects of the FW Act in particular s.3(F) to suspend the PIA in circumstances in which:
a.It was Shell’s position from 13 July 2022 that it would not bargain while PIA affected the Turnaround; and
b.Shell previously refused to consent to seeking the assistance of FWC in mediation to resolve the dispute.
Section 171 of the FW Act establishes a system directed at promoting enterprise bargaining facilitated by FWC on application.
In addition, s 228(1) expressly requires bargaining representatives to attend and participate in meetings at reasonable times. Part 3-3 authorises the taking of industrial action, and largely confers an immunity on parties who do so from the legal consequences that would otherwise flow from such industrial action.
It is well accepted that the FWC should not lightly reach a state of satisfaction that it is appropriate to suspend protected industrial action and that a persuasive rational must be established as to why it is appropriate to do so on the facts of a particular application.[44]
In the present circumstances I consider it would be inconsistent with the objects of the FW Act to suspend the PIA.
Are there any other relevant matters to consider?
Shell submits that it is relevant that:
a.Bargaining has been ongoing for 16 months without a concluded agreement.
b.The parties have agreed to private mediation.
c.The Unions have failed to agree to a partial suspension of the PIA to allow the Turnaround to occur.
I have taken into account the matters raised by Shell. While undesirable, the length of the bargaining period is not unusual or surprising given the interruptions caused by the COVID pandemic and that negotiations ceased while the FWC considered and determined at first instance and on appeal a dispute in relation to union coverage of the Employees.
That the parties bargain is a requirement of the FW Act. I would commend them to continue to do so as productively as they have over the last three days.
Notwithstanding that industrial action is made lawful by the FW Act it inevitably has some adverse consequences for everyone involved. The deterioration of the relationship between the parties caused by prolonged and extensive industrial action can take months or even years to repair. Ironically industrial action can undermine the key issue that the Unions continue to press, namely providing employees with some confidence about the security of their employment. It is in everyone’s interest that the parties reach agreement on the outstanding issues as quickly as possible.
While it may be the case that that it may be appropriate to suspend the PIA for a period of time in the future, I am not satisfied that a partial or full suspension of the PIA is appropriate at this point in time taking into account the matters set out in s 425(1).
The Application is therefore dismissed. An Order[45] to this effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr A Longland, for the Applicant.
Mr K Farouque, for the Respondents.
Hearing details:
2022.
Perth:
7 August.
[1] Digital Court Book, 6-7.
[2] Digital Court Book, 7.
[3] Digital Court Book, 7.
[4] Warrell v Walton (2013) 233 IR 335, 341 [22].
[5] Digital Court Book, 16-21.]
[6] Digital Court Book, 22-29.
[7] Digital Court Book, 232 -239.
[8] Digital Court Book, 17.
[9] Digital Court Book, 17.
[10] Digital Court Book, 19-20.
[11] Digital Court Book, 18.
[12] Digital Court Book, 18.
[13] Digital Court Book, 32.
[14] Digital Court Book, 22, 30-31.
[15] Digital Court Book, 23.
[16] Digital Court Book, 25, Print PR741543, PR741551.
[17] 26, Australian Workers Union v Shell Australia FLNG Pty Ltd [2022] FWC 1644, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Shell Australia FLNG Pty Ltd [2022] FWC 1646.
[18] Digital Court Book, 26, 106-109, 110-113.
[19] Digital Court Book, 234.
[20] Digital Court Book, 24, 235.
[21] Digital Court Book, 26.
[22] Digital Court Book, 235.
[23] Digital Court Book, 235.
[24] Digital Court Book, 235.
[25] Digital Court Book, 236-237.
[26] Digital Court Book, 238-239.
[27] Digital Court Book, 19.
[28] Digital Court Book, 27.
[29] [2012] FCAFC 65.
[30] [2013] FWCFB 5982.
[31] [2019] FWCFB 663
[32] [2016] FWCFB 711.
[33] See paragraphs [1708] to [1709] of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth).
[34] Patrick Stevedores Holdings Pty Limited v MUA [2011] FWA 3059 at [15]; ASCPty Ltd v CEPU [2017] FWC 5295 at [21].
[35] Digital Court Book, 20-21.
[36] Digital Court Book, 237-238.
[37] Orora Packaging Australia Pty Ltd t/a Orora Bag Solutions v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union [2020] FWC 49
[38] [2018] FWCFB 2011.
[39] See for example Application by Canberra Casino Ltd [2016] FWC 4265; Transit Australia Pty Ltd T/A Marlin Coast Sunbus v TWU [2017] FWC 3085.
[40] [2020] FWC 49.
[41] [2011] FWA 3059.
[42] (2018) 278 IR 237; [2018] FWCFB 2011 at [35].
[43] Australian Manufacturing Workers' Union v Paper Australia Pty Ltd (t/as Australian Paper) VP, Hamberger SDP, Commissioner Riordan) (2018) 278 IR 237; [2018] FWCFB 2011 at [37].
[44] [2020] FWC 49 at [34].
[45] PR744539.
Printed by authority of the Commonwealth Government Printer
<PR744538>
0
13
0