The Australian Workers' Union v Baker Hughes Australia Pty Ltd T/A Baker Hughes

[2024] FWC 2128

[2024] FWC 2128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Baker Hughes Australia Pty Ltd T/A Baker Hughes

(B2024/1008)

DEPUTY PRESIDENT BEAUMONT PERTH, 12 AUGUST 2024

Proposed protected action ballot of employees of Baker Hughes Pty Ltd T/A Baker Hughes

1. Baker Hughes Australia Pty Ltd T/A Baker Hughes (Baker Hughes) provides services in relation to E-Line or Slickline and associated work on Esso Australian offshore platforms and facilities within the Victorian and Tasmanian waters commonly referred to as ‘Bass Strait’ and in the waters of the Otway Basin or an onshore location.  The Baker Hughes yard is currently located in Sale, Victoria, Australia.  The company has been negotiating for an enterprise agreement since in or around July 2023.  It is not in dispute that the relevant employees who will be covered by the enterprise agreement are not currently covered by one. 

1. It is in that context that on 8 August 2024, The Australian Workers’ Union (AWU or Applicant) applied under s 437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to the 35 employees who will be covered by the proposed enterprise agreement to be known as ‘Baker Hughes Australia Pty Ltd E-Line and Slickline Offshore Esso Bass Strait Agreement 2023’.  The AWU is a bargaining representative in relation to the proposed agreement.

1. The application was lodged with the Commission on 8 August 2024 and was initially allocated to Deputy President Hampton.  The Commission’s Bargaining Team sought a response from Baker Hughes which was forthcoming on that same day.  In its initial response Baker Hughes objected to the application by AWU on the ground that the AWU is not genuinely trying to reach agreement.  

1. Section 441 of the Act states that the Commission must, as far as practicable, determine an application under s 437 within two working days after the application is made. The application was allocated to my Chambers on 8 August 2024. I listed the application for hearing on 9 August 2024. However, the parties sought an adjournment citing inadequate time to prepare for the hearing. Notwithstanding that bargaining had been on foot for over a year, evidently the parties were inadequately positioned to address the dispute between them in that timeframe. An adjournment was permitted, and the matter was listed for Monday, 12 August 2024.

1. In accordance with the directions issued on 8 August 2024, on Saturday, 10 August 2024, Baker Hughes filed its responsive materials, taking issue with the period for written notice for the purposes of ss 414(2)(b) and 443(5) of the Act and with several questions that had been included on the draft ballot order. These issues were in addition to its previous contention regarding ‘genuinely trying to reach agreement’.

1. By Sunday, 11 August 2024, it was evident that the matter could be determined in the absence of a hearing, and I therefore considered it appropriate to determine the application on the papers. 

1. With regard to the first issue pressed by the Respondent that the AWU had not been, and is, not genuinely trying to reach agreement with Baker Hughes, the contention was withdrawn on Sunday, 11 August 2024.  As to whether I am satisfied that the AWU has been, and is, genuinely trying to reach an agreement with Baker Hughes, based on the materials before me I am of the view that is the case. 

1. Secondly, regarding the questions to be included in the draft ballot order, Baker Hughes took issue with proposed questions 11, 17, 25 and 26.  However, by Sunday, 11 August 2024, the parties had reached a consent position with respect to those questions in the proposed ballot order and the order that now issues is reflective of that position. 

1. Thirdly, in respect of whether the circumstances warrant an extension to the notice period, I have found that they do for the following reasons and further observe that on Sunday, 11 August 2024, the AWU consented to the extension. 

1. Section 443(5) of the Act provides that the Commission can require a longer period of notice to be given where it is satisfied that there are exceptional circumstances justifying this. To the extent that there is an evidential onus, it is on Baker Hughes to provide evidence that would satisfy the Commission that there are exceptional circumstances in this instance. To warrant an extended period of notice, the Commission must be satisfied both as to the existence of exceptional circumstances and the fact that these justify the granting of the extended notice.

1. It is uncontroversial that the expression ‘exceptional circumstances’ was considered by Lawler VP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation,[1] and in National Tertiary Education Industry Union v Charles Darwin University, the Full Bench concluded that the Vice President’s discussion was apposite to the phrase ‘exceptional circumstances justifying’ in s 443(5) of the Act.[2] 

1. Baker Hughes submits that exceptional circumstances are generally regarded to exist for hydrocarbon facilities located offshore that are remote locations or present difficulties to travel to the work location.  Mr Supakit Rugsapon, the Service Delivery Manager of the Respondent who had been employed in the role since 2001, gave evidence that the relevant employees perform well servicing functions including Eline and Slickline services in addition to the fluid management, pressure management and management of safety critical equipment including koomey units and Blow Out Preventers.[3]  Mr Rugsapon explained that Baker Hughes would need to initiate a range of operational measures to ensure the ongoing safety of personnel on the offshore facility.[4]  As part of those operational measures to deal with industrial action, Mr Rugsapon said Baker Hughes would need at a minimum five working days to navigate potential site access issues including helicopter travel and management of well conditions to ensure a well is safe to shut in.[5]  It was Mr Rugsapon’s uncontested view that if Baker Hughes employees were to undertake the proposed forms of protected industrial action with only three working days' notice, Baker Hughes would have insufficient time to safely cease all activities.[6]

1. The circumstances so described by Mr Rugsapon, who has a significant period of service within the industry, give rise to a finding of exceptional circumstances and I am of the view that these circumstances justify the extension of the notice period to five working days.  I have therefore extended the notice period accordingly.

1. In sum, it is uncontroversial that the AWU is a bargaining representative of at least some of the employees who will be covered by the proposed agreement. Those employees are all members of the AWU employed by Baker Hughes whose employment will be covered by the terms of the proposed agreement. I am satisfied that there is a notification time in relation to the proposed agreement and I am further satisfied that the requirements in ss 440, 443(1) and 437 of the Act have been met.

1. The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[7] and consequently is authorised to conduct the ballot.

1. For the purposes of s 443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 22 August 2024.[8] This also establishes the ballot period for the purpose of s 448A(2) of the Act.

1. An Order has been separately issued in PR778210.

1. This matter will shortly be listed for a s 448A compulsory conciliation conference.  An order will be issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference.  Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

Determined on the papers.

[1] (2007) 167 IR 4.

[2] [2018] FWCFB 4011, [20]–[21].

[3] Witness Statement of Supakit Rugsapon, [16] (Rugsapon Statement). 

[4] Ibid.

[5] Ibid.

[6] Ibid [19].

[7] Democratic Outcomes Pty Ltd [2023] FWC 1400.

[8] This is, in effect, seven (7) days after the Commencement Date, as sought in the application.

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