The Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd

[2014] FWC 4127

[2014] FWC 4127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Mr Rob Phillips; Ms Denise Solly; Ms Alicia Lever; Mr Michael Glover; Mr Jonathan Peace; Mr Clive Hacking; The Australian Workers' Union
v
BP Refinery (Kwinana) Pty Ltd
(B2014/840)

VICE PRESIDENT WATSON MELBOURNE, 27 JUNE 2014

Proposed protected action ballot by employees of BP Refinery (Kwinana) Pty Ltd - whether genuinely trying to reach an agreement - extension of notice period - Fair Work Act 2009 - ss. 437 and 443.

Introduction

[1] An application for a protected action ballot with respect to operators and laboratory employees of BP Refinery (Kwinana) Pty Ltd (BP) at the BP Kwinana refinery was made on 2 June 2014. The application is made under section 437 of the Fair Work Act 2009 (the Act). The applicants and BP led lengthy evidence in relation to the application on 4 June 2014. As that evidence did not conclude until after 8pm that evening and BP foreshadowed detailed arguments in opposition to the making of the order I determined that the matter should be concluded by way of full written submissions of the parties.

[2] At the hearing of this matter Ms E Douglas appeared for the AWU and the other applicants. Mr T Caspersz appeared on behalf of BP.

The Application

[3] The grounds for approving the making, or making a protected action ballot order, are governed by section 443 of the Act. The Commission is required to make a protected action ballot order if it is satisfied that paragraphs (a) and (b) of section 443(1) are met. Section 443 provides:

443  When the FWC must make a protected action ballot order
             (1)  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)  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)  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)  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)  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)  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.

[4] The applicants submit that all of the requirements for making the order have been satisfied. BP submits that the order should not be made because:

● The Commission cannot be satisfied that the applicant’s purpose is not extraneous to the purpose in s.437(1);

● Claims are advanced by the applicants in relation to future employees;

● The Commission cannot be satisfied that the claim concerning the right to employ casuals and part-time employees has been abandoned;

● The claim of the applicants for enhanced redundancy benefits is fanciful;

● The applicants have failed to properly consider and respond to the employer’s proposal concerning redundancy provisions.

[5] Alternative submissions are made with respect to the questions proposed to be put to employees and the terms of a protected action ballot order regarding the notice period of employee claim action.

Valid Application

[6] I am satisfied that the application has been validly made under s.437 of the Act. I am also satisfied that the questions proposed to be asked are within the comprehension of the persons asked to vote in the ballot.

Genuinely Trying to Reach Agreement

[7] I am satisfied on the evidence led in this matter that each applicant has been and is genuinely trying to reach an agreement with BP. The applicants submitted that a log of claims was prepared and provided to BP which outlined the major items they sought for inclusion in the agreement and that a number of negotiation meetings were held which dated from as early as June 2013. The applicants’ witnesses gave evidence that the bargaining team discussed BP’s proposals and demands in team meetings and emails before providing a response to the company. Mr Clive Hacking also gave evidence that the bargaining team representatives met with employees in crew meetings to seek feedback from the employees regarding the company’s proposals and demands. The negotiations have been lengthy and have followed a conventional course. The parties are apart on certain key claims and in particular claims regarding redundancy entitlements. In my view there is nothing about the claim or the manner in which it is advanced that suggests that the negotiations are anything other than a genuine attempt to reach agreement on claims able to be legitimately pursued.

[8] Where issues of permitted matters were raised in evidence the applicants’ witnesses were receptive to abandoning them. They were not matters pressed in negotiations apart from being present in earlier agreements.

[9] Motivations in making the application in this matter are not directly relevant to the conduct and intent in pursuing claims in the negotiations. Further, I do not find that the element of the redundancy claims that relates to future employees takes the claim outside normal or acceptable bounds.

Extension of the Notice Period

[10] The respondent gave evidence that the safe operation of the Refinery could not be guaranteed if certain combinations of the proposed industrial action that was specified in the application were to be taken by the workers. Mr Garcia Galera gave evidence that three days notice was not sufficient to ensure that BP could safely shutdown the Refinery without compromising the safety of employees. Evidence was also given that the proposed industrial action could have significant impacts on the Western Australian economy.

[11] I am satisfied on the basis of the evidence led from Mr Garcia Galera in particular that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) to be extended to five working days. I will provide for such a longer period in the ballot order I will make in this matter.

Conclusions

[12] As I am satisfied that the application in this matter has been made under s.437 of the Act and the applicants have been and are genuinely trying to reach an agreement with BP I am required to make a protected action ballot order. An order [PR552440] is issued with this decision. It will contain the extension of the time for notice of industrial action that I have found is justified in the circumstances of this matter.

VICE PRESIDENT WATSON

Appearances:

E Douglas of the Australian Workers’ Union for the Applicants.

T H F Caspersz with J Hulmes, of counsel, for the Respondent.

Hearing details:

2014.

Perth.

3 - 4 June.

Final written submissions:

The Australian Workers’ Union & Others on 9 June 2014 (amended, 13 June 2014).

BP Refinery (Kwinana) Pty Ltd on 13 June 2014.

The Australian Workers’ Union & Others on 18 June 2014.

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<Price code A, PR552271>