The Australian Workers' Union v Chevron Australia Pty Ltd

[2023] FWC 1968

[2023] FWC 1968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Chevron Australia Pty Ltd

(B2023/814)

DEPUTY PRESIDENT BEAUMONT PERTH, 10 AUGUST 2023

Proposed protected action ballot of employees of Chevron Australia Pty Ltd – Gorgon LNG Facility.

1. This is an application by The Australian Workers’ Union (AWU) made under s 437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order in relation to certain employees of Chevron Australia Pty Ltd (Chevron). 

1. The application was lodged with the Commission on the evening of 7 August 2023 and was initially allocated to Deputy President Hampton.  The Deputy President sought a response from Chevron which, following the grant of an extension, was forthcoming on the morning of 9 August 2023.  In its response, Chevron raised three issues with the AWU’s application.  First, it submitted that the proposed questions to be balloted were unclear and difficult to understand, such that the employees may not have been able to give a considered response to them.  Second, Chevron submitted that the safety carve-out proposed by the AWU was unworkable and inadequate to ensure the safe operations of the Gorgon LNG Facility (the Facility). Third, Chevron submitted that there are ‘exceptional circumstances’ which warrant the grant of an extension to the notice period pursuant to ss 414(2)(b) and 443(5) of the Act.

1. The matter was allocated to my Chambers on 9 August 2023 and directions were issued requiring the AWU to file a response to the issues raised by Chevron by 5:00 PM later that day.  The AWU wrote to my Chambers seeking a 24-hour extension of time in which to file its response to allow the parties to explore whether a consent position could be reached.  I was content to grant the extension sought, with the AWU’s response due by no later than 5:00 PM on 10 August 2023. 

1. On 10 August 2023, the AWU filed revised draft orders addressing Chevron’s concerns.  Chevron confirmed that it did not oppose the making of orders in the amended terms proposed by the AWU.

1. Based on the materials filed and observing the agreed position of the parties, I considered it appropriate to determine the matter on the papers without holding a hearing.  

1. Regarding whether the circumstances warrant an extension to the notice period, I have found that they do. 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. The onus is on Chevron 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).[2]  Chevron submits that the nature of the protected industrial action described would cause significant disruptions to its operations at the Facility, and it holds concerns consistent with those raised by principals and contractors who operate in similar remote gas processing environments, where an extension of seven days had been granted by the Commission.[3] 

1. In my view, the circumstances so described in the materials justify the extension of the notice period up to seven working days.  I have therefore extended the notice period accordingly.  However, I observe that I do not consider the circumstances so described in AMWU v Skilled Offshore Pty Ltd[4] to be analogous to those experienced on the Facility.  Whilst appreciative that applications of the kind made demand expediency, where decisions of this Commission are referred to in support of a proposition, such decisions should at a minimum have contended with comparable circumstances. 

1. Based on the material before me, including the declaration of Mr Ross Kumeroa, Offshore Alliance Organiser, in which he sets out the steps taken by the AWU in bargaining with Chevron and confirms that the AWU has been, and is, genuinely trying to reach agreement with Chevron, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s 443(1) of the Act have been met.

1. The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has recently been approved as an eligible protected action ballot agent under s 468A of the Act[5] and consequently is authorised to conduct the ballot. For the purposes of ss 443(3)(c) and 448A(2) of the Act, a ballot period of ten (10) working days from the date of the Order (10 August 2023) has been determined by the Commission.

1. An Order has been separately issued in PR764995.

1. This matter will shortly be listed for a s 448A compulsory conciliation conference and an Order requiring attendance at the conference will be issued.  It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

Matter determined on the papers.

[1] (2007) 167 IR 4.

[2] [2018] FWCFB 4011, [20]–[21].

[3] See, eg, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Woodside Energy Ltd [2023] FWC 1831, [5]; Australian Workers' Union v Shell Australia FLNG Pty Ltd[2022] FWC 1140; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Shell Australia FLNG Pty Ltd[2022] FWC 1142; Australian Workers’ Union v Applus Pty Ltd[2020] FWC 6904; AMWU v Skilled Offshore Pty Ltd[2015] FWC 6727, [76], not disturbed on appeal in [2015] FWCFB 7399; AWU v Sodexo Remote Sites Australia Pty Ltd[2020] FWC 1012, [7]; AWU v Sodexo Remote Sites Australia Pty Ltd[2020] FWC 3583, [7].

[4] [2015] FWC 6727.

[5] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

Printed by authority of the Commonwealth Government Printer

<PR764996>