The Australian Workers' Union v Mwog Pty Ltd

[2021] FWC 3039

[2021] FWC 3039

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
MWOG Pty Ltd
(B2021/351)

DEPUTY PRESIDENT BINET PERTH, 28 MAY 2021

Proposed protected action ballot of employees of MWOG Pty Ltd.

[1] The Australian Workers’ Union of Australia (AWU) have applied to the Fair Work Commission (FWC) for a protected action ballot order (Application) pursuant to s 437 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Application was supported by a statutory declaration from Mr Douglas Charles Heath, Offshore Alliance Organiser for the AWU (Mr Heath).

[3] The AWU seek an order for a ballot to be conducted of employees of MWOG Pty Ltd (Aust) Pty Ltd (MWOG Pty Ltd) who are engaged to work on Woodside offshore facilities in classifications covered by a proposed enterprise agreement(Proposed Agreement) and who are represented by the AWU, or who are bargaining representatives for themselves but are members of the AWU (Employees).

[4] The Application was listed for a Conference on 28 May 2021 following email advice from MWOG Pty Ltd that the Application was opposed.

[5] MWOG Pty Ltd sought permission to be represented by a lawyer at the Conference. The granting of leave to MWOG Pty Ltd was not opposed by the AWU.

[6] Having considered the submissions of the AWU and MWOG Pty Ltd, leave was granted to MWOG Pty Ltd to be represented pursuant to section 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.

[7] In accordance with directions issued to the parties on 24 May 2021 the parties filed outlines of submission, copies of the authorities on which they relied and substantial documentary and written evidence in advance of the Conference.

Background

[8] MWOG Pty Ltd provides services in the oil and gas industry and employs a range of employees in providing those services. Some of MWOG’s employees work on offshore facilities in relation to maintenance services provided by MWOG to its clients.¹

[9] MWOG Pty Ltd’s current offshore work includes work in respect of facilities operated by Woodside Energy Ltd (Woodside), in particular the North Rankin A Complex, Goodwyn Alpha and the Angel platform (Facilities). MWOG Pty Ltd employs approximately 200 employees in respect of the maintenance services provided by MWOG Pty Ltd on Woodside Facilities.²

[10] The Facilities are operating offshore oil and gas facilities located in waters in oil and gas fields off the coast of Western Australia. The Facilities are located approximately 130 kms offshore from the Dampier coast. ³

[11] The normal operations of the Facilities involve hydrocarbons being extracted from wells on the seabed, flowing to the facility via flowlines, being processed and then being exported via pipelines to other facilities. Currently, the Facilities receive new hydrocarbons or process hydrocarbons and there are hydrocarbons stored on each facility. ⁴

[12] The Facilities are subject to a safety case, required under the Offshore and Greenhouse Gas Storage Act 2006 (Cth) (OPGGS Act).⁵

[13] The Facilities are subject to inspections from NOPSEMA and AMSA Class inspection providers. NOPSEMA, AMSA or Class inspectors may issue directions to the operator, MWOG’s client, following an inspection, relating to actions required within specified timeframes to improve safety. It is an offence under the OPGGS Act to breach a direction. ⁶

[14] The Employees perform maintenance work on the Facilities, including maintenance work that is part of the Safety Critical Activities (SCA). The maintenance work that involves SCA’s can be identified within the Operator’s SAP System (SAP), by work orders that are flagged as Technical Integrity (TI) in a way that differentiates the work from other activities that are not safety critical.⁷

[15] The Employees may also perform maintenance work in relation to the life critical systems on the Facilities as well as undertaking work on an urgent basis when an emergency arises. ⁸

[16] Almost all work on the Facilities is scheduled and is sequential, in that it is only possible to safely perform a particular task, if another task has been performed earlier, and within a particular timeframe. Any delays in work will usually have ‘knock-on’ effects and may create a safety issue. Safety critical work is usually ‘urgent’, even though the compliance date specified by the regulator has not passed, the relevant life critical system may still be sufficiently operational, or the relevant emergency event may not actually be occurring. ⁹

[17] On some occasions, some or all of the operations on a Woodside Facility are shut down or curtailed for major maintenance works, which on Woodside assets is referred to as a turnaround. During a turnaround, there will still be Safety Critical Work, including SCA's, that needs to be completed in respect of the facility and often in even shorter time frames than when operations on the facility are not shut down. MWOG Pty Ltd provides services in relation to maintenance turnarounds. For example, a turnaround is planned for a period of 4 weeks from 18 June 2021, on the Goodwyn Alpha (GWA) facility, and MWOG Pty Ltd may be required to provide some services in relation to that turnaround.¹⁰

[18] Given the remote locations, access to the Woodside Facilities for personnel is by helicopter from Karratha. Workers who do not reside in or near Karratha need to travel there to connect with a helicopter flight. In most cases; workers fly from Perth to Karratha on commercial flights.

[19] Generally, helicopter flight bookings need to be made 28 days (4 weeks) in advance (to align with the criteria laid out in Woodside's planning process). It may be possible to arrange for 1 or 2 key or essential personal to travel to a facility on an urgent basis - with 24 hours' notice- but that generally involves another person who would have been travelling to work on the facility being 'bumped' from the flight. There is limited accommodation on each facility.¹¹

[20] MWOG Pty Ltd issued a Notice of Employee Representational Rights (NERR) to the Employees on 18 December 2020. ¹²

[21] Bargaining meetings have been held on the following dates:¹³

a. 18 February 2021;

b. 4 March 2021;

d. 19 March 2021;

e. 28 April 2021; and

f. 13 May 2021.

[22] At the first bargaining meeting the AWU provided a log of claims to MWOG Pty Ltd.

[23] There are a number of key terms and conditions that are not currently agreed between the AWU and MWOG Pty Ltd. These outstanding key terms and conditions include:

a. Rates of Pay;

b. Travel;

c. Permanency; and

d. Sign On Bonus.

[24] A further bargaining meeting is scheduled for 27 May 2021. 14

Consideration

[25] The FWC is obliged to issue a protected ballot order in the following circumstances:

“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.”

[26] Section 437 relevantly provides as follows:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) If A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.”

[27] It is not in dispute that the AWU has standing to make the Application in their capacity as a bargaining representative. 15 The notification time in relation to the Proposed Agreement is 18 December 2020.16 The Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement.17

[28] The Application specifies the group of employees who are to be balloted. 18

[29] The AWU have proposed that CiVS conduct the ballot. The parties sought that the date by which the ballot should close would be four (4) days from the Commencement date specified in paragraph 6.2.1 of the Protected Action Ballot Order (Order). 19

[30] The Application also specifies the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. 20 In addition a note will be contained in the Order which will exclude certain specified safety critical work from any industrial action.

[31] The Application was accompanied by documents and other information prescribed by the Fair Work Regulations 2009 (Cth).

[32] I am therefore satisfied that the Application has been made in accordance with s 437 of the FW Act.

[33] The FWC may only make the order sought if the FWC is satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The applicant bears the onus of establishing this. 21

[34] The reference to the FWC being “satisfied” means that determining whether or not the requisite circumstance exists is a discretionary decision. The expression “has been, and is” imports temporal considerations, both of which are to be considered. An applicant for a protected action ballot order must satisfy both.

[35] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers' Union  22 (Esso Case), the Full Bench stated:

“Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad”  23 (references omitted)

[36] In Total Marine Services Pty Ltd v Maritime Union of Australia, 24 a Full Bench of Fair Work Australia relevantly stated:

“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement...”

[37] Both decisions stand for the proposition that a decision rule should not be adopted for the purposes of determining whether an applicant for a protected action ballot order has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The entirety of the circumstances of the case must be taken into account.

[38] The AWU provided evidence of the steps taken by them to bargain and of the progress of bargaining to date.

[39] In all of the circumstances, I am satisfied that the AWU have been, and is, genuinely trying to reach an agreement with MWOG Pty Ltd.

[40] Pursuant to s 414 of the FW Act, where an employee is to engage in protected industrial action, their bargaining representative must give written notice of the action. Section 414(2) requires three working days’ notice, or any longer period specified in the protected action ballot order.

[41] MWOG Pty Ltd submitted that, if an order is to be made, the FWC should exercise its discretion to increase the subsection 414(2)(a) notice period of three working days.

[42] Section 443(5) of the FW Act provides that:

“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.”

[43] This requires consideration of: 25

a. whether the circumstances are ‘exceptional’;

b. whether the ‘exceptional circumstances’ justify a requirement of notice longer than the statutory default; and

c. what the period of notice should be, up to a maximum of seven days.

[44] The determination of whether the circumstances of a particular case are ‘exceptional’ involves an evaluative judgement of those circumstances. Circumstances may be “exceptional” if they are out of the ordinary course, unusual, special or uncommon. They need not be unique, unprecedented, rare or unexpected. For this purpose, “circumstances” may include a combination of factors which together produce a situation that is out of the ordinary course, unusual, special or uncommon, notwithstanding that none of them taken in isolation would be “exceptional”. 26

[45] Determining whether the “exceptional circumstances” justify a requirement of notice longer than the statutory default inevitably requires balancing the interests of the employer and third parties in having a greater opportunity to take defensive action, against those of the employees which may be adversely affected by a diminution in the effect of their industrial action, and hence their bargaining power.

[46] Having concluded that particular circumstances are exceptional, and that they justify a requirement of a notice period longer than the statutory default, a Member must decide whether to exercise their discretion to grant an additional period of notice and determine how long that period should be. 27

[47] MWOG Pty Ltd provided evidence in support of its assertion that exceptional circumstances currently exist, which justify a requirement for a longer notice period.

[48] The evidence is that strict safety requirements apply in relation to all aspects of the Facilities, including the training and qualifications of personnel working on the Facilities. Given their offshore locations, access to the Facilities for personnel is by helicopter, out of Karratha and there are limits on the number of people and supplies that can be transported to and from the Facilities by helicopter. There is limited accommodation on the Facilities. These limitations mean that that it generally takes five to seven days to organise the mobilisation of a suitable number of additional workers to the Facilities, if additional labour is required.

[49] Since the start of the COVID-19 pandemic, there have been additional restrictions that have impacted on operations of the Facilities including isolation requirements imposed by state governments for workers needing to travel across state boundaries, and in some cases within areas of Western Australia, in order to mobilise or demobilise from the Facilities. The COVID-19 pandemic has impacted on the availability of labour more generally. Furthermore, there has been a reduction in the number of commercial flights available from Perth to Karratha. The combination of these factors means that currently it is even more difficult to mobilise a suitable number of additional workers to the Facilities if required.

[50] Whilst each case needs to be considered on its facts the FWC has previously recognised that there are features of the offshore environment which are exceptional as compared to other Australian workplaces which have warranted an extension of the notice period. This has occurred even, as in this case, where the ballot questions include safety related exclusions from the types of industrial action which might be taken. 28

[51] I am satisfied that the nature, and the potential impact, of the proposed industrial action is such that exceptional circumstances do exist justifying the extension of the notice period. In light of the evidence before me, I have decided to exercise my discretion to grant an extension of the notice period. I am satisfied that an extension of the notice period from three working days to seven working days is appropriate in all the circumstances.

[52] Having been satisfied that the requirements of s 443(1)(a) and (b) of the FW Act have been complied with, the Application is granted and a protected action ballot order has been issued. 29

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR730202>

1 Witness Statement of Mr Craig Alexander dated 25 May 2021.

2 Ibid.

3 Ibid.

4 Ibid.

5 Ibid.

6 Ibid.

7 Ibid.

8 Ibid.

9 Ibid.

10 Ibid

11 Ibid.

12 F34B – Declaration in support of an application for protected action ballot order dated 21 May 2021 – Mr Douglas Charles Heath , 2.1 (‘Heath Declaration’)

13 Ibid 2.1.

 14   Ibid 2.1.

 15   Ibid

 16   Ibid 1.6.

 17   Ibid 1.3.

 18   Form F34 – Application for a protected action ballot order dated 21 May 2021, 2.1 (‘F34’).

 19   Ibid 2.3.

 20   Ibid 2.2.

 21   John Holland v AMWU[2010] FWAFB 526, [27].

 22   [2015] FWCFB 210.

 23 Ibid [57].

 24   [2009] FWAFB 368.

 25   National Tertiary Education Industry Union v Charles Darwin University[2018] FWCFB 4011, [23] - [25].

 26   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia v Australian Postal Corporation (2007) 167 IR 4; [2007] AIRC 848, [10]; accepted as a correct statement of the law in Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99, [7] - [8].

 27   National Tertiary Education Industry Union v Charles Darwin University[2018] FWCFB 4011, [25].

 28   See for example AWU v Applus Pty Ltd [2020] PR725641 and AWMU and AWU v UGL Operations and Maintenance Pty Ltd [2021] PR728659.

 29   PR730203.