The Australian Workers' Union v Woodside Energy Limited
[2012] FWA 4332
•30 MAY 2012
[2012] FWA 4332 |
|
DECISION |
Fair Work Act 2009
s.229—Bargaining order
The Australian Workers’ Union
v
Woodside Energy Limited
(B2012/469)
COMMISSIONER WILLIAMS | PERTH, 30 MAY 2012 |
s.229 - Application for a bargaining order.
Introduction
[1] This application is made by the Australian Workers’ Union (AWU) pursuant to s. 229 of the Fair Work Act 2009 (the Act). The respondent is Woodside Energy Limited (Woodside).
[2] It is not disputed that the AWU is a bargaining representative of employees of Woodside whom would be covered by a proposed single-enterprise agreement that would cover operator technicians employed by Woodside at the Karratha Gas Plant (KGP). Woodside agreed to commence bargaining on or about September 2010. The proposed single-enterprise agreement is referred to by the parties as Woodside Energy Limited Karratha Gas Plant Production Technicians Agreement 2011 (the proposed Agreement).
[3] The AWU submits that Woodside have not met, and are not meeting the good faith bargaining requirements, specifically:
(a) Attending, and participating in, meetings at reasonable times (s. 228(1)(a)); and
(b) Refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining (s. 228(1)(e), specifically the implementation of a new roster).
[4] Consequently the AWU are seeking that Fair Work Australia issue bargaining orders in relation to the conduct of Woodside during bargaining for the proposed Agreement.
[5] At the hearing of the application the AWU sought to amend the orders sought to now be as follows:
“That the Respondent immediately:
1. Make arrangements to reconvene with the Applicant (for a period suitable to both parties) to meet together for a 5-day intensive period, in order to make all reasonable endeavors to reach agreement on the roster issue alone. Should such negotiations fail to yield a mutually-agreeable outcome, then orders 2 – 5 will apply.
2. Schedule regular monthly formal bargaining meetings, commencing in March, 2012;
3. Cease and retract transition of the current residential and FIFO roster patterns, and reintroduce the previous residential and FIFO roster patterns applicable to the Karratha Gas Plant as at January of 2012:
(a) for an initial period of 60 days, after which the parties will reconvene to discuss further alternatives;
(b) if no suitable alternatives can be agreed upon, for this temporary stay on the alteration of roster patterns applicable to the Karratha Gas Plant will continue for a further 60 days until the parties reconvene again - the stay (as described in 3(a) above) to repeat thereafter until either an in principle agreement is reached between the parties or an agreement is made pursuant to S182 of the Fair Work Act 2009.
4. Permit the Applicant to hold 1-hour paid meetings with its operations employees immediately after each monthly bargaining meeting referred to in point 1 above;
5. Agree to report back (together with the Applicant) to Commissioner Williams on the state of negotiations via conference in 6 months.”
[6] Currently the employees whom would be covered by the proposed Agreement are covered by the Woodside Offshore Petroleum Pty Ltd Onshore Gas Plant Enterprise Flexibility Agreement 1994 [AG802452] (the current Agreement).
The legislation
[7] The sections of the Act relevant to this application and its determination are set out below:
“228 Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
(2) The good faith bargaining requirements do not require:
(a) a bargaining representative to make concessions during bargaining for the agreement; or
(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.
229 Applications for bargaining orders
Persons who may apply for a bargaining order
(1) A bargaining representative for a proposed enterprise agreement may apply to FWA for an order (a bargaining order) under section 230 in relation to the agreement.
Multi-enterprise agreements
(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.
Timing of applications
(3) The application may only be made at whichever of the following times applies:
(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:
(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or
(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;
(b) otherwise—at any time.
Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.
Prerequisites for making an application
(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:
(a) has concerns that:
(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and
(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.
Non-compliance with notice requirements may be permitted
(5) FWA may consider the application even if it does not comply with paragraph (4)(b) or (c) if FWA is satisfied that it is appropriate in all the circumstances to do so.
230 When FWA may make a bargaining order
Bargaining orders
(1) FWA may make a bargaining order under this section in relation to a proposed enterprise agreement if:
(a) an application for the order has been made; and
(b) the requirements of this section are met in relation to the agreement; and
(c) FWA is satisfied that it is reasonable in all the circumstances to make the order.
Agreement to bargain or certain instruments in operation
(2) FWA must be satisfied in all cases that one of the following applies:
(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;
(b) a majority support determination in relation to the agreement is in operation;
(c) a scope order in relation to the agreement is in operation;
(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.
Good faith bargaining requirements not met
(3) FWA must in all cases be satisfied:
(a) that:
(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or
(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and
(b) that the AWU has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the AWU to make the application without complying with those requirements.
Bargaining order must be in accordance with section 231
(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).”
The AWU’s submissions
[8] The AWU submits that it notified Woodside of its concerns that Woodside had not and was not meeting its good faith bargaining obligations by serving on them a s. 240 application on 6January 2012.
[9] Woodside replied to these concerns on 11 January 2012 and during a conference before myself on 12 January 2012 denied that it had breached the good faith bargaining provisions.
[10] The AWU does not consider that Woodside has replied to its concerns appropriately, given that it primarily relied upon its business case and wider contractual ability to change the hours of work and roster patterns of the relevant employees.
[11] Therefore, the AWU seeks the granting of orders in accordance with s. 231(1) of the Act.
The requirement to attend and participate in meetings at reasonable times
[12] The parties have been in negotiations for more than 16 months and have participated in approximately 13 formal bargaining meetings.
[13] The AWU submits that bargaining was progressing in accordance with s. 228(1)(a) until 26 August 2011, when Woodside wrote to the AWU and advised it would not be holding any further bargaining meetings prior to seeking the employees support for the proposed Agreement.
[14] Over the course of the next 5 months it is the AWU’s submission that Woodside began engaging in surface bargaining via correspondence, rather than genuinely engaging with the AWU and its bargaining representatives.
[15] The last formal bargaining meeting between the parties took place on 24January 2012 and Woodside provided the AWU with the current draft of the proposed Agreement. To date no further formal bargaining meetings have taken place.
[16] The AWU submits that there is a high likelihood of Woodside’s behaviour reverting back to surface bargaining, in circumstances where:
(i) it still has not elected to put out the proposed Agreement to a vote;
(ii) it has informed the AWU’s North−West Organiser that it will no longer deal with the AWU on matters other than ‘bargaining’; and
(iii) it has consistently adopted a ‘hard-bargaining’ position, and may well entrench itself deeper into this inertial stance without the assistance of Fair Work Australia.
[17] The AWU submits that it is reasonable in these circumstances for an order to be made to promote regular and systematic formal bargaining meetings on a monthly basis, in line with the ‘ground rules’ established between the parties at the onset of bargaining.
[18] The AWU seeks such an order to ensure that the level of interaction between the parties does not degrade to a ‘Cochlearesque-type’ situation, particularly in the absence of any undertaking by Woodside to partake in regular future meetings with the AWU.
The requirement to refrain from capricious or unfair conduct
[19] Woodside’s employees at the KGP either live in Karratha (residential employees) or commute to KGP on a fly in - fly out basis (FIFO employees).
[20] The AWU submits that Woodside has engaged in unfair conduct that has undermined collective bargaining when:
(a) on 21 September 2011 and 1 February 2012 it unilaterally commenced implementation of the transitional roster arrangements for both residential and FIFO operations employees at its KGP; and
(b) during December 2011 it conducted individual meetings with its FIFO operations employees, and asked them to choose 1 of 2 alternative roster options that they preferred. This selection omitted the preferred roster alternative put forward by the AWU’s bargaining representatives during negotiations.
[21] The AWU has consistently maintained a strong position on its roster claims throughout the bargaining process based not only on both the historical and present desire of the operations employees as a collective but also numerous unresolved concerns placing the viability of Woodside’s new rosters in serious doubt; such as:
(a) Increased health concerns and risk of fatigue;
(b) Reduced attraction and retention of valuable staff;
(c) Family and lifestyle disadvantages;
(d) Critical lack of fair and accountable due process on Woodside’s facade of ‘consultation’;
(e) Woodside’s hypocrisy in disregarding its own policies/guidelines;
(f) The failure of Woodside to properly finalise any and all consultative processes with all of its operations employees prior to the implementation of the new rosters; and
(g) The distinct lack of any impending need for Woodside to change the rosters when it did (legitimate imperative as opposed to mere commercial aspiration or future intention).
[22] After having advised the AWU of its preliminary intention to put the proposed Agreement out for a vote on 26August 2011 and expressing its preference not to conduct a ballot of its operations employees on the roster issue alone (contrary to historical custom and practice), Woodside carried out the individual meetings with its FIFO operations employees. During these meetings:
(a) Woodside sought the FIFO employees preference from a biased selection of alterative roster patterns;
(b) The selection of options omitted the preferred roster alternative put forward by the AWU’s bargaining representatives during negotiations (which Woodside is well aware of); and
(c) Several of the replies received by Woodside’s Team Leader from the FIFO operators indicated the operators’ support for the collective position put forward during bargaining.
[23] In these circumstances, the AWU submits that Woodside’s conduct was ‘direct-dealing’ used to avoid bargaining with the AWU on this issue, which undermined the role of the AWU’s bargaining representatives, and is therefore bargaining in bad faith.
[24] Woodside’s change of bargaining behaviour since 26 August 2011 calls into question its willingness to meaningfully engage with the AWU in order to move closer to reaching an in-principle agreement.
[25] The term ‘unfair conduct’ is very broad and far-reaching. The AWU submits that Parliament intended for this broad scope to be reflected in the application of s. 228(1)(e), in the context of undermining collective bargaining. The AWU submit that the industrial context of this matter, having regard to the long-standing, inadequate handling of the roster issue by Woodside, and its actions taken during bargaining to implement the opposed new rosters, are disingenuous, disrespectful and disregarding of the bargaining process itself, and obstructive and debilitating to the AWU’s efforts to bargain as a collective.
[26] A key distinction relevant to this matter concerns Woodside’s contractual ability to implement the new rosters before or after bargaining, contrasted with its duty to abide by its legal obligations to bargain in good faith during the bargaining process. The AWU submits that Woodside’s wider contractual ability to implement change at any other time does not give it carte blanche to act in the same way during the bargaining process, when doing so constitutes unfair conduct that undermines collective bargaining.
[27] The AWU submits that Woodside would not have suffered any financial hardship by refraining from implementing its new rosters on 1 February 2012 and its Karratha operations were performing optimally, presenting no urgent, unnecessary need to make roster alterations. Further, Woodside has never undertaken to carry out a thorough, consultative process with all of its operations employees prior to making any operational changes (such as the implementation of new rosters).
Is it reasonable in these circumstances to make orders?
[28] Because of the simultaneous application of both the common law and the Act on Woodside, it cannot solely rely on its existing contractual arrangements for its operations employees to take actions that are inconsistent with its obligations under the bargaining provisions of the Act – that is, to refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining.
[29] It is the AWU’s submission that it is reasonable in these circumstances for bargaining orders to be made, in accordance with s. 230 of the Act, and that the statutory requirements have been met.
Woodside’s submissions
[30] Woodside submits that there is no basis under s. 230 of the Act for Fair Work Australia to make the bargaining orders sought by the AWU, or any other orders against Woodside, and the application should be dismissed.
[31] In any event it is submitted that the AWU has not met the requirements under s. 229 of the Act in respect of this application.
[32] The AWU relies on a separate application made by the AWU under s. 240 of the Act on 6 January 2012. The s. 240 application was based on two allegations.
[33] The first (which was denied) was that Woodside had refused to arrange and participate in bargaining meetings with the AWU. The second (which was also denied) was in respect of the proposed implementation of new rosters at the KGP.
[34] Since the s. 240 application was filed and Woodside’s written response and the conference in Fair Work Australia on 12 January 2012 there has been a further bargaining meeting (on 24 January 2012) and employees have actually commenced working the new rosters (on 1 February 2012).
[35] The AWU has completely failed to comply with the requirements under s. 229(4) of the Act in relation to the further developments. Prior to this application, Woodside was not notified as to the AWU’s concerns in relation to these further developments, and in particular was not notified as to how the AWU says these further developments constitute a breach of the good faith bargaining principles. However, those further developments are at the heart of the orders now pursued by the AWU.
[36] The application should be dismissed on this basis. There is no warrant for the exercise of Fair Work Australia’s discretion under s. 229(5). The AWU has not established any basis upon which Fair Work Australia can be satisfied that it is appropriate to do so. There is no evidence at all that Woodside has refused to schedule or participate in bargaining meetings with the AWU, nor is there any evidence at all that the fact of Woodside’s employees working the new rosters has in any way impacted on bargaining.
Application unfounded
[37] In any event there is no basis for the AWU’s allegation that Woodside has not met, or (if this is what is now alleged) is not meeting, the good faith bargaining requirements.
[38] The long history of bargaining in relation to the proposed Agreement when considered in full and in context demonstrates the contrary proposition.
[39] Fair Work Australia should not, as a matter of discretion, grant the orders sought by the AWU against Woodside given the facts and circumstances of the case including the lack of any purpose or utility for any such orders.
[40] To the extent that orders sought by the AWU go to a substantive issue, the introduction of a new roster at the KGP, rather than the process of bargaining that the AWU complains of, the application is simply an attempt on the part of the AWU to reverse the introduction of a new roster at the KGP. The AWU is attempting to obtain, via the orders it seeks, an outcome that:
(a) is contrary to the industrial instrument that applies to employees, the current Agreement; and
(b) it has attempted to obtain under a new agreement but has not been able to achieve in bargaining.
AWU’s approach misguided
[41] The AWU cannot substantiate the criticisms it seeks to air via this application concerning the implementation of new roster arrangements at the KGP. However, not only are those criticisms unfounded they are irrelevant in that they are not determinative of a fundamental question Fair Work Australia is required to determine prior to making an order under s. 230 of the Act, namely, whether Woodside is not meeting the good faith bargaining requirements.
[42] It will not be sufficient for the AWU to demonstrate that there is a contrary view concerning the rationale for particular conduct, in this case a business change. Further, it will not be sufficient for the AWU to demonstrate that there is a contrary view concerning the merits of particular conduct, in this case the process adopted for implementing a business change.
[43] The alleged conduct must be capricious or unfair, and it must be conduct that could undermine freedom of association or collective bargaining. The AWU fails on both counts.
[44]
The AWU relies upon an allegation that Woodside:
(a) unilaterally commenced transitional roster arrangements for residential and FIFO operations employees; and
(b) prior to doing so, met individually with FIFO operations employees in relation to the new roster.
[45] There is no basis for an allegation that the implementation of the business change, the working of the new roster, was illegitimate or unlawful or was to avoid bargaining.
[46] Woodside consulted with employees extensively. There has been no breach of its legal obligations in this regard.
[47] There is no basis for the allegation that the meetings with individual employees concerning the implementation of the new roster arrangements were anything other than legitimate, or that the meetings were used, or even could be used in the circumstances, to avoid bargaining with the AWU.
[48] It is plainly the case that Woodside has been meeting the good faith bargaining requirements and there is no sensible basis for an allegation that it will not continue to do so in the future. The AWU’s theoretical use of terms such as ‘surface bargaining’, ‘direct- dealing’ and an undefined term ‘Cochlearesque’ cannot obscure the unexceptional facts in this case.
[49] There is no requirement under the Act that an employer’s business should be put on hold while negotiations take place, no more than there is a requirement that the enjoyment of the benefits of employment by employees should be put on hold during negotiations.
[50] The AWU has been pursuing significant changes to the current Agreement that applies to employees at the KGP. Whilst Woodside has considered the AWU’s proposals, and has indicated a preparedness to include provisions in a new agreement that go to some of the AWU’s demands, Woodside has not agreed to all of those proposed changes.
[51] In particular, the AWU has pursued a campaign for very significant changes that would restrict Woodside’s ability to make changes to its business required for the viability and progress of the business. Woodside has taken a strong position in bargaining on maintaining its right to make operational decisions to move the business in the direction Woodside considers necessary in terms of alignment and efficiency.
[52]
Section 228(2) of the Act clarifies that the good faith bargaining requirements in s. 228(1) do not require a bargaining representative to:
(a) make concessions during bargaining for the agreement; or
(b) reach agreement on the terms that are to be included in the agreement.
[53] Bargaining in good faith does not require a willingness to make concessions. It is consistent with adopting ‘a hard line’. Further, the inability of parties to reach an agreement is not evidence that either is acting in bad faith. Consequently the application should be dismissed.
The evidence
[54] The AWU supported its case with the evidence of one witness Mr Shane Moore. Mr Moore is an Operations Technician employed by Woodside at the KGP. Mr Moore has been employed since 2006. Mr Moore has participated in the bargaining process for the proposed Agreement with Woodside as a bargaining representative on his own behalf and on behalf of one other employee. His evidence which I accept is that he is generally aware of the differing views of a range of employees who have an interest in the proposed Agreement.
[55] Woodside supported its case with evidence from three witnesses namely Ms Kelly Carter, Human Resource Manager - Burrup, Mr Alastair Bruce, Production Manager - Karratha Gas Plant and Mr Paul Edwards, Operations Shift Team Leader - Karratha Gas Plant.
Consideration
[56] Before Fair Work Australia can exercise its discretion to make a bargaining order under s. 230 it must be satisfied in all cases of the following matters prescribed in that section.
S.230 (2)
[57] In this case I am satisfied that Woodside has agreed to bargain and there is no dispute regarding this.
S.230 (3)(b)
[58] I must be satisfied that the AWU has complied with the requirements of s. 229(4) which deals with notifying Woodside of their concerns or alternatively I must be satisfied under s. 229(5) that it is appropriate to consider the application even though it does not comply with s. 229(4)(b) and (c).
[59] In this case the evidence does support a conclusion that the AWU has concerns that Woodside has not met or is not meeting the good faith bargaining requirements. Further there is no reason why the s. 240 application cannot be said to amount to a written notice setting out those concerns to Woodside. Further there is no doubt that Woodside has had a reasonable time within which to respond to these concerns raised by the AWU and indeed has done so. Whilst there have been events that have transpired since the s. 240 application was lodged and when this application was made these do not in my view mean Woodside has not been notified of the concerns of the AWU on which this application is based. Consequently I accept that the preconditions of s. 229(4)(b) and (c) have been met in this case.
[60] In any event even if the application does not comply with s. 229(4)(b) or (c) I am satisfied that it is appropriate in all the circumstances to consider this application and will now do so.
S. 230(3)(a)(i) - not meeting the good faith bargaining requirements?
[61] In this application this is the critical provision of the Act to be considered.
[62] This section of the Act requires that Fair Work Australia be satisfied that Woodside have not met or are not meeting the good faith bargaining requirements.
[63] The good faith bargaining requirements are prescribed in s. 228. The two relevant requirements the AWU submit Woodside have not met, are:
“... (a) attending, and participating in, meetings at reasonable times...”
and
“... (e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining...”
Has Woodside been attending, and participating in, meetings at reasonable times?
[64] The history of meetings in this matter is not in dispute between the parties. The evidence is clear that for a lengthy period through to around August 2011 there were numerous meetings between Woodside’s bargaining representatives and the employee bargaining representatives including Mr Moore and the AWU’s representatives.
[65] Around 16 August 2011 Woodside explained at a bargaining meeting that it intended to now put the proposed Agreement to a vote of employees. Whilst the employee bargaining representatives acknowledged Woodside was entitled to take this action the AWU advised it was not willing to endorse the proposed Agreement as it then was if Woodside did put it to a vote of employees.
[66] There was a further bargaining meeting on 31 August 2011.
[67] Subsequently Woodside chose not to immediately put the proposed Agreement to a vote and there was a period of hiatus during which there were no bargaining meetings. However during this time there was a regular flow of correspondence backwards and forwards between Woodside and the AWU and a number of meetings were held with some of the employee bargaining representatives and Woodside regarding the proposed Agreement’s content and discussions about the remaining areas of disagreement.
[68] On 8 December 2011 Ms Carter wrote to Mr Moore in response to correspondence from him dated 30 November 2011. That letters closing paragraphs explained that Woodside had proposed to put the proposed Agreement to a vote of employees but had intended only to do this with the support of the bargaining representatives even though that support may not go so far as to endorse the content of the proposed Agreement. Woodside explained that it was now clear that the employee bargaining representatives would recommend the employees vote no to the proposed Agreement. Ms Carter concluded her letter to Mr Moore by saying that she will schedule a meeting in the New Year to go through various suggested amendments before progressing further.
[69] Considering this history of the negotiations to this point there is no evidence to support a finding that Woodside’s change of direction (to no longer have employees vote on the proposed Agreement) was other than a genuine change of mind. From Woodside’s perspective there was some confusion between mid-August and December 2011 with respect to the proposed Agreement and the position of the employee bargaining representatives on a range of matters.
[70] There is no reason to conclude that Woodside’s initial proposal to put the proposed Agreement to a vote and later decision not to do this was done capriciously or for some improper reason.
[71] Subsequent to these developments on 6 January 2012 the AWU lodged their s. 240 application.
[72] Following the conference on 12 January 2012 dealing with the s. 240 application there was a further bargaining meeting held on 24 January 2012. The evidence is that out of that meeting it was agreed that the employee bargaining representatives were to respond to Woodside on a range of matters in writing 1and that upon receipt of this a further bargaining meeting will be convened. This s. 229 application was then made on 31 January 2012.
[73] Considering all the evidence about the history of bargaining there is nothing in this that demonstrates that Woodside has been or is failing to meet the requirements set out in s. 228(1)(a) to attend and participate in bargaining meetings at reasonable times. In terms of s. 230(3)(a)(i) the AWU has not satisfied me on this point that Woodside have or are not meeting the good faith bargaining requirements.
Has Woodside refrained from capricious or unfair conduct that undermines freedom of association or collective bargaining?
[74] The second basis for the AWU asserting that Woodside has not been meeting its good faith bargaining requirements is that it has engaged in capricious or unfair conduct that has undermined freedom of association or collective bargaining.
[75] The evidence of Woodside’s witnesses which is not contested and indeed is confirmed by Mr Moore is that as long ago as 2009 Woodside began a process of reviewing its rosters. In March 2010 proposals to change rosters were communicated to employees generally at the KGP (including the employees whom would be covered by the proposed Agreement).
[76] The evidence of Mr Bruce was that in March and April 2010, which importantly was before the bargaining negotiations had commenced, he was involved in approximately 14 different communication sessions with groups of operations employees about the new roster proposals.
[77] It was accepted by all Woodside witnesses that not all employees were supportive of the proposed changes. Their evidence however is that through a lengthy consultation process a range of changes, many quite significant, were made to the new proposed rosters.
[78] The evidence which is largely unchallenged is that there were a number of key business drivers for the review of rosters and for the particular new rosters subsequently implemented.
[79] Since FIFO arrangements were introduced in 2007 the number of operations employees on this roster has increased. The FIFO arrangements mean these crews were not aligned with crews who work a residential roster. This misalignment of rosters between crews means that each area of the business was operating on a silo based around their roster.
[80] This arrangement had a number of negative consequences including restrictions on employees’ career development. This has been addressed with the new rosters by making all operational areas have a mixture of FIFO and residential roles with rosters that align allowing employees to more readily broaden their skills and seek promotion without having to move from one roster arrangement to another.
[81] The mix of FIFO and residential rosters implemented finally in February 2012 allows Woodside to be competitive in the employment market and retain and attract skilled employees.
[82] The new arrangements also allow for better supervision and continuity of supervisors for teams.
[83] Woodside’s evidence is that the new roster has allowed them to remove residential employees from nightshift, which is viewed as advantageous because it is believed that FIFO employees are able to manage nightshifts from a fatigue management perspective more readily.
[84] Woodside’s evidence was also that there was some benefit perceived having a consistency of rosters between the KGP and the new Pluto Gas Plant.
[85] The new roster arrangements also allow Woodside to more easily achieve an appropriate mix of competencies on each shift and minimises past underutilisation of employees.
[86] The evidence of Mr Bruce was that implementation of the changed roster across the KGP at the end of 2011 and the beginning of 2012 was important because 2012 will be a busy year involving two major planned shutdowns and the commencement of a plant rejuvenation project and the new rosters needed to be in place to assist in managing this increased workload.
[87] The evidence is that before the new roster was implemented for operations employees they were implemented for all frontline maintenance employees and some laboratory employees. The date for implementing the new roster for operations employees was delayed until February 2012 so that it would not be done during the school holiday period when a large number of employees were on annual leave.
[88] The evidence of Mr Moore however is that he and a number of other employees object to the new rosters for a range of personal reasons and because they have different views from Woodside as to the asserted operational benefits to the company and argue there are other disadvantages.
[89] Importantly the evidence discloses that significant consultation with employees on Woodside’s proposals to change the rosters had begun in 2009 and 2010, well before the parties began negotiations for a new single-enterprise agreement in September 2010.
[90] The evidence is that Woodside’s position in relation to the changing rosters put to employees through the consultation process between 2009 and 2012 is the same position that Woodside put to the employee bargaining representatives during negotiations for the proposed Agreement.
[91] The evidence is that the employee bargaining representatives throughout the negotiations have opposed the roster changes and have sought to include new provisions in an agreement regarding stringent consultation obligations on Woodside with regard to any future roster changes.
[92] The evidence is that Woodside towards the end of 2011 held individual discussions with employees about the implementation of the roster changes. Contrary to the AWU’s characterisation of this I accept that those discussions were not in any way inappropriate and where an unexceptional final step in the lengthy implementation process that Woodside had undertaken to change the rosters at KGP.
[93] As has been found previously not all unilateral acts by a bargaining representative during negotiations for an agreement that another party objects to will necessarily be unfair or capricious 2.
[94] Whilst during bargaining the employee bargaining representatives did oppose the new rosters that have now been implemented, that is not enough of itself to demonstrate that the conduct of Woodside in implementing new rosters was capricious or unfair.
[95] It is difficult to see the course of action Woodside has pursued which started in 2009 well before bargaining had begun and which has involved extensive consultation with employees over three years which has culminated in new rosters being implemented this year was conduct that could properly be said to be capricious.
[96] The action of Woodside in implementing the new rosters was not unpredictable nor was it impulsive, fanciful or whimsical. On the contrary Woodside’s conduct was the end result of extensive planning and the roster changes were transparently implemented over a lengthy period of time. Implementing the new rosters by Woodside was not capricious conduct.
[97] The evidence also is that implementing the new rosters was done for sound business reasons. Those reasons were identified by Woodside before the bargaining negotiations began. Woodside was open and consistent throughout the negotiations about their reasons for wanting to change the rosters. During bargaining Woodside was clear that it would not agree not to change the rosters. The bargaining process had been ongoing for over two years at the time Woodside finally changed the rosters for the employees in question. To require a company to refrain from making changes to its operations solely because the change involved issues raised during bargaining in these circumstances would be unreasonable. Consequently in the particular circumstances of this matter Woodside’s conduct cannot be said to have been unfair.
[98] Even if Woodside’s conduct was capricious or unfair the Tribunal, to be satisfied that Woodside has not met the good faith bargaining requirements, must also find that this conduct undermined collective bargaining or freedom of association.
[99] The AWU has not argued that the conduct of Woodside has undermined freedom of association.
[100] The specific conduct the AWU points to is the action by Woodside in late 2011 that culminated in a change to rosters being finally implemented on 1 February 2012 for the employees whom would be covered by the proposed Agreement.
[101] The AWU’s argument that Woodside’s conduct undermines collective bargaining is essentially based on the fact that that the roster changes was opposed by the employee bargaining representatives during the negotiations. What isn’t clear is why that change would be said to undermine collective bargaining. The issue of what rosters will be worked and what consultation obligations Woodside will have for the future are all still open to be the subject of claims by the AWU and subject to bargaining.
[102] Woodside has not as was the case in other matters before the Tribunal 3 acted to undermine a claim made during bargaining by unilaterally granting the claim in part so that there was little left for the union to pursue in collective bargaining. Such conduct has been found to have undermined bargaining. In this case notwithstanding the change to rosters the AWU’s claims regarding rosters can remain the subject of bargaining if the applicant wants to pursue this in the negotiations in future. The conduct of Woodside has not prevented the AWU from doing that, the conduct has not undermined collective bargaining.
[103] The applicant has not satisfied me as required by s. 230(3)(a)(i) that Woodside’s conduct means they have not or are not meeting the good faith bargaining requirements. Woodside’s position is not that it objects to entering into an agreement with the AWU. It has put proposals forward during the negotiations. There have been some concessions made by Woodside. It has proposed a draft agreement and was considering having this put to a vote of its employees. That context does not support a finding that its conduct overall has undermined collective bargaining.
Conclusion
[104] Under s. 230(3)(a)(i) before making a bargaining order I must be satisfied that the respondent has not met, or is not meeting, the good faith bargaining requirements specified in s. 228. As explained above I am not satisfied that that is the case in this matter. Consequently no bargaining orders can be made and this application will be dismissed. An order to that effect will now issue.
COMMISSIONER
Appearances:
S Banovich of Counsel for the Australian Workers’ Union.
D Parker, Solicitor for Woodside Energy Limited.
Hearing details:
2012.
Perth:
March 26, 27.
1 Witness statement of Kelly Carter at paragraph 60.
2 CFMEU v Tahmoor Coal Pty Ltd [2010] FWAFB 3510 at paragraph 30.
3 Finance Sector Union of Australia [2010] FWA 2690.
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