The Australian Workers' Union v Woodside Energy Limited T/A Woodside Energy Ltd WA-35-R Joint Venture
[2023] FWC 1827
•26 JULY 2023
| [2023] FWC 1827 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
The Australian Workers’ Union
v
Woodside Energy Limited T/A Woodside Energy Ltd WA-35-R Joint Venture
(B2023/742)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 26 JULY 2023 |
Proposed protected action ballot of employees of Woodside Energy Limited
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 the Respondent, Woodside Energy Limited T/A Woodside Energy Ltd WA-35-R Joint Venture (the Respondent).
On 26 July 2023, the Commission was advised that the Respondent did not object to the application, but did seek an extension of the notice period to seven days in accordance with s 414(2)(b) of the Act. The Respondent submitted that based on an agreed position of the parties the Commission could be satisfied that there are ‘exceptional circumstances’ warranting such extension.
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.
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 the Respondent 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.
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] Having considered the meaning to be attributed to that expression and in light of the materials filed, I have found that exceptional circumstances exist within the meaning of s 443(5) of the Act. It is plainly apparent that the external environment in which the Respondent operates the gas processing facilities of which it is a part-owner, is challenging. 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.
I further observe that based on the material before me, including the declaration of Mr Douglas Charles Heath, AWU Offshore Alliance Organiser, setting out the steps taken by the AWU in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, 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.
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[3] and consequently is authorised to conduct the ballot. For the purposes of s 443(3)(c) and s 448A(2) of the Act, a ballot period of ten (10) working days from the date of the Order (26 July 2023) has been approved by the Commission.
An Order has been separately issued in PR764555.
The matter will shortly be listed for a conference pursuant to s 448A of the Act. An order requiring the bargaining representatives’ attendance at the conference will thereafter 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.
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