Weatherford Australia Pty Ltd - [2025] FWC 1656

[2025] FWC 1656

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Weatherford Australia Pty Ltd

(AG2025/359)

COMMISSIONER SIMPSON

BRISBANE, 16 JUNE 2025

Application for approval of the Weatherford Australia Pty Ltd, Tubular Running Services Field Employees Enterprise Agreement 2025 – approval contested by union – terms not sufficiently explained – contest on whether specific group of employees was covered or intended to be covered by the Agreement when not specifically mentioned – not an obvious error able to be amended by s.218A – issue to appropriateness of accepting an undertaking – application dismissed.

On 14 February 2025, an application was made for approval of an enterprise agreement known as the Weatherford Australia Pty Ltd, Tubular Running Services Field Employees Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Weatherford Australia Pty Ltd (the Applicant / Weatherford). The Agreement is a single enterprise agreement.

On 21 February 2025, the Australian Workers’ Union (AWU), a bargaining representative to this Agreement, submitted a Form F18, notifying that they had concerns with the Agreement. The AWU expressed four major concerns with the Agreement:
·   that employees not covered by the Agreement voted on the Agreement;
·   that several of the employees that took part in the vote lacked sufficient interest in the Agreement;
·   that insufficient steps were taken by the employer to explain the Agreement; and
·   that the Agreement does not pass the Better Off Overall Test (BOOT).

The relevant Award for the purposes of the BOOT is the Hydrocarbons Industry (Upstream) Award 2020 (the Award).

On 27 March 2025, I issued directions for the filing of submissions, and parties filed their submissions. A hearing was held on 7 May 2025. The Applicant was granted permission to be represented by Mr Cheyne Beetham instructed by Ms Dominique Hartfield and the AWU was represented by Mr Zach Duncalfe. Two employee bargaining representatives also appeared: Mr Michael Irvine and Mr Glen Parise.

The AWU filed a witness statement from Mr Douglas Heath, an Organiser employed by the AWU and the Maritime Division of the CFMEU. The AWU advised on the day of the hearing that he was unavailable to give evidence as he had to urgently go to Singapore for a vessel inspection.

There is no dispute that there are employees of the Applicant called ‘Field Specialists.’ The AWU submitted that the bulk of the statement of Mr Heath goes to the Field Specialists issue and that is not in dispute. Regarding the parts of his statement going to rates of pay and the Applicant’s tactics, this goes to weight and the AWU has not filed any documentary evidence. The AWU submitted that it understood the over Agreement pay rates are not in contest.

The Applicant submitted it had intended to cross examine Mr Heath about part of his evidence and other parts were inadmissible. The Applicant submitted that until the statement is tendered through the witness it should have no weight. The Applicant agreed the existence of the Field Specialist role is not controversial and that it is a question about the proper construction of the Agreement and the Act.

The AWU submitted that the issue of voters being outside the cohort of employees, and the explanation of the Agreement, which Mr Heath’s statement does not go to, is mainly what the AWU would be addressing during the hearing, and otherwise it would rely on its written submissions. The AWU submitted Mr Heath’s statement not being in evidence did not affect the AWU submissions in any way, except in relation to the tactics issue. However, that was hearsay evidence anyway and it is very difficult to obtain evidence from employees about the issues the AWU raises in relation to what it alleges were the Applicant’s tactics in having the Agreement approved by a majority of employees.

The hearing proceeded without the benefit of the evidence of Mr Heath.

Evidence and Submissions

The Applicant filed a witness statement from Ms Francesca Muirhead,[1] the Senior Human Resources Business Partner for the Applicant. Ms Muirhead gave evidence that she assisted the Operations Manager, Mr Lee Nott during the bargaining and application process. Her involvement included the issuing of the NERR, the preparation of a BOOT analysis and attending bargaining meetings and assisting with presentations, preparing/updating comparison documents for employees, sending out documents to employees prior to the vote, and preparing the application and supporting documents for filing with the Commission.

Ms Muirhead said she attended bargaining meetings with Mr Nott, and Mr James Lamb the Industrial Consultant based out of Queensland for Weatherford and took minutes and updated a live document as they were going through. Ms Muirhead said the Applicant also instructed Mr Peter Cook based in Western Australia, when protected action was taking place.

The AWU said in submissions that it was a bargaining representative of approximately 40 of the employees covered by the Agreement and it opposed approval.

Employees voting not within scope of Agreement

The AWU first opposes the Agreement being approved on the basis that some of the employees who were asked to approve the Agreement are not covered by the Agreement. That is on the basis that Field Specialists are not engaged within the scope of the Agreement, which is contrary to s.181 of the Act. The vote on the Agreement took place from Friday 31 January 2025 to Saturday 1 February 2025, and the result of the vote was 25 “yes” to 24 “no”.

In its submissions filed on 14 April 2025, the AWU asserts that four employees whose position classifications were listed as “Field Specialist III” voted on the Agreement, despite being not entitled to vote, as the Agreement only appears to cover Field Operators.[2] Moreover, as the employee representative that signed the Agreement was one of these Field Specialists, they were neither a bargaining representative nor an employee covered by the Agreement. Taken together, the AWU submits that the Agreement cannot be said to be validly made in accordance with s.182 of the Act.

The Applicant, in its submissions dated 23 April 2025, submits that Field Specialists have been covered by previous agreements and that “Field Specialists” fall within the Field Operator classification of the Agreement. Ms Muirhead gave evidence that under the current 2015 Agreement both positions were known as “Field Service Technicians” and the Agreement before the Commission now, will alter that position to collectively “Field Operators”.

Ms Muirhead was asked if on an overall basis a Field Specialist III receives more beneficial terms and conditions of employment than a Field Operator I, II or III and she agreed. Ms Muirhead was asked whether a Field Specialist III would receive more beneficial terms and conditions of employment than a Field Operator IV and she said off the top of her head she did not believe this was correct. It was Ms Muirhead’s evidence that a Field Specialist III received the same pay and conditions as a Field Operator IV.

Ms Muirhead said there are four levels of Field Specialist. She said a Field Specialist I gets the same rate of pay as a Field Operator II, a Field Specialist II gets the same rate of pay as a Field Operator III, and a Field Specialist III and above gets the same rate of pay as a Field Operator IV.

Ms Muirhead said that the Field Specialist title is to identify Field Operators who have more technical knowledge or experience, particularly in terms of the relevant technology. Ms Muirhead said the Field Specialists perform the same job as Field Operators but have higher technical qualifications and experience.

It was put to Ms Muirhead that her evidence was that Field Specialists have more technical knowledge or experience but that they don’t receive any additional benefits for using that greater technical knowledge or experience on behalf of the company. Ms Muirhead said no. Ms Muirhead was asked why the title Field Specialist exists. She said it was because they are Field Operators that have slightly more knowledge or experience on either specific equipment or processes and usually, they have been in the organisation a lot longer and have more experience on the technologies or equipment.

Ms Muirhead was asked why they would not be at Field Operator IV level, if they are paid the same as Field Operator IV level. Ms Muirhead said because the scope of work they do is the equivalent of a Field Operator III.

Ms Muirhead said that Field Specialists are included, and are intended to be included under the coverage of the current enterprise agreement, the Weatherford Australia Offshore Employee Collective Agreement 2015 (the 2015 Agreement) and the current agreement is applied to their employment, although Field Specialists are referred to in the current agreement as ‘Field Service Technicians,’ under the current proposed Agreement that language will change to ‘Field Operators’.

Ms Muirhead said the 2015 Agreement is referred to in the Field Specialists employment offers/contracts. The Applicant also said in submissions that the Field Specialists’ employment contracts refer to the 2015 Agreement. Ms Muirhead said at no time during the negotiation process, including at the bargaining meetings or subsequently prior to the vote, did she recall any bargaining representative or union raising a question or concern about whether Field Specialists were included under the Agreement.

The Applicant submits no objection to Field Specialists being included in the bargaining process was submitted at the time. Ms Muirhead said what was questioned and discussed was whether Field Engineers should be included in the proposed Agreement. Ms Muirhead said that it was agreed with the bargaining representatives that Field Engineers should not be included in the Agreement as they have a different career pathway and qualifications, and their job scope is very different.

It was put to Ms Muirhead that if someone is a Field Specialist, they are not referred to as a Field Operator, they are instead referred to as a Field Specialist. Ms Muirhead agreed that was their position title. Ms Muirhead agreed that the position title (of Field Specialist) is reflected in the Applicant’s internal system. Ms Muirhead agreed that they are identified as Field Specialists in communications including from the Field Specialists themselves such as for signatures and emails. Ms Muirhead also agreed that Field Specialist is the title in those employees’ contracts of employment.

The Applicant repeated in oral submissions that Field Specialists are Field Operators, and they are therefore covered by the Agreement notwithstanding there is no express reference to Field Specialists in the Agreement. The Applicant submits this reflects the status quo, and that is important context in relation to whether the current proposed Agreement covers Field Specialists. Further, it was known that they were covered, and this supports the assertion that there was an intention for them to be covered.

The Applicant refers to a table at the back of the 2015 Agreement at Schedule 1 that sets out the title and function of persons covered by the 2015 Agreement as Field Service Technician 1 to 4. It was submitted, for example, that the function descriptions for Field Technicians 1,2,3, and 4 are near identical to Field Operators 1,2,3 and 4 under the proposed Agreement.

The Applicant submits the focus should not be too much and artificially on the title, and what is relevant is the function, and the function of a Field Specialist is the same as the functions described in both the 2015 Agreement and the proposed Agreement. It submits that this industrial context, and Ms Muirhead’s evidence at paragraphs 10 to 13 supports a conclusion Field Specialists are within the coverage of the proposed Agreement.

The Applicant also refers to an email of Mr Nott dated 8 May 2024 that was sent by Blind Carbon Copy (BCC) that issued the first NERR, and it is shown in the BCC section of the email that it was sent to a Mr McDonald who is a Field Specialist and who signed the proposed Agreement.

The Applicant also refers to a later email sent by Mr Nott on 12 August 2024 to employees, that was not sent by BCC to employees, and it includes the names of Mr McDonald and Mr Vallentine, who are persons described as Field Specialists. The body of the email also includes Mr Marsh and Mr Parise as employee representatives, who also received the email.

The Applicant also refers to an email from Ms Muirhead to employees dated 12 December 2024, and this email also includes Mr McDonald, Mr Marsh, Mr Parise and Mr Vallentine as recipients of the email. It also refers to an email from Mr Nott that was sent as BCC to employees dated 29 January 2025 that includes Mr Lempoy, Mr McDonald, Mr Singh and Mr Vallentine. The Applicant asserts that it is clear from the emails that the Applicant intended to include these Field Specialist employees within the scope of the Agreement, and from some of the emails this was known to those involved in the arrangements that led to the Agreement. The Applicant submits the nomenclature is different, but this is a matter of form but not of substance.

The Applicant submits if its primary position is not accepted, in the alternative the Applicant is able to provide an undertaking to meet any concern that the Commission may have under s.186. The Applicant said the undertaking would not cause financial detriment to any employee and would not cause substantial changes to the Agreement.

The Applicant provided a proposed undertaking on 7 May 2025 that includes an altered Schedule 1 and 2 of the Agreement that expressly includes “Field Specialist” at a pay point equivalent with some classifications of Field Operator. The proposed undertaking reads as follows:
“I, Nathan Rowden, Director of Human Resources APAC, have the authority given to me by Weatherford Australia Pty Ltd, to give the following undertaking with respect to the Weatherford Australia Pty Ltd, Tubular Running Services Field Employees Enterprise Agreement 2025 (“the Agreement”):

In respect of Schedule 1 and 2 of the Agreement, Weatherford Australia Pty Ltd agrees to provide clarification in the Agreement, that the Agreement applies to Field Specialists, by the insertion of the following wording (italicised) in the “Classification” columns in all tables in those schedules (including each anniversary) to read:

Classification

FIELD OPERATOR 1

Field Operator 2 / Field Specialist 1

Field Operator 3 / Field Specialist 2

Field Operator 4 / Field Specialist 3 and above

This undertaking is provided on the basis of the issues addressed in the hearing of the application before the Fair Work Commission on 7 May 2025...”

The Applicant refers to a decision in CFMMEU v C & H Acquisition Pty Ltd[2020] FWCFB 3134. The Applicant relies on the decision in the context of what constitutes substantial change to an agreement under s.190(3)(b) of the Act. The Applicant submitted what is relevant is the degree of quality of change, and whether the change is transformative of the agreement, such that it may give rise to a concern that it may have affected the way in which employees chose to vote.

The Applicant submitted its proposed undertaking will not be transformative to the Agreement and would not have changed how employees would have voted. The Applicant submitted the essence of the Agreement, and the way Field Specialists and Field Operators overlap as described by Ms Muirhead remains unchanged, and the undertaking is just a clarification of that. The Applicant refers to the following passage from the CFMMEU v C&H decision as follows:

“43. We agree that the scope of an enterprise agreement is one of its fundamental features. However, that does not mean that any change to the scope of an agreement is a substantial change; each case turns on its own facts and circumstances. Hungry Jack’s is an example of a case in which the effect of accepting an undertaking narrowed the scope of the agreement, but it was held not to be a substantial change because the undertaking in that case did “no more than give effect to what was always intended to be the coverage of the Agreement”.

The AWU disputed that the facts in this matter are on all fours with the RAFFWU v Hungry Jack’s Australia Pty Ltd T/A Hungry Jack’s [2020] FWCFB 1693 (Hungry Jack’s) decision in relation to what the parties “always intended”. The AWU submits the undertaking in the Hungry Jack’s matter narrowed the scope, whereas the proposed undertaking here expands the scope. The AWU also submits that in Hungry Jack’s the narrower scope was in the NERR, in this case the expanded scope was not in the NERR. The AWU notes the undertaking would insert the Field Specialists at certain classification levels consistent with Ms Muirhead’s evidence that a Field Specialist I is at the level of a Field Operator II and so on up the classification levels.

The AWU submits that the Commission accepting the undertaking would deny the Field Specialists an opportunity to vote on whether they believe they are at those levels and would deny them the opportunity to have a view as to whether they sit at the level or not. The AWU submits it is not known what the Field Specialists think about where they sit in the classification structure.

The AWU also submits that it was concluded in Hungry Jack’s that the narrower scope was the basis on which the bargaining had proceeded between the employer and the two unions in that matter. In this case, the AWU was not told about the Field Specialist classification. Further, in Hungry Jack’s it was found that the narrower scope reflected what was explained to employees, whereas in this case there is no explanation to employees about the existence of another classification of Field Specialists.

The Applicant submits in response that the point about Hungry Jack’s is that consistent with paragraph [91] of that decision, when an undertaking is consistent with that which was intended, then the undertaking is an available option for the Commission. The Applicant clarified that it does not submit the circumstances in Hungry Jack’s are on all fours with the facts here. The Applicant also referred to paragraph [44] of the Full Bench decision in CFMMEU v C&H where an undertaking was considered that expanded the scope of an Agreement to include employees who would have been excluded from coverage if their remuneration exceeded the high-income threshold. No employees were in that category at the time of the vote. The undertaking was determined not to be a substantial change.

The AWU said the Applicant has not made submissions about s.181 of the Act but has instead made submissions about s.186(2)(a). The AWU submits that is because an undertaking cannot be accepted to remedy an issue with s.181. The Applicant said it is correct that an undertaking cannot address an issue under s.181, however, the Applicant’s principal position is that the Agreement satisfies s.181, and the undertaking is not offered to fix a s.181 issue, but to clarify the scope of the Agreement, and the Commission is therefore able to accept it.

The Applicant has also made a submission that another way to address the issue if the Commission was against it in relation to its submission that the proposed Agreement does cover Field Specialists, and also its alternative argument that the matter can be addressed by an undertaking, was that the Commission could exercise power under s.218A of the Act to vary the Agreement.

The AWU submits the NERR issued included the following:

“Weatherford Australia Pty Ltd gives notice that it is bargaining in relation to a single-enterprise agreement (Weatherford Australia Offshore Employee Collective Agreement 2024) which is proposed to cover employees that are engaged to perform work offshore and in field operations for the Employer and who are engaged in classifications as defined by the agreement.”

The AWU notes for coverage clause of the Agreement includes the following in relation to employees covered:

“(b) All Employees of Weatherford Australia Pty Ltd who are undertaking field work for Tubular Running Services (TRS), a division of the Employer in the classifications set out in Schedule 1 of the Agreement.”

The classifications in Schedule 1 of the Agreement are Field Operator 1, Field Operator 2, Field Operator 3 and Field Operator 4. Neither the NERR nor the Agreement refer to a classification of Field Specialist, however in its request pursuant to s.181 of the Act, the Applicant asked Field Specialists to vote on the Agreement. The AWU submits that the proposed Agreement was said to cover 50 employees of which 49 voted and 25 voted it up. The AWU submits the Applicant does not dispute the Agreement classifications do not refer to Field Specialists.

The AWU described the Applicant’s submissions as being that it doesn’t matter what the classifications in the Agreement say, because the Applicant thinks that Field Specialists are included. The AWU says the best it can point to is the recipients of emails, and it would be a dangerous precedent to find that the Agreement’s scope is determined by who the NERR was sent to, rather than what the NERR says. Further, the AWU submits the Agreement’s scope in the Agreement itself is going to take precedence over what the NERR says, and who the recipients on an email list are.

The AWU also submits that it was also put by the Applicant that this was the status quo, and the last 2015 Agreement covered these Field Specialists even though they were called something else. The AWU disagreed, submitting that the Field Specialists position exists separate to the Field Operator positions and is in contracts of employment, and in the Applicant’s internal systems and in how they sign documents.

The AWU submits the Applicant has criticised the AWU for only raising the issue in relation to the Field Specialist classification now, however the AWU said it was never told about the Field Specialist classification. The Applicant in oral submissions said this submission was not intended to be a criticism, and to the extent the AWU felt criticised about this, it withdrew the criticism. The AWU said it had no idea that there were employees called Field Specialists purported to be covered, notwithstanding that the Agreement did not say that. The AWU said it was not raised, the AWU was never told, and the AWU did not engage in negotiations with the full knowledge that the Agreement was proposed to cover those Field Specialist employees, without the Agreement saying that. The Applicant submits to the extent the AWU said it had no knowledge of the Field Specialist classification, this was an assertion there is no evidence of.

The AWU submits the controversy is that the AWU says the scope of the Agreement is what sets the scope of the Agreement, not what the Applicant says it intended for it to be. The AWU said there is no precedent for this.

The AWU refers to a Federal Court decision of Katmann J in CFMEU v Deputy President Hamberger anor [2011] FCA 719 at paragraph [79] in reference to the words at s.172(a) of the Act “employees who will be covered by the agreement.” The AWU emphasised the following in paragraph [79] of that decision:

“Objectively, the intention of the legislature in using the expression was to ensure that the employer could only make an agreement with those employees who are named or described in the agreement and who the agreement purported to cover.”

The AWU submits the Agreement in this case does not name or describe the Field Specialist employees. In response to the Applicant’s submission that the four levels have not changed between the 2015 Agreement and the proposed Agreement, the AWU submitted that neither the 2015 Agreement or this Agreement mention Field Specialists, and the only nomenclature that has changed is moving from Field Service Technicians Levels 1 to 4 to Field Operators levels 1 to 4.

The AWU submits the evidence of Ms Muirhead was that the Field Specialists have additional knowledge and additional experience that qualifies them to be Field Specialists, however the functions in the classifications in the Agreement do not say anything about that, that raises them above the Field Operator classifications.

The AWU submits Field Specialists have their own identity, and that identity and classification is not covered by the Agreement.

The AWU also raise that the Agreement was signed by a Field Specialist, notwithstanding that the employee described himself as a Field Operator in the signature panel. Regulation 2.06A(2) says the Agreement has to be signed by at least 1 representative of the person’s covered by the Agreement, and Mr McDonald is not covered based on the coverage clause, and therefore there has never been a valid signed Agreement before the Commission.

Employees do not have Sufficient Interest in the Agreement

In its 23 April 2025 submissions, the AWU asserts that employees are paid above what is provided for under the Agreement via individual employment contracts and are therefore not sufficiently interested in the Agreement failing the Genuine Agreement Principles at s.188(2) (a). The AWU submits that this external payment arrangement is made clear through the wording of Schedule 1 of the Agreement.

Ms Muirhead said she understood the AWU objected to the approval on the basis that a number of employees who cast a vote in relation to the proposed Agreement were not sufficiently interested in the terms of the proposed Agreement for reasons that include:

(a)That some employees receive terms and conditions in excess of those in the proposed Agreement (via employment contracts); and
(b)Others are workers currently on company sponsored visas.

Ms Muirhead states that having access to the payroll systems and preparing the BOOT, she is aware of what workers are paid under the 2015 Agreement and are to be paid under the Agreement.

Ms Muirhead said she had reviewed the only employees paid under the Agreement, and that any increases are in line with the Award or changes to the Agreement.[3] Ms Muirhead states that she reviewed the payroll and where deviation from the Agreement did exist, it amounted to a minor discrepancy of $68.68 per month.[4] Ms Muirhead described that pay fluctuates due to time spent offshore and the “field bonus,” which is known under the Agreement as a “field allowance.”

Ms Muirhead said if a visa holder covered by the Agreement has not done 2-3 swings offshore in a 12-month period, the Applicant pays a minimum guaranteed field bonus to ensure minimum government salary requirements for their visas (which is $17,150) are met. If they have done more than 2-3 swings offshore, their salary is not topped up, as the minimum government requirement has been met with their salary and field allowance. Ms Muirhead agreed this information was not in the comparison document and said that is because it is not in the Agreement. Ms Muirhead agreed that this was also not included in the presentations to employees and said it was not relevant to the Agreement. Ms Muirhead said it is explained to visa holder employees when they receive their offer of employment.

Ms Muirhead said all workers under the 2015 Agreement receive a field bonus, called a ‘Job Bonus’ for days worked offshore, which under the proposed Agreement has been renamed a field allowance’. Ms Muirhead said Field Specialist 4 or above receive an additional crew bonus in accordance with the Agreement, due to use of additional technical knowledge and experience and this only currently affects one employee.

Ms Muirhead said she understood the AWU suggested, in relation to visa workers, that the Applicant told some international workers that their employment would be terminated if they did not vote yes in relation to the proposed Agreement, and Ms Muirhead said this was completely untrue. Ms Muirhead states that it is company practice to look to renew visas two to three months before they expire. The Applicant submitted an email exchange dated 15 January 2025 where an employee who is concerned his visa will expire in May 2025 is told they will begin the process of renewal in April 2025.[5]

The Applicant submits Ms Muirhead’s evidence was a visa worker had never had to be paid an additional amount, however even if it was required at some point, that would not denude the visa worker of their interest in the Agreement.

Reasonable steps to explain the Agreement

To the third ground of concern, the AWU submitted on 14 April 2025 that Weatherford failed to take all reasonable steps to explain the Agreement to its employees, in contravention of s.180(5) of the Act. On 23 January 2025, the Applicant sent a comparison table to the relevant employees which compared the Agreement to the current workplace agreements and the relevant industrial award. The email of 23 January 2025 notes that the comparison table is simplified and “may contain inadvertent errors.” The AWU submits that the table does contain errors and that several of the covered employees are from non-English-speaking backgrounds, so this document is not sufficient.

Ms Muirhead stated that a form of the proposed Agreement was voted upon in “December 2025” (which I have taken to be a reference to December 2024) and this proposed Agreement was not approved by employees. Ms Muirhead set out in her statement what she said were the steps taken from about December, in connection with the first vote and second vote, that the Applicant took to explain the terms and effects of the Agreement to employees.

Ms Muirhead said employees were invited to virtual engagement sessions regarding the proposed Agreement to explain the Agreement on 5,6 and 9 December 2024, and Agreement education sessions were held with employees on 9,10 and 12 December 2024.

Ms Muirhead said a Frequently Asked Questions (FAQ) document was prepared by Nathan Rowden, HR Director Asia Geozone, based on common questions asked by employees and to address misconceptions being put out regarding the proposed Agreement.

Ms Muirhead said she sent the FAQ document to employees with the meeting invites to the engagement sessions. Ms Muirhead said on 12 December 2024, she emailed employees the:

(a)Proposed Agreement in the form in which it existed at the time;
(b)Current Agreement;
(c)Current Award – the Hydrocarbon Industry (Upstream) Award 2020;
(d)A comparison document showing the differences between the above 3 documents;
(e)Fair Work Information Statement;
(f)GoVote – voting information letter.

Ms Muirhead said during the access period for the first vote, employees were invited to attend sessions explaining the Agreement on 16 and 17 December 2024 but this did not result in passing the proposed Agreement.

Ms Muirhead said following the first vote, the Applicant invited employees to attend virtual engagement sessions on 8 and 9 January 2025 to gain a better understanding of what employees wanted from the proposed Agreement. Ms Muirhead said there were 8 sessions, with two sessions available to attend per group, according to the Field Operator level (which included Field Specialists). Ms Muirhead agreed the meetings were to hear from employees about what they wanted, and the 8 sessions were not to explain terms of either the proposed Agreement that was voted down, or the proposed Agreement that was subsequently voted up.

Ms Muirhead said there was approximately a month between the first vote and the second vote on the Agreement, and both votes contained the same employees, except for two additional employees who were not employed at the time of the first vote.

Ms Muirhead said on 23 January 2025, she emailed the employees to be covered by the proposed Agreement an email outlining the voting process and attaching:

(a)The (revised) proposed Agreement;
(b)The current Agreement;
(c)The Hydorcarbon Industry (Upstream) Award 2020;
(d)A comparison table which Ms Muirhead prepared detailing the differences between the current agreement, the proposed Agreement as revised and the Award (which was also reviewed by Mr Nott and the Industrial Consultant). Ms Muirhead said it was decided it was not necessary to include a column relating to the proposed Agreement as it stood for the first vote;
(e)The Fair Work Information Statement;
(f)A CiVS Employee introduction letter to voting; and
(g)A CiVS How to vote document.

Ms Muirhead said in her email dated 23 January 2025 she also advised employees they could contact the Operations Manager, Mr Nott or her with any questions.

Ms Muirhead said she invited employees to attend information sessions prior to the second vote which took place on 28 and 30 January 2025. Ms Muirhead said at these sessions Mr Nott and herself provided a review of the key changes to the Agreement since the December 2024 sessions, and they went through the comparison document. Ms Muirhead said there was a poorer turnout to the information sessions compared to the December sessions and it only came to her attention after the vote that an employee bargaining representative advised employees on a group WhatsApp chat not to attend the small sessions and another representative said if it was mandatory to attend, not to engage.

Ms Muirhead agreed these were the only sessions held in a group to explain the terms of the proposed Agreement that was voted up. Ms Muirhead agreed that it was possible about 10% of the workforce attended these sessions. Ms Muirhead said she thought the sessions were for about 1 hour each.

Ms Muirhead was referred to the Form F17B which she agreed she completed and signed herself. Ms Muirhead was referred to the table completed in response to question 25 and the contents of the responses in the table. Ms Muirhead was then referred to the information provided in answer to question 24. Ms Muirhead agreed the sessions on 28 and 30 January 2025 did not appear on that table. It was put to Ms Muirhead that was because the sessions on 28 and 30 January 2025 were solely to provide information on the upcoming vote. Ms Muirhead rejected that. Ms Muirhead said she did refer to the 28 and 30 January sessions in response to question 22. Ms Muirhead said it was an error on her part not to refer to the 28 and 30 January 2025 sessions in response to question 24.

Ms Muirhead was asked about the comparison table she referred to emailing to employees on 23 January 2025, and agreed it was the same table found at page 156 of the Court Book. Ms Muirhead was referred to the following words appearing in the first paragraph above the table:

“1. The following table provides a brief explanation of the terms of the proposed single enterprise agreement called the Weatherford Australia Pty Ltd TRS 2025 Agreement (the 2025 Agreement). It does not constitute a complete explanation, and may contain minor, unintended errors.”

Ms Muirhead was also referred to paragraph three above the table which said as follows:

“3. This document must be read in conjunction with the text of the proposed 2025 Agreement and previous 2015 Agreement. The information contained in this table is a simplified version of the clauses contained in both workplace instruments and may contain inadvertent errors. We strongly recommend that you consider the text of both documents, and please raise any questions you may have.”

Ms Muirhead was asked if it was confirmed before the vote the table was error free. Ms Muirhead said it was reviewed, however this was not communicated to employees.

Ms Muirhead said due to the poor turnout and misinformation being posted by the Offshore Alliance on its Facebook page, she is aware that in addition to the more detailed comparison document already provided, Mr Nott emailed employees to highlight the changes to the Agreement between the first and second vote which comprised of changes which benefited employees.

Ms Muirhead said she is aware that Mr Nott and other TRS Project Managers called individual employees during 20 January 2025 to 31 January 2025 to ensure they understood what they were voting on and to provide them with the opportunity to ask any questions and seek clarification of any aspect of the Agreement. However, she understood from Mr Nott that not all employees answered or returned their calls. Ms Muirhead agreed she understood from Mr Nott that he and or other managers had conversations with some employees but not all. Ms Muirhead agreed that the purpose of the phone calls was to ask any questions employees had, and to confirm they had received the documentation. Ms Muirhead agreed she was not involved in those calls and cannot speak to what was said in the calls. Ms Muirhead said she was not aware of what percentage of employees answered calls.

The Applicant submits that the comparison table is not the sole source of education on the Agreement, as the Applicant held virtual engagement sessions to explain the Agreement on 5, 6 and 9 December 2024. The Applicant submits that it also held Agreement education sessions on 9, 10 and 12 December 2024. Following the failed December 2024 vote on the Agreement, the Applicant submits that they prepared an FAQ document and attached this to at least one further meeting invitation on 8 January 2025. The Applicant’s witness states that another round of virtual engagement sessions occurred on 8 and 9 January 2025, with 8 sessions held in that period. Ms Muirhead stated that these sessions had “poorer turn out” than the ones held in December 2024.[6] The AWU submits that these information sessions were “at best not attended and at worst not attended at all.”

The Applicant submits that the email sent on 23 January 2025 included more than just the comparison table but the award, the current agreement, the Fair Work Information Statement and instructions on CiVS voting. On 29 January 2025, an email was sent from the Applicant to employees with an updated comparison table. The Applicant’s witness also stated calls were made to individual employees to ask if they understood what they were voting for.

The AWU submits that these sessions were not well attended and that several employees are of non-English speaking backgrounds. According to the employer’s Form 17B declaration, 11 of its employees come from non-English speaking backgrounds. Ms Muirhead states that it is a visa requirement of those employees on visas to pass an English Language test and thus employees on a visa must have been able to read, write and speak English to a sufficient degree to be granted their visa. Further, Ms. Muirhead states that all the Applicant’s communications are in English and she has not been made aware of any difficulty in communication with any employee.

The AWU, in its 14 April 2025 submissions, states that the Applicant falls short of ‘all reasonable steps’ in numerous ways. The issues raised by the AWU, and the Applicant’s response, are outlined in the table below:

AWU Submission	Applicant reply submission
Inconsistent deﬁnition of ‘base salary’ in various documents: In the Agreement, deﬁned as – “an employee’s remuneration comprising 38 hours per week over 52 weeks a year” In cl.23.2(b) of the Agreement – the salaries and ﬁeld allowance “…account for reasonable additional hours, minimum wages for ordinary time, penalty rates and any other allowances or entitlements associated with the hours of work that would be applicable under any Award.”	There is nothing confusing about the salaries, or their descriptions, in the Agreement (cf AWU [38](a), [38](b));
In circumstances where the Applicant has informed employees that base salaries are merely a retained and they are paid no matter how many hours are worked (including zero hours), an explanation that the salary plus ﬁeld allowance is compensation for all work under an Award is confusing.
The Applicant has changed terminology from ‘oﬀ ticket’ to ‘oﬀ ticket allowance’ with no explanation of what practical eﬀect this has;	the change in terminology from “off ticket” to “off ticket allowance” was requested by employees (Muirhead [54]), and effected no change in substance such that there was no change in effect to explain (cf AWU [38](c));
The reimbursement of training costs at cl.7.2 states that the Applicant will pay course costs and time for employees required to complete ‘skills training’. There is no explanation of what ‘skills training’ is either in the Agreement or the explanation;	“skills training” is not a defined term, has its ordinary meaning, and its meaning in the context of cl.7.2 is self-evident (cf AWU [38](d));
Several deletions from the current Agreement to the proposed Agreement occur and the ‘explanation’ provided is merely “removed – refer to current agreement”. This is not an explanation as it does not explain the eﬀect of that deletion. For example, see the explanation for cll.7, 8;	The effect of a deletion is, self-evidently, to remove the relevant term from the Agreement (cf AWU [38](e));
A number of amendments are explained as being made to ‘better outline responsibilities’ without any oﬀer of what that means – see cll.10, 11;	Clause 10 of the Agreement concerns fitness for work and cl.11 concerns security and safety procedures. In context, the explanation that the changes are made to “better outline responsibilities of both parties” to the Agreement means, self-evidently, that the changes made to the Agreement have been made to better outline the parties’ responsibilities in relation to fitness for work and security and safety procedures (cf AWU [38](f));
The Applicant has compared incomparable clauses – for example cl.13 of the Agreement with cl.8 of the current Agreement;	Contrary to AWU [38](g), the comparison table does not “compare incomparable clauses” and does not, in particular, compare cl.13 of the Agreement with cl 8 of the current Agreement;
The Applicant states that cl.14 has been ‘updated as per Award’ without any explanation of what that update is or what eﬀect it has – the AWU is uncertain of what update to a dispute resolution clause is required by the Award in any event;	Clause 14 of the Agreement (as to dispute resolution) was said to have been “updated as per Award.” This means, on its face, that the Agreement was updated so as to meet the relevant requirements of the Award; the Award itself explains that cl.33 (as to dispute resolution) was affected by the Commission’s consolidation of Modern Award amendments up to and including 27 August 2024 (that is, some nine years after the date of commencement of the current agreement) (cf AWU [38](h));
The Applicant states that cl.17 has been amended to speciﬁcally note that redundancy pay will not be made for ﬁxed term or maximum term contracts, despite the Agreement not covering these types of employment;	The complaint at AWU [38](i) is not a complaint about whether all reasonable steps were taken to explain the effect of the terms of the Agreement; the impugned explanation does explain the effect of the relevant term; the complaint is, in substance, an irrelevant complaint that the explanation given is unnecessary because the carve-out in cl.17.2 will not be engaged;
The explanation of the changes to the hours of work clause at cl.18 is confusing – “12hr ﬁeld day with safety exception, ﬁeld allowance payment refers to start/ﬁnish time found in deﬁnitions clause 5” and the contrasting explanation to the clause in the current agreement merely notes the sub-clauses being deleted;	There is nothing confusing about the explanation given to cl.18 when the explanation is read in its entirety; (cf AWU [38](j));
The explanation of cl.19 is sparse – noting that it has been ‘rewritten’. Additionally, the Applicant has removed ‘rosters’ from the current agreement and replaced it with the table found at this clause, with no explanation of how that table will be applied;	Whether or not the explanation of the change to cl.19 is “sparse” (cf AWU [38](k)) is a matter of characterisation and is, in any event, irrelevant; an understandable explanation of the change is given;
The explanation for additional hours is incomplete and misleading as the current Agreement provides additional payment for additional hours and the Agreement has removed this entitlement in cl.21 with no mention of this in the comparison document;	There is nothing incomplete or misleading about the explanation given of cl.21 (cf AWU [38](l)): that certain things were removed from the current Agreement in the preparation of the Agreement is specified in the third column of the comparative table and was addressed during negotiations with bargaining representatives (Muirhead [55]);
The explanation of the payment of the meal allowance is confusing. The Agreement states that the meal allowances, which are aligned with the ATO amounts, can be claimed through expenses in cl.22.1(a), however cl.22.1(c) states that for an employee to claim ‘meal expenses’, tax invoices are required to be submitted and cl.22.1(d) references employees being ‘reimbursed’. It is unknown on the face of the Agreement and the explanation provided by the Applicant if cll.22.1(a) and (b) are referring to the same or a diﬀerent entitlement to cll.22.1(c) and (d), given the diﬀerence in terminology – an allowance is something paid, an expense or reimbursement is something claimed; and	There is nothing confusing about the explanation of cl.22, nor is the clause itself confusing as suggested by the AWU; cl.22.1(a) describes “the meal allowance able to be claimed through expenses…” (emphasis added); cl.22.1(c) picks up that language in explaining that to “claim meal expenses. Employees are required to submit tax invoice to the Employer” (emphasis added), and cl.22(d) speaks of reimbursement (of the expense which will be met by an allowance) – the meaning and effect of cl.22 is clear, there is no relevant difference in terminology (cf AWU [38](m));
The explanation of cl.38 is incomplete. Due to the extremely low base salaries, the Applicant will never be required to pay any top up payments pursuant to this clause. There is no explanation of this.	There is nothing incomplete about the explanation of cl.38, what matters is whether reasonable steps were taken to explain the effect of the term – that was done; Further, the assertion upon which the AWU’s submission is premised (that Weatherford will never have to pay top-up payments pursuant to cl.38) is a submission made without evidence (cf AWU [38](n)).

The Applicant submits that regard must be had to all the steps taken by it to explain the meaning and effect of the Agreement. The Applicant submits a range of steps were taken including the steps set out at question 22 of the Form F17B.

The Applicant submits it is not to the point that some of the sessions it arranged were poorly attended, much of that is outside the hands of the Applicant. Other steps were taken including telephone calls. The Applicant submits that in circumstances where the second proposed Agreement was a variation of the first proposed Agreement that was voted down, the steps taken in relation to the first unsuccessful proposed Agreement ballot, inevitably inform the second.

The AWU submits that the explanation provided does not represent all reasonable steps. The comparison document is the only thing that all employees received. The AWU said the Applicant relies on phone calls made, however those phone calls were not for the purpose of explaining the Agreement, but for answering any questions employees had, putting the onus on the employee. The AWU submits Ms Muirhead did not know how many people received a phone call or answered a phone call during the access period.

The AWU submits that it was the Applicant’s own evidence that the meetings on 28 and 30 January 2025 were poorly attended, the AWU submitting that the attendance was about 10% of the workforce and Ms Muirhead did not dispute that estimation.

The AWU submits the Applicant needs to rely on the comparison document to discharge its obligations under s.180(5), and that document has two disclaimers in the preamble that said it may contain errors. The AWU said it is hard to quantify what impact that would have on employees.

The Applicant submitted in reply that the disclaimers are no more than acceptance that the persons preparing the documents are human. The Applicant submitted the Commission has been invited to speculate about what was discussed in the hour long explanation sessions, however none of that was put to Ms Muirhead.

Better Off Overall Test (BOOT)

On its Form F18 filed on 21 February 2025, the AWU raised concerns that the Agreement did not appear to pass the BOOT. The AWU noted the annual salaries in the proposed Agreement were “incredibly low” and that the Applicant had stated employees may work up to 60% of the year on a compressed roster, which would attract penalty rates under the Award. In its submissions, the AWU submits that 60% of utilisation, 219 days, with 12-hour shifts would put an employee at almost 700 hours of work paid at ordinary hours listed in the Agreement, which would attract penalty rates under the terms of the Award.

The Applicant denies this in its submissions dated 23 April 2025. The Applicant submits that the AWU has not conducted a BOOT assessment, or if it has, has not adduced any evidence about that. Ms Muirhead states that she has conducted a BOOT assessment of the three most common schedules of employees covered by the Agreement and determined they are paid above the Award. Further, Ms Muirhead states that despite the utilisation of the employee, they are paid their base salary with an additional field bonus.

The Applicant submits that ultimately, the complete answer to this is the undertaking already proffered to the Commission to reconcile payment as against the Award plus an additional 5% over any shortfall.

Consideration

If, as a matter of construction it could be concluded that the four Field Specialist employees are covered by the proposed Agreement, the evidence does not establish that it was ever explained to the 49 employees who voted in the approval process, that 4 employees would be classified and remunerated differently to other employees under the Agreement they were asked to vote on, based on those 4 employees being Field Specialists and, according to the Applicant, having superior knowledge and experience above the other employees.

Ms Muirhead was precise in her evidence during the hearing about how the Applicant intended to remunerate and classify Field Specialists differently to all other employees under the Agreement. However, her evidence did nothing to establish how this was explained. Nowhere in the explanatory material does it mention the existence of Field Specialists, and nowhere in Ms Muirheads evidence does she say this was discussed during negotiations, or more importantly in meetings with employees, to explain the terms of the Agreement. The Agreement itself makes no mention of Field Specialists. The AWU, which claimed to be the bargaining representative of 40 of the 50 employees, said it did not know about the existence of a Field Specialist classification.

The Applicant has not brought any evidence to demonstrate that the different classification arrangements that Ms Muirhead clearly explained to the Commission, was explained to employees. On the available evidence, I am satisfied it was not. For that reason, if it is the case that the Applicant’s primary position is correct, and that Field Specialists are covered by the Agreement, the application must fail because the Applicant has not taken all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, are explained to employees employed at the time who will be covered by the Agreement.

Section 188(4A) provides that the Commission cannot be satisfied that the Agreement has been genuinely agreed to by employees covered by the Agreement unless the Commission is satisfied that the employer complied with s.180(5) in relation to the Agreement. As explained above, I am not satisfied the Applicant has complied with section 180(5).

In any event, in circumstances where it is not knowable how an explanation of this may have affected how employees voted; had it been properly explained, particularly in circumstances where the success or failure of the ballot turned on 1 vote; it would not be possible to accept an undertaking to cure the deficiency caused by the Applicant’s failure to explain how Field Specialists were to be classified under the Agreement.

Based on the findings above, even if I were to accept the Applicant’s primary argument, the application must fail because of the deficiency in relation to the preapproval steps. The effect of my conclusion above is that the Applicant’s first argument in the alternative, in relation to the proposed undertaking must also fail, because an undertaking cannot be accepted to cure the deficiency.

For the reasons above the application is dismissed and it is strictly unnecessary to consider the other submissions made.

However, for completeness if I were required to determine the question as to the proper construction of the Agreement in relation to whether the four Field Specialists are covered, I prefer the AWU’s submission that they are not, because they do not fall within the classifications described in the Agreement.

The Applicant has submitted that such a conclusion would be one of form over substance, however it is clear from the evidence that Field Specialists are identified as such in their contracts of employment, are identified distinctly in the Applicant’s internal systems, and are acknowledged by the Applicant as having superior knowledge and experience warranting them being remunerated and classified differently to how other Field Operators are remunerated and classified. The evidence does not support the conclusion that this is simply a matter of different nomenclature, and that the existence of a discrete group of employees who are remunerated and classified as Field Specialists, is in fact an issue of substance that needed to be described in the Agreement, in order for those employees to be properly covered by the Agreement.

I also agree with the AWU’s submission that this is not a situation where the Commission could exercise power to correct or amend an obvious error pursuant to s.218A. The evidence does not support the conclusion that the inclusion of a specific classification system for Field Specialists reflects what the parties intended. It seems more likely than not that the AWU was simply never told about the existence of this group of employees being classified as Field Specialists, and as a bargaining representative for a significant number of employees, the circumstances of the failure of the Agreement to include that classification of employees in the classification structure of the Agreement is not an obvious error.

Conclusion

For the reasons set out above the application is dismissed.

COMMISSIONER

Appearances:

C Beetham of counsel instructed by D Hartfield, for the Applicant
Z Duncalfe, for the AWU

Hearing details:

2025
Brisbane (by video)
7 May.

[1] Exhibit 1.

[2] DCB 39.

[3] Witness statement of Francesca Muirhead [20], DCB 12.

[4] Ibid [19]. DCB 12.

[5] Email 15 January 2025, DCB 19.

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