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[156]
[2022] FWC 2236
General information, not legal advice.
Fair Work Commission
2022-09-14
Original judgment source is linked above.
[2022] FWC 2236 [Note: An appeal pursuant to s.604 (C2022/6360) was lodged against this decision.]
s.236 - Application for a majority support determination
Recusal Application. Woodside Energy Ltd : Woodside employees engaged in Goodwyn Alpha, North Rankin Complex and Angel
"[1] The Australian Workers' Union (AWU) has made an application (Application) pursuant to section 236 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (FWC) to make a majority support determination which would require Woodside Energy Ltd (Woodside) to commence bargaining for a new enterprise agreement (Agreement).
[2] The AWU propose that the Agreement cover those employees of Woodside who are engaged to work on Goodwyn Alpha (GWA Platform), North Rankin Complex (NRC) and Angel (Angel Platform) (together, the Manned North West Shelf Fixed Gas Platforms) in Level 4 to Level 9 roles, up to and including supervisors. (Employees).
[4] The making of a majority support determination simply confirms that the majority of the employees to be covered by a proposed agreement want to bargain with the employer towards such an agreement. The effect of a majority support determination is to require the commencement of the agreement bargaining process, but it neither requires that an agreement be reached, nor dictates the terms of any such agreement.
[5] The AWU say that it has collected signed individual petitions from a majority of employees who will be covered by the proposed Agreement (Petitions).
[6] It is proposed that the method to be adopted by the FWC to ascertain whether the majority of Employees want to commence bargaining with AWU be as follows:
[7] The Sworn Statement must be provided in the form of a Statutory Declaration.
[8] In order to determine this matter or ascertain if there is a necessity for a hearing, the FWC DIRECTS Woodside to file with the FWC and serve on the AWU by 4pm, Thursday 21 July 2022:
[9] The FWC DIRECTS the AWU to lodge with the FWC and provide to Woodside by 4pm, Thursday 28 July 2022:
Please see attached directions for your attention and action.
In relation to the below email from the Respondent, the Deputy President notes that no production orders have been filed as yet and therefore the attached directions have been issued.
Parties will note that these directions provide the opportunity for the Respondent to make any submissions in relation to the method for determining whether a majority exists different to that proposed by the Applicant and set out in the Directions. The Applicant then has the opportunity to reply to these submissions."
"[17] First, the contents of the first sentence in paragraph [4] of the Directions are incorrect as a matter of law, in that they ignore sub-paragraphs (b), (c) and (d) of s.237(2). They are expressed in conclusory language indicative of finality, the terms of which reasonably implied that the Deputy President considered herself satisfied of the requirements in sub-paragraphs (b), (c) and (d), notwithstanding that: the proceedings are only at a preliminary stage; Woodside had contended in its Response that the requirements in sub-paragraphs (c) and (d) of s.237(2) were not satisfied, such that these matters were in dispute; and the parties had not filed any submissions or evidence on the substantive application.
[18] Second, the second sentence in paragraph [4] of the Directions is again expressed in conclusory language indicative of finality, and incorrectly excludes relevant considerations, being the broader and more significant implications of a majority support determination, such as the enlivening of good faith bargaining obligations, and the consequent recourse to protected industrial action. Each of these matters are directly relevant to the question of whether the Commission could be satisfied, in accordance with sub-paragraph (d) of s.237(2), that it is reasonable in all the circumstances to make the determination. The exclusion of these matters, and the Deputy President's use of the word 'simply', conveyed the reasonable implication of a
foregone conclusion that none of these matters were, or could not in an appropriate case be, sufficient to prevent the Deputy President from being satisfied of the matter in sub-paragraph (d) of s.237(2).
[19] Third, notwithstanding Woodside's suggestion in the 30 June Email that - consistent with the usual approach - the AWU should file its submissions on the substantive application first, the Deputy President: did not direct the AWU to file any submissions 'in chief' on the substantive application, notwithstanding that the AWU bears the onus of proof. 23 The AWU was ordered to file only 'submissions in reply' to those filed by Woodside, pursuant to paragraph [8] of the Directions.24 The Deputy President did not at any time explain the reason for this departure from the usual approach, nor how Woodside was to prepare its submissions and evidence prior to seeing any evidence which was to be relied upon by the AWU, nor any submissions from the AWU on its position on the matters which had clearly been put in issue in the Response.
[20] Fourth, although on notice that Woodside intended to file an application for the production of documents, and aware that Woodside had not provided any certain date by which it would do so, the Deputy President issued the Directions explicitly because an application had not been filed, without inquiring with Woodside whether and when an application was forthcoming. The Directions also did not schedule the filing of the foreshadowed application. This occurred despite Woodside's representatives emphasising in the 30 June Email their willingness to engage further with the Deputy President in relation to any draft directions.
[21] Fifth, paragraph [6] of the Directions purports to 'propose' a method of determining whether majority support exists, yet directs the parties forthwith to take steps in accordance with the so-called proposed method, so as to enable that method. Further, paragraph [6] asserts that the Commission will compare the petitions provided by the AWU on a confidential basis with the list of employees provided by Woodside 'in order to satisfy itself whether a majority of Employees want to initiate bargaining with Woodside in respect of the Proposed Agreement'. This statement reasonably indicated that the Deputy President had already concluded, while being on notice of Woodside's concerns about the petitions but without having dealt with these concerns, that the petitions in and of themselves would enable her to be satisfied of the requirement in sub-paragraph (a) of s.237.
[22] Sixth, although paragraph [8] of the Directions purports to give Woodside an opportunity to make written submissions by 4 pm on Thursday 21 July 2022 about the appropriateness of the so-called proposed method, paragraph [6] of the Directions directs the AWU and Woodside to take steps in accordance with the so-called proposed method by that same time and date.
[23] Seventh, although paragraph [8] of the Directions purports to give Woodside an opportunity to make written submissions by 4 pm on Thursday 21 July 2022 about the appropriateness of the so-called proposed method, the Decision, which is dated 20 July 2022, appears to include at [20]-[23] an explanation of what reasonably appears to be a concluded view as to why the so-called proposed method is appropriate, without having received or considered Woodside's written submissions on this issue.
[24] Eighth, in the Decision, the Deputy President made adverse comments about Woodside's application that are illogical, unfair and without a proper basis. For example, the Deputy President at [27] of the Decision, said that Woodside had provided no evidence to suggest that the petitions were fraudulently completed, and at [31] of the Decision, says that Woodside has not provided evidence of employees who signed petitions being actually misled. These matters were relied on by the Deputy President to explain her refusal to make the production orders sought by the application. However, in the absence of the production orders being made, Woodside would not know which employees had signed petitions, from whom it could then lead relevant evidence of the kind identified by the Deputy President.
[25] These matters would cause a fair-minded lay observer to reasonably apprehend that the Deputy President had pre-judged or predetermined any or all of the following matters adversely to Woodside, in such a way that her mind was not open to persuasion:
(a) whether the 'fairly chosen' requirement in s.237(2)(c) was satisfied;
(b) whether the reasonableness requirement in s.237(2)(d) was satisfied;
(c) Woodside's request to access unredacted copies of the petitions, as foreshadowed in both its Response and the 30 June Email;
(d) Woodside's serious and substantive concerns about the reliability of the petitions; and
(e) Woodside's opposition to the so-called proposed method in paragraph [6] of the Directions."
"... bias 'connotes the absence of impartiality' What constitutes impartiality is more than predilections. It requires the decision-maker's mind to be so made up or determined in favour of one conclusion, irrespective of the arguments put to him or her."[14]
"a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party."
"...(a) at least the following two steps are involved in a case involving an allegation of apprehended bias:
(i) There must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii) There must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits;
(b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer." [FOOTNOTES OMMITTED]
"a flexible quality, differing according to the circumstances in which a power is exercised."
"In the discharge of its functions, particularly that of the prevention of inter-State industrial disputes, the Commission is required to act promptly and effectively. In a context where its members are permanent and its resources are limited, it is desirable that the members, between them, possess a vast fund of practical background knowledge and experience extending over all facets of Australian industrial relations. Indeed, s 20 of the Industrial Relations Act 1988 (Cth) (the Act) requires each member of the Commission to "keep acquainted with industrial affairs and conditions". A potential or actual industrial dispute extending beyond the limits of any one State is liable to encompass a variety of issues or potential issues between the parties or potential parties to it. The nature of industrial relations in this country makes it inevitable that, in a particular industry, the leading employer and employee organisations, and their officers, will be frequently involved in dispute with one another. Obviously, the functioning of the Commission requires that its members participate in the determination of matters in circumstances where they have a familiarity with the industry in which the particular dispute arises, with the context of the dispute and, inevitably, with facts relevant to the dispute and with one or more of the parties to the dispute. In that regard, it has long been recognised that, in most cases, that familiarity is an advantage rather than a disqualifying factor.
In these circumstances, the need for caution which this Court has consistently identified (see, eg, Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; Re Polites (1991) 173 CLR, at 86-87; 38 IR 119-120; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 116) in relation to applications for an order preventing a member of a statutory tribunal from participating in the discharge of the functions of that tribunal by reason of apprehended bias is particularly apposite when such an application is directed against a member of the Commission. It is that care must be taken to bear in mind that the basis for disqualification by reason of apprehended bias is that there are grounds upon which a party or the public might entertain a reasonable apprehension that the particular member of the Commission will not decide the case impartially or without prejudice. The basis for disqualification is not merely that the member's past decisions, on questions of fact or law, might lead to a reasonable expectation that she or he will decide the case adversely to one of the parties. Nor is it that she or he has had previous contact or experience, as a member of the Commission, with the facts involved in the particular matter, with the context in which the particular matter."
"[4] The making of a majority support determination simply confirms that the majority of the employees to be covered by a proposed agreement want to bargain with the employer towards such an agreement. The effect of a majority support determination is to require the commencement of the agreement bargaining process, but it neither requires that an agreement be reached, nor dictates the terms of any such agreement."
"It is proposed that the method to be adopted by the FWC to ascertain whether the majority of Employees want to commence bargaining with AWU be as follows:
"(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate."
"... such as to found jurisdiction to issue an order for a ballot or adopt some other method of working out whether a majority of employees want to bargain."
"[20] In particular the AWU oppose the production of the Petitions on the grounds that the Petitions were provided on a confidential basis to the FWC so that employees could feel confident to exercise their freedom of association and their statutory right to express a preference for collective bargaining.
[21] The Petition Method, whereby employee preference is captured in petitions and is provided on a confidential basis to the presiding Member, which the Member compares with a list of current relevant employees provided by the employer is the most common mechanism used in the determination of majority support determinations.
[22] It is important to note that it is the Member, not the respondent employer who must be satisfied that a majority of employees are in favour of bargaining.
[23] Members are called upon on almost a daily basis to consider contested evidence. Members are typically appointed with significant prior forensic and industrial experience. Consequently, Members typically have the necessary expertise to accurately assess the credibility of the petition data provided on a confidential basis to the FWC. Where the Member is not satisfied that the petition or petitions clearly demonstrates a contemporaneous and clear desire on behalf of a majority of employees to bargain, the Member will not grant the relevant application."
"[20] In particular the AWU oppose the production of the Petitions on the grounds that the Petitions were provided on a confidential basis to the FWC so that employees could feel confident to exercise their freedom of association and their statutory right to express a preference for collective bargaining.
[21] The Petition Method, whereby employee preference is captured in petitions and is provided on a confidential basis to the presiding Member, which the Member compares with a list of current relevant employees provided by the employer is the most common mechanism used in the determination of majority support determinations.
[22] It is important to note that it is the Member, not the respondent employer who must be satisfied that a majority of employees are in favour of bargaining.
[23] Members are called upon on almost a daily basis to consider contested evidence. Members are typically appointed with significant prior forensic and industrial experience. Consequently, Members typically have the necessary expertise to accurately assess the credibility of the petition data provided on a confidential basis to the FWC. Where the Member is not satisfied that the petition or petitions clearly demonstrates a contemporaneous and clear desire on behalf of a majority of employees to bargain, the Member will not grant the relevant application."
"[27] Petitions are routinely accepted in applications of this nature which contain simply employee signatures. The risk of petitions being fraudulently completed is minimised with petitions which require employee identification data (rather than simply a name or signature) which can be matched against information provided by the employer. The Directions already contemplate the parties providing this information. In this particular Application the AWU has sought to enhance the level of security by asking employees to use well know credible identity verification software. Woodside have provided no evidence to suggest that Petitions were fraudulently completed. I am not satisfied that the production of the Certificates of Completion is necessary or appropriate. In fact in the absence of evidence of such a possibility such an order given the complexity of checking IP addresses is likely to be contrary to the requirement in the FW Act that FWC determine matters in a manner that is quick, informal and avoids unnecessary technicalities."
"[30] Woodside submit that this justifies an unprecedented invasion into the personal privacy of employees by seeking production of all communications over a six month period between Employees and Mr Heath or any person on behalf of the AWU, CFMMEU or the Offshore Alliance."
"[35] If Woodside believe that the Petition information was tainted by incorrect information and if properly informed Employees would not support bargaining, then this can be addressed by Woodside proposing, as they have been invited to, an alternative method of assessing whether a majority of employees wish to bargain. This assessment can be timed to occur after Woodside has provided further information to its Employees to address any incorrect information which it alleges has been provide to its Employees."
[11] Woodside Energy Limited v Australian Union of Workers [2022 FWCFB 168.
[12] Warrell v Walton [2013] FCA 291; (2013) 233 IR 335, 341 [22].
[13] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].
[14] Metro Trains Melbourne Pty Ltd v ARTBU, CEPU, APESMA [2013] FWC 4034 at [32].
[15] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; Resmed Ltd v AMWU [2015] FCAFC 106; (2015) 232 FCR 152 at [32].
[16] The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; Cabcharge Australia Ltd v ACCC [2010] FCAFC 111 at [26].
[17] [2016] FCAFC 30 at [35]- [36].
[18] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [22]- [23].
[20] Cabcharge Australia Ltd v ACCC [2010] FCAFC 111 at [25].
[21] Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [68]; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [23].
[22] Woodside Energy Ltd v The Australian Workers' Union [2022] FWCFB 168.
[23] Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd (1992) 42 IR 353.
[28] Woodside Energy Ltd v The Australian Workers' Union [2022] FWCFB 168.
Printed by authority of the Commonwealth Government Printer
Australian Workers' Union, The
Woodside Energy Ltd [2022] FWC 2236
(1986) 161 CLR 342
(1953) 88 CLR 100
(2013) 233 IR 335
(2000) 205 CLR 337
(2015) 232 FCR 152
(1969) 122 CLR 546
(2015) 255 CLR 135
(2002) 210 CLR 438
(1992) 42 IR 353