//
[599]
[2023] FWC 249
General information, not legal advice.
Fair Work Commission
2023-01-30
Original judgment source is linked above.
s.236 - Application for a majority support determination
Woodside Energy Ltd : Woodside employees engaged in Goodwyn Alpha, North Rankin Complex and Angel - majority support determination
[1] On 3 June 2022, the Australian Workers' Union (AWU) 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 (Determination). The Determination would require Woodside Australia Pty Ltd (Woodside) to commence bargaining for a new enterprise agreement (Proposed Agreement).
[2] The Proposed Agreement would cover those employees of Woodside engaged to work on the Goodwyn Alpha Platform, North Rankin Complex and Angel Platform (together the Platforms) in Level 4 to Level 9 roles, up to and including supervisors (Employee Group).
[3] The AWU asserts that it has collected signed individual petitions from a majority of the Employee Group confirming that they wish to bargain (Petitions). In addition to employee signatures the Petitions contain the following data fields:
[4] Some of the Petitions were obtained using "DocuSign", an online platform which facilitates the electronic completion and signing of documents.
[5] The Petitions were circulated and collected by email by Mr Doug Heath (Mr Heath) with the assistance of an administrative assistant. Mr Heath is an organiser employed by the AWU and the Maritime Union of Australia (MUA). He represents the industrial interests of workers within the coverage of the AWU who are engaged in the oil and gas industry. The AWU and the MUA have joined forces to form the Offshore Alliance to organise in the oil and gas industry.[1]
[6] In the Form F30 - Application for Majority Support Determination (Form F30) the AWU submitted that the appropriate way for the FWC to determine whether a majority of employees wish to bargain is for the FWC to compare the information contained in the Petitions with employee identification information provided by Woodside (Petition Method).[2]
[7] Attached to the Form F30 were four attachments consisting of correspondence between the AWU and Woodside in which the AWU sought that Woodside commence bargaining and Woodside indicating that it did not wish to commence bargaining (Bargaining Request).[3]
[8] On 6 June 2022, Woodside filed a response to the Application opposing the Application.[4]
[9] An email was sent to the parties on 17 June 2022 notifying them that the Application had been allocated to my Chambers and that I proposed to issue directions for the determination of the Application. The parties were invited to inform Chambers if they believed there was utility in first listing the matter for conciliation. Both parties agreed to engage in conciliation.
[10] The parties participated in a conciliation conference on 29 June 2022. At that conference and in subsequent correspondence with Chambers, Woodside expressed concern that the Petition Method of determining whether a majority of the Employee Group wish to bargain was not a reliable method to work out whether a majority of employees want to bargain in the circumstances of this Application. At the same conference the AWU indicated a willingness to consider alternative methods of demonstrating that a majority of relevant employees wished to bargain. I suggested that the parties consider the use of an electronic ballot of the form frequently used for agreement ballots.
[11] On 30 June 2022, Mr Anthony Longland (Mr Longland), Partner of Corrs Chambers Westgarth who represented Woodside in these proceedings, wrote to Chambers setting out inter alia Woodside's views with respect to the programming of the Application and foreshadowing the making of an application for an order for production prior to 8 July 2022.[5]
[12] In the absence of any such application being filed and having considered the parties' submissions with respect to appropriate programming orders, directions were issued to the parties on 12 July 2022 (Directions).[6]
[13] In light of Woodside's concerns, and the AWU's willingness to explore alternative methods to determine whether a majority of the Employee Group wish to bargain, Woodside were invited in the Directions to propose an alternative method to the Petition Method to determine whether a majority of the Employee Group wish to bargain. The Directions provided that the AWU would then file its submissions in response.
[14] The Directions required Woodside to inter alia:[7]
a. file with the FWC on a confidential basis a list of employees in the Employee Group employed in the period 22 April 2022 to 2 June 2022 and the start and end date of each of the relevant employee's employment by 4pm, Thursday 21 July 2022 (List of Employees);
b. file with the FWC and serve on the AWU by 4pm, Thursday 21 July 2022 its evidence and submissions in response to the Application including but not limited to whether Woodside opposes the process for determining employee support for the Application proposed by the AWU and, if so, what alternative method Woodside proposes.
[15] The Directions required the AWU inter alia: [8]
a. file with the FWC and serve on Woodside a sworn statement regarding the date and circumstances in which each of the Petitions were obtained (Sworn Statement) by 4pm, Thursday 21 July 2022;
b. file the Petitions with the FWC on a confidential basis and serve a redacted version on Woodside by 4pm, Thursday 21 July 2022;
c. file with the FWC and serve on Woodside its evidence and submissions with respect to the merit of the Application by 4pm, Thursday 21 July 2022:
[16] The Directions also required Woodside to provide a copy of the Application, the Directions and all materials filed by both parties in relation to the Application to the Employee Group. The Directions invited members of the Employee Group to contact Chambers if they wished to be heard in relation to the Application.[9]
[17] The email to which the Directions were attached stated as follows:
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."
[18] On 15 July 2022, Woodside made an application for an order for production of documents to the Commission (Application to Produce). The Application to Produce sought orders that the AWU produce to Woodside:[10]
b. Each Certificate of Completion issued by DocuSign in respect of the Petitions.
c. Every communication sent to each member of the Employee Group between 1 February 2022 and 1 July 2022, including to their private email addresses, from:
[19] The Application to Produce was supported by a witness statement by Ms Georgia Manuel (Ms Manuel). Ms Manuel is Woodside's Human Resource Manager - Australian Operations.
[20] On 19 July 2022, the AWU filed submissions opposing the Application to Produce.[11]
[21] On 20 July 2022, I issued a Decision[12] declining Woodside's Application to Produce (Production Decision).
[22] On 21 July 2022, the AWU filed the Sworn Statement and copies of the Petitions in accordance with the Directions.[13]
[23] On 21 July 2021, Mr Longland wrote to Chambers indicating that Woodside objected to me arbitrating the Application and requested that I recuse myself. Mr Longland also indicated that Woodside had the same day filed an appeal of the Production Decision (Production Appeal).[14]
[24] The notice of appeal of the Production Decision sought a stay of the proceedings. The stay was declined by the presiding member of the Full Bench constituted to hear the Production Appeal.
[25] On 25 July 2022, Woodside made a formal application for recusal (Recusal Application).[15]
[26] On 27 July 2022, directions were issued to the parties for the filing of submissions and evidence in relation to the Recusal Application (Recusal Directions).
[27] The Recusal Application was listed for a hearing in Perth on 30 August 2022.
[28] On 26 August 2022, a Full Bench of the FWC refused permission for the Production Appeal and issued its reasons for this decision on 2 September 2022.[16]
[29] On 14 September 2022, I issued a Decision[17] declining Woodside's Recusal Application (Recusal Decision).
[30] On 16 September 2022, Woodside filed a notice of appeal in relation to the Recusal Decision (Recusal Appeal).
[31] On 20 September 2022, I extended the timeframes in the Directions (Extended Directions) so that, relevantly, Woodside was required to file the List of Employees and its submissions and evidence in response to the Application, including its view as to the approach by which the FWC should determine employee support, by 29 September 2022.
[32] On 20 September 2022, Woodside applied for the vacation of the Extended Directions until the appeal of the Recusal Decision could be determined.[18] The AWU opposed this application.[19] On 21 September 2022 the parties were informed by email that I had refused Woodside's application to vacate the Extended Directions but granted Woodside an extension of time to 23 September 2022 to comply with the Extended Directions (Vacation Decision).[20]
[33] The email relevantly stated: [21]
"The FWC must perform its functions and exercise its powers in a manner that:
(b) is quick, informal and avoids unnecessary technicalities; and
(d) promotes harmonious and cooperative workplace relations.
The Application was first filed on 3 June 2022. The determination of the Application has been delayed by various interlocutory proceedings - an unsuccessful application for production, an unsuccessful appeal in relation to the application for production and an unsuccessful application for recusal. The only decision issued by the Deputy President to date has been upheld on appeal.
The appeal decision dismissed ... many of the contentions made in the recusal application. The materials which Woodside have been directed to file are the materials which will be required to be filed regardless of which Member ultimately determines the Application. In these circumstances the Deputy President does not propose to vacate the Directions and stand the matter over."
[34] On 21 September 2022, Woodside filed an application to amend the Recusal Appeal to add an appeal against the Vacation Decision. Woodside also sought a stay of the Vacation Decision and the Extended Directions. In light of this, on 23 September 2022 I extended time for Woodside to file its materials until 27 September 2022.
[35] On 26 September 2022, the presiding member of the Full Bench constituted to hear the Recusal Appeal conducted a hearing in relation to the stay application made in connection with Woodside's Recusal Appeal. The presiding member issued his decision with respect to the stay application on the same day. He allowed Woodside's amendment to its notice of appeal, refused Woodside's stay application, and ordered that the Recusal Appeal be expedited so that it would be heard on 21 October 2022.
[36] On 29 September 2022, Woodside filed its submissions in response to the Application as directed by the Amended Directions. These materials included a witness statement of Mr Gavin Ramsden (Mr Ramsden). On the same day Woodside sought to reagitate its application for production of unredacted copies of the Petitions. In the same correspondence Woodside sought a variation to the Extended Directions to permit it to file further materials after the AWU filed its submissions and evidence in support of the Application.[22]
[37] On 5 October 2022, the parties were informed that I proposed to direct the AWU to provide copies of the Petitions unredacted other than for employee name. Where information was handwritten and might therefore disclose employee identity the Petition was to be provided with the handwritten information redacted and the information transcribed into a typewritten text and highlighted to identify that it is a modification to the original document.
[38] Later the same day directions were issued to the parties to provide Woodside with an opportunity to file further materials in reply and for the provision of all materials filed by both parties to the Employee Group after that date (Amended Extended Directions). The date for members of the Employee Group who wished to be heard was extended until 4pm (AWST) Friday 4 November 2022.[23]
[39] On 10 October 2022, I listed the Application for the hearing of the merits of the Application on 8 November 2022. This hearing date was subsequently changed to 28 November 2022 to accommodate the convenience of Woodside's counsel. In consultation with the parties additional hearing dates of 29 November 2022 and 1 December 2022 were also listed and the hearing times on those dates extended.
[40] On 13 October 2022, the AWU filed its submissions and evidence in support of the Application. The materials filed included a witness statement of Mr Heath and a witness statement of Mr Bruce Cooper (Mr Cooper).
[41] Woodside sought and were granted an extension of one week until 27 October 2022 to file its materials in reply. The period in which members of the Employee Group could contact Chambers requesting to be heard was extended until 4pm Friday 11 November 2022.
[42] On 25 October 2022, a Full Bench of the FWC dismissed the Recusal Appeal (Recusal Appeal Decision).[24]
[43] On 27 October 2022, Woodside filed Submissions in Reply and supplementary witness statements by Ms Manuel and Mr Ramsden.[25]
[44] On 31 October 2022, the AWU provided copies of the Petitions to Woodside redacted as directed.[26]
[45] On Wednesday 2 November 2022, Woodside filed an originating application with the Federal Court, seeking relief under section 39B of the Judiciary Act 1903, and sections 21 and 23 of the Federal Court of Australia Act 1976. The application sought judicial review of the Production Decision, the Recusal Decision and the Recusal Appeal Decision. Woodside also sought an interlocutory injunction restraining me from further dealing with the Application other than by referring it to the President for allocation to another Member.
[46] On 9 November 2022, Woodside requested that I vacate the directions currently in force and refrain from further dealing with the Application (other than by referring it to the President for allocation to another member), pending the hearing and determination of the Federal Court proceedings.
[47] On the same day the parties were informed that I planned to proceed to determine the Application unless otherwise ordered by the Federal Court.
[48] On 23 November 2022, the Federal Court handed down its decision dismissing the stay application.[27]
[49] At [54] Justice Katzmann noted she was far from satisfied that Woodside had a strong case for final relief, noting at [57] that she had:
"...considerable difficulty understanding how anything said by the Deputy President in her Directions might conceivably cause the hypothetical lay observer to think that she might not decide any of these questions impartially."[28]
[50] In relation to the Production Decision Justice Katzmann said at [63] that:
"... it seems to me that any case Woodside may have that the Decision is affected by apprehended bias is, at best, a weak one."[29]
[51] On the eve of the first day of Hearing, Woodside filed additional documentation and a supplementary witness statement by Mr Ramsden.[30]
[52] The Hearing proceeded on 28 November 2022, 29 November 2022 and 1 December 2022.
[53] Notwithstanding that the Directions including subsequently amended Direction required Woodside to make submissions as to the appropriate method for determining employee support for bargaining if they opposed the use of the Ballot Method, Woodside declined to file any submissions identifying an alternative method. During proceedings on 29 November 2022 it became apparent that Woodside did not intend to file any such submissions but pressed that the Petition evidence was now stale and therefore the Petition Method was not an appropriate method notwithstanding that the delay in determining the Application occurred as a result of multiple unsuccessful interlocutory applications by Woodside.
[54] For completeness at the outset of proceedings on 29 November 2022 before either party closed its case and before Woodside opened its case, I invited the parties to address the question of the appropriateness of a ballot as a method for determining employee support. Mr Ian Neil SC (Mr Neil) representing Woodside requested additional time to respond and I informed the parties that I would hear from them on Thursday 1 December 2022. He did not oppose that deadline or indicate that he required further time to collate witness evidence.
[55] On 1 December 2022, Woodside filed written submissions in relation to the question of the appropriateness of a ballot as a method of determining employee support. At the Hearing on 1 December 2022 Mr Neil indicated that he wished to tender evidence in relation to the issue of the appropriateness of the ballot method of determining employee support and required a further adjournment in order to do so. I therefore granted the parties until 4pm on 7 December 2022 to file any evidence in relation to the question of the appropriateness of a ballot as a method for determining employee support for bargaining. The parties were told that if the witnesses were required for cross examination then a further day of hearing would be listed on 12 December 2022.
[56] On 7 December 2022, Woodside filed a fourth witness statement by Mr Ramsden and the AWU filed statements on behalf of:
[57] On 8 December 2022, the parties advised that neither Mr Ramsden, Mr Michael nor Mr Duncalfe were required for cross examination.
[58] Written closing submissions were filed by the AWU on 12 December 2022. Written closing submissions were filed by Woodside on 19 December 2022. Closing submissions in reply were filed by the AWU on 22 December 2022.
[59] Having reviewed all the materials filed by the parties, the transcript of the Hearing and after considering the submissions made in Woodside's closing submissions filed on 19 December 2022 I directed Woodside to file the following materials on a confidential basis by 4pm Thursday 19 January 2023:
a. A List of Employees in Excel not PDF format containing the following data fields for each person employed in the Employee Group:
b. To the extent Woodside possesses such information, a copy of the signature of each person listed in the List of Employees above.
c. Unredacted copies of emails received by Woodside in response to various requests it made that employees within the Employee Group inform Woodside if they do not wish to bargain for the Proposed Agreement.
[60] An excel document, copies of the relevant emails and a witness statement as to why Woodside was unable to provide the signatures sought were filed on 19 January 2022.
[61] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[31]
[62] Both parties sought permission to be represented at the Hearing.
[63] Having considered the submissions of the parties, leave was granted to both parties to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
[64] At the Hearing, the AWU was represented by Mr Mark Gibian SC (Mr Gibian) and Woodside was represented by Mr Neil.
[65] The Directions required the parties to file their witness evidence in chief in advance of the Hearing.
[66] In accordance with the Directions, the AWU filed witness statements setting out the evidence in chief of the following witnesses:
[67] Mr Cooper was employed by Woodside on the Goodwyn Platform for 15 years from July 2007 until November 2021 as a Maintenance Technician and in various Supervisor roles. Mr Cooper was not available for cross examination and the AWU subsequently withdrew his witness statement.
[68] The AWU also relied on the Sworn Statement including its two attachments consisting of a blank bargaining petition and an email from Mr Heath to the Employee Group dated 22 April 2022.
[69] At the Hearing Mr Heath gave further oral evidence and was cross examined by Mr Neil.
[70] After the Hearing commenced, the additional witness statements were filed by the AWU on behalf of Mr Duncalfe and Mr Michael in relation to potential arrangements for a ballot.
[71] Mr Duncalfe and Mr Michael were not required for cross examination.
[72] In accordance with the Directions, Woodside filed two witness statements setting out the evidence in chief of Mr Ramsden and a witness statement by Ms Manuel. A third witness statement on behalf of Mr Ramsden was filed on the eve of the Hearing.
[73] Mr Ramsden is Asset Superintendent for the North West Shelf Offshore.
[74] Woodside also relied on the witness statement of Ms Manuel dated 15 July 2022 filed in support of its Application to Produce.
[75] Both of the Woodside witnesses gave further oral evidence at the Hearing and were cross examined by Mr Gibian.
[76] After the Hearing commenced a fourth witness statement by Mr Ramsden was filed by Woodside.
[77] The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties prior to the Hearing date (DCB). The DCB was admitted at the Hearing as an exhibit and marked Exhibit DCB1.
[78] The following exhibits were also admitted at the Hearing:
b. Briefing to Employees regarding Deed Poll (Exhibit A2).
d. Witness Statement of Mr Luke Edmonds confirming the dates upon which undated Petitions were received by email by Mr Heath. (Exhibit A4).
h. INPEX - Ichthys Operations Enterprise Agreement 2022-2026 (Exhibit R4).
i. Third Witness Statement of Mr Ramsden (Exhibit R5).
j. Changes to composition of the cohort (Exhibit R6).
[79] At the direction of the FWC the following documents were also filed by the parties:
a. On 30 November 2023 a List of Employees including the additional data fields contained in Petitions (Amended List of Employees).
b. On 19 January 2023 an updated version of the Amended List of Employees (Final List of Employees).
c. On 19 January 2023 a Witness Statement of Ms Elizabeth Anne Mussared (Ms Mussared) explaining why Woodside was unable to comply with the direction to provide copies of the signatures of employees within the Employee Group.
d. On 19 January 2023 unredacted copies of emails relied upon by Woodside as evidence that employees do not wish to bargain.
[80] In reaching my decision I have also relied on the unredacted copies of the Petitions filed by the AWU with the FWC on a confidential basis on 21 July 2022.
[81] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
[82] Woodside is an oil and gas producer.[32]
[84] Through various expansions, the Project now comprises the three offshore platforms namely the North Rankin Complex, the Goodwyn Alpha Platform and the Angel Platform (Platforms) and five onshore liquefied natural gas (LNG) production trains at the Karratha Gas Plant (KGP).[35]
[85] The Platforms are connected by subsea pipelines and tie into a trunkline system that transports gas and condensate to the KGP.[36]
[86] KGP is an integrated gas production system that produces LNG, domestic gas, condensate and liquefied petroleum gas (LPG). KGP is located 1,260 kilometres north of Perth. KGP has an export capacity of 16.9 million tonnes per annum, with five LNG processing trains; two domestic gas trains; six condensate stabilisation units and three LPG fractionation units. The KGP is capable of independently processing gas and condensate and typically operates 24 hours per day 365 days per year.[37]
[87] The Platforms are managed and operated by Woodside through a single organisational structure and managed by one Asset Manager.[38]
[88] The North Rankin Complex is comprised of the North Rankin A and North Rankin B platforms, which are connected by two 100 metre bridges and operate as a single integrated facility. The North Rankin Complex is a manned platform located 135 kilometres north-west of Karratha.[39]
[89] The Goodwyn Alpha Platform is a manned platform, connected to the condensate-rich Goodwyn gas field, located 23 kilometres south-west of the North Rankin A platform and about 135 kilometres north-west of Karratha.[40]
[90] The Angel Platform is located about 120 kilometres north-west of Karratha and is connected to the North Rankin Complex via a 50 kilometre subsea pipeline. The Angel Platform is designed to be Not Normally Manned (NNM) and as such without on-facility operator intervention on a day-to-day basis. It can be, and usually is, operated, monitored, controlled, restarted and diagnosed remotely from the North Rankin Complex.[41]
[91] North Rankin B and the Goodwyn Alpha Platform have a self-contained module which includes living quarters, a mess area, a gallery, offices and change rooms.[42]
[92] During normal operations, Woodside employs approximately 200 people on the Platforms of which around half are typically allocated to the North Rankin Complex and half are typically allocated to the Goodwyn Alpha Platform. These employees are employed in the roles of:
d. Supervisor - Operations or Maintenance or Project Coordinator Resource Estimator (PCR);
f. Health, Safety and Environmental Coordinator (HSEC);
[93] All jobs on the Platforms are assigned a job level from 4 to 12. Supervisor roles are typically assigned at job level of 8 or 9.
[94] The Platforms are managed on a day-to-day basis by the OIMs. OIMs are the custodians of both the asset safety cases and the environmental plans. The OIMs are not within the proposed Employee Group. There are five OIMs assigned to work across the three offshore assets, all of whom report to the Asset Manager.[43]
[95] Reporting to the OIMs are the Superintendents. Woodside employs ten Frontline Superintendents and five Execution Superintendents. The Frontline Superintendent is responsible for running and optimising the plant, recovering from trips and emergencies, and the performance of frontline maintenance. The Execution Superintendent is responsible for ensuring all site works are executed to plan both safely and efficiently. Both Frontline and Execution Superintendents are 'on-site' roles. That is, they are physically located, and perform their work, on the offshore assets. The Superintendents are not within the proposed Employee Group.[44]
[96] Reporting to the Superintendents are the Supervisors. Woodside employs ten Maintenance Supervisors, five PCRs and five Operations Supervisors across the two manned assets. Each report to the Execution Superintendent and are responsible for leadership and supervision of the implementation workforce. The respective Supervisors manage different teams with differing implementation focus. Supervisors are typically capable of undertaking Technician duties if necessary. The Supervisors fall within the Employee Group.[45]
[97] Production Technicians report to the Frontline Superintendent or Operations Supervisor. Maintenance Technicians report to the Maintenance Supervisor or Frontline Superintendent. Production and Maintenance Technicians are engaged in maintenance duties and fall within the Employee Group.[46]
[98] The Services Technicians look after all the lifting and shifting on the offshore facilities. The Services Technicians report to an Operations Supervisor. Service Technicians fall within the proposed Employee Group.[47]
[99] The AWU has members currently employed by Woodside performing work on the Platforms.[48] The AWU and the MUA have combined resources to form the Offshore Alliance to further their efforts to organise in offshore industries particularly in the oil and gas sector.
[100] On 19 March 2022, Mr Heath sent an email to members of the Employee Group (19 March Email). Mr Heath says that he obtained the email addresses (a mixture of work and personal email addresses) from a list which was anonymously left at the front counter of the MUA offices.[49]
[101] The 19 March 2022 email extolled the virtues of collective bargaining and informed recipients that the Offshore Alliance had recently secured an in-principle agreement with INPEX for an enterprise agreement which provided for: "...industry benchmark rates of pay and locks in key employment terms."[50]
[102] In the same email Mr Heath stated:[51]
"This email which you have received has been sent out to a combination of both work and private email addresses. If you would prefer future emails, [sic] be sent to your private email address, it would be appreciated if you can let me know and we will replace your work email address with your private email address (all bcc'd into future correspondence)."
[103] On 23 March 2022, Mr Heath sent another email to members of the Employee Group asserting that his correspondence of 19 March 2022 had prompted Woodside to commit to a review of salaries in April 2022 (23 March Email). In the same correspondence he noted that a number of employees had requested that future correspondence be sent to their personal rather than work email addresses.[52]
[104] On 4 April 2022, Mr Heath sent another email to members of the Employee Group indicating that the Offshore Alliance intended to seek to have the terms agreed with INPEX agreed with all other top tier oil and gas companies (4 April Email). Attached to the email was a summary of the key terms and conditions of the agreement reached with INPEX.[53]
[105] On 22 April 2022, Mr Heath sent another email to members of the Employee Group attaching a blank petition (22 April Email). In the email Mr Heath explained the process the AWU usually undertakes to purse bargaining with a company that does not wish to bargain. He invited employees who wished to express their interest in entering into bargaining with Woodside for an enterprise agreement to apply to their employment to complete the petition and return it to the AWU.[54]
[106] In his email Mr Heath assured members of the Employee Group that: [55]
"The Offshore Alliance will not provide Woodside with a copy of the Bargaining Petitions... The Bargaining Petitions will be provided to the FWC (and not Woodside) to demonstrate that a majority of Woodside employees on the Offshore Platforms want Woodside to engage in bargaining."
[107] He also noted that his email distribution list was now overwhelmingly made up of personal rather than work email addresses.[56]
[108] The template petition attached to the 22 April 2022 email had the logos of the AWU, MUA and the Offshore Alliance in the header of the document. Below the petition stated as follows:[57]
"I am an employee of Woodside Energy Ltd {ABN: 63 005 482 986} ("Company").
I understand the purpose of this document is to confirm whether I support bargaining for an enterprise agreement with the Company to apply to my employment.
By signing below, I confirm my support for bargaining with the Company for an enterprise agreement to apply to my employment. I have done so freely and without pressure.
I am aware this document will be provided to the Fair Work Commission."
[109] The template petition then set out the following data fields:[58]
[110] Below the data fields was a space to insert the date the Petition was signed and the petitioner's signature. A note in the footer of the document indicated that the form should be returned to the Offshore Alliance via email to doug.heath@mua.org.au.[59]
[111] Mr Heath received the first signed Petition the same day.[60]
[112] On 28 April 2022, Mr Heath sent another email to members of the Employee Group. This email invited members of the Employee Group who had not yet submitted a Petition to complete their petition using DocuSign (28 April Email).[61]
[113] On 3 May 2022 Mr Heath sent another email to members of the Employee Group (3 May Email) in which he commended them for:
"... for supporting a bargaining campaign which will ultimately deliver Woodside employees industry standard rates and conditions, greater job security and importantly, mechanisms to ensure that the Company cannot unilaterally change 'agreed' terms and conditions."[62]
[114] On 12 May 2022, Mr Heath sent another email to members of the Employee Group stating that 75% of the Employee Group had completed a Petition (12 May Email). [63]
[115] In the same correspondence he stated: [64]
"Thanks to all employees who have joined the Offshore Alliance. The Offshore Alliance strongly believes in Freedom of Association, and it is up to every individual whether they join or don't join a union. Our bargaining strength, however, is directly proportionate to our union density at any respective workplace."
[116] He also asked that anyone who did not wish to receive further communication from him to advise him so he could remove their name from his distribution list.[65]
[117] The Offshore Alliance host a public Facebook Page. On 22 February 2022, 2 March 2022, 8 March 2022, 16 March 2022, 9 February 2022, 12 February 2022, 20 February 2022, 4 March 2022, 21 March 2022, and 25 April 2022, posts were made on the Facebook Page which Woodside rely on as evidence that the Petitions were falsely obtained via misrepresentations made by the Offshore Alliance.
[118] None of the posts made prior to 21 March 2022 make any reference to enterprise bargaining. Rather the relevant posts are critical of the conduct of Woodside management and the business more generally.
[119] The post on 22 February 2022 referenced Woodside's corporate values and included a photo of a senior Woodside manager from the manager's Facebook page holding an inflated 'doll' in a sexually suggestive position and queried how the two aligned (22 February Post).[66] Woodside concede the photo was posted by a Woodside manager but say that the manager in question was not at work at the time.
[120] The post on 2 March 2022 referenced Woodside's diversity Policies and a meme purported to have be posted on Facebook by Woodside manager with a woman removing her underwear with the statement 'oh ... its fly in day wont be needing these..." and queried how the two aligned (2 March Post).[67]
[121] The post on 8 March 2022 referenced the Myanmar Military Junta and asserted that then Woodside CEO Mr Peter Coleman had publicly stated that "its not up to us to judge the veracity of grievances [the military] have..." (8 March Post).[68]
[122] The post on 16 March 2022 referenced Woodside's celebration of International Women's Day and contained a photo alleged to have been posted on Facebook by a Woodside manager of a sexually explicit pose (16 March Post). The post states:[69]
"THIS IS THE CRAP WHICH WOODSIDE BOSSES ARE PUBLICLY POSTING. CLEAN UP YOUR ACT WOODSIDE WOODSIDE'S COMPASS VALUES ARE A SHAM'."
[123] The posts on 9, 12 and 20 February 2022 and 4 March 2022 were critical of Woodside's approach to the management of COVID-19, in particular in relation to the rates of pay it proposed to pay for periods of quarantine, proposed roster changes and the adequacy of consultation with respect to changes.[70]
[124] The post on 21 March 2022 was the first to make any reference to enterprise bargaining. The post alleged that the announcement that day by Woodside of a salary review had been triggered by the request by the AWU two days earlier to commence bargaining (21 March Post). The 21 March Post also includes the words: [71]
"Regardless of whatever increase Woodside decide to stump up, it won't detract from the Offshore Alliance seeking an EBA which locks in remuneration and employment standards. Over the past few years, Woodside have shown that employment contracts offer employees zero job security and no security of rosters and other entitlements."
[125] The post on 28 March 2022 displayed a post that referenced the way Woodside remunerated its employees (28 March Post). The post includes the words:[72]
"The time is right for Woodside's offshore workforce to be paid industry benchmark rates of pay. This should be done via 'negotiation' and not by the unilateral determination of the HR bosses and bean counters sitting in Woodsides ivory tower in Mount Street. The Offshore Alliance is stepping up our campaign for an Enterprise Agreement to cover Woodsides GWA, NCR and Angel Platform workforce. Only an EBA can prevent unilateral changes to key employment conditions. Employment contracts are a sham and a scam."
[126] The post on 25 April 2022 was critical of Woodside's handling of a COVID outbreak on the North Rankin Platform.[73]
[127] The post on 13 May 2022 reported that (13 May Post):[74]
"With 75% support for bargaining for an Enterprise Agreement by the Woodside workforce on the GWA, NRC and Angel Deep Platforms, the Offshore Alliance has given Woodside formal notification of the need to commence bargaining for an Enterprise Agreement. The Woodside Platform crew are to be commended for taking a unified and principled course of action of ensuring that their employment conditions and employment security are properly locked in through a union-negotiated Enterprise Bargaining Agreement."
[128] On 12 May 2022, the AWU wrote to Woodside formally requesting that Woodside commence bargaining with the Employee Group.[75] On 19 May 2022, Woodside responded stating that collective bargaining would constitute a 'significant departure' from their 'long standing processes' and requesting further information and time to consider the request.[76] The AWU followed up on its request on 24 May 2022 asking that Woodside confirm its position no later than 31 May 2022. On 30 May 2022, Woodside sent a letter stating that: '... we are not in a position to commit to enterprise bargaining under the Fair Work Act at present.'[77]
[129] On 1 June 2022, Mr Heath forwarded to the Employee Group a copy of agreement reached with INPEX.[78]
[130] On 3 June 2022, the AWU filed the Application.
[131] In July 2022 Woodside issued a notice to the Employee Group setting out the reasons why Woodside did not wish to commence bargaining for a collective agreement and asserting that the Offshore Alliance had falsely asserted that the INPEX EBA provided superior conditions.[79]
"This update provides you with the facts about enterprise bargaining and explains how it can change things and why we as a team do not need to go down that path.
Offshore Alliance will make big claims but the fact is our package already positions you overall better than the INPEX Enterprise Bargaining Agreement (EBA) which has been described by the union as 'Tier 1".
We are concerned that you have been told information that is not accurate. We want you to have the facts so you can compare your current conditions with the INPEX EBA conditions.
No other operator has our rich NWS history. Our best results come from working together. Working as a team to resolve issues delivers real outcomes quicker than bargaining with a third party and avoids the disruption and uncertainty of unpaid Industrial action.
Enterprise bargaining does not guarantee that your conditions will Improve - In fact, as you can see from the comparison with the 'Tier l' INPEX EBA, it could lock in conditions that leave you worse off.
An EBA process can be drawn -out and confrontational, dividing the workforce and disrupting operations. It's an uncertain path that is very different to what has worked for our people and business for most of the past four decades.
[132] Attached was a document comparing key terms between Woodside's current arrangements and those contained in the INPEX Agreement.[80]
[133] At the same time Woodside invited members of the Employee Group who did not support collective bargaining to send an email to the specified address:[81]
"If you do not want to get into enterprise bargaining the best thing to do is to send an email to abcduediligence@woodside.com.au. Any information received in this way will be handled sensitively - it can only be viewed by two people in the organisation and we fully intend to keep the information confidential unless you agree otherwise."
[134] In the same communication Woodside told employees that:[82]
"We have been provided with very limited information by the union to support its position in the process and there is complexity in the legal process that needs to be worked through."
[135] Woodside does not wish to engage in enterprise bargaining and opposes the Application.
[136] Section 236 of the FW Act provides that:
(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement."
[137] Section 237 of the FW Act provides that:
"237 When the FWC must make a majority support determination
(1) The FWC must make a majority support determination in relation to a proposed single enterprise agreement if:
(a) an application for the determination has been made; and
(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which the FWC must be satisfied before making a majority support determination
(i) who are employed by the employer or employers at a time determined by the FWC; and
(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(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.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
(4) The determination comes into operation on the day on which it is made."
[138] The making of a majority support determination 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.[83]
[139] The AWU have applied for the Determination. An organisation of employees can apply for a majority support determination provided it is a bargaining representative for at least one employee who would be covered by the proposed agreement.[84]
[140] It is not contested, and I am satisfied, that the AWU have standing to make the Application.
[141] In accordance with subsection 236(2)(a) of the FW Act, the Form F30 identifies the employer to be covered by the Proposed Agreement as Woodside and the employees to be covered by the Proposed Agreement as those employees of Woodside who are engaged to work on the Platforms in Level 4 to Level 9 roles, up to and including Supervisors.[85]
[142] The Proposed Agreement is a single-enterprise agreement.[86]
[143] Woodside inexplicably suggest that it has "no real knowledge"[87] of the basis upon which the AWU contends that majority support exists for the bargaining. It is clear from all materials filed by the AWU, commencing with the Application, that the AWU contends that the basis on which the FWC can be satisfied that a majority of the Employee Group wish to bargain is because 127 of the Employee Group have signed petitions stating that they support bargaining.
[144] Woodside submitted that section 237 of the FW Act requires me to determine, as a threshold matter of jurisdiction, whether the AWU had advanced in the Form F30 a "reasonable hypothesis" of majority support before taking any other action with respect to the Application such as issuing directions to file materials in relation to the merits of the Application.
[145] The Full Bench considered this submission in the course of determining the appeal of the Recusal Decision and stated that:[88]
"[42] We reject the premise of Woodside's submission. Section 237 does not establish any threshold requirement that a "reasonable hypothesis" of majority support must be found to exist prior to the Commission proceeding to determine the question arising under s237(2)(a) (including the determination of a method of assessing majority support under s 237(3)). The expression "reasonable hypothesis" is not used in s237 or in any provision of the FW Act relevant to majority support determinations or the whole subject of bargaining. Woodside submitted that the requirement arose as a matter of implication from the whole of ss 236 and 237, but advanced no submission, even when pressed on the matter, as to how the text of those sections gave rise to such an implication."
[146] In its Closing Submissions Woodside submitted that a jurisdictional basis for proceeding to determine the Application did not exist because of a lack of evidence: "... that the petitions were at all times under the custody and control of responsible persons." Woodside cite as authority for this principle the decision of Commissioner McKenna in AMWU v Veolia Water Operations Pty Ltd[89].
[147] In that case Commissioner McKenna found that she could not rely on the petition signatures contained in a single hard copy document because the custody of the document during the period of signing was unknown. She did not find this to be a jurisdictional barrier to her determining the relevant application. In fact, she exercised her power under s.237(3) of the FW Act to order that a ballot be conducted.
[148] The AWU have filed with the FWC unredacted Petitions upon which it relies and a statutory declaration addressing how the Petitions were collected. Woodside have filed the Final List of Employees. When this information is compared it reveals that Petitions indicating support for bargaining were obtained from a majority of the Employee Group. Having been satisfied that the Application is properly before me I turn below to consideration of whether I am satisfied of the matters set out in subsection 237(2) of the FW Act in relation to the Proposed Agreement.
[149] The Form F30 identifies the employer to be covered by the Proposed Agreement as Woodside. The FWC must be satisfied that the employer has not yet agreed to bargain or initiated bargaining for the proposed agreement.[90]
[150] The Bargaining Request correspondence evidences that Woodside has not agreed to bargain.[91]
[151] I am therefore satisfied that Woodside have not yet agreed to bargain or initiated bargaining for the Proposed Agreement.
Are the employees to be covered by the Proposed Agreement fairly chosen?
[152] If a proposed agreement will not cover all employees of the employer, the FWC must be satisfied that the employee group to be covered by the proposed agreement was fairly chosen. In determining whether an employee group is fairly chosen the FWC must take into account whether the employee group is geographically, operationally and/or organisationally distinct from other employees of the employer.[92]
[154] It is not sufficient to establish geographical distinctiveness that individual employees in the relevant cohort work alone. Consideration should be given to whether the cohort as a group are geographically distinct from employees not included within the cohort.[95] For a group of employees to be regarded as geographically distinct, it is not necessary that the group include each and every employee who works at a particular location. Distinctiveness is not absolute and a group of employees may be regarded as geographically distinct if geographically separated from other employees performing the same type of work.[96]
[155] Having determined whether the group is geographically, operationally, and/or organisationally distinct, the FWC must take that into account and give it due weight having regard to all the other factors. [97]
"...distinctiveness within the meaning of s 237(3A) ... is necessarily a relative, not absolute concept, and necessarily requires a comparison between the employees who will be covered and those who will not."
[157] There is no need for the group of employees to be the fairest group that could be chosen; it is sufficient that the group is fairly chosen.[100] In CFMEU v ResCo Training and Labour[101], for example, a Full Bench of Fair Work Australia held the following in relation to the consideration of whether employees are fairly chosen for the purposes of enterprise agreement approvals:[102]
"In most enterprises there is unlikely to be any one fair manner of selecting the class of employees to be covered by an enterprise agreement. Different scope provisions may be equally described as fair in the sense that no manifest unfairness arises from their application. That is not to say that the parties may have a particular preference or view about the scope and favour a different formulation. The tribunal's task however is not to determine the scope clause. Its task is to guard against unfairness by being satisfied that the group can be described, in all the circumstances, as fairly chosen."
[158] The AWU seeks a majority support determination for a proposed enterprise agreement that will cover employees of Woodside who are engaged to perform work on the Platforms in roles allocated to Job Level 4 to Level 9, up to and including Supervisors. The effect of the proposed coverage is that all employees on the offshore Platforms of the Project would be covered other than the OIMs and Superintendents.[103]
[159] According to Mr Heath the group was chosen by the Employee Group to include all employees who at least from time to time work 'on the tools' in direct productive work on the offshore platforms.[104]
[160] The AWU submit that the Employee Group is fairly chosen and that the Employee Group is geographically, operationally, and/or organisationally distinct from other employees of Woodside.
[161] Woodside submit that the Employee Group is not geographically, operationally or organisationally distinct nor fairly chosen.
[162] The AWU submit that employees engaged on the Platforms (located offshore) are geographically distinct from those who are not.
[163] Woodside submit that the Employee Group are not geographically distinct from Superintendents and OIMs who also live and work on the Platforms.
[164] The AWU submit that the Employee Group are operationally distinct from other Woodside employees employed in connection with the Project who are either engaged in the productive activity of processing gas (onshore employees) or the management of people (OIMs and Superintendents).
[165] The AWU argue that Supervisors are involved in the industrial or productive activity of producing or extracting gas for the Project for the following reasons:
b. Supervisors are expected to be out in the field most of the time, ensuring that work is being completed and completed safely.[106]
c. Supervisors are typically promoted from the pool of tradespeople in the levels below.[107]
d. It is rare for Supervisors to be moved between Woodside's business units.[108]
e. Supervisors are generally capable of performing technician duties.[109]
f. Supervisors have supervisory rather than managerial duties.[110]
[166] The AWU say that Supervisors can be distinguished from OIMs and Superintendents because OIMs and Superintendents are more correctly characterised as being engaged in the productive activity of managing people not the productive activity of producing or extracting gas.
[167] The AWU argue that OIMs are engaged in the productive activity of managing people because:
a. OIMs do not have a hands-on role or necessarily any hands-on experience.[111]
b. The OIM role is disconnected from the activity of producing gas as the role would be the same no matter the product being produced.
c. The OIM does not perform any productive work towards the maintenance of the offshore facilities or the production of gas.
d. OIMs may be moved between Woodside's business units.[112]
[168] The AWU argue that Superintendents are engaged in the productive activity of managing people because:
a. The Superintendent is a 'conduit' back to the Woodside office in Perth.[113]
b. The Superintendent role is a support and governance role.[114]
c. The Superintendent does not perform any productive work towards the maintenance of the offshore facilities or the production of gas.[115]
d. Superintendents may be moved between Woodside's business units.[116]
[169] Woodside say that the onshore and offshore facilities which make up the Project are jointly and inextricably engaged in the extraction, processing and export of gas and condensate and that the skills and trades required at the facilities are substantially similar and that therefore the Employee Group is not operationally distinct from employees engaged onshore. In addition, Woodside submit that the Employee Group are not operationally distinct from management employees such as OIMs and Superintendents that live and work on the Platforms. [117]
[170] The AWU submit that onshore and offshore facilities which make up the Project are organisationally distinct because they have a separate superintendents and asset managers and are regulated by different safety bodies. The AWU also identify differences in the terms and conditions of employment of onshore and offshore employees including the payment of an offshore allowance and the integration of annual leave into the roster of all offshore employees. The AWU also argue that onshore and offshore employees are not readily transferred between sites because there are certain site-based skills competencies required which cannot be obtained quickly. For example, they point to an instrumentation electrician who they say would require at least six months to obtain the competencies to move from onshore to offshore.[118]
[171] Woodside submit that the Employee Group are not organisationally different from other Woodside employees employed on the Platforms or at the KGP because they all ultimately report to the Vice president, North-West Shelf, their skill sets make their transfer between onshore and offshore roles a possibility and they are subject to the same or similar policies, work practices and conditions of employment.[119]
[172] I am satisfied that the Employee Group is organisationally, operationally, and geographically distinct from employees engaged in the Project onshore:
a. The Project operates as its own business unit within Woodside.[120]
b. The Project is made up of the Platforms and the KGP.[121]
c. The Platforms are located offshore. The KGP is located onshore.[122]
d. The Platforms are managed and operated through a single organisationally structure managed by one Asset Manager. The KGP has a separate Asset Manager.[123]
e. The Platforms and the KGP are regulated by different regulatory bodies.[124]
f. While some preliminary processing of the gas may occur at the Platforms, the primary purpose of the Platforms is to facilitate the extraction of gas. The primary purpose of the KGP is to process the gas. [125]
g. The fact that a disruption in operations of the Platforms or the KGP could affect the other does not mean they cannot be regarded as operationally distinct.
h. Employees may be transferred but are not routinely transferred between the Platforms and the KGP.
[173] The evidence is that OIMs have responsibility for the day-to-day management of the Platforms including compliance with the relevant safety case.[126] The evidence is that Superintendents are responsible for running plant or ensuring site works are safely and efficiently performed and may be required to act as OIMs. According to Mr Ramsden:
"A typical day for Superintendents includes attending the conflict and leadership meetings. They identify and resolve conflicts between proposed work scopes, other activities, and facility operational status. The leadership meetings take a more general overview of the day's events including HSE or people issues and set the priorities for the coming day."
[174] I am satisfied that the OIMs and Superintendents are operationally distinct from the Employee Group because the OIMs and Superintendents are engaged in the industrial activity of management rather than the frontline industrial activity of the extraction and production of gas. OIMs and Superintendents are the senior management employees responsible for the operation of the Platforms as a whole. In contrast Supervisors are allocated to operational teams which include Technicians.[127]
[175] I am satisfied that Supervisors are not operationally distinct from the Employee Group. Supervisors typically have the necessary qualifications to perform the duties of other employees within the Employee Group and may perform such duties in the normal course of the performance of their roles.[128] Based on their position description, Supervisors perform a 'Leading Hand' rather than a managerial role. Their key responsibilities and accountabilities do not note any typically managerial responsibilities such as approving leave or disciplining employees. Rather the key responsibilities speak only to supervisory and leadership duties.[129]
[176] While the question of whether the group of employees to be covered by the Proposed Agreement is geographically, operationally and/or organisationally distinct must be evaluated, and given due weight, it is not a determinative consideration. It is not necessary to make a finding that the group is geographically, operationally, and/or organisationally distinct in order to be satisfied that a group of employees was fairly chosen.[130]
[177] The word 'fairly' implies that the selection of the group is not arbitrary or discriminatory and is made on some objective basis.[131] In this regard, it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreements coverage and employees who are excluded.[132] Selection criteria based on employee characteristics such as gender would be unlikely to be fair. Selection criteria which would have the effect of undermining collective bargaining or other legislative objectives are also unlikely to be fair.[133]
[178] There is nothing to suggest that the exclusion of OIMs and Superintendents is either arbitrary or discriminatory or otherwise unfair. As in fact Woodside argue there are objective reasons why senior management roles are not typically included in the scope of an enterprise agreement.
[179] Woodside submit that the Employee Group is not fairly chosen because it includes Supervisors. Woodside say that it is unfair to include Supervisors because such employees could be placed in a position of conflict between their duty to manage and discipline employees on the one hand, and their interest in supporting and advancing the claims of those employees against their employer on the other.
[180] In support of this proposition Woodside cite cases involving union eligibility rules but none which consider the fairness of agreement coverage.
[181] It is not uncommon for agreements and Awards to cover frontline supervisors. The relevant modern award, the Hydrocarbons Industry (Upstream) Award 2020, includes classifications having supervisory responsibilities together with employees they supervise.[134]
[182] The evidence supports the conclusion that there is nothing unfair in the Supervisors being part of the Employee Group:
a. The Supervisors are selected based on competence and performance typically from the pool of available technicians. The practice is to select a particularly skilled and experienced Technician to be a Supervisor.[135]
b. The Supervisors are classified at job level 8 or 9 which overlaps with the job level allocated to the Technicians who can be allocated from job level 4 to 8 or job level 9 for a "technical specialist". As such, the Supervisors are recognised to be at the same level of at least some Technicians for pay purposes.[136]
c. Supervisors are typically required to have the technical skills and competencies of the technician role. For example, the Maintenance Supervisor is required to have a "SKILLED" level of competence in maintenance processes and functionality and design of facility equipment, systems and processes. [137]
d. Supervisors are required to provide technical advice and guidance to Technicians in the course of their operational work, at least in relation to areas in which the Supervisor has the technical skills and competencies, and to lead by example by showing how things are done in the most optimal way.[138]
e. Supervisors undertake the same operational work as Technicians as part of an operational team where necessary.[139]
f. The nature of the supervisory role of the Supervisors is appropriately regarded as a "team leader" or "leading hand" type role in which the Supervisor directly supervises the operational work of the Technicians, leads by example and works as part of the team.[140]
g. The extent of the Supervisors employee relations role is at most described as the first point of contact.
h. A review of the Petitions reveals support among Supervisors for bargaining and consequently their inclusion within the scope of any subsequent agreement.
[183] Woodside submit that the Employee Group is not fairly chosen because it would include a position which did not exist at the time the proposed cohort was chosen because it was subsequently created following a merger between Woodside and BHP's oil and gas portfolio. Given that the position did not exist at the time the selection of the proposed cohort was made, I am satisfied that its exclusion cannot be correctly characterised as unfair.
[184] There is no evidence before me to suggest that the selection of the Employee Group is fairly characterised as either arbitrary or discriminatory.
[185] There is no evidence, before me, to suggest that the Employee Group is not fairly chosen and I am satisfied that the Employee Group was fairly chosen.
By what method should the FWC determine whether a majority of employees want to bargain?
[186] Prior to making a majority support determination, the FWC must be satisfied that a majority of the employees who will be covered by the Proposed Agreement want to bargain.
[187] The FWC may determine whether a majority of employees want to bargain using any method the FWC considers appropriate. The evidence to support such a finding may include employee petitions or surveys, secret ballots or written statements from employees.[141]
[188] The AWU say that it presented individual petitions to the Employee Group which a majority of the Employee Group signed confirming that they wish to bargain with Woodside for an agreement.
[189] Woodside contended that the Petitions do not constitute a reliable basis for satisfaction that majority support for bargaining exists. Woodside asserts that the AWU obtained the Petitions on the basis of false or misleading representations. Ironically, given the number and nature of unsuccessful interlocutory applications, requests for adjournments and requests for extensions or lengthy periods to file materials made by Woodside, they now also contend that the Petition evidence is too old to be reliable. During the cross examination of Mr Heath and subsequently in its closing submissions, Woodside advanced a contention that the Petitions should not be relied upon because it was not impossible that some or all of the Petitions were fraudulently completed by some unknown person or persons.
[190] In its Closing Submissions Woodside went further to submit that any decisions of the FWC "... that say, or assume, the appropriateness of the Petition Method in the absence of the consent of the parties are incorrect and should not be followed."[142]
[191] Woodside have much to say about the inappropriateness of methods of determining employee support but nothing to say about what might be an appropriate method.
[192] The Directions proposed that the method to be adopted by the FWC to ascertain whether the majority of the Employee Group want to commence bargaining with Woodside would be as follows:
a. The AWU files with the FWC and serves on Woodside a sworn statement regarding the circumstances in which the Petitions were obtained.
b. The AWU files the Petitions with the FWC on a confidential basis and serves on Woodside a version with information identifying the relevant employee redacted.
c. Woodside files with the FWC on a confidential basis a list of its employees employed in the classifications specified in the Application.
d. The FWC compares the Petitions with the list of employees provided by Woodside in order to satisfy itself whether a majority of the Employee Group want to initiate bargaining with Woodside in respect of the Proposed Agreement.
[193] The Directions also required Woodside to provide a copy of the Application, the Sworn Statement, the evidence and submissions filed in support and in response to the Application and a copy of the Directions to each member of the Employee Group. The Directions contained an invitation to each employee to contact Chambers if they wished to be heard in relation to the Application.
[194] The Directions expressly invited Woodside to indicate whether it opposed the process for determining Employee support by way of the Petition Method and, if so, what alternative method Woodside proposed. Notwithstanding vigorously opposing the use of the Petitions, Woodside have declined to propose any alternative method but have vehemently opposed a contemporaneous ballot.
[195] The Petition Method is the most common mechanism used in the determination of majority support determinations. However, subsection 237(3) of the FW Act does not give any primacy to the Petition Method or any other method to determine employee views. 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.
[196] Subsection 237(3) of the FW Act leaves at the Member's discretion the determination of the appropriate method for ascertaining employee preference. The Member is not restricted to the method proposed by the applicant in the originating application. For example, Members routinely impose additional or alternative evidentiary requirements, for example, a requirement to provide a statutory declaration as to the circumstances in which the petition/s was obtained or a requirement to post a notice or distribute directions giving employees an opportunity to be heard in relation to the majority support application.
"It is doubtful how far the notion of onus of proof is relevant at all to Commission proceedings. There is a respectable basis for the view that, where there is a statutory requirement for the Commission to be 'satisfied' about exercising a discretion, the notion of onus of proof imports legal doctrines that should have no part in the Commission's procedural or decisional process. This is especially so where a discretion, as in the case of section 127, is exercisable on the Commission's own motion. In short, the Commission is either satisfied that it should exercise the discretion, or it is not."
[198] It is consistent with the FWC's general powers to inform itself in any manner it considers appropriate.[145]
[199] It is also consistent with the structure of section 237 of the FW Act. If the Member were restricted to the method proposed by the applicant, subsection 237(3) would have no work to do.
If the Petition Method is chosen should the Petitions be produced to Woodside in an unredacted form?
[200] Woodside submits that if the Petitions are not produced in an entirely unredacted form, it is denied the opportunity to test their integrity and therefore denied procedural fairness.
[201] 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. The AWU is concerned that employees who have signed the petitions will fear, or be subject to, retribution or recriminations for adopting a position in opposition to their employer and be dissuaded from participating in bargaining.
[202] In the Production Decision, and during the course of the determination of the Application, I have considered the parties submissions in relation to production of unredacted copies of the Petitions. The Full Bench refused permission to appeal the Production Decision finding no error in the decision.
[203] Ultimately, I determined that the AWU must provide copies of each of the Petitions to Woodside redacted only in relation to information that would directly identify the employee who signed the Petition. I am satisfied that this is appropriate in the circumstances of this Application.
[204] In National Union of Workers v Lovisa Pty Limited_[146]_, Deputy President Colman accepted that, ordinarily, there were reasonable grounds for unredacted petitions not to be provided to the employer given concerns about disclosure of the identity of employees. The Deputy President explained:[147]
"[67] Generally, petitions can be an acceptable method for the Commission to determine the question of majority for the purpose of s 237(3). And in the absence of some evidence raising a prima facie concern about the reliability of petitions as evidence of employee support, I would incline to the view that it is sufficient for the Commission to receive an un-redacted copy of the petition documents and for the employer to receive a redacted copy. In some cases a union will not object to providing the employer with the un-redacted petition but often, as was the case in this matter, employees have expressed some concern to their union about the disclosure to the employer of their signatures on a petition. In my view, an apprehensiveness of this kind is understandable as employees who sign a petition to bargain are taking a position that is in opposition to that of their employer, which obviously in such matters does not wish to bargain."
"There are few circumstances I can conceive of where it would be appropriate to provide an unredacted petition signed by employees, indicating their support for the commencement of enterprise bargaining with their employer, to their employer. I share the view of Deputy President Colman expressed in Lovisa that it would be natural for employee-petitioners to be apprehensive about their identities being revealed to their employer, given they are taking a position that is aligned with a union in an effort to have their employer agree to something it evidently does not want to do, namely bargain. Employees are entitled to freedom of association - to join or not to join unions. Employees are not obligated to inform employers whether they are or are not union members, or whether they support a union in its endeavours to obtain an enterprise agreement with their employer. It is entirely reasonable and understandable that employees who are union members or who support a union seeking to negotiate an enterprise agreement, may wish to maintain confidentiality." [FOOTNOTES OMMITTED]
[206] Woodside have made clear to their workforce that they oppose bargaining.[150] In circumstances where their employer has made clear that it is opposed to collective bargaining and prefers a model of direct engagement, it is reasonable that employees may fear recriminations for seeking to engage in collective bargaining.
[207] Mr Heath gave evidence that Woodside employees had expressed to him that they are fearful of being seen to support bargaining. This is consistent with the evidence that a majority of employees preferred to provide their personal email contact details to Mr Heath than communicate with the union via their work email address potentially subject to surveillance by Woodside.[151]
[208] Woodside submit that National Union of Workers v Lovisa Pty Limited[152] is wrongly decided by a single member and a novel departure from existing law.
[209] The concept that employee information might be kept confidential from the parties has a long history. See for example, the Enterprise Flexibility Agreements Test Case[153], in which the Full Bench of the former Australian Industrial Relations Commission rejected a contention that fairness required disclosure to an employer of documents being relied upon by the Commission for the purpose of determining the eligible union status of employees when approving an enterprise flexibility agreement. The Full Bench described the process as follows:[154]
"As suggested above, the Commission may establish a process for determining eligible union status whereby the union provides the Commission or the Registrar with a confidential statutory declaration identifying employees of the employer said to be union members, and the employer provides a confidential statutory declaration identifying all employees. The question of whether or not the union is an eligible union can then be resolved by the Commission comparing the information provided. In such circumstances the employer would be entitled to cross-examine the author of the statutory declaration provided by the union. Such a cross-examination could go to the process used by the person to ascertain the membership status of the employees identified. However, in our view the cross-examination cannot be used to require the disclosure of the identity of the employees said to be union members."
[210] In that case the Full Bench specifically rejected the submission that procedural fairness required disclosure of the material to the employer and concluded_:[155]_
"In our view, such a process will provide the employer applicant with an adequate opportunity to challenge or contradict the material advanced against it. Procedural fairness does not require the names of those employees said to be union members to be disclosed when eligible union status is contested. Such employees may not wish to have this information disclosed and in our view they are entitled to have their privacy protected by the Commission."
[211] The correctness of this practise was confirmed by the Full Bench in INPEX Australia Pty Ltd v The Australian Workers Union[156] in which INPEX made almost identical claims with respect to its purported rights to view unredacted petitions. The Full Bench confirmed that I could have taken the action of: [157]
"...simply rejecting what she considered to be INPEX's 'vigorous insistence' on open access to the original petitions."
[212] The procedural fairness concerns of which Woodside claim to suffer can be addressed, and are regularly addressed in applications of this type, without the need for the employer to access information identifying individual employees.
[213] Employer concerns as to the framing of the petition questions, the type of data gathered or the timing of data gathering are typically addressed by the provision of a blank or redacted petition as contemplated by the directions issued in this Application. In this Application Mr Heath's Sworn Statement sets out the circumstances in which the Petitions were collected.
[214] Concerns that employees have not freely expressed their own views and have been subject to verbal or physical pressure to sign a group petition is typically addressed by the use of individual petitions circulated by email such as occurred in this Application. In this Application each Employee has also specifically declared that they signed the Petition freely and without pressure.
"I am an employee of Woodside Energy Ltd {ABN 63 005 482 986} ("Company"). I understand the purpose of this document is to confirm whether I support bargaining for an enterprise agreement with the Company to apply to my employment. By signing below, I confirm my support for bargaining with the Company for an enterprise agreement to apply to my employment. I have done so freely and without pressure. I am aware this document will be provided to the Fair Work Commission."
[215] 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. In this particular Application the Petitions include the following data:
[216] Woodside were directed to file its records of these data fields and work email address on a confidential basis so that I could cross check each data field including where the petitioner provided a work rather than a personal email address.
[217] In addition, the AWU sought to enhance the level of security by asking the Employee Group to use well know credible identity verification software.
[218] The only information contained on the Petitions to which Woodside do not have access is information which would disclose the identity of the employee who has signed the relevant Petition.
c. The classification which the relevant employee was engaged.
[220] Woodside have not explained how the provision of the Petitions unredacted but for employee name or identifying personal information prevents them properly prosecuting their argument that the Petitions were obtained based on false and misleading representations. In fact, the disclosure of this information specifically for this purpose was rejected by Deputy President Asbury in CFMEU v MacKellar Mining Pty Ltd[158]:
"[165] I do not accept that it is appropriate to provide an employer with an unredacted copy of a petition simply for the employer to ascertain which employees have signed the petition so that those employees can be called by the employer to give evidence about their motives for signing or to establish a case that the employer seeks to advance about lack of understanding on the part of employees when they signed the petition, or misleading conduct on the part of a union, seeking to rely on the petition."
[221] In the course of proceedings, Woodside were able to identify in some detail the representations which they assert were misleading and false. It was not necessary to identify each employee who completed a Petition to do so.
[222] Woodside say they are aware of the identity of a number of employees who do not wish to bargain. Given the large proportion of employees who lodged a Petition, a random selection of employees would statistically produce a number who do wish to bargain.
[223] If it is the case as Woodside insist, that employees have no fear of recrimination in relation to their choice whether to bargain then Woodside could have simply have asked its employees if they supported bargaining and why.
[224] It is therefore not necessary for Woodside to access the unredacted Petitions to develop its case or identify relevant witnesses.
[225] As Deputy President Coleman pointed out in National Union of Workers v Lovisa Pty Limited:[159]
"At the hearing, the company stated that it wished to verify whether employees who have signed petitions and sent texts really do wish to bargain, and did not rule out seeking to cross examine them. However the company was free to lead its own evidence about what employees think about the prospect of bargaining. It did not need the unredacted material to do this. It could have spoken to all of the employees or surveyed them about their views and then had a manager provide evidence about this. It could have called employees to give evidence about their support for bargaining."
[226] See also the comments of Deputy President Asbury in Application by the CFMMEU[160] where she noted that:
"[166] If an employer wishes to advance a case that employees were misled or deceived by officials of a union in relation to a petition seeking to establish majority support for enterprise bargaining, then evidence to support such assertions should be provided from witnesses called by the employer. Such allegations are serious and should not be made lightly and in the absence of cogent supporting evidence called by the party making the allegations.
[167] I do not accept the submission advanced on behalf of MacKellar Mining in the present case, that it should not be expected to go amongst its workforce to find examples of people to support its case. In my view, it is perfectly reasonable for an employer who receives complaints about the conduct of a union seeking to obtain majority support, to inform employees that such complaints have been received from their colleagues and to put in place a mechanism for other employees to report any concerns."
[227] Woodside chose not to call a single employee to give evidence that they signed a Petition based on false and misleading information. Nor did Woodside call a single employee to give evidence that they did not freely and willingly sign a Petition.
[228] In its Closing Submissions, Woodside also submitted that it should be given unredacted access to the Petitions because it could conduct a comparison of signatures which the FWC could not because the FWC did not have that information available to it: [161]
"[177] By way of illustration, had Woodside been given access to the original, unredacted petitions, it could have analysed the signatures appearing on the petitions against its own records, to the extent they exist, depicting the signatures of employees within the proposed cohort. Currently, there is no material before the Commission that would enable the Commission to verify whether any signature appearing on any petition is in fact the signature of the employee to whom it purports to belong."
[229] Having brought to my attention that an additional data source existed which I could use to verify Woodside's allegation that the Petitions were unreliable and test the AWU's assertion that the Petitions were reliable I directed Woodside to provide, on a confidential basis, a copy of any employee signatures that it could produce within a reasonable time.
[230] Woodside strongly resisted the order, its representative Mr Longland sending an email to Chambers stating that:
"direction 2, to the extent that Woodside has records of these signatures (which is not yet known), that review will take some time - likely weeks, rather than days, if such records exist at all. No register of signatures exists due to the phasing out of wet signatures a number of years ago, therefore the existence of records is limited, and compliance would require Woodside to review hard copy employment and other documents for all employees, at least some of which are not stored on site."
[231] Mr Longland went on to assert that my request that the information be provided was improper:
"My client is most concerned that the directions evidence a desire by the Commission to enter the fray, once again on the side of the AWU."
and that the request for the information was, on the authority Esso Australia Pty Ltd v. AWU and Ors [2017] FWCFB 2200 not a proper exercise of the powers granted in section 590 of the FW Act.[162] The passage of the decision cited by Mr Longland states that:
"s.590(2)(c) to require a person to provide copies of documents or records, or to produce any other information to the Commission is a discretionary power, the exercise of which is to be guided by the principles adopted by courts in civil proceedings when compelling a person to produce documents, records or other things. Matters that will guide the exercise of the discretion to require production include relevance, the particularity with which the documents or category of documents that are to be the subject of the order sought are described, the extent to which the burden placed on a person required to comply with the order is reasonable, the extent to which particular documents sought amount to no more than fishing, and the proper administration of justice in the sense that material that is relevant to an issue or issues that fall for determination is available to parties to enable the parties to advance their respective cases."
[232] The relevance of the signatures to the issues in dispute is set out in Woodside's own submissions. The assertion that:
"... had Woodside been given access to the original, unredacted petitions, it could have analysed the signatures appearing on the petitions against its own records"[163]
suggested that the signatures did exist and that therefore their production could not be appropriately described as a fishing exercise.
[233] As it turns out Woodside did not in fact have the signatures. Ms Mussared, the Manager Employee and Industrial Relations, in a witness statement dated 19 January 2023 subsequently confirmed that:
"WEL does not maintain or retain a register of employee signatures."
[234] 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. 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.
[235] In all the circumstances of the Application, I continue to hold the view that it is not appropriate or necessary for the Petitions to be produced to Woodside in an entirely unredacted form.
Do the Petitions accurately represent the desires of the Employee Group to commence bargaining - A. Alleged Misrepresentations?
[236] Woodside assert the Petitions were "... unfairly and improperly procured on account of fundamental and material representations ..." contained in Mr Heath's various correspondence with the Employee Group and in posts on the Offshore Alliance Facebook Page. Woodside submit that for this reason the Petitions cannot be relied upon as evidence that a majority of employees wish to bargain.
[237] Section 237(2) requires the FWC to be satisfied that a majority of employees want to bargain. Woodside have not identified how section 237(2) requires the FWC to embark on a process of interrogation of the genuineness or motivation of each individual employee as to why he or she wishes to bargain.
[238] Instead, Woodside rely on authorities concerning the approval of agreements.[164] There is no requirement to consider "genuine agreement" in the context of petitions for the purpose of majority support determinations, and nothing to suggest that Parliament had the intention of the FWC doing so.
[239] Persuasion and inducement are not uncommon elements when it comes to the bargaining process or the precursor to that process, such as engendering support for a MSD. Evidence of persuasion or inducement does not of itself establish that a petition has been falsely derived.[165]
[240] The persuasion and/or inducement must be such that the petition can be said not to reflect the desires of the relevant employee. For example, a petition secured by way of threat of violence could not be said to evidence a desire on behalf of an employee to commence bargaining.
[241] No question of duress or coercion arises in this matter. Woodside instead assert that 'fundamental and material representations' were made by the Offshore Alliance and its officials which vitiate the Petitions.
[242] While it is apparent that Woodside became aware of each alleged misrepresentation, shortly after the representations were made it took no contemporaneous steps to contact the AWU to complain about the communications or dispute the accuracy of the content with the AWU.[166]
[243] Woodside relies on the findings in CEPU v South32 Worsley Alumina Pty Ltd[167] as authority for its claim of misrepresentation vitiating employee support. However, there is a high bar to clear for a representation made by a union in a campaign for a majority support determination to be considered as a misrepresentation that leads to a conclusion that a petition was falsely derived in accordance with South32.[168]
[244] Woodside identify as examples of 'fundamental and material representations' a multitude of statements made in correspondence between Mr Heath and the Employee Group and on various posts on the Offshore Alliance Facebook page on 22 February 2022, 2 March 2022, 8 March 2022, 16 March 2022, 9 February 2022, 12 February 2022, 20 February 2022, 4 March 2022, 21 March 2022, and 25 April 2022.
[245] The Offshore Alliance Facebook page is a publicly accessible page. On the page the Offshore Alliance regularly post memes, photos and short statements. The posts typically provide updates on various industrial campaigns being run by the Offshore Alliance in the oil and gas industry and/or make comments about the activities of employers and/or management personnel in the hydrocarbon industry.
[246] The posts which are made on the Offshore Alliance Facebook page might best be described as hyperbolic and often include profanities. The posts are not infrequently described by employers or employer groups as offensive, demeaning, and inflammatory. Anyone reading the page would understand that the content is highly partisan. The 12 February Post which Woodside complain about is a good example:
"When the Myanmar Junta sympathiser Peter Coleman was f'""ed off out of Woodside last year (or simply just f'"' ed off), Woodside facility workers believed that things could only get better. After all, under the Coleman regime, Woodside slashed contractor rates by 40% in 2011. proposed a 14 week offshore roster in March 2020. sacked hundreds of workers in August 2020 and promised that the 3 week on-duty hitch was only, a 'trial' That was bullshit from the start and workers are still stuck on a 3 week on-duty hitch. Anything to save a buck."
[247] None of the posts made prior to 21 March 2022 make any reference to enterprise bargaining. The posts were made at an earlier time and on different topics.[169] Woodside does not contest that the content of posts are fabricated. For example Woodside concedes that the 22 February Post was taken from a Woodside leaders personal facebook page. While the statement in the 12 February Post that:
"Woodside now intend locking up workers for the princely sum of $20 per hour for every hour in captivity at a Woodside quarantine/ isolation centre."
uses emotive language Woodside do not contest that it proposed that employees would be required to quarantine during off duty periods for a payment of $500 per day.[170]
[248] It is only the posts on 21 March 2022, 28 March 2022 and 13 May 2022 that make any reference to enterprise bargaining.
[249] The 21 March Post alleged that the announcement that day by Woodside of a salary review had been triggered by the request by the AWU two days earlier to commence bargaining. Woodside say that the review was unrelated to the activities of the AWU. However, it is relevant to note that prior to the announcement of the review, a wage freeze had been in place. Given the timing of the communications it is not unreasonable for the Offshore Alliance to hold the view that the salary review announcement was a response to the bargaining push.
[250] The 21 March 2022 Post also includes the words: [171]
"Regardless of whatever increase Woodside decide to stump up, it won't detract from the Offshore Alliance seeking an EBA which locks in remuneration and employment standards. Over the past few years, Woodside have shown that employment contracts offer employees zero job security and no security of rosters and other entitlements."
[251] The statement represents an expression of opinion about Woodside's actions. Mr Heath gave evidence about the basis upon which the statements were made. Woodside itself concedes that it made 300 roles redundant in 2020 and that it sought to implement roster changes during the course of the COVID pandemic.[172] The statement in so far as it relates to rosters is also consistent with the terms of the template employment contract for the Employee Group provided by Woodside which provides that: [173]
"Roster patterns may vary from time to time at the Company's sole discretion."
[252] The 28 March Post includes the words:[174]
"The time is right for Woodside's offshore workforce to be paid industry benchmark rates of pay. This should be done via 'negotiation' and not by the unilateral determination of the HR bosses and bean counters sitting in Woodsides ivory tower in Mount Street. The Offshore Alliance is stepping up our campaign for an Enterprise Agreement to cover Woodsides GWA, NCR and Angel Platform workforce. Only an EBA can prevent unilateral changes to key employment conditions. Employment contracts are a sham and a scam."
[253] These statements are similar to statements complained of by Woodside made in the email correspondence sent by Mr Heath to the Employee Group and are discussed further below.
[254] The 13 May Post included the words:[175]
"With 75% support for bargaining for an Enterprise Agreement by the Woodside workforce on the GWA, NRC and Angel Deep Platforms, the Offshore Alliance has given Woodside formal notification of the need to commence bargaining for an Enterprise Agreement.
[255] Woodside assert that this statement was a misrepresentation because a subsequent analysis of the evidence filed by the AWU and Woodside in these proceedings reveals that 62% percent, not 75% of the workforce had filed a Petition at the point in time the statement was made.
[256] There is no evidence before me to suggest that Mr Heath or the author of the post, if it were not Mr Heath, knew or might reasonably be expected by the audience of the post to know the precise number of employees within the cohort to be able to provide a precise percentage. At that point of time in question, the AWU had received petitions from well over half the workforce. It was true that a comfortable majority already existed.
[257] There is no evidence before me how many, if any, members of the Employee Group subscribe to the Offshore Alliance page or viewed the particular posts about which Woodside complain. To the extent that members of the Employee Group did view a particular post, it would seem unlikely that they would not understand that the post is intended to be of propaganda nature. Relevantly there is no evidence before me from any employee that any statement made in any of the posts identified by Woodside caused themselves or any other employee to change their mind about whether they wished to bargain or not.
[258] The remaining alleged misrepresentations of which Woodside complain were made in emails sent by Mr Heath to the Employee Group between March 2022 and May 2022.
[259] A number of the alleged representations are cited out of context. For example, Woodside point to the following statements extracted from the 19 March Email.
"During the onset of Covid-19, several Operators used the temporary downturn in the oil and gas price to erode the job security of employees and unilaterally change key employment conditions.
"Changes to rosters, travel arrangements, reduced tenure of interstate employees
and the use of contractors in core crew roles have occurred on various facilities
with limited consultation with the respective Operator workforces."
[260] Woodside assert that the statements are false because it did not reduce the tenure of interstate employees and offered permanent employment to a number of contractors. While conceding that it made 300 roles redundant Woodside say this did not erode the job security of those employees who remained.[176]
[261] When Mr Heath's statements are read in context, it is clear that Mr Heath is not specifically referring to Woodside but to the cohort of key employers in the oil and gas industry. His email has five headings: 'Offshore Alliance Introduction', 'Representation of Operator Workforces', 'INPEX and Shell Bargaining', 'Locking in Job Security and Key Employment Terms with Woodside' and the 'Statutory Rights of Freedom of Association'. The complained of statement appears under the heading 'Representation of Operator Workforces' as follows rather than under the heading 'Key Employment Terms with Woodside' which deals directly and expressly with the conduct of Woodside:
When the Offshore Alliance commenced in October 2018, our primary focus was to address the significant cuts in pay and conditions to the contractor workforces engaged on oil and gas facilities.
Whilst we have made significant progress in this area, it is an ongoing campaign which will continue until every oil and gas contractor is working under a union negotiated Enterprise Bargaining Agreement. Over the past 3 years, the Offshore Alliance has negotiated over 30 Enterprise Bargaining Agreements.
More recently we have stepped up our representation of hydrocarbon employees directly engaged by the oil and gas operators. During the onset of Covid-19, several Operators used the temporary downturn in the oil and gas price to erode the job security of employees and unilaterally change key employment conditions. Each of the large operators made numerous employees 'redundant' despite the fact the jobs themselves had not simply disappeared. The 'redundancies' were a sham but in the absence of EBA's, were not given the level of scrutiny which would otherwise have applied.
Changes to rosters, travel arrangements, reduced tenure of interstate employees and the use of contractors in core crew roles have occurred on various facilities with limited consultation with the respective Operator workforces. In almost every case where changes have been implemented there was no negotiation with the workforce and no process to determine whether the proposed changes were acceptable to all stakeholders - including employees."
[262] During cross examination, Mr Heath explained which actions of other operators such as INPEX, Chevron and Shell he was referring to in the 19 March Email.[177]
[263] Even if the complained of statement had intended to refer in whole or in part to Woodside it is relevant to note that Woodside conceded that it did make 300 roles redundant in October 2022 and that it unilaterally made changes to rosters and unilaterally introduced quarantine requirements during the pandemic. In these circumstances the statement was not without any basis.[178]
[264] Other alleged misrepresentations are merely matters of which the audience would understand to be matters of subjective opinion. See for example Mr Heaths statement in the 19 March 2022 email that:[179]
"It is almost inevitable that Woodside will push back against having an Enterprise Agreement which makes them accountable to the workforce and provides for far greater transparency in how they manage employees."
[265] The statement represents an expression of opinion predicting that Woodside will resist an attempt to establish collective bargaining. Ms Manuel accepted that Mr Heath's prediction turned out to be accurate.[180]
[266] Woodside's assertion that the statement is false inter alia because its leaders conduct biannual reviews is unpersuasive. Biannual reviews are a process whereby a managerial employee talks to their superior about their own performance. The process provides no accountability to the workforce or any transparency. It is purely an assessment of the performance of a manager by the manager's own superior.[181]
[267] Other alleged misrepresentations are not factually untrue. See for example the following statement made by Mr Heath in his 22 April 2022 email:
"The Offshore Alliance will not provide Woodside with a copy of the Bargaining Petitions. They will be held by the Offshore Alliance and will only be used in the event that the company refuses to commence bargaining. In circumstances such as these, the union will apply to the Fair Work Commission and will seek a "Majority Support Determination" (MSD). The Bargaining Petitions will be provided to the FWC (and not Woodside) to demonstrate that the majority of Woodside employees on the Offshore Platforms want Woodside to engage in bargaining."
"This statement is false, and bargaining petitions are able to be, and in certain circumstances, must be, provided to an employer."
[269] The statement did no more than communicate that the Offshore Alliance would not provide copies of the bargaining petitions to Woodside and was not misleading. The most common method of the FWC assessing the question of majority support is for a petition to be provided to the FWC on a confidential basis. Throughout these proceedings the AWU have made clear that it was determined not to provide the names of employee petitioners to Woodside and would have, if necessary, withdrawn the majority support determination application to avoid that outcome.
[270] The bulk of the alleged misrepresentations relate to various statements to the effect that:
a. EBAs are the only way to properly lock in key employment conditions.
b. Common law contracts do not provide proper mechanisms for addressing issues in dispute and cannot be enforced in the FWC.
c. Bargaining would deliver to the Employee Group industry benchmark rates and conditions recently achieved for INPEX employees.
[271] For example, Woodside refer to the 19 March Email where Mr Heath wrote:[183]
"Employment contracts which revert to company procedures and allow the employer to make unilateral changes offer few enforceable workplace rights. Employment contracts carry no weight in the Fair Work Commission and cannot be enforced in this jurisdiction ... The use of employment contracts utilised by large employers do not protect Employees terms and conditions of employment ..."
The only way to properly lock in key employment conditions such as job security provisions, rosters, travel, career progression, consultation, and the arbitration of matters in dispute, is to ensure that these employment terms are included in an Enterprise Bargaining Agreement."
[272] Woodside say that it is false to say that EBAs are the only way to lock in key employment conditions because common law contracts, policies, memorandums of understanding and deed polls can also be used. However, Mr Heath did not assert that EBAs were the only way to lock in key employment conditions. Rather he asserted that EBAs did so more effectively than other mechanisms.
[273] Mr Heath explained that in his opinion agreements were more secure than common law contracts based on his experience of members who were offered new contracts with less beneficial entitlements and who felt compelled to accept the contracts at risk of losing their jobs.[184]
[274] A review of a sample common law contract for the Employee Group reveals contract terms consistent with Mr Heath's assertion that the current common law contracts may lack security for example a clause which provides that:[185]
"Roster patterns may vary from time to time at the Company's sole discretion."
[275] An opinion that EBAs are more effective than policies which can be unilaterally amended by employers or by common law contracts, memorandums and deeds which are more complex and expensive to enforce is not unreasonably held. As Ms Manuel acknowledged, policies are unilaterally imposed by Woodside and there is no requirement for collective negotiation at all. There is no process requiring the collective negotiation of memorandums of understanding, no requirement for consultation, no requirement for any agreement to be approved by a vote. Deed polls are instruments unilaterally made by the employer, there is no requirement for employees to be consulted or agree to a deed poll, no process of approval by a vote and it is unclear how, if at all, a deed poll could practically be enforced by an individual employee. Notably, Ms Manuel, the head of Human Resources for Woodside, had not even heard of deed polls until June or July and conceded that she was unaware of the legal status or enforceability of such an instrument.[186]
[276] Woodside assert that Mr Heath's statement that: "Employment contracts carry no weight in the Fair Work Commission and cannot be enforced in this jurisdiction ..." is misleading because such contracts could be enforced elsewhere. To presume that its workforce are unaware that a contract can be enforced in some forum might be said to unfairly underestimate the intellect and knowledge of its workforce.
[277] Woodside say that it is false to say that employment contracts do not provide a proper mechanism for addressing issues in dispute because it offers employees access to a Grievance Resolution Guide. However, Woodside's template contract of employment does not refer to the Grievance Resolution Guide and it appears to have no contractual status. In any event, the Grievance Resolution Guide provides for no independent mechanism for the resolution of disputes.
[278] Woodside also point to the 19 March Email where Mr Heath stated:[187]
'An EBA which is negotiated by the Union on behalf of members is the only way employees can have an effective input into the collective negotiation of their employment terms and conditions.'
[279] It was put to Mr Heath that:[188]
"If you were fairly putting the case to these employees you would have told them that another option, another way that they could have collectively negotiated terms and conditions of employment that weren't in their contracts was to negotiate directly with their employer?
[280] Individuals negotiating directly with their employer is not 'collective' negotiation. Woodside pointed to a deed poll it recently created to deal with employee concerns about roster changes as evidence of an alternative 'collective negotiation'. Opportunities for employees to individually respond to propositions put by their employer and then documented by the employer's legal representatives in the form of a Deed Poll does not constitute 'collective negotiations'. Collective negotiations require collective action. The proposition that this might more effectively be achieved when employees are 'organised' by a person or organisation with appropriate skills and knowledge is not an unsurprising or unreasonable view for a union organiser to hold.
[281] Woodside also point to the following statement made in the 19 March Email and similar statements made in the 23 March Email and 3 May Email: [189]
"The Offshore Alliance reached an 'in-principle' agreement with INPEX for an Enterprise Agreement which provides for industry benchmark rates of pay and locks in key employment terms."
[282] Woodside say that it is false to assert that the INPEX Agreement sets industry standards and benchmarks because there are aspects of the INPEX Agreement which provide inferior entitlements to those currently applying to the Employee Group.
[283] It is relevant to note that a number of the conditions which Woodside identify as being superior are secured by virtue of discretionary company policy and not by employee's common law contracts.
[284] The AWU assert that in its opinion the INPEX Agreement does set such standards. If that is the measure against which the AWU intend to pursue claims with other employers, then the INPEX Agreement may prove to be indicative of industry wide 'standards'.
[285] Both the AWU and INPEX both provided the Employee Group with detailed analysis of the INPEX Agreement as compared with the prevailing terms and conditions of the Employee Group. See for example the summary provided by Mr Heath to the Employee Group on 4 April 2022[190] and the summary provided by Woodside in July 2022.[191] Mr Heath also provided the Employee Group with a copy of the INPEX Agreement when it was registered.[192]
[286] Employees have had the opportunity to make their own comparison and to subsequently indicate whether that changed their view about their desire to bargain via invitations provided by the AWU via Mr Heath[193], Woodside via Mr Gerard Ransom, Asset Manager for Woodside,[194] or the FWC via the Directions.[195]
[287] Even if there are some inaccuracies or even falsehoods in communications with the Employee Group in any of the emails sent by Mr Heath to the Employee Group or on the Offshore Alliance Facebook page to "vitiate" employee support, the communications would need to be misleading and deceptive to the extent that the FWC could find that the majority of employees do not wish to bargain. For example, evidence that the decision to choose to bargain was as a consequence of misrepresentation or the decision to bargain would not have been made but for the misrepresentation.
[288] Woodside provided the Employee Group with its views as to why the workforce should not press for bargaining to commence and addressed each of the alleged misrepresentations it says vitiate the Petitions in its materials filed in these proceedings. The Directions required Woodside to provide copies of its submissions and evidence to the Employee Group. The Directions invited any Employee who wished to be heard to contact Chambers.
[289] To the extent that any Employee was misled or deceived by the AWU or its officials Employees have now for many months been in possession of information from Woodside to 'correct' any deception or confusion.
[290] Employees have had the opportunity to retract their Petition or to indicate to the AWU, Woodside or the FWC that their Petition was falsely obtained or that they do not wish to bargain.
[291] As Ms Manuel attested:[196]
"[16] WEL have offered employees a pathway to withdrawing their support for bargaining for an enterprise agreement covering their employment. That pathway has been incorporated into various internal communications to the AWU's proposed cohort, and state:
If you do not want to get into enterprise bargaining, the best thing to do is to send an email to abcduediligence@woodside.com.au. Any information received in this way will be handled sensitively - it can only be viewed by two people in the organisation and we fully intend to keep that information confidential unless you agree otherwise.
All the email needs to say is: I do not wish to bargain for an enterprise agreement to cover my employment. And make sure that your full name is included.
If you're not comfortable doing this, please speak to your OIM for guidance on the best way forward. And you're always welcome to contact me.
I am informed that the current number of emails received at the above address is 13."
[292] Woodside were directed to file copies of the emails referred to by Ms Manuel. A review of those emails reveals that:
a. Two of the emails were sent by the same employee.
b. One email does not state that the employee does not wish to bargain. Rather the email informs Woodside that the employee had contacted the union and requested that they be removed from the union's mailing distribution list.
c. One email comes from an individual not included in Woodside's Final List of Employees.
d. One email is from an employee who left the Employee Group in May 2022.
e. Only two are from employees who completed Petitions and remain employed by Woodside.
[293] Woodside chose not to call as witnesses any of these employees as witnesses to give evidence as to why they would prefer not to bargain.
[294] Woodside chose not to call as witnesses any employee who claimed to have been forced, misled or deceived into signing a Petition.
[295] Woodside chose not to call as witnesses any employee to explain why they decided to support bargaining.
"[167] I do not accept the submission advanced on behalf of MacKellar Mining in the present case, that it should not be expected to go amongst its workforce to find examples of people to support its case. In my view, it is perfectly reasonable for an employer who receives complaints about the conduct of a union seeking to obtain majority support, to inform employees that such complaints have been received from their colleagues and to put in place a mechanism for other employees to report any concerns."
[297] Woodside's material rises no higher than speculation that employees may have signed petitions under the influence of alleged misrepresentations. Woodside has not been able to provide any evidence from an employee that has complained about any alleged misrepresentations by the AWU since it began speculating about this issue in its response filed on 6 June 2022.
[298] A conclusion which might be drawn from this is that there is no evidence that any of the Employee Group who lodged Petitions were misled into completing their Petition and do not wish to bargain.
Do the Petitions accurately represent the desires of the Employee Group to commence bargaining? - B. Alleged Lack of Integrity
[299] During cross examination of Mr Heath and then in its Closing Submissions Woodside advanced a contention that the Petitions did not accurately represent the desires of the Employee Group because it was not impossible that some or all of the Petitions were fraudulently completed by some unknown person or persons.
[300] The basis for the submission appears to be that the AWU did not put in place what Woodside consider a satisfactory identity verification process to ensure that the petitions were not fraudulently completed.
[301] In its Closing Submissions Woodside submitted for the first time that the Petitions could not be relied upon as evidence of employee views because of a lack of evidence that the Petitions were at all times under the custody and control of responsible persons. In support of this submission Woodside cited the decision of Commissioner McKenna in AMWU v Veolia Water Operations Pty Ltd[199].
[302] In that case Commissioner McKenna found that she could not rely on the petition signatures contained in a single hard copy document because the custody of the document during the period of signing was unknown. She did not find this to be a jurisdictional barrier to her determining the application rather it formed the basis of her decision to order a ballot to be conducted.
[303] The evidence is that the Petitions were collected in the following manner:
a. Mr Heath emailed the Employee Group on 22 April 2022 providing an explanation of bargaining and requesting employees complete, sign and date the attached petition and return by email.[200]
b. The petition form requested the following data: name, date of birth, work site, classification, email address and mobile number of the employee and indicated the signing of the Petition confirmed support for bargaining for an enterprise agreement.[201]
c. On 28 April 2022, Mr Heath sent out the petition form again via the DocuSign system to employees who had not yet returned the petition using the email addresses provided by Mr Heath.[202]
d. Completed and signed petitions were received in return between 22 April 2022 and 2 June 2022 and were collated with the assistance of an administrative assistant.[203]
e. Four of the Petitions appear to have been erroneously undated, but emails received indicated they were returned to Mr Heath on 24 April, 27 April or 9 May.[204]
[304] Woodside make much of Mr Heath's evidence that he obtained his initial list of email addresses to whom he sent the petition template from a list provided anonymously to the MUA.[205]
[305] There is no evidence that the information provided to Mr Heath included any of the relevant data fields contained in the Petitions other than the email address. There is no evidence that the email addresses were obtained unlawfully. It is possible that the email addresses were obtained legitimately, for example provided by employees to a delegate or they were collated by an employee with knowledge of his or her colleague's names and the format used by Woodside for employee work email addresses. There is nothing to suggest that the anonymous provision of email addresses suggests a broader breach of data integrity of information such as date of birth.[206]
[306] Even if the email addresses were not obtained legitimately this does not of itself vitiate the Petitions. If an employee objected to Mr Heath contacting them, they could have ignored his email rather than taking the effort to download, complete and return a copy of a signed petition to Mr Heath. As Mr Heath pointed out in cross examination:[207]
"PN911 MR NEIL: When you got answers back you just - to an email that you sent to an anonymously provided work email address, you just assumed that the answers you were getting were from the person who identified themselves to you, is that right?
MR HEATH: It's pretty unusual that somebody would hack into somebody else's email address to respond to an email that I'd sent...
Well, when they sign the bargaining petition and sent them back, somebody signed them and they've come back from either the personal or work email address.
I'm not into the wacky conspiracy theories that one person has invented 100 or 200 email addresses to collate information back to themselves. It just makes absolute no sense."
[307] The Petitions contain multiple data fields. Employees were also provided with the opportunity to complete their Petition using well known and respected identity security software, a majority of whom did so.
[308] In assessing whether it is satisfied of a particular matter, the FWC at most considers whether the material before it establishes on the balance of probabilities that the circumstance is made out. The FWC is not required to exclude any possibility of a different conclusion.
[309] The allegations made by Woodside appears to be entirely speculative. They have tendered no evidence of any person or persons with access to the multiple data fields contained in the Petitions with the motivation to provide such information to the AWU or the MUA. One presumes a multinational employer of Woodside's scale has extensive measures in place to ensure the security of its employee's personal records and the capacity to establish if this privacy has been breached. The limited number of emails expressing a desire not to bargain is not consistent with widescale fraud or in fact any fraud.
[310] As a matter of precaution, I directed Woodside to provide me with the Final List of Employees so that I could match each of the data fields contained in the Petitions. This process identified multiple matching data sets including date of birth, mobile telephone number and personal email address and/or work email address, work site and classification.
[311] In its Closing Submissions, Woodside appear to suggest that my direction that they provided the Detailed List of Employees was bipartisan:
"At that point, the Commission intervened on the side of the AWU to propose, for the first time and at its own initiative that Woodside produce the date of birth, worksite classification, personal email addresses and mobile numbers of relevant employees (Employee Information) so that this information could be cross referenced with the petitions."
[312] Such a suggestion is without basis. The allegation that the Petitions were fraudulently created as opposed to being obtained was not put by Woodside until the first day of Hearing during the cross examination of Mr Heath. This is clear even on the face of Woodside's own submissions.[208]
"First, during the course of the cross-examination of Mr Heath on the first day of the hearing, it became clear that he - and the Commission - could not exclude the possibility that at least some of the petitions had not been completed by the persons whose names appeared on the petitions, due to the absence of any identity verification."
[313] Having been alerted to a new allegation that the Petitions were fraudulently created rather than fraudulently obtained, it was appropriate in carrying out the task required by subsection 237(3) of the FW Act to exercise my power under section 590 of the FW Act to require the production of evidence to enable me to verify the accusation made by Woodside.
[314] Interestingly while Woodside assert that the Petitions were fraudulently created, they resisted my effort to substantiate that allegation:[209]
THE DEPUTY PRESIDENT: Well, that's important to make sure that I've got the accurate information. So does Woodside have any objection to me having that information?
MR NEIL: That would certainly be personal information that - I would need to have a look at our Privacy Act obligation, and I'm not - I'd also need to think about whether it would achieve the purpose.
THE DEPUTY PRESIDENT: Okay, you do that, because that's an order I'm proposing to make and you can make some submissions about that tomorrow."
[315] See also the transcript at PN2739 - PN2773 after it become apparent that privacy arguments could not form basis upon which the direction might be reasonably resisted.
[316] Similarly in its Closing Submissions, Woodside suggest that my direction that evidence be provided in relation to the dates upon which four undated Petitions were received was bipartisan.
[317] Having been alerted to a new allegation, during the course of the Proceedings, that the four Petitions could not be relied upon because they were undated, it was appropriate to exercise my power under section 590 of the FW Act to require the production of evidence to enable me to verify the dates upon which the Petitions were received.
[318] I note that Woodside made no objection to the Direction notwithstanding that they were invited to do so:
THE DEPUTY PRESIDENT: To the extent that the applicant has some evidence of when the undated ones were received, are you able to provide that documentation to the Commission?
MR GIBIAN: We'll make every endeavour we can to do so and I'll report back, Deputy President, if it's convenient, about that process. Only because, standing here now, I don't know who we have to ask or where we get (indistinct) but we'll do that. I assume that there would be an email which would at least provide a date that they were received by the union.
THE DEPUTY PRESIDENT: Okay. If it's tendered to the Commission, it can be done on a redacted basis. To the Commission unredacted, to the other side redacted, for information that would identify the individual.
THE DEPUTY PRESIDENT: Mr Neil, do you have any objection?
[319] In accordance with the direction to do so the AWU provided evidence of the dates upon which the emails to which the undated Petitions were attached were received by Mr Heath. This evidence was supported by the witness statement of Mr Edmonds. Those emails indicated the Petitions in question were returned to Mr Heath on 24 April, 27 April or 9 May.[210]
[320] There is no evidence before me which would cause me to conclude that the four undated Petitions should be considered invalid merely as a consequence of the date being omitted from the Petition in circumstances where an email exists to assist to determine the date on which the Petition was provided.
[321] In its closing submissions, Woodside also submitted that the authenticity of the Petitions could not be assessed because the FWC lacked copies of the employee's signatures against which Woodside would have verified the signatures if it had been given access to the unredacted Petitions.[211]
"[153] The one aspect of the petitions that could, arguably, be employed as probative identity verification in this case is the signatures. However, as discussed in paragraph [177], the Commission does not have the signatures of any Woodside employees before it, and cannot carry out such a cross-referencing exercise.
"[177] By way of illustration, had Woodside been given access to the original, unredacted petitions, it could have analysed the signatures appearing on the petitions against its own records, to the extent they exist, depicting the signatures of employees within the proposed cohort. Currently, there is no material before the Commission that would enable the Commission to verify whether any signature appearing on any petition is in fact the signature of the employee to whom it purports to belong."
[322] Having brought to my attention that it had an additional data source which I could use to verify Woodside's allegation that the Petitions were unreliable and test the AWU's assertion that the Petitions were reliable, I directed Woodside to provide on a confidential basis a copy of any employee signatures that it could produce within a reasonable time. Woodside strongly resisted the order, its representative Mr Longland sending an email to Chambers on 17 January 2023 stating that:
"direction 2, to the extent that Woodside has records of these signatures (which is not yet known), that review will take some time - likely weeks, rather than days, if such records exist at all. No register of signatures exists due to the phasing out of wet signatures a number of years ago, therefore the existence of records is limited, and compliance would require Woodside to review hard copy employment and other documents for all employees, at least some of which are not stored on site."
In light of this response Chambers advised Woodside that a witness statement to this effect would be satisfactory compliance with the direction.
[323] Ms Mussared the Manager Employee and Industrial Relations in a witness statement dated 19 January 2023 confirmed that:
"WEL does not maintain or retain a register of employee signatures."
[324] Woodside also suggested that the absence of the logo of the Offshore Alliance from a Petition is of itself a basis to conclude that the relevant Petition should be considered invalid. I am not satisfied that the omission of the logo of the Offshore Alliance from a Petition is of itself a basis to conclude that the relevant Petition should be considered invalid. The evidence required to establish that a majority support determination should be granted is evidence of employee views. It is not a necessary or practicable requirement that each employee in a cohort completes an identical template Petition or that in fact a template petition must be used.
[325] If Woodside are genuinely concerned that the Petitions do not reflect the actual wishes of its workforce, then a ballot could efficiently and decisively establish this fact, however Woodside have resisted multiple opportunities to allow a ballot to occur. Even one funded by the AWU.
Do the Petitions accurately represent the desires of the Employee Group to commence bargaining - C. Alleged Staleness?
[326] Woodside assert that the Petition evidence does not accurately represent the desires of the Employee Group because the Petition evidence is 'stale'. Woodside assert that the Petition evidence is stale because of:
a. the period of time which has expired since the Petitions were collected;
b. evidence of employees expressing a desire not to bargain; and
[327] The Petitions were collected in the period from 22 April 2022 and 2 June 2022. The Application was filed the following day.
[328] Since the Application was filed delays in determining the Application include:
a. On 30 June 2022 Mr Longland foreshadowed making of an application for an order for production prior to 8 July 2022.[212] Programming of the matter was delayed pending receipt of the foreshadowed application. In the absence of any such application being filed and having considered the parties' submissions with respect to appropriate programming orders, directions were issued to the parties on 12 July 2022.[213]
b. On 15 July 2022, Woodside made the Application to Produce.[214] On 20 July 2022, I issued the Production Decision[215] declining Woodside's Application to Produce. On 21 July 2021 Woodside filed an appeal of the Production Decision.[216] The notice of appeal of the Production Decision sought a stay of the proceedings. The stay was declined by the presiding member of the Full Bench constituted to hear the Production Appeal. On 26 August 2022, a Full Bench of the FWC refused permission for the Production Appeal.[217]
c. On 25 July 2022, Woodside made the Recusal Application. The Recusal Application was listed for a hearing in Perth on 30 August 2022. On 14 September 2022, I issued the Recusal Decision[218] declining Woodside's Recusal Application. On 16 September 2022, Woodside filed a notice of appeal in relation to the Recusal Decision.
d. On 20 September 2022, I extended the timeframes in the Extended Directions. On 20 September 2022, Woodside applied for the vacation of the Extended Directions until the appeal of the Recusal Decision could be determined.[219] On 21 September 2022 the parties were informed by email that I had refused Woodside's application to vacate the Extended Directions but granted Woodside an extension of time to until 23 September 2022 to comply with the Extended Directions.[220]
e. On 21 September 2022, Woodside filed an application to amend the Recusal Appeal to add an appeal against the Vacation Decision. Woodside also sought a stay of the Vacation Decision and the Extended Directions. In light of this, on 23 September 2022 I extended time for Woodside to file its materials until 27 September 2022.
f. On 26 September 2022, the presiding member of the Full Bench constituted to hear the Recusal Appeal conducted a hearing in relation to the stay application made in connection with Woodside's Recusal Appeal. The Presiding Member allowed Woodside's amendment to its notice of appeal, refused Woodside's stay application, and ordered that the Recusal Appeal be expedited so that it would be heard on 21 October 2022.
g. On 29 September 2022, Woodside sought to reagitate its application for production of unredacted copies of the Petitions. In the same correspondence Woodside sought a variation to the Extended Directions to permit it to file further materials after the AWU filed its submissions and evidence in support of the Application.[221]
h. On 10 October 2022, I listed the Application for the hearing of the merits of the Application on 8 November 2022. This hearing date was subsequently changed to 28 November 2022 to accommodate the convenience of Woodside's counsel.
i. Woodside sought and were granted an extension of one week until 27 October 2022 to file its materials in reply.
j. On 25 October 2022, a Full Bench of the FWC dismissed the Recusal Appeal.[222]
k. On Wednesday 2 November 2022, Woodside filed an originating application with the Federal Court, seeking relief under section 39B of the Judiciary Act 1903, and sections 21 and 23 of the Federal Court of Australia Act 1976. The application sought judicial review of the Production Decision, the Recusal Decision and the Recusal Appeal Decision. Woodside also sought an interlocutory injunction restraining me from further dealing with the Application. On 9 November 2022, Woodside requested that I vacate the directions currently in force and refrain from further dealing with the Application, pending the hearing and determination of the Federal Court proceedings. On 23 November 2022, the Federal Court handed down its decision dismissing the stay application.[223]
l. On 1 December 2022, Woodside filed written submissions in relation to the question of the appropriateness of a ballot as a method of determining employee support. At the Hearing on 1 December 2022 Mr Neil indicated that he wished to tender evidence in relation to the issue of the appropriateness of the ballot method of determining employee support and required a further adjournment in order to do so. I therefore granted the parties until 4pm on 7 December 2022 to file any evidence in relation to the question of the appropriateness of a ballot as a method for determining employee support for bargaining.
[329] There would appear to be some injustice in a majority support determination being declined purely due to the passage of time in circumstances in which the delay has been primarily the consequence of the repeated unsuccessful interlocutory and procedural applications and appeals, requests for extensions of time to file materials and requests for adjournments.
[330] The passage of time is, of itself, not fatal for an application for a majority support determination.[224]
"[73] In Transport Workers' Union of Australia v M.J. Rowles Pty Ltd (MJ Rowles), the decision referred to by South32, the Commissioner observed that during the period between the signing of the petition and the application having been made, there had been turnover of employees and others had signed common law contracts. The Commissioner thereafter expressed reservations about the petition process at hearing and made suggestion that a secret ballot would provide a clear expression of the employees' wishes. The parties agreed to such course.
[74] I am unpersuaded that it was simply the passage of time which led the Commissioner in MJ Rowles to express reservations about the acceptance of petitions. The Commission expressly referred to changes in the relevant employee cohort because of turnover and engagement on common law contracts.
[75] South32 concluded that as the petitions were around one year old, they were too historic to constitute probative representation of the current views of employees for the purpose of assessing majority at a point in time. I do not agree.
[76] As identified by the CEPU, South32 has not filed any direct evidence to the effect that the employees who signed the petition no longer want to bargain, and it is after all South32 who has raised this issue regarding the adequacy of the evidence."
[331] In any event even where there is evidence of changes in the makeup of the cohort or of changes in employee views with respect to bargaining that is also not necessarily fatal to an application for a determination. Rather it may be the basis on which the FWC may determine to satisfy itself using a different mechanism than the Petition Method.[225]
[332] Woodside submit that changes in the makeup of the Employee Group cause the Petition evidence to be stale.
[333] According to the Final List of Employees in the period from 22 April 2022 to 2 June 2022 nine employees left the Employee Group by way of resignation, transfer or promotion, none of whom had completed a Petition.[226]
[334] According to the Final List of Employees between 3 June 2022 and 1 December 2022, nine employees left the Employee Group via resignation, transfer or promotion. Only three of these individuals had completed Petitions. During that same period seven individuals joined the Employee Group.
[335] Even if all seven of the new employees did not support bargaining the Petition evidence reveals that a majority of employees as of 1 December 2022 still support bargaining.
[336] Woodside also assert that employee views have changed and rely on the evidence of Ms Manuel that:
"[16] WEL have offered employees a pathway to withdrawing their support for bargaining for an enterprise agreement covering their employment. That pathway has been incorporated into various internal communications to the AWU's proposed cohort, and state:
If you do not want to get into enterprise bargaining, the best thing to do is to send an email to abcduediligence@woodside.com.au. Any information received in this way will be handled sensitively - it can only be viewed by two people in the organisation and we fully intend to keep that information confidential unless you agree otherwise.
All the email needs to say is: I do not wish to bargain for an enterprise agreement to cover my employment. And make sure that your full name is included.
If you're not comfortable doing this, please speak to your OIM for guidance on the best way forward. And you're always welcome to contact me.
I am informed that the current number of emails received at the above address is 13."
[337] Woodside were directed to file copies of the emails referred to by Ms Manuel. A review of those emails reveals that:
a. Two of the emails were sent by the same employee.
b. One email does not state that the employee does not wish to bargain. Rather the email informs Woodside that the employee had contacted the union and requested that they be removed from the union's mailing distribution list.
c. One email comes from an individual not included in Woodside's Final List of Employees.
d. One email is from an employee who left the Employee Group in May 2022.
e. Only two are from employees who completed Petitions.
[338] Notwithstanding efforts by Woodside to convince its workforce that they should not support collective bargaining, including providing employees with a confidential email address to express their views, the evidence is that as of 27 October 2022 only two employees have changed their mind about whether they support bargaining.
[339] Excluding the two Petitions filed by individuals who subsequently indicated to Woodside that they did not wish to bargain the Petition evidence reveals that a majority of employees as of 1 December 2022 still support bargaining.
[340] In satisfying itself that there is majority support for enterprise bargaining the FWC must determine by reference to time the cohort of employees from which the views of the majority is to be determined.[227]
[341] Where there is a highly casualised workforce, the authorities recognise that the meaning of 'time' in the context of s 237(2)(a)(i) can mean a period of time rather than single date (Relevant Period).[228]
[342] Once the Relevant Period has been fixed, the FWC must then determine which employees are or were employed during the period and then whether, at the time of making its decision, a majority of those employees wish to bargain.[229]
[343] The AWU submits that for the purposes of s 237(2)(a)(i), the time determined by the FWC should be the date that the AWU stopped collecting petitions. The AWU collected bargaining petitions from employees between the dates of 22 April 2022 and 2 June 2022 and made the Application the following day on 3 June 2022.
[344] Woodside submit that the date should be 1 December 2022.
[346] I am satisfied that it is appropriate to set the time for the purposes of s 237(2)(a)(i) as 2 June 2022 because this fixes the cohort of employees from which majority support must be determined to a point in time when the employee cohort was the same as when the AWU collected petitions. This is inherently fair and will achieve the purpose of the provision.
[347] Having set the date as of 2 June 2022, it is necessary to take into account the submissions and evidence of the parties as to any changes to the workforce or attitudes of the workforce toward bargaining in the period between the filing of the Application and the making of this decision.
[348] According to the Final List of Employees between 3 June 2022 and 1 December 2022, nine employees left the Employee Group via resignation, transfer or promotion. Only three of these individuals had completed Petitions. During that same period seven individuals joined the Employee Group. The change in the makeup of the Employee Group has therefore been relatively minor. Even if all seven of the new employees did not support bargaining the Petition evidence reveals that a majority of employees as of 1 December 2022 still support bargaining.
[349] Notwithstanding efforts by Woodside to convince its workforce that they should not support collective bargaining, including providing employees with a confidential email address to express their views, the evidence is that only two employees who had completed a Petition have changed their mind about whether they support bargaining.
[350] Of the remaining emails received opposing bargaining one employee has since left the Employee Group and one is not identified by Woodside as ever having been within the Employee Group.
[351] The limited number of emails expressing an opposition to bargaining causes me to believe that employee views have not changed significantly since 2 June 2022.
Is it reasonable in all the circumstances to make the Determination?
[352] Before making a determination the FWC must be satisfied that it is reasonable in all the circumstances to do so**.**
[353] The AWU submit that it is reasonable to do so because a majority of the Employee Group have indicated by way of Petition that they wish to engage in collective bargaining with their employer rather than negotiate their employment conditions individually with their employer.
[354] Woodside submit that it is not reasonable to do so because the Petition evidence that a majority of the Employee Group wish to bargain is unreliable because of the alleged misrepresentations, because Petitions lack integrity and because the Petition evidence is now 'stale'.
[355] Woodside assert that negotiating individually with its employees in the manner in which it has for the last thirty years has delivered superior outcomes to its workforce. It insists that it is unfair that it should not be permitted to continue to operate outside the statutory bargaining scheme.
[356] Woodside also submit that it would be unreasonable to make the Determination because statements made by the Offshore Alliance and its officials are inconsistent with the objects of the FW Act which seek to promote harmonious workplace relations and because the AWU did not earlier disclose that it received email addresses anonymously.
[357] Woodside provided the Employee Group with its views as to why the workforce should not press for bargaining to commence. See for example the notice issued by Woodside in July 2022 to the Employee Group setting out the reasons why Woodside did not wish to commence bargaining for a collective agreement and asserting that the Offshore Alliance had falsely asserted that the INPEX EBA provided superior conditions.[233]
[358] The Directions also required Woodside to provide copies of its evidence and submissions in these proceedings to the Employee Group.
[359] To the extent that any member of the Employee Group was misled or deceived by the AWU or its officials those employees have now for many months been in possession of information from Woodside to 'correct' any misconception or confusion.
[360] Employees have had the opportunity to retract their Petition and/or declare that they do not wish to bargain to Woodside, the AWU or to Chambers. Only two employees who signed Petitions have informed Woodside, the AWU or Chambers that they no longer wish to bargain.
[361] Woodside did not call as witnesses any employee who claimed to have been forced, misled or deceived into signing a Petition not withstanding having knowledge of the identity of at employees who did not wish to bargain.
[362] The evidence does not support an assertion that the Petition evidence is stale either by way of evidence of a change in the makeup of the cohort or a change in employee views. Of the 18 employees who have left the cohort, only 3 had filed Petitions. Only 7 employees have joined the cohort. The majority is not so small that even if each new employee who joined the cohort was not in favour of bargaining, the majority would be lost. Only two employees who signed Petitions have informed Woodside, the AWU or Chambers that they no longer wish to bargain.
[363] In all the circumstances I am satisfied that the Petition Method is an appropriate method to work out whether a majority of the Employee Group wish to bargain with Woodside for the Proposed Agreement.
[364] The fact that Woodside prefer to negotiate individually with its workforce does not weigh against the granting of the Determination. In fact, this is the precise reason why the statutory power to make the Determination exists, to compel employers who would prefer not to negotiate collectively to do so.
[365] Nor does Woodside's assertion that it offers employees 'industry leading terms and conditions' weight against granting the Determination. As noted in CFMEU v CBI Constructions[234]:
"... These terms and conditions, CBI argues, are current and competitive. The assertion seems to be that as the actual terms and conditions are current and competitive then that is not reasonable in all the circumstances for me to make the MSD. This to me seems to misunderstand the nature of bargaining and the role of FWA in MSD applications. It is not for FWA to make any judgments at all about the appropriateness or otherwise of the terms and conditions applying or of any sought, particularly at this juncture. FWA's role is limited to ascertaining whether a majority wanted to bargain for an enterprise agreement that would cover them."
[366] The granting of a determination does not require the parties to conclude an agreement. If Woodside's current model for determining terms and conditions of employment does in fact produce superior outcomes as asserted by Woodside, then the workforce are unlikely to vote to approve any proposed agreement.
[367] It is to be expected that bargaining in a hotly contested industrial environment will often be robust. Aspects of communications by both Woodside and the AWU to date might be characterised as emotive and hyperbolic and unhelpful in achieving the object of the FW Act to establish harmonious workplaces. A workforce should not be denied its statutory right to press for collective negotiations because of the conduct of a union or an employer. Once bargaining commences, if the bargaining parties behave in a manner contrary to the good faith bargaining requirements, then remedies are available under the FW Act.
[368] The AWU have standing to make the Application. The Application was made in accordance with section 236 of the FW Act.
[369] I am satisfied that the Employee Group is fairly chosen.
[370] In all the circumstances I satisfied that the Petition Method is an appropriate method to work out whether a majority of the Employee Group wish to bargain with Woodside for the Proposed Agreement.
[371] On the evidence before me I am satisfied that a majority of the Employee Group employed as of 3 June 2022 want to bargain with Woodside for the Proposed Agreement.
[372] Taking into account the submissions of the parties including evidence of changes in the make up of the Employee Group and changes in the views of employees with respect to bargaining, it is reasonable to make the Determination.
[373] The Determination will come into operation on the date this Decision is published.
[374] An order to this effect will issue with this Decision.
Applicant's final written submissions 12 December 2022
Respondent's final written submissions 19 December 2022
Applicant's final written submissions in reply 22 December 2022
[1] Digital Court Book (DCB) 102-103.
[12] Australian Workers Union v Woodside Energy Ltd [2022] FWC 1892.
[16] Woodside Energy Limited v Australian Union of Workers [2022] FWCFB 168.
[24] Woodside Energy Limited v Australian Union of Workers [2022] FWCFB 192.
[27] Woodside Energy Limited v Australian Workers Union [2022] FCA 1391.
[29] Woodside Energy Limited v Australian Workers Union (n 27) at [63].
[31] Warrell v Walton [2013] FCA 291; (2013) 233 IR 335, 341 [22].
[83] [2009] FWAFB 668 at [25].
[84] Fair Work Act 2009 (Cth) (FW Act) s.236(1).
[88] Woodside Energy Ltd v Australian Workers Union (n 24) at [42].
[90] Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd (2009) 191 IR 124.
[92] Construction, Forestry, Mining and Energy Union v Alcoa of Australia Ltd [2014] FWC 7123 citing Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206; [2012] 219 IR 139; Cotton on Group Services Pty Ltd v National Union of Workers [2014] FWCFB 8899.
[93] QGC v The Australian Workers' Union [2017] FWCFB 1165; (2017) 268 IR 241 at [44].
[96] See, for example, Australian Workers' Union v Alsco Pty Ltd [2021] FWC 1680 at [24]- [26].
[97] Construction, Forestry, Mining and Energy Union v Alcoa of Australia Ltd [2014] FWC 7123 citing Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206; [2012] 219 IR 139; Cotton on Group Services Pty Ltd v National Union of Workers [2014] FWCFB 8899.
[98] Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union (n 97) at [8]; Alcoa of Australia Ltd v CFMEU [2015] FWCFB 1832 at [24].
[99] INPEX Australia Pty Ltd v The Australian Workers' Union [2021] FWCFB 1038 at [33].
[100] National Union of Workers v ePharmacy Pty Ltd [2015] FWC 3819.
[102] CFMEU v ResCo Training and Labour Pty Ltd [2012] FWAFB 8461; (2012) 228 IR 5 at [35].
[105] DCB (n 1) 403, Transcript PN626.
[108] Woodside's own evidence is that only 10% of Supervisors have worked on different assets in the last five years. It is unclear whether that figure includes supervisors transferring between offshore facilities. Woodside has provided no evidence with respect to supervisors moving between business entities. See DCB (n 1) at 488.
[113] Mr Ramsden acknowledges that this is part of a Superintendents role see DCB at 497.
[114] Mr Ramsden acknowledges that this is part of a Superintendents role see DCB (n 1) at 497.
[115] This is consistent with the evidence of Mr Ramsden at DCB (n 1) 334.
[125] Ibid 328-331, 495, Transcript PN2922-2943.
[127] Transcript PN2616 and PN2635-PN2641.
[130] Cimeco Pty Ltd v CFMEU (n 98) at [20]; Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union [2017] FWCFB 5826, [26].
[131] Cimeco Pty Ltd v CFMEU (n 98) at [21], Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union [26].
[132] Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union [2017] FWCFB 5826, [26].
[133] Construction, Forestry, Mining and Energy Union v Alcoa of Australia Limited (n 92)citing Cimeco [21].
[134] Hydrocarbons Industry (Upstream) Award 2020, Schedule A clauses A.4.5, A.4.6 and A.4.7.
[136] Ibid 325; Transcript PN2674-PN2675.
[138] Ibid 492-493; Transcript PN 2676-PN2679 and PN2685-PN2687.
[140] Ibid 492; Transcript PN 2676-PN2679.
[141] Automotive, Food, Metals, Engineering Printing and Kindred Industries Union v Veolia Water Operations Pty Ltd [2015] FWC 2561.
[142] Woodside Closing Submissions filed on 19 December 2022 at [189].
[152] National Union of Workers v Lovisa Pty Limited (n 146).
[154] Enterprise Flexibility Agreements Test Case (1995) 59 IR 430 at 445.
[155] Enterprise Flexibility Agreements Test Case (1995) 59 IR 430
[156] INPEX Australia Pty Ltd v The Australian Workers' Union [2020] FWCFB 5321; (2020) 301 IR 424.
[159] National Union of Workers v Lovisa Pty Limited (n 146) at [58].
[160] CFMEU v MacKellar Mining Pty Ltd (n 148).
[161] Woodside Closing Submissions filed on 19 December 2022 at [177].
[162] Esso Australia Pty Ltd v. AWU and Ors [2017] FWCFB 2200.
[163] Woodside Closing Submissions filed on 19 December 2022 at [177].
[165] CEPU v South32 Worsley Alumina Pty Ltd [2021] FWC 3784 at [127].
[166] Transcript PN3268-PN3274, PN3412-PN3423.
[167] CEPU v South32 Worsley Alumina Pty Ltd (n 165).
[169] The AWU provided an explanation of the basis of these posts in the Annexure to their Closing Submissions filed on 12 December 2022.
[170] DCB (n 1) 53; Transcript PN3948-PN3956.
[178] DCB (n 1) 44; Transcript PN3778-PN3787.
[186] Transcript PN3507-PN3523 and Transcript PN3644-PN3665.
[197] CFMEU v MacKellar Mining Pty Ltd (n 148).
[202] Ibid 102, Transcript PN777-PN783, PN770-772.
[205] Woodside Closing Submissions filed on 19 December 2022 at [115]-[116].
[208] Woodside Closing Submissions filed on 19 December 2022 at [74].
[211] Woodside Closing Submissions filed on 19 December 2022 at [153] and [177].
[215] Australian Workers Union v Woodside Energy Ltd (n 12).
[217] Woodside Energy Limited v Australian Union of Workers (n 16).
[218] Woodside Energy Limited v Australian Union of Workers (n 17).
[222] Woodside Energy Limited v Australian Union of Workers (n 24).
[223] Woodside Energy Limited v Australian Workers Union (n 27).
[224] CEPU v South32 Worsley Alumina Pty Ltd (n 165) at [73]-76].
[225] NUW v Cotton On Group Services Pty Ltd [2014] FWC 6601 at [36].
[226] This evidence differs from information provided by Woodside in Exhibit R6. I have assumed that contained in the Final Employee List as the most recent data is the most accurate.
[227] Kantfield Pty Ltd v AWU [2016] FWCFB 8372 at [35].
[228] See NUW v Lovisa (n 146) at [36] which was adopted in AWU v Legeneering Australia Pty Ltd [2020] FWC 4138.
[229] Kantfield Pty Ltd T/A Martogg & Company v The Australian Workers' Union [2016] FWCFB 8372; (2016)
[230] CEPU v South32 Worsley Alumina Pty Ltd (n 165) at [71].
[231] Kantfield Pty Ltd v AWU (n 227) .
[232] National Union of Workers v Lovisa Pty Limited (n 146).
Printed by authority of the Commonwealth Government Printer
Australian Workers' Union, The
Woodside Energy Ltd [2023] FWC 249
(2013) 233 IR 335
(2009) 191 IR 124
(2017) 268 IR 241
(2012) 228 IR 5
(1997) 73 IR 311
(1995) 59 IR 430
(2020) 301 IR 424
(2016)
266 IR 1