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[53]
[2020] FWC 6904
General information, not legal advice.
Fair Work Commission
2020-12-18
Original judgment source is linked above.
s.437 - Protected action
Proposed protected action ballot of employees of Applus Pty Ltd.
[1] The Australian Workers' Union (AWU) has applied to the Fair Work Commission (FWC) for a protected action ballot order (Application) pursuant to section 437 of the Fair Work Act 2009 (Cth) (FW Act).
[2] The Application was supported by a statutory declaration from Mr Douglas Heath, Offshore Alliance Organiser, AWU.
[3] The Application seeks an order for a ballot to be conducted of employees from Applus Pty Ltd (Applus) who perform work on facilities owned or managed by Woodside Energy Limited in the following classifications and are represented by, or members of, the AWU (Employees):
AICIP Plant Inspectors (including AICIP, API and ASME);
[4] On 18 December 2021, Applus notified Chambers they did not oppose the issuing of an Order on modified terms agreed with the AWU.
[5] Applus provides testing, inspection and certification services in support of capital assets and infrastructure operated by its clients, principally in the industries of oil and gas, construction and mining.
[6] The Employees to be balloted perform non-NDT services at Woodside Energy Ltd (WEL) offshore and onshore oil and gas facilities. Offshore are two fixed platforms, two unmanned plaftorms and two floating production facilities (Pluto and Angel). Onshore are the Pluto Facility and the LNG Facility.
[7] Applus provide services that assist WEL to meet its safety and regulatory obligations by assessing asset integrity and providing assurance that the asset is safe to operate. For example:
[8] The oil and gas industry is a high risk environment, and all WEL facilities onshore and
offshore at which Applus provides services are deemed to be 'major hazard facilities'. WEL rely on Applus services to ensure their facilities are safe to operate and that they are meeting their ongoing statutory and regulatory requirements with respect to safety, and this includes when the regulator (NOSPEMA) issues a direction to address a fault or defect at short notice.
[9] There is a high demand for the services that Applus provide and Applus has exclusively provided these asset integrity and testing services to WEL since 1989. There has been an increase in the number of oil and gas facilities in Western Australia since this time, which has also resulted in a greater demand for personnel who can perform the asset integrity and testing services Applus provide. The supply of these personnel in the Western Australian market has not been matched by the demand.
[10] The FWC is obliged to issue a protected ballot order in the following circumstances:
"443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
[11] Section 437 relevantly provides as follows:
"437 Application for a protected action ballot order
Who may apply for a protected action ballot order:
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) If A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
(6) The application must be accompanied by any documents and other information prescribed by the regulations."
[12] It is not in dispute that the AWU has standing to make the Application in its capacity as a bargaining representative. The notification time in relation to the Proposed Agreement is 30 July 2020. The Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement.
[13] The Application specifies the group of employees who are to be balloted.
[14] The AWU have proposed that the Democratic Outcomes Pty Ltd, T/A CiVS conduct the ballot.
[15] The Application specifies the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
[16] The Application was accompanied by the documents and other information prescribed by the Fair Work Regulations 2009 (Cth).
[17] I am therefore satisfied that the Application has been made in accordance with section 437 of the FW Act.
[18] The FWC may only make the order sought if the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
[19] The reference to the FWC being "satisfied" means that determining whether or not the requisite circumstance exists is a discretionary decision. The expression "has been, and is", imports temporal considerations, both of which are to be considered. An applicant for a protected action ballot order must satisfy both.
[20] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers' Union [1] the Full Bench stated:
"Whether an applicant 'has been, and is, genuinely trying to reach an agreement' is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad" [2] (references omitted)
[21] In Total Marine Services Pty Ltd v Maritime Union of Australia [3] a Full Bench of Fair Work Australia relevantly stated:
"[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement..."
[22] Both decisions stand for the proposition that a decision rule should not be adopted for the purposes of determining whether an applicant for a protected action ballot order has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The entirety of the circumstances of the case must be taken into account.
[23] The AWU provided evidence of the steps taken by them to bargain and of the progress of bargaining to date.
[24] In all of the circumstances I am satisfied that the AWU has been, and is, genuinely trying to reach an agreement with Applus.
[25] Pursuant to section 414 of the FW Act, where an employee is to engage in protected industrial action, their bargaining representative must give written notice of the action. Section 414(2) of the FW Act requires three working days' notice, or any longer period specified in the protected action ballot order.
[26] Applus submit that if an order is to be made that the FWC should exercise its discretion to increase the subsection 414(2)(a) notice period of three working days.
[27] Section 443(5) of the FW Act provides that:
"If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days."
[28] This requires consideration of[4]:
whether the circumstances are 'exceptional';
whether the 'exceptional circumstances' justify a requirement of notice longer than the statutory default; and
what the period of notice should be up to a maximum of seven days.
[29] The determination of whether the circumstances of a particular case are 'exceptional' involves an evaluative judgement of those circumstances. Circumstances may be "exceptional" if they are out of the ordinary course, unusual, special or uncommon. They need not be unique, unprecedented, rare, or unexpected. For this purpose, "circumstances" may include a combination of factors which together produce a situation which is out of the ordinary course, unusual, special or uncommon, notwithstanding that none of them taken in isolation would be "exceptional".[5]
[30] Determining whether the "exceptional circumstances" justify a requirement of notice longer than the statutory default inevitably requires balancing the interests of the employer and third parties in having a greater opportunity to take defensive action, against those of the employees which may be adversely affected by a diminution in the effect of their industrial action, and hence their bargaining power.
[31] Having concluded that particular circumstances are exceptional and that they justify a requirement of a notice period longer than the statutory default, a Member must decide whether to exercise their discretion to grant an additional period of notice and determine how long that period should be. [6]
[32] Applus provided evidence in support of its assertion that exceptional circumstances currently exist which justify a requirement for a longer notice period.
[33] Applus say that a period of three days' notice is not sufficient for it to adequately respond to any form of industrial action because of the nature of the industry it operates in, the nature of the work it undertakes and the statutory and regulatory framework it which it undertakes its work in. In particular:
[34] Applus submit that it is therefore crucial that it be provided with sufficient notice to mobilise additional labour if necessary. The ability to do so in a three day timeframe is significantly hampered by on-going skill shortages, international and interstate border restrictions due to COVID-19 and mandatory induction requirements imposed by both WEL and Applus.
[35] Since the start of this year, over 50% of Applus personnel have been based in the Eastern States of Australia. The travel restrictions on international and interstate travel due to the global pandemic has impacted on the number of personnel Applus can mobilise to provide the services required at the WEL facilities.
[36] The recent New South Wales and South Australia border closures at short notice highlights the difficulties Applus has faced in mobilising workers to site and has also meant that some workers who would be able to travel interstate have been reluctant to do so because of the risk they may get locked out of their home state.
[37] Applus say that if only three days' notice was provided to it prior to the protected industrial action being taken, this would be an insufficient amount of time for Applus to engage with WEL on the need to mitigate the impact on industrial action on meetings its safety and regulatory requirements.
[38] In managing these statutory and regulatory requirements, Applus would need to:
[39] To mitigate risks of a statutory or regulatory breach and aggravating dangerous safety hazards as a result of any failure to perform safety critical work, Applus would need to:
[40] Applus say that these processes cannot be fulfilled in three days and if no employee can perform the safety critical work while protected action is being taken, the consequences would be catastrophic. For the above reasons Applus say that it would need seven days at least to work with WEL to put in place appropriate mitigation strategies to deal with the protected action such that WEL does not breach its regulatory and statutory requirements and to mitigate the safety risks identified above.
[41] While each case needs to be considered on its facts, characteristics of off-shore workplaces, particularly in the hydro-carbon industry, have been previously -held by the FWC to be exceptional as compared to other Australian workplaces.[7] This has been the case even where the ballot questions include safety related exclusions, as is the case in this Application.[8]
[42] With the advent of the COVID-19 pandemic and related restrictions, the ability to respond within three days to any form of industrial action is further compromised.
[43] I am satisfied that the nature, and potential impact, of the proposed industrial action in light of the current COVID-19 pandemic is such that exceptional circumstances do exist justifying the extension of the notice period. In light of the evidence before me I have decidedto exercise my discretion to grant an extension of the notice period. I am satisfied that an extension of the notice period from three working days to seven working days is appropriate in all the circumstances.
[44] Having been satisfied that the requirements of section 443 and 437 of the FW Act have been complied with, the Application is granted and a protected action ballot order shall be issued in PR725641.
[4] National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011 at [23]- [25]
[5] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia v Australian Postal Corporation (2007) 167 IR 4; [2007] AIRC 848 at [10]; accepted as a correct statement of the law in Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99 at [7]- [8].
[6] National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011 at [25]
[7] See for example AMWU v Skilled Offshore Pty Ltd [2015] FWC 6727 (Gostencnik DP), upheld on appeal in Skilled Offshore Pty Ltd v AMWU [2015] FWCFB 7399; CEPU v M Maintenance Pty Ltd (2019) PR710683; AWU v Sodexo Remote Sites Australia Pty Ltd [2020] FWC 2012 (Platt C); AWU v Sodexo Remote Sites Australia Pty Ltd [2020] FWC 3583 (Anderson DP) and PR720839.
[8] See AMWU v Skilled Offshore Pty Ltd [2015] FWC 6727 (Gostencnik DP); CEPU v M Maintenance Pty Ltd (2019) PR710683; AWU v Sodexo Remote Sites Australia Pty Ltd (2020) PR720839
Printed by authority of the Commonwealth Government Printer
The Australian Workers' Union
Applus Pty Ltd [2020] FWC 6904
(2007) 167 IR 4