Fair Work Act 2009

s.437 - Protected action

Proposed protected action ballot of employees of Jadestone Energy (Australia) Pty Ltd.

[1] The Australian Workers Union (the AWU) has applied under s. 437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order. The application is in relation to employees of Jadestone Energy (Australia) Pty Ltd (Jadestone or the Respondent) who are members of the AWU. Jadestone object to the application on a number of grounds.

[2] At the hearing evidence was given by Mr Douglas Heath (Mr Heath) of the AWU and Mr Owen Hobbs (Mr Hobbs), the Country Manager of Jadestone.

[3] Jadestone is an oil company with two operating sites in Australia. One of the operating sites is the Montara Venture Floating Production, Storage and Offtake facility (FPSO). The Montara Venture FPSO is located approximately 690 km west of Darwin, 630 km north of Broome and 250 km north-west off the Kimberley coast of Western Australia.

[4] The AWU previously applied for a Protected Action Ballot Order (PABO), B2020/507, concerning Jadestone and the same employees that this application concerns. This first PABO was also opposed by Jadestone and was heard by Deputy President Beaumont who issued an order for a protected action ballot on 4 September 2020 [PR722512] and a subsequent correction order on 6 September 2020 [PR722552]. Reasons for decision were issued on 7 September 2020 [ [2020] FWC 4741].

[5] The Australian Electoral Commission undertook the ballot and issued a declaration of results on 15 October 2020 which shows that a majority of the balloted employees where in favour of taking the particularised protected industrial action.

[6] The first PABO was the subject of an application, B2020/685, to extend its period of operation for a further 30 days. On 19 November 2020 Deputy President Beaumont issued an order extending the 30 day period arising from B2020/507 for a further 30 days [PR724685].

[7] The AWU have taken protected industrial action arising from B2020/507 on 2 December 2020 and 11 December 2020. The industrial action taken were four-hour strikes/stoppages of work.

[8] The AWU also gave notice of industrial action, to be a further four-hour stoppage on 18 December 2020, but withdrew this notification on the morning of 18 December 2020.

[9] Jadestone oppose the issuance of this second PABO sought in this application, B2020/851, that could operate in addition to the extant PABO, B2020/507, and so possibly allowing additional forms of protected industrial action to be taken.

[10] There is no dispute of substance as to the history of negotiations involving multiple meetings between the AWU and Jadestone over 2020.

[11] Jadestone, unsurprisingly, do take issue with some of the derogatory comments made and bad language used by Mr Heath in some of the meetings.

[12] Mr Heath's evidence which I accept is that the AWU members working for Jadestone have requested the AWU apply for a second PABO because they desire additional forms of protected action to be able to apply more industrial leveraged to advance their bargaining claims. He says the members believe the specific work bans they have proposed will be more effective than the work stoppages which is all they are currently able to engage in under the previous PABO.

[13] I accept Jadestone and its employees do not prepare, nor do they discharge offtake vessels. Offtake vessels are contracted third-party vessels that discharge their cargo at a port of receival point designated by Jadestone's customers. Jadestone is not involved in this process.

[14] The Montara Venture FPSO is a very remote facility and pre-COVID 19 would typically require all rostered employees to gather in Darwin on a Monday afternoon/evening, followed by a private charter fixed-wing flight of just over an hour duration early Tuesday morning to the isolated Truscott Airbase, whereby a transfer is made to a helicopter for the approximate 75-minute flight to the facility.

[15] I accept the evidence of Mr Hobbs that the COVID-19 pandemic and the need to mitigate its impact has caused significant changes to the operations on the Montara Venture FPSO including,

1. Variation of the operational roster, balancing both employee and operational needs, across quarantine, available work time and recovery time.

2. Having to quarantine the non-WA based employees for 14 days prior to mobilising to the Montara Venture FPSO, (70% of the Montara Venture FPSO workforce are from non-WA locations), due to border controls instituted by the Western Australian government.

3. Travel and logistical changes occasioned by the border controls instituted by the Western Australian government, including changing the commute hub from Darwin to Perth and special charter flights.

[16] The evidence is that the Western Australian government continues to hold the position that it will not hesitate to impose border controls with other states at short notice if the health advice recommends this. Indeed, it has taken this action in the recent past. The Western Australian government itself recognises that this will cause frustration and uncertainty for some people.[1]

[17] The AWU's submission that the Western Australian government has recently eased quarantine requirements is not correct.

[18] In response to the Respondent's submissions regarding question 1 of this application, the AWU does not concede this question is vague, imprecise or misleading. However, in the interests of improving clarity, the AWU requests permission from the Commission to amend the application in accordance with s.586 of the Act in the following manner:

• remove question 1; and

• replace it with the following, more specific questions, which are specific tasks that the relevant employees perform in preparation for offshore support vessels and offtake tankers:

"An unlimited number of bans for an indefinite period on the transfer of the static tow line by crane from the Montara Venture FPSO to an Offshore Support Vessel?

An unlimited number of bans for an indefinite period on the transfer of the tanker box from the Montara Venture FPSO to an Offshore Support Vessel?

An unlimited number of bans for an indefinite period on the deployment of the Montara Venture FPSO hawser to an offtake tanker?

An unlimited number of bans for an indefinite period on the deployment of the Montara Venture FPSO floating hose to an offtake tanker?"

[19] Sections 437 and 443 of the Act are relevant to this application and are set out below.

"437 Application 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:

(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) 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."

"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:

(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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(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."

[20] The AWU submits that considering the steps taken by the AWU in order to try and reach agreement, including both clearly articulating all AWU claims and providing a considered response to any demands made by the Respondent, the Commission can be satisfied that the AWU has been and is genuinely trying to reach agreement with the Respondent.

[21] It is submitted the group of employees to be balloted is clear. The wording used on the application is the same as that which appears on the previous protected action ballot order made by Deputy President Beaumont on 4 September 2020. The AWU intends to ballot this same group of employees, who are the employees that will be covered by the proposed agreement and are represented by the AWU.

[22] The AWU submits that each ballot question articulated in this application adequately describes the action in a way that AWU members are capable of responding to it and is sufficiently clear so that the members can make an informed choice as to whether endorse that action or not.

[23] In accordance with s.444 of the Act, the AWU has specified Democratic Outcomes Pty Ltd T/A CiVS (CiVS) as the balloting agent that the AWU wishes to be the protected action ballot agent for this application.

[24] In support of the Commission being satisfied that CiVS is a fit and proper person to conduct the ballot, the AWU has attached the Agent Declaration to the application for the PABO.

[25] Mr Mike Michael (Mr Michael), the declarant of the Agent Declaration, has previously been found by the Commission to be a fit and proper person to conduct a protected action ballot based upon Mr Michael's declared education, experience and attributes.

[26] In response to the Respondent's submission that there is no authority for a bargaining representative to have multiple PABOs against the same employer regarding the same set of facts, the AWU submit not only is that submission entirely irrelevant in regard to the requirements of the Act, but it is also incorrect. The Respondent's submission is irrelevant because the role of the Commission in considering an application for a PABO is established by the terms of the Act and the Act presents no bar to a bargaining representative applying for more than one PABO for the same group of employees.

[27] The AWU notes the Commission has granted PABO applications for bargaining representatives in circumstances where an extant ballot for the same group of employees has authorised the taking of protected action and that protected action is being or could be taken. For example, Commissioner Hampton held that the Commission was obliged by s.443(1) of the Act to issue a PABO in AFAP v Royal Flying Doctor Service of Australia Central Operations [ [2015] FWC 531] (the AFAP Decision) in circumstances where an extant ballot authorised the taking of industrial action which was continuing at the date of a subsequent PABO application being filed by the AFAP. Similar to the AWU application, the AFAP applied to have the period for the taking of the protected action extended by the Commission and this was granted.

[28] In fact, the AFAP Decision establishes that during the negotiations, the AFAP applied for and was granted three separate PABO applications and two extensions pursuant to s.459(3) of the Act for the same group of employees.

[29] The Respondent submits that in a previous application, the Commission was satisfied that an extended notice period was justified. The AWU does not contest this, however, it submits this was on the basis of the imposition of quarantine requirements by the Western Australian government, which the AWU notes have recently been eased.

[30] Jadestone submits that application B2020/851 is an abuse of process and an attempt by the AWU to re-litigate B2020/507.

[31] Jadestone further submits that there is a public interest in having finality in litigation and any proceedings in relation to B2020/851 would be against the principle of finality of litigation. Jadestone notes the decision of the Full Bench of the then Australian Industrial Relations Commission in Spotless Services Australia Ltd v Wookey and Another [PR929400](the Wookey Decision) which endorsed this principle.

[32] Jadestone further submit that there is no authority for the proposition that an applicant union can have multiple PABOs against the same employer regarding the same set of facts. The AWU have a current PABO against Jadestone and should not be permitted to seek further PABOs.

[33] As part of application B2020/507 before Deputy President Beaumont the AWU initially set out that they intended to ballot 41 employees. This was amended during the proceedings when the AWU advised in their outline of submissions at paragraph 18 that they did not seek to cover Deck Officers or employees in leadership roles.

[34] Following a further telephone conference on 15 September 2020 before Deputy President Beaumont there were 35 employees identified by the Fair Work Commission that were eligible to vote on the PABO application.

[35] As part of this application B2020/851 the AWU have set out that they seek to have "approximately 45" Jadestone Montara Venture FPSO employees balloted as part of this application. The AWU do not spell out which employees would be balloted or how the list of employees determined by the Fair Work Commission in B2020/507 has grown from 35 to "approximately 45".

[36] The PABO issued arising from application B2020/507 required the AWU to provide seven working days' notice of any industrial action. The draft PABO appended to this application would require the AWU to give only three working days' notice of any industrial action.

[37] Given the remote location of the Montara Venture FPSO and the limited options that Jadestone has to transport people and goods between the Montara Venture FPSO and the Australian mainland as well as the operational issues that would be created by the imposition of the industrial action sought by the AWU, it is in Jadestone's submission entirely reasonable that the AWU be required to give seven days' notice of any industrial action.

[38] Jadestone submits that several of the questions that the AWU wishes to put to the cohort of Jadestone Montara Venture FPSO employees they represent are ambiguous and do not place the employees in a position to make an informed choice about the type of protected industrial action they are voting to take.

[39] Jadestone object to the application on the basis that this application is relitigating the matters dealt with by Deputy President Beaumont in the first PABO application. It is submitted this should not be allowed by the Fair Work Commission because there is an expectation of certainty and finality in litigation.

[40] My view of that argument is that the principle on which Jadestone rely is not directly applicable to a PABO application.

[41] A PABO application is not under the Act a contest between the applicant employee bargaining representative and the employer of the employees who may be balloted.

[42] Sections 437 and 443 of the Act are found within Division 8 - Protected action ballots of the Act. Section 436 of the Act prescribes the objects of this Division as follows.

"The object of this Division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement"

[43] The Fair Work Commission's role is to ensure that the process to determine whether employees wish to engage in particular protected industrial action is consistent with the prescribed requirements of the Act.

[44] The majority of applications made under section 437 of the Act do not involve any submissions being made by the employer of the employees to be balloted.

[45] Applications under section 437 of the Act are not properly characterised as litigation in the usual sense let alone litigation between the employee bargaining representative and the employer of the employees to be balloted.

[46] Jadestone relies upon the Wookey Decision. In that decision the Full Bench considered the authorities dealing with the question of when a member of the tribunal may be "functus offico" and from those authorities distilled a number of considerations as follows,

"[30] From our examination of the authorities we derive the following considerations:

• the act of re-opening a case is an exceptional step;

• whether or not a decision of an administrative tribunal means that the power to make a decision is spent will depend on the legislation under which the decision-maker is acting;

• a tribunal cannot revisit its own decision because it has changed its mind or recognises it has made an error within jurisdiction or because there has been a change of circumstances;

• the principle of "functus officio" should not be strictly applied if the tribunal has failed to discharge its statutory function;

• the jurisdiction to re-open after judgment is discretionary and is to be exercised having regard to the public interest in maintaining the finality of litigation;

• misapprehension of the facts or the law cannot be attributed solely to the applicant's neglect or default;

• it is preferable if a single judge rectifies a decision that has miscarried rather than an appeal court;

• circumstances can arise where a rigid approach to the principle of "functus officio" is inconsistent with good administration and fairness;

• if an administrative error is made the tribunal should not be bound by technicalities or legal forms and should act according to substantial justice;

• the principle of "functus officio" should be applied more flexibly and less formally in respect of decisions of administrative tribunals which are subject to appeal only on a point of law; and

• if a jurisdictional error is made there is no legal impediment under the general law to a decision-maker making such a decision."

[47] Having regard for these considerations and their application to the matter currently before the Fair Work Commission my view is that what the Applicant seeks is not a reopening of a previous case. The Fair Work Commission is not now being asked to review the prior decision of Deputy President Beaumont concerning the first PABO nor to otherwise consider the first PABO application at all.

[48] In principle, I agree that finality is a powerful consideration however comparing what the Applicant sought in the first PABO application and what it seeks in this second PABO application it is clear that the questions to be considered by employees are quite different.

[49] As to the objection that the Fair Work Commission simply should not consider a second PABO application there is nothing in the Act that says that only one PABO application can ever be made for a particular group of employees and so only one application involving those employees could ever be considered by the Fair Work Commission.

[50] Indeed section 442 and 446 of the Act expressly empowers the Fair Work Commission to deal with multiple PABO applications together. I note in my experience that these provisions have only been used when separate groups of employees of the same employer, but with different employee bargaining representatives (e.g. two or more unions in the same workplace involved in the same negotiations), are subject to separate ballot applications. However, that is not to say that these provisions of the Act which accommodate the hearing of multiple PABO applications are limited to such circumstances.

[51] Finally, I note the past cases the AWU have submitted are instances where the Fair Work Commission has considered and issued a PABO when there is an extant PABO.

[52] In conclusion, I do not accept that this application amounts to relitigating by the AWU or that this application is otherwise prevented from being considered on its merits because of the application determined by Deputy President Beaumont.

[53] With respect to the group of employees who are to be balloted there was discussion during the hearing with the parties about a possible amendment to the wording of clause 3 of the draft PABO in order to remove any disagreement as to identity of the group of employees.

Further clarity would be achieved by expressly excluding Deck Officers and employees in leadership positions. Additional words "...excluding Deck Officers and employees in supervisory, superintendent or management roles" will be added.

[54] I am satisfied on the evidence that the Applicant has been and continues to be genuinely trying to reach an agreement with Jadestone.

[55] Turning to consider the questions to be put to the employees, the AWU seeks leave to amend its application to change these by deleting the first question and replacing that with four new questions.

[56] The amendment sought is not a minor change to fix some inadvertent drafting error. The amendment proposed is actually put forward because of the Respondent's objection to the wording of the first question.

[57] It is incumbent on any applicant employee bargaining representative and certainly on applicants who are registered organisations, whom enjoy many benefits under the Act, to ensure their application is properly drafted in the first instance. That is not the case here.

[58] I have considered this issue and have decided I will not allow the amendment sought by the AWU.

[59] Separately question 1, considering the evidence of Mr Hobbs, concerns circumstances that are not applicable to the work the employees to be balloted undertake for Jadestone. This is a question that has no application to the employees to be balloted. Consequently, this question will be removed from the list of questions that may be asked of the employees.

[60] I am otherwise satisfied that the wording of the questions is not so vague or imprecise that it would prevent the employees from making an informed choice about the types of protected industrial action they are being asked to consider taking.

[61] Jadestone object to the fact that the note included at the bottom of the proposed PABO listing activities that are exempt from any protected industrial action the employees may vote to take, is worded differently to a similar list of exempt activities in the first PABO issued by the Fair Work Commission.

[62] I agree with Jadestone that it would be entirely sensible for this list of exempt activities to be the same where the employees are subject to more than one extant PABO.

[63] There may be negative consequences for employees who, because of the two different sets of wording, mistakenly believe particular industrial action they take is not covered by the list of exempt activities when it actually is in fact exempt, however that is a problem visited upon the employees by their bargaining representative. There is no basis on which the Fair Work Commission is empowered to interfere with this alternative approach taken by the Applicant.

[64] With respect to the notice period to be given before industrial action is taken I am satisfied that Jadestone has demonstrated there are exceptional circumstances, particularly being the remote location of the Montara Venture FPSO and the limited transport options available to move employees on and off the vessel compounded by the difficulties and uncertainty arising from the changing requirements of the Western Australian government constraining the free movement of persons into and out of the state of Western Australia, that justify the period of written notice referred to in 414 (2) (a) of the Act being longer than three days. I have decided that that period should be at least seven working days.

[65] I have decided that a PABO will be issued by the Fair Work Commission.

[66] I am satisfied that within 24-hours after making the application the Applicant gave a copy of it to Jadestone.

[67] The application before the Fair Work Commission is indeed an application that has been made under section 437 of the Act.

[68] On the evidence before me I am satisfied that the AWU has been and is genuinely trying to reach an agreement with Jadestone.

[69] With respect to the employees to be balloted I have decided that the additional words '...excluding Deck Officers and employees in supervisory, superintendent or management roles" will be added to Applicant's wording clarify the group of employees to be balloted.

[70] A ballot order will be issued in due course to reflect this decision.

P. Cooke from Australian Mines and Metals Association representative for the Respondent.

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