Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2023] FWC 249 of Deputy President Binet at Perth on 30 January 2023 in matter number B2022/530.

[1] Woodside Energy Ltd (Woodside) has lodged an appeal, for which permission to appeal is required, against a decision[1] made by Deputy President Binet on 30 January 2023 to grant an application by the Australian Workers' Union (AWU) for a majority support determination under s 237 of the Fair Work Act 2009 (Cth) (FW Act). The determination made by the Deputy President[2] is in the following terms:

"[1] Further to the decision in [2023] FWC 249 and pursuant to s 236 and s 237 of the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Commission determines that a majority of employees employed by Woodside Energy Ltd (Woodside) engaged to work on the Goodwyn Alpha Platform, North Rankin Complex and Angel Platform in Level 4 to Level 9 roles, up to and including supervisors want to bargain with Woodside for a single-enterprise agreement.

[2] Pursuant to s 237(4) of the FW Act, this Determination comes into operation on and from today, 30 January 2023."

[2] The direct effect of the making of the determination under the FW Act is that it constitutes a "notification time" under s 173(2)(b) triggering an obligation upon Woodside under s 173(1) to take all reasonable steps to issue each of the employees described in the determination a notice, in prescribed terms, of their right to be represented by a bargaining representative in respect of bargaining for a new enterprise agreement to cover them. Section 173(3) provides that the notice must be given not later than 14 days after the notification time. Consequential effects of the making of the determination include that Woodside is required to comply with the good faith bargaining requirements in s 228(1) and that its employees covered by the determination may take protected industrial action in support of their bargaining claims in the circumstances prescribed by Pt 3-3.

[3] Under s 236 of the FW Act, a bargaining representative for an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a majority support determination, being a determination that a majority of the employees who will be covered by the agreement want to bargain with the employer(s) that will be covered by the agreement. The application must specify the employer(s) that will be covered by the agreement; and the employees who will be covered by the agreement. Section 237 sets out the circumstances in which the Commission must make a majority support determination as follows:

1. 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.

[4] The relevant effect of s 237 is that the Commission is obliged to make a majority support determination if it makes findings as to its satisfaction concerning each of the four matters specified in s 237(2). It is otherwise not empowered to make a majority support determination. In her decision, the Deputy President found that she was satisfied as to each of the four matters. Woodside's appeal only challenges the Deputy President's finding in respect of s 237(2)(c), namely that she was satisfied that the group of employees who would be covered by the enterprise agreement proposed by the AWU, as specified in the AWU's application and reflected in the terms of the determination that the Deputy President made, was fairly chosen.

[5] Woodside's notice of appeal contains the following two grounds of appeal:

1. The Deputy President erred in finding, at paragraph [172] of the decision that the cohort of employees to be covered by the proposed enterprise agreement was organisationally, operationally and geographically distinct from "employees engaged in the Project onshore", which finding infected her erroneous ultimate finding in paragraph [185] that the cohort was "fairly chosen".

(a) The Deputy President misapplied s 237(3A) of the Fair Work Act 2009 (Cth), or otherwise acted upon a wrong principle, in that s 237(3A) required her to decide whether the cohort was geographically, operationally or organisationally distinct from all of the Appellant's employees (whether onshore or offshore, or whichever asset they are located on) who will not be covered by the proposed enterprise agreement. It follows that the Deputy President did not carry out the statutory task required by s 237(3A), in relation to the question of geographical and organisational distinctiveness, and alternatively, also in relation to the question of operational distinctiveness.

(b) Further, the Deputy President also misapplied s 237(3A) of the Fair Work Act 2009 (Cth), or otherwise acted upon a wrong principle, in that a finding of geographical distinctiveness was not open where, as in this case, employees who would not be covered by the proposed enterprise agreement also work at the locations at which the employees who would be covered work.

(c) In the alternative, to the extent it is considered, contrary to the foregoing to (a), that the Deputy President did carry out the statutory task required by s 237(3A), the Deputy President made positive findings as to distinctiveness in the absence of rationally probative material, or drew inferences from material which was not reasonably capable of supporting the inferences made.

(d) Further or in the alternative to (c), it was not reasonably open, or was irrational or illogical, for the Deputy President to make a positive finding as to distinctiveness in each of the relevant senses on the basis of the material before her, including, for example:

1. the unchallenged evidence that processes or activities other than extraction of gas are conducted on the three offshore facilities, including compression, dehydration, "co-mingling" and export to the Karratha Gas Plant;

2. the unchallenged evidence that all of the processes or activities carried out on the three offshore facilities are integrated with the processes or activities carried out on the Karratha Gas Plant; and

3. the only direct evidence, given by the only witness in the proceedings with first-hand knowledge of the work performed by employees engaged on the North West Shelf Project, that all such employees (that is, not only the Technicians and Supervisors in the cohort) are engaged in the industrial activity of the extraction and production of gas.

1. Further to Ground 1, the Deputy President erred in finding, at paragraph [185] of the decision that the cohort of employees was "fairly chosen".

(a) The Deputy President failed to give active and meaningful consideration to the Appellant's detailed evidence and submissions in relation to the fairly chosen criterion.

(b) The Deputy President should have, but did not, draw a Jones v Dunkel inference from the Respondent's failure to call any witness with direct and first-hand knowledge of the work performed by employees in the cohort.

(c) The Deputy President acted upon a wrong principle in considering, at paragraph [182](h) of the decision, that employees' self-selection into the cohort is a basis on which to find that the cohort was not unfairly chosen.

(d) The Deputy President's reasons are jurisdictionally inadequate.

[6] The background facts in this matter are set out in paragraphs [82]-[98] of the decision in a way which is not challenged in the appeal. In summary, Woodside is an oil and gas producer which, in conjunction with other producers, operates the North West Shelf Project. Within Woodside, the Project operates as a discrete business unit. The Project consists of the three offshore platforms earlier identified, as well as five onshore liquefied natural gas production trains at the Karratha Gas Plant (KGP) which are connected by sub-sea pipelines and a trunkline system. The KGP produces liquefied natural gas, domestic gas, condensate and liquefied natural gas for export.

[7] During normal operations, there are approximately 200 Woodside employees on the offshore platforms, with half allocated to the North Rankin Complex and half to the Goodwyn Alpha Platform. (The Angel Platform is not normally manned.) They work in the following roles:

• Production Technicians;

• Maintenance Technicians;

• Service Technicians;

• Supervisors - Operations or Maintenance or Project Coordinator Resource Estimator;

• Logistics Coordinator;

• Health, Safety and Environmental Coordinator;

• Superintendents - Frontline or Execution; and

• Offshore Installation Manager (OIM).

[8] All roles are assigned a job level from 4 to 12. Technician roles are graded from Levels 4 to 9, Supervisors from Levels 8 to 9, Superintendents from Levels 10 to 11, and OIMs from Levels 11 to 12.

[9] The Platforms are managed on a day-to-day basis by the OIMs, of which there are five. They are the custodians of both the asset safety cases and the environmental plans, and report to the Asset Manager. There are 10 Frontline Superintendents and five Execution Superintendents. The Frontline Superintendents are responsible for running and optimising the plant, recovering from trips and emergencies, and the performance of frontline maintenance. The Execution Superintendents are responsible for ensuring all site works are executed to plan both safely and efficiently.

[10] There are 20 Supervisors, who report to the Execution Superintendents and are responsible for leadership and supervision of the implementation workforce. They manage different teams with differing implementation focuses and are typically capable of undertaking Technician duties if necessary.

[11] The Production and Maintenance Technicians are engaged in maintenance duties and the Service Technicians look after all the lifting and shifting on the offshore facilities. They generally report to the Supervisors or the Superintendents.

[12] The AWU's application the subject of the decision under appeal specifies the employees who would be covered by its proposed agreement as being all employees on the offshore platforms in Technician or Supervisor roles in Levels 4-9 (employee group).

[13] The Deputy President's consideration and findings concerning the "fairly chosen" are contained in paragraphs [152] to [185] of her decision. The Deputy President commenced her consideration by summarising, in paragraphs [153]-[157], the principles relevant to the "fairly chosen" criterion by reference to authorities concerning ss 237(2)(c) and (3A) or the parallel enterprise agreement approval requirement in ss 186(3) and (3A). In respect of the reference to geographical distinctiveness in s 237(3A), the Deputy President said:

"[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. 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."

[14] The Deputy President next set out, at paragraphs [158]-[171], the respective contentions of Woodside and the AWU in relation to the "fairly chosen" criterion. The Deputy President then made the following finding:

"[172] I am satisfied that the Employee Group is organisationally, operationally, and geographically distinct from employees engaged in the Project onshore:

1. The Project operates as its own business unit within Woodside.
2. The Project is made up of the Platforms and the KGP.

1. The Platforms are located offshore. The KGP is located onshore.

1. The Platforms are managed and operated through a single organisational[] structure managed by one Asset Manager. The KGP has a separate Asset Manager.
2. The Platforms and the KGP are regulated by different regulatory bodies.
3. 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.
4. 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.
5. Employees may be transferred but are not routinely transferred between the Platforms and the KGP."

[15] Each of the propositions in subparagraphs (a)-(h) extracted above was footnoted with a reference to the evidence said to support the stated proposition.

[16] The Deputy President then considered the position of the employee group vis-à-vis the offshore employees not included in the group, namely the OIMs and the Superintendents, and made the following finding:

"[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."

[17] The Deputy President made a further finding that the Supervisors were not operationally distinct from the other employees in the employee group because they typically had the necessary qualifications to perform the duties of the other employees and might perform such duties in the normal course of the performance of their roles, and because they performed a "Leading Hand" or supervisory role rather than a managerial role.[3] The Deputy President then said:

"[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."

[18] As to the "fairly chosen" criterion generally, the Deputy President first found there was nothing to suggest that the exclusion of OIMs and Superintendents was either arbitrary or discriminatory or otherwise unfair.[4] The Deputy President also concluded (in paragraph [182]) that the evidence supported the conclusion that there was nothing unfair in the Supervisors being part of the employee group, and set out eight findings of fact (in subparagraphs (a)-(h)) in support of this conclusion, with footnoted evidence references. This included, in subparagraph (g), that "[t]he extent of the Supervisors['] employee relations role is at most described as the first point of contact" and, in subparagraph (h), that "[a] review of the Petitions reveals support among Supervisors for bargaining and consequently their inclusion within the scope of any subsequent agreement". The Deputy President concluded as follows:

"[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."

[19] In relation to appeal ground 1(a), Woodside submitted that s 237(3A) necessarily required a comparison between the employees who will be covered by the proposed enterprise agreement and those who will not. In this case, it was submitted, in order to carry out the statutory task required by s 237(3A), the Deputy President was required to make a finding about whether the employee group was distinct in each of the relevant ways from onshore employees and offshore employees in Levels 10 to 12. The Deputy President engaged in the former task, but not the latter task in that she did not find or even consider whether the employee group was geographically or organisationally distinct from offshore employees in Levels 10 to 12. Woodside submitted that this constituted an error of the type identified in House v The King.[5]

[20] In relation to appeal ground 1(b), Woodside submitted that, to the extent that the Deputy President did make a finding that the employee group was geographically distinct from the offshore employees in Levels 10 to 12, such a finding was not open on the evidence because they all worked at the same three offshore facilities.

[21] In relation to appeal grounds 1(c) and 1(d), Woodside's submission as advanced at the hearing was that the finding made by the Deputy President in paragraph [172](h) of her decision, namely that "[e]mployees may be transferred but are not routinely transferred between the Platforms and the KGP", was not reasonably available on the evidence and was illogical and irrational. This was said to be the case because Mr Ramsden was the only witness to give evidence on this issue, and that he did not say how frequently employees are transferred.

[22] Woodside said that the above errors "materially 'infected'" the Deputy President's finding that the group of employees to be covered by the proposed enterprise agreement was fairly chosen because her other findings in support of the group having been fairly chosen may not have outweighed the lack of geographical, operational or organisational distinctiveness that it submits she should properly have identified.

[23] In relation to appeal grounds 2(a) and (b), Woodside submitted that the Deputy President fell into jurisdictional error when she found that "[t]here is no evidence, before me, to suggest that the Employee Group is not fairly chosen",[6] because she had neither actively engaged with the evidence that it submits does suggest that, nor drawn a Jones v Dunkel inference from the fact that the AWU did not call any employee witness to support Mr Heath's claim that the employees themselves determined who should be covered by the proposed enterprise agreement. Woodside identified specific evidence at first instance that in its submission weighed against the "fairly chosen" finding. It submitted that evidence from Mr Ramsden's witness statements did not support the Deputy President's finding at paragraph [172](h) that employees may be transferred but are not routinely transferred between the offshore platforms and the KGP. As Mr Ramsden's statements constituted the only evidence on this point, and said nothing about how frequently or routinely employees were transferred between them, Woodside submitted this finding was not open on the evidence. Woodside also submitted that it appeared that the Deputy President had taken into account material from the witness statement of Mr Cooper which the AWU had filed but not tendered into evidence.

[24] In relation to appeal ground 2(c), Woodside submitted that the Deputy President erred by implicitly accepting that the Supervisors' own support for bargaining for an enterprise agreement meant that they were fairly chosen to be part of the group of employees proposed to be covered; it said there was no known authority for such a principle.

[25] Finally, in relation to appeal ground 2(d), Woodside submitted that the Deputy President's reasons are jurisdictionally inadequate for three reasons. First, Woodside submitted, the Deputy President's finding in paragraph [172](g) of the decision that a disruption in the operations of either the offshore platforms or the KGP could affect the other did not mean they could not be regarded as operationally distinct, was not supported by authority nor any explanation of why the significant evidence of integration between the offshore platforms and the KGP did not preclude a finding of operational and organisational distinctiveness. Second, Woodside submitted that the Deputy President's distinction between managerial responsibilities on the one hand and supervisory and leadership duties on the other (referred to in paragraphs [175] and [182](f)) was made without explanation and such a distinction was not open on the evidence before the Deputy President. Woodside submitted that the Deputy President should have instead made a finding that Supervisors' work is managerial in nature. Third, Woodside submitted that the Deputy President's finding that the employee group (including Supervisors) is operationally distinct from Superintendents and OIMs was made in the absence of any reasons why Woodside's evidence about the integration of the offshore platforms and the Karratha Gas Plant had not been accepted, ultimately leading the Deputy President into jurisdictional error.

[26] In relation to permission to appeal, Woodside submitted that the Deputy President's decision was attended by sufficient doubt to justify permission being granted and that the grounds of appeal raise jurisdictional error, involve substantial injustice to it and raise an important principle of general application, being the proper exercise of discretion under ss 237(2)(c) and (3A) of the FW Act.

[27] In relation to permission to appeal, the AWU submitted that the appeal does not raise any question of principle or general importance that would warrant a grant of permission to appeal. If permission were granted, the AWU submitted that the appeal should be dismissed.

[28] As to appeal ground 1, the AWU submitted that framing the ground by reference to paragraph [172] of the decision in isolation seeks to construct error by ignoring the remainder of the Deputy President's reasons, which was inconsistent with the approach in Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[7] The AWU submitted that the Deputy President's decision should be considered in light of having been produced in a context involving extensive written and oral submissions filed by Woodside, numerous interlocutory applications and objections to the making of a majority support determination on the part of Woodside and the legislative framework of the FW Act which requires the Commission to perform its functions in a manner that is quick, informal and avoids unnecessary technicalities.

[29] The AWU submitted that the Deputy President's reasons demonstrate that she considered the question of whether OIMs and Superintendents were operationally and organisationally distinct. In relation to geographical distinctiveness, the AWU submitted that the Deputy President was conscious that OIMs and Superintendents are physically located at the offshore platforms and found that they were performing different work, which was open to her on the evidence. Reading this finding fairly as a whole, the AWU submitted that the Deputy President considered and rejected Woodside's submission that the group of employees was not geographically distinct as a result of the exclusion of the OIMs and Superintendents.

[30] In relation to appeal ground 1(b) the AWU submitted that the group of employees to be covered by the proposed agreement includes all employees working on the offshore platforms who perform operational work, and excluded only the two most senior managerial positions. It submitted that the group is geographically distinct and there was no error on the part of the Deputy President in considering that as a factor in favour of finding the group was fairly chosen. It was not necessary, in the AWU's submission, for the group to include every employee who performs work at a particular location in order for the group to be geographically distinct.

[31] As to appeal grounds 1(c) and (d) the AWU noted that a submission that a finding lacks a rational foundation or is irrational or illogical presents a high threshold, which the AWU submitted Woodside had not met in its submissions. The AWU submitted that in making its submission about the finding in paragraph [172](h) that employees may be but are not routinely transferred between the offshore platforms and the KGP, Woodside ignored that there was in fact evidence as to the frequency and likelihood of this and in any event, this submission was "another pedantic distraction". In the alternative, the AWU submitted that any error in these findings was immaterial to the Deputy President's decision.

[32] In relation to appeal ground 2, the AWU submitted that a decision-maker is required to articulate the essential grounds for reaching the decision, address material questions of fact and law in a manner which discloses the steps which lead to a particular result but is not required to articulate every fact or argument relied upon by the parties or expose every step in their chain of reasoning. In this context, the AWU submitted it should not be concluded lightly that a decision-maker failed to take into account a matter which was raised before them, particularly where the reasons are otherwise comprehensive and the issue has at least been identified.

[33] In relation to appeal grounds 2(a) and (b), the AWU submitted that Woodside's submissions that the Deputy President did not engage with or consider any substantial submission centrally relevant to the decisions are without merit. The AWU characterised Woodside's submissions as "an extreme form of nitpicking" which seek to establish error by ignoring parts of the decision under appeal, and this approach should be rejected. The AWU responded to the points raised in Woodside's annexure B to its submissions in its own annexure.

[34] As to appeal ground 2(c), the AWU submitted that Woodside failed to articulate how the Deputy President's finding that there was support among Supervisors to be included in any bargaining gave rise to error. The AWU submitted that consideration of whether a group is fairly chosen involves some subjectivity and it is appropriate to consider the interests of employees. In this context, the AWU submitted it was not clear why Woodside said the views of Supervisors were irrelevant.

[35] The AWU submitted that Woodside's submission in relation to appeal ground 2(d) that the Deputy President's reasons are jurisdictionally inadequate must be rejected. The Deputy President's reasons are lengthy, careful and explain the essential grounds of her decision. The specific findings challenged by Woodside were also adequately explained in the Deputy President's reasons.

[36] For the following three reasons, permission to appeal is refused except in relation to ground 1(a) of Woodside's appeal.

1. First, we consider that the appeal does not raise any question of law or general principle that would require the grant of permission on public interest grounds or justify the grant of permission on discretionary grounds. The principles applicable to the "fairly chosen" criterion in ss 237(2)(c) and (3A) or the corresponding enterprise agreement approval requirement in ss 186(3) and (3A) are well-established: see Cimeco Pty Ltd v CFMEU;[8] CFMEU v John Holland Pty Ltd;[9] QGC Pty Ltd v Australian Workers' Union;[10] and Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia & Ors.[11] Leaving aside ground 1(a), no new question is raised by the appeal; it merely concerns the application of ss 237(2)(c) and (3A) to the facts of the particular case.

[38] Second, we consider that because of its narrow scope the appeal lacks utility. The task which the Deputy President was required to undertake was to make findings about whether she had reached the requisite state of satisfaction about each of the four matters specified in paragraphs (a)-(d) of s 237(2). In a detailed and closely reasoned decision, the Deputy President found that she was satisfied as to each of the matters. Woodside's appeal does not challenge the findings made by the Deputy President in respect of paragraphs (a), (b) and (d). This is especially notable in respect of paragraphs (a) and (d), since it means that Woodside does not contest the finding that a majority of employees in the employee group want to bargain for an enterprise agreement with Woodside, nor does it contest that it is reasonable in all the circumstances for a majority support determination to be made.

[39] Even in respect of the Deputy President's "fairly chosen" finding in respect of s 237(2)(c), Woodside's appeal is confined. While, because the agreement proposed by the AWU will not cover all of Woodside's employees, the Deputy President was required to take into account the matter specified in s 237(3A), it is not in dispute that the consideration required by s 237(3A) is not determinative of the "fairly chosen" criterion in s 237(2)(c). Ground 1 of the appeal challenges specific aspects of the Deputy President's consideration under s 237(3A), but Woodside's submissions in our view fail to demonstrate how the alleged errors materially affected the Deputy President's overall conclusion under s 237(2)(c). Certainly, it is not contended that any alternative consideration under s 237(3A) would have precluded a conclusion under s 237(2)(c) that the employee group was fairly chosen. Ground 2 of the appeal challenges aspects and the adequacy of the Deputy President's reasons for her overall finding in respect of s 237(2)(c), but again it is not contended that it was not reasonably available on the evidence to make a finding that the employee group was fairly chosen.

[40] Were permission to be granted, Woodside's appeal at its highest would require us to redetermine whether the requisite state of satisfaction could be reached in respect of s 237(2)(c). The grant of permission for that purpose would be of no utility because, as we explain later in this decision, we agree with the Deputy President's conclusion that the employee group was fairly chosen and would if necessary make the same finding ourselves.

[41] Third, we do not consider (leaving aside for the moment appeal ground 1(a)) that the appeal discloses any sufficiently meritorious ground of appealable error to found the grant of permission. The task of the Deputy President under s 237(2) involved a value judgment based on her satisfaction, or lack thereof, about the specified matter, and the ultimate assessment of whether the choice of the employee group was fair involved the exercise of a very broad judgment.[12] The House v The King[13] standard of appellate review therefore applies. Woodside's grounds of appeal do not disclose any reasonably arguable case of material error of the House v The King type. No significant error of fact is alleged. Without attempting to deal with every matter raised in Woodside's submissions, our overview of the merits of the grounds of appeal is as follows:

(1) There is no foundation for ground 1(b) because the Deputy President did not make any finding that the employee group was geographically distinct from the Supervisors and OIMs working on the offshore platforms. Indeed, as we discuss later, it is apparent from the Deputy President's reasoning that she considered the opposite to be the case.

(2) In relation to grounds 1(c) and (d), there was plainly evidence making available the Deputy President's finding in paragraph [172](h) that employees may be transferred but are not "routinely" transferred between the offshore platforms and the KPG. For example, Mr Heath gave evidence for the AWU that transferring from onshore to offshore or vice versa "is not a simple process" and the necessary competencies for such transfer can take up to eight months to complete.[14] He also gave evidence that any such transfers are usually permanent ones from onshore to offshore, and that temporary transfers to the offshore platforms are very rare.[15] Additionally, Mr Ramsden gave evidence in his second witness statement that 10% of Woodside's Supervisors and 25% of Technicians have worked on an asset that was not the asset they were initially or primarily engaged to work on.[16] It follows that 90% of Supervisors and 75% of Technicians have worked on the same asset they were initially or primarily engaged to work on for the past five years. That evidence gives a reasonable foundation for the conclusion that transfers are not "routine" in the sense of being usual or normal.

(3) As to ground 2(a), while a decision-maker's consideration of a statutory criterion - in this case, the "fairly chosen" criterion in s 237(2)(c), as elaborated upon in s 237(3A) - must involve a process of active intellectual engagement, this does not amount to a requirement for the decision-maker to refer in her reasons for decision to every piece of evidence and every contention advanced by a party.[17] The Deputy President's reasons concerning the "fairly chosen" criterion disclose, as we have earlier summarised, that she understood the need to satisfy herself in relation to s 237(2)(c) and in doing so take into account the matters specified in s 237(3A) (paragraph [152]). The Deputy President engaged with the principles established by the authorities concerning the proper construction and application of these provision (paragraphs [153]-[157] and [176]) and demonstrated an understanding and consideration of the cases respectively advanced by the AWU and Woodside (paragraphs [158]-[171]). She made findings concerning the matters in s 237(3A) and her reasons for those findings, including specific references to the evidence which she considered founded those findings (paragraphs [172]-[175]). She also made findings supporting her ultimate conclusion under s 237(2)(c) that the employee group was fairly chosen, which were again supported by detailed reasons and references to the evidence, and which specifically addressed Woodside's primary contention below that the inclusion of Supervisors in the group was unfair (paragraphs [178]-[185]). It is therefore not reasonably arguable that the Deputy President gave inadequate reasons for her decision.

(4) The proposition that the Deputy President took into account the contents of the statement of evidence of Mr Cooper, which was filed but not tendered, is not supported by anything actually contained in the decision and is entirely speculative. At paragraphs [66]-[67], the Deputy President made it clear that she understood that Mr Cooper's witness statement was not admitted into evidence. Woodside contended in its oral submission, as primary examples, that the Deputy President took Mr Cooper's statement into account in paragraphs [165] and [182](g) of her decision. There is no reason to read paragraph [165] as being anything other than what it says it is: a summary of arguments advanced by the AWU. Woodside accepted that the arguments referred to are derived from the AWU's written opening submissions. The footnote references to evidence have been added by the Deputy President, but none of these refers to Mr Cooper's statement. In making the finding in paragraph [182](g), the Deputy President likewise made no reference to Mr Cooper's statement, and the expression "first point of contact" is plainly derived from Mr Ramsden's first witness statement.[18]

(5) As to ground 2(b), Woodside's submissions do not credibly explain what evidence the AWU might have, but did not adduce, which could reasonably give rise to a Jones v Dunkel inference. That Mr Heath gave hearsay evidence about the collective view of those in the employee group who wanted to bargain does not give rise to such an inference. Evidence of this nature is admissible before the Commission (ss 590(1) and 591) and routinely relied upon by the Commission.

(6) By ground 2(c), Woodside contends that the Deputy President made an error of principle by taking into account, in paragraph [182](h), that there was support for bargaining amongst the Supervisors. However, we do not consider that there is any arguable basis to say that this could in no circumstances be a matter relevant to the exercise of the Deputy President's evaluative judgment. In circumstances where much of Woodside's case below focused on the alleged unfairness of the inclusion of the Supervisors in the employee group, it seems to us reasonable that a desire on the part of a proportion of the Supervisors to participate in bargaining together with the employees they supervised might be regarded as relevant to and weighing in favour of a conclusion that their inclusion in the employee group was fair.

(7) In relation to ground 2(d), Woodside's evidence concerning the way in which the offshore platforms are integrated in an overall sense with the KGP as part of a single project for the extraction and production of gas did not preclude a finding that the employee group is operationally distinct. The word "distinct" in s 237(3A) connotes difference and dissimilarity but does not require complete detachment or separation. The matters set out in paragraph [172] of the decision provide an ample basis for the discretionary conclusion that the employee group is operationally distinct from the onshore employees, in that they perform a distinguishable type of work in a discrete part of the overall project. The Deputy President's findings in this respect did not involve or necessitate any rejection of Mr Ramsden's evidence about the project, and consequently Woodside's proposition that the Deputy President erred by not providing reasons for her purported rejection of that evidence falls away.

(8) As to the Deputy President's finding that it was not unfair for the Supervisors to be included in the employee group because they exercised only supervisory and not management responsibilities (paragraphs [175] and [182](g)), that reflects the traditional industrial understanding of the functional difference between supervision and management. It also reflects the title given to the positions by Woodside. Woodside's complaint, in substance, rises no higher than that the Deputy President did not make the finding which it would have preferred her to make.

[42] We grant permission in relation to ground 1(a) of Woodside's appeal because it raises a genuinely jurisdictional issue, namely whether the Deputy President complied with the requirement in s 237(3A) to take into account whether the employee group is geographically, operationally or organisationally distinct.

[43] Ground 1(a) of Woodside's appeal proceeds on the premises that, first, s 237(3A) required the Deputy President, in the circumstances of the case before her, to make a specific finding as to whether the employee group was geographically and organisationally distinct from the Superintendents and OIMs employed on the offshore platforms and, second, that she failed to do so. Thereby, Woodside contends, the Deputy President fell into jurisdictional error.

[44] We reject both premises of Woodside's case. As to the first premise, we consider that it takes an incorrectly simplistic and binary approach to the application of s 237(3A). We agree with the Deputy President's statement in paragraph [154] that distinctiveness of the chosen employee group is not absolute in the sense that a finding of distinctiveness is not necessarily precluded if there is any employee of the relevant employer from whom the chosen employee group is not distinct in any of the three prescribed ways. Particularly in a large and complex business such as that operated by Woodside, the chosen employee group may be distinct from other disparate segments of the employer's workforce in varying ways and to varying degrees. What is required is an overall evaluation as to whether, taking into consideration the geographical, operational and organisational attributes of those parts of the workforce who will not be covered by the proposed agreement, those who will be covered may reasonably be characterised as distinct in any of the prescribed ways. What is not required is a mechanical process of comparison with every segment of the workforce not covered to produce a "yes" or "no" answer in each case as to whether they are geographically, operationally or organisationally distinct. Thus, we consider, Woodside's appeal ground 1(a) misconceives what s 237(3A) required the Deputy President to do.

[45] In relation to the second premise, we consider that Woodside's case proceeds on an acontextual and pedantic reading of the Deputy President's decision. As to context, the decision must be read in a way which is framed by the respective contentions advanced by the parties before the Deputy President. The AWU did not contend that the employee group was geographically or organisationally distinct from the offshore Superintendents and OIMs, considered in isolation, but rather advanced a case that the employee group was geographically and organisationally distinct on the basis of a comparison with the rest of the workforce considered as a whole. The AWU did, however, advance a specific contention that the employee group was operationally distinct from the Superintendents and OIMs. Woodside contended that the employee group was not geographically, operationally or organisationally distinct from the Superintendents and OIMs. In short, neither party contended that the employee group was geographically and organisationally distinct from the Superintendents and OIMs specifically. In that context, the Deputy President made a finding in paragraph [174] concerning the contested issue of operational distinctiveness, but we do not consider, having regard to the proper approach to the application of s 237(3A) just stated, that she was required to make specific findings concerning other sub-issues that were not in contest between the parties.

[46] As to pedantry, we consider that on a fair reading of paragraphs [172]-[174] of the decision, the Deputy President made findings as to the extent to which she considered the employee group to be geographically, operationally or organisationally distinct, and that she can reasonably be taken to have concluded that, apart from the ways specified in those paragraphs, the employee group was not distinct. We consider that it amounts to nitpicking[19] to contend that the Deputy President erred by not including in her decision, immediately following paragraphs [172]-[174], an express statement to the effect that the employee group was not distinct other than as specified in those paragraphs. In our view, this goes without saying.

[47] In any event, we do not consider that the point raised by Woodside is material to the outcome in relation to s 237(2)(c). As earlier stated, Woodside did not contend that it was not reasonably open to conclude that the employee group was fairly chosen upon a proper consideration of the requirement in s 237(3A) and submitted that, if ground 1(a) were upheld, we should ourselves undertake afresh the consideration required by ss 237(2)(c) and (3A). If, contrary to our earlier conclusions concerning ground 1(a), we were required to engage in such a reconsideration, we would reach the same conclusion as the Deputy President, namely that the employee group was fairly chosen. In respect of s 237(3A), we would find that the employee group is distinct in the same ways and for the same reasons as specified in paragraphs [172]-[174] of the decision, and is not otherwise distinct. These findings, we consider, weigh in favour of the conclusion that the employee group was fairly chosen. That the employee group is not geographically or organisationally distinct from the offshore Superintendents and OIMs is of little significance when weighed against the operational distinctiveness identified by the Deputy President in paragraphs [173] and [174] of the decision. Taking these matters into account, we would find that the employee group was fairly chosen for the same reasons as stated in paragraphs [175]-[185] of the decision.

[48] Accordingly, appeal ground 1(a) is rejected.

(1) Permission to appeal is granted in respect of ground 1(a) of the appeal. Permission to appeal is otherwise refused.

(2) As to appeal ground 1(a), the appeal is dismissed.

I Neil SC and R Kumar of counsel for the appellant.

[1] [2023] FWC 249

[2] PR750064

[3] [2023] FWC 249 at [175]

[5] [1936] HCA 40, 55 CLR 499

[6] [2023] FWC 249 at [185]

[7] [1996] HCA 6, 185 CLR 259 at 291

1. [8] [2012] FWAFB 2206, 219 IR 139

[9] [2015] FCAFC 16, 228 FCR 297

1. [10] [2017] FWCFB 1165, 268 IR 241
2. [11] [2017] FWCFB 5826, 270 IR 385; affirmed on judicial review in [2018] FCAFC 74, 261 FCR 175, 278 IR 211.

[12] Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia & Ors [2018] FCAFC 74, 261 FCR 175, 278 IR 211.

[13] [1936] HCA 40, 55 CLR 499

[14] Witness statement of Douglas Heath, 13 October 2022 at [23]

[15] Transcript 28 November 2022, PNs 631, 639-641

[16] Witness statement in reply of Gavin Ramsden, 27 October 2022 at [18]

[17] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, 252 FCR 352 at [45]

[18] Witness statement of Gavin Ramsden, 28 September 2022 at [101]

[19] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259 at 291 per Kirby J

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