1
Fair Work Act 2009
s.437 - Application for a protected action ballot order
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union" known as the Australian Manufacturing Workers' Union (AMWU);
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia; Australian Workers'
Union, The (CEPU) and Anor
v
Skilled Offshore Pty Ltd
(B2015/1253)
DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 5 OCTOBER 2015
Proposed protected action ballot of employees of Skilled Offshore Pty Ltd.
Introduction
[1] Skilled Offshore Pty Ltd (Skilled Offshore) supplies labour in the form of crew to
vessels operating in the offshore oil and gas industry. For present purposes, Skilled Offshore
is engaged pursuant to a contract for the provision of marine and construction crew to Saipem
Australia Pty Ltd for the operation of the Castorone, a pipe laying vessel (Castorone project).1
An enterprise agreement titled Skilled Offshore Western Australia and Northern Territory
Offshore Construction Projects Agreement 2011 – 2015 (Current Agreement) applies to
Skilled Offshore and its employees performing work on the Castorone project. The nominal
expiry date of the Current Agreement is 19 August 2015.
[2] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
known as The Australian Manufacturing Workers’ Union (AMWU), the Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia (CEPU) and the Australian Workers’ Union (AWU) (Collectively ‘the Unions’)
have, by application lodged on 2 September 2015, applied jointly to the Fair Work
Commission (Commission) under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected
action ballot order (PABO).
[3] Skilled Offshore opposes the making of a PABO. It says the proposed agreement in
relation to which the application relates was not identified by the Unions before the
application was made. It says the Unions have not, and are not, genuinely trying to reach
agreement with it. It also says that the questions relating to industrial action that are to be
posed are imprecise and vague, and that some of the action for which authorisation is sought
1 Exhibit 6 at [3] – [4].
[2015] FWC 6727 [Note: An appeal pursuant to s.604 (C2015/6917) was
lodged against this decision - refer to Full Bench decision dated
2 November 2015 [[2015] FWCFB 7399] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB7399.htm
[2015] FWC 6727
2
(or for which authorisation would be given) is not industrial action. Skilled Offshore raises
concerns about the proposed balloting process, the period within which the proposed ballot is
to take place and it says that there are exceptional circumstances warranting the period of
written notice referred to in s.414(2) to be extended to seven working days.
[4] I have decided to make a PABO because I am satisfied that in relation to a proposed
enterprise agreement, an application has been made under s.437, and that each Union has been
and is genuinely trying to reach an agreement with Skilled Offshore, the employer of the
employees who are to be balloted. The PABO that I make is a modified version of the draft
order submitted by the Unions on 25 September 2015. I am also persuaded to exercise my
discretion to order that the period of notice for protected industrial action referred to in
s.414(2)(a) be longer than three working days, because I am satisfied that there are
exceptional circumstances justifying such an extension. The period of notice will be seven
working days. These are my reasons for making the PABO.
Background
[5] Clause 5 of the Current Agreement provides:
‘The Company agrees that at least three months prior to the conclusion of the Agreement that
the parties shall collectively bargain in good faith for an extension of the agreement for a
further four years.’
[6] It seems common ground that the Current Agreement was made on terms that were
consistent with that which is described as an industry framework agreement.2 It also seems
common ground that bargaining did not commence as contemplated by Clause 5 of the
Current Agreement.
[7] Between approximately 17 June 2015 and 11 September 2015, representatives of
Skilled Offshore and representatives of the Unions exchanged correspondence, attended
various meetings and attended conferences in the Commission. So much is not in dispute,
however the significance, purpose and effect of that which occurred between 17 June 2015
and 11 September 2015 is contested.
[8] Without setting out the substance of each event that occurred between 17 June 2015
and 11 September 2015, it is sufficient for present purposes to note that Skilled Offshore
maintains that until 7 September 2015, the various discussions and exchanged correspondence
was concerned with that which Skilled Offshore regarded as important namely, whether
discussions would occur to secure an industry framework agreement or an agreement that
would cover Skilled Offshore and its employees. It was on 7 September 2015, during
proceedings in the Commission, commenced under s.739 of the Act that, according to Skilled
Offshore, the Unions first indicated that they would not pursue an industry framework
agreement. On 8 September 2015, Mr Glenn McLaren, a lead organiser with the AMWU
wrote by email to Mr Mark Wakelin, the General Manager – Industrial Relations and
Employee Relations at Skilled Offshore on behalf of the Unions in the following terms:
‘. . . I confirm that the Unions do not wish to enter negotiations for an industry-wide
framework agreement.
2 Exhibit 3 at [10] and Exhibit 5 at [7] – [10].
[2015] FWC 6727
3
For the avoidance of doubt: on our members’ behalf, we are pursuing an agreement to
replace the Skilled Offshore WA and NT Offshore Construction Projects Agreement
2011. We continue to rely on the amalgamated log of claims that was served on you on 5
August 2015.’ (Underlining and bolding in the original)3
[9] Skilled Offshore says that before 7 September 2015, the proposed enterprise
agreement had not been identified by the Unions with the consequence that the application for
a PABO was not in relation to a proposed enterprise agreement on the date on which the
application was made, and so the application was not one made under s.437 of the Act.
[10] On 9 September 2015, Mr Wakelin responded by acknowledging the earlier email and
indicating that ‘as per our previous discussions’, Skilled Offshore ‘will now proceed with
issuing the Notices of Employee Representational Rights as soon as possible’.4
A notice of employee representational rights (NERR) was issued by Skilled Offshore to
relevant employees on 14 September 2015.5
Relevant statutory framework and meaning of proposed enterprise agreement
[11] In Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia6, a Full
Bench of the Commission considered the relevant statutory framework and the meaning of the
phrase ‘proposed enterprise agreement’ in the context of a PABO and I adopt that which was
there outlined without repeating it.7
[12] Section 437 enables a bargaining representative to apply for a PABO. Section 437(1)
provides:
‘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 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.’
[13] Excepting the prohibition of making an application in s.438(1), the Commission must
make a PABO in relation to employees who will be covered by a proposed agreement in the
circumstances set out in s.443. Section 443 relevantly provides:
‘443 When FWC must make a protected action ballot order
(1) 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) 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) 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 Exhibit 5; Attachment 13.
4 Ibid.
5 Exhibit 5; Attachment 14 and Exhibit 6 at [14].
6 [2014] FWCFB 1317.
7 Ibid at [28] – [44].
[2015] FWC 6727
4
[14] It is to be observed that the Act variously makes reference to a ‘proposed agreement’,
or the ‘proposed enterprise agreement’ and ‘proposed single-enterprise agreement’ to describe
in a particular context the same concept, that is, the agreement that is being proposed by a
party wishing to bargain or by one that is actually bargaining. That this is so seems to be
confirmed by the Explanatory Memorandum to the Fair Work Bill 2008 and its description of
the use of the phrase ‘proposed enterprise agreement’ in Parts 2-4 and 3-3 as ‘a generic
term’8, and its reference to the decision in Wesfarmers Premier Coal Ltd v Automotive, Food,
Metals, Engineering, Printing and Kindred Union (No 2)9 in which French J referred to the
use of the words ‘proposed agreement’ in s.170MI of the Workplace Relations Act 1996 as a
‘generic term [that] allows for a variety of possibilities’10. The content of a proposed
agreement need not be settled nor need the scope of a proposed agreement be agreed between
the bargaining parties for that which is proposed by one party to bear the character of a
proposed agreement or proposed enterprise agreement for the purposes of the Act.
[15] In MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union 11, a Full
Bench of Fair Work Australia observed that:
‘The Fair Work Act 2009 (FW Act) uses the expression “proposed enterprise agreement”,
“proposed single-enterprise agreement” and “proposed agreement” in a number of places. An
agreement may be “proposed” by an employer or it may be “proposed” by a bargaining
representative of employees or there may be different and competing agreements “proposed”
by both. Where a person makes an application under the FW Act in their capacity as a
bargaining representative for a “proposed enterprise agreement” or “proposed single enterprise
agreement”, the bargaining representative is entitled to rely on the agreement it has proposed
or it may choose to make the application in relation to an agreement proposed by another
bargaining representative. In this case, it was the LHMU that first “proposed” an agreement
and it was the agreement proposed by the LHMU that was the “proposed single” for purposes
of the LHMU’s application for a protected action ballot order under s.437.’12
Consideration
[16] Turning then to the arguments advanced by Skilled Offshore in opposition to the
PABO.
Proposed enterprise agreement not identified when application was made
[17] As is apparent from the above, a proposed enterprise agreement therefore means no
more than the agreement the bargaining representative applying for an order under s.437 is
proposing at the time the application for a PABO is made. It is that agreement to which the
ballot will relate and it is employees represented by the bargaining representative who fall
within the scope of that agreement (or a group of such employees) who will vote on questions
of particular industrial action.
[18] Skilled Offshore submits that as at the date on which the PABO application was made
(2 September 2015) the Unions had not identified the proposed enterprise agreement. I do not
8 Explanatory memorandum at [643].
9 Ibid; (2004) 138 IR 362.
10 Ibid at 377 – 378, [55].
11 [2010] FWAFB 6519.
12 Ibid at [8].
http://www.fwc.gov.au/decisionssigned/html/2010fwafb6519.htm
[2015] FWC 6727
5
accept that the proposed enterprise agreement was not identified at the time when the Unions
made the application for a PABO.
[19] On 19 June 2015, Mr McLaren sent an email to Mr Wakelin in the following terms:
‘For the avoidance of doubt and so the position of the AMWU members is absolutely clear we
advise you of the following;
. . .
The AMWU wishes to commence negotiations for the replacement of the current
enterprise agreement with SKO ASAP and also reminds you of your obligations
contained in clause 5 of the agreement.
We request that SK oh issue notice of representational rights to your employees as a
matter of urgency.
. . .’13
[20] It seems clear enough that the only instrument capable of replacing ‘the current
enterprise agreement’ with Skilled Offshore is relevantly another enterprise agreement under
the Act.
[21] By email dated 29 June 2015, Mr McLaren complained to Mr Wakelin that another
week had passed without any response from Skilled Offshore and that:
‘Should the AMWU not hear from SKO regarding a firm commitment to commence
negotiations for the enterprise agreement by COD today we will put the matter in dispute and
lodging with the FWC.’14
[22] In an email from Mr Wakelin to Mr McLauren later on 29 June 2015 it seems clear
that Skilled Offshore was still considering:
‘. . . when bargaining should commence for a new Agreement.’
[23] It proposed that:
‘In the meantime, SKO understands that AMMA will be meeting with the AMWU early next
week for ‘industry–level’ discussions about the renewal of our Agreement which is essentially
an industry agreement’. . .
SKO is of the view that a meeting between AMWU and AMMA is the logical first step in the
renegotiation process, particularly in light of the fact that none of the other Unions party to our
agreement (AWU and ETU) have requested to renegotiate our agreement yet.’15
[24] Mr Matthew Dixon is an organiser with the Western Australian Branch of the AWU
and a member of the State Executive of that branch. Mr Dixon gave the following evidence:
‘On 3 August 2015 Glenn McLaren, Les McLaughlan and I attended a meeting at AMMA's
offices, which was attended by Steven Dunstan, Simon White, Mark Wakelin and Paul
Schneider.
13 Exhibit 3, GM-3.
14 Exhibit 3, GM-4.
15 Exhibit 3, GM- 5.
[2015] FWC 6727
6
At this meeting a log of claims from both the AMWU and the AWU was served upon Skilled
Offshore with a copy provided to AMMA also.
At this meeting the AMWU, CEPU and AWU also agreed to consolidate the respective
Unions log of claims and send an electronic copy of the claim in an excel spreadsheet to both
SKO and AMMA.
On 5 August 2015, I wrote to Simon White, and copied in Mark Wakelin and Paul Schneider
to serve the Unions' amalgamated log of claims.’16
[25] Mr Simon White is Principal Employee Relations Consultant with AMMA. By 5
August 2015, if not earlier, AMMA was representing a number of employers including
Skilled Offshore in relation to ‘a replacement framework WA and NT offshore construction
industry agreement’.17 The 5 August correspondence referred to in Mr Dixon’s evidence
contained the following paragraph:
‘Please see attached spreadsheet that includes claims from the three offshore construction
Unions (ETU, AMWU and AWU) with regards to the renewal of the Skilled Offshore
Western Australian and Northern Territory Offshore Construction Projects Agreements
2011-2015.’ (Bolding in original)18
[26] The spreadsheet referred to in the above extracted paragraph is a document titled
‘Combined ETU, AMWU and AWU Log of Claims’ and contains items dealing with claims
for wage increases and conditions of employment.19
[27] On 6 August 2015, Mr Dixon sent an email to Mr White with a copy to Mr Dixon’s
union colleagues at the AMWU and CEPU in the following terms:
‘As you are aware the SKILLED OFFSHORE WESTERN AUSTRALIA & NORTHERN
TERRORITY OFFSHORE CONSTRUCTION PROJECTS AGREEMENT 2011-2015
and other similar agreements expire on the 19th of August 2015.
The AWU finds it interesting that with only weeks away from the expiry date of these
agreements AMMA has advised the offshore construction Unions that you prefer to initiate
unilateral discussions for an "'industry approach" to discussions around an "industry enterprise
agreement discussions".
As stated at this meeting, this process could be long and convoluted and had AMMA
approached the AWU 12 months ago to commence this process in this way The AWU might
have entertained that offer. AMMA is seeking to commence this process mere weeks away
from the expiry of these agreements leads us to question the motives of AMMA and the
organisations that you represent.
As Skilled Offshore are the largest employer in the offshore construction industry and as the
AMWU have taken steps with Fair Work Australia to ensure Skilled Offshore begin to bargain
fairly, the AWU believes that proceeding with bargaining as defined by the Fair Work Act
2009 is the only fair and legal way to ensure that the rights of their employees are enforced
through the Act. Once again, the AWU strongly encourages Skilled Offshore to issue the
16 Exhibit 4 at [22] – [25].
17 Exhibit 3, GM- 11.
18 Exhibit 4, MWD- 2.
19 Exhibit 4, MWD-4.
[2015] FWC 6727
7
Notice of Representation Rights to its employees so we may commence enterprise bargaining
discussions.
As per the prior commitment from the offshore construction Unions we have provided you
with a combined Log of Claim document sent to you on Wednesday the 5th of August. This
was an act of good faith to ensure our commitment to the enterprise bargaining process.
As stated at the meeting on the 3rd of August, the AWU would entertain a discussion with
AMMA and its members, some of who do and some who do not have current enterprise
agreements in the offshore construction industry, if a commitment was made by Skilled
Offshore to commence good faith bargaining discussions. Skilled Offshore and AMMA did
not agree to commence good faith enterprise bargaining discussions and hence we do not
believe that AMMA's attempt to circumvent the Fair Work Act, to hold "industry agreement
discussions" is in the best interests of the offshore construction union's members.
The AWU is willing to attend the meeting on Monday and Tuesday with industry
representatives, however failing to reach agreement at these discussions AMMA must commit
to ensuring that Skilled Offshore agree to commence good faith bargaining discussions and
issue the Notice of Representation Rights to its employees by close of business Wednesday the
12th of August.
Please do not hesitate to contact myself on . . . or Glenn McLaren from the AMWU or Les
McLaughlan from the ETU if you would like to discuss this matter further.’20
[28] On 6 August 2015, Mr Dixon sent email correspondence to Mr Wakelin which
contained the following:
‘The Australian Workers' Union (The AWU) writes to inform you that we are in dispute over,
what the AWU believes, is Skilled Offshore's refusal to commence good faith bargaining
discussions for the renewal of the Skilled Offshore Western Australia & Northern Territory
Offshore Construction Projects Agreement 2011-2015.
As per Clause 5 of the enterprise agreement, The AWU believes that the parities of the
agreement by now have commenced good faith bargaining discussions to renew the agreement
prior to its expiry on the 19th of August 2015.
As the AWU, AMWU and ETU have meet with Skilled Offshore on three separate occasions
to discuss the commencement of enterprise bargaining, and to date, there is still no agreement
when Skilled Offshore will formally commence this process; The AWU feels that it is now
appropriate to seek FWC's assistance in this matter.
The AWU will liaise with the other parities of the agreement the AMWU and ETU about the
best way to collectively address this matter.’ 21
[29] By email correspondence dated 7 August 2015 Mr Les McLaughlan, the CEPU’s ETU
WA State Secretary wrote to Mr Wakelin in the substantially the same terms.
[30] By way of response, Mr Wakelin sent an email to the Unions later on 7 August 2015,
which contained the following:
20 Exhibit 4, MWD- 4.
21 Exhibit 5, Attachment 6.
[2015] FWC 6727
8
‘I refer to your email below, AMMA's letter to the AWU today (copied to the ETU and the
AMWU, attached) and, the AMWU’s correspondence to the FWC last night (copied to the
ETU and the AWU).
As I explained in our meeting earlier this week, I believe that the process proposed by AMMA
is not only the more appropriate way forward but importantly, the most efficient and effective
way.
Therefore, and in light of your insistence that SKO formally commence the bargaining
process, I’m beginning to question your (and the other Unions') true motivation and intentions
in bargaining with SKO at an enterprise level, particularly given the relatively short timeframe
that our relevant workforce have remaining on the Ichthys Project (approximately 2 months).
I look forward to further discussions with the ETU and the other Unions in the manner
proposed by AMMA or, failing that, then potentially in the FWC.’
[31] On 7 September 2015, representatives of Skilled Offshore and the Unions attended a
conference in the Commission at which Mr McLaren told representatives of Skilled Offshore
that the Unions did not wish to enter negotiations for an industry framework agreement.22
Written correspondence confirming the position was sent to Skilled Offshore on 8 September
2015.23
[32] The events noted at [10] of this decision then followed.
[33] As earlier indicated, other correspondence also passed between the various parties, and
conferences in the Commission also took place in which various of the parties participated.
However, it seems to me the following is clear from the correspondence extracted above.
[34] First, Skilled Offshore wished to engage with the Unions through its representative,
AMMA, to discuss and to try to reach an agreement on an industry framework agreement
before, or as a necessary first step to, commencing discussions for an agreement that would
cover Skilled Offshore and its employees.
[35] Secondly, Skilled Offshore did not initiate bargaining or agree to bargain for an
enterprise agreement at any stage until it agreed to issue a NERR on 9 September 2015 or on
14 September 2015 when it issued the notice to employees. Given the events noted above and
the opening words of the NERR issued advising that ‘Skilled Offshore Pty Ltd gives notice
that it is bargaining in relation to an enterprise agreement’ (my underlining) so much may be
inferred.
[36] Thirdly, the scope of the proposed agreement appears to be in dispute in as much as
the NERR appears to confine the scope of the proposed agreement to ‘employees that are
engaged by Skilled Offshore Pty Ltd to undertake construction work on board the Castorone
vessel on the Saipem Ichthys Gas Export Pipeline Project’ whilst the Unions are proposing an
agreement to replace the Current Agreement. The scope of the Current Agreement is that it
applies to ‘all employees engaged by the Company in the classifications in clause 12 of this
Agreement and who are engaged to work on Offshore Construction Projects off the Western
Australian or Northern Territory coasts’.
22 Exhibit 5 at [31]; Exhibit 3 at [56]-]57].
23 Exhibit 5, Attachment 13.
[2015] FWC 6727
9
[37] Fourthly, since at least 5 August 2015, Skilled Offshore has known that the Unions
wanted to commence discussions for a replacement for the Current Agreement and was aware
of the claims that the Unions intended to pursue in those discussions. By that date, the
proposed agreement being pursued by the Unions was clearly identified.
[38] Fifthly, it is self-evidently the case that an industry framework agreement, whilst it
might form the basis of a subsequent enterprise agreement made between Skilled Offshore
and its employees, would not be the enterprise agreement made under the Act.
[39] Sixthly, whilst the Unions indicated a preparedness to continue to participate (or
prepared to consider participation) in industry wide discussions, it seems clear that on and
from 5 August 2015, they also wanted to bargain for a replacement agreement to the Current
Agreement with Skilled Offshore, and told Skilled Offshore, in writing, the terms and
conditions that they wanted to be the subject of the bargaining.
[40] It follows from the above, that at least on and from 5 August 2015, the enterprise
agreement proposed by the Unions was clearly identified, as were the claims that were being
advanced by the Unions that would be included in the proposed enterprise agreement.
[41] That Skilled Offshore did not want to bargain on this basis is beside the point. That the
Unions were then still prepared to participate in industry wide discussions is also, with
respect, beside the point. Presumably, the Unions, or at least the officials representing those
Unions, can walk and chew gum at the same time.
[42] The submission that the proposed agreement had not been identified at the time that
the Unions applied for a PABO must therefore be rejected.
Decision in Transport Workers' Union v Hunter Operations Pty Ltd
[43] In Transport Workers' Union v Hunter Operations Pty Ltd24, Vice President Hatcher
determined that the requirement in s.173(3) of the Act that an employer issue a NERR as soon
as practicable and no later than 14 days after the notification time, relevantly the time when an
employer initiates bargaining or agrees to bargain, was a mandatory requirement which
touched upon the validity of a notice.25 The Vice President determined that a notice issued
after the time prescribed would not be a valid notice.26 Once an employer initiates bargaining
or agrees to bargain, the issuing of a valid NERR is a precondition to the approval by the
Commission of any subsequently negotiated enterprise agreement.27 The Vice President’s
analysis is in my respectful view, correct.
[44] The decision in Hunter Operations came into sharp focus during the course of the
proceeding because of the conflicting evidence about when, if at all, Skilled Offshore agreed
to bargain for a proposed enterprise agreement. Mr McLaren gave evidence that he believed
bargaining for an enterprise agreement commenced at a meeting with officers of Skilled
Offshore on 21 July 2015.28 In an email from Mr McLaughlin to Mr Wakelin and others dated
7 August 2015, Mr McLaughlin wrote that ‘[T]he ETU believes that the parties of (sic) the
24 [2014] FWC 7469.
25 Ibid at [70] – [78].
26 Ibid at [79].
27 Ibid at [72].
28 Transcript PN 430 – PN 432.
[2015] FWC 6727
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agreement by now have commenced good faith bargaining discussions to renew the
agreement prior to its expiry on the 19th August 2015’.29 Mr Dixon’s evidence is suggestive
of bargaining for an enterprise agreement having commenced sometime in early August
2015.30 The evidence of Mr Wakelin suggests that Skilled Offshore did not agree to bargain
for a proposed enterprise agreement until 9 September 2015 when it agreed to issue a NERR,
or on 14 September 2015 when the notice was issued to employees.31
[45] Given my earlier findings that:
the Unions identified the proposed agreement by at least 5 August 2015;
Skilled Offshore agreed to bargain when it agreed to issue a NERR on 9 September
2015 or on 14 September 2015 when it issued the notice to employees; and
the scope of the proposed agreement appears to be in issue,
it is unnecessary for me to consider the arguments advanced by Skilled Offshore
which are founded on the decision in Hunter Operations.
[46] In the circumstances, and given my earlier findings, I am satisfied that an application
in relation to a proposed agreement has been made under s.437 of the Act.
Whether each union has been and is genuinely trying to reach agreement with Skilled
Offshore
[47] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing And
Kindred Industries Union known as The Australian Manufacturing Workers’ Union;
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia; and The Australian Workers’ Union32, a Full Bench of the
Commission reviewed relevant Full Bench and Federal Court decisions concerning the
question of whether a bargaining representative has been and is genuinely trying to reach an
agreement with the employer. Relevantly for present purposes, extracts of the decision in Esso
are reproduced below:
‘[33] A number of Full Bench decisions have considered the meaning of ‘genuinely trying to
reach an agreement’ in s.443(1)(b) . . .
[34] In Total Marine Services Pty Ltd v Maritime Union of Australia (Total Marine) the Full
Bench upheld an appeal from a decision to grant an application for a protected action ballot.
The Full Bench held that the member at first instance had erred in concluding that the
applicant had genuinely tried to reach an agreement within the meaning of s.443(1)(b) in
circumstances where certain claims were ‘put to one side’; the negotiations involved limited
face to face meetings and limited articulation of many of the claims; many items were only set
out in a list of headings, being neither explained nor discussed; and no wage claim was
specified.21 In the course of its decision the Full Bench expressed the following views about
s.443(1)(b),:
29 Exhibit 5, Attachment 6.
30 Exhibit 4 at [15] – [25].
31 Exhibit 5 at [33] – [37].
32 [2015] FWCFB 210.
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB210.htm#P215_30529
[2015] FWC 6727
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“[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. At the very least one would normally expect the
applicant to be able to demonstrate that it has clearly articulated the major items it is
seeking for inclusion in the agreement, and to have provided a considered response to
any demands made by the other side. Premature applications, where sufficient steps
have not been taken to satisfy the test that the applicant has genuinely tried to reach an
agreement, cannot be granted.”
[35] For our part, for reasons we articulate later, we agree with the observations in paragraph
[31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note
that the observations which follow the first three sentences in paragraph [32] are obiter and
although we do not consider that they should be understood as attempting to establish any
binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the
earlier expressed proposition (with which we agree) that it is not useful to articulate any
alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were
expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ
Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA
(Farstad).
. . .
[47] The Full Bench decisions to which we have referred were all decided prior to the decision
of the Full Court of the Federal Court in J.J Richards Sons Pty Ltd and Another v Fair Work
Australia and Another. The applicants in that matter had contended that s.443 should be
construed in a way which conditioned its operation upon bargaining having commenced. The
Full Court rejected this proposition and held that a protected action ballot order under s.
443(1) of the Act may be made even though bargaining between an employer and employees
has not commenced. Jessup J held, at [30]-[31]:
“However, notwithstanding that perception, and notwithstanding my disagreement, in
one important respect, with the reasons of the Full Bench, it is not possible to construe
s 443(1)(b) as the applicants would propose. I agree with the Full Bench that the
contrast between the references to bargaining in Pt 2-4 of the Act, and the words
actually used in s 443(1)(b) is striking. I accept that, under s 15AA of the Acts
Interpretation Act 1901 (Cth), an interpretation should be favoured which would best
achieve the purpose or object of the legislation. That is no basis, however, for the
introduction of additional requirements or conditions which might have been, but which
have not been, enacted. There is every reason to perceive in s 443(1)(b) a departure
from the scheme of regulated bargaining set out by Pt 2-4 of the Act and, in that sense,
there is a certain tension with the object referred to in s 3(f). Such a perception,
however, would relate to the consistency of the implementation of legislative policy. It
would contribute little or nothing to the task of construction which confronted the Full
Bench.
In sum, the applicants’ case really amounts to no more than the proposition that the
legislature ought, consistent with the structure and policy of the Act as a whole, have
[2015] FWC 6727
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conditioned the power to make an order under s 443 upon the circumstance of
bargaining having commenced. However, that was a step which the legislature did not
take, and it is a step which FWA could not take. There was no jurisdictional error in the
protected action ballot order made by FWA on 16 February 2011 and confirmed by the
Full Bench on 1 June 2011.”
[48] As to the question of whether a bargaining representative has been and is genuinely trying
to reach an agreement, Flick J said:
“It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work
Australia cannot reach a state of satisfaction that an “applicant … is … genuinely trying
to reach an agreement with the employer” unless:
an applicant has approached the employer and informed the employer of the general
ambit of that for which agreement is sought; and
the employer has foreshadowed — even in the most general of terms — its attitude as
to the proposed agreement.
More may be required. Much may well depend upon the factual scenario in which the
terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is
required is sufficient to dispose of the present Application. Contrary to the submissions
advanced on behalf of the Applicants, the terms of s 443(1)(b) do not require:
bargaining to have commenced within the meaning of and for the purposes of s 173,
found within Pt 2-4 of the Fair Work Act.
So much, it is concluded, follows from the natural and ordinary meaning of the phrase
“trying to reach an agreement … ”. It is difficult to conclude that any person can try to
reach an agreement with another in the absence of a disclosure of that for which
consensus is sought. One person may wish to reach an agreement with another. But,
until the general content of the proposed agreement is disclosed, it cannot be said that
he has even attempted to reach an agreement. Until disclosed, it is not known whether
the other person will readily embrace the proposed agreement or shun it or (perhaps)
embrace the concept of an agreement but wish to vary one or other of its terms. Until
disclosed, the person seeking agreement has not even tried to solicit the response of the
other. Unless the disclosure is genuinely with a view to reaching agreement, it could
well be said that the attempt to reach an agreement falls short of a person even trying to
reach agreement. The addition of the word “genuine” — on one approach to
construction — perhaps adds little. But the addition of that term serves to emphasise the
importance of a person actually trying to solicit agreement. Until a proposed agreement
has been disclosed to the prospective parties, and a response solicited, an applicant has
not even tried to reach agreement — let alone genuinely tried to reach agreement.”
[49] Tracey J agreed with Jessup and Flick JJ that on its proper construction s.443(1) could not
be construed in the manner contended by the applicants:
“There is simply no warrant to read into the subsection words of limitation which do not
appear. The legislature has required that FWA must make a protected action ballot order
if the two conditions prescribed by s.443(1) are satisfied even if bargaining between an
employer and employees has not commenced.” [Endnotes omitted]’
[48] The Unions submitted that they each have been and are trying to reach agreement with
Skilled Offshore. I agree. It seems to me clear that Skilled Offshore has until recently
maintained a preference for an industry framework agreement to be negotiated before
bargaining for an enterprise agreement. The Unions have, since at least 5 August 2015, been
[2015] FWC 6727
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trying to reach an agreement with Skilled Offshore for an enterprise agreement to replace the
Current Agreement. In particular:
On 5 August 2015, an email was sent to Skilled Offshore from Mr Dixon on behalf
of the Unions attaching an amalgamated log of claims for a replacement agreement
to the Current Agreement;33
The combined log of claims identified a claim for 5% per annum increase, as well as
numerous other claims dealing with, inter alia:
o Status of employment;
o Long service leave;
o Superannuation;
o Communication;
o Redundancy;
o Overcycle;
o Point of engagement;
o Travel;
o Allowance matters;
o Agreement classifications;
o Additional agreement clauses;
o Safe work operations clause;
o Training and development; and
o Emergency and personal leave (casual and full time employee);34
Dispute proceedings were commenced by the AMWU in the Commission to further
discussions for a replacement agreement for the Current Agreement as contemplated
by Clause 5 of the Current Agreement,35 and a few days later the Unions gave
Skilled Offshore the combined log of claims referred to above.
The Unions attended conferences before Commissioner Cloghan after 5 August 2015
to try to persuade Skilled Offshore to engage with the obligation in Clause 5 of the
Current Agreement and thus they were trying to reach an agreement with Skilled
Offshore on how to approach negotiations for a replacement agreement;36
Although the Unions remained open to the possibility of participating in industry
framework agreement discussions, the Unions clearly expressed a preference to
commence negotiations with Skilled Offshore for a replacement enterprise
agreement for the Current Agreement;37
On 7 September 2015, at a conference in the Commission, the Unions made it clear
to Skilled Offshore that they wished negotiate with Skilled Offshore for an enterprise
agreement to replace the Current Agreement;38
This was followed by further correspondence from the Unions;39
33 Exhibit 4, MWD-2.
34 Exhibit 4, MWD-3.
35 Exhibit 3, GM-6.
36 Exhibit 3; Exhibit 2 at [26]-[27].
37 Exhibit 4, MWD-2, MWD-4, MWD-5, MWD-6; Exhibit 5, Attachment 6.
38 Exhibit 3 at [56]-[57].
[2015] FWC 6727
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On 9 September 2015, Skilled Offshore advised each of the Unions that it would
issue NERRs;40
[49] It seems clear enough that Skilled Offshore had not agreed to bargain for a proposed
enterprise agreement until after the application for a PABO was made by the Unions,
however, that bargaining must have commenced is not a precondition to satisfaction by the
Commission that an applicant for a PABO has been, and is, genuinely trying to reach an
agreement with the employer of the employees who are to be balloted. 41 It is also clear
enough that the Unions had approached Skilled Offshore and informed Skilled Offshore of
the general ambit of that for which agreement was sought, at least by 5 August 2015, and that
Skilled Offshore had foreshadowed its attitude to the proposed agreement, namely that it
preferred to negotiate an industry framework agreement, and only later, after the PABO
application was made, did it agree to bargain for an enterprise agreement, albeit judging by
the terms of the NERR, it prefers an agreement with a narrower scope than that which is
proposed by the Unions. Given Skilled Offshore’s reluctance to bargain in relation to the
proposed agreement sought by the Unions, there is little more that could have been expected
from the Unions although I note that they sought to advance their position about the proposed
agreement through the initiation of and participation in dispute proceedings in the
Commission and that this was done before the application for a PABO was made.
[50] Skilled Offshore submitted that the dispute proceedings were initiated because of a
frustration that Skilled Offshore had not issued the NERR. It submitted that the steps taken by
the Unions thereafter were for the purpose of achieving that outcome through trying to resolve
the matter of the type of agreement to be bargained for. Their try was not to reach an
agreement that had been identified. Accordingly, Skilled Offshore submitted that this step
cannot be characterised as a genuine try to reach an agreement within the meaning of
s.443(1)(b).
[51] This submission cannot be accepted. The relief sought by the AMWU in the dispute
proceeding application is expressed in the following terms:
‘The AMWU is seeking the assistance of the Fair Work Commission in facilitating the
commencement of negotiations for a replacement enterprise bargaining agreement, in the most
expeditious manner possible.’42
[52] In the circumstances, I am satisfied on the material before me that each Union has
been and is genuinely trying to reach an agreement with Skilled Offshore, being the employer
of the employees who are to be balloted.
Questions to be put to the employees who are to be balloted
[53] By an amended draft PABO filed by the Unions, it is proposed that the employees who
are to be balloted be asked the following:
39 Exhibit 3, GM-15.
40 Exhibit 5 at [34].
41 J.J Richards Sons Pty Ltd and Another v Fair Work Australia and Another (2012) 201 FCR 297.
42 Exhibit 3, GM-6.
[2015] FWC 6727
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For the purposes of supporting or advancing claims in respect of the proposed enterprise
agreement with your employer, do you endorse the following protected industrial action
against your employer (to be taken either separately, concurrently and/or consecutively):
1. An unlimited number of stoppages on the performance of work between 30
minutes and up to and including 24 hours? (excluding work that is required by
trained and qualified persons of the emergency response teams as required by
occupational health and safety legislation and regulations)
2. Bans on the performance of administrative work (except for the performance of
any work required to be undertaken by legislation including any action, process or
work consistent with Occupational Safety and Health legislation)?
[54] Skilled Offshore submitted that an application under s.437(1) must be in relation to
‘particular protected industrial action’ and that the application must specify the nature of the
‘proposed industrial action’. ‘Industrial action’ includes the performance of work by an
employee in a manner different from that in which it is customarily performed, the result of
which is a restriction or limitation on, or a delay in, the performance of the work. It submitted
that given the width of the proposed action contemplated by question 1, it was possible that
there would be a period of six hours during which employees, including those at whom the
PABO is directed, would be unable to perform ordinary pipelaying activities.
[55] It was submitted that this would not be as a result of industrial action that is employee
claim action but rather, as a necessary consequence of the industrial action taken at that time.
Namely, it would be because of the fact that the inability to perform work as normal in the
period of six hours is part and parcel of the preceding and subsequent industrial action and
possibly inherent in the industrial action described in question 1. It was submitted that, in
light of the formula that the proposed industrial action is to be taken either separately,
concurrently and/or consecutively, the number of combinations and permutations of stoppages
inherent in question 1, that there are very many possibilities of circumstances arising akin to
that described.
[56] Skilled Offshore submitted that in effect, question 1 includes a question that asks
employees to support action including action that is not industrial action. For this reason, the
action specified in question 1 goes further than ‘industrial action’. Consequently, question 1 is
not in accordance with s.437(3).
[57] Skilled Offshore submitted further, that as such, question 1 seeks to poll employees on
whether they will approve action which could include action that creates unsafe conditions for
themselves and others.
[58] Skilled Offshore contended that such action is not ‘industrial action’ within the
meaning of that term in s.19(1). It submitted that Parliament could not have intended
otherwise as that would require an interpretation of the Act as having primacy over
occupational health and safety legislation.
[59] It was submitted that there are many indications in the Act, beginning with s.19(2),
that demonstrate that Parliament intended that the term ‘industrial action’, albeit broad, should
not be interpreted such that employees could take action that flouts safety requirements.
Question 1 is not in accordance with s.437(3) for this reason as well.
[2015] FWC 6727
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[60] I deal with the second of these propositions first. Section 408 of the Act sets out the
meaning of protected industrial action:
‘408 Protected industrial action
Industrial action is protected industrial action for a proposed enterprise agreement if it is one
of the following:
(a) employee claim action for the agreement (see section 409);
(b) employee response action for the agreement (see section 410);
(c) employer response action for the agreement (see section 411).’
[61] Relevantly s.409 provides:
‘409 Employee claim action
Employee claim action
(1) Employee claim action for a proposed enterprise agreement is industrial action that:
(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to
the agreement that are only about, or are reasonably believed to only be about, permitted
matters; and
(b) is organised or engaged in, against an employer that will be covered by the agreement, by:
(i) a bargaining representative of an employee who will be covered by the agreement; or
(ii) an employee who is included in a group or groups of employees specified in a protected
action ballot order for the industrial action; and
(c) meets the common requirements set out in Subdivision B; and
(d) meets the additional requirements set out in this section.
Protected action ballot is necessary
(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this
Part).
Unlawful terms
(3) The industrial action must not be in support of, or to advance, claims to include unlawful
terms in the agreement.
Industrial action must not be part of pattern bargaining
(4) A bargaining representative of an employee who will be covered by the agreement must
not be engaging in pattern bargaining in relation to the agreement.
Industrial action must not relate to a demarcation dispute etc.
(5) The industrial action must not, if it is being organised or engaged in by a bargaining
representative, relate to a significant extent to a demarcation dispute or contravene an FWC
order that relates to a significant extent to a demarcation dispute.
[2015] FWC 6727
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Notice requirements after suspension order must be met
(6) If section 429 (which deals with employee claim action without a further protected action
ballot after a period of suspension) applies in relation to the industrial action, the notice
requirements of section 430 must be met.
Officer of an employee organisation
(7) If an employee organisation is a bargaining representative of an employee who will be
covered by the agreement, the reference to a bargaining representative of the employee in
subparagraph (1)(b)(i) of this section includes a reference to an officer of the organisation.’
[62] Two provisions of the Act tell against construction advanced by Skilled Offshore. The
first is the immunity provision in s.415 of the Act which provides:
‘415 Immunity provision
(1) No action lies under any law (whether written or unwritten) in force in a State or Territory
in relation to any industrial action that is protected industrial action unless the industrial action
has involved or is likely to involve:
(a) personal injury; or
(b) wilful or reckless destruction of, or damage to, property; or
(c) the unlawful taking, keeping or use of property.
(2) However, subsection (1) does not prevent an action for defamation being brought in
relation to anything that occurred in the course of industrial action.’
[63] It seems clear from the structure of s.415 that protected industrial action might involve
the OHS consequences foreshadowed by Skilled Offshore, but that where such action ‘has
involved or is likely to involve’ personal injury, the protected industrial action ceases to have
the benefit of the immunity provision. Provided the action is of a kind described in s.19 of the
Act, the fact that it may involve a risk to health and safety does not mean that it is not
industrial action, although it may mean that the immunity conferred by s.415 is lost in relation
to such action.
[64] Secondly, there are other provisions in ss.424 and 431 of the Act which provide
respectively:
‘424 FWC must suspend or terminate protected industrial action—endangering life etc.
Suspension or termination of protected industrial action
(1) The FWC must make an order suspending or terminating protected industrial action for a
proposed enterprise agreement that:
(a) is being engaged in; or
(b) is threatened, impending or probable;
if the FWC is satisfied that the protected industrial action has threatened, is threatening, or
would threaten:
[2015] FWC 6727
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(c) to endanger the life, the personal safety or health, or the welfare, of the population or of
part of it; or
(d) to cause significant damage to the Australian economy or an important part of it.
431 Ministerial declaration terminating industrial action
(1) The Minister may make a declaration, in writing, terminating protected industrial action
for a proposed enterprise agreement if the Minister is satisfied that:
(a) the industrial action is being engaged in, or is threatened, impending or probable; and
(b) the industrial action is threatening, or would threaten:
(i) to endanger the life, the personal safety or health, or the welfare, of the population or a part
of it; or
(ii) to cause significant damage to the Australian economy or an important part of it.
(2) The declaration comes into operation on the day that it is made.
(3) A declaration under subsection (1) is not a legislative instrument.’
[65] It seems to me these provisions would have no work to do if industrial action could
never include action involving any risk to health or safety.
[66] Accordingly, the narrow construction of the meaning of industrial action contended for
by Skilled Offshore is rejected.
[67] As to the first of the propositions advanced by Skilled Offshore, it seems to me that it
amounts to no more than a complaint that the potential combination of industrial action
combined with the possible downtime that might result from particular forms of industrial
action has the undesirable outcome that the total downtime will be a significantly longer
period than the period of industrial action that has occurred. Industrial action is inherently
designed to cause inconvenience and sometimes harm to an employer’s operation. It does not
follow that the consequence of the industrial action, in this case the period of downtime, is
itself industrial action or that the consequence must separately be authorised by a protected
action ballot. The first proposition is also rejected.
[68] As to the second form of industrial action for which authorisation is sought through
the ballot, Skilled Offshore submitted it does not adequately inform employees of what it is
they are being asked to approve and so it does not specify the nature of the industrial action
which is required by s.437(3) of the Act.
[69] Questions in a PABO should be stated with sufficient clarity so as to enable an
employee to make an informed choice about whether to approve the nature of the industrial
action identified in question.
[70] In John Holland Pty Ltd v AMWU and AWU43 a Full Bench of Fair Work Australia
(FWA) observed in relation to questions describing the nature of industrial action proposed
for a protected action ballot order that:
43 [2010] FWAFB 526.
http://www.fwc.gov.au/decisionssigned/html/2010fwafb526.htm
[2015] FWC 6727
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‘. . . seen in its statutory context, all workers section requires is that the question should
describe the industrial action in such a way that employees are capable of responding to them.
If the questions are ambiguous or lack clarity there may be consequences for the bargaining
representatives and the employees if reliance is placed on the result of the ballot in taking
industrial action. If the question or questions give rise to ambiguity, conclusion may be
reached at the industrial action specified in a notice under section 414 was not authorised by
the ballot and that the action is not protected for the purposes of section 409(2). It is true that
ambiguity or lack of clarity in the description of industrial action is undesirable, but these are
matters more appropriate for consideration under other provisions. It follows that in most
cases the drafting of the questions will be a matter for the applicant.’44
[71] It seems to me, on the face of the question proposed, that it describes the nature of the
industrial action for which authorisation is sought, and does so in a way that employees are
capable of responding to the question. That there may be some uncertainty as to what work
may fall within the description of ‘administrative work’ does not detract from the adequacy of
the described nature of the industrial action or the capacity of employees to respond to the
question. It seems to me that the question is sufficiently clear to enable it to be answered by
the employees who will participate in the ballot. Of course, disputes may later arise if notice
of an administrative work ban is given, whether particular work that is the subject of the ban
is administrative work or not. The Unions are now on notice of the concerns of Skilled
Offshore and of the possibility of consequences on the banning of work which might not be
said to be administrative work.
Ballot
[72] Skilled Offshore raised a number of concerns about the timing and terms on which the
ballot is to be conducted. Without reciting each concern, they related generally to timing,
compilation of the voter roll, information to voters and confidentiality of the employee list. I
have taken into account some of the concerns in the PABO than I make.
Extended notice of industrial action
[73] The Commission may order that the period of notice for protected industrial action
referred to in s.414(2)(a) be longer than three working days, if satisfied that there are
exceptional circumstances justifying such an extension. Skilled Offshore sought a period of
notice of seven working days in the event that a PABO was issued.
[74] The following evidence led by Skilled Offshore, largely from Mr Giuseppe Tese’, the
Project Director of the Ichthys Gas Fields Development Project Saipem (Saipem) and Mr Paul
Schneider, Skilled Offshore’s Industrial Relations Advisor, is relevant to the question whether
there are exceptional circumstances, remembering that a purpose of the notice is to enable the
employer to have some time to take steps to respond to or ameliorate the effects of the
industrial action that is to be taken:
The Castorone, the vessel on which the relevant employees work, is undertaking
pipelaying operations at a remote location, which at the time of the hearing was 132km
from the Western Australian coastline; 45
44 Ibid at [19].
45 Exhibit 7 at [21].
[2015] FWC 6727
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There are around 600 employees of the respondent performing work on a fly-in fly-out
roster basis in relation to the Castorone. Approximately 300 are on board at anyone time,
with the remaining 300 offswing;46
The work performed by the employees to be balloted is complex;47
In the event of a stoppage of 12 hours or more, and subject to weather conditions, Saipem
may have to abandon the pipeline to the seabed. That process takes approximately 13
hours to complete. Recovery of the pipeline takes a further nine hours to complete. The
construction crew would also be required to attend a one hour pre-start meeting before
recommencing production:48
As a result, Saipem will lose 23 hours of production time if the pipeline is abandoned,
during which time the construction crew is unable to perform its normal duties and all
production is stopped:49
Skilled Offshore would need to take responsive action to ensure the safety of the crew on
the vessel in the event that it received notice of protected industrial action;50
Such action may require Skilled Offshore to bring in extra crew to perform duties that
would otherwise not be performed;51
If a decision to bring in extra crew were made, Skilled Offshore must give Saipem at least
48 hours' notice before bringing that crew to the vessel,52
While the nature of the industrial action notified will doubtless determine the nature and
extend of Skilled Offshore’s required response, depending on the nature and duration of
the action notified, the Skilled Offshore may have to remove some or all of its crew from
the Castorone and such a course of action would take 96 hours at a minimum, and may
take longer depending on the availability of appropriate transportation and unfavourable
weather conditions.53
[75] Mr Tese’ was not required for cross-examination54 and Mr Schneider was not cross
examined about the matters noted in the last four dot points above.55 I accept their evidence.
[76] Consequently based on that evidence, the industrial action as currently framed by
question 1, could, depending on the nature and duration of the proposed industrial action of
which notice is given, require Skilled Offshore and Saipem to take responsive action
involving a combination of abandoning the pipeline, removal of crew and transportation of
new crew to the vessel, prevailing weather conditions and the availability of transport and
crew. Given the remote location at which industrial action would occur and the consequences
of that action, I am satisfied that there are exceptional circumstances and I am further satisfied
that those circumstances warrant a period of written notice referred to in s.414(2)(a) for
46 Transcript PN 355-PN 357.
47 Exhibit 7 at [27]-[49].
48 Ibid at [56]-[58].
49 Ibid at [60].
50 Exhibit 6 at [16].
51 Ibid.
52 Ibid.
53 Ibid.
54 Transcript PN 800-PN 805.
55 Transcript PN 748-PN 796.
[2015] FWC 6727
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protected industrial action contemplated by question 1 being longer than three working days.
The PABO that I make will require the notice period to be given to be seven working days.
[77] There is no warrant for extending the notice period in relation to the industrial action
described in question 2.
Appointment of ballot agent
[78] The application made by the Unions proposes that an agent, namely RMK Investments
Pty Ltd trading as the Australian Electoral Company (Proposed Agent) be appointed to
conduct the ballot. This course was not opposed by Skilled Offshore. On the basis of the
uncontested material contained in the statutory declaration of Mr Richard Kidd, the Principal
of the Proposed Agent, I am satisfied of the matters set out in s.444(1)(a) and (b). I therefore
propose to appoint the proposed agent as ballot agent for the protected action ballot.
Conclusion
[79] For the reasons given, I have decided to issue a PABO because I am satisfied that in
relation to the proposed enterprise agreement, an application has been made the by the Unions
under s.437, and that each Union has been and is genuinely trying to reach an agreement with
Skilled Offshore, the employer of the employees who are to be balloted. The PABO that I
make is a modified version of the draft order submitted by the Unions on 25 September 2015.
I am also persuaded to exercise my discretion to order that the period of notice referred to in
s.414(2)(a) for protected industrial action contemplated by question 1, being longer than three
working days, because I am satisfied that there are exceptional circumstances justifying such
an extension. The period of notice will be seven working days.
[80] A protected ballot order is separately issued in PR572477.
DEPUTY PRESIDENT
Appearances:
P Lim for “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”
known as the Australian Manufacturing Workers’ Union (AMWU)
N O’Brien for Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia
E Douglas for Australian Workers’ Union
T Caspersz for Skilled Offshore Pty Ltd
WORK COMMISSION THE SEAL OF
[2015] FWC 6727
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Hearing details:
2015.
Perth:
15 September.
Melbourne:
25 September.
Printed by authority of the Commonwealth Government Printer
Price code C, PR572422
