1
Fair Work Act 2009
s.236 - Application for a majority support determination
Australian Workers' Union, The
v
QGC Pty Limited
(B2016/915)
COMMISSIONER SIMPSON BRISBANE, 24 OCTOBER 2016
Application for Majority Support Determination for Gas Plant Operators and Gas Plant Lead
Operators in Surat Basin –Petition satisfactory method to determine majority support –
Weighing of the extent of integration with other employees against distinct features of group
chosen - Group of employees to be fairly chosen – Application granted.
Background
[1] This decision relates to an Application made by The Australian Workers’ Union (the
AWU) under s. 236 of the Fair Work Act 2009 (the Act) for a majority support determination
to undertake bargaining for an agreement to cover employees of QGC Pty Limited (QGC).
[2] The Application was filed on 24 August 2016 and was listed for directions on 29
August 2016. At the directions hearing QGC foreshadowed it would contest the application
including that the group of employees was fairly chosen and directions were issued on 29
August 2016 listing the matter for hearing for Tuesday 11 October 2016. The directions
required the AWU file an original unredacted version of the document entitled “Majority
Support Petition” by 5pm Tuesday 30 August 2016, and that QGC produce to the Fair Work
Commission (FWC) an extract from its payroll records that identified each of the employees
within its employment who fall within the functional categories specified in the application as
at the date the application was filed being 24 August 2016, by 31 August 2016.
[3] These directions were complied with by the parties except to the extent that the
unredacted version of the “Majority Support Petition” provided to the FWC was not the
original documents. Mr McKernan for the AWU explained at the hearing on 11 October 2016
that the reason for this was that he handed an unredacted copy of the petition to my Associate
at the directions hearing that was a copy of the originals. The original documents were
subsequently provided to the FWC in the course of the hearing on 11 October 2016.
[4] The parties filed witness statements and submissions in accordance with the directions.
QGC was also directed to produce a second list to the FWC of an extract from its payroll
records that identified the same functional categories specified in the application as at 6
October 2016 and this was duly done.
[2016] FWC 6671 [Note: An appeal pursuant to s.604 (C2016/6512) was
lodged against this decision - refer to Full Bench decision dated 3 March
2017 [[2017] FWCFB 1165] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017FWCFB1165.htm
[2016] FWC 6671
2
[5] On 21 September 2016, Mr Ian Humphries of Ashurst filed a Notice of
Representatives Commencing to Act on behalf of QGC. The AWU objected to QGC being
represented by a lawyer however permission was granted at the commencement of the hearing
with reasons given in transcript.
[6] The AWU relied on witness statements from Mr Troy Spence, the AWU Metals and
Construction District Secretary1, and six employees of QGC employed as Gas Plant
Operators, namely Mr David Cashman,2 Mr Barry Brown,3 Mr Cobus van der Westhuizen,4
Mr Peter Dawson,5 Mr Russell Corcut,6 and Mr Travis Murphy.7 QGC relied on one witness,
Mr Robert Maxwell,8 the Upstream Asset Manager.
[7] At the commencement of the hearing on 11 October 2016, QGC raised an objection to
Mr Spence giving his evidence by telephone, however this objection was dismissed for
reasons given in transcript including that permission for witnesses to give evidence by phone
was granted at the earlier directions hearing.
Relevant Legislation
[8] The relevant statutory provisions under which the application is made and is to be
determined are set out below:
“236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed
single enterprise agreement may apply to the FWC for a determination (a majority
support determination) that a majority of the employees who will be covered by the
agreement want to bargain with the employer, or employers, that will be covered by
the agreement.
(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.”
“237 When the FWC must make a majority support determination
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
[2016] FWC 6671
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(2) The FWC must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time
determined by the FWC; and
(ii) who will be covered by the agreement;
want to bargain; 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.
Operation of determination
(4) The determination comes into operation on the day on which it is made.”
Consideration
[9] The AWU submitted that its application satisfied s.236 of the Act because the AWU is
a bargaining representative of some of the employees of QGC by virtue of s.176(1)(b) of the
Act; the application specifies the name of the employer to be covered by the agreement; and
the application specifies the group of employees to be covered by the agreement. The
Respondent did not dispute that s.236 was satisfied. I accept s.236 is satisfied.
Section 237(1)(a)
[10] This section requires the FWC to be satisfied of the matters contained in section
237(2).
Section 237(2)(a) “Majority of employees want to bargain”
[2016] FWC 6671
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[11] The AWU submitted that the Commission can be satisfied that the requirements of
s237(2)(a) have been met, because it submitted a petition signed by a majority of the
employees proposed to be covered by the agreement.
[12] The AWU submitted that a petition prepared by an employee organisation is a method
the FWC considers appropriate for the purposes of 237(2)(a). It relied on the decision in
National Union of Workers [2016] FWC 3910 at [19].
[13] The AWU petition contains 10 separate pages. Each page contains the following
words at the head of the page:
“Majority Support Petition
We, the undersigned employees of QGC PTY LTD employed in the classifications of
Gas Plant Lead Operators and Gas Plant Operators at QGC’s Surat Basin Operations,
wish to commence bargaining for an Enterprise Agreement with our employer. We
appoint the Australian Workers’ Union as our bargaining representative. We
understand that this document will be provided to the Fair Work Commission or a
Court of competent jurisdiction as evidence for the purposes of determining that a
majority of employees want to commence bargaining in accordance with s237 of the
Fair Work Act 2009.”
[14] On each of the pages under the wording above was a table with three columns headed,
Name, Signature and Date respectively. The 10 pages contained 42 signatures, however as
had been identified from the copy of the unredacted petition, three persons had signed the
petition twice. All three of those persons first signed the petition on 9 February 2016 and two
of them signed again on a different page on 9 May 2016. The other person signed a second
time on a different page on 22 May 2016.
[15] A further 11th page of the petition not filed with the application and signed and dated
13 April 2016 was provided by Mr Mitchell of QGC to the FWC at the directions hearing
where he advised that it appeared to have inadvertently been delivered to him. Mr McKernan
for the AWU advised at the hearing that the petition had been in an envelope addressed to the
Charleville AWU office.9 In any event the person whose name appeared on this 11th page had
also previously signed the petition on 11 May 2016, so this additional signature has been
excluded from the count along with the other three employees.
[16] The extract from QGC’s payroll records produced on 31 August 2016 to the FWC
identified 67 employees as being employed under the position name of Gas Plant Operator or
Lead Gas Plant Operator. The further extract produced by QGC on 6 October 2016 identified
66 employees as being employed as Gas Plant Operator or Lead Gas Plant Operator. The
reduction from 67 to 66 in the five weeks period between the filing of the two lists was
explained in the evidence of Mr Maxwell10 by the departure of one employee who had not
been replaced. No other evidence was put before me of any further changes to the number of
66 QGC employees as at 6 October 2016 and on that basis I accept 66 as the number of
employees as at the date of hearing.
[17] The name of the first person to sign the petition on 8 February 2016 is not a name that
appears on either of the lists provided by QGC. On that basis I will excluded that name and
signature from the count. The exclusion of the person whose name does not appear on the
[2016] FWC 6671
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QGC lists reduces the number of signatures on the petition to be counted to 38. All of the
remaining persons whose name and signature appear on the petition also appear on both of the
lists provided by QGC.
[18] I accept the submission of QGC that on the particular facts of this case the appropriate
time to assess the majority support is the date of the hearing. As at the date of the hearing a
majority of the 66 employees employed at the time of the hearing equates to 34 employees.
On that basis 38 represents a clear majority.
[19] QGC submitted that is not the end of the matter (concerning satisfaction of
s.237(2)(a)) however and that the FWC cannot accept the petition at face value, and in the
circumstances of this case the FWC would be hazarding a guess11 to accept the petition. QGC
referred to the decision in Media, Entertainment and Arts Alliance [2014] FWC 8898 where
Commissioner Cribb relied on certain evidence to be satisfied that she could rely on a petition
to be satisfied a majority of employees wanted to bargain.
[20] Commissioner Cribb, in the course of her conclusions in that matter, observed that the
petition that was circulated made it quite clear to those who were considering signing it, as to
the purpose of the petition.12 Mr Humphreys in closing submissions suggested that the words
introducing the petition are not clear as the words only state the classifications named and that
employees may not have understood that was the proposed scope of the proposal.13 The words
on their plain meaning refer to the particular classifications of Lead Gas Plant Operator and
Gas Plant Operator wanting to commence bargaining for an enterprise agreement with their
employer. The petition makes no reference to any other group. I am satisfied the petition
clearly stated its intention and what employees were being asked to sign and it is unlikely
employees would have misunderstood that.
[21] QGC have argued Commissioner Cribb turned her mind to the matter of whether there
was evidence of employees being aware of what they were signing. Contrary to the
submission of QGC that there was no such evidence in this case, there was witness evidence
from a number of witnesses concerning the reasons they signed the petition.
[22] Of the 38 employees who signed the petition and are not excluded from being counted
for some other reason, six of them have taken the further step of providing witness statements
and in doing so identifying themselves to their employer and also giving evidence about the
reasons for their desire to bargain with their employer and also criticising their employer in
some respects concerning industrial issues. I have set some of this evidence below.
[23] Mr Cashman’s statement included the following:
“31. I never had an opportunity to negotiate a salary with the gas plant operations when
I applied, while others did.
32. I believe there is no pay structure which is clear.
33. I also believe I have been disadvantaged in pay and benefits compared to 457
workers.
[2016] FWC 6671
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34. I believe that the contractors such as Broadspectrum who work in the company
have an Enterprise Agreement which gives them better conditions than the company
workers. For instance call outs, penalties for weekends and overtime etc.
35. I support the AWU application as it will lead to pay equality with all operations
persons and a fairer pay structure based on qualifications and experience.
36. I also signed the petition as I hope it will lead to general fairness and less bullying
tactics by poor management.”14
[24] Mr Brown’s statement included the following:
“37. Having worked under an Award and an EBA in the past I have seen this to be a
fairer system for both parties with both parties knowing what is expected in pay and
conditions for a set period of time and both parties have negotiated this outcome.
38. The way it currently is management have full control over the terms and
conditions and decide which policies apply on any given day.”15
[25] Mr van der Westhuizen’s statement included the following:
“21. I signed the AWU petition because I have ongoing issues.
22. I had numerous enquiries through previous Managers and HR about pay disputes
which could not be solved in the last three years.
23. Conditions in my initial contract have been changed without any compensation or
discussion and on enquiries, when I got feedback, it was only to wait for the annual
performance reviews which did not correct the situation. To this date it is still not
fixed.
24. I am measured on the same goals and targets as my colleagues but am on about
20% lower pay rate.”
[26] Mr Peter Dawson’s statement included the following:
“32. I signed the AWU petition to enter into a collective bargaining agreement for Gas
Plant Operators working for QGC.
33. Unfortunately it has been my experience that QGC do not treat employees fairly
with respect to employment conditions.”16
[27] Mr Russell Corcut’s statement included the following:
“22. I support the application of the AWU as I would like my work conditions and
remuneration to be bound by an enterprise agreement and not an individual contract.
23. I find the wording of our contracts confusing and have had difficulties
understanding how they should be interpreted.
[2016] FWC 6671
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24. Having worked under enterprise agreements previously I find them to be a fairer
system for both employers and employees and would like the AWU to assist both
QGC and Gas Plant Operators to make this a reality for the benefit of both parties.”17
[28] Mr Travis Murphy’s statement included the following:
“14. I signed the AWU petition because I am tired of the continued bullying by QGC
and the fact the contracts are worded vaguely leaving it open to interpretation.
15. There is no consultation when it comes to changes from my current contract and a
total disregard for the effects it has on me and my family.
……………………
20. The other reason for signing is that for the last three years there has been a
constant threat of losing the 30% shift allowance. QGC have stated it was for doing
even time day and night shift but in my contract it was only stated as being a shift
allowance.
21. QGC have continually changed the definition of shift work and when asked for the
documentation to show where they got their definition from they have failed to
produce such documents.”18
[29] Contrary to the submission of QGC that employees may not have understood the
purpose of the petition, the evidence of these witnesses (five of the six statements were
admitted uncontested) when added to the clear explanation on the petition itself of its purpose
provides a reasonable basis to draw the conclusion that the purpose of the petition was
understood amongst the wider group.
[30] There is no evidence of circumstances to suggest employees did not understand what
they were signing for reasons such as employees being from a non-English speaking
background. There is no evidence of employees being coerced to sign the petition.
[31] As set out above each page of the petition clearly describes the group signing the
petition as:
“employees of QGC PTY LTD employed in the classifications of Gas Plant Lead
Operators and Gas Plant Operators at QGC’s Surat Basin Operations.”
The scope of the group did not change from when the first signatures appeared on the petition
in February to the last signature in August 2016.
[32] QGC have also identified the length of time that has elapsed since the first signatures
leading to a conclusion that the petition is stale.
[33] Having excluded the one signature obtained on 8 February 2016, the other dates
appearing next to the names and signatures on the petition are:
9 February (10 signatures),
10 February (2 signatures),
[2016] FWC 6671
8
22 March (2 signatures),
18 April (4 signatures),
28 April (2 signatures),
9 May (2 signatures),
11 May (1 signature),
12 May (1 signature),
13 May (1 signature),
25 May (6 signatures),
3 June (1 signature),
1 June (1 signature),
26 July (1 signature),
27 July (2 signature),
28 August (1 signature),
5 August (1 signature).
[34] I have excluded from the number of signatures made on particular dates above the
three occasions when three employees signed a second time. As part of QGC’s challenge to
the reliability of the petition it has also raised a concern about the fact of the three employees
signing the petition twice.
[35] A further criticism of the petition by QGC has been that the AWU has not called direct
evidence concerning the collection of the signatures because Mr Spence was not at the
location where the petitions were signed when they were signed, and this raises concerns
regarding the maintenance of custody and control of the petition.
[36] QGC referred to the decision of Commissioner Roe in National Union of Workers’ v
Cotton On Group Services Pty Ltd [2014] FWC 6601 and specifically paragraph [36] of that
decision which reads as follows:
“There is no evidence before me of employees signing under duress or based on false
information. I was satisfied by the evidence of the union organisers that they made all
reasonable efforts to ensure that employees were properly informed prior to
completing the petition. The petitions have been kept reasonably secure as they were
mainly collected by the organisers and removed from site. There is no evidence to
suggest that employees have changed their mind and there are no circumstances which
might lead to such an inference or apprehension. If there was such evidence then the
lengthy period of time since the first petitions were gathered would give rise to
concern and might lead me to decide that a further expression of view was required.”
[37] Mr Spence’s evidence is central to the challenges to the petition made in the QGC
submissions. In his evidence Mr Spence said that as part of his role he had responsibility in
assisting in the organising of employees employed by QGC in the Surat Basin. Mr Spence
said employees approached the AWU seeking that the AWU bargain on behalf of employees
eligible to be members of the AWU. He said after discussing options with QGC employees,
AWU members asked the AWU to prepare a Majority Support Petition for signing in an
attempt to get QGC to the negotiating table.19
[38] Mr Spence gave evidence that the employees whose names and signatures appear on
the petition are eligible to be members of the AWU and are engaged in classifications as
prescribed by the petition.20
[2016] FWC 6671
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[39] Mr Spence also said employees made a decision without coercion to request a petition
be drafted by the AWU for signing by employees seeking to bargain, and the AWU prepared
the petition.21
[40] Mr Spence said due to the decentralised nature of the work locations copies of the
petition were distributed by former Western District Secretary Jack Liston, Western District
Secretary Terry Cross and himself. Mr Spence said once signed by members, these petitions
were either collected by Mr Liston in person or posted to the AWU Charleville Office and the
Metals and Construction District Office located in Brisbane.22
[41] Mr Spence explained during his evidence that Mr Liston left the union due to health
issues23 and Mr Cross replaced him as AWU Western District Secretary after Mr Liston’s
resignation.24
[42] Mr Spence gave evidence the petitions were received either directly from Mr Liston,
or they had been returned to himself or Mr Cross after emailing the document, having it
signed, scanned and emailed back with the original copy of the document being returned
latter. He gave the following evidence:
“You said electronically, were they distributed electronically were they? ---So there are
a range of petitions which I understand Mr Jack Liston was handed personally, so
when there was a handover from Mr Liston’s leaving he had posted those original
petitions to myself at the AWU office, which I’d have copies of the originals or the
originals. So I understand they were handed to him personally, and then so Mr Cross
and I were – became involved in the matter more directly, in terms of myself and Mr
Cross newly involved. We would, where people said they wished to sign the petition
supporting the application for an enterprise agreement, we would email them a copy,
an electronic copy of the petition, they would then sign it, all people within the work
group would sign it and one of those people would then scan it in and send us a
scanned copy of what had been signed, and then the original would be posted back to,
initially the Charleville office, and then over time we decided to make it the Brisbane
office in terms of making the logistics easier.25
So if I understand that correctly then the originals, there would be no original which
contained a series of original signatures on the one document? ---There would
absolutely. So often the petitions you’ll see where they have a date which is similar,
they will be a petition that was signed initially by some and then initially by others,
but there is an original document which contained the signatures and all the signatures
are on the original documents. And that was important to us, Mr Humphreys, in terms
of ensuring that we had the original documents so that we could, I guess, and, you
know, form a view ourselves that these were legitimate people signing to a particular
thing and that they were also members of the AWU.26
Thank you for that again. Now, so you say that they were distributed by Mr Liston,
Mr Cross and yourself. Were they distributed in hard copy at all or only in the
electronic way to which you referred? ---I think Jack had, or Mr Liston, had
distributed them in hard copy in person when he was still with the organisation. And
often you’d get people either meeting in locations from – and once again this is from
what Mr Liston has advised me, that in some instances he’d met with groups of
[2016] FWC 6671
10
members who signed on the same day. In other instances members would, or potential
members, would take these away and get them signed and then either hand them back
to him in person or post them back to him.27
So you have no direct knowledge as to what Mr Liston did with those hard copies?---
Well, I don’t know what he did in terms of how he distributed those but I certainly
have the documents that he said that he had received, the originals that people had
signed, so I know where they ended up. They ended up with me in my office with Mr
Cross.”28
[43] Further in his evidence Mr Spence said as follows:
“You don’t know the precise way in which the petition was distributed?---Well, I’ve
had obviously a range of conversations with employees who were involved in signing
the petition at the initial stages, and I think the provenance of those documents is
probably February 2016, so obviously while I have had conversations with employees
who have had their name and signature on a petition, I have had conversations with
them about how that occurred, so I know how some of the – and I’ve spoken directly
these arrangements for people who have their name down and a signature and a date. I
have not met those people in person but I have formed a view that, based on the
original documents that was provided, and based on my conversation with the person
who say they are the person on the document, that they have in fact signed the
document. Some have said they did it in a group meeting in or around February.
Others have advised that they did it back with their work crew and the same document
was signed by various people over particular days.”29
[44] Again on the matter of the petition Mr Spence gave the following evidence:
“Similarly you can give no direct evidence as to the circumstances surrounding the
signatures which appear in the other sheets of the petition through to the most recent of
5 August 2016; that’s correct isn’t it?---So what I rely upon in terms of the most recent
petitions, Mr Humphreys, is that ---30
Can you answer the question please? --- Yes. So in terms of the most recent petitions
that have been signed the process that I have engaged in was to contact people
directly, to then email them a copy of the petitions, have them sign it, then email it
back to me directly and then post – put the original in the post, so I certainly wasn’t
there to see them sign it but, based on the way electronic correspondence is received
these days, I formed a view that the person I was speaking to on the phone who had
the relevant email address was the person who signed the document, they’ve then
scanned it and have then posted it back to me.”31
[45] Finally Mr Spence gave the following evidence:
“So if I understand it correctly the documents distributed by Mr Liston in hard copy
were given to employees? ---Yes, that’s my understanding, Mr Humphreys. And once
again I wasn’t there. I’m relying on Mr Liston has told me and what other employees
have subsequently told me.32
[2016] FWC 6671
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So in relation to the chain and custody of those petition documents you can provide no
direct evidence at all? ---No, I can’t.33
Did Mr Liston post those to the union in one bundle or in a number of separate
postings? ---No, they were contained in one folder that was posted to us.34
Now, you say Mr Cross distributed copies? --- correct.35
Did Mr Cross distribute hard copies? ---No, the copies Mr Cross distributed would’ve
been via email.36
So Mr Cross engaged in this email process to which you have referred earlier that you
engaged in? ---Yes.37
And do you know which of the petition sheets Mr Cross dealt with that were by that
mechanism and which you dealt with by that mechanism? --- So the way we did it, Mr
Humphreys, was that either Mr Cross or I would email the relevant individual or
individuals’ electronic copy of the petition, and then we asked them to scan that in and
email that both to me and Mr Cross. Also post the originals to the Charleville office
and then Mr Cross would then forward those on to me. At the end of when we were
making the decision to make the application I then asked people to sign those and post
them directly to me, and that was really just to avoid the Australia Post inevitable
delays in having something to go to Charleville and then to Brisbane. It was much
quicker to have these things come to Brisbane.”38
[46] The evidence of Mr Cashman, who was the only Gas Plant Operator required for cross
examination, was that the only meeting he had attended involving the union was when he
signed the petition and it was with Mr Liston.39
[47] Initially he indicated it may have been last year40 however he later said he couldn’t be
100% sure. The petition records Mr Cashman as having signed it on 10 February 2016. He
gave the following evidence:
“All I know is that I did sign it with Jack on the paper that he had. And he made it
aware to me that he had to witness it and he couldn’t let it leave his sight.”41
[48] I have considered the evidence concerning the petition, specifically the petition itself
and the evidence of Mr Spence and Mr Cashman and am satisfied from this evidence that the
petition provides an appropriate basis to conclude a majority of the group want to bargain
with their employer.
[49] The fact of the signatures being collected over approximately six months does not lead
me to doubt the petition still reflects the current views of employees when there is no
evidence to suggest any change of heart has occurred from any of the signatories, and there is
clear evidence from a reasonable sample of six employees from the 38 signatories being
counted, who have provided recently signed witness statements in support of this application.
[50] Whilst it is true, and Mr Spence accepted that he could not give direct evidence of
having observed employees actually signing the petition, his evidence concerning what he had
been told by Mr Liston is consistent with the evidence of Mr Cashman, and fits with the
[2016] FWC 6671
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manner in which the petition itself presents with larger numbers of signatures on single pages
in the earlier stages when Mr Liston was still an official of the AWU. Mr Spence’s evidence
was that Mr Liston sent him the petitions with the signatures Mr Liston had collected in one
bundle in a folder.42
[51] Mr Spence’s evidence concerning the manner in which he and Mr Cross obtained
additional signatures after the departure of Mr Liston is also consistent with the manner in
which signatures appear on the later dates on the petition, often as only one signature on a
single page on the given date.
[52] The particular circumstances of this workforce need to also be borne in mind. The
workforce engaged in QGC’s upstream operations is spread across a vast geographical area
stretching across 3,700 square kilometres43 and consisting of three different regions being
North Region, Central Region and South Region. Mr Maxwell gave evidence that Gas Plant
Operators are responsible for Central Processing Plants, Field Compression Stations and other
gas plants.44 The evidence was that Gas Plant Operators often work alone. Their
circumstances are not akin to a more easily accessible workforce, for example employees
working in a single office, factory or hospital.
[53] On close inspection of the original petition documents provided by the AWU in the
course of the hearing on 11 October 2016 it appears to me the signatures on the 10 pages
provided are original signatures. There is some question in my mind as to whether one
signature dated 5 August 2016 (which is the only signature on that page of the petition) is an
original or a copy of an original, however ultimately I have concluded nothing turns on that as
on the available evidence I am satisfied the employee in question would have signed the
petition.
[54] The ‘chain of custody’ issue as it has come to be referred to has been a part of QGC’s
challenge to the petition submitting it raises doubt about the veracity of the original signatures
on the petition provided by the AWU. I have been satisfied on the evidence Mr Liston
collected the signatures in the earlier stages, retained the original documents and forwarded
them to Mr Spence. Mr Liston’s health issues and departure from the union would not have
assisted in completing the process in a more timely manner. Subsequent to his departure the
technique used to obtain signatures by first sending an email to the email address of an
employee, having it initially scanned and returned by email, and later returned by post was a
practical way to overcome the challenges presented by the vast distances, and having
considered the evidence of Mr Spence I am satisfied the signatures are genuine and the
petition is reliable in this case.
Section 237(2)(b) “Not yet agreed to bargain”
[55] QGC initially disputed the requirements of s.237(b) were satisfied, however in the
course of the hearing and following the evidence of Mr Maxwell45 no longer disputed that
s.237(2)(b) had been satisfied.46
Section 237(2)(c) “Fairly chosen”
[56] In relation to the requirements of s.237(2)(c), the Commission must take into account
whether the group is geographically, operationally or organisationally distinct. The AWU and
[2016] FWC 6671
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QGC agreed that the question of geographical, operational or organisational distinction is not
decisive in relation to the fairly chosen question.47
[57] QGC criticised the AWU case for failing to lead evidence to satisfy the Commission
that the group was fairly chosen. In submissions QGC referred to the same phrase being used
in sections 186(3), 186(3A), 238(4) and 238(4A) of the Act. QGC say the words “fairly
chosen” must be read in the context of Part 2-4 of the Act and that the words must be read
consistently and referred to the following explanation contained in the Explanatory
Memorandum for the Fair Work Bill in respect of the same concept and phrase used in
s.186(3):
“777. It is intended that in assessing whether the group of employees covered by the
agreement is fairly chosen, FWA might have regard to matters such as:
the way in which the employer has chosen to organise its enterprise; and
whether it is reasonable for the excluded employees to be covered by the agreement
having regard to the nature of the work they perform and the organisational and
operational relationship between them and the employees who will be covered by the
agreement.”48
[58] QGC also referred to a Full Bench decision of Fair Work Australia (as it then was) in
Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and others [2012]
FWAFB 2206 (PR521249, Ross, J, Hamilton DP and Spencer C, 12 April 2012) which said
as follows:
“[10] … If all of the employees are not covered then the Tribunal must make a finding
as to whether the group of employees covered by the agreement is geographically,
operationally or organisationally distinct….
[11] At issue in these proceedings is the proper construction of the expression “fairly
chosen” in s.186(3). The starting point is to construe the words according to their
ordinary meaning having regard to their context and purpose. …
………………………………...
[19] Given the context and the legislative history it can reasonably be assumed that if
the group of employees covered by the agreement are geographically, operationally or
organisationally distinct then that would be a factor telling in favour of a finding that
the group of employees was fairly chosen. Conversely, if the group of employees
covered by the agreement was not geographically, operationally or organisationally
distinct then that would be a factor telling against a finding that the group was fairly
chosen.
[20] It is important to appreciate that whether or not the group of employees covered
by the agreement is geographically, operationally or organisationally distinct is not
decisive, rather it is a matter to be given due weight, having regard to all other relevant
considerations.
[2016] FWC 6671
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[21] It is not appropriate to seek to exhaustively identify what might be the other
relevant considerations. They will vary from case to case and will need to be
demonstrated to the satisfaction of the tribunal. The words ‘fairly’ suggest that the
selection of the group was not arbitrary or discriminatory. For example, selection
based upon employee characteristics such as date of employment, age or gender would
be unlikely to be fair. It is appropriate to have regard to the interests of the employer,
such as enhancing productivity, and the interests of employees in determining whether
the group of employees is fairly chosen. In this regard, it is not only the interests of
employees covered by the agreement that are relevant; the interests of those employees
who are excluded from the coverage of the agreement are also relevant…”
[59] The nominated group as described in the application is:
“Employees of QGC Pty Ltd engaged in the Surat Basin (North South and Central)
operations employed in the classifications of Gas Plant Operator and Gas Plant Lead
Operator.”
[60] The expression geographically, operationally or organisationally distinct was
considered more recently in a Full Bench decision in The Australian Workers’ Union v BP
(Kwinana) Pty Ltd [2014] FWCFB 1476 in regard to a scope order application as follows:
“[11] The obligation is to “take account” of geographical, operational or organisational
distinctness in deciding whether the group to be covered by the proposed enterprise
agreement was “fairly chosen”. A particular type of distinctness may not exist in
respect of a proposed group in a particular case, and yet, having taken account of that
absence, it may still be clear, that the group has been fairly chosen in all the
circumstances of the particular case.”
[61] The AWU cited Media, Entertainment and Arts Alliance49 at [69] where
Commissioner Cribb cited Commissioner Roe’s decision in NUW v Cotton On Group
Services Pty Ltd50 (Cotton On) where it was stated that:
“A group of employees within an enterprise will rarely be operationally distinct in an
absolute sense. It will often be a matter of degree.”
[62] Mr Spence gave evidence that the petition does not include Gas Plant Supervisors,
Superintendents, Administration Staff, Management Staff, Wellsite Supervisors, Lead
Wellsite Operators and Wellsite Operators in the scope of the proposed agreement.51
[63] Mr Spence accepted that the AWU eligibility rules were broad in the gas industry and
that the AWU could cover all employees in the gas industry. Mr Spence said in oral evidence
that from memory he did not think the AWU had members within well site operations.52
[64] The AWU submitted that the Gas Plant and Wellsite employees have different leads
and supervisors and it is only once an employee gets to Superintendent that they appear to
come under the same tree. “You need to get to the third level before you find any link.”53
[65] The AWU submitted that while this shows that at some point there is a link between
Gas Plant Operators and others, it is at such a low degree that it could not affect the fact the
Gas Plant Operators are an operationally distinct group.
[2016] FWC 6671
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[66] The AWU submitted that the Gas Plant employees are an operationally distinct group
who perform a different role and function to that performed by the Wellsite Operators, and a
substantially different role to any other employer that attends the gas plant.
[67] The AWU provided that the only interaction Gas Plant operators have with trades
people, such as Mechanical and I&E Technicians, is ensuring the equipment to be worked on
is isolated, a permit to work has been issued and all steps necessary have been taken to ensure
the work the trades people will perform on their own is done in a safe work environment.
[68] The AWU provided that these steps are taken by the Gas Plant Operators as they are
the Area Owners of the plant and are the ones responsible for ensuring the safety of all work
done.
[69] It was submitted that there is no requirement for the Gas Plant Operators to work as
essentially a trade’s assistant. The Gas Plant Operators and trades people perform separate
and distinct roles.
[70] Mr Cashman said a normal day starts with a handover, and following handover day
shift have a pre-start meeting with all day shift Gas Plant Operators, the Lead Gas Plant
Operator and a Gas Plant Supervisor if available.54
[71] Mr Cashman said following the pre-start meeting the Gas Plant Operator will drive to
designated plant or plants. On some days this will be one Field Compressor Station however
most days this will be two or three Field Compressor Stations or one Field Compressor
Station and one Central Processing Plant. Mr Cashman described in detail the functions of his
role including inspections, isolations, issuing certificates and interrogation of the plant. At the
end of the day or night a handover is given to the oncoming operator or operators.55
[72] Mr Brown described his duties in detail. He said at the moment he is stationed at
Kenya East and Janmat Field Compression Stations and he will be the Area Owner for his
time on shift unless he was needed somewhere else but he would still be expected to control
Kenya East and Janmat FCS’s. Mr Brown said he did not work with other employees such as
electricians and fitters. He said his job is not to do the work of the person on the Permit to
Work, but to monitor and make the equipment safe for work to be performed.56
[73] Mr Brown said the other employees or contractors working on the Kenya East or
Jammat FCS’s are in their own trade and we (the operators) are not qualified to do their work
with most being in their own union.57
[74] Mr Van Der Westhuizen said after the pre-start meeting he drives to designated sites
which vary in distance from 30 to 60 minutes.58 He said at the moment he is on call out for
five of his 15 days to attend to any plant upsets in the Jordan Field which includes one Central
Processing Plant, one Interconnect Compression Station and three Field Compression
Stations. He said Technicians, engineers, and contractors attend site daily for maintenance,
upgrades, investigations and shutdowns.59
[75] Mr Dawson also said his day starts with a handover and then a pre-start meeting with
the other Gas Plant Operators, the Lead Gas Plant Operator and a Gas Plant Supervisor if
available.60 He said at end of shift he does a handover to another operator or operators.61 He
[2016] FWC 6671
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said his role requires him to be the Area Owner for any plant he is assigned and he is
responsible for safe isolation and handover to other employees and contractors. He said the
other employees and contractors will have different qualifications and experience to him and
are responsible for their individual tasks. They can be mechanical, electrical, instrumentation
or any discipline required to complete the task on site. He said he does not perform tasks with
them or assist them however will work around others.62
[76] Mr Corcut said he is obtaining a Certificate III in Process Plant Operations. He said
he understood Wellsite Operators also hold this certificate but the electives that are required
for that role are different.63 He said the only interaction he has with others is when trades
people need a permit to work or the relevant plant or machinery needs to be isolated to alow
the trades person to work safely.64
[77] Mr Murphy said upon completion of the pre-start meeting he checks with his
supervisor and lead for any additional tasks and he leaves the office and drives to the CPP
which takes 45 minutes.65 He said while performing work as the Area Owner, he takes calls
from work parties that are performing work on the facilities he manages for that day. He said
on some occasions E&I Technicians, Mechanical Technicians and contractors will perform
work in the Plant but it is not related to his role as a Gas Plant Operator.66
[78] Mr Maxwell for QGC gave evidence that the location of pre-start meetings differs
between QGC hubs. At Woleebee Creek and Ruby Jo Hubs, pre-starts occur in separate
groups. However at Kenya/Jordan and Windibri/Bellevue Hibs, they occur in the same
location.67
[79] QGC submitted that the nominated group only includes two roles within a larger
geographically distinct group of employees, the Operations and Maintenance Workforce who
all perform work on QGC Pty Ltd infrastructure in the Surat Basin.
[80] It was Mr Maxwell’s evidence in regard to the organisational structure of the
Upstream Operations that the Upstream Operations are broadly organised into the Business
Delivery and Business Enabling Units. The Business Delivery Unit includes all QGC
Upstream Operations employees who are responsible for the frontline operation and
performance of the asset. Work activities include the execution of all processes and activities
which are involved in safety and efficiently transporting CSG to the LNG Plant on Curtis
Island and Domestic End users.68
[81] He said that the Business Enabling Unit includes all QGC Upstream Operations
employees who are responsible for defining how QGC works as an asset, providing technical
and commercial support and conducting strategic level asset activities. Areas of functional
support include production management, production excellence, engineering and maintenance
planning and Brownfields projects.69
[82] Mr Maxwell explained that a number of employees’ roles in the Business Delivery
Unit relate to operation and maintenance of CSG wells, FCSs, CPPs and pipelines and
trunklines. These employees excluding supervisors and managers hold the following
positions:
Operations and Processing Employees
[2016] FWC 6671
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a) Lead Gas Plant Operator (13);
b) Gas Plant Operator (54); (my underlining added)
c) Lead Wellsite Operator (11);
d) Wellsite Operator (55);
e) Transmission Operator (12);
f) Lead Transmission Operator (4);
g) Lead Control Room Operator (4);
h) Control Room Operator (12);
i) Power Plant Technician (11);
Maintenance Trades Employees
a) Lead E & I Technician (4);
b) E & I Technician (3);
c) Lead Rotating Equipment Technician (2);
d) Rotating Equipment Technician (4);
e) Lead Mechanical Technician (6);
f) Mechanical Technician (6);
g) Response Electrical Technician (5);
h) Lead Quality Measurement Technician (1);
i) Quality Management Technician (1);
j) Transmission Operator Maintainer (E&I) (2);
k) Transmission Operator Maintainer (Mech) (4);
l) HV Operator (4);
m) HV Coordinator (1);
n) HV Network Controller (2);
o) HV Network Coordinator (1);
p) HV Network Operator (2);
q) Instrument Technician (2);
r) Instrument & Electrical Advisor (2).
[83] Mr Maxwell said that Wellsite Operators and Gas Plant Operators are responsible for
managing, monitoring and controlling CSG wells, FCS’s and CPP’s which form part of the
Upstream Operations.70 The evidence demonstrated that Wellsite Operators perform these
functions at CSG wells, and the Gas Plant Operators performed these functions at FCS’s and
CPP’s.
[84] Mr Maxwell explained that Control Room Operators are responsible for remotely
operating the CSG wells and gas plant infrastructure, Transmission Operators are responsible
for managing, monitoring and controlling the pipeline and trunkline network, Power Plant
Technicians are responsible for the operation and maintenance of Condamine Power Station.71
[85] Mr Maxwell said Maintenance Trades Employees are responsible for maintenance on
the infrastructure.72 Mr Maxwell said that the Operation and Processing Employees and
Maintenance Trade Employees subgroups are based on and consistent with the
“Hydrocarbons Industry Operations and Processing Employees” and “Hydrocarbons Industry
Modification and Maintenance Trades Employees” classification groups found as
classification groups B.2.4 and B.2.5 respectively in Schedule B of the Hydorcarbons Industry
(Upstream) Award 2010.
[2016] FWC 6671
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[86] Mr Maxwell said these employees are commonly referred to as the “Operations and
Maintenance Workforce” because, on a day to day basis, the tasks they perform in the Surat
Basin relate to the same infrastructure and equipment.73 The Organisational Structure was
attached to the statement of Mr Maxwell.74 This is a 16 page document. On the 9th page of
this document under the heading ‘Field Operations – Kenya/Jordan’ the positions of Lead Gas
Plant Operator and Gas Plant Operator can be seen sitting under four Gas Plant Supervisors,
distinctly from Lead Wellsite Operators and Wellsite Operators sitting under two Wellsite
Supervisors. The supervisors of the distinct groups report to a common Area Administrator.
On page 10 the same structure exists for Field Operations at Windibri, and on page 13 for
‘Field Operations in the Southern Operations Team’ and on page 16 for ‘Field Operations in
the Northern Operations Team’.
Training and Competency
[87] Mr Maxwell gave evidence employees had to complete the same competency
requirements regarding the control of work system.75 He said Lead Wellsite Operators, Lead
Transmission Operators and Lead Gas Plant Operators are responsible for issuing permits
which give permissions to employees and contractors to work on certain infrastructure.
[88] Mr Maxwell said all employees in the Operations and Maintenance workforce are
required to work in the same frameworks which are reflected in the QGC Competency and
Assessment Management System matrix. He said a significant number of competencies
which are obtained for Well Site Operators, Gas Plant Operators, Mechanical Technicians and
E & I Technicians overlap as employees in each type of roll are required to work
collaboratively on the same type of infrastructure.76
[89] Mr Maxwell said when a maintenance issue occurs Maintenance Trades Employees
and Operation and Processing Employees will work together to ensure that the issue is
rectified.77 Mr Maxwell said he was aware that employees have transferred between the role
of Technician to Operator and gave a series of examples.78
Operators
[90] Mr Maxwell said Wellsite Operators and Gas Plant Operators regularly performed
tasks of the same nature which relate to the safe control and management of infrastructure, the
only difference being that a Wellsite Operator’s tasks will relate to a CSG well site facility
and a Gas Plant Operator’s tasks relate to gas plant.79
[91] Mr Maxwell said he was aware that employees are regularly transferred between the
rolls of Wellsite Operator and Gas Plant Operator due to the similar nature of the work, and a
high proportion of vacancies amongst Gas Plant Operator positions have been filled by
Wellsite Operators.80
[92] Mr Maxwell said Gas Plant Operators will physically attend the infrastructure for
which they are responsible approximately once per day. He said Gas Plant Operators and
Control Room Operators are in constant contact with each other.81 He said Control Room
Operators and Gas Plant Operators are required to complete core knowledge modules through
TAFE. Further Gas Plant Operators are regularly transferred to the role of Control Room
Operator.82
[2016] FWC 6671
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[93] Similarly Mr Maxwell said Transmissions Operators are in regular contact with Gas
Plant Operators as the pipelines and trunklines they are responsible for feed into the FCS’s
and CPP’s that the Gas Plant Operators are responsible for.83
Structure and Reporting and Progression and Terms and Conditions
[94] Mr Maxwell made the point that all supervisors report to a Field Manager who in turn
reports to an Operations Manager for each region who is responsible for all employees in their
region.84
[95] Mr Maxwell said QGC has a clear progression route for the Operations and
Maintenance workforce including that Operators can progress from Operator, to Lead
Operator to Supervisor through Upstream facilities such as Wellsites, Gas Plants,
Transmission and Control Room if vacancies exist.85
[96] In the course of his cross examination Mr Maxwell was taken to the BG Progression
Chart attached to his statement.86 He accepted that Wellsite Operators are paid at a lower
classification level and wage rate than Gas Plant Operators depending on their level of
experience.
[97] Mr Maxwell said all employees in the Operations and Maintenance Workforce were
covered by the ‘Hydrocarbons Industry Operations and Processing Employees’ and
‘Hydrocarbons Industry Modification and Maintenance Trades’.
Geographically Operationally or Organisationally Distinct
[98] QGC argued the nominated group was not geographically distinct as they work
alongside and as part of an integrated workforce of Operations and Processing Employees and
Maintenance Trade Employees who also work in the same geographical areas.
[99] QGC said that it has based its organisational structure/operations on the classifications
of the Hydrocarbons Industry (Upstream) Award, and the nominated group is too confined
and not consistent with these classifications. QGC argued the group do not have separate
reporting lines and do not operate independently in relation to career progression.
[100] QGC also said the group includes two roles which form part of a distinct group of
employees who have similar training and competences, work on the same type of equipment
and infrastructure and work in accordance with the same systems, policies and procedures,
and same terms and conditions of employment.
[101] The judgement as to whether the group has been fairly chosen has been heavily
contested. Having considered all of the evidence and taking into account whether the group is
geographically, operationally or organisationally distinct, I have had to weigh the extent of
integration with other employees against distinct features of group chosen.
[102] The evidence supports the conclusion that Gas Plant Lead Operators and Gas Plant
Operators are operationally and organisationally distinct from the roles that sit within the
Maintenance Trades Employees group. Their respective skills and functions are quite
separate. The evidence of the Operators overwhelmingly indicated that whilst employees
from within the Maintenance Trades Employees group would visit the locations where Gas
[2016] FWC 6671
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Plant Operators worked they did not work together. The organisational chart makes clear the
distinction between these respective groups. It is very often the case, though not always, that
trade qualified groups of employees within an enterprise bargain separately with non-trade
groups.
[103] A closer relationship exists between the classifications of Gas Plant Lead Operators
and Gas Plant Operators and other employees within the Operations and Processing
Employees group. Mr Maxwell’s evidence in response to the Gas Plant Operator witness
statements sets out in detail the extent of overlap in the CAMS Matrix between qualifications
Gas Plant Operators hold with qualifications held by others but particularly Wellsite
Operators. His evidence in response to the Gas Plant Operator statements also sets out that
much of the procedures the respective roles follow are similar in their different settings.
[104] The evidence reveals that the 66 Lead Gas Plant Operators and Gas Plant Operators
are a distinct group from the Transmission Operators, Lead Transmission Operators, Lead
Control Room Operators Control Room Operators and Power Plant Technicians in that their
work is predominantly performed in different settings.
[105] Gas Plant Operators work is based around the CPP’s, FCS’s and other gas plant. Mr
Maxwell agreed that most of the time Gas Plant Operators would be the only person in the gas
plant.87 The Transmission Operators are responsible for managing, monitoring, and
controlling and the pipeline and trunklines that run from one piece of infrastructure to another
and Control Room operators work is based around the control room in Chinchilla and the
Power Plant Technicians are responsible for operation of the Condamine Power Station.
[106] They are also distinct operationally in the sense that whilst they are required to
communicate with each other in order for the infrastructure to be efficiently and safely
operated, the functions they perform are quite distinct. They by and large do not work
alongside each other and have quite discrete roles.
[107] The strongest argument in QGC’s case in respect of the ‘Operations and Processing
Employees group’ is that the Lead Gas Plant Operators and Gas Plant Operators group are not
distinct from the role of Well Site Operators. It is true that there are many similarities
between the nature of the work that Gas Plant Lead Operators and Gas Plant Operators
perform and are responsible for at CPP’s FCS’s and other gas plant, when compared to the
work that Well Site Operators perform relating to CSG well site facilities. Mr Maxwell’s
evidence as stated addressed the similarities in detail.
[108] However they are also distinct from one another in some respects. The two categories
of Gas Plant Operator employee are geographically distinct from Well Site Operators in that
the CPP’s FCS’s and other gas plant are at different locations to the CSG well site facilities
where Well Site Operators perform their work. Mr Cashman gave evidence as a Gas Plant
Operator that he never moves between a gas plant and a well site.88
[109] There is also a degree of operational distinctness because the FCS’s and CCP’s where
the Gas Plant Operators work, perform a different function in the Upstream Operations
process to that of the CSG wells where the Wellsite Operators work, despite those distinct
functions also being a step within an integrated process.
[2016] FWC 6671
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[110] There is also a degree of organisational distinctness from one another as can be seen
from the Organisational Structure89 as they sit within distinct groups with separate
supervision. As was said by the AWU, it is not until the third level in the chain of command
at Area Administrator or Field Manager that management responsibility for Gas Plant
Operators and Well Site Operators is shared.
[111] The Career Progression document90 also reveals that they are paid and classified
differently. Mr Maxwell said the difference in pay was based on operational and production
risk.91 Mr Cashman said there was a lot more involved with a gas plant then a well site.92
Whilst there was some evidence of Wellsite Operators acting in or transferring to Gas Plant
Operator roles they cannot just step straight into the role. Whilst there are common core
competencies Gas Plant Operators require TAFE qualifications for some of their work. Mr
Maxwell gave evidence that some Wellsite Operators have those competencies as well, and of
that group they would also require other specific modules which may take up to a month or so
to obtain.93
[112] The evidence demonstrates that the selection of the group as proposed in this
application is not arbitrary as has been suggested by QGC. It is not based upon employee
characteristics such as date of employment, age or gender. It is based on being part of a
distinct group of 66 employees belonging to two classifications of employee performing a
role exclusive to that group with some unique competencies.
[113] It was also suggested by QGC that the fact of the AWU filing an earlier MSD
application which was subsequently withdrawn, where the language in the earlier application
was broader than the petition filed with it was indicative of the selection of the group being
arbitrary for the expediency of achieving a majority.94 I am not satisfied this is what
occurred. The petition invited signatures from the same group from February 2016. When
this issue was identified at the directions hearing on 24 August Mr McKernan explained when
the application was completed he was in another matter before the FWC, he did not complete
application and the intention was that the application should have only included those on the
petition.95
[114] QGC also referred to other correspondence from the AWU seeking agreement from
QGC to bargain for a group wider than the group who signed the petition and who are subject
of this application. There is no reason why the AWU could not seek the consent of QGC to
bargain for a wider group. That request is not evidence that this group was arbitrarily chosen.
The evidence is that this is the group that wanted to bargain, not the other groups.
[115] When Mr Maxwell was asked during cross examination whether QGC would be
prepared to bargain with the Gas Plant Operators and Lead Gas Plant Operators, he answered
no. Immediately following that answer he was asked whether QGC would be prepared to
bargain with any employees in the Surat Basin and again he answered no.96
[116] QGC has submitted that the objects of the Act do not prioritise enterprise agreements
over other forms of industrial instrument and referred to the decision in Aurizon Operations
Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd [2015] FWCFB 540 to
make the point that the FWC should not feel compelled to grant the application on the basis
that the objects of the Act direct some preference toward enterprise agreements. I also accept
this submission as correct.
[2016] FWC 6671
22
[117] However the evidence also disclosed that the AWU was approached by the Lead Gas
Plant Operators and Gas Plant Operators, and not the Well Site Operators or any other of the
groups that would fall within the ambit of the Union’s rules.
[118] Mr Spence’s evidence while not definitive on the point, was to the effect that it was
his belief the AWU did not have members in the Well Site Operator group. It has been put by
QGC that it would be unfair for the other groups that the AWU is entitled to represent to be
excluded from bargaining if the majority support determination was granted.
[119] There is no evidence before me that either the Well Site Operators or any of the other
groups who might be excluded from bargaining want to bargain. This raises a question as to
whether it would be fair to refuse the application made on behalf of the Gas Plant Operators
who want to bargain, when there is no evidence of another group who could be included
wanting to bargain. There is clear evidence before me of a range of reasons given by six
witnesses within the ambit of the application as to the reasons they wished to bargain. There
is no witness evidence before me from any employees within the excluded groups of any
reasons it would be unfair for them to be excluded, or even of a desire to bargain at all. In
my view these circumstances weigh in favour of granting the application not refusing it.
[120] In determining fairness it is also appropriate to have regard to the interests of the
employer. As has been summarised in detail above QGC has put on considerable evidence
that the group is not fairly chosen for reasons in connection with the integrated nature of its
operations. I have had regard to the evidence of Mr Maxwell and the submissions in this
regard in weighing my conclusion.
[121] I have come to the conclusion that while it is clearly not the preference of QGC to
have its Lead Gas Plant Operators and Gas Plant Operators working under an Enterprise
Agreement, while at the same time also having its other Operations and Processing
Employees and Maintenance Trades Employees continue under the existing Award and
common law contract arrangements, such circumstances do not give rise to such a level of
concern that it would cause me to regard the group as not being fairly chosen for that reason,
when weighed against the extent of their distinctness, and the expressed desire to bargain as a
group. I have also had regard to the evidence of Mr Maxwell that employees sometimes
transfer between roles, and can also achieve career progression from one classification of
employment into another. I have heard QGC’s argument that it is not in its interests to have
significant differences in the industrial conditions that apply to its broader workforce for these
reasons. QGC’s submissions concerning the integrated nature of its business indicate a view
that the only group that could satisfy the tests in s.236 would be if a majority of all of its
Operations, Processing and Maintenance Trades workforce wanted to bargain.
[122] Ultimately what may arise from enterprise bargaining is unknown. All bargaining
representatives can make claims including employers. There is nothing stopping QGC
seeking to achieve commonality between the conditions to be negotiated as part of a proposed
enterprise agreement with the conditions it already offers to its other employees who remain
on the Award and common law contract arrangements. It also notable that the Well Site
Operators who appear to have most in common with Gas Plant Operators are on different
classification levels to Gas Plant Operators under existing arrangements anyway depending on
their level of experience.
[2016] FWC 6671
23
[123] I accept that if ultimately an enterprise agreement were achieved that included
different arrangements to other employees in the wider Operations, Processing and
Maintenance Trades workforce that may create some additional burdens for QGC, including
administrative burdens in the event that employees seek to transfer between roles or are
promoted from one role to another. However the submission itself involves an element of
conjecture and the issue does not in my view warrant a finding the group is unfair and that the
application should be dismissed on that basis.
[124] On Mr Maxwell’s evidence there was a moratorium on any employees transferring
roles from February 2016 to September 2016 as part of the integration of BG Group and QGC
into Shell.97 Mr Maxwell also conceded at the hearing on 11 October 2016 there had been no
further transfers since 1 September 2016 however he said there were two Wellsite Operators
in secondment roles in the gas plant.98 This evidence is not suggestive of the transferring
between roles issue having such significant impact on QGC in the future that it is a basis to
conclude the group chosen is not fair. For all of the reasons set out above I am satisfied that
the group of employees who will be covered by the agreement is fairly chosen.
Section 237(2)(d) “Is it reasonable in all the circumstances to make the determination”
[125] QGC submitted that the asset is at a critical stage with first LNG having occurred in
May 2015 2016. It was also said that the operations were in a transitional growth period and
any disruption to the continued ramp-up and stabilisation of the operations would seriously
delay the ability of the Upstream Operations to reach its full installed capacity and
significantly impact on QGC’s ability to fulfil its contractual obligations to its customers and
damage QGC’s national and international reputation. This it was said would cause serious
damage to the Queensland and Australian economies.99 I am not persuaded on the evidence
that affording Gas Plant Operators the opportunity to seek to enterprise bargain with QGC
could potentially have such dire consequences and I reject this submission as a basis to
conclude it would not be reasonable to make the determination.
[126] QGC has also sought to make an issue of the fact that the AWU has participated in the
making of other enterprise agreements both with QGC and others in the gas industry that have
a wider scope of coverage then the group sought in this application. I have not afforded that
issue significant weight. Each of the agreements referred to arose from the unique particular
facts and circumstances relevant to the particular agreement in question and is of no particular
assistance in determining this matter.
[127] I am also not persuaded that making the determination sought would undermine
enterprise bargaining as has been suggested by QGC because of the exclusion of other groups.
As already stated, there has been no evidence to suggest another group wish to bargain and
there is nothing preventing other groups seeking to bargain in the future if they wish to do so.
[128] As has been said earlier QGC’s preference is not to bargain at all. A Majority Support
Determination is not an order. The Fair Work Act does not contemplate a role for Majority
Support Determinations in deciding the scope of bargaining. On the issuing of an MSD, QGC
is free to include other groups within the ambit of its notice of employee representation rights
if it wishes to do so. Whilst I have found this group is fairly chosen for the purposes of s.237,
it may well be should a dispute arise about scope under s.238 in the future the FWC may
determine a different group as being a fairer group.
[2016] FWC 6671
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[129] QGC has emphasised the requirement for the FWC to be positively satisfied that the
requirements of the Act have been met, and referred to the decision of Commissioner
Hampton in The Australian Workers’ Union v The Austral Brick Co Pty Ltd t/as Austral
Bricks [2010] FWA 5819 at [24]. I accept that submission as correct and for the reasons set
out above am so satisfied.
[130] I must make a majority support determination which will operate from the date of this
decision. It is issued separately.
COMMISSIONER
Appearances:
Mr T. McKernan for the Applicant
Mr I. Humphreys of Ashurst for the Respondent
Hearing details:
2016
Brisbane
October 11
Printed by authority of the Commonwealth Government Printer
Price code G, PR585495
1 Exhibit 1, Statement of Troy Anthony Spence sworn 24 August 2016.
2 Exhibit 2, Statement of David Cashman sworn 7 October 2016.
3 Exhibit 4, Statement of Barry Brown sworn 15 September 2016.
4 Exhibit 5, Statement of Cobus Van Der Westhuizen sworn 9 September 2016.
5 Exhibit 6, Statement of Peter Dawson sworn 6 October 2016.
6 Exhibit 7, Statement of Russell Corcut sworn 1 October 2016.
7 Exhibit 8, Statement of Travis Murphy sworn 7 October 2016.
8 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016.
9 Transcript PN 988.
10 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [121].
11 Transcript PN 898.
12 Media, Entertainment and Arts Alliance [2014] FWC 8898 at [32].
13 Transcript PN 900-906.
14 Exhibit 2, Statement of David Cashman sworn 7 October 2016 at [31]-[36].
15 Exhibit 4, Statement of Barry Brown sworn 15 September 2016 at [37]-[38].
16 Exhibit 6, Statement of Peter Dawson sworn 6 October 2016 at [32]-[33].
[2016] FWC 6671
25
17 Exhibit 7, Statement of Russell Corcut sworn 1 October 2016 at [22]-[24].
18 Exhibit 8, Statement of Travis Murphy sworn 7 October 2016 at [14]-[15] and [20]-[21].
19 Exhibit 1, Statement of Troy Anthony Spence sworn 24 August 2016 at [5]-[7].
20 Exhibit 1, Statement of Troy Anthony Spence sworn 24 August 2016 at [11]–[12].
21 Exhibit 1, Statement of Troy Anthony Spence sworn 24 August 2016 at [14]-[15].
22 Exhibit 1, Statement of Troy Anthony Spence sworn 24 August 2016 at [16].
23 Transcript PN 243.
24 Transcript PN 246.
25 Transcript PN 303.
26 Transcript PN 304.
27 Transcript PN 305.
28 Transcript PN 306.
29 Transcript PN 312.
30 Transcript PN 321.
31 Transcript PN 322.
32 Transcript PN 339.
33 Transcript PN 340.
34 Transcript PN 341.
35 Transcript PN 342.
36 Transcript PN 343.
37 Transcript PN 344.
38 Transcript PN 345.
39 Transcript PN 536-538.
40 Transcript PN 537.
41 Transcript PN 573.
42 Transcript PN 341.
43 Transcript PN 789.
44 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [57].
45 Transcript PN 678 – 679.
46 Transcript PN 916.
47 Media, Entertainment and Arts Alliance [2014] FWC 8898 at [65].
48 Explanatory Memorandum, Fair Work Bill 2008 at 777.
49 [2014] FWC 8898 at [65].
50 [2014] FWC 6601.
51 Exhibit 1, Statement of Troy Anthony Spence sworn 24 August 2016 at [13].
52 Transcript PN 227.
53 Applicant’s Outline of submissions at [28].
54 Exhibit 2, Statement of David Cashman sworn 7 October 2016 at [8]-[9].
55 Exhibit 2, Statement of David Cashman sworn 7 October 2016 at [11]-[23].
56 Exhibit 4, Statement of Barry Brown sworn 15 September 2016 at [28].
57 Exhibit 4, Statement of Barry Brown sworn 15 September 2016 at [29].
58 Exhibit 5, Statement of Cobus Van Der Westhuizen sworn 9 September 2016 at [6].
59 Exhibit 5, Statement of Cobus Van Der Westhuizen sworn 9 September 2016 at [17]-[18].
60 Exhibit 6, Statement of Peter Dawson sworn 6 October 2016 at [9].
61 Exhibit 6, Statement of Peter Dawson sworn 6 October 2016 at [27].
62 Exhibit 6, Statement of Peter Dawson sworn 6 October 2016 at [29]-[31].
63 Exhibit 7, Statement of Russell Corcut sworn 1 October 2016 at [5].
[2016] FWC 6671
26
64 Exhibit 7, Statement of Russell Corcut sworn 1 October 2016 at [19].
65 Exhibit 8, Statement of Travis Murphy sworn 7 October 2016 at [8].
66 Exhibit 8, Statement of Travis Murphy sworn 7 October 2016 at [13].
67 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [95]-[96].
68 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [46].
69 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [47].
70 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [49].
71 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [50]-[52].
72 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [53].
73 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [55].
74 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016, annexure RM-2.
75 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [56]-[57].
76 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [63]-[66].
77 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [68].
78 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [70].
79 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [73].
80 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [74].
81 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [77].
82 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [79].
83 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [80]-[83].
84 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [86].
85 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [88].
86 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016, annexure RM-4.
87 Transcript PN 782.
88 Transcript PN 567.
89 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016, annexure RM-2.
90 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016, annexure RM-4.
91 Transcript PN 779.
92 Transcript PN 450.
93 Transcript 757.
94 Transcript PN 953-956.
95 Transcript B2016/863 PN 15-17.
96 Transcript PN 678 – 679.
97 Transcript PN 705.
98 Transcript PN 708.
99 Exhibit 9, Statement of Robert James Maxwell sworn 23 September 2016 at [18] and [38]-[40].
