1
Fair Work Act
2009
s.236—Majority support determination
Australian Workers’ Union
(B2020/286)
DEPUTY PRESIDENT BINET PERTH, 24 AUGUST 2020
Application for a majority support determination – Granted
[1] On 25 May 2020, the Australian Workers’ Union (AWU) made an application
(Application) pursuant to section 236 of the Fair Work Act 2009 (FW Act), for the Fair
Work Commission (FWC) to make a majority support determination (Determination). The
Determination would require Inpex Australia Pty Ltd (Inpex) to commence bargaining for a
new enterprise agreement (Proposed Agreement).
[2] The Proposed Agreement would cover those employees of Inpex who are currently
employed to perform work in the classifications of Operations Technicians (Trade and
Processing), and Operations Technician (Services), under the Inpex Ichthys Operations Multi-
Location Agreement 2014 (Employees).
[3] The parties participated in a conference on 11 June 2020 and agreed that the following
issues should be determined in advance of the final determination of the Application.
a. The method by which the FWC should determine whether a majority of employees
want to bargain.
b. Whether the Employees to be covered by the Proposed Agreement are fairly chosen.
[4] On 16 July 2020, and 17 July 2020, Inpex and the AWU respectively agreed that these
two issues should be determined ‘on the papers’.
Background
[5] The Ichthys Operations Multi Location Agreement 2014 (Current Agreement) was
made on 12 September 2014, when a majority of the employees voted in favour of the
Agreement.1 The nominal expiry date of the Current Agreement is 9 October 2018. 2
[6] The scope of the Current Agreement was determined prior to the completion of the
construction phase of the Ichthys project. This was prior to the production and supply of any
LNG to customers.3
[7] Production of LNG for export to customers started in July 2018. 4
[2020] FWC 3843 [Note: This decision and the associated orders
(PR722190 and PR722012) have been quashed - refer to Full Bench
decision dated 7 October 2020 [2020] FWCFB 5321]
INTERIM DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb5321.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr722012.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr722190.htm
[2020] FWC 3843
2
[8] On 10 April 2018, Mr Conor Walker, Director, Operations, at Inpex (Mr Walker)
wrote to the employees covered by the Current Agreement, informing them that Inpex did not
intend to pursue the renewal of the Agreement.5
[9] On 22 April 2018, Mr Trevor Bavington, an A Shift Operations Technician, wrote to
Mr Scott Innes, Mr Brett Woodland, and Mr Robert Mitchell of Inpex, stating that ‘100% of
the group’ (presumably the A Shift Operations Technicians) wished to bargain for a new
enterprise agreement. 6
[10] On or shortly after 15 June 2018, an email was forwarded to an Inpex supervisor, in
which the author states that they had been in contact with the AWU in Perth that morning, to
‘see how things were progressing with initiating a poll to determine if a majority of
employees want to negotiate a new agreement.’ 7
[11] In June 2018, Mr Hitoshi Okawa, Director Corporate Coordination, and Mr Walker
wrote to employees confirming that Inpex did ‘not intend to instigate negotiations for
replacing the 2014 Agreement’. In the letter, Mr Okawa and Mr Walker told employees that
in light of employee concerns that Inpex might apply to terminate the Current Agreement that
Inpex undertook not to do so for a period of two years from the nominal expiry date of the
Current Agreement. 8
[12] On 31 August 2018, it came to Inpex’s attention that hard copy petitions seeking
employee approval to commence bargaining had been distributed at various locations around
the Project site, because a Laboratory Superintendent sent the petition to Melissa Gilmour,
Manager HR Business Partner Operations.
[13] On 5 September 2018, Mr Craig Hoffmann, an Inpex Operations employee, sent an
email to other Inpex Operations employees to survey their response to the question, “Do you
wish to initiate the process of renegotiating your current EA?”. 9
[14] The nominal term of the Agreement expired on 9 October 2018. On that day, Mr
David Dann, Inpex GM Onshore, received an email from Mr Wayne Ridley, an Inpex
Operations Technician, advising that the informal poll had been conducted at ‘all three
facilities, ascertaining the appetite to renegotiate our EA.’ In that email, Mr Ridley stated that
‘the poll was conducted through the Inpex email system using a vote yes or no button’ and
that ‘as of the 5 October, the result has passed the 50% +1 figure to renegotiate, with Onshore
at approx. 57% yes, (97% yes of those who voted)’.10
[15] On 8 November 2018, Mr Danny Cain, Assistant Branch Secretary of the Maritime
Union of Australia (MUA), wrote to members of the ‘Offshore Alliance.’ In relation to Inpex,
the letter states that in light of strong support for negotiations for a new agreement,
preparations for the lodgement of a majority support determination were underway, and
employees are encouraged to complete and return an attached petition in support of
bargaining. 11
[16] On 20 November 2018, Mr Doug Heath, Offshore Alliance Organiser with the MUA
WA Branch, sent an email addressed to ‘all Inpex crew’. Mr Heath’s email, amongst other
attached documents, included a bargaining petition. Mr Heath requested recipients to forward
[2020] FWC 3843
3
the email to their work colleagues, requesting that they complete the bargaining petition, even
if they had signed one previously.12
[17] Between 22 November 2018, and 21 December 2018, Inpex conducted its own survey
of its employees’ views about a number of matters, including whether employees wished to
bargain for a new agreement. Only 29% of respondents indicated that they would prefer to
engage directly with Inpex. 26% of respondents indicated that they would prefer to engage
directly with Inpex but did not have confidence in the process. 34% did not want to engage
directly with Inpex and preferred to using a bargaining process or bargaining representative. 13
[18] On 21 March 2019, Inpex wrote to employees regarding the results of the survey,
acknowledging that the feedback showed that ‘security of terms and conditions is a key
motivation for those seeking a new agreement’, and giving a further undertaking not to
terminate the Current Agreement until 21 March 2023. 14
[19] On 3 March 2020, Mr Zachary Duncalfe, AWU National Legal Officer, wrote to Mr
Smith, formally requesting that Inpex commences bargaining with the AWU and other
legitimate bargaining representatives for an enterprise agreement to replace the Current
Agreement as soon as practicable. 15
[20] On the same date, Mr Heath sent an email to ‘All Offshore Inpex Crew’. In that email,
Mr Heath stated that ‘the Offshore Alliance and ETU have received support from 2/3 of the
Inpex offshore workforce for the commencement of bargaining for an Enterprise Agreement’.
Mr Heath’s email attached Mr Duncalfe’s letter of the same date with a blank petition.16
[21] On 11 March 2020, Mr Smith responded to Mr Duncalfe by letter, asking Mr Duncalfe
to, ‘provide clarification on the scope of the application of the proposed enterprise agreement,
the subject of his request to bargain, so that Inpex can properly consider the request and
respond accordingly’. 17
[22] By letter dated 15 April 2020, Mr Duncalfe confirmed that the AWU seeks a
replacement agreement that has the same or substantially similar scope as the Current
Agreement. 18
[23] On 16 April 2020, Mr Heath sent an email to ‘All INPEX CPF and FPSO Crew (Inpex
Onshore Crew Copied into Correspondence)’. The email indicated that the AWU intended to
lodged a majority support determination application within seven days if Inpex did not agree
to commence bargaining. The email says that the union anticipates a majority of the
workforce will support collective bargaining to secure employees terms and conditions of
employment and asks employees who haven’t yet done so to complete an attached petition. 19
[24] On 23 April 2020, Mr Smith responded to Mr Duncalfe to confirm that Inpex did not
intend to engage in bargaining. 20
[25] On 25 May 2020, the AWU filed the Application.
[26] Inpex does not wish to engage in enterprise bargaining and opposes the Application.
Key Statutory Provisions
[2020] FWC 3843
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[27] Section 236 of the FW Act provides that:
“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.”
[28] Section 237 of the FW Act provides that:
“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
(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
[2020] FWC 3843
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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.”
By what method should the FWC determine whether a majority of employees want to
bargain?
[29] The making of a majority support determination confirms that the majority of the
employees to be covered by a proposed agreement want to bargain with the employer towards
such an agreement. The effect of a majority support determination is to require the
commencement of the agreement bargaining process, but it neither requires that an agreement
be reached nor dictates the terms of any such agreement.21
[30] Prior to making a majority support determination, the FWC must be satisfied that a
majority of the employees who will be covered by the Agreement want to bargain.
[31] It is clear from the evidence of Mr Smith, that even before the Current Agreement
expired, there has been interest among a portion of the workforce covered by the Current
Agreement to commence bargaining for a new agreement. Notwithstanding undertakings by
Inpex that it will not seek to terminate the Current Agreement, a number of employees appear
to remain keen to secure and perhaps improve their terms, and conditions of employment with
an in-term agreement.
[32] In working out whether a majority of employees want to bargain, the FWC may use
any method it considers appropriate. In the Form F30 – Application for a majority support
determination, the AWU proposed to provide the FWC on a confidential basis with signed
individual petitions from employees covered by the Current Agreement.
[33] In its response to the Application dated 28 May 2020, Inpex sought access to the
individual petitions collected by the AWU and proposed to be filed on a confidential basis
with the FWC. Given that multiple applications for a majority support determination have
been foreshadowed, but never lodged, Inpex is concerned that the petitions obtained by the
AWU may not reflect the current and genuine views of relevant employees.
[34] The AWU refused to allow Inpex access to the individual petitions on the basis of
individual privacy and freedom of association concerns.
[35] A conference was convened between the parties, and the parties agreed to make
submissions with respect to the appropriate method for the FWC to determine whether a
majority of employees want to bargain.
[36] The AWU submits that in the circumstances of the current matter, it would be
appropriate for the FWC to determine whether a majority of employees want to bargain by
one of two methods:
[2020] FWC 3843
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a. by the FWC comparing the number of petitions received by the AWU and
confidentially provided to the FWC against an employee list, confidentially provided
by Inpex to the FWC determine if, within the scope of the proposed agreement, the
number of employees who have provided a completed bargaining petition exceeds the
number of employees who did not (Petition Method); or
b. by ordering that a ballot of the relevant employees be conducted by the Australian
Electoral Commission (AEC) (Ballot Method).
[37] In its submissions, Inpex raised numerous concerns in relation to the use of the
Petition Method in this Application. These concerns are set out in detail in their submissions
and include:
a. It is unclear whether the petitions to be relied upon by the AWU were sent to
employees personal or work email addresses
b. The petitions to be relied on by the AWU may be have been sent from the MUA or the
Offshore Alliance rather than the AWU.
c. It is unclear what employees were told would be done with the information in the
petitions.
d. That the petitions to be relied on by the AWU may be too old to be relevant.
e. That not all relevant employees may have received a petition form.
f. That employees who signed the petitions to be relied on by the AWU may not still
employed.
g. Employees who signed the petition may not have had the opportunity to subsequently
revoke their petition if they wished to do so.
h. It is unclear what number of petitions expressed a desire to bargain.
[38] The Petition Method, whereby employee preference is captured in petitions and is
provided on a confidential basis to the presiding Member which the Member compares with a
list of current relevant employees provided by the employer is the most common mechanism
used in the determination of majority support determinations.
[39] It is important to note that it is the Member, not the respondent employer who must be
satisfied that a majority of employees are in favour of bargaining.
[40] Members are called upon on almost a daily basis to consider contested evidence.
Members are typically appointed with significant prior forensic and industrial experience.
Consequently, Members typically have the necessary expertise to accurately assess the
credibility of the petition data provided on a confidential basis to the FWC. Where the
Member is not satisfied that the petition or petitions clearly demonstrates a contemporaneous
and clear desire on behalf of a majority of employees to bargain, the Member will not grant
the relevant application.
[41] Employer concerns as to the framing of the petition questions, the type of data
gathered or the timing of data gathering are typically addressed by the provision of a blank or
redacted petition, as the AWU offered to do at the Conference conducted in relation to this
matter.
[42] Concerns that employees have not freely expressed their own views and have been
subject to verbal or physical pressure to sign a group petition is typically addressed by the use
of individual petitions circulated by email such as occurred in this Application.
[2020] FWC 3843
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[43] Additionally, standard directions issued by my Chambers in applications of this type
require the applicant to provide a statutory declaration as to the circumstances in which the
petitions were collected. If this evidence was contested by the employer, the employer would
have the opportunity to cross examine the declarant as to the contents of the statutory
declaration at hearing. The same directions also require the employer to circulate to
employees an invitation to be heard in relation to the Application. In addition an employer
could call witnesses to attest that employees did not freely express their views, if in fact, such
evidence existed.
[44] The most recent blank petition form which Inpex tendered, circulated as recently as
16 April 2020:
a. provided a clear and simple explanation of the purpose of the document;
b. required employees to expressly confirm that they completed the document freely and
without pressure;
c. sought the employee’s full name, work site, position and mobile number against which
employee identity could be verified;
d. recorded the date on which the petition was signed.
[45] With access to this information and employee records provided by Inpex, the FWC
would have sufficient information to address the reasonable concerns of Inpex in relation to
the credibility and contemporaneity of the petitions without the identity of employees
supporting bargaining being identified to the company.
[46] Inpex has made it clear to its workforce on a number of occasions that it does not wish
to bargain for a new agreement. It has chosen to adopt a vigorous insistence on access to
employee individual responses. It would not be unreasonable for individual employees to be
concerned that the exercise of their statutory right to express a preference for bargaining if
accessed by their employer might be viewed adversely. In the current labour market and
economic environment, such sensitivities are likely to be particularly pressing for employees.
[47] I do not accept the assertion by Inpex that the AWU has connived to secure the use of
the Ballot Method. The Ballot Method was not first proposed by the AWU and remains an
alternative rather than their preferred method of determining the views of the majority. Nor
do I accept that the FWC is not empowered to make orders to effect the Ballot Method. It is a
method not irregularly utilised by the FWC in other applications of this type.22
[48] The Ballot Method addresses all the concerns raised by Inpex in relation to the
independence and currency of employee preference. Furthermore, it also adequately
addresses its concerns with regard to procedural fairness if it is not given full access to the
petitions on which the AWU seek to rely. The Ballot Method addresses the AWU’s privacy
and freedom of association concerns.
[49] Subsection 237(3) of the FW Act does not give any primacy to the Petition Method or
any other method to determine employee views. Subsection 237(3) of the FW Act leaves at
the Member’s discretion the determination of the appropriate method for ascertaining
employee preference. The Member is not restricted to the method proposed by the applicant
in the originating application. Often Members impose additional or alternative evidentiary
requirements, for example, a requirement to provide a statutory declaration as to the
[2020] FWC 3843
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circumstances in which the petition/s was obtained or a requirement to post a notice or
distribute directions giving employees an opportunity to be heard in relation to the majority
support application.
[50] In all the circumstances of this Application, I am satisfied that the Ballot Method is an
objective and decisive way to conclusively determine whether a majority of employees, do in
fact, want to bargain, and is the most appropriate way on the facts of this Application to
determine whether a majority of employees want to bargain for a new agreement.
Are the employees to be covered by the Proposed Agreement fairly chosen?
[51] The FWC must be satisfied that the group of employees to be covered by the proposed
agreement was fairly chosen. If the agreement will not cover all employees of the employer,
the FWC must take into account whether the group covered is geographically, operationally
and/or organisationally distinct from other employees of the employer. Having determined
whether the group is geographically, operationally, and/or organisationally distinct, the FWC
must take that into account and give it due weight having regard to all the other factors.23
[52] While the question of whether the group of employees to be covered by the Proposed
Agreement is geographically, operationally and/or organisationally distinct must be evaluated,
and given due weight, it is not a determinative consideration. It is not necessary to make a
finding that the group is geographically, operationally, and/or organisationally distinct in
order to be satisfied that a group of employees was fairly chosen.24
[53] The word ‘fairly’ implies that the selection of the group is not arbitrary or
discriminatory and is made on some objective basis.25 In this regard, it is appropriate to have
regard to the interests of the employer, such as enhancing productivity, and the interests of
both the employees included in the agreements coverage and employees who are excluded.26
Selection criteria based on employee characteristics such as gender would be unlikely to be
fair. Selection criteria which would have the effect of undermining collective bargaining or
other legislative objectives are also unlikely to be fair.27
[54] The Proposed Agreement proposes to cover two classifications of employees.
Operations Technicians (Trade and Processing) and Operations Technicians (Services). This
is the same two classifications covered by the Current Agreement.
[55] At the time the Current Agreement was approved the Member approving the Current
Agreement was satisfied that the group of employees covered by the Current Agreement was
fairly chosen.
[56] Inpex has led evidence that the Current Agreement has previously applied to
employees working overseas and that employees are not performing work in these locations at
present. Inpex has not explained how this now makes the group of employees covered by the
Current Agreement no longer geographically, operationally or organisationally distinct. In
fact, arguably if the Proposed Agreement will only apply to workers located in Australia, the
group of employees proposed to be covered by the Proposed Agreement is, in fact, more
geographically distinct.
[57] Inpex also asserts that the employees currently covered by the Current Agreement
perform substantially different work to that performed by employees covered by the Current
[2020] FWC 3843
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Agreement at the time it was made. They have not provided any evidence that this new work
is no longer operationally, organisationally or geographically distinct, only that it is different.
[58] Inpex, on its own admission, is content for the Current Agreement to continue to
apply, presumably because it is in its interests to do so.
[59] There is no evidence before me to suggest that the selection of the Employee Group is
fairly characterised as either arbitrary or discriminatory.
[60] There is no evidence, before me, to suggest that the Employee Group is not fairly
chosen and I am satisfied that the Employee Group was fairly chosen.
[61] An order regarding the conduct of a ballot to be conducted by the AEC will be issued
with this Decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR721187
1 Witness Statement of Garry Smith at [2].
2 Ibid at [22].
3 Ibid at [6].
4 Ibid at [8].
5 Ibid at [12].
6 Ibid at [14].
7 Ibid at [15].
8 Ibid at [16].
9 Ibid at [21].
10 Ibid at [21]-[27].
11 Ibid at [21]-[27].
12 Ibid at [21]-[27].
13 Ibid at [34]-[36].
14 Ibid at [37]-[43].
15 Ibid at [37]-[43].
NOHA COMMISSION CON ORK ZMI 10, 7425 3HZ AUSTRALIA
[2020] FWC 3843
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16 Ibid at [37]-[43].
17 Ibid at [37]-[43].
18 Ibid at [44]-[48].
19 Witness Statement of Garry Smith at [44]-[48].
20 Ibid at [44]-[48].
21 Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd [2009] FWAFB 668, [25].
22 Australasian Meat Industry Employees Union v Western Meat Processors (PR709802, 27 June 2019, Beaumont DP);
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2019] FWC 4157; Transport Workers' Union of Australia Followmont Pty Ltd T/A Followmont (PR708489, 20 May
2019); Independent Education Union of Australia v Glenvale Education Incorporated T/A Glenvale School (PR703152,
DP Hamilton, 13 December 2018); Finance Sector Union of Australia (PR701846, SDP Hamberger, 29 October 2018);
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v
Downer EDI Engineering Power Pty Ltd (PR598393, Williams C, 6 December 2017).
23 Construction, Forestry, Mining and Energy Union v Alcoa of Australia Ltd [2014] FWC 7123 citing Cimeco Pty Ltd v
CFMEU [2012] 219 IR 139; Cotton on Group Services Pty Ltd v National Union of Workers [2014] FWCFB 8899.
24 Cimeco Pty Ltd v CFMEU [2012] 219 IR 139 at [20]; Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v
Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union [2017]
FWCFB 5826, [26].
25 Cimeco at [21], Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia;
Australian Municipal Administrative Clerical and Services Union [2017] FWCFB 5826, [26].
26 Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian
Municipal Administrative Clerical and Services Union [2017] FWCFB 5826, [26].
27 Construction, Forestry, Mining and Energy Union v Alcoa of Australia Limited [2014] FWC 7123 citing Cimeco [21].
