Fair Work Act 2009
s.236 - Application for a majority support determination

Australian Workers' Union, The
v
Woodside Energy Ltd
(B2022/530)

Application for a majority support determination – Production Orders

[1] On 3 June 2022 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 Woodside Energy Ltd (Woodside) to commence bargaining for a new enterprise agreement (Proposed Agreement).

[2] The Proposed Agreement would cover those employees of Woodside who are engaged to work on Goodwyn Alpha (GWA Platform), North Rankin Complex (NRC) and Angel (Angel Platform) (together, the Manned North West Shelf Fixed Gas Platforms) in Level 4 to Level 9 roles, up to and including supervisors (Employees).

[3] The AWU say that it has collected signed individual petitions from a majority of employees who will be covered by the proposed Agreement confirming that they wish to bargain (Petitions). The AWU submit that the appropriate way for the FWC to determine whether a majority of Employees wish to bargain is for the FWC to compare the information contained in the Petitions with Employee identification information provided by Woodside (Petition Method).

[4] The parties participated in a conciliation conference on 29 June 2022. At that Conference and in subsequent correspondence with Chambers Woodside expressed concern that the method proposed by the AWU (and most commonly used by the FWC) to determine whether a majority of employees wish to bargain was not a reliable method to work out whether a majority of employees want to bargain in the circumstances of this particular application. At the same conference the AWU indicated a willingness to consider alternative methods of demonstrating that a majority of relevant employees wish to bargain.

[5] Directions were issued to the parties on 12 July 2022. Those Directions required inter alia:

a. The AWU file a statutory declaration setting out the date and circumstances in which each of the Petitions was obtained.

b. The AWU file the Petitions with the FWC on a confidential basis and serve a redacted version on Woodside.

c. Woodside to provide Employee information in order for the FWC to verify the Petitions.

[6] In light of Woodside’s concerns, and the AWU’s willingness to explore alternative methods to determine whether a majority of employees wish to bargain, Woodside were invited in the Directions to propose an alternative method to the Petition Method to determine whether a majority of Employees wish to bargain. The Directions provided that the AWU would then file its submissions in response.

[7] On 15 July 2022 Woodside made an application for an order for production of documents to the Commission (Application to Produce). The Application to Produce sought orders that the AWU produce to Woodside:

a. Unredacted copies of the Petitions

b. Each Certificate of Completion issued by DocuSign in respect of the Petitions.

c. Every communication sent to each Employee between 1 February 2022 and 1 July 2022, including to their private email addresses, from:

•  Mr Doug Heath;

•  any person on behalf of the AWU;

•  any person on behalf of the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU); and

•  any person on behalf of the ‘Offshore Alliance’.

[8] On 19 July 2022 the AWU filed submissions opposing the Application to Produce.

Background

[9] According to the AWU the Petitions were gathered in the period from 22 April 2022 to 2 June 2022.

[10] Employees who signed the Petitions were asked to verify their identity by signing the Petition using an identify verification platform called Docusign. According to Woodside once a person signs a document using Docusign a ‘Certificate of Completion’ is issued to the Docusign account holder.

[11] On 19 March 2022, 23 March 2022, 4 April 2022, 22 April 2022 and 3 May 2022 Mr Doug Heath (Mr Heath) in his capacity as a representative of the AWU sent correspondence to Employees at their work and/or private email address which contained information which Woodside assert is incorrect.

[12] On 12 May 2022 Mr Heath sent an email to the Employees inviting Employees to provide their personal email address to him if they preferred to correspond via their personal email address. The same email also invited Employees to indicate if they would prefer not to receive any further correspondence either to their work or private email address.

[13] The Offshore Alliance host a public Facebook Page. On 22 February 2021, 2 March 2021, 8 March 2021, 16 March 2021, 9 February 2022, 12 February 2022, 20 February 2022, 4 March 2022, 21 March 2022, 25 April 2022 posts were made on the Facebook Page which Woodside assert contained false or misleading information about Woodside.

Consideration

[14] Woodside assert the Petitions were “… unfairly and improperly procured on account of fundamental and material representations …” contained in Mr Heath’s various correspondence with the Employees and the posts on the Offshore Alliance Facebook Page.

[15] Woodside submit that if the petitions are not produced, it is denied the opportunity to test their integrity.

[16] Woodside submit that production of the Certificate of Completion is necessary for:

a. Woodside to ascertain the date on which the Petition was executed so that date can be aligned with the date upon which they say misrepresentations were made to Employees.

b. The FWC to reach the requisite state of satisfaction that the individual employees who signed the Petitions were actually responsible for doing so.

[17] Woodside submit that the alleged misrepresentations made by Mr Heath in his email correspondence justify Woodside scrutinising communication sent or received from Employees work and personal email addresses so that Woodside can substantiate their case that Employees were mislead into executing the Petitions.

[18] Woodside submit that the information contained in the documents sought to be produced are relevant to these proceedings “… because they are likely to show.”:

a. the terms of the Petitions (including any information contained in them);

b. the precise dates the Petitions were circulated and signed, and some indication of the chain of custody of the Petitions after being signed;

c. the whole content of the representations made by the Applicant to the relevant employees, and the dates when those representations were made;

d. whether all employees who signed the Petitions were entitled to be represented by the AWU;

e. whether all employees who signed the Petitions will be covered by the proposed agreement;

f. the circumstances in which the Petitions were circulated and signed (including the manner in which the petitions were prepared and presented to the employees), the means upon which the AWU came into possession of WEL employee emails, and whether, and to what extent, WEL’s employees were misled prior to them signing the Petitions and/ or properly understood the significance and purpose of any Petition that they signed).

[19] The AWU submit that they oppose the Application for Production basis of relevance and individual privacy and freedom of association concerns.

[20] In particular the AWU oppose the production of the Petitions on the grounds that the Petitions were provided on a confidential basis to the FWC so that employees could feel confident to exercise their freedom of association and their statutory right to express a preference for collective bargaining.

[21] 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.

[22] 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.

[23] 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.

[24] In National Union of Workers v Lovisa Pty Limited [2019] FWC 2571, Deputy President Colman accepted that, ordinarily, there were reasonable grounds for unredacted petition documents not to be provided to the employer given concerns about disclosure of the identity of employees. The Deputy President explained (at [67]):

“[67] Generally, petitions can be an acceptable method for the Commission to determine the question of majority for the purpose of s 237(3). And in the absence of some evidence raising a prima facie concern about the reliability of petitions as evidence of employee support, I would incline to the view that it is sufficient for the Commission to receive an un-redacted copy of the petition documents and for the employer to receive a redacted copy. In some cases a union will not object to providing the employer with the un-redacted petition but often, as was the case in this matter, employees have expressed some concern to their union about the disclosure to the employer of their signatures on a petition. In my view, an apprehensiveness of this kind is understandable as employees who sign a petition to bargain are taking a position that is in opposition to that of their employer, which obviously in such matters does not wish to bargain.”

[25] 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 contemplated by the Directions.

[26] 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.

[27] Petitions are routinely accepted in applications of this nature which contain simply employee signatures. The risk of petitions being fraudulently completed is minimised with petitions which require employee identification data (rather than simply a name or signature) which can be matched against information provided by the employer. The Directions already contemplate the parties providing this information. In this particular Application the AWU has sought to enhance the level of security by asking employees to use well know credible identity verification software. Woodside have provided no evidence to suggest that Petitions were fraudulently completed. I am not satisfied that the production of the Certificates of Completion is necessary or appropriate. In fact in the absence of evidence of such a possibility such an order given the complexity of checking IP addresses is likely to be contrary to the requirement in the FW Act that FWC determine matters in a manner that is quick, informal and avoids unnecessary technicalities.

[28] Furthermore, the Directions require the AWU to provide a statutory declaration as to the circumstances in which the petitions were collected. If this evidence is contested by Woodside when it is filed by the AWU, Woodside have the opportunity to cross examine the declarant as to the contents of the statutory declaration at the hearing of the Application.

[29] The majority of Woodside’s submissions in support of the Application to Produce deal with statements made or allegedly made by the AWU and its representatives with which Woodside disagree.

[30] Woodside submit that this justifies an unprecedented invasion into the personal privacy of employees by seeking production of all communications over a six month period between Employees and Mr Heath or any person on behalf of the AWU, CFMMEU or the Offshore Alliance.

[31] It is arguable whether each of the statements identified by Woodside are ‘fundatmental and material misrepresentations’ as they allege. Furthermore, Woodside have provided no evidence that any Employee:

a. read the material posted on the Offshore Alliance Facebook Page or in fact the emails sent to them by Mr Heath;

b. was in fact mislead by any of information identified by Woodside as false;

c. that as a consequence of being misled executed a Petition and would not have executed a Petition had they not been misled.

[32] There are multiple basis upon which such an order is inappropriate:

a. The application contemplates the production of documents completely irrelevant to the determination of the Application. For example, if an Employee was employed by a different employer during this period information relevant to this employment, or information about services provided by the unions to members, or information about the union activities more broadly.

b. Given the unlimited scope of the production request the number of documents is potentially oppressive.

c. The CFMMEU is not a party to the Application and without the opportunity to oppose production of communication to and from the union.

d. That Employees chose to provide their personal email addresses rather than continue to communication via their work email indicates that they had concerns with their employer viewing the correspondence. It is not unreasonable for Employees to be apprehensive in circumstances where they intend to express a view contrary to their employer and the exercise of their statutory rights.

e. The orders are in part unnecessary given Woodside already presumably have access to communications sent and received on their servers.

[33] The alleged statements made are not so egregious to justify such extensive invasion of privacy or difficult to redress to the extent that it necessary or appropriate to do so.

[34] Woodside has unfettered access to its own employees to provide them with information to ensure that Employees are fully and accurately informed about the advantages and disadvantages of entering into bargaining and/or to correct other assertions made by the AWU or its representatives.

[35] If Woodside believe that the Petition information was tainted by incorrect information and if properly informed Employees would not support bargaining, then this can be addressed by Woodside proposing, as they have been invited to, an alternative method of assessing whether a majority of employees wish to bargain. This assessment can be timed to occur after Woodside has provided further information to its Employees to address any incorrect information which it alleges has been provide to its Employees.

[36] To the extent that Woodside assert that Employees are not freely expressing their views, to the extent such evidence exists, Woodside can call witnesses to attest to this at the Hearing or tender evidence of the outcome of its own employee surveys.

[37] Furthermore, the Directions require Woodside to circulate to Employees the materials filed by the parties and an invitation to be heard in relation to the Application. This provides Employees with access to the submissions of both parties side by side and gives them a independent voice before the FWC.

[38] For these reasons the Application to Produce is denied.

DEPUTY PRESIDENT

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