IN an important test of sections 236 and 237 of the Fair Work Act, a Full Bench of the Fair Work Commission has revoked a majority support determination provided to the Australian Workers Union for coverage of a small group of Surat Basin gas plant operators.

Commissioner Simpson issued the Australian Workers Union a majority support determination on 24 October last year, allowing the union to negotiate a single enterprise agreement covering 66 gas plant operators who maintain QGC’s gas extraction and processing infrastructure.

The original decision was problematic for QGC given the agreement would cover a very limited component of its Surat Basin workforce who have historically not been covered by an enterprise agreement.

Workforce not ‘operationally distinct’ – QGC

In its appeal, QGC argued Commissioner Simpson failed to properly consider the way the enterprise was structured, the nature of work performed by employees excluded from coverage, and the interrelationships between those excluded employees and the employees covered.

The employer also argued Commissioner Simpson was wrong to treat the performance of a different role, task, skill or function as meaning employees were ‘operationally distinct’.

Further, QGC argued that the willingness or wishes of the employees to bargain was a separate matter for consideration as to their fairness to be covered.

Employees ‘fairly chosen’ – AWU

The AWU submitted to the appeal proceedings that Commissioner Simpson was right to determine the group as distinct and fairly chosen.

They argued the original finding was on the basis the employees were part of a distinct group of 66 employees belonging to two classifications of employees performing a role exclusive to that group with some unique competencies.

Further, the union said the Commissioner rightly took into account that it was only the group of 66 who approached the union wanting to bargain, rather than any other group that would fall within the union’s ambit.

Full Bench backs QGC

After closely examining submissions from QGC, the AWU and the original decision, the Full Bench comprising Deputy President Asbury, Deputy President Dean and Commissioner Saunders ultimately agreed with QGC that the small group of gas operators were not ‘operationally or geographically’ distinct from other members of its Surat Basin workforce.

The Bench found the Commission needed to be satisfied that the group was fairly chosen to make a majority support decision, and in this, found the Commissioner had erred.

“We are of the view that the Commissioner has treated the performance of a different role, task, skill or function as operational distinctiveness and has erroneously concluded that the group of employees is operationally distinct on that basis,” the Full Bench said in its decision.

“The term ‘operational’ refers to an industrial or productive activity – here the operation and maintenance of gas extraction and processing infrastructure in the Surat Basin in Queensland.

“The term ‘organisation’ refers to the manner in which the employer has organised its enterprise in order to conduct those operations. The fact that Gas Plant Operators and Gas Plant Lead Operators perform a different role, task or function to that performed by other operators is not of itself a sufficient basis upon which a finding of operational or organisational distinctiveness can be made in the circumstances of the present case.”

Implications

The decision provides important consideration of the requirements of sections 236 and 237 of the Fair Work Act and the immediate outcomes for QGC is that the employer will not be compelled to participate in negotiations for an enterprise agreement covering only a small portion of its workforce.

The AWU has until this Friday (10/3/17) to apply for the full bench to re-determine its application for a majority support determination if it wishes to continue to pursue the matter.

QGC Pty Ltd v Australian Workers’ Union [2017] FWCFB 1165 (3 March 2017)

For more information on this matter or any other workplace relations support you require, please contact your local AREEA office.