Workplace Express: MUA Wins Beachead at Gorgon Project

Workplace Express 

Wednesday, October 26, 2016, 3:17pm

The MUA has established its right to represent one of three teams of workers it sought access to at the Gorgon LNG project's processing site, after the FWC found their principal functions "lie at the heart of a waterside worker".

The union had argued that all members of the Barrow Island offloading facility (OLF), shore based (SB) and logistical operations (LO) teams were "wharf crew" engaged as waterside workers to load and unload vessels.

But Toll Energy Logistics and Kellogg Joint Venture Gorgon sought to limit the union's representation to the OLF team's crane operators as the LNG project moves into its operating phase (see Related Article).

The employer argued that the primary purpose of all employees was to transport freight and that they were engaged across locations, tasks and roles, while only the crane operators spent more than 35% of their time at the offloading facility.

Commissioner Danny Cloghan acknowledged the flexible workforce might be the employer's "objective intention", but said the OLF team's "previous operational context of limited movement of employees in the marine team remains".

The commissioner said he was satisfied the OLF team's duties away from the offloading facility and landing were "not 'incidental" to the loading and unloading of vessels" and was "part of the overall logistics "of Toll Energy’s contract.

"In my view, it is not in dispute that the principal or substantive function of the OLF team is to load and unload cargo into or off vessels.

"These functions lie at the heart of a waterside worker," he said, concluding that the MUA is entitled to represent them under s484(b) of the Fair Work Act.

However Commissioner Cloghan said he was "not prepared to 'roll up' the work of the SB and LO teams into a group of employees involved in the loading and unloading of vessels" at the site.

"If I consider the criteria for following the occupation of a waterside worker and measure those against the characteristics of the SB and LO teams, they are simply not comparable," he said.

"The SB and LO teams carry out, pursuant to the SBS Contract, the plain and ordinary meaning of logistics work: the preparation, transportation, distribution and storage of freight to various areas on Barrow Island.

"Put simply, the SB and LO teams and their employees have a different principal purpose, dominating purpose, predominant purpose and/or substantive employment to the OLF team."

MUA WA branch assistant secretary Danny Cain told Workplace Express the union is "pleased with the decision", which establishes its "right and the ability to cover those working on the waterside at Barrow Island".

"We look forward to working with and having a relationship with Toll in the near future," Cain said.

WA is the third state in which the MUA has applied to the FWC to establish its right to represent waterside workers at major LNG projects over the past few years.

In January, the FWC confirmed the MUA's right to represent waterside workers employed by the construction contractor for the Darwin Harbour facilities being built as part of INPEX's major Ichthys LNG project (see Related Article).

And an FWC full bench in 2013 refused Bechtel permission to appeal against a finding that the MUA was entitled to enter its $20 billion Curtis Island LNG projects for discussions with excavator operators (see Related Article).

Maritime Union of Australia [2016] FWC 7073 (26 October 2016)