Applications by Jolly, Paris

[2020] FWC 1888

[2020] FWC 1888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order
s.238 - Application for scope orders

Applications by Jolly, Paris
(B2020/219)
(B2020/220)

COMMISSIONER MCKINNON MELBOURNE, 8 APRIL 2020

Applications for scope order and bargaining orders in connection with bargaining to replace the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2015-2019.

[1] Metro Trains Melbourne Pty Ltd operates the Melbourne metropolitan rail network under contract to the Victorian Government. It has been bargaining for more than 12 months with the Australian Rail, Tram and Bus Industry Union and its rail operations employees for an enterprise agreement to replace the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2015-2019. The Association of Professional Engineers, Scientists and Managers, Australia (Professionals Australia) is also a bargaining representative has bargained separately with Metro for the agreement.

[2] Bargaining has reached the stage where agreement has been reached with the Union’s rail divisions (representing rail operations employees other than driver grades) and Professionals Australia, but not with the Union’s locomotive division which represents driver grades or with Paris Jolly, a train driver and bargaining representative for approximately half of all employees in the driver grades (drivers). Metro has decided to put the agreement to a vote of employees.

[3] This decision is about whether the Commission should intervene in the bargaining process for the benefit of drivers in particular, either by delaying the employee vote which is due to commence at midnight tonight while further steps are taken in bargaining and/or by altering the group of employees who will be covered by the agreement and requiring Metro to bargain separately with drivers.

[4] As things presently stand, the proposed agreement will cover “all of those employees of Metro that are directly involved in the day to day running of trains and railway stations across the suburban network, and the support functions involved in supporting that task” 1, including drivers and trainee drivers, authorised officers, train controllers, professional engineers, administrative support employees, foreman supervisors, station officers and masters, barrier staff and station hosts as well as information communication and technology operations employees.

[5] Until recently, Mr Jolly was Union’s Locomotive Division representative to National Council and Metropolitan Subdivision Secretary of the Union’s Locomotive Division. He has been involved in bargaining for the proposed agreement in his capacity as a union official since early 2019. While still a member of the Union, Mr Jolly resigned from his roles as National Council representative as Subdivision Secretary on 18 March 2020. A notice posted on the noticeboard at Flinders St Station on or around that time invited employees to nominate him as their bargaining representative. Approximately 650 drivers subsequently appointed Mr Jolly in writing as their bargaining representative for the proposed agreement and this was communicated to Metro on and from 19 March 2020 (and formally to Metro’s bargaining team on 22 March 2020). While the Union is no longer bargaining representative for those employees, it remains bargaining representative for hundreds of other employees who will be covered by the proposed agreement, including drivers, signalling and station staff.

[6] As with the Union’s locomotive division, Mr Jolly does not support the proposed agreement in its current form. He considers that it will impose “unfair burdens” on drivers in six main areas: training, variety of running, forced transfers, part-time employment, group rotation and mandatory support for roster changes. 2 Metro concedes that efficiencies gained from the proposed agreement will derive mostly from changes in the terms and conditions of drivers. Drivers comprise approximately one third of the covered workforce (1248 of a total of 3288).

[7] Mr Jolly believes that if the proposed agreement is put to a vote of employees, it is likely to be approved because employees are likely to act in their own interests to receive a pay increase and to be indifferent to the plight of drivers. His ability to secure a more favourable outcome for drivers will then be lost. He seeks bargaining orders compelling Metro to provide him with additional information and to engage in further bargaining with him directly over the next four weeks. He also seeks scope orders to:

1. exclude driver grades from coverage of the proposed agreement; and

2. require Metro to bargain for an enterprise agreement that only covers drivers.

History of bargaining

[8] Metro initiated bargaining for the proposed agreement in February 2019. It exchanged extensive logs of claims with the Union on 12 February 2019 and since then there have been a total of 76 meetings between the parties, including:

1. 26 February 2019 (both divisions)

2. 8 March 2019 (rail division)

3. 12 March 2019 (locomotive division)

4. 19 March 2019 (rail division)

5. 26 March 2019 (rail division)

6. 26 March 2019 (locomotive division)

7. 9 April 2019 (rail division)

8. 11 April 2019 (locomotive division)

9. 23 April 2019 (rail division)

10. 26 April 2019 (locomotive division)

[9] On 24 April 2019, Metro sought the assistance of the Commission in bargaining with the Union, concerned about lack of progress and with a view to narrowing the issues in dispute. Conferences were held on 7 May 2019, 6 June 2019, 25 June 2019, 3 July 2019, 17 July 2019, 24 July 2019, 31 July 2019, 25 September 2019, 4 October 2019, 8 October 2019, 18 October 2019, 24 October 2019, 25 October 2019, 31 October 2019, 8 November 2019, 31 January 2020, 14 February 2020, 21 February 2020, 28 February 2020, 6 March 2020, 12 March 2020 and 27 March 2020. Mr Jolly regularly attended bargaining meetings on behalf of employees in the Union’s locomotive division.

[10] On or about 5 August 2019, the Union gave notice of its intention to take protected industrial action in support of the proposed agreement. Metro successfully sought Federal Court orders restraining the Union and requiring it to take certain steps. The Union was subsequently found not to have complied with an order of the court, with the result that it lost the ability to organise lawful industrial action. That matter is currently under appeal. I agree with Mr Jolly’s submission that it has proved a distraction to the bargaining process.

[11] In the period from 13 August 2019 to 3 September 2019, nine intensive joint bargaining meetings were held between the parties. Mr Jolly’s involvement in those meetings was at the time described by the Union as both “crucial” and “beneficial”. 3

[12] On 3 September 2019, Metro made a ‘first and final offer’ to the Union on behalf of employees to settle the proposed agreement. The offer was not accepted. Bargaining continued with each division of the Union as well as with Professionals Australia.

[13] After securing support for the agreement from the Union’s rail division and Professionals Australia, a second ‘final offer’ was made by Metro to employees on 12 March 2020. It is this second proposal, with minor modifications communicated broadly to employees on 25 March 2020, that employees have now been asked to vote upon.

[14] On 16 March 2020, Mr Jolly became aware that the Union’s rail division was likely to support the proposed agreement. After resigning from the Union on 18 March 2020, he sought and gained support from among the drivers for his appointment as an independent bargaining representative and communicated this new status to Metro on and from 19 March 2020.

[15] On 24 March 2020, Metro wrote to Mr Jolly acknowledging his appointment as bargaining representative on 20 March 2020. It invited him to provide any further feedback on the proposed agreement before it was finalised and before an access period commenced in preparation for an employee vote. It asked for written feedback or comments by no later than 5.00pm on 26 March 2020.

[16] On 5.09pm on 26 March 2020, Mr Jolly wrote to Metro setting out his concerns about the bargaining, the content of the agreement and its scope. Metro responded by letter on 27 March 2020.

[17] On 30 March 2020, Mr Jolly met with Metro to discuss his concerns.

[18] On 31 March 2020, Metro wrote again to Mr Jolly responding to the matters discussed at the meeting on 30 March 2020. Later the same day it advised him that it had decided to put the agreement to vote.

[19] At 6.11pm on 31 March 2020, Metro emailed employees asking them to vote on the proposed agreement by commencing the ‘access period’. At precisely the same time, Mr Jolly emailed Metro reiterating his concerns and asking for Metro to reconsider its position.

[20] The following day, Mr Jolly filed this application.

Should bargaining orders be made?

[21] Mr Jolly’s application for bargaining orders was made on 1 April 2020, well after the current enterprise agreement passed its nominal expiry date of 30 June 2019.There is no dispute that Mr Jolly is a duly appointed bargaining representative for the proposed agreement.

[22] I am satisfied that Mr Jolly has concerns that Metro has not met the good faith bargaining requirements in particular by:

1. not attending and participating in meetings with Mr Jolly at reasonable times; and

2. not agreeing to defer the vote on the proposed agreement while further bargaining meetings occur with him so that his proposals can be genuinely considered. In this way he submits that Metro is engaging in capricious and unfair conduct which undermines the decision of approximately 650 drivers to appoint him as their representative in bargaining with Metro.

[23] Mr Jolly gave written notice of the concerns above to Metro on 26 March 2020. Metro’s comprehensive written reply to the concerns raised by Mr Jolly on 27 March 2020, together with the meeting between the parties on 30 March 2020 and further comprehensive written advice on 31 March 2020 satisfy me that it had a reasonable opportunity to respond. While the timeframes for notice and response were short in this particular respect, both Metro and Mr Jolly have been involved in bargaining together for more than 13 months. In my view, each is well versed in the claims and concerns of the other, even though they clearly have different views about what is the appropriate way forward.

[24] I am satisfied that Mr Jolly genuinely believes that by not acceding to his proposals for additional time or for the delay of any vote on the proposed agreement, Metro has not responded appropriately to the concerns set out in his letter of 26 March 2020.

[25] It follows that the conditions for consideration of Mr Jolly’s application for bargaining orders are made out.

Has Metro met, or is it meeting, the good faith bargaining requirements?

[26] The good faith bargaining requirements are found in section 228 of the Act. They require bargaining representatives to: attend and participate in meetings at reasonable times; disclose relevant information in a timely manner; respond to proposals made by other bargaining representatives in a timely manner; give genuine consideration to proposals made by other bargaining representatives and give reasons for responses to those proposals; refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining; and recognise and bargain with the other bargaining representatives.

Attending and participating in meetings at reasonable times – s.228(1)(a)

[27] Mr Jolly says Metro’s refusal to engage in further negotiations with him directly about his concerns with the proposed agreement amounts to a failure by Metro to attend and participate in meetings at reasonable times. I do not agree.

[28] Were the window for bargaining simply that period between 12 March 2020 (when Metro made its final offer to employees) and 1 April 2020 (when Mr Jolly made this application), my view may well be different. In that scenario, an agreement proposing multiple changes would have been put to vote after a single meeting and some exchange of correspondence. However, viewing the bargaining process through such a narrow prism would be to ignore the genuine and reasonable efforts all parties have made to meet regularly to discuss terms for a proposed agreement over the past 13 months.

[29] I have set out above the schedule of meetings that occurred both privately between the parties, in the Commission and in separate ‘high level’ and ‘intensive’ bargaining meetings. Mr Jolly has participated in most of these meetings where matters relevant to the locomotive division of the Union have been discussed.

[30] Except where meetings have been adjourned or rescheduled by agreement, Metro has actively attended and participated in bargaining meetings scheduled with the Union. It has regularly provided its proposed agenda and items for discussion in advance. It has separately arranged for the provision of detailed information or briefings where requested. For the most part, meetings have been scheduled on days and time intended to ensure that key participants, including Mr Jolly, were able to attend. To facilitate his attendance, Mr Jolly has been paid by Metro for rostered shifts not worked while participating in bargaining.

[31] Metro’s decision to put the agreement to a vote without unanimous employee support together with the scaling up of efforts by the locomotive division and Mr Jolly to resist the agreement explain the relatively short timeframes now under scrutiny. Despite the additional time pressure, Metro responded quickly to Mr Jolly’s request for an additional meeting. The meeting could not occur face to face in consequence of the current COVID-19 restrictions. However, a teleconference was convened instead and the discussion traversed the various matters raised by Mr Jolly.

[32] It is also relevant that Mr Jolly has been an advocate at the table for drivers for the duration of bargaining. That was the case while he was representing the Union and it remains the case now. The employees he represents were formerly represented by the Union and by Mr Jolly. The concerns he continues to hold about the proposed agreement are in substance the same as similar concerns held by the Union’s locomotive division, and which have been the subject of detailed discussion over many months.

[33] On the whole, I am satisfied that Metro has attended and participated in meetings at reasonable times with Mr Jolly during bargaining for the proposed agreement.

Disclosing relevant information in a timely manner – s.228(1)(b)

[34] Mr Jolly submits that his recent requests for information about employee home addresses and training facilities have been effectively denied by Metro with the result that it has failed to disclose relevant information in a timely manner.

[35] The address information is sought so that Mr Jolly can analyse the likely additional distance employees may be compelled to travel between depots if the proposed agreement is made and inform himself about the likely impact on them. The training facility information is sought so that Mr Jolly can better understand Metro’s capacity to deliver training in less than the prescribed periods in the agreement. In each case the information is relevant to bargaining between the parties.

[36] The good faith bargaining requirements do not extend to the provision of confidential or commercially sensitive information. Personal information such as an employee’s home address, is properly regarded as confidential information as between the employer and employee. Employers cannot simply disclose the personal information of employees to third parties at will. The obvious exception is where an employee consents to the disclosure, but I am not satisfied that any such consent was given in this case. If it was, there was no evidence of it. The result is that Metro was not obliged to share this information with Mr Jolly to comply with the good faith bargaining requirements. It did not breach the requirements by declining to provide employee home addresses to Mr Jolly.

[37] The employees Mr Jolly represents must be taken to have the ability to communicate with him about their views on the proposed agreement and its likely effect upon them. Those who have a particular concern about travel between depots are in the best position provide him with the information he now seeks. Alternatively, those employees could authorise Mr Jolly to obtain the information from Metro on their behalf, although why they would need to do so rather than provide it to him directly is unclear. If they choose to disclose their personal information to Mr Jolly in this context, no question of consent or potential breach of privacy legislation arises.

[38] The position is different in relation to the training information sought by Mr Jolly, which relates to the status of Metro’s ability to deliver driver training. No submission was made to the effect that this was either confidential information or commercially sensitive. It is plainly relevant to the claim by Metro to remove the minimum prescribed period of training.

[39] On 30 March 2020, Metro offered to arrange a meeting for Mr Jolly with its training provider ‘Metro Academy’. A similar offer of further information was made to the Union’s locomotive division on 21 February 2020, although what happened after that is not in evidence. Regrettably, there appears to have been a misunderstanding between the parties about when the Metro Academy meeting with Mr Jolly would take place. Mr Jolly says he thought it would occur before the agreement was put to a vote but agreed no undertaking of this kind was given by Metro. Metro saw the meeting as non-urgent in light of the more substantive disagreement between the parties about the agreement’s scope. That is, even if changes to training arrangements could be negotiated, it would not be sufficient to secure Mr Jolly’s support for the agreement. I accept that proposition.

[40] The option of a briefing about Metro’s training capacity has been on the table, including for Mr Jolly, since at least 21 February 2020. Metro’s claim in relation to training has been the subject of bargaining for much longer than that. There is no evidence of what, if any, active steps were taken either by Mr Jolly or the Union to secure the information, the absence of which is now relied upon as a basis for bargaining orders. In all the circumstances, I am not satisfied that Metro has failed to disclose relevant information to Mr Jolly about the proposed agreement in a timely manner.

Responding to proposals made by other bargaining representatives – s.228(1)(c)

[41] Mr Jolly says that Metro has not engaged in real and genuine bargaining with him.

[42] In his capacity as independent bargaining representative, Mr Jolly has made two sets of proposals – those set out in his letter of concerns of 26 March 2020 and those canvassed in the meeting of 30 March 2020.

[43] The letter of 26 March 2020 referred to his having “proposals to resolve each” of the problems set out in his letter. He proposed a separate agreement for drivers and a “pay freeze, in exchange for Metro agreeing to an appropriate resolution on the five matters” raised above (which I understand to be a reference to his six main areas of concern). However, he did not set out his proposals to resolve the various concerns or what such an appropriate resolution might look like.

[44] The meeting on 30 March 2020 canvassed those matters in more detail and made some specific proposals (discussed further below). Metro responded to each of the matters put by Mr Jolly quickly and in writing. I am not satisfied there has been any relevant contravention of section 228(1)(c).

Giving genuine consideration to proposals and reasons for responses – s. 228(1)(d)

[45] The most recent positions of the parties on Mr Jolly’s six areas of concern are summarised below.

Metro claim	Jolly claim or concern 26.3.20 and 30.3.20	Locomotive division response 31.3.20
Driver Training – remove minimum 41-50 week period and apply minimum 250 hours practical driving experience across network rather than per operating group	- Maintain minimum 41-50 week training period. - New “technology working group” clause - More than 250 practical driving hours for Central Operating Group	Does not support “significant reduction in meaningful training”; specifically reduction in minimum training from 41-50 period/min. 250 hrs training
Variety of running – maximum trips per line increase from 2 to 3	Does not support increase in trips per line. Seeks removal of words “where practicable” from Sch 1 clause 15.	Does not support increase in multiple runs and shuttles on same line
Forced transfers – ability to direct R roster employees to change home depot if insufficient volunteers	Concerned that no limits on number of transfers and no compensation for extra travel time. Proposes limiting to trainee drivers upon commencement and cap time for involuntary transfer from Flinders St to 6 months. Clarify wording to ensure consultation meaningful	Concerned about cost of additional travel being borne by drivers; min 2 year period for transfer; practical operation of maximum radius from home address
Part-time employment – new category of part time shift drivers with minimum 4 hr engagement	Changes will undermine existing part time drivers due to increase in number of shift drivers, number of shifts they can work and reduced guaranteed payment from 8 to 4 hours.	Concerned existing part time roster will cease to exist by attrition because of reduced guaranteed payment from 8 to 4 hours; no new transfers accepted to part-time
Group rotation – three new group rotation zones and ability to direct work in certain zones	Concerned about loss of certainty of home depot; short notice for change of depot and cost of change borne by drivers. Allowance or reimbursement of expenses should be paid for travel time within group rotation zone.	Does not support multiple sign on depots within set radius. Cost of change borne by drivers; lack of clarity in proposal; lack of lockers for multiple depots; don’t take into account place of residence
Commitment by the parties to implementation of company and government initiatives in accordance with the Agreement	Will compel drivers to support roster/work arrangement changes they have not seen, that may prejudice them, and without compensation	Empowers Metro to make significant changes to rosters, workplace arrangements and locations

[46] For the most part, the subject matter of each of the concerns and proposals canvassed by Mr Jolly in the letter of 26 March 2020 and meeting of 30 March 2020 has been the subject of bargaining with Mr Jolly and the Union’s locomotive division on numerous occasions over the past 13 months. Mr Jolly’s position contains slightly greater detail than previously set out by the locomotive division. This might be explained by the locomotive division’s reluctance (apparent from its feedback on the proposed agreement provided to Metro on 31 March 2020) to set out any substantive proposals to resolve what it says are likely detriments for employees.

[47] I am not satisfied that Metro has failed to give genuine consideration to Mr Jolly’s proposals, or to give reasons for its responses to those proposals. Over the course of bargaining, the parties have had ongoing and detailed discussions about the reasons for their claims and responses. That has continued with the appointment of Mr Jolly separate to the Union. I am satisfied that Metro has genuinely considered what he has put and has given its reasons for declining to make further changes to the proposed agreement at this stage of bargaining.

Refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining – s.228(1)(e)

[48] Mr Jolly says that by not agreeing to defer a vote on the proposed agreement while further bargaining meetings occur with him, Metro is engaging in capricious and unfair conduct which undermines the decision of approximately 650 drivers to appoint him as their representative in bargaining with Metro.

[49] However, this position seeks to gloss over Mr Jolly’s active participating in negotiations as bargaining representative of drivers for more than 13 months. He cannot fairly be said to have been denied the opportunity to participate in bargaining simply due to a change in the composition of the group of employees he represents. That is particularly so when the change is brought about by Mr Jolly’s decision to continue representing drivers, albeit independently of the Union. Some of the employees he now represents are not union members, but there is nothing before me to suggest that they take any different view of matters from the drivers he continues to represent and who he has represented throughout bargaining. Mr Jolly remains as he has always been - a representative acting on the behalf of employees who are each employed in the driver grades and who form a “community of interest” 4 in bargaining for the proposed agreement.

[50] As I have set out above, the matters about which Mr Jolly seeks to bargain are not new. They have been discussed at numerous meetings over the course of 2019 and 2020. Mr Jolly has regularly expressed his concerns about those matters including in the terms set out in his correspondence. To the extent that he relies on Metro’s change in position on 25 March 2020, those changes represent a narrowing in the scope of Metro claims rather than any new matter that has not been the subject of any serious discussion. In this respect the changes it has made are in the interests of employees, including, where relevant, drivers.

[51] There is no general rule that an enterprise agreement ought not to be put to a vote before all bargaining representatives have reached an agreement. 5 Such a position is obviously desirable, but unlikely to always be achievable. Nor is it necessary that the parties be at an impasse, although in this case plainly Mr Jolly’s proposal for a separate agreement and Metro’s rejection of that proposal might be described as an impasse of the relevant kind. It is relevant as to whether there has been a reasonable opportunity to discuss the latest proposal before it is put to a vote and also whether negotiations have reached such a stage that Metro was entitled to put its proposal to vote to see if progress could be made.6 I am satisfied that is the case here. The parties have been bargaining for some considerable time. The support of the Union’s rail division and Professionals Australia has been secured. Despite their best efforts, agreement has not been able to be reached between Metro, the locomotive division or Mr Jolly.

[52] The interests of employees other than drivers are also relevant in this context. For 12 months, bargaining proceeded on the basis that drivers would and should be covered by the agreement. They formed part of the collective, working together with other rail operations employees in bargaining for an agreement with Metro. Many of those employees are represented by organisations that support the agreement. They are entitled to have their say on the proposed agreement.

[53] The resolution passed by the Rail Divisions Delegates’ Meeting on 23 March 2020 is also relevant to Metro’s decision to put the agreement to a vote, having been provided to Metro on the same day it was made. It speaks of prevailing circumstances as being “a very uncertain place”, with the crisis faced as a result of COVID-19 and its impact on the Australian and global economy. It speaks of the prospect of businesses going broke, job losses and mass stand downs in the transport sector. It refers to public transport being in turmoil, with trains near empty, platforms deserted and the revenue of private operators plummeting. Against that background, and with regard to the history of bargaining, it proposes that members be given the right to consider and endorse what it characterises as a good offer made by Metro in uncertain times.

[54] I have discussed above the short period of time between advice from Mr Jolly of his change in bargaining representative status and Metro’s decision to put the proposed agreement to a vote. There is also no evidence about what active steps Mr Jolly was taking in the period between 19 March 2020, when he was first appointed bargaining representative in his own right and 26 March 2020, when he responded to Metro’s letter of 24 March 2020, despite having heard by then that the agreement was likely to be put to the vote.

[55] In the circumstances, the decision to proceed with the proposed vote was reasonable. Metro has not failed to meet the requirements of section 228(1)(e) as claimed by Mr Jolly.

Recognising and bargaining with other bargaining representatives – s.228(1)(f)

[56] On 24 March 2020, Metro wrote to Mr Jolly acknowledging his appointment as bargaining representative on 20 March 2020. It invited him to provide any further feedback on the proposed agreement before it was finalised and before an access period commenced in preparation for an employee vote. It asked for written feedback or comments by no later than 5.00pm on 26 March 2020.

[57] After further correspondence between the parties, there was a meeting with Mr Jolly on 30 March 2020 to discuss the agreement with him in his capacity as independent bargaining representative.

[58] I am not satisfied that Metro has failed to recognise Mr Jolly as bargaining representative or that it has failed to bargain with him for the proposed agreement. Both before he was appointed by employees in his own right and from that time, Metro recognised his status and bargained with him. I am not satisfied that there has been a relevant contravention of section 228(1)(f) in the circumstances.

Is it reasonable in all the circumstances to make the order?

[59] The power to make bargaining orders is confined to directing things to be done to ensure compliance by one or more of the bargaining representatives with the good faith bargaining requirements. 7 For the reasons set out above, I have not found cause for concern about Metro’s compliance with the good faith bargaining requirements. The conditions for making bargaining orders are not made out and it is not reasonable in all the circumstances to make bargaining orders.

Should a scope order be made?

[60] Scope orders are dealt with in section 238 of the Act. As a bargaining representative, Mr Jolly has standing to apply for bargaining orders in this matter if he is concerned that bargaining for the proposed agreement is not proceeding efficiently or fairly because he considers either that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.

[61] Mr Jolly does not seek to expand the scope of the proposed agreement. He seeks to narrow the scope by creating two separate agreements – one that covers drivers and one that covers the rest of the rail operations division. As such, he must hold a concern that the proposed agreement as it currently stands will cover employees that it is not appropriate to cover.

Mr Jolly’s concern

[62] Mr Jolly has applied for scope orders because he feels that the proposed agreement unfairly burdens drivers compared to other employees in the Rail Operations division. He says that because there is no community of interest between the drivers and these other employees, without a scope order, the proposed agreement is likely to be approved without regard to the drivers’ position.

[63] Mr Jolly also says that if the agreement is not approved and bargaining resumes, there will be an intractable dispute between he and Metro about the proper scope of a future agreement. He says this will frustrate the bargaining process so that it will be inefficient. This concern can readily be put aside, because it assumes that parties will take a particular approach in bargaining in a context that has not yet occurred. In short, to the extent that the application relies on this concern, it is premature.

[64] I am satisfied that Mr Jolly holds a concern that bargaining is proceeding unfairly. The reason he holds that concern is that drivers are in the minority and may be subject to the will of the majority if the agreement is put to a vote in its current terms. He is also concerned that Metro has rejected his proposal for a ‘driver-only’ agreement. In that respect, his concern arises because the agreement will cover drivers when it should not.

[65] I am satisfied that this condition for bringing the application is made out.

The giving of notice and an opportunity to respond

[66] Before applying for a scope order, a bargaining representative must have taken all reasonable steps to give a written notice setting out their concerns about bargaining not proceeding fairly or efficiently to each of the bargaining representatives for the agreement. There must then be a reasonable time for them to respond and after that time, the applicant must consider that relevant bargaining representatives have not responded appropriately.

[67] On 26 March 2020, Mr Jolly wrote to Metro setting out a number of concerns about the status of bargaining. He stated as follows:

“First, for the purposes of s.238 of the Act, I wish to raise my concern that bargaining for the Proposed Agreement is not proceeding efficiently, and certainly not fairly, by reason of the fact that the Proposed Agreement covers both drivers and other operational employees. In my view, clearly the better course is to have a separate agreement for drivers.

For the purposes of s.238(3)(b) of the Act, I ask you to respond to this proposal within a reasonable time, being 14 days.”

[68] The letter of concerns was copied to the Union’s locomotive division at 5.09pm and to the both divisions of the Union at 6.07pm on 26 March 2019. It was not sent to Professionals Australia. It did not invite the Union to respond to his concerns but rather was copied to them “for information”.

[69] Metro provided its response to Mr Jolly’s concerns by letter on 27 March 2020, advising that it was not prepared to adopt the course proposed by Mr Jolly. It offered to meet with him the following Monday (by teleconference in light of recent developments in connection with the COVID-19 pandemic) and before putting its proposed agreement to a vote of employees.

[70] A meeting between the parties took place as proposed and on 31 March 2020, Metro wrote again to Mr Jolly. It confirmed the decision reached by Metro on 27 March 2020 and considered again on 30 March 2020, not to agree to an amended scope for the proposed agreement. It set out the need for certainty for employees in the current environment and its desire to finalise the proposed agreement as an “absolute imperative”, noting recent in principle agreement with other union bargaining representatives. At 5.53pm and at 5.55pm on 31 March 2020, Metro advised the locomotive division and Mr Jolly respectively that it had decided to put the agreement to vote.

[71] At 6.11pm on 31 March 2020, two things happened. Metro emailed employees asking them to vote on the proposed agreement by commencing the ‘access period’. Mr Jolly emailed Metro reiterating his concerns and asking for Metro to reconsider its position. He again sought additional time for him to meet the ‘Metro Academy’ to discuss training issues, to obtain and analyse employee location information and to gain feedback from the drivers he represents. He sought an undertaking that Metro give him at least 48 hours’ notice before putting the proposed agreement to vote.

[72] It is clear from the sequence of events that Mr Jolly articulated his concerns about the scope of the agreement and its effect on bargaining to Metro, and that Metro had adequate time to respond to those concerns. I am satisfied that Mr Jolly has since formed the view that Metro’s response to his concerns – that being a rejection of same - was inappropriate to resolve them. His application speaks to that very fact.

[73] The same cannot be said about the articulation of his concerns and provision of an opportunity to respond either to the Union or to Professionals Australia. In this respect, I consider each to be “relevant bargaining representatives” for the purposes of section 238(3).

[74] Mr Jolly submits that the Union had both his notice of concerns and a relevant opportunity to respond to his concerns as required. He further submits that it was not necessary to provide same to Professionals Australia, because his concerns are not relevant to it. He submits that if drivers are ‘carved out’ from the proposed agreement, it can otherwise proceed to a vote of employees quickly and without prejudice to the other parties. This proposition must be rejected.

[75] Con Deftereos, Lead Negotiator for Metro, gave evidence about the reasons for Metro’s decision not to agree to a separate agreement for drivers. In particular, he emphasised the connection between efficiencies derived from changes to driver-specific conditions and Metro’s ability to meet the offer it has asked employees to vote upon. It is not simply a case of removing references to drivers in the proposed agreement and otherwise continuing on unaffected. If the proposed efficiencies relating to drivers are lost from the proposed agreement, Metro’s position is likely to alter substantially. The prospect of bargaining suffering a serious setback as between Metro, the Union’s rail division and Professionals Australia, cannot be so readily dismissed.

[76] As relevant bargaining representatives in this context, it was a reasonable step to write both to the Union and Professionals Australia to set out the same concerns with the agreement identified to Metro and to invite them to respond to those concerns within a reasonable timeframe. He did not do so. His failure in this regard is not cured by the fact that the letter of 26 March 2020 was copied to the Union “for information”. Nor was it cured by copying in Professionals Australia to the application for scope orders at the time that it was made, because notice and an opportunity to respond must have been provided before an application is made. Mr Jolly must also be found to have formed the view that neither the Union nor Professionals Australia had responded appropriately to his concerns before he made the application. It is difficult to see how he could have held that view in circumstances where at least in relation to Professionals Australia, no such notice or opportunity was given. I am not satisfied that he did.

[77] It follows that the conditions for seeking a scope order are made out by Mr Jolly in relation to Metro but not in relation to the other relevant bargaining representatives. In this respect I do not accept that the requirement to give notice and an opportunity to respond before scope orders are sought are conditions that can be waived by the exercise of discretion either under section 586 or otherwise. Each of the conditions in section 238(3) are statutory pre-conditions to the making of a scope order application. They are not merely procedural. They underlie the substantive rights of relevant bargaining representatives to be kept apprised of matters of significance that may affect their position in bargaining, including in relevant cases, whether they have capacity to bargain at all.

[78] It follows that there is no valid application before me and it must be dismissed. However, I also record my views on whether a scope order should be made for the benefit of the parties.

Conditions for the making of scope orders

[79] Before a scope order is made, I must be satisfied of each of the following:

1. That Mr Jolly has met, or is meeting, the good faith bargaining requirements; and

2. That making the order will promote the fair and efficient conduct of bargaining; and

3. That the group of employees sought to be covered under the agreement by Mr Jolly was fairly chosen (taking into account whether the group is geographically, operationally or organisationally distinct); and

4. That it is reasonable in all the circumstances to make the order.

Has Mr Jolly met, or is meeting, the good faith bargaining requirements?

[80] There is no dispute that Mr Jolly has met, and is meeting, the good faith bargaining requirements in his role as bargaining representative for the agreement. My own observation of his involvement in bargaining is consistent with this position. I am satisfied that this condition is met.

Will making the order promote the fair and efficient conduct of bargaining?

[81] Mr Jolly says a scope order is necessary to avoid what he considers likely to be a successful vote on the agreement by a majority of employees. However, in my view, scope orders of the type sought by Mr Jolly will not promote the fair and efficient conduct of bargaining, or even the fair conduct of bargaining or bargaining that is more efficient.

[82] I accept Mr Jolly’s submission that given the support of the Union’s rail division and Professionals Australia for the proposed agreement, there is a reasonable chance that it will be approved by employees if the vote proceeds tonight. That is not, however, a foregone conclusion.

[83] If no scope order is made, employees will have the opportunity to vote either for or against the proposed agreement. While there is support for the agreement, there are also two ‘no campaigns’ being run by Mr Jolly and the Union’s locomotive division. If the vote is unsuccessful, bargaining will resume and Mr Jolly will have what he seeks. If the vote is successful, bargaining will come to an end by decision of the majority after what can only be described as a comprehensive and fair bargaining process.

[84] If scope orders are made, the vote will be unable to proceed, including because it will cause a fundamental adjustment in the terms of any proposed agreement. That will entail further steps by all parties to understand what the next stage of bargaining involves, and when and how bargaining should resume. This is likely to promote delay and inefficiency, rather than efficiency in the conduct of the bargain.

[85] I accept that Mr Jolly has concerns about the fairness of the outcome for drivers if the agreement is approved. The Union’s locomotive division shares that view. However, fairness in this context is the fair conduct of bargaining. I am satisfied from the history of bargaining that it has been conducted fairly at all times. I am not satisfied that altering the scope of the agreement at this late stage, which is likely to promote an unwinding of commitments given and agreements reached, will promote the fair conduct of bargaining in all the circumstances.

[86] It follows that I am not satisfied that making the order will promote the fair and efficient conduct of bargaining.

Was the group of employees sought by Mr Jolly fairly chosen?

[87] The requirement to be satisfied that a group of employees was fairly chosen is a protective provision, intended to protect the collective bargaining process itself. Here, the relevant choice is that made by Mr Jolly to propose two separate agreements with Metro – one covering employees in Metro’s Rail Operations except for drivers and covering drivers only.

Are the two groups geographically, operationally or organisationally distinct?

[88] Drivers, together with all other rail operations employees, have been covered by a single enterprise agreement for approximately 20 years, throughout a succession of employers operating the rail network for the Victorian government and numerous enterprise agreements.

[89] According to Victor Moore, Senior Vice President of the Union’s Victorian Branch, the operation of the rail network requires drivers and rail division employees. Rail division employees maintain and operate the train service in all respects except driving, including signalling, facilitating train movements, rostering, timetabling and fault reporting. Drivers are in constant contact with signallers and train controllers to enable them to move trains across the network. They also regularly interact with station staff while trains are at the station, including to liaise about train faults and passenger announcements. Consistent with this evidence, Metro submits that there is a strong nexus between drivers and other rail operations positions in that each group relies on each other to perform their task safely and competently.

[90] Mr Jolly submits that drivers have different industrial interests to other employees of Metro, because they are represented by a separate division of the Union and they have a greater concern about rail safety due to the potential to be directly affected by accidents. I do not accept this latter proposition. It is not supported by evidence. It is an assertion at best. All employees operate under the same duties to ensure their safety and that of others at work. Drivers can be faced with workplace hazards that are unique to their driving role, but the same can be said for employees undertaking different work, and in different contexts.

[91] Mr Jolly says drivers have historically enjoyed significantly different terms and conditions to other employees such that their work is already effectively separately regulated. The proposition is supported on the one hand by the existence of driver specific provisions in the current Agreement and not supported, on the other hand, by the fact that many common terms and conditions in the current Agreement apply equally to drivers as to other employees and that there is one comprehensive enterprise agreement covering all rail operations employees. There are matters regulated by the agreement that affect all employees. There are also matters of particular concern to drivers that are either not relevant or of interest to other employees of Metro. The same can be said of clerical employees, or authorised officers, or engineers for example. Where the proposed agreement deals directly with conditions for a subset of the workforce, there will naturally be a divergence of interests in that respect.

[92] Metro organises its business into several internal divisions as described by Mr Jolly. There is the Rail Operations division (divided into ‘Train Services’ and ‘Metrol and Stations’ as well as Administration, ICT Operations and Processional Engineers. There is also the Train Fleet division (responsible for rolling stock) and the Infrastructure Division, the Network Asset Management Division and the Project Division (responsible for maintenance of track and infrastructure). It does not agree that the position of drivers is relevantly distinct from that of other rail operations employees.

[93] I am not satisfied that drivers are an organisationally distinct group. They are instead an integral part of the organisational structure established by Metro and comprising both the Rail Operations division and also the Train Services division. They work in an integrated way with other employees to carry passengers from one place to another. They are one part of the whole. The network cannot operate without them and they cannot operate alone.

[94] Nor am I satisfied that drivers are geographically distinct from other employees of Metro. The fact that drivers drive trains from point to point, rather than sitting in an office is not sufficient to establish such a distinction. Many of the employees who will be covered by the proposed agreement work on and around train stations rather than in offices. They work between stations, patrolling trains to support passenger safety and compliance. They move between stations to perform different functions as required.

[95] Clearly, however, drivers perform many different tasks and functions to those of other employees within the rail division. They are treated as a separate category of employee in the context of many workplace arrangements tailored to their needs. They are in a group that can be properly regarded as operationally distinct. This tends in favour of a finding that the group was fairly chosen.

[96] The more difficult question is whether the group of rail operations employees excluding drivers is characterised by a relevant distinction. It must follow that if drivers are an operationally distinct group within the Rail Operations Division, so too is the remainder of the group distinct from drivers in an operational sense.

Were the groups fairly chosen?

[97] Mr Jolly’s reason for the choice of group in each case is based on what he describes as the drivers’ community of interest. I do not have before me the views of other employees covered by the agreement in that regard. However, drivers have traditionally bargained together on matters that affect them and they have done in this case in parallel with the Union’s rail division as well as together where their interests meet. I am satisfied that in each case the group of employees was fairly chosen.

Is it reasonable in all the circumstances to make the order?

[98] It is important to understand the context in which Mr Jolly came to be appointed to his current role and to occupy the position of applicant in this case.

[99] While he has been an active participant in bargaining for the proposed agreement, Mr Jolly plainly does not support its terms as currently drafted. He feels he can do a better deal with Metro than has been achieved in bargaining to date.

[100] In a notice to employees posted at Flinders St Station on or about 19 March 2020, Mr Jolly called for nominations to the role of independent bargaining representative because he would be “free from the damage caused by the Victorian Branch by breaching the Federal Court order.” What he meant by those words was that he would be free of the current restriction imposed by section 413(5) of the Act on the Union organising industrial action in support of the proposed agreement. In other words, he wanted the ability to organise protected industrial action in support of the drivers’ position if needs be. It follows that there is a genuine prospect of increased disputation if a scope order is made because of the steps taken by Mr Jolly to disassociate himself from the Union, although perhaps not immediately in the current climate.

[101] This has been a lengthy bargaining period and there have been many meetings between the parties, tailored to meet the particular needs of each representative group. Significant progress has been made since bargaining began. In that regard, the Union’s rail division describes the outcome as “a very good outcome in very uncertain times” achieved after countless meetings and extensive negotiations. As I have noted above, Professionals Australia also supports the agreement. Bargaining has reached the stage where employees who will be covered by the agreement should be given a say on whether it should be approved.

[102] For these reasons, as well as those set out above, I am not persuaded that it is reasonable in all the circumstances to make the scope orders sought.

Disposition

[103] The application for bargaining orders is dismissed.

[104] The application for scope orders is dismissed.

COMMISSIONER

Appearances:

J Fetter of Counsel for the Applicant.
A Pollock of Counsel for Metro Trains Melbourne Pty Ltd.
E White of Counsel for the Australian Rail, Tram and Bus Industry Union.

Hearing details:

2020.
Melbourne (video hearing):
April 7.

Printed by authority of the Commonwealth Government Printer

<PR718182>

 1   Exhibit 4 .

 2   Exhibit 1.

 3   Exhibit 4.

 4   Exhibit 1.

 5   Construction, Forestry, Mining and Energy Union-Mining and Energy Division v Tahmoor Coal Pty Ltd[2010] FWAFB 3510 at [24].

 6   [2010] FWAFB 3510 at [28].

 7   Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764 at [62]