Australian Federal Police Association v Australian Federal Police

[2017] FWC 2380

[2017] FWC 2380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.238—Scope order

Australian Federal Police Association
v
Australian Federal Police
(B2017/151)

DEPUTY PRESIDENT KOVACIC CANBERRA, 1 MAY 2017

Application for a scope order regarding Australian Federal Police employees currently paid a High Volume Additional Composite Allowance under the Australian Federal Police Enterprise Agreement 2012-2016 – application dismissed

[1] On 17 February 2017 the Australian Federal Police Association (AFPA – the Applicant) lodged an application under s.238 of the Fair Work Act 2009 (the Act) for a scope order. The scope order sought by the AFPA would cover employees of the Australian Federal Police (AFP – the Respondent) working a High Volume Operations Working (HVOW) Pattern. The HVOW Pattern is currently worked by AFP employees working in the AFP’s Technical and Surveillance Operations (which includes the Police Technical Team) and Close Personal Protection (which includes Witness Protection) areas and, in accordance with the Australian Federal Police Enterprise Agreement 2012-2016 1 (the 2012 Agreement), are paid a High Volume Additional Composite Allowance (HVAC Allowance) of 35 per cent of their base salary2.

[2] The AFPA’s application was listed for mention and directions by the Fair Work Commission (the Commission) on 9 March 2017 and was heard on 20 and 21 April 2017. At the hearing Mr Michael Chilcott appeared for the AFPA and Mr Jonathan Forbes of Counsel appeared with permission for the AFP.

[3] Evidence was given by:

• Mr Graeme Cooper, Vice President of the AFPA and the leader of the AFPA’s negotiating team for the proposed agreement;



• Mr B on behalf of the AFPA. Mr B is not part of the AFPA’s negotiating team but is an employee bargaining representative who works in the AFP’s Technical Support Operations area and represents himself and around 130 employees in that area



• on 20 April 2017 the Commission issued an Order 3 which provided, inter alia, that “all evidence, material, transcript of proceedings relating to information provided by Mr B are to be confidential.” The confidentiality Order was made at the request of both parties on the basis that Mr B’s evidence potentially disclosed sensitive AFP operational matters;



• Commander Matthew Rippon, the AFP’s lead negotiator for the proposed agreement to replace the 2012 Agreement; and



• Deputy Commissioner Michael Phelan who has since November 2016 been assisting Commander Rippon in negotiating the proposed agreement by providing strategic direction from the AFP’s Executive Leadership Group.

[4] For the reasons set out below, I decline to make the scope order sought by the AFPA and dismiss the application.

Background

[5] On 30 November 2015 the AFP issued a Notice of Employee Representational Rights (NERR) and commenced bargaining for a proposed agreement to replace the 2012 Agreement. The proposed agreement would cover all AFP officers except Senior Executive and Executive Level employees, those officers deployed offshore and “special members” pursuant to s.40E of the Australian Federal Police Act 1979 (the AFP Act). The AFP ceased and recommenced bargaining on 22 September 2016 and issued a new NERR to employees who would be covered by the proposed agreement.

[6] The AFPA is a bargaining representative for the proposed agreement as is the Community and Public Sector Union (CPSU). In addition, there are in the order of 12 to 14 employee bargaining representatives either representing themselves or a group of employees.

[7] An issue in bargaining has been Composite Allowances. Clause 13 of the 2012 Agreement deals with the issue of Composite Allowances and provides as follows:

“13 Composite Allowances

(1) A composite allowance is an annualised allowance paid fortnightly.

(2) The composite allowances are:

(a) Core Composite, which is payable in accordance with sub-section (5), in recognition of working hours, patterns of attendance and shift patterns associated with the Operations or Rostered Operations working patterns;
(b) High Volume Operations composite, in accordance with sub-section (6);
(c) Critical Deployment Composite in accordance with section 32 of this Agreement.

(3) Where an Employee is in receipt of any composite allowance, the Employee is required to work and be available to work in accordance with the working hours and patterns for which the composite allowance applies.

(4) A Core Composite allowance is not to be used for salary adjustments, experience premiums or additional hours of attendance.

Operations or Rostered Operations Core Composite

(5) Employees who are required to work in accordance with the Operations working pattern or Rostered Operations working pattern will receive a Core Composite of 22% of their Base Salary which will count as salary for superannuation.

Operations High Volume Core Composite and Additional Composite

(6) Employees working Operations working patterns in high volume areas, as identified by the Commissioner, under-section 19(8) of this Agreement, will receive a Core Composite of 22% which will count as salary for superannuation and an additional composite of 35% of their Base Salary. This additional composite is in recognition of the required additional hours and will not count as salary for superannuation.” 4

[8] On 30 November 2016 the AFP advised bargaining representatives for the proposed agreement that it wished to retain the Core Composite Allowance and remove the HVAC Allowance provided for in the 2012 Agreement. The AFPA and a number of other bargaining representatives, including Mr B, oppose the removal of the HVAC Allowance. Further negotiations, both in formal bargaining meetings and separate discussions have failed to reach agreement on the issue of the HVAC Allowance.

[9] On 14 February 2017 the AFPA wrote to the AFP setting out its concerns about the proposal. The letter included the following:

“... It is our strong view that this proposal has significant implications in respect of the bargaining process and represents a failure by the AFP to engage in bargaining fairly and efficiently.

It is our position that bargaining has failed to proceed fairly and efficiently for the following reasons:

1. The AFP has proposed new inclusions ten months into the bargaining process, during late 2016, which will result in a major change to the conditions of this group of employees. That the AFP had not formed a position at the commencement of bargaining in respect of the High-Volume Operations Pattern, a significant component of our affected members’ income, is concerning. To introduce the change at such a late stage significantly disadvantages our ability to appropriately consider the proposal and to effectively consult our membership.
2. In conjunction to the above, the AFP has failed to produce a substantive log of claims throughout the bargaining process. By now proposing such a fundamental change to the affected members’ working arrangements deeply compromises the efficiency of finding a resolution on the issue of the High-Volume Operations Composite.
3. The AFPA has put forward proposals and contributions to many of the issues raised in bargaining and in particular in respect of the High-Volume Operations Pattern. These proposals have been effectively ignored by the AFP. This has undoubtedly impeded the efficiency of bargaining.
4. Further, we are aware that independent negotiators have also put forward detailed submissions and email exchanges relating to the High-Volume Operations Patters to the AFP, and we understand that the AFP has rejected their claims.
5. The bargaining process has been ongoing for a period of close to twelve months. In this time, the AFPA has conferred on all issues with all willing bargaining agents; entered negotiations with a genuine commitment to respond to proposals in a timely manner; and given adequate time for the AFP to share objective analysis of the results that these claims would have.

The introduction of the proposal to remove the High-Operations Composite from the current Enterprise Agreement at this late stage has caused us to consider whether the affected employees rightly fall within the scope of the Enterprise Agreement. The affected employees work in the areas of Close Personal Protection (CPP), and Technical and Surveillance Operations (TSO). These employees stand to lose a 35% allowance and will no longer have access to the Police Technical Team Advancement Strategy, which has been in place for a number of past agreements.

The AFPA considers that the affected employees work in areas which are operationally distinct and have specific working arrangements which provide a strong justification for the retention of the High-Operations Composite and/or a separate enterprise agreement specific to these members. In this regard we note that these employees are required to be readily available on a flexible, fluid and responsive basis. These employees often work extensive hours in an arduous front-line environment and are often required to return to duty at very short notice. We also note that in contrast to most AFP staff, members of TSO and CPP regularly travel nationally and internationally for work purposes. The payment of the High-Volume Operations Composite is a reflection of the extreme demands of these specialised roles. As we have previously stated in the course of bargaining, we have serious concerns that the removal of this composite will not only impact these employees as individuals, but will also reduce the AFP’s operational frontline capacity.

Given the impact of the proposed change on the bargaining process and on our affected members’, we are formally raising our concerns with you for a response. Due to the fact that these matters have been raised a number of times previously, noting the late stage of bargaining, and noting that you received prior notice of this issue in my letter to you dated 31 January 2017, if we do not receive a response by close of business on Thursday 16 February 2017, we will take steps to escalate this matter.” 5 (Emphasis as per original)

[10] The AFPA’s letter was not copied to other bargaining representatives nor did the AFPA write separately to those bargaining representatives advising them of its concerns.

[11] The AFP responded to the AFPA on 16 February 2017, with the AFPA lodging its scope order application on 17 February 2017.

The Applicant’s Case

[12] The AFPA submitted that:

• it had at all times met and continued to meet the good faith bargaining requirements;



• the AFP had not approached the bargaining process in a fair or efficient manner for several reasons, including that it had never presented a log of claims, it had not appeared to seriously consider matters advanced by bargaining representatives and it had not presented clear evidence in support of its proposal to abolish the HVAC Allowance;



• the making of the scope order would cause the AFP to focus on the affected groups and their specific issues, particularly in respect of the HVAC Allowance; and



• the employees in receipt of the HVAC Allowance are operationally distinct.

[13] The AFPA also rejected the AFP’s contention that having a separate agreement covering employees who receive the HVAC Allowance would impact on the mobility of AFP employees and undermine a unified workforce.

[14] At the hearing, the AFPA reiterated that making the scope order it sought would focus the minds of negotiators on the HVAC Allowance issue, and drawing on the decision in BRB Modular Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 6 (BRB Modular),would result in fair and efficient bargaining. While the AFPA acknowledged that the employees covered by its application were organisationally diverse and geographically spread, it maintained that they were operationally distinct on the basis that they were the only AFP employees required to work up 50 hours per week. The AFPA also disputed aspects of the AFP’s submissions, contending that there was no overriding matter which prevented the Commission from making the scope order sought. In response to questions from the Commission, the AFPA confirmed that it had not provided formal notification of its concerns to other bargaining representatives, adding that of the employee bargaining representatives, Mr McDonald and Mr B both represented employees receiving the HVAC Allowance. Beyond that, the AFPA acknowledged with regard to the issue of relevance, that potentially all bargaining representatives were relevant for the purposes of s.238(3)(a) of the Act given the broader potential impact of its scope order application on the negotiations for the proposed agreement.

[15] Mr Cooper in his witness statement 7 set out the history of composite allowances dating back to the AFP’s 1999-2002 certified agreement, deposing that the high volume operations cohort had always been recognised as distinct from mainstream AFP employees. Other key aspects of Mr Cooper’s witness statement were that:

• the AFPA had met the good faith bargaining requirements throughout the bargaining process;



• the AFP had not conducted bargaining fairly or efficiently as there was no prior indication that the HVAC Allowance would be removed or changed;



• after base salary, composite allowances were the most significant part of the 2012 Agreement;



• the possible removal of composite allowances and their replacement with a system of penalties and allowances hung over the negotiations until mid-November 2016, adding that the delay in settling the status of composite allowances meant that no other provisions could be agreed or settled;



• on 30 November 2016 the AFP tabled a proposed agreement which removed the HVAC Allowance;



• the HVOW Pattern was the topic of discussion at bargaining meetings in July and August 2016 though at no time was removal of the Pattern proposed;



• his perception was that the AFP’s approach to bargaining was that following the meeting of 30 November 2016 the AFP considered the composite allowance issue to have been decided and that it was time to conclude the negotiations;



• the AFP had disadvantaged AFPA members by not planning for the bargaining process and by developing its position in a fluid way, adding that many of the changes proposed by the AFP involved significant structural modifications to the 2012 Agreement;



• the arguments advanced by the AFP to justify the removal of the HVAC Allowance had changed over time;



• the AFP could stop employees in receipt of the HVAC Allowance working less than 50 hours per week but had chosen not to do so over the life of the 2012 Agreement; and



• the employees who would be covered by the scope order were operationally distinct from other AFP employees, citing among other things that the employees regularly travel nationally and internationally to complete their work and training and that they were a very mobile and flexible workforce that was often required to work extended shift patterns.

[16] In his oral evidence Mr Cooper attested, inter alia, that:

• he had not worked in any of the areas in which employees are currently paid the HVAC Allowance;



• employees working in the Technical and Surveillance Operations and Close Personal Protection areas report to different Deputy Commissioners;



• with the exception of the HVOW Pattern/HVAC Allowance, the terms and conditions of those employees covered by the AFPA’s application were common with other AFP employees;



• all employees who work the Operational Working Pattern, which includes employees in receipt of the HVAC Allowance, work in challenging and demanding environments and are expected to be mobile and flexible;



• the quanta of composite allowances and underpinning structures had varied from agreement to agreement since the late 1990’s, adding that at one stage employees working in the Close Personal Protection area were paid a 90 per cent composite allowance while employees across surveillance were paid a 60 per cent composite allowance;



• all parties had been bargaining for a single agreement since the commencement of bargaining, with the coverage of the proposed agreement the same as that of the 2012 Agreement and its predecessor agreement;



• the AFPA did not advocate for a separate agreement for employees receiving the HVAC Allowance at the 30 November 2016 bargaining meeting;



• until the AFPA’s application it and other all other bargaining representatives had been advocating for a single agreement;



• the AFPA’s support for a single agreement was premised on the interests of the group of employees covered by its application having their interests attended to under a single agreement;



• overtime, penalties and composite allowances had been “live issues” in bargaining since March 2016;



• proposals to remove the HVAC Allowance had been raised by other bargaining representatives before July, with proposals relating to the Allowance on the table since the end of February 2016;



• he believed the decision regarding the HVAC Allowance would be made by the AFP’s Executive rather than at the bargaining table;



• a significant proportion of the bargaining meetings on 7 and 8 December 2016 were taken up debating the HVAC Allowance issue, adding that the AFPA did not indicate at that time that employees receiving the Allowance needed to be carved out from the proposed agreement as it had not turned its mind to the proposition at the time;



• the AFPA had not put an alternative proposal to the AFP regarding the HVAC Allowance;



• the AFPA did not write to other bargaining representatives beyond the AFP setting out its concerns that bargaining for the proposed agreement was not proceeding efficiently or fairly; and



• while he had discussed the AFPA’s proposal for a separate agreement covering employees in receipt of the HVAC Allowance with bargaining representatives from the Technical and Surveillance Operations area and two AFPA delegates from the Close Personal Protection Team, he did not canvass the views of the employees who would be covered by such a separate agreement regarding the proposal prior to the AFPA making its application.

[17] In response to a question from Mr Forbes asking how negotiations would be different regarding the HVAC Allowance were the Commission to make the scope order sought, Mr Cooper replied “Good question.”

[18] Mr B deposed in his witness statement 8 that:

• removal of the HVAC Allowance would make it impossible to sustain the level of operations of those employees he represents;



• he lodged a log of claims with the AFP but at no stage did the discussions regarding that log of claims involve bargaining or negotiation;



• the HVAC Allowance issue had been raised by the AFP on the basis that the Commissioner had decided to remove the Allowance and that was the end of the matter; and



• the work of the employees he represented continued to become more geographically, operationally and organisationally distinct.

[19] Key aspects of Mr B’s oral evidence were that:

• there were some discussions regarding the HVAC Allowance remaining in the proposed agreement prior to November 2016;



• he had served a log of claims on the AFP on 9 December 2016, with that log of claims seeking among other things retention of the HVAC Allowance;



• he considered that good faith bargaining involved proposals being justified, modelled, quantified and discussed in detail, adding that he did not consider that this had occurred in respect of the proposal to remove the HVAC Allowance;



• he did not believe the AFP had responded to his claims, adding that the AFP’s response suggested that the HVAC Allowance issue was not negotiable;



• he supported the AFPA’s application; and



• a scope order would make the negotiations on the HVAC Allowance more fair and equitable for those employees which he represented, particularly as a lot of AFP employees were not affected by the proposal to remove the HVAC Allowance.

The Respondent’s Case

[20] The AFP did not contend that the AFPA had not been bargaining in good faith.

[21] Key aspects of the AFP’s submissions were that:

• the nature of the AFP’s role and operations meant that all AFP employees in operational areas worked in unique environments;



• all AFP operational personnel were required to be flexible and responsive, available at short notice and able to perform work on an urgent basis and for long hours, adding that these factors did not differentiate those employees covered by the AFPA’s application from other areas within the AFP;



• the employees covered by the AFPA’s application had always been covered by the same award and agreements that had covered all AFP employees (except Senior Executive and Executive Level employees, those officers deployed offshore and “special members” pursuant to s.40E of the AFP Act);



• other than the HVAC Allowance and the underpinning requirement to work up to 50 hours per week, all terms and conditions that apply to the employees covered by the AFPA’s application were the same as those that applied to other AFP employees;



• with regard to the Full Bench decision in The Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd 9 there were very good reasons for not adopting the preference expressed by a small group of employees in this case;



• the AFPA’s contention that bargaining was unfair and/or inefficient because it was not appropriate for employees covered by its application to lose the HVAC Allowance should be rejected;



• the flexibilities required of operational employees (including changes to rosters at short notice and the need to work longer shifts) were compensated through the Core Composite Allowance which was paid to all employees working the Operational Working Pattern;



• an assessment of the current ordinary hours of work of the employees in receipt of the HVAC Allowance revealed that those employees were on average performing 42 ordinary hours of work per week rather than the 50 hours per week for which the Allowance was intended to compensate;



• the decision not to include the HVAC Allowance in the proposed agreement was not wholly driven by cost saving imperatives, but rather a decision to depart from a pre-paid to a post-paid arrangement for additional hours that provided fair compensation for hours worked;



• it had given due consideration to the AFPA’s claims and submissions with respect to the proposed removal of the HVAC Allowance and had decided to maintain its position;



• there was nothing remarkable about an employer proposing changes to past arrangements in the course of bargaining;



• the fact that the parties could not agree about an issue was not evidence of inefficiency or unfairness in bargaining;



• bargaining would be less efficient were the Commission to make the scope order sought as there would be a very significant degree of duplication of process and negotiation on the basis that there was only one matter at issue in the proposed agreement that differed between those employees who receive the HVAC Allowance and those who do not;



• consistent with Commissioner Roe’s decision in National Union of Workers v Linfox Australia Pty Ltd 10(Linfox), the AFPA’s contention that the employees covered by its application would be outnumbered in any vote regarding the proposed agreement should be afforded minimal weight;



• the group of employees covered by the AFPA’s application was not fairly chosen as the group was not homogenous nor was it geographically, operationally or organisationally distinct;



• it would not be reasonable to require the AFP to bargain for separate agreements with each and every sub-group within the AFP simply because of their small size and possibly specialist role;



• a separate agreement would impact on the mobility of AFP employees and undermine a unified workforce; and



• there had been no bargaining over scope to date.

[22] At the hearing, the AFP submitted among other things that there was no evidence before the Commission which suggested that the making of a scope order would make bargaining fairer or more efficient, describing such an outcome as a “hope”. Further, drawing on the evidence of Commander Rippon and Deputy Commissioner Phelan and their practical experience working in the areas covered by the AFPA’s application, the AFP contended that the employees covered by the application did not form a natural group and that receipt of the HVAC Allowance did not mark the employees out as geographically, operationally or organisationally distinct. The AFP also submitted that in considering whether it was reasonable to make the scope order sought the Commission should have regard to Commander Rippon’s evidence that bargaining was at a mature stage. Finally, the AFP contended that a single bargaining issue was not sufficient basis for the Commission to make a scope order, adding that if the issue was of such concern to bargaining representatives there were other options available to them under the Act which had not been pursued to date.

[23] In his witness statement 11 Commander Rippon provided an overview of the history of bargaining for the proposed agreement. Beyond that, Commander Rippon deposed among other things that:

• other than the HVAC Allowance and underpinning arrangements, there were no other terms and conditions of employment in either the 2012 Agreement or the proposed agreement which were unique to the employees covered by the AFPA’s application;



• there were some 2,000 AFP employees working the Operational Working Pattern, with those employees required to be available to work the hours and patterns of attendance as directed by their supervisor on a 24 hour/7 day a week basis;



• the Core Composite Allowance compensated for the working hours, patterns of attendance, flexibility and responsiveness required of employees and the need for employees to perform work on an urgent basis, for long hours and shift patterns associated with the Operational Working Pattern;



• employees in all operational areas worked in challenging and dangerous environments and were required to deal with the evolving nature of terrorism, drugs, cyber security and other major crime;



• anti-corruption measures clearly pointed to the value in the mobility and rotation of members across disciplines to mitigate the risks of corruption that had been demonstrated to permeate when cohorts of individuals spend extended periods of time together without rotation;



• the HVAC Allowance compensated employees for working up to 10 additional hours only, adding that the Allowance was not intended to and did not compensate employees for any other facet of their hours or duties;



• in bargaining the AFP had proposed that the HVAC Allowance be replaced by a more appropriate and equitable form of remuneration which compensated employees for the hours actually worked;



• in bargaining for the 2012 Agreement employees working in Undercover Operations were removed from receiving the HVAC Allowance;



• composite allowances were one area that had come under review by the AFP in order to find efficiencies to fund the general salary increases provided for in the proposed agreement;



• figures for the period March to August 2016 showed that average ordinary hours undertaken by employees in receipt of the HVAC Allowance were 42.43 hours per week;



• the proposed discontinuance of the HVAC Allowance also served to ensure consistency of treatment of employees working the Operational Working Pattern and was not intended to remove fair compensation for additional hours worked;



• payment of overtime, penalties and composite allowances had been a live issue throughout bargaining with the issues first raised in late March 2016;



• a proposal raised by an employee bargaining representative to remove the HVAC Allowance and replace it with an overtime and penalties regime was discussed in October 2016 as was a proposal by another employee bargaining representative to reduce the level of the Allowance from 35 per cent to 25 per cent in recognition of 5 (as opposed to the current 10) additional hours per week;



• the AFP’s proposal to remove the HVAC Allowance had been further discussed in bargaining meetings on 7 and 8 December 2016, with the AFP also subsequently engaging with other bargaining representatives over the issue; and



• the AFPA did not raise any issues regarding the scope of the proposed agreement until the AFP tabled its proposal to remove the HVAC Allowance.

[24] Key aspects of Commander Rippon’s oral evidence were that:

• he had experience in each of the areas covered by the AFPA’s application;



• the employees covered by the AFPA’s application were not distinct from the rest of the AFP;



• employees in the Technical and Surveillance Operations area reported to a different Deputy Commissioner than those in the Close Personal Protection area;



• employees in the surveillance area would not work routinely with employees in the Close Personal Protection area;



• the AFP had considered the views expressed by the AFPA and other bargaining representatives regarding its proposal to remove the HVAC Allowance but remained of the view that the Allowance should no longer exist, adding that the alternative proposals put forward by some bargaining representatives had also been considered by the AFP but were not considered to meet the AFP’s needs;



• were the scope order made he envisaged some difficulties arising, highlighting the uncertainty that would arise in the broader AFP given that the proposed agreement was reliant on savings generated by the removal of the HVAC Allowance, the inefficiency associated with administering two enterprise agreements, the significant amount of internal governance work associated with administering two enterprise agreements and the need to educate managers about managing across two enterprise agreements;



• a separate agreement covering employees in receipt of the HVAC Allowance may also result in inefficiency by inhibiting the AFP’s ability to move employees across disciplines;



• negotiations for the proposed agreement were well advanced and mature, with the AFP’s intention being to submit the draft proposed agreement to all bargaining representatives as soon as possible (assuming the Commission did not make the scope order sought by the AFPA) to run through from top to bottom despite this having been done twice previously;



• the draft proposed agreement would subsequently be forwarded to the Australian Public Service Commission for approval in accordance with the Government’s Bargaining Policy and subject to that approval would be issued for consideration by AFP employees as soon as possible;



• some delay in finalising the proposed agreement for other employees would result from a scope order being made as a result of having to amend the proposed agreement to reflect that it did not cover the employees covered by the AFPA’s application; and



• the work performed by employees covered by the AFPA’s application could be dangerous, was demand driven and involved some of the cohort receiving specialised training, later adding that other AFP employees also engaged in dangerous work and undertook special training to perform their role and that the employees covered by the AFPA’s application were not unique within the AFP in terms of performing demand drive work in difficult circumstances.

[25] Deputy Commissioner Phelan deposed in his witness statement 12 that:

• a unified workforce was central to achieving the AFP’s key priorities;



• a key strategic initiative of the AFP was to build an agile and innovative capability, with maintaining a unified and mobile workforce essential to achieving that initiative;



• moving employees between specialist units had been identified as an important anti-corruption measure, adding that employees covered by the AFPA’s application (with the exception of Police Technical Team in the Technical and Surveillance Operations area) were generally only placed in these areas for between 3 to 5 years;



• when he reviewed the statistics regarding the number of ordinary hours currently being performed by employees paid the HVAC Allowance he became aware that a significant number of those employees were not performing 47 hours per week let alone 50 hours per week, adding that in circumstances where the Allowance was intended to compensate employees for working up to 10 additional hours per week it was appropriate to review the inclusion of the Allowance in the proposed agreement;



• he considered it would be fairer, more equitable and more efficient if employees working the HVOW Pattern were paid for the additional hours they worked rather than being pre-paid for up to 10 additional hours which might be worked;



• the AFP’s proposal would mean that all employees working the Operational Working Pattern would be compensated in the same way for additional hours worked;



• there was no commonality between the groups of employees covered by the AFPA’s application;



• bargaining for two agreements would be very inefficient, particularly as there was only one substantive issue in dispute between the parties, the HVAC Allowance proposal could be dealt with in the course of bargaining for a single agreement and all other terms and conditions of employment were identical; and



• having two agreements would be inefficient, duplicative and difficult to administer and would require a significant overhaul of the AFP’s internal administration and governance.

[26] Key aspects of Deputy Commissioner Phelan’s oral evidence included:

• he had direct experience with the areas covered by the AFPA’s application, though he did not think that the Witness Protection component of the Close Personal Protection area had been under his control at any time;



• there was no correlation between employees working in surveillance and those working in the Close Personal Protection area;



• the skills sets of the employees working in the areas covered by the AFPA’s application were not readily transferred between those areas;



• some of the employees covered by the AFPA’s application were engaged in dangerous work, though without wishing to downplay the danger associated with that work he did not consider it to be any more dangerous than the work undertaken by other areas of the AFP;



• the removal of the HVAC Allowance would see some employees lose cash depending on the hours that they worked;



• more effective rostering meant that the AFP did not need the number of pre-paid additional hours which were compensated for by the HVAC Allowance;



• he did not believe that the making of a scope order would result in fairer or more efficient bargaining, adding that the AFP’s position regarding the HVAC Allowance would not change as the AFP did not want to pay for hours not worked;



• the AFP had not tried to play one group of employees off against another; and



• the Close Personal Protection area was moving closer to the rest of the organisation and the proposal to remove the HVAC Allowance reflected the evolution of that concept, adding that this was highlighted by the fact that employees working in the area received a 90 per cent composite allowance and 9 weeks annual leave under the AFP’s 1999 certified agreement while the agreement prior to the 2012 Agreement distinguished between what was paid for flexibility and what was paid for overtime.

Relevant Statutory Framework

[27] Section 238 of the Act deals with scope orders and provides as follows:

238 Scope orders

Bargaining representatives may apply for scope orders
(1) A bargaining representative for a proposed single-enterprise agreement may apply to the FWC for an order (a scope order) under this section if:

(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and
(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.

No scope order if a single interest employer authorisation is in operation
(2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.

Bargaining representative to give notice of concerns
(3) The bargaining representative may only apply for the scope order if the bargaining representative:

(a) has taken all reasonable steps to give a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and
(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(c) considers that the relevant bargaining representatives have not responded appropriately.

When the FWC may make scope order
(4) The FWC may make the scope order if the FWC is satisfied:

(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and
(b) that making the order will promote the fair and efficient conduct of bargaining; and
(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and
(d) it is reasonable in all the circumstances to make the order.

Matters which the FWC must take into account
(4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (4)(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.

Scope order must specify employer and employees to be covered
(5) The scope order must specify, in relation to a proposed single-enterprise agreement:

(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.

Scope order must be in accordance with this section etc.
(6) The scope order:

(a) must be in accordance with this section; and
(b) may relate to more than one proposed single-enterprise agreement.

Orders etc. that the FWC may make
(7) If the FWC makes the scope order, the FWC may also:

(a) amend any existing bargaining orders; and
(b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by the FWC, or take such other actions, as the FWC considers appropriate.

Consideration

[28] With regard to the requirement set out in s.238(3)(a) that the applicant for a scope order has taken all reasonable steps to give a written notice setting out their concerns that bargaining for the agreement is not proceeding efficiently or fairly to the relevant bargaining representatives for the agreement, the AFPA acknowledged at the hearing that it had only written to the AFP setting out its concerns and that it had not copied that correspondence to other bargaining representatives. Further, Mr Cooper’s evidence was that until the AFPA’s scope application, it and all other bargaining representatives had been advocating for a single agreement.

[29] While no other bargaining representatives appeared in the proceedings, Mr Ron Johnson, an Industrial Officer with the CPSU, sent the following email to the Commission on the morning of 20 April 2017:

“I note that a s.238 application by the AFPA for a Scope Order is set down for a Hearing before you from 10am today. The CPSU is the other union covered by the Australian Federal Police Enterprise Agreement 2012-2016. To date, we have not been able to obtain a copy of the AFPA application to the FWC, nor the AFP response, nor any of the subsequent materials provided by the AFPA.

The CPSU is not entitled to represent the interests of the ‘special operations’ employees whom we believe are the subject of the AFPA application, nor do we seek to do so. However, the CPSU is entitled to represent the interests of some of the employees who are subject to the current NERR. The CPSU has an interest in this application to the extent of ensuring that the group of employees to be covered by the EA, that is currently being negotiated, are fairly chosen. The CPSU respectfully requests that the FWC provide us with copies of the materials relating to this application and that we be notified of the proceedings.

Due to enterprise bargaining commitments at another agency today, I am not able to attend the Hearing this morning. At this stage I am uncertain whether any other officer of the CPSU will be able to attend the Hearing this morning. I would be grateful for any assistance that you may be able to provide in relation to the points that I have raised above.” (Underlining added)

[30] The Commission forwarded a copy of the AFPA’s application to the CPSU and Mr Sunil Kemppi, a Senior Industrial Officer with the CPSU, subsequently sent the following email to the Commission:

“Thank-you for forwarding the application.

The CPSU is a bargaining representative in enterprise bargaining negotiations presently occurring with the AFP. As such we have a relevant interest in this matter and may seek to make submissions and be heard.

I understand that telephone or video facilities are not available.

Having just received the application, we are not currently in a position to make a submission. I am seeking instructions, and may seek the opportunity to make submissions in this matter for the CPSU.” (Underlining added)

[31] The Commission advised the parties at the commencement of the hearing on 20 April 2017 of the CPSU’s correspondence and its decision to provide the CPSU with a copy of the AFPA’s application. At the time the AFPA took on notice questions from the Commission regarding whether it had complied with s.238(3)(a) of the Act.

[32] Beyond that, the material before the Commission indicates that at the bargaining meeting of:

• 13 October 2016 a proposal from an employee bargaining representative (Mr Glen McDonald) to reduce the HVAC Allowance/HVOW Pattern with a lower cost model was raised and a proposal by another employee bargaining representative (Mr Simon Cantfield) to remove the HVAC Allowance and replace it with an overtime and penalties regimes was discussed 13; and



• 26 October 2016 Mr McDonald’s proposal was discussed in detail 14.

[33] The evidence before the Commission indicates that up until the AFPA’s application all bargaining representatives had been bargaining for a single agreement and that there was a divergence of views among bargaining representatives regarding the HVAC Allowance/HVOW Pattern. In addition, the above correspondence from the CPSU expresses its interest in ensuring that the employees to be covered by the proposed agreement “were fairly chosen”. Taken together these factors suggest that the AFPA should have provided written notice to at least some, if not all, other bargaining representatives beyond the AFP. Accordingly, on the basis of the material before the Commission I cannot be satisfied that the AFPA has complied with s.238(3)(a) of the Act and that it is therefore able to make an application for a scope order.

[34] Despite this, I will nevertheless consider each of the considerations set out in s.238(4) of the Act which deals withwhen the Commission may make a scope order.

s.238(4)(a) – the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements

[35] It was not contended by the AFPA that the AFP had not met and was not meeting the good faith bargaining requirements. This consideration is therefore satisfied.

s.238(4)(b) – making the order will promote the fair and efficient conduct of bargaining

[36] The AFPA submitted that making the scope order it sought would focus the minds of negotiators on the HVAC Allowance issue thereby resulting in fair and efficient bargaining.

[37] Mr Cooper’s evidence was that the AFPA’s support for a single agreement was premised on the interests of the group of employees covered by its application having their interests attended to under a single agreement. Mr Cooper also considered that the AFP had not conducted bargaining fairly or efficiently as there was no prior indication that the HVAC Allowance would be removed or changed. However, Mr Cooper also attested that overtime, penalties and composite allowances had been “live issues” in bargaining since March 2016 and that proposals to remove the HVAC Allowance had been raised by other bargaining representatives before July, with proposals relating to the Allowance on the table since the end of February 2016. Significantly when asked how the negotiations would be different regarding the HVAC Allowance were the Commission to make the scope order sought, Mr Cooper replied “Good question.”

[38] Mr B’s evidence was that a scope order would make the negotiations on the HVAC Allowance more fair and equitable for those employees which he represented, particularly as a lot of AFP employees were not affected by the proposal to remove the HVAC Allowance.

[39] The AFP submitted that there was no evidence before the Commission which suggested that the making of a scope order would make bargaining fairer or more efficient. Both Commander Rippon and Deputy Commissioner Phelan in their evidence highlighted the inefficiency associated with bargaining for and administering two agreements. In addition, Deputy Commissioner Phelan’s evidence was that the AFP’s position on the HVAC Allowance would not change were a scope order to be made while Commander Rippon attested that some delay in finalising a broader agreement would result from a scope order being made.

[40] The test in respect of this consideration was set out by the Full Bench in United Firefighters where it stated that:

“The relevant consideration under s.238(4)(b) is whether the order will promote the fair and efficient conduct of bargaining. The implication is that the tribunal should be satisfied that if an order is made the bargaining will at least be fairer or more efficient or both than it would be if no order were to be made.” 15 (Underlining added)

[41] The decision in United Firefighters was affirmed by the Full Bench in BRB Modular.

[42] Mr Cooper’s contention that the AFP had not conducted bargaining fairly or efficiently is contradicted by his evidence that that overtime, penalties and composite allowances had been “live issues” in bargaining since March 2016 and that proposals to remove the HVAC Allowance had been raised by other bargaining representatives before July, with proposals relating to the Allowance on the table since the end of February 2016. Further, the material before the Commission indicates that the CPSU lodged its log of claims with the AFP prior to the bargaining meeting of 13 October 2016 16 and that Mr B’s log of claims was submitted to the AFP on 9 December 201717. This does not suggest that the timing of the AFP’s proposal to remove the HVAC Allowance, albeit that the proposal was tabled sometime after bargaining had commenced, was of itself unfair or inefficient when viewed in the broader context of bargaining.

[43] What appears to be at the core of the AFPA’s and Mr B’s concerns is the failure of the negotiations to reach agreement on retention of the HVAC Allowance. Again this of itself does not make the negotiations unfair. Further, the material before the Commission indicates that the AFP’s proposal was discussed in detail at bargaining meetings of 30 November and 7-8 December 2016 as well as being the subject of correspondence between the AFP and other bargaining representatives outside bargaining meetings 18. To that end, I note that the Act’s good faith bargaining requirements do not require a bargaining representative to make concessions during bargaining or reach agreement on the terms that are to be included in an agreement (s.228(2) of the Act).
[44] As to the underlying concern expressed by Mr B that employees currently in receipt of the HVAC Allowance would be outnumbered by other employees in any vote regarding the proposed agreement, the weight that should be attached to that was considered by Commissioner Roe in Linfox 19where heobserved that:

“[59] It is commonplace that a particular minority group of employees within the scope of a proposed agreement may feel that they are in danger of being swamped by the interests of the majority … However, the weight that this should be given in determining whether or not a scope order will improve the efficiency and fairness of the bargaining and whether or not it will be reasonable to grant the order will depend upon the circumstances. The extent of the special interests and potential disadvantage, the impact on the interests of the other bargaining parties, the history of conduct in bargaining, and the stage of the bargaining are all relevant matters which I have considered.

[60] In the circumstances of this case … There is some disadvantage to the interests of the other bargaining parties if the scope order was to be granted and this disadvantage is greater because of the late stage of bargaining.”

[45] I acknowledge that the HVAC Allowance is a significant issue for the 280 or so employees who are currently paid the Allowance. However, in circumstances where:

• all bargaining representatives were bargaining for a single agreement until the AFPA’s application;



• the AFPA’s application was made some two and a half months after the AFP’s proposal to remove the Allowance had been tabled and over 12 months after bargaining commenced despite composite allowances having been “live issues” in bargaining since March 2016; and



• the Allowance appears to be the only issue that remains in contention



• consider that making the scope order has the potential to disadvantage the other 5,600 employees who would be covered by the proposed agreement 20. The disadvantage would be caused by the delays that would ensue in potentially finalising an agreement given that the AFPA’s application was made at a time when the negotiations were at an advanced stage.

[46] Further, the material before the Commission does not support a finding that the negotiations to date have been unfair. To the contrary, the material indicates that the AFP has considered and responded to proposals brought forward by bargaining representatives. I note also that there has been no bargaining over the issue of scope to date.

[47] Taken together, the above considerations do not support a finding that granting the scope order sought would make the bargaining process fairer.

[48] As to the issue of whether or not granting the scope order would make the bargaining process more efficient, having to negotiate two separate agreements clearly involves duplication of effort for the AFP and AFPA and potentially some other bargaining representatives. Further, making a scope order is also likely to involve the bargaining parties having to reconsider how the pay increases in the proposed agreement are to be funded given that removal of the HVAC Allowance was to have contributed in this regard. This does not support a finding that granting the scope order sought would make bargaining more efficient.

[49] Drawing on the above analysis, I am not satisfied that granting the scope order sought would promote the fair and efficient conduct of bargaining.

s.238(4)(c) – the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen

[50] As previously mentioned, at the hearing the AFPA acknowledged that the employees covered by its application were organisationally diverse and geographically spread, but contended that they were operationally distinct on the basis that they were the only AFP employees required to work up 50 hours per week.

[51] On the other hand, the AFP contended that the employees covered by the application did not form a natural group and that receipt of the HVAC Allowance did not mark the employees out as geographically, operationally or organisationally distinct.

[52] The Full Bench in United Firefighters stated that:

“The relevant consideration under s.238(4)(c) is whether the specified group is fairly chosen. It may be that a number of groupings might be fair – what this criterion requires is that the group which is included in the scope order is fairly chosen. This issue is also dealt with in s.238(4A), which we discuss shortly.” 21

[53] The evidence in the case points to a large number of AFP employees potentially working in dangerous and/or difficult circumstances, undergoing specialised training to perform their role and their work being demand driven. I note that the HVAC Allowance does not compensate employees for these facets of their work. The evidence further points to there being no commonality between the areas covered by the AFPA’s application other than the HVAC Allowance/HVOW Pattern and that the skills sets of the employees working in those areas were not readily transferred between those areas. This analysis does not support a finding that the employees covered by the AFPA’s application are operationally distinct.

[54] Beyond this, there is no evidence before the Commission which would support a finding that the employees covered by the AFPA’s application are either geographically or organisationally distinct. I note that the AFPA did not contend that the employees were geographically distinct.

[55] Drawing on the above analysis and with particular regard to s.238(4A) of the Act, I am not satisfied that the group covered by the AFPA’s application is geographically, operationally or organisationally distinct. Accordingly, I am not satisfied that the group is fairly chosen.

s.238(4)(d) – it is reasonable in all the circumstances to make the order

[56] The evidence before the Commission indicates that bargaining over composite allowances has been a feature of AFP agreements for many years. For instance, Mr Cooper attested that the quanta of composite allowances and underpinning structures had varied from agreement to agreement since the late 1990’s and that at one stage employees working in the Close Personal Protection area were paid a 90 per cent composite allowance while employees across surveillance were paid a 60 per cent composite allowance. Further, Commander Rippon’s evidence was that in bargaining for the 2012 Agreement employees working in Undercover Operations were removed from receiving the HVAC Allowance.

[57] This suggests that the issue of the HVAC Allowance may be capable of being resolved through further negotiations for a single agreement.

[58] Finally, I note Mr Cooper’s evidence that he had not discussed the AFPA’s application with either AFPA members. While Mr Cooper attested that he had discussed the application with bargaining representatives from the Technical and Surveillance Operations area and two AFPA delegates from the Close Personal Protection Team, he was unable to provide any insight into the views of AFPA members regarding the application.

[59] Against that background, I am not satisfied that it is reasonable in all the circumstances to make the order sought by the AFPA.

Summary

[60] Commissioner Cambridge observed in APT Management Services Pty Limited and APA Gas Net Australia (Operations) Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union(AMWU); and The Australian Workers’ Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and The Association of Professional Engineers, Scientists and Managers, Australia t/a Professionals Australia 22 (APT) that:

“[71] It should be noted that each of the paragraphs (a) to (d) of sub-section 238 (4) of the Act are separated by the word “and”. Therefore, these constituent elements are cumulative requirements for the making of any scope order. Consequently, even if I was to consider that some factor might establish that the scope order would be reasonable in all the circumstances, the order could not be made unless all the other factors were satisfied.”

[61] Drawing on the above analysis, it is clear. Against that background, and consistent with Commissioner Cambridge’s approach in APT, the AFPA’s application must therefore fail.

Conclusion

[62] For the reasons outlined above, I firstly cannot be satisfied that the AFPA has complied with s.238(3)(a) of the Act and therefore find that it is not able to make an application for a scope order and secondly find that the AFPA’s application does not meet all of the considerations set out in s.238(4) of the Act. Accordingly, I decline to make the orders sought and dismiss the application. An Order to that effect will be issued in conjunction with this decision.

Appearances:

M. Chilcott for the Applicant
J. Forbes of Counsel for the Respondent

Hearing details:

2017.

Canberra:

April 20 and 21.

 1   AE891991

 2   Ibid at clause 13(6)

 3   PR592019

 4   AE891991

 5   Form F31 – Application for a scope order

 6   [2015] FWCFB 1440

 7   Exhibit 1

 8   Exhibit 2

 9   [2014] FWCFB 1476

 10   [2013] FWC 9851

 11   Exhibit 3

 12   Exhibit 4

 13   Exhibit 3 at Annexure MR-9 at page 214

 14   Ibid at pages 228-230

 15   [2010] FWAFB at paragraph [55]

 16   Exhibit 3 at Annexure MR-9 at page 206

 17   Ibid at pages 334-344

 18   Ibid at Annexures MR-11 to MR-15

 19   [2013] FWC 9851

 20   Exhibit 1 at paragraph 4 (see footnote 1)

 21   [2010] FWAFB at paragraph [55]

 22   [2015] FWC 699

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