Australian Institute of Marine and Power Engineers, The v Tasmanian Ports Corporation Pty Ltd T/A Tasports
[2017] FWC 2471
•9 MAY 2017
| [2017] FWC 2471 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.238—Scope order
Australian Institute of Marine and Power Engineers, The
v
Tasmanian Ports Corporation Pty Ltd T/A Tasports
(B2016/1148)
Tasmanian Ports Corporation Pty Ltd T/A Tasports
v
Australian Institute of Marine and Power Engineers, The(B2017/133)
| COMMISSIONER LEE | MELBOURNE, 9 MAY 2017 |
Applications for scope orders.
Introduction
These matters are applications for scope orders by both Tasmanian Ports Corporation Pty Ltd T/A Tasports (Tasports) and the Australian Institute of Marine and Power Engineers (AIMPE) under s.238 of the Fair Work Act 2009 (the Act).
Tasports seeks a scope order to cover all employees employed in the marine towage operation under one enterprise agreement (the Tasports application).
AIMPE seeks a new enterprise agreement with the same coverage as the Tasports Towage Enterprise Agreement 2013 – AIMPE[1] which is as follows:
“This agreement shall apply to work done by employees employed by Tasmanian Ports Corporation Pty Ltd. Who are employed as Engineers [and] who are covered by the Marine Towage Award 2010 (the award) Fair Work Commission.”
The new proposed AIMPE enterprise agreement would not cover employees presently covered by the Tasports Towage AMOU and MUA Enterprise Agreement 2013[2] (the AIMPE application). In this respect, the application by AIMPE represents a continuation of the scope of the current agreements.
Background to the applications
AIMPE made their application on 31 October 2016. There were conciliation conferences held before me on 12 December 2016 and 19 January 2017. However, the dispute over scope was not resolved at those conferences. Subsequent to the conferences and following the directions issued in relation to the AIMPE application, Tasports made their application for a scope order on 8 February 2017. The matter was listed for mention on 16 February 2017 and I determined that I would hear and determine both applications concurrently.
The hearing took place in Hobart on 4 April 2017. Mr Collinson was granted permission to appear for Tasports and Mr Cross was granted permission to appear for AIMPE and the AMOU, as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
The Maritime Union of Australia (MUA) participated in the mention but did not make any submissions and did not appear at the hearing. The Australian Maritime Officers’ Union (AMOU) filed a short written submission and did not provide evidence.
Previous Bargaining History
Tasports operates towage services and employs Engineers (typically represented by AIMPE), Deckhands (typically represented by the MUA) and Tug Masters (typically represented by the AMOU).
Tasports purchased the Towage business in 2008. In 2011 as a result of bargaining, two agreements were made the Tasports North Western Shipping and Towage AMOU and MUA Enterprise Agreement 2010 and the Tasports North Western Shipping and Towage AIMPE Enterprise Agreement 2010.[3]
The employees of Tasports who are the subject of its application are currently covered by the two separate enterprise agreements. These are the Tasports Towage AMOU and MUA Enterprise Agreement 2013 and Tasports Towage Enterprise Agreement 2013 -AIMPE (the current agreements). Mr Nathan Niven, Senior National Organiser at the AIMPE gave evidence that during bargaining for these agreements, the Engineers reached agreement in October 2013, in advance of the other unions. He notes while the other unions continued to pursue a higher wage increase, they were unsuccessful in this regard. However, the other unions did achieve a better outcome in terms of “minor increases to a couple of contingency allowances”.[4]
In 2013 a memorandum of understanding with AIMPE was entered into to provide engineers with parity for all rates associated with allowances and additional payments.[5] However, both Mr Niven and Mr Peter Harris, Marine Engineer with Tasports and AIMPE Delegate for the North West Engineers were clear in their evidence that this is not something they would pursue on this occasion. They gave evidence that this matter has been discussed with the delegates and that all were clear in their understanding that if they pursued a separate agreement that there would not be a flow on of any more beneficial outcome achieved by the MUA and the AMOU.[6] Mr Niven believes the fact that the Engineers reached an early settlement in 2013 allowed for Tasports to “achieve their wage outcome objective” and he does not understand why they have not looked to do the same in this round of bargaining.[7]
It is not in contest that the two current agreements are substantially the same in content with the key differences being as follows:
· Classifications: i.e. Engineers, there is a requirement for Engineers to have a certificate of competency (at trade or equivalent engineering trade);
· Wages (which are aligned to the Masters by location); and
· Allowances.
Tasports submit that the two separate agreements are in effect the one agreement and that the history of bargaining is that it has been interdependent.[8] In essence that there has been one set of bargaining for one agreement, the outcome simply reflected in two agreements.[9]
The current round of bargaining
Ms Belinda Beltz, Manager Human Resources at Tasports states that on 9 January 2016, Tasports issued a Notice of Employee Representational Rights (NERR) to commence bargaining for a “new agreement” (the first NERR). The first NERR did not state that Tasports wanted to reach a single enterprise agreement that applied to all towage employees.[10] Rather the proposed coverage was as follows:
“Tasmanian Ports Corporation Pty Ltd gives notice that it is bargaining in relation to an enterprise agreement (Tasmanian Ports Corporation Pty Ltd (Tasports) Towage AIMPE Enterprise Agreement 2016) which is proposed to cover employees employed in Engineering roles working on Tasports floating plant.”
The NERR was reissued on 10 February 2016 (the second NERR) due to concerns about the first notice containing the Tasports letterhead. The proposed coverage was not altered from the first NERR.[11]
Both the first and the second NERR advised employees that Tasports sought to reach a separate agreement with AIMPE, despite the fact that Ms Beltz gave evidence that the Tasports board made the decision that they wanted one agreement in December 2015 or thereabouts.[12]
On 12 April 2016, Tasports convened an initial bargaining meeting. Ms Beltz is clear in her evidence and I accept that, despite the proposed coverage in the first and second NERR’s, Tasports made clear at the 12 April meeting that it was their intention to bargain for a single agreement that would incorporate the existing conditions from the two existing enterprise agreements. A bulletin to that effect was emailed to all employees that same day.[13] Mr Niven confirms that Tasports advised that they intended to reach one agreement and that he in turn advised Tasports that AIMPE would not agree to that outcome and preferred a separate agreement for Engineers.[14]
After the meeting on 12 April, Mr Niven claims that Ms Beltz contacted him and said that Tasports would not change their position on a 2% pay increase and if AIMPE accepted the 2% offer then subject to the Tasports board agreeing, they could offer AIMPE a separate agreement. Mr Niven indicated that he thought such a deal was possible.[15]
A further bargaining meeting took place on 12 May 2016.[16] Before the start of the 12 May meeting, Ms Beltz advised Mr Niven that Tasports would be sticking to the position of one agreement. Mr Niven responded by voicing concerns about Tasports attempting to negotiate an agreement that was not consistent with the NERR issued and indicated he was concerned about being outvoted on issues important to Engineers.[17]
On 24 May 2016, AIMPE wrote to Tasports and advised them that AIMPE opposed a single or joint agreement and sought a commitment from Tasports for the existing structure of two agreements.[18] Tasports responded on 31 May 2016 indicating that it would not change its position; that the current enterprise agreements are largely identical and engineering specific clauses can be accommodated where necessary. Further, that the scope of the proposed enterprise agreement is a matter for bargaining and that this can differ from the scope in the NERR.
On 1 June 2016, AIMPE advised that the one agreement was a “major threshold matter” and that it would attend the next bargaining meeting on 2 June 2016 on a without prejudice basis.[19] AIMPE also wrote to the AMOU and the MUA outlining their concerns and their preference to maintain the existing structure.[20]
On 2 June 2016 there was a further bargaining meeting and the issue was debated. According to Mr Niven, the AMOU and the MUA indicated they supported the current structure of agreements. It is claimed that when asked by the MUA official why they wanted one agreement, Ms Suzie Jones of Tasports replied it was the “philosophical position of the board” and that “Svitzer got a joint agreement”.[21] AIMPE tabled a draft duties clause to be included in the agreement. Tasports described the clause as an extensive list of tasks and advised AIMPE that tasks are detailed in position descriptions, not agreements. The MUA also advised that the clause needed to be modified as the list was not appropriate.
After the 2 June meeting, the various bargaining groups agreed to attend to relevant action items arising from the meeting. AIMPE claim that Tasports did not respond to their proposals arising from this meeting. Further that as they were the only union that completed their action items that the next meeting scheduled for 20 July was cancelled.[22] There was also some discussion at this time of the outcome in Svitzer Australia Pty Ltd [[2016] FWCA 794]. Mr Niven pointed out that the Svitzer agreement has a “duties clause” and canvassed a similar clause being included if there was to be a single agreement. The MUA indicated they were opposed to such a clause, as was Tasports.
Ms Beltz issued a further NERR (the third NERR) on 28 July 2016 because of a concern there was a technical problem with the second NERR.[23] Once again, despite the stated position of Tasports that it wanted to reach one agreement for all employees, the third NERR did not alter the proposed coverage from that in the first and second NERR’s. That is, the NERR still did not indicate that Tasports wanted to reach one agreement for all towage employees. When asked why the NERR’s were issued in this form Ms Beltz said she did not know and that the content and form of the NERR’s were based on legal advice.[24] Mr Matthew Johnston, General Manager Marine Services at Tasports only became aware of the error in the NERR on the day of the hearing. When asked why nothing was done to fix the NERR he replied “It’s a very good question. I don’t have the answer”.[25]
On 1 September 2016, Ms Beltz received an email from Mr Niven that said that they were not far apart on the agreement but a major area of disagreement remained, being the scope of the agreement.[26] Mr Niven stated that “the current unnecessary delay is further evidence of why Engineers prefer a standalone AIMPE agreement - to avoid disputes that don’t concern us. The joint meetings are not progressing towards an efficient or sustainable outcome and we reserve our right not to participate in future joint meetings”.[27] In principle agreement (except for scope) between AIMPE and Tasports was achieved on or about 1 September 2016.[28]
On 26 September 2016 Tasports responded that its position on scope had not changed and that they were waiting on information from the AMOU and the MUA before it could progress the bargaining. On 26 October 2016 Mr Niven advised Tasports that they would not be participating in any further joint meetings as they were still pursuing a separate agreement and would therefore not attend the meeting scheduled on 8 November 2016. AIMPE advised of their availability to have discussions about a stand-alone agreement.[29]
On 31 October 2016 AIMPE made its application for a scope order.
On 9 November 2016 there was a further bargaining meeting. AIMPE were invited to the meeting but did not attend.[30]
On 11 November 2016 Mr Niven met with Ms Beltz and Mr Johnson of Tasports. Mr Niven reiterated the reasons that AIMPE wanted a separate agreement and confirmed that the union would accept a 2% increase that was on the table for a separate agreement. Tasports confirmed their desire for a single agreement.[31]
On 12 December 2016 there was a conference before me, where options for dealing with AIMPE’s issues with one agreement were considered. Arising from the conference, Ms Beltz discussed with Mr Niven the options for a specific appendix dealing with Engineers qualifications; however, Mr Niven was not agreeable to that approach. Mr Niven says that Tasports advised that they would consider anything to achieve a single agreement, that they were committed to the 2% offer and would soon reach a position of removing the back pay offer.[32]
On 19 December 2016 there was a further bargaining meeting which AIMPE notified they would not, and did not, attend.[33]
On 6 January 2017, Mr Niven received a draft of the proposed Tasports agreement. Mr Niven noted that the words (which were in previous drafts) requiring a Class 3 Engineer to hold a Trade Qualification had been deleted from the agreement. Mr Niven was most concerned about this as this was the key issue that engineers were seeking to protect and was at the heart of the reason that the AIMPE wanted their own agreement. Mr Niven claims that he was concerned that “mischief was afoot”.[34] Soon after, an amended draft proposed agreement was recirculated on 11 January 2016 with the missing words reinstated. Ms Beltz gave evidence that the omission was simply an error.[35] Mr Niven claims that because the other unions had redrafted the document, that the other unions may have been deliberately targeting the qualifications. However, Mr Niven agreed on cross-examination that Ms Beltz had made clear to him that this was done in error and was not Tasports’ position.[36]
On 17 January 2017, Ms Beltz wrote to AIMPE stating that Tasports was concerned that bargaining was not progressing efficiently or fairly. This concern was based on AIMPE’s refusal to participate in discussion regarding how their interests could be protected in a single agreement.[37]
On 27 January 2017 Ms Beltz emailed all three unions indicating concern that bargaining was not proceeding efficiently or fairly due to AIMPE’s position of bargaining for the continuation of the two agreements.[38]
On 31 January 2017 Mr Niven wrote to Tasports confirming that it will accept the monetary position offered by Tasports, provided there are two agreements. Ms Beltz was concerned that AIMPE was being ideological about the scope and was concerned that bargaining could not continue efficiently.[39]
On 3 February 2017 Ms Beltz wrote to Mr Niven stating that issue of scope was stopping bargaining proceeding efficiently or fairly.[40]
Tasports made their own application for a scope order on 8 February 2017.
AIMPE maintain that, bar the issue of the separate agreement, there is no barrier to reaching an agreement with Tasports and believe an agreement could have been finalised and submitted for approval in September 2016.[41] Negotiations with the MUA and the AMOU were still underway at the time of the hearing of this matter. An email from Mr Jason Campbell of the MUA to Ms Beltz on 17 February 2017 shows an extensive list of matters are yet to be negotiated between the MUA and the AMOU and Tasports.[42] Some of these matters appear to be minor issues and others may require some level of negotiation. The quantum of the pay increase remains an outstanding issue with Tasports maintaining a position of 2% and the MUA and the AMOU position of 3%. Ms Beltz agreed with the characterisation of the email from the MUA as akin to a “shopping list”.[43]
In considering the conduct of the various parties in the negotiations, Ms Beltz agreed that the MUA and the AMOU had been “less than diligent” in responding to matters raised in the bargaining.[44] In fact, Ms Beltz agreed that the bargaining, particularly between Tasports and the MUA had not been efficient at all.[45] In contrast Ms Beltz had no difficulty agreeing with the proposition that the bargaining between Tasports and AIMPE but for scope had been entirely efficient.[46] Mr Johnston accepted that AIMPE has been a willing participant and some of the other unions have not been as willing[47]and that the MUA are very slow to respond to things put to them by Tasports.[48]
The engineer qualification matter and the benefits of one agreement
On each vessel an Engineer, a Deckhand and a Tug Master will work co-operatively throughout a shift. According to Mr Johnston, Tasports want a single agreement because:
1. The existing separate agreements are nearly identical, and specific variations across the classifications can be incorporated into a single agreement;
2. Historically, pay increases and allowances bargained in one agreement have always been reflected in the other agreement;
3. The different classifications employed in towage operations are required to work collaboratively together on one vessel, and a single agreement reflects a ‘one Tasports’ approach to towage operations which is Tasports’ ambition moving forward; and
4. Separate agreements create an elitist distinction between classification and risks creating a ‘silo effect’ between classifications.[49]
Mr Johnson elaborated on this evidence during the hearing stating that one agreement “…simplifies it but also the fact that these teams, if you like, the deckhand, the engineer and the tug master work in a closed environment on one tug. It is our view that that makes the most sense practically and from a management point of view”.[50]
Ms Beltz when asked why it was important for Tasports to have one agreement, said the following:
“Because I mean the majority of the provisions, I would say 95 per cent of the provisions are the same across the two agreements and, you know, they’re a crew that operate together on a vessel and Tasports’ position is that if they are under the one agreement then it's a more cohesive, collaborative environment, rather than having one discipline out here and two here.
Right. But would it be possible at least in a theoretical sense, subject to agreement, to get parallel outcomes in terms of those conditions in two separate instruments; would you agree with that?‑‑‑The majority that weren't unique to I suppose the engineers, yes.”[51]
Mr Johnston and Ms Beltz consider their proposed scope to be reasonable and that the intention of Tasports is to reflect any specific rights or entitlements in the single agreement. Further, that there is no desire to change the qualification or training requirements for any of the classifications.[52] It is not in dispute that the current version of the agreement proposed by Tasports maintains the existing classifications of Deckhand, Tug Master and Engineer.[53]
Mr Harris gave evidence about the importance of the qualifications. In particular, he stated:
“To maintain the highest standards we have always maintained that Tugs should be operated by Engineers with the highest possible qualifications. The Tasports Tugs are old and need a high degree of constant maintenance. The minimum standard of a Class 3 Engineer with a trade qualification as a fitter and turner, diesel fitter or electrical fitter – the trade requirements for entry into the stream of Marine Engineering and a requirement for Class 2 and Class 1 Certificates of Competence – ensures that the highest standards are maintained. To achieve a Class 1, Class 2 or Class 3 Certificate of Competence requires a candidate to pass an oral examination. This ensures proficiency of knowledge of complex heavy machinery and the regulations applying to marine standards including protecting the environment and waterways from pollution. This level of knowledge is required by the applicable Marine Orders applying to Marine Engineers. It ensures that the highest level of safety is maintained on the water and in the performance of maintenance. These are not trifling matters as accidents have occurred resulting in deaths on well-appointed tugs in countries such as England. Any attempt to reduce the standards would be to lower the safety of all crew members on a Tug.”[54]
The evidence of Mr Harris on this matter reflects a view that both he and Mr Niven believe maintaining a separate agreement for engineers is crucial in protecting the standard of qualifications of the Engineers. However, during cross-examination Mr Niven confirmed that the requirements and qualification standards for Engineers are regulated by an authority, the Australian Maritime Safety Authority (AMSA). The AMSA is responsible for administering the Navigation Act and have their own requirements for certificates of competency including relevant trade qualifications for Engineers.[55] Importantly, Mr Niven conceded that the current clause in the AIMPE enterprise agreement provides that if the company is to recruit new Engineers that they must possess either a Class 1, 2 or 3 certificate of competency, and in the case of a Class 3 certificate of competency the holder shall have a trade qualification as a fitter and turner, diesel fitter or electrical fitter, or other equivalent engineering trade and that this is consistent with the AMSA requirements.[56]
Law to be applied
Section 238 of the Act
Section 238 of the Act relevantly provides that:
“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…
Bargaining representative must have given 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.”
I now turn to the parties’ submissions on these sections of the Act.
Sections 238(1) and (3) of the Act
The parties agree and I am satisfied that the provisions of ss.238(1) and (3) of the Act have been met in these matters. None of the parties contested that Tasports and AIMPE are bargaining representatives for a proposed single-enterprise agreement. Further, Tasports and AIMPE have given the relevant written notice to the relevant bargaining representative, given that representative a reasonable time to respond and considers that the relevant bargaining representatives have not responded appropriately.
Section 238(4)(a) of the Act
Tasports does not contest that AIMPE have met, and are meeting, the good faith bargaining requirements as required by s.238(4)(a) of the Act. I have noted the fact that AIMPE refused to attend meetings on 9 November 2016 and 16 December 2016 and have refused to participate in further meetings with the MUA and the AMOU. However, Tasports submit that “Tasports accepted AIMPE’s decision not to participate in these meetings, as parties’ ability to attend or not attend meetings based on relevant concerns allows for efficient bargaining for a single agreement with separate union groups. On this basis, it is not submitted that AIMPE has failed to meet the good faith bargaining requirements”.[57] I agree with this submission and accept that AIMPE has met the good faith bargaining requirements and I am therefore satisfied as to the requirements in s.238(4)(a) of the Act in respect to the AIMPE application.
For their part AIMPE submitted at the hearing that Tasports are not bargaining in good faith, though it was not pressed with a great deal of conviction.[58] However, Tasports submit that they have in fact bargained and are bargaining in good faith as they have:
(a)Organised, attended and participated in five bargaining meetings;
(b)Given constant disclosure that Tasports are bargaining for a single agreement, and not been unfair or capricious about Tasports’ position on this;
(c)Given genuine consideration to proposals from bargaining representatives, responded in a timely manner and given reasons for responses; and
(d)Recognised all bargaining representatives.[59]
It is clear from the evidence that (a), (c) and (d) above have occurred. However, Tasports have not given constant disclosure that they are bargaining for a single agreement. Rather they have issued three NERR’s that say the opposite. The fact that they have done so is not consistent with their stated desire to reach one agreement. References to the NERR as being a technical document are not a satisfactory explanation.[60]
However, I agree with Tasports’ submission that, to conclude that Tasports’ has not met the good faith bargaining requirements I would need to find that this conduct was unfair or capricious.[61] Having considered the evidence of Ms Beltz, I am satisfied that she created the NERR’s inconsistent with Tasports’ stated objective on legal advice. In that context she did not act in a manner that was unfair or capricious. Consequently I do not consider that Tasports acted in an unfair or capricious manner.
I make the observation that while scope is a matter for bargaining, in this case, it is Tasports who initiated bargaining. It was for them to set the scope of the agreement. It is not a case where they agreed to bargain for the proposed scope of the AIMPE agreement. In these circumstances, it is important that the employer accurately and honestly set out the scope of the bargain they intend to reach. However despite this, overall for the reasons given, I am satisfied that Tasports has and is continuing to bargain in good faith.
It is convenient to consider at this point the contention of AIMPE that there is a barrier for approval of a single agreement in circumstances where two NERR’s have been issued which do not indicate the intent of Tasports to bargain for a single agreement. I agree that ultimately, the content of a NERR combined with the factual circumstances surrounding the bargaining, may lead to circumstances where the Commission is not satisfied that there is genuine agreement within the meaning of s.188 of the Act.
However, I agree with Tasports’ submission that this does not impact on the consideration of the requirements in terms of determining what is the more reasonable scope in the circumstances.[62] Section 173 of the Act provides that the notification time for a proposed enterprise agreement is the time when the employer agrees to bargain, or initiates bargaining, for the agreement or when a scope order in relation to the agreement comes into operation (there are also other times which are not relevant to this matter). If I was to make Tasports scope application it would be a matter for Tasports as to whether they chose to rely on the earlier NERR’s issued pursuant to s. 173(4) of the Act or whether they chose to give employees a new NERR not later than 14 days after the scope order came into operation. Any issues that may arise in relation to whether the agreement was genuinely agreed to by the employees would be dealt with in determining the application for approval of an enterprise agreement. I do not consider that speculation of a potential barrier to approval of the agreement that may or may not arise is particularly relevant in this matter in determining the scope order application. Counsel for AIMPE submits that it is relevant to the consideration of the efficiency and fairness of bargaining.[63] However, I do not accept that proposition.
Sections 238(4)(b) - (d) of the Act
S.238 (4)(c) and s.238(4A) of the Act
It is not in contest that the group of employees proposed to be covered by the agreement the subject of the AIMPE scope order is fairly chosen. In respect to the Tasports application, the scope order is to cover all employees of the towage operation and therefore s.238(4A) is not relevant. The remaining issues in these applications centre on the requirements in ss.238(4)(b), and (d) of the Act.
Consideration of ss.238(4)(b) and (d) of the Act
Tasports submit and I agree that the Commission can only make a scope order when the order will promote fairer and more efficient bargaining than is currently occurring.[64] I also agree that different scopes may both allow for fair and efficient bargaining, and the relative degree of fairness and efficiency will be relevant to determining which is accepted.[65] Consideration also needs to be given to what is the most reasonable scope in the circumstances.[66]
Tasports submit that their proposed scope order will result in more fair and efficient bargaining as:
· Bargaining for one agreement is intuitively more efficient than bargaining for two agreements, which involves a degree of duplication of process;
· The bargaining process that occurs is effectively for the same agreement for future conditions, as pay increases and allowances have historically been at parity between the two agreements. It is inefficient to have two separate agreements when in reality increases will be the same;
· Any issues concerning only one group may be dealt with in separate meetings, which would counter any perceived inefficiencies relating to these specific issues;
· Bargaining is currently at a stand-still due to the disagreement over scope, and the Commission is able to ‘break’ an impasse by issuing a scope order in these circumstances;
· The proposed single agreement carries across all existing entitlements from the separate agreements, and classification specific issues will continue to be considered and dealt with through collective bargaining; and
· It is not unusual for different groups with their own self-interests to co-exist in bargaining, and it does not satisfy the test of fairness that a minority would be outvoted unless they have a separate agreement.[67]
AIMPE submit that their proposed scope order will result in fairer and more efficient bargaining as:
· It is efficient for the “fatal error” of the NERR to be addressed via a scope order in the terms sought by the AIMPE;
· Engineers are being prejudiced by the unnecessary delay in finalising an agreement and further that the back pay offer is at risk;
· Engineers have been prepared to finalise an agreement for 6 months and it is unreasonable for the Engineers to continue to wait for that issue to be resolved;
· The fact that Engineers have reached agreement quickly is consistent with the history of past negotiations;
· Tasports are pursuing a “philosophical agenda” as stated by the Tasports representatives in the meeting of 2 June 2016;
· The Tasports situation can be distinguished from that in Svitzer Australia Pty Ltd [[2016] FWCA 794] as the urgency and competitive factors present there are not present in this situation;
· Engineers prefer a standalone agreement so they can avoid disputes that do not concern them; and
· The joint meetings are not progressing towards an efficient or sustainable outcome.[68]
The AMOU broadly supports the position of AIMPE.[69] The MUA did not make submissions in relation to the applications filed by AIMPE and Tasports.
The qualifications issue
The desire to protect qualifications is a key reason advanced by AIMPE in support of their preferred scope. AIMPE submit that a separate agreement for Engineers is more desirable as it is the only way for them to protect their agreement qualifications. AIMPE point to the reference for the trade qualifications for Engineers dropping out of a version of the agreement circulated on 6 January 2017 as demonstrating that there was mischief afoot. However, Ms Beltz was clear in her evidence that this was an error and it was corrected, the text was reinstated and the agreement was redistributed because Tasports had no intention of removing that clause. Mr Niven agreed that the error had been corrected. It is possible that the MUA want to change the reference to qualifications. However, it is also clear that Tasports does not propose to change it. In any case, it is clear that the qualification standards for engineers are regulated by AMSA. The AMSA requirements clearly provide the sort of protection for these qualifications that are of concern to the AIMPE. Regardless, even if there are separate agreements this will not necessarily stop the MUA, if it is their desire, from pursing enhanced opportunities for Deckhands within their own agreement.
Tasports have committed that the proposed single agreement will carry across all existing entitlements from the separate agreements. Further, that classification issues will be dealt with through collective bargaining and any issues concerning only one group of employees can be dealt with in separate meetings. The desire of AIMPE to be “masters of their own destiny” does not make it unfair for them to be part of the broader group.[70]
Having considered the evidence, I am satisfied the qualifications issue can be satisfactorily dealt with under either scope. In that context, consideration of the qualification issue is of no consequence to the efficiency of bargaining. However it is relevant to the issue of fairness. Having accepted the evidence of Tasports that they have no intention of changing the clauses that deal with qualifications and that they are protected and regulated by ASMA, I do not consider that it is unfair to include Engineers in a single agreement. While Tasports would like one agreement in order to deal with their concern about elitist distinctions between classifications and silo effects, there is insufficient evidence that a change to one agreement will alter this, to the extent that it exists. Consideration of this factor does not favour either scope order as fairer than the other as the qualification issue can be dealt with satisfactorily from both parties perspective under either scope.
The views of employees
The views of employees are a relevant consideration.[71] The only evidence of the views of employees is that led by AIMPE. Mr Harris was clear about discussions he had with delegates and that they were clearly in favour of separate agreements.[72] Mr Niven also gave evidence that he had discussions with the membership and the delegates and they were clear that they wanted a separate agreement. The delegates are clearly alive to the fact that this may mean a more generous agreement is reached later for the MUA and the AMOU but that they do not expect (unlike in 2013) that there will be a flow on of any more beneficial outcome achieved.[73]. Other than AMOU as a representative of employees within their coverage, I have no other views of employees. The views of employees that I have before me clearly favour the granting of the scope order sought by AIMPE.
The views of the employer as to why one agreement
I have considered the evidence of Ms Beltz and Mr Johnson as to what is behind Tasports’ desire to reach a single agreement. It is an entirely reasonable position for the company to seek to reach one agreement, given their objective of achieving a “one Tasports” approach. However it is also common ground that 95% of the two current agreements are the same[74] and it is not apparent on the evidence that the current arrangement of two separate agreements has created any particular barrier to them achieving what they want to achieve. In that context it is not apparent that achieving one agreement is necessary to give effect to the company’s desire to achieve the ‘one Tasports’ and associated objectives.
Overall, consideration of the objectives of the cultural changes that Tasports would like to achieve, and the likelihood that would be easier if there were one agreement, favours the scope sought by Tasports as it would promote fairer bargaining.
History of bargaining and current bargaining positions of the parties
Tasports urge me to find that, based on the history of bargaining, that it is likely that one agreement will be reached sooner than otherwise expected.[75] However, the evidence does not support that proposition. The MUA and the AMOU have a long list of matters yet to be resolved. AIMPE in contrast have already reached an agreement, but for scope.
I agree with Tasports’ submission that bargaining for one agreement is generally speaking intuitively more efficient. However, the current factual circumstances suggest that in this case there is little difference in efficiency. Bargaining up until now, took place concurrently and interdependently, the same as it has done in the past where two agreements have been reached. AIMPE are ready to conclude an agreement. They have no particular interest in the on-going matters in dispute.
AIMPE have made clear during these proceedings that they do not and will not seek any flow on of more beneficial entitlements achieved by the MUA and the AMOU in further bargaining. This is a significant commitment and a key consideration in my determination of this matter. If the alternative proposition was in evidence, that is that the previous practice of AIMPE receiving a flow on of better outcomes achieved by the other unions after AIMPE had concluded an agreement continued , this would weigh against a finding that the AIMPE scope would promote the fair and efficient conduct of bargaining.
Conclusion
Having considered all of the evidence in this matter, the decision as to which scope order to grant is finely balanced. The concerns of AIMPE about threats to their qualifications are clearly a key driving force behind their application. However, I am not satisfied that the concerns of the AIMPE about protecting the integrity of their qualifications are a matter that supports the proposition that the AIMPE scope order will necessarily promote fairer and more efficient conduct of bargaining. Nor is the desire of AIMPE to be masters of their own destiny a factor in support of their preferred scope.
Tasports have a desire to achieve a “one Tasports” culture and associated matters. While it is likely that this could be achieved even with the scope order sought by AIMPE, it is likely to be easier to achieve and in that sense promote fairer and more efficient bargaining if the scope order sought by Tasports is granted.
I have little before me on the views of employees other than the evidence of AIMPE. This is a relevant factor and the evidence I have on the views of employees is a factor which weighs in favour of granting the AIMPE application.
It appears there is common ground that AIMPE has been an efficient bargaining representative, as has the AMOU and that bargaining with the MUA has been, at least, less than efficient. AIMPE have reached agreement with Tasports on all matters save for scope, including wages, and will importantly have undertaken not to seek flow on of any future outcome of an MUA/AMOU agreement, if the terms are superior. The clear evidence of the AIMPE leadership is that this will not happen. Against the background of the bargaining to date, it is apparent one effect of granting the scope order sought by Tasports will be to compel AIMPE, who are ready to conclude an agreement subject to scope, back into a bargaining arrangement with parties considered by all to be not bargaining efficiently.
This decision, as I said earlier, is one that is finely balanced. Having considered all of the evidence, I am satisfied that making the scope order sought by AIMPE, will promote the fair and efficient conduct of bargaining. I am also satisfied that making the scope order sought by Tasports will promote the fair and efficient conduct of bargaining. However, on balance, I am satisfied that making the scope order sought by AIMPE will better promote the fair and efficient conduct of bargaining.
I am satisfied it is reasonable in all the circumstances to grant the scope order sought by AIMPE. The making of a scope order will break the current deadlock in bargaining. I am not satisfied it is reasonable in all the circumstances to make the scope orders sought by Tasports. I am satisfied the scope order sought by AIMPE will better promote the fair and efficient conduct of bargaining.
In light of the fact the jurisdictional pre-requisites for the scope order applications have been met and having regard to my satisfaction in respect of the matters in s.238(4) of the Act, I will order that there be two agreements, one that covers employees who are employed at Tasports covering employees in Engineering roles on Tasports floating plant as classified in the Tasports Towage Enterprise Agreement 2013 – AIMPE and one that covers employees who are employed at Tasports covering employed in Tug Master and Deckhand roles on Tasports floating plant as classified in the Tasports AMOU and MUA Enterprise Agreement 2013.
An order, in the terms sought, will be issued concurrently with this decision.
COMMISSIONER
Appearances:
R Collinson for Tasmanian Ports Corporation Pty Ltd T/A Tasports
B Cross for The Australian Institute of Marine and Power Engineers and The Australian Maritime Officers’ Union
Hearing details:
2017.
Hobart:
4 April.
Final written submissions:
3 April 2017.
[1] AE406897
[2] AE407979
[3] Exhibit T2, Witness Statement of Matthew Johnston, [7] – [9]
[4] Exhibit A1, Witness Statement of Nathan Niven , [5]
[5] Exhibit T1, Witness Statement of Belinda Beltz, [10]
[6] PN219-PN223, PN292 and PN419
[7] Exhibit A1, Witness Statement of Nathan Niven , [6] – [7]
[8] PN85
[9] PN115
[10] Exhibit T1, Witness Statement of Belinda Beltz, [12], Attachment A
[11] Exhibit T1, Witness Statement of Belinda Beltz, [13], Attachment B
[12] PN755
[13] Exhibit T1, Witness Statement of Belinda Beltz, [16], Attachment C
[14] Exhibit A1, Witness Statement of Nathan Niven, [13]
[15] Exhibit A1, Witness Statement of Nathan Niven, [14]
[16] Exhibit T1, Witness Statement of Belinda Beltz, [17]
[17] Exhibit A1, Witness Statement of Nathan Niven, [15]
[18] Exhibit A1, Witness Statement of Nathan Niven, [19] Attachment NN6
[19] Exhibit A1, Witness Statement of Nathan Niven, [21], Attachment NN7
[20] Exhibit A1, Witness Statement of Nathan Niven, [22], Attachment NN8
[21] Exhibit A1, Witness Statement of Nathan Niven, [23]
[22] Exhibit A1, Witness Statement of Nathan Niven, [29] Attachment NN11
[23] Exhibit T1, Witness Statement of Belinda Beltz, [18], Attachment D
[24] PN736, PN746 and PN759
[25] PN986
[26] Exhibit T1, Witness Statement of Belinda Beltz, [19], Attachment E
[27] Exhibit A1, Witness Statement of Nathan Niven, [30]
[28] PN537 - PN538
[29] Exhibit A1, Witness Statement of Nathan Niven, [32], Attachment NN14
[30] Exhibit T1, Witness Statement of Belinda Beltz, [21]
[31] Exhibit A1, Witness Statement of Nathan Niven, [35] – [36]
[32] Exhibit A1, Witness Statement of Nathan Niven, [37]
[33] Exhibit T1, Witness Statement of Belinda Beltz, [24]
[34] Exhibit A1, Witness Statement of Nathan Niven, [39]
[35] PN630
[36] PN256-PN258
[37] Exhibit T1, Witness Statement of Belinda Beltz, [26]
[38] Exhibit T1, Witness Statement of Belinda Beltz, [27]
[39] Exhibit T1, Witness Statement of Belinda Beltz, [29]
[40] Exhibit T1, Witness Statement of Belinda Beltz, [30], Attachment N
[41] Exhibit A3, Witness Statement of Peter Harris, [32] and Outline of Submissions of The Australian Institute of Marine and Power Engineers, dated 10 February 2017, [45]
[42] Exhibit T3, Email exchange in paragraph 63 to 80 of the Court Book, at page 67 -69
[43] PN575 - PN577
[44] PN571
[45] PN643
[46] PN641
[47] PN854
[48] PN899
[49] Exhibit T2, Witness Statement of Matthew Johnston, [12]
[50] PN827
[51] PN748 – PN749
[52] Exhibit T1, Witness Statement of Belinda Beltz, [34] and Exhibit T2, Witness Statement of Matthew Johnston, [14] – [15]
[53] Exhibit T1, Witness Statement of Belinda Beltz, [31]
[54] Exhibit A3, Witness Statement of Peter Harris, [27]
[55] PN248 - PN249
[56] PN253 - PN254
[57] Outline of the Tasports’ Submissions and Outline of Response, dated 3 March 2017, [15]
[58] PN128-PN132 and PN1025 – PN1026
[59] Outline of the Tasports’ Submissions and Outline of Response, dated 3 March 2017, [12]
[60] PN1154
[61] PN1156 – PN1158
[62] PN1169
[63] PN1019
[64] The Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd[2014] FWCFB 1476, [23]
[65] [2014] FWCFB 1476, [24]
[66] PN112
[67] Outline of the Tasports’ Submissions and Outline of Response, dated 3 March 2017, [18]
[68] Outline of Submissions of The Australian Institute of Marine and Power Engineers, dated 10 February 2017, [39] - [46]
[69] Outline of Submissions of The Australian Maritime Officers’ Union, dated 24 March 2017
[70] The Australian Maritime Officers’ Union v Harbour City Ferries[2015] FWC 8003, [94]
[71] United Firefighters Union of Australia v Metropolitan Fire & Emergency Services Board[2010] FWAFB 3009
[72] PN386
[73] PN284 – PN292
[74] PN584, PN784 and PN1266
[75] PN1198
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