Australian Maritime Officers' Union, The v Fremantle Port Authority
[2024] FWC 988
•17 JUNE 2024
| [2024] FWC 988 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.238 - Application for a scope order
Australian Maritime Officers' Union, The
v
Fremantle Port Authority
(B2024/56)
| DEPUTY PRESIDENT BINET | PERTH, 17 JUNE 2024 |
Application for a scope order - Fremantle Port Authority – Application refused
The Australian Maritime Officers Union (AMOU) has filed an application (Application) pursuant to section 238 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC). The Application seeks a scope order in relation to bargaining for an agreement to cover employees of the Fremantle Ports Authority (Port Authority) currently covered by the Fremantle Ports Marine Services Enterprise Agreement 2020 (2020 Agreement).
The 2020 Agreement covers employees of the Port Authority in the classifications of Small Craft Master (SCM) and Vessel Traffic Service Officer (VTSO).[1] Bargaining for an agreement to replace the 2020 Agreement (Replacement Agreement) commenced with the issuing of a Notice of Employee Representation Rights (NERR) by the Port Authority to employees covered by the 2020 Agreement (Employees). The AMOU seek an order that the VTSOs are excluded from the scope of employees covered by the Replacement Agreement.
On 8 February 2024, the parties participated in a conciliation, but the issues in dispute could not be resolved.
Directions for the filing of materials in advance of a hearing were issued to the parties on 12 December 2023 and amended on 18 January 2024 (Directions). The Application was listed for hearing in person in Perth on 19 April 2024 (Hearing).
Permission to be represented
The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[2]
Both parties sought permission to be represented at the Hearing.
Having considered the submissions of the parties, leave was granted to both parties to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
At the Hearing Mr Luke Tiley (Mr Tiley) a solicitor employed by Hall Payne Lawyers appeared on behalf of the AMOU and Mr Leigh Howard (Mr Howard) of Counsel appeared on behalf of the Port Authority.
Evidence
In advance of the Hearing the AMOU filed witness statements of the following witnesses setting out their evidence in chief:
- Mr Glen Adrian Walsh (Mr Walsh) – Mr Walsh is a Senior Industrial Officer employed by the AMOU representing both VTSOs and SCMs. Mr Walsh provided two statements in these proceedings.[3]
- Mr Michael Vickery (Mr Vickery) – Mr Vickery is employed by the Port Authority as a VTSO. He was appointed as a delegate of the AMOU earlier this year. He attended a bargaining meeting in December as a representative of his workgroup. He has not attended any meeting since.[4]
- Mr Giovanni Germinario (Mr Germinario) – Mr Germinario is employed by the Port Authority as a VTSO. He was appointed as a delegate of the AMOU after the Application was filed. He has not yet attended any bargaining meeting.[5]
At the Hearing Mr Walsh corrected a typographical error in his reply witness statement. Mr Germinario, Mr Vickery and Mr Walsh were cross examined by Mr Howard.
In advance of the Hearing the Port Authority filed witness statements of the following witnesses setting out their evidence in chief:
- Mr Gavin Greck (Mr Greck) – Mr Greck is employed by the Port Authority as the Employee Services Manager. He has been employed by the Port Authority in employee relations roles since 1987.[6]
- Mr Rob Sharland (Mr Sharland) – Mr Sharland is employed by the Port Authority as the Employee Relations Business Partner.[7]
- Mr Savio Fernandes (Mr Fernandes) – Mr Fernandes is employed by the Port Authority as the Harbour Master.[8]
Mr Sharland gave additional oral evidence in chief. Mr Sharland, Mr Greck and Mr Fernades were cross examined at the Hearing by Mr Tiley.
The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties which was admitted at the Hearing and marked as Exhibit DCB (DCB).
Written closing submissions were filed by the AMOU on 3 May 2024 and 16 May 2024 and the Port Authority on 13 May 2024.
In reaching my decision I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
Background
The Port Authority is a Government Trading Enterprise responsible to the Minister for Ports. Its statutory functions under the Act are:[9]
a.to facilitate trade within and through the port and plan for future growth and development of the port;
b.to undertake or arrange for activities that will encourage and facilitate the development of trade and commerce generally for the economic benefit of the State through the use of the port and related facilities;
c.to control business and other activities in the port or in connection with the operation of the port;
d.to be responsible for the safe and efficient operation of the port;
e.to be responsible for maintaining port property;
f.to be responsible for port security; and
g.to protect the environment of the port and minimise the impact of port operations on that environment.
The Port Authority operates the Inner Harbour and Outer Harbour:[10]
a.The Inner Harbour operates 24 hours per day and services the maritime trade. It is the fourth largest container Port in Australia (by total export unit volume).
b.The Outer Harbour also operates 24 hours per day and consists of the Kwinana Bulk Jetty and Kwinana Bulk Terminal.
The Port Authority employs both VTSOs and SCMs in its marine services operations.[11] The role of the marine services operations is to ensure the safe navigation of vessels in and out of the Inner and Outer Harbours. The Port Authority currently employs 11 VTSOs and 16 SCMs.[12]
SCMs skipper small vessels necessary for the Port Authority to perform its various duties. Core functions of the SCMs include waterborne pilot transfers and emergency response, assisting navigational aid maintenance, mooring line handling and general harbour activities ashore and afloat. The SCMs also conduct marine security patrols and complete hydrographic surveys to view harbour levels. When not in small craft vessels the SCMs are located near the river’s edge to facilitate their swift mobilisation. SCMs are required to hold a Master (< 45 metres - Near Coastal) Certificate and a Marine Engine Driver Grade 1 near coastal Certificate.[13]
VTSOs are responsible for monitoring and directing all vessel traffic within waters in the control of the Port Authority including the movement of the SCMs. This includes the VTSOs co-ordinating pilot transfers conducted by the SCMs. The VTSOs perform their duties from Port Authority buildings where they have an aerial view of the Port. VTSOs are required to hold a C0103-1 VTS Operator Certificate and have completed on the job training.[14]
The SCMs a nd VTSOs work with each other on a daily basis.[15]
The SCMs report to a Team Leader who reports to the Deputy Harbour Master. The VTSOs report to the Deputy Harbour Master. Both VTSOs and SCMs are rostered on 12 hour shifts to ensure 24 hour operational coverage.[16]
It is considered desirable by the Port Authority for a VTSO to have a SCM background with experience in radio communications. Historically SCMs have transitioned to VTSOs.[17]
The VTSOs and the SCMs are currently covered by the 2020 Agreement. The SCMs and VTSOs are also covered by the Port Authorities Award 2020 (Award).[18]
The work performed by the VTSOs and the SCMs has been continuously covered by a single enterprise agreement since 1999.[19] The prospect of separate enterprise agreements for the two classifications has only been considered once in the past 25 years and only briefly.
Bargaining for the enterprise agreements covering the two classifications during this period appears on the evidence to have proceeded efficiently and effectively with replacement agreements commencing operation seamlessly with the expiry of the previous agreement:[20]
a.the 2005 Agreement operated between 20 January 2005 and 30 July 2009;
b.the 2008 Agreement operated between 31 July 2009 and 1 March 2012;
c.the 2012 Agreement operated between 2 March 2012 and 28 March 2016;
d.the 2015 Agreement operated between 29 March 2016 and 25 March 2020; and
e.the 2020 Agreement commenced operating on 26 March 2020 and notionally expired on 19 March 2024.
The historic enterprise agreements and the 2020 Agreement contain a large number of terms applying to both SCMs and VTSOs. Differences between the groups have been dealt with by dedicated clauses. For example, the 2020 Agreement has terms applying to both groups dealing with the purpose and work organisation (Parts 2 and 3), pay arrangements (Part 4), leave (Part 5 and Schedule 2), and employment levels and redundancy (Schedule 1) and dedicated provisions for SCMs and VTSO’s in Parts 6 and 7 of the 2020 Agreement.[21]
The AMOU has coverage of both SCMs and VTSOs, and as such, has represented the industrial interests of both groups during this 28-year period.
In August 2023, a number of VTSOs informed the Port Authority that they wished to have their own single enterprise agreement and provided the Port Authority with written reasons why. The document provided by the VTSOs to the Port Authority inter alia identified differences between the qualifications and duties of VTSOs and SCMs and set out the benefits the VTSOs believed could be gained by separate agreements.[22]
During September 2023, the Port Authority held several discussions with the VTSOs in relation to their wish to be covered by a different agreement to the SCMs. Ultimately the Port Authority concluded that its preference was to retain the scope of the 2020 Agreement and encouraged the VTSOs to make a scope application once bargaining had commenced if they still wished to pursue a separate agreement.[23]
On 27 October 2023, the Port Authority issued the NERR to commence bargaining for a single agreement to cover the VTSOs and SCMs to replace to the 2020 Agreement.[24]
Mr Walsh says he was informed by the VTSOs members of the AMOU in November 2023 that they wish to be covered by a separate agreement and that he conveyed this information to the Port Authority prior to the issuing of the NERR. However, I note that the NERR was issued in October 2023.[25]
The nominal expiry date of the 2020 Agreement is 19 March 2024.[26]
Following the issuing of the NERR the AMOU, the Port Authority and Mr Kevin Sneddon (an independent bargaining representative engaged by the Maritime Union of Australia) (Mr Sneddon) became the bargaining representatives for the Replacement Agreement.[27] The AMOU are the default bargaining representatives for the VTSOs and the SCMs. Mr Sneddon represents one or more SCMs. The parties had proceeded on the basis Mr Peter Fellows (Mr Fellows), a SCM, was also a validly appointed as a bargaining representative. It became apparent on 17 April 2024 via a Notice to Produce that Mr Fellows was not validly appointed as a bargaining representative.[28] The AMOU is represented at the bargaining meetings by Mr Walsh and the Port Authority by Mr Griffith.
On 7 December 2023, the first bargaining meeting for the Replacement Agreement was held, with the AMOU, the Port Authority, Mr Sneddon, and Mr Fellows in attendance.[29] Mr Walsh attended the meeting on behalf of the AMOU and indicated at the meeting that the AMOU sought a separate agreement for the VTSOs.[30] The Port Authority indicated that its preference was for a single agreement as had historically been the case.
Mr Sharland attended the meeting as a part of the Port Authority bargaining team. Mr Sharland says that Mr Walsh stated that the AMOU would not continue to participate in bargaining until it had made an application for a scope order for a separate agreement for the VTSOs. Mr Sharland says that after the meeting Mr Sneedon indicated to him that the SCMs did not support a change in scope and that Mr Sneddon would try to work behind the scenes to convince Mr Walsh not to press a change in scope.[31]
On 18 December 2023, the Port Authority emailed the AMOU asking when the scope application would be lodged so that a date could be set for the next bargaining meeting. The AMOU responded the same day confirming that the scope application would be filed that week.[32]
On 19 December 2023, the Port Authority sent an email to the SCMs and VTSOs providing a summary of the first bargaining meeting explaining that the AMOU had refused to provide a log of claims pending the AMOU making a scope application for separate agreements for the VTSOs and SCMs.[33]
On 20 December 2023, AMOU met with its VTSO members to discuss their log of claims and the outcome of the first bargaining meeting.
On 22 December 2023, the Port Authority sent an email to organise the second bargaining meeting and requested that a log of claims be presented at this meeting. The email acknowledged that the AMOU had indicated that it intended to make a scope application, but expressed the view that this should not prevent the bargaining proceeding in the interim.[34]
On 2 January 2024, the Port Authority sent an email calendar invite to the AMOU and the other bargaining representatives proposing a bargaining meeting on 11 January 2024 and requested that each representative be prepared to present their log of claims at this meeting.[35]
On 2 January 2024, the AMOU provided a notice of concern to the Port Authority (AMOU Notice of Concern).[36] The AMOU Notice of Concern asserted that the negotiations for the Replacement Agreement were not proceeding in a fair and efficient manner because the Port Authority had declined to exclude the VTSOs from the scope of the Replacement Agreement. The AMOU argued that it was not appropriate that the Replacement Agreement cover the VTSOs because:[37]
a.the VTSOs and SCMs had expressed a desire to have separate agreements;
b.separate agreements would be less complex to negotiate, and they would only need to accommodate the interests of one group of employees; and
c.The scope of the Replacement Agreement is not fairly chosen.
The AMOU Notice of Concerns sought a reply from the Port Authority by close of business ‘16 January 2023’.[38] This was presumably a typographical error.
On 4 January 2024, Mr Griffith spoke with Mr Walsh by telephone to enquire about the AMOU’s intention for bargaining. Mr Sharland overheard the conversation. Mr Sharland recalls Mr Grifith asking Mr Walsh to attend the 11 January 2024 bargaining meeting and present a log of claims so that bargaining was not delayed pending the resolution of the issue of the scope of the Replacement Agreement.[39]
On 8 January 2024, the Port Authority provided a response to the AMOU’s Notice of Concern (Port Authority Response Letter).[40] In its response the Port Authority explained that it believed it was not appropriate to alter the coverage of the Replacement Agreement given the 25 year history of the two groups being covered by the same agreement without operational issue or concerns being raised by the AMOU, Employees or the Port Authority. The Port Authority suggested that the parties discuss the scope of the agreement in future bargaining meetings, pointing out that given that there had only been one meeting to date, it was premature to assert that the bargaining process was unfair or not proceeding efficiently. The Port Authority noted that the AMOU had declined to attend the bargaining meeting scheduled for 11 January 2024 and encouraged the AMOU to attend the rescheduled meeting on 17 January 2024 to provide its log of claims.[41]
On 9 January 2024, consistent with what had been foreshadowed in the Port Authority Response Letter, the Port Authority sent a calendar update rescheduling the second bargaining meeting for 17 January 2024.[42]
On 10 January 2024, the AMOU indicated, without explanation, that it would not attend the bargaining meeting rescheduled to 17 January 2024.[43]
As it appeared to the Port Authority that the AMOU would not engage in bargaining on 11 January 2024, the Port Authority provided the AMOU with a notice of concerns in relation to good faith bargaining (Port Authority Notice of Concerns).[44] In that correspondence the Port Authority expressed concern that the AMOU had declined multiple invitations to a second bargaining meeting and had not yet provided a log of claims. The Port Authority Notice of Concerns sought a reply from the AMOU by 15 January 2024.[45]
On 12 January 2024, the AMOU provided a response to the Port Authority Notice of Concerns.[46] The AMOU asserted that their refusal to attend the scheduled bargaining meetings was because the dates for the bargaining meetings had been set without regard to the AMOU’s availability. Notwithstanding this explanation, in its response the AMOU went on to reiterate that:[47]
“AMOU will not resume bargaining with the FPA for a single enterprise agreement until the current dispute in relation to the amended scope is resolved.”
Mr Walsh says that he met with Mr Sneddon on 16 January 2024 to discuss Mr Sneddon’s views about the AMOU Notice of Concerns. Mr Walsh says that Mr Sneddon indicated that the SCMs he represented were not opposed to the AMOU seeking the Scope Order, however they wished to continue bargaining.[48]
Mr Walsh says that on the same day he and Mr Sneddon met with the SCMs and produced a log of claims on behalf of the SCMs.[49]
On 17 January 2024, Mr Sneddon emailed the Port Authority a log of claims for the SCMs dated 16 January 2024 (SCM Log of Claims).[50] At the second bargaining meeting held later the same day the AMOU confirmed that they endorsed the SCM Log of Claims but declined to provide a log of claims for the VTSO or bargain in relation to the VTSOs.[51]
On 19 January 2024, the Port Authority sent an email to the bargaining representatives with a summary of the second bargaining meeting.[52]
On 24 January 2024, the AMOU filed the Application with the FWC.[53]
On 1 February 2024, the Port Authority sent an email to VTSOs to provide an update on bargaining. This email stated that the SCMs had submitted their log of claims and are bargaining but that the AMOU has declined to submit the VTSO log of claims, which made it difficult to progress bargaining. The email also notes that the next bargaining meeting was scheduled for 9 February 2024.[54]
On 8 February 2024, the Conference was held.[55] At the Conference the parties agreed to adjourn the Application, to determine whether it was possible to segregate the VTSO claims from the SCM's claims and bargain concurrently.[56]
Following the Conference:
a.on 12 February 2024, the AMOU provided a log of claims relating to the VTSOs (VTSO Log);[57] and
b.on 13 February 2023, the AMOU and the Port Authority attended a meeting.
Mr Walsh made it clear that the VTSO Log was only provisional, he would not discuss the individual claims and would not proceed with bargaining unless the Port Authority agreed that the VTSOs would be covered by a separate agreement.[58]
On 15 February 2024, the Port Authority endeavoured to arrange a fourth bargaining meeting however the AMOU declined the invitation and informed the Port Authority that:[59]
“the AMOU will no enter into any bargaining for VTSO employees until the live Scope Application before DP Binet is resolved.”
On 20 February 2024, the Port Authority provided the AMOU with a notice of concerns in relation to good faith bargaining (Port Authority Second Notice of Concerns).[60] The notice set out the Port Authority’s concern that bargaining for both the VTSOs and the SCMs was being adversely impacted by the AMOU refusing to attend any bargaining meetings. The Port Authority also expressed concern that the VSO Log lacked sufficient detail. The Port Authority sought a response from the AMOU by 22 February 2024, including confirmation that the AMOU would attend the next bargaining meeting scheduled for 26 February 2024.[61]
On 20 February 2024, the AMOU provided the Port Authority with a formal response to the Port Authority Second Notice of Concerns and invited the Port Authority to seek bargaining orders.[62] The AMOU confirmed that it would not continue to bargain for the VTSOs until the Application was determined but would attend the scheduled 26 February 2024 meeting to bargaining in relation to the SCMs.[63]
On 23 February 2024, the Port Authority emailed all employees to provide an update on bargaining, inviting VTSOs to provide a log of claims, and to continue bargaining for the Replacement Agreement.[64] In its correspondence the Port Authority indicated that it was open to holding separate bargaining sessions for the VTSOs and the SCMs.[65]
On 23 February 2024, the AMOU emailed the Port Authority in relation to the Port Authority’s email to all employees, noting their concerns to the Port Authority’s earlier email.[66]
On 26 February 2024, prior to the fourth bargaining meeting, the AMOU met with the Port Authority to reiterate the content of the AMOU’s email to the Port Authority dated 23 February 2024.[67]
On 26 February 2024, a fourth bargaining meeting for the Replacement Agreement was held.[68] Mr Walsh refused to discuss claims for VTSOs. The majority of the meeting thus involved discussion of the SCM Log.[69]
There has been no further bargaining since the fourth bargaining meeting.[70]
There have been no other applications filed with FWC concerning the Replacement Agreement or the Replacement Agreement.[71]
Consideration
The FW Act relevantly provides as follows:
“238 Scope orders
Bargaining representatives may apply for scope orders
(1) A bargaining representative for a proposed single - enterprise agreement (other than a greenfields 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.
(2) Despite subsection (1), a bargaining representative may not apply to the FWC for a scope order in relation to a proposed single - enterprise agreement if:
(a)a single interest employer agreement or a supported bargaining agreement applies to one or more employees who will be covered by the proposed single - enterprise agreement; and
(b)the single interest employer agreement or supported bargaining agreement has not passed its nominal expiry date.
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.”
If the preconditions set out in sub sections 238(1)-(3) of the FW Act are met, the FWC has the discretion to make an order after taking into account the factors outlined in subsections 238(4)(a)-(d) – 238(4A).
Does the AMOU have standing to make the Application?
There is no dispute that the AMOU is a bargaining representative for the Replacement Agreement and that it has concerns that the bargaining is not proceeding fairly because it considers that the Replacement Agreement will cover employees that it is not appropriate for the Replacement Agreement to cover.[72]
The parties agree that:[73]
a.the Replacement Agreement is a single enterprise agreement and is not a greenfields agreement; and
b.there is no single interest employer authorisation in operation.
There is no dispute that the AMOU has given written notice to the Port Authority by way of the AMOU Notice of Concerns setting out the AMOU’s concerns that the bargaining is not proceeding fairly because the Replacement Agreement will cover the VTSOs which the AMOU considers not appropriate for the Replacement Agreement to cover.
In the AMOU Notice of Concerns, the AMOU provided the Port Authority with a date by which to respond to the AMOU’s concerns. Presumably the date provided was a typographical error. Whether or not this voided the effect of the notice was not raised by the Port Authority. It is not necessary for me to decide this because of the conclusions I have reached below.
There is no dispute that the AMOU believes the Port Authority’s response in declining to agree to exclude the VTSOs from the scope of the Replacement Agreement was not appropriate.
The AMOU Notice of Concern was provided to the Port Authority on 2 January 2024. The Application was made on 24 January 2024. The AMOU Notice of Concern was not addressed to Mr Sneddon and did not invite comment from Mr Sneddon, however Mr Sneddon was copied into the email to which the AMOU Notice of Concern was attached.
The Port Authority submits that the AMOU does not have standing to make the Application because the AMOU Notice of Concern was not addressed to Mr Sneddon and did not invite comment from Mr Sneddon.
The AMOU concede that it was aware that Mr Sneddon was a bargaining representative for the Replacement Agreement at the time it issued the AMOU Notice of Concerns to the Port Authority. However, the AMOU submits that Mr Sneddon was not a ‘relevant bargaining representative’ for the purposes of subsection 238(3) because ‘the proposed scope order does not affect the interests of the SCMs in his cohort’[74]. The AMOU also submits that it was not reasonable for it to provide the notice to Mr Sneddon because its concerns were not about the conduct of Mr Sneddon, Mr Sneddon could not resolve the AMOU’s concerns, and Mr Sneddon supported the AMOU’s desire for separate agreements.
Subsection 238(3) of the FW Act requires the applicant bargaining representative to provide written notice to the “relevant” bargaining representatives as a distinguishable subset of bargaining representatives.[75]
The purpose of the notice is to test whether, before the application is made to the FWC for orders, the conduct which is the source of the concerns can be rectified by the reasonable endeavours of the bargaining representatives themselves, in a manner that conforms to the good faith bargaining process.[76]
In AMIEU v WoolworthsLtd[77] Senior Deputy President Richards expressed the view that the phrase ‘relevant bargaining representatives’ extends ‘at least’ to those bargaining representatives who are complicit (directly or indirectly) in the “concerns” which have been the subject of the written notice under s.238(3) of the FW Act.[78] While he was careful not assert that ‘relevant bargaining representatives’ was limited only to bargaining representatives that are complicit (directly or indirectly) in the ‘concerns’, the Senior Deputy President was prepared to exclude bargaining representatives whose identity and interests for all practical purposes submerged with the bargaining parties upon whom notice was served. In that case he was satisfied that a subsidiary of the employer upon whom the notice was served and a union who had not actively participated in the bargaining but had simply adopted the log of claims of another union need not separately be served with the notice of concerns. [79]
The concerns raised by the AMOU in the AMOU Notice of Concern were that the bargaining was not proceeding efficiently and fairly because the Port Authority wanted to retain the historical scope of agreements covering the VTSOs and SCMs and wanted to continue to bargain with VTSOs and SCMs collectively.[80]
The AMOU did not call Mr Sneddon as a witness to give evidence.
There is no direct evidence of Mr Sneddon expressing or demonstrating a resistance to bargaining for a single agreement nor a resistance to continuing to bargain while the question of scope was resolved. In fact, the evidence of Mr Walsh is that Mr Sneddon indicated to him that the Employees he represented wanted bargaining to continue whilst the Application was determined.[81] In a subsequent witness statement Mr Walsh says that Mr Sneddon informed the Port Authority that his members supported the Application,[82] however this is not consistent with evidence of Mr Sharland or consistent with Mr Sneddon’s lack of involvement in these proceedings.[83]
By continuing to participate in the bargaining for a single agreement arguably Mr Sneddon was engaging in (or complicit in) the type of conduct engaged in by the Port Authority which was the subject of the Notice of Concerns.
Further, there is no evidence of the ‘submergence’ of the identity and interests of those employees Mr Sneddon represents with either the identity or interests of the AMOU or the Port Authority. In fact, it is the evidence of the AMOU witnesses that the VTSO and SCMs have very different and potentially conflicting interests. Furthermore, it may arguably be to the industrial advantage of Mr Sneddon’s members not to have separate agreements because the participation of the VTSOs in protected action in support of an agreement covering the SCMs would increase the pressure on the Port Authority to concede to the SCMs claims.
Mr Sneddon has not separately sought a scope order, chose not to be joined to this Application, chose not to give evidence in support of the AMOU in these proceedings and chose not to attend or otherwise participate in the proceedings other than to attend the Conference which he was directed to attend..
The AMOU says that in any event Mr Sneddon was provided with the AMOU Notice of Concern by being copied in on the email to the Port Authority which attached the AMOU Notice of Concern and that Mr Sneddon discussed his views about the AMOU Notice of Concern with Mr Walsh on 16 January 2024 before the Application was filed.[84]
In AMEIU v Woolworths Limited[85] copying a bargaining representative in to a notice addressed to another bargaining representative was held not to satisfy the requirements of s.238(3).[86]
Section 238(3) requires the giving of written notice. The AMOU Notice of Concern was not addressed to Mr Sneddon did not invite comment from him and did not provide a timeframe for such comment. The AMOU concede that Mr Sneddon was never separately given his own notice.[87] Mr Walsh’s discussions with Mr Sneddon if they occurred were verbal not written.
There is no equivalent provision in section 238 of the FW Act to subsection 228(5) of the FW Act, which vests a discretion in the FWC to consider an application for bargaining orders, even though there has been no compliance with subsections 228(4)(b) and (c) of the FW Act in relation to written notice provisions and the time in which to respond.
The lack of strict compliance with the requirements of s.238(3) of itself arguably forms the basis for the dismissal of the application, however in abundance of caution, given this matter has been fully heard and that the substantive matter will remain in contest once the AMOU, if it was inclined, remedied the deficiency, I have considered the merits of the Application below.
Has the AMOU met and is the AMOU meeting the good faith bargaining requirements?
The Port Authority submit that the AMOU is not meeting the good faith bargaining requirements because the AMOU:
a.has refused and is refusing to attend and participate in bargaining meetings.
b.has refused and is refusing to disclose relevant information, in the first instance the VTSO log of claims and subsequently the details of those claims.
The good faith bargaining obligations are set out in section 228 of the FW Act:
“s.228 Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a)attending, and participating in, meetings at reasonable times;
(b)disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c)responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d)giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;
(e)refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f)recognising and bargaining with the other bargaining representatives for the agreement.
Note: See also section 255A (limitations relating to greenfields agreements).
(2) The good faith bargaining requirements do not require:
(a)bargaining representative to make concessions during bargaining for the agreement; or
(b)a bargaining representative to reach agreement on the terms that are to be included in the agreement.”
In support of its assertion that it has met the good faith bargaining requirements the AMOU say that it has:
a.“…continually addressed the Respondents requests during bargaining, attended bargaining meetings, worked with the other bargaining representatives, provided SCMs log of claims, and provided VTSOs scope claim”; and
b.“…has also worked hard to bring this matter as quickly as we could before the Commission, while maintaining our good faith bargaining requirements.”
However, these assertions are not sustainable on the evidence. The AMOU has repeatedly declined to attend bargaining meetings. [88] The AMOU has retrospectively tried to characterise this refusal as a question of availability but that is inconsistent with the evidence. On each occasion that the AMOU declined an invitation to attend a scheduled bargaining meeting they did not provide an alternative date as might be expected if availability were the issue. Furthermore, the AMOU did not provide an explanation for the refusal to attend at the relevant time, other than to unequivocally state that they would not resume bargaining until their concern about the scope of the Replacement Agreement was resolved. [89]
The AMOU only provided the VTSO log of claims when recommended to do so by the FWC. Mr Walsh’s evidence in cross examination was that he had no intention of bargaining with respect to or providing additional details of the VTSO log of claims. His evidence is that he provided the VTSO Log of Claim only on the basis that the Port conceded to his scope request and that he had no intention of progressing bargaining if the Port Authority did not.[90]
The AMOU has declined the Port Authority’s offer to hold separate bargaining meetings for issues relating solely to VTSOs or SCMs to discuss cohort specific issues.
At the two meetings that the AMOU has attended, the AMOU have refused to discuss the VTSOs log of claims other than in relation to scope.
The AMOU have not as they claim acted expeditiously in prosecuting the scope application. Notwithstanding threatening to make a scope application on 7 December 2023 the AMOU did not actually file the Application until 24 January 2024. In its defence the AMOU says that it was awaiting the Port Authority making an application for bargaining orders. However, such an application is not necessary or relevant to the AMOU pursuing this Application.
The AMOU in effect argues it is excused from the good faith bargaining requirement to attend and participating in bargaining meetings because it would require it to make a concession or reach an agreement of the nature contemplated by s.288(2). The AMOU have not made such a case out on the evidence.
The AMOU has no need to make any concession in relation to scope in order to progress bargaining.
The Port Authority has consistently acknowledged that the AMOU is seeking a different scope. Both the Port Authority and Mr Sneddon have been prepared to continue bargaining while the issue of scope is resolved.
The AMOU could have approached the task of bargaining on the basis that it would succeed in the scope application and informed the other parties that it reserved the right to alter its position if concessions were necessary if it did not secure the scope it desired. Alternatively, the AMOU could have put alternative positions in the event of scope being determined in its favour or against. Instead like some petulant teen the AMOU have refused to bargain at all unless the Port Authority conceded to its request. Meanwhile, both the SCM cohort and the VTSO cohort have had the resolution of all of their claims (not only scope) unnecessarily and unduly delayed.
Will making the order sought by the AMOU promote the fair and efficient conduct of bargaining?
In United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board,[91] the Full Bench stated:
“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.”
The premise that a scope order can only be made if otherwise the scope of the agreement would be “unfair” was dismissed by the Full Bench in UFU v MFESB:[92]
“That submission must be rejected. It involves adding an additional requirement to those specified in ss.238(4)(a)(b) and (c). If two parties to an application for a scope order advance alternative positions neither of which is objectively unfair but the tribunal is satisfied of the relevant matters and is disposed to make an order, it would be an error not to do so.”
The AMOU submit that it would be fairer to allow the VTSOs to have a separate agreement because that is what the VTSOs want and that the VTSOs’ ‘voice’ or bargaining power is overwhelmed numerically by the SCMs.
I note that the AMOU have not led direct evidence of the views of the majority of the VTSOs[93], for example by providing statutory declarations from the VTSOs or petitions supported by a statutory declaration, as is commonly the case in majority support determinations to evidence the views of employees.
The AMOU have not identified in the outcomes of the last 25 years of bargaining what ways the VTSOs have been denied ‘a voice’. Historically the enterprise agreements have contained provisions specifically tailored to the VTSOs. The agreements have been reached promptly without delays between the expiry date of one agreement and the commencement of the next agreement.
When cross examined Mr Walsh conceded that the SCMs were likely to have an interest in almost every item on the VTSOs log of claims.[94]
‘Fairness’ necessarily has a number of aspects: fairness to employees, fairness between employees, fairness to employers, fairness between employers, and fairness between employees and employers.”[95] It is not the case that simply because the AMOU or VTSOs perceive the scope as unfair to the VTSOs that the scope of the Replacement Agreement is objectively unfair.[96]
The circumstances in which a scope order would lead to fairer and more efficient bargaining was explored further in The Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd, in which the Full Bench stated:[97]
“[25] One can postulate circumstances where bargaining for two agreements for two groups would be more efficient than bargaining for a single agreement covering both groups. To give a single example, the evidence may establish that the two groups of employees have conflicting positions on issues that are important to them but not particularly important to the employer, as can arise where there are demarcation issues. In such a case, it may plainly be more efficient to have two separate agreements and avoid the effort and delay involved in resolving those issues for a single agreement.
[26] Intuitively, bargaining for two agreements for a group of employees will involve a degree of duplication of process and negotiation and thus be less efficient than bargaining for a single agreement to cover the same group. That is demonstrated in the present case by the identical programmes specified by the Company for the first bargaining meeting of each of the two groups. The lesser efficiency in such an approach is manifest. That is to say, in the particular circumstances of an individual case, it will not be open to decide that bargaining for two agreements will be more efficient than bargaining for one.”
The matter of National Union of Workers v Linfox Australia Pty Ltd[98] (Linfox) appears to have some similarities to the matter before me. The National Union of Workers (NUW) made an application for a scope order in relation to a Replacement agreement to replace the Linfox Road Transport and Distribution Centres National Agreement 2011. That agreement covered approximately 3,000 employees at 146 sites. A large proportion of employees were members of the Transport Workers’ Union (TWU). The NUW sought a separate agreement for the warehouse portion of Linfox’s Truganina site. Bargaining for such an agreement would involve both the Australian Workers’ Union (AWU) and the TWU. Linfox opposed the scope order, seeking to retain a single national enterprise agreement. Two of the reasons advanced to support the NUW’s contention that bargaining was not proceeding efficiently or fairly were that a significant minority of the total number of employees to be covered by the Replacement national agreement were effectively being denied a “real voice” in the negotiations, and that the site-specific concerns were effectively being ignored. Commissioner Roe was not satisfied that granting the scope order would make the conduct of bargaining fairer or more efficient and declined to make a scope order.
There is no doubt that the negotiation of two agreements for a cohort of employees previously covered by one for several decades will increase the workload for all the parties involved in the negotiations. Whereas in the past the Port Authority could explain its position once to the employee bargaining representatives, if the order were granted it would need to do so twice. The number of bargaining meetings would exponentially increase, as too the costs of for all parties of having personnel engaged in bargaining rather than performing other duties. Resolution of issues would likely be delayed as both the SCM and VTSOs would want confirmation of what the other group had secured to maintain their long standing relativities.[99]
No unfairness for, and between, any stakeholder will result in the absence of a scope order being made. All parties remain able to pursue their preferred scope in the absence of an order via collective bargaining. In the absence of a scope order, the AMOU can still organise and engage in industrial action and remains able to raise bargaining disputes with the FWC on behalf of its members.
Is the group of employees propose by the AMOU to be covered by the Replacement Agreement fairly chosen taking into account whether the group is geographically, operationally or organisationally distinct?
The FWC must be satisfied that the group of employees who will be covered by the agreement proposed to be specified in the scope order is fairly chosen for the purposes of s238(4)(c) of the FW Act.
The term ‘operational’ refers to an industrial or productive activity. The term
‘organisation’ refers to the manner in which the employer has organised its enterprise in order to conduct those operations.[100]
The assessment of whether a group of employees proposed to be covered by an agreement was fairly chosen will turn on the facts and circumstances of each case and involves a degree of subjectivity and value judgement.[101] In that context:[102]
“…distinctiveness within the meaning of s 237(3A) … is necessarily a relative, not absolute concept, and necessarily requires a comparison between the employees who will be covered and those who will not.”
The FWC is to take into account whether the group of employees is geographically, operationally or organisationally distinct albeit that matter is not necessarily decisive:[103]
“The relevant consideration…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.”[104]
There is no need for the group of employees to be the fairest group that could be chosen; it is sufficient that the group is fairly chosen.[105] In CFMEU v ResCo Training and Labour101, for example, a Full Bench of Fair Work Australia held the following in relation to the consideration of whether employees are fairly chosen for the purposes of enterprise agreement approvals:[106]
“In most enterprises there is unlikely to be any one fair manner of selecting the class of employees to be covered by an enterprise agreement. Different scope provisions may be equally described as fair in the sense that no manifest unfairness arises from their application. That is not to say that the parties may have a particular preference or view about the scope and favour a different formulation. The tribunal’s task however is not to determine the scope clause. Its task is to guard against unfairness by being satisfied that the group can be described, in all the circumstances, as fairly chosen.”
The AMOU submit that the VTSOs are geographically distinct from the SCMs because the VTSOs perform their duties onshore in the VTSO Tower while the SCMs are based at the small craft pens and predominantly perform their duties on the water in small craft vessels. Both groups have separately located meals and meeting rooms.
The AMOU submits that the VTSOs are organisationally distinct from the SCMs because the VTSOs report to the VTS Manager and the SCMs report to the SCM Manager, have different start and finish times, different wages and allowances. The AMOU also says the VTSOs are white collar employees and the SCMs are blue collar employees.
The AMOU submit that the VTSOs are operationally distinct from the SCMs because they have different duties, qualifications, statutory compliance requirements, safety risks and training requirements.
I note that the AMOU did not call any SCMs to give evidence with respect to the nature of the work they perform and how it might differ from that of the VTSOs.
Every group of employees within an organisation will have differences between them in terms of their duties, responsibilities, remuneration, work value, qualifications, skills, location, line management, position descriptions etc. These differences do not, in and of themselves, render employees geographically, operationally, or organisationally distinct. In any event the inquiry into distinctiveness is not dispositive of the question of what is fairly chosen.
Both the VTSOs and SCMs perform ‘operational’ roles within the Port as distinct from administrative roles performed by the administrative staff, or managerial functions performed by managerial staff. Consistent with this, both groups report to the Deputy Harbour Master and on to the Harbour Master, and both groups perform 12 hour shifts to ensure 24 coverage of their duties. Both groups rely on each other and regularly communicate with each other.[107] The VTSOs and SCMs work with each other on a daily basis.[108] In effect, the SCMs are the arms and legs of the VTSO for example moving pilots as directed by the VTSOs and responding to security issues as directed by the VTSOs. The skills, qualifications and experience of SCMs make it possible and desirable for them to transition to the role of VTSO. Both the VTSOs and SCMs are covered by the AMOU.[109]
The work performed by the VTSOs and the SCMs is covered by the same Award and has been continuously covered by a single enterprise agreement since 1999.[110] Bargaining for the enterprise agreements covering the two classifications during this period appears on the evidence to have proceeded efficiently and effectively with replacement agreements commencing operation seamlessly with the expiry of the previous agreement. [111] This suggests that operational, organisational and geographical differences between the groups are not so significant that they cannot readily be dealt with in one enterprise agreement. Consistent with this historical pattern in cross examination Mr Walsh conceded to multiple similarities in the log of claims for the VTSOs and the SCMs for the Replacement Agreement.[112]
There is no evidence that the SCMs are opposed to being covered by the same agreement as the VTSOs or that it is unfair that they are. There is no evidence that it will be ‘fairer’ for the SCMs to be covered by a separate agreement. In fact, the lack of evident support for the AMOU’s application from the SCMs is consistent with possibility that the SCMs have greater industrial power if they remain covered by the same agreement as the VTSOs. Given the increased financial and time costs associated with negotiating two separate agreements and the high risk of potential industrial disharmony it is not fair or fairer to the Port Authority for the VTSOs to be covered by a separate agreement.
Is it reasonable in the circumstances to make the order sought?
The final criteria that the FWC must consider in order to exercise its discretion is whether it is reasonable in all the circumstances to make the order. In BRB Modular Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union,[113] the Full Bench explained the requirements of s.238(4)(d) as follows:
“In our view, the requirement that it is reasonable to make a scope order is an important element of the tests required to be applied by the Commission. An application of the test will necessarily be bound up in the peculiar circumstances of the matter, but it requires a full consideration of those circumstances and a level of satisfaction that the order requiring the parties to adopt a particular scope of an enterprise agreement in continuing their bargaining is objectively justified.
….
[53] The scope of an agreement is an open question in many enterprise bargaining exercises. It is frequently a topic of competing claims, discussion and negotiation. Rarely will it be possible to say that one scope proposal is wrong and another correct. There may be justifications for a preference one way or another. Hence it is usually the case that the scope is left to the bargaining parties to determine in the context of the overall enterprise bargaining framework. The reasonableness of making a scope order should be considered against that background.”
The AMOU submit that it is reasonable in the circumstances to grant the order it seeks because:
a. another employee cohort (administrative staff) covered by the Award and previously falling with the scope of the agreement covering the VTSOs and SCMs now have their own enterprise agreement; and
b. VTSOs in other Ports have their own enterprise agreement.
I have also reflected on the principles espoused by Deputy President Sams in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited[114]as detailed below:
a.The inclusion of the word ‘may’ in the heading to s.238(4) infers a discretion subject to the pre-conditions being met.
b.The scope of an agreement is a matter that can be the subject of bargaining.
c.Consideration of the views or employees may be taken into account but have no greater weight than other factors.
d.It is improper to use a scope order application to address good faith bargaining concerns.
e.The onus rests on the moving party to demonstrate the making of a scope order will encourage and facilitate bargaining which is fairer and more efficient.
f.Issues of mere inconvenience or preference with the bargaining process are not decisive to whether a bargaining process is fairer of more efficient.
g.Evidence which is speculative, hypothetical or presupposes bargaining outcomes is unhelpful to the task of determining whether a scope order should be made.
h.The history of bargaining is a relevant consideration.
Seeking leverage by increasing bargaining power by weight of numbers is not a valid reason to make a scope order.
The granting of the order sought by the AMOU is a discretionary decision.
Without the order the question of scope can be determined like any other term of the Replacement Agreement by bargaining between the parties. The VTSOs can press their claim for a different scope with protected industrial action and the parties can make offers and concessions about scope and other matters until they reach an outcome which the majority of the workforce are willing to endorse.
Of the three parties to the Replacement Agreement, it is only the AMOU who have sought a change to the scope of the Replacement Agreement. The AMOU did not produce direct evidence of the views of each of the VTSOs or even a majority of the VTSOs. The Port Authority opposes the Application and the SCMs at best might be said to be neutral to the proposition.
Other than to provide the VTSOs with greater industrial power the AMOU have not established how the order would facilitate more efficient or fairer bargaining. To the contrary the evidence suggests that bargaining will be far less efficient and fair.
The history of bargaining demonstrates that, consistent with the objects of the FW Act, enterprise bargaining with a scope covering both cohorts has engendered “cooperative and productive workplace relations” over a 25 year period. To disrupt this arrangement simply to advance the industrial strength of a small cohort of employees where the evidence does not suggest their industrial interests have been historically overlooked is contrary to the objects of the FW Act.
This Application is dismissed and an Order[115] will be issued to that effect.
DEPUTY PRESIDENT
Appearances:
Mr L Tiley, for the Applicant.
Mr M Vallence, for the Respondent.
Hearing details:
2024
PERTH
19 April
Final written submissions:
Applicant’s final written submissions filed 3 May 2024.
Respondent’s final written submissions filed 13 May 2024.
Applicant’s final written submissions in reply filed 16 May 2024.
[1] See clause 2 of the 2020 Agreement.
[2] Warrell v Walton (2013) 233 IR 335, 341 [22].
[3] Digital Court Book (DCB) 431-537, 1603-1610.
[4] Ibid 538-755.
[5] Ibid 756 – 765.
[6] Ibid 776-1278.
[7] Ibid 1279-1325.
[8] Ibid 1326-1354.
[9] Ibid 1327.
[10] Ibid 284.
[11] Ibid 284.
[12] Ibid 1328-1330.
[13] Ibid 1328-1330, 1350-1351.
[14] Ibid 1328-1330.
[15] PN73.
[16] DCB (n3) 1328-1330.
[17] Ibid 542, 780, 1328-1330.
[18] Ibid 285.
[19] Ibid 777.
[20] Ibid 778-779.
[21] Ibid 779.
[22] DCB (n 2) 377-393, 541.
[23] Ibid 541-542, 758-759.
[24] Ibid 1279, 1293.
[25] Ibid 432.
[26] Ibid 285, 289.
[27] Ibid 284.
[28] PN9-PN18, PN27-PN34, PN37-PN40.
[29] DCB (n 2) 285.
[30] Ibid 432.
[31] PN556.
[32] Ibid 1281, 1297.
[33] Ibid 1281, 1299.
[34] Ibid 432, 1301.
[35] Ibid 1282, 1304.
[36] Ibid 285.
[37] Ibid 330-335.
[38] Ibid 335.
[39] Ibid 1282.
[40] Ibid 285.
[41] Ibid 374-375.
[42] Ibid 1282, 1305.
[43] Ibid 1282, 1306.
[44] Ibid 285.
[45] Ibid 395-397.
[46] Ibid 285.
[47] Ibid 400-401.
[48] Ibid 433.
[49] Ibid 436.
[50] Ibid 1283, 1307-8.
[51] Ibid 1283.
[52] Ibid 1283, 1309-10.
[53] Ibid 285.
[54] Ibid 1313.
[55] Ibid 286.
[56] Ibid.
[57] Ibid.
[58] Ibid 1285, 1315.
[59] Ibid 410, 1316.
[60] Ibid 286.
[61] Ibid 410-412.
[62] Ibid 286.
[63] Ibid 415.
[64] Ibid 286.
[65] Ibid 419-420.
[66] Ibid 286.
[67] Ibid.
[68] Ibid.
[69] Ibid 1286.
[70] Ibid 1287.
[71] Ibid 286.
[72] Ibid 285.
[73] Ibid 285.
[74] AMOU Closing Submissions filed on 3 May 2024 at 3.
[75] AMIEU v Woolworths Ltd[2009] FWA 849, [114],
[76] Ibid, [98],
[77] [2009] FWA 849.
[78] AMIEU v Woolworths Ltd[2009] FWA 849, [115],
[79] Ibid, [116-120],
[80] DCB (n 2) 285, 330-335.
[81] Ibid 433.
[82] Ibid 1603.
[83] PN433-PN451; PN556; PN558-PN573.
[84] Ibid 433.
[85] AMEIU v Woolworths Limited (2010) 192 IR 23, [17].
[86] See also CFMEU v OS MCAP[2021] FWC 6706, [144]-[147].
[87] Applicant’s Closing Submissions in Reply filed 16 May 2024.
[88] DCB (n 2) 374-375, 410, 1282, 1306, 1316.
[89] Ibid 400-401, PN267-PN294; PN407-PN432.
[90] PN387-PN391.
[91] [2010] FWAFB 3009, [55].
[92] Ibid at [54]. This position was confirmed by the Full Bench in BRB Modular Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)[2015] FWCFB 1440.
[93] The only direct evidence is of those few VTSOs called as witnesses.
[94] PN327-PN377
[95] Mondelez Australia Pty Ltd v AMWU (2020) 271 CLR 495, [14].
[96] Ibid.
[97] [2014] FWCFB 1476.
[98] [2013] FWC 9851.
[99] DCB (n 2) 1288.
[100] QGC v The Australian Workers’ Union[2017] FWCFB 1165; (2017) 268 IR 241, [44].
[101] Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union (2012) 219 IR 139, [46].
[102] INPEX Australia Pty Ltd v The Australian Workers’ Union[2021] FWCFB 1038, [33].
[103] Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd[2014] FWCFB 1476, [11].
[104] UFU v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009, [55].
[105] National Union of Workers v ePharmacy Pty Ltd[2015] FWC 3819.
[106] CFMEU v ResCo Training and Labour Pty Ltd[2012] FWAFB 8461; (2012) 228 IR 5, [35].
[107] Transcript PN83-PN87, PN153
[108] Transcript PN73N
[109] DCB (n 2) 285, 542, 780, 1328-1330, PN88.
[110] DCB (n 2) 777.
[111] Ibid 778-779.
[112] PN308-PN310, PN311-PN313, PN316-PN329, PN330-PN334, PN335-PN340, PN341-PN344, PN347-PN352, PN353-PN360.
[113] [2015] FWCFB 1440,[19].
[114] [2017] FWC 1526.
[115] PR776080.
Printed by authority of the Commonwealth Government Printer
<PR773540>
0
13
0