Australian Municipal, Administrative, Clerical and Services Union v UnitingCare Health

[2013] FWC 4897

[2013] FWC 4897

FAIR WORK COMMISSION

DECISION

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

Australian Municipal, Administrative, Clerical and Services Union
v
UnitingCare Health
(B2013/12)

Construction, Forestry, Mining and Energy Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

v

UnitingCare Health

(B2013/404 and B2013/748)

COMMISSIONER BOOTH BRISBANE, 6 AUGUST 2013

Proposed coverage for clerical, administrative, support services and engineering employees of UnitingCare Health in separate agreements.

[1] Applications for scope orders were made by Australian Municipal Administrative Clerical and Services Union (ASU) and the Construction Forestry Mining and Energy Union (CFMEU) and the Communications Electrical and Electronic Energy Information Postal Plumbing and Allied Services Union of Australia (CEPU) against UnitingCare Health (UCH).

[2] UCH operates five hospitals and three other facilities in Queensland. Five enterprise agreements cover its workforce. Three of those agreements are subject of current negotiations in which UCH is pressing for a combined agreement. The ASU, CFMEU and CEPU seek scope orders under s.238 of the Fair Work Act 2009 (“the Act”) that would, if granted, maintain three separate agreements.

[3] The three Enterprise Agreements are:

a) UnitingCare Health Clerical Enterprise Agreement 2011 [AE894951] (the Clerical Agreement); 1

b) UnitingCare Health Support Services Enterprise Agreement 2010 [AE882509] (the Support Services Agreement); 2 and

c) UnitingCare Health Engineering/Maintenance Collective Agreement 2008 [AC320045] (Engineering/Maintenance Agreement). 3

[4] Notices for s.238(3) of the Act were made as follows: 4

Agreement	Applicant	Notice	Scope Application
Clerical Agreement	ASU	15 November 2012	9 January 2013
Engineering/Maintenance Agreement	CFMEU	4 March 2013	19 March 2013
Engineering/Maintenance Agreement	CEPU	15 March 2013	27 March 2013

[5] Nomenclature has been a minor point of contention among the parties. In the materials provided the ASU is sometimes called Together 5 and the CEPU, the ETU6, the alternative names being State entities. This decision uses the federally registered organisation names.

[6] The Commission convened several conferences to resolve the issue of scope. Ultimately, the matter was set down for hearing on 27 June 2013, at which the parties indicated that they intended to rely on the written material before the Fair Work Commission (the Commission) and did not require witnesses for cross examination. Directions were given to provide final written submissions.

[7] The ASU contends a separate agreement should cover clerical and administrative employees of UCH, currently subject to the Clerical Agreement, and the CFMEU and the CEPU seek an order that a separate agreement should cover all building, engineering maintenance service (“BEMS”) employees, currently subject to the Engineering/Maintenance Agreement.

[8] The bargaining representatives for the Support Services Agreement, the Australian Workers Union of Employees (AWU) and the Transport Workers Union (TWU), have not sought a scope order in regard to that Agreement. The AWU representatives attended all directions hearings and the substantive hearing of the matter but did not provide any further material. The TWU formally advised the Commission that it did not object to the scope orders sought but advised that it did not intend to participate directly in the proceedings.

[9] If both scope orders were to be granted, it follows that employees currently covered by the Support Services Agreement would be left to bargaining separately, retaining the status quo for employees covered by all three Agreements.

[10] UCH opposes the scope orders, seeking instead a single combined agreement covering all three groups of employees.

[11] Ms Jennifer Hanna, Manager Industrial Relations for UCH, outlined the history of bargaining in her statement of 4 June 2013:

“History of Bargaining

The Move toward Amalgamated Agreements

33. The move toward amalgamation of the UCH agreements commenced in 2009 when the UnitingCare Health Allied Health Enterprise Agreement 2009-2012 replaced the UnitingCare Health Allied Health Collective Agreement 2007 and the UnitingCare Health Pharmacy Collective Agreement 2008. This reduced the number of UCH agreements from 6 to 5”

…

39. I was also involved in negotiations for both the Support Services Agreement and the Clerical Agreement which commenced in October 2010. The Clerical Agreement, in particular, was negotiated in the context of the next round of bargaining being for the Amalgamated Agreement, which is why its term is so short (about 13 months from lodgement).”

[12] In her supplementary affidavit of 18 June 2013 Ms Joanne Justo deposed on behalf of the ASU that at no time was there any formal agreement about the nature or the scope of any future agreement. The ASU restated this point in its submissions in reply, noting that agreement to a common nominal expiry date was not tacit agreement to a combined agreement.

[13] It appears from the evidence of all parties that scope issues have impeded negotiations from the start for both substantive and procedural reasons.

[14] Each side suggests that the other is insistent on its position on scope. UCH says of both the ASU and the CFMEU that their “repeated insistence on stand alone agreements amounts to surface bargaining and is certainly unfair.” The ASU’s Ms Valda Graham, Lead Organiser, in her Affidavit of 18 June 2013 rejects allegations of “surface bargaining”, pointing to a range of facts that she says evidence active participation in good fair bargaining.

[15] The parties all adduce evidence of efforts to reach agreement as well as clear differences on the combined agreement question. They agree that scope has been a live issue for the entire process. UCH notes in its final submissions, referring to several authorities:

Scope can validly form a claim by the parties as equally as pay increases or allowances. However, it has no more standing or importance than any other claim.

[16] The evidence before the Commission was by way of affidavit or statement from representatives of the parties. It includes material about the dates and attendees at various meetings, and commentary about the level and quality of participation. No witness was cross-examined, so that sometimes contradictory evidence remains untested. UCH appends to its final submissions a list of issues about evidence. In the end nothing in particular turns on the contradictions and different versions put forward, as the material in its present state is sufficient to assess issues such as the extent of participation in bargaining for the purposes of the statutory tests.

The Legislation

[17] Section 238 of the Act provides for the making of scope orders as follows:

“Scope orders

Bargaining representatives may apply for scope orders

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

(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and

(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.

No scope order if a single interest employer authorisation is in operation

(2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.

Bargaining representative to give notice of concerns

(3) The bargaining representative may only apply for the scope order if the bargaining representative:

(a) has taken all reasonable steps to give a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and

(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(c) considers that the relevant bargaining representatives have not responded appropriately.

When the FWC may make scope order

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

(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and

(b) that making the order will promote the fair and efficient conduct of bargaining; and

(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and

(d) it is reasonable in all the circumstances to make the order.

Matters which the FWC must take into account

(4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Scope order must specify employer and employees to be covered

(5) The scope order must specify, in relation to a proposed single-enterprise agreement:

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

(b) the employees who will be covered by the agreement.

Scope order must be in accordance with this section etc.

(6) The scope order:

(a) must be in accordance with this section; and

(b) may relate to more than one proposed single-enterprise agreement.

Orders etc. that the FWC may make

(7) If the FWC makes the scope order, the FWC may also:

(a) amend any existing bargaining orders; and

(b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by the FWC, or take such other actions, as the FWC considers appropriate.”

[18] The CFMEU and the CEPU applications were joined, as they sought the same order in regard to the Engineering/Maintenance Agreement. Ultimately it is for the ASU, the CFMEU and the CEPU to establish whether the scope orders sought will be successful and that depends in part on whether the applications satisfy the requirements of s.238 of the Act.

[19] The ASU’s Application about the Clerical Agreement is dealt with separately.

[20] UCH’s submissions and evidence for the most part addressed the three applications together. Where the evidence establishes a point for one application, I rely on the same evidence, if relevant, for the other.

Scope orders generally

[21] There are a number of threshold issues to be satisfied before the Commission may make a scope order.

[22] An application must be about a single-enterprise agreement (s.238(1)) and not about a single interest employer authorisation (s.238(2)). Second, the applicant must have the concerns stated in s.238(1)(a) for the reasons stated in s.238(b). Third, notice requirements for a valid scope order application stated in s.238(3) must be met.

[23] In this case, the two pre-conditions and the notice requirements are not contested and on the evidence appear to have been met.

[24] The meaning of good faith bargaining, required by s.238(4)(a), is explained in s.228:

“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.

(2) The good faith bargaining requirements do not require:

(a) 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.”

[25] The Commission must also take into account in this case the fairly chosen factors stated in s.238(4A).

ASU Application and the Clerical Agreement

[26] The ASU application would maintain the status quo of a separate Enterprise Agreement for employees presently covered by the Clerical Agreement.

[27] UCH is seeking to negotiate a combined agreement which would cover all employees who are not health professionals. 7 The combined agreement would cover employees currently covered by agreements listed in paragraph [3] above.

[28] UCH’s evidence Ms Hanna’s statement is that the Clerical Agreement:

a) covers 428 employees;

b) applies to all five UCH Hospitals and to three non-hospital facilities;

c) covers a broad range of employees engaged in administrative and clerical duties;

d) describes six levels of employment;

e) covers a wide range of job titles, 16 of which were advanced as examples;

f) does not cover managerial positions or accountants.

Consideration of the ASU application

Met or meeting good faith bargaining requirements: s.238(4)(a)

[29] The ASU submits it has been bargaining in good faith. The affidavit evidence of Ms Graham, dated 9 May 2013 and 18 June 2013 is that she:

a) attended all bargaining meetings from 29 January 2013;

b) disclosed information in a relevant way: e.g. increased use of casuals to perform weekend work;

c) gave genuine consideration to proposals of other bargaining representatives by caucusing with other unions prior to negotiation meetings;

d) did not engage in capricious or unfair conduct or undermine freedom of association, supporting other unions in the absence of their delegates; and

e) attended to the concerns and responses of all bargaining representatives, whether employee or employer.

[30] UCH submits that the ASU did not meet the good faith bargaining requirements and was only focused on achieving its preferred scope for the Agreement. However in its final submissions UCH acknowledged some progress at the ninth bargaining meeting on 7 May 2013:

“The meeting was productive and the AWU and Together responded to UCH’s proposal. This was the first meeting that Together provided any meaningful response to UCH’s position.”

[31] Also in final submissions UCH argues that the applications have been made prematurely. It instances that ASU’s application being brought “before any of the Applicant unions had tabled a log of claims”, and maintains “that the proposed [combined] agreement is still in the early stages of negotiation”. UCH says “this is not ‘hard bargaining’ in good faith” and suggests the requirement is:

a genuine attempt on the part of all parties to the agreement to see if an agreement can be reached, how that agreement might look, and whether any disparate interests of the parties can be overcome.

[32] UCH’s final submissions also cited a New Zealand authority in support of a proposition that “refusal to discuss substantive claims unless and until scope was determined was a breach of the good faith bargaining requirements”. The CFMEU rejects this suggestion as follows:

Decisions from a different jurisdiction should only be considered in the absence of relevant authorities from the Australian Commission and Courts. There is an abundance of Australian authorities which are binding on the Commission.

[33] UCH offers no particular evidence in support of the proposition that the application is ‘premature’. The ASU, CFMEU and CEPU provide evidence of outstanding industrial issues that give rise to their scope concerns.

[34] As to whether the ASU was engaged in good faith bargaining, Ms Justo and Ms Graham depose in their various affidavits to active engagement in bargaining by the ASU.

[35] It is clear that these are difficult negotiations. Scope has been an issue from the outset, impeding the negotiations. But lack of progress is not the test; unresolved issues about scope are not the test. The test requires consideration of whether the bargaining representative “has met or is meeting” the good faith bargaining requirements. UCH’s additional propositions detailed at paragraphs [31] and [32] above appear to go beyond the requirements of the Act, and cannot be accepted. 8

[36] The participation detailed in the affidavits, and the comment of UCH after the ninth bargaining meeting, satisfy me that the ASU is meeting the good faith bargaining requirements.

Promote the fair and efficient conduct of bargaining: s.238(4)(b)

[37] The ASU submits that a separate agreement will promote fairness and efficient conduct of bargaining on the following grounds.

a) The classification structure review remains uncertain as it is contingent on a review referred to in the current agreement but not completed. A similar review completed for Support Services employees and would form part of the combined agreement.

b) Clerical employees are a small cohort relative to other employee groups, such that successful agreement on outstanding reviews may be swamped by the numerical imbalance.

c) There is an apparent desire on the part of UCH to standardise certain conditions that risks erosion of existing conditions and an apparent intention to downgrade some positions.

[38] Ms Justo deposes that outstanding issues from the current agreement cannot be resolved satisfactorily while negotiating on a new single agreement because matters could be put to a vote dominated by Support Service staff, despite lack of resolution of those outstanding issues.

[39] UCH submits that:

Both the Clerical and Support Services group are large. It is correct that the Support Services group is larger than the Clerical group, but not by much.

According to Ms Hanna’s Statement there are 679 Support Services staff, 428 Clerical staff and 18 BEMS staff. Clerical employees therefore represent just over 38% and Support Services, 60% of the combined groups.

[40] UCH’s final submissions say that the classification review sits alongside the bargaining, and will not have an impact on it. The ASU says that the classification review is interfering with bargaining on the combined agreement. These competing opinions are not supported by particular evidence, but there is clearly an issue about the place of the classification review in the bargaining process, and it featured heavily in the ASU’s evidence and submissions.

[41] The parties drew attention to the two Red Cross cases. 9 UCH urges the Commission to prefer the South Australian case as more comparable to the present circumstances. The ASU suggests the Queensland case is closer. There are differences between the facts in this matter and those cases, especially in terms of the relative numerical strengths of the cohorts and the operational distinction between the classes of employees. The evidence points to neither Red Cross case being directly on point, but the matters of principle dealt with therein are useful to understanding the proper application of the statutory test.

[42] In the Queensland Red Cross Senior Deputy President Richards made the following comments about satisfying the fairness and efficiency requirements:

“Conceivably therefore, excising a class of employees from a bargaining process might promote fairness in the conduct of bargaining, but it might not promote efficiency in the conduct of bargaining. Section 238(4)(b) of the FW Act requires FWA to be satisfied that the outcome of an order it might make under s.238 of the FW Act promotes both the fair and efficient conduct of bargaining.” 10 (Emphasis in original)

[43] The South Australian case, Comissioner Hampton distinguished the Queensland case on factual grounds and does not disagree with Senior Deputy President Richards’ observations.

[44] The ASU submits that having to respond to the claims of others not covered by the current agreement is inefficient and is likely to result in the protracted delays.

[45] UCH submits that bargaining will be less efficient if three separate agreements are negotiated, with separate voting processes and submission processes. However, on UCH’s own submissions it has bargained separately with both the ASU and the CFMEU and has met separately with the ASU on the question of classification review. These agreements are but three of five, and formerly six. There is no suggestion that UCH lacks capacity to negotiate separate enterprise agreements: it already does so for the nursing and allied health staff.

[46] Senior Deputy President Richards’ comments in the Queensland Red Cross decision, are pertinent here:

“Thirdly, it appears to me also that the Employer is not unused to dealing with discrete agreements or discrete market conditions for professional scientists (amongst others).” 11

[47] This employer likewise has both willingness and capacity to undertake differentiated processes for settling issues. The order sought would not require bargaining in a way that is particularly different from its recent practice.

[48] UCH submitted that a combined agreement would be more efficient because the logs of claims have common and overlapping issues and issues in common However it is points of difference that focus the questions of fairness and efficiency for scope as much as matters in common.

[49] Both parties want to resolve the classification issue and this will happen whether a scope order is made or not. Classification issues do go to the question of fairness. I agree with Ms Justo that negotiations on a combined agreement could override the fair resolution of outstanding classification issues.

[50] It may well be that classification issues will not be critical in some future bargaining. But at this point in time, as a matter of fairness, the outstanding nature of the classification review favours retention of a separate agreement for this group of staff.

[51] Based on a combination of factors including numerical relativity, the uncertainty around the classification review under a combined agreement, and the fact that agreement has been reached with the Support Services cohort on classification issues and with the Engineering/Maintenance cohort on other issues, I am satisfied that the order sought by the ASU would, at this point in time, promote fairness and efficiency in relation to the conduct of bargaining.

Group of employees fairly chosen: s.238(4)(c)

Is the group geographically, operationally or organisationally distinct: s238(4A)?

[52] Where consideration is to be given to an order that will not cover all employees the Commission must consider whether the group is fairly chosen taking into account geographical, operational or organisational distinction.

[53] The concepts contained in ss.238(4)(c) and (4A) have been considered by the Full Bench of Fair Work Australia in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and others 12 (Cimeco) in the context of a contested geographically distinct enterprise agreement under s.186 of the Act.

[54] UCH referred the Commission to two particular paragraphs:

“It is important to appreciate that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations.

It is not appropriate to seek to exhaustively identify what might be the other relevant considerations. They will vary from case to case and will need to be demonstrated to the satisfaction of the Commission. The word ‘fairly’ suggests that the selection of the group was not arbitrary or discriminatory. For example, selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, selection based on criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair. It is also appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of employees in determining whether the group of employees was fairly chosen. In this regard, it is not only the interests of the employees covered by the agreement that are relevant; the interests of those employees who are excluded from the coverage of the agreement are also relevant.” 13

[55] UCH also cited Transport Workers' Union of Australia v Chubb Security Services Limited 14 and National Union of Workers v Super Retail Group Ltd.15 and called in aid the South Australian Red Cross Case.16

[56] UCH argues that while Clerical employees were historically a stand-alone group, they do not work in a vacuum but their work is integrated across each facility. UCH suggests that both the ASU and the CFMEU claims of operational and organisational distinction are overstated, noting that they work across various UCH sites. Accordingly, UCH suggests that clerical employees are not organisationally or geographically distinct at all.

[57] No particular evidence was led by UCH as to why Clerical employees are not operationally distinct, and there was disputed evidence about reporting and managerial relationships. This falls significantly short of establishing that Clerical employees’ work is not operationally distinct.

[58] The ASU argued differentiation of Clerical staff from other cohorts in terms of their roles, classification structures and working conditions; acknowledging that they perform their work in clinical settings and have specialised knowledge, including of medical terminology and health insurance.

[59] In this case the ASU seeks a scope order that takes into account that Clerical employees are operationally distinct. The ASU led evidence that its members also had a preference to remain distinct, 17 and reinforced the difference point with other relevant indicia of distinction such as lines of reporting, specialised skill sets, and the outstanding classification review.

[60] Employee preference may be an important factor but it is not decisive. 18

[61] Cimeco also identified the interests of the employer as important, exemplified by productivity enhancement. UCH submits that combining agreements will enhance productivity and treat all employees equally. However there is nothing about a combined agreement in the material before the Commission that will achieve this over separate agreements. Conditions can clearly be standardised in separate agreements. Finally UCH submits that it is commencing “the preliminary work of moving from a fully manual rostering and payroll process”. Such process advances may be relevant to productivity increases in future agreements, but this work is still in its infancy, and it is premature to claim, in this bargaining round, enhanced productivity on this basis under a combined agreement.

[62] Cimeco urged consideration of the interests of employees who would not be covered by the separate agreement. This case is somewhat complicated by the fact of five existing Agreements, only two of which are subject of scope order applications. The most relevant group of employees affected appears to be those presently covered by the Support Services Agreement. As noted at paragraph [8] above the bargaining representatives for those employees, the AWU and the TWU, either participated in the proceedings or noted they did not object to the proposed orders.

[63] The ASU submitted that the combined agreement is highly unusual and unworkable. UCH provided evidence from other similar health facilities where such arrangements were in place. Such arrangements are neither unusual nor unworkable.

[64] In the particular circumstances of this matter, having regard to the interests of the employer and the employees, the lack of evidence (at this time) around enhancement of productivity through a combined agreement, the operational and organisational factors, and employee preference discussed above, I have determined that the group of employees who are Clerical employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen.

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

[65] UCH submitted that in all the circumstances making the order would not be reasonable. Essentially the argument was that there had been low engagement by some union bargaining representatives because of the dispute over the scope of the agreement. Further the impasse in bargaining is related to the scope and not related to substantive claims.

[66] There is no doubt that issues around scope infected almost every negotiation held to date. However, the mere fact that scope issues have been present throughout negotiations cannot on its own mean it is unreasonable to make a scope order: that would be a bizarre outcome, contrary to the Act’s intent. The test is set out in s.238. Whether it is reasonable to make the order is but one of the factors listed.

[67] Further in terms of reasonableness, UCH argued that “fair groups” could be ascertained on any number of grounds other than those urged by the ASU, the CFMEU and the CEPU. It submitted that the proposed scope of the combined agreement was just as fair as any other basis, and “[in] fact, more so.” No empirical evidence was offered in support of this proposition, however it was then argued that:

“In the absence of any inherent unfairness in alternative proposed Scope, [sic] the Commission should be hesitant to make a scope order."

[68] The test urged by UCH was that the Commission should be satisfied on three points before granting an order:

... the Commission should be satisfied that:

(a) there is no way agreement can be reached – and this is genuinely related to scope and not fear-mongering and positional negotiating tactics;

(b) bargaining has reached an impasse, and this impasse is legitimately related to scope and not on the basis of a mere disagreement in relation to a claim; and

(c) the parties have made appropriate concessions, and genuinely considered proposals, particularly in relation to matters that are in common.

[69] No authority was put forward by UCH in support of this three-pronged test, and I could find no support for it. The CEPU submits that such a test is contrary to the Full Bench in Firefighters where it was said:

In its submissions AiGroup sought to limit the circumstances in which an order might be made. We refer in particular to the submission that a scope order should not be made against the opposition of a bargaining representative unless one of the bargaining representatives is pursuing a scope for negotiations which is unfair. That submission must be rejected. It involves adding an additional requirement to those specified in ss.238(4)(b) and (c). If two parties to an application for a scope order advance alternative positions neither of which is objectively unfair but the Commission is satisfied of the relevant matters and is disposed to make an order, it would be an error not to do so. 19

[70] It seems to me that the test proposed by UCH deals with questions outside s.238. It is rejected for the same reasons stated by the Full Bench in Firefighters.

[71] I conclude it is reasonable in the circumstances to make the order.

Determination – ASU Application

[72] The elements of s.238 are made out, and I make an order in the terms sought by the ASU.

The CFMEU and the CEPU Applications

[73] These applications essentially seek a scope order that would retain a separate Enterprise Agreement for the BEMS employees. UCH seeks to include the BEMS employees, along with employees covered by the Clerical and the Support Services Agreements into the proposed combined agreement. I determined that the two applications should be dealt with together.

The CFMEU/CEPU Application and the Engineering/Maintenance Agreement

[74] The CFMEU and the CEPU seek scope orders that maintain the status quo by maintaining the separate Engineering/Maintenance Agreement.

[75] As with the Clerical Agreement, UCH is seeking to negotiate a combined agreement covering all employees currently covered by agreements listed in paragraph [3].

[76] UCH’s evidence, provided in the Statement of Ms Hanna is that the Engineering/Maintenance Agreement covers 18 employees who work at the Wesley Hospital and St Andrews War Memorial Hospital.

Consideration of the CFMEU/CEPU application

Met or meeting good faith bargaining requirements: s238(4)(a)

[77] Both the CFMEU and the CEPU submit that they have been bargaining in good faith including the presentation of a log of claims on 12 February 2013 on behalf of the CFMEU, the CEPU and the AMWU 20 (“the BEMS unions”). No further response was received from UCH and in the CFMEU’s submission this was because of issues around scope.

[78] UCH submits that the CFMEU and the CEPU cannot satisfy s.238(4)(a), in that while the parties attended meetings, “they did not attend a large number of them, and to the extent they did, they did not participate.” Further, UCH submits that the “CFMEU has had one stand-alone meeting with UCH to discuss the log of claims, but no formal response has been received to date.” The CEPU attended only one meeting.

[79] As with the ASU, the focus by both parties on the scope of an agreement has made progress and negotiations difficult. However on UCH material, the CFMEU has attended 4 meetings and the CEPU one meeting. The CFMEU submits that on Ms Hanna’s own evidence, it attended 7 of 9 meetings.

[80] The CEPU explained that it has only attended one meeting because it did not have members employed at UCH until early March 2013. A notice of concerns was served on or about 16 March 2013. 21

[81] In final submissions the CEPU states as follows:

“20. Further Mr Reichman’s evidence makes it clear that the engineering/maintenance unions are working together in negotiating the agreement and therefore, not every union will necessarily have a full time official present at every meeting.”

[82] It is clear that the BEMS unions are working together. Further I have concluded that UCH accepted such representation of BEMS unions by using descriptions in various minutes such as “Log of Claims – Consolidation”.

[83] I accept that the CFMEU not only provided a log of claims but was negotiating subsequently on behalf of the BEMS unions.

[84] After filing the joint log of claims, the CFMEU continued to participate in further meetings. These meetings did not progress to the extent either party wished. Issues around the definition of shift work and the potential financial disadvantage to their members were clearly issues relevant to enterprise bargaining. UCH material contained other examples of matters that had been resolved along the way, such as agreement to reimburse costs of prescription safety glasses.

[85] UCH wrote to the CFMEU on 6 March 2013, in response to the CFMEU’s notice of concerns under s.238(3), in the following terms:

"Concern 2 – Log of Claim Items … The combined negotiation meetings on 12 and 26 February were productive and we found the discussion with Andrew, Paul and Gary beneficial. Thank you also for providing information last Friday in relation to the BEMS log of claims. Our intention is to update our without prejudice management position and to provide a formal response at our next bargaining meeting. Your claim for no loss of current conditions has been acknowledged and is [sic] previously advised we are not in a position to make a firm commitment on that issue right now in the same [sic] we are not in a position to make a firm commitment to any of the other log of claims from the CFMEU and the other unions.”

[86] While there can be little doubt that scope is a live issue and has impeded progress, it is also clear that important issues were the subject of bargaining and at least one issue was resolved from the joint log of claims.

[87] I have concluded that for reasons outlined above that jointly and sometimes separately the CFMEU and the CEPU were bargaining in good faith.

Promote the fair and efficient conduct of bargaining: s.238(4)(b)

[88] The CFMEU and the CEPU submit that a separate and distinct enterprise agreement for BEMS employees would make the bargaining fairer or more efficient or both than under a combined agreement.

[89] BEMS employees number 18 or 1.6% or of the total number of employees covered by the proposed combined agreement.

[90] The CFMEU seek to rely on the Firefighters decision. 22 That case concerned a scope application by the employer for a separate agreement for Commanders and Assistant Chief Fire Officers. The Union sought a single agreement covering all its members, including the senior officers. The Full Bench said:

It is apparent that Commanders and ACFOs identify with the lower ranks and wish to negotiate in common with them and to be covered by the same enterprise agreement. No doubt there are many standard conditions. In relation to significant matters affecting only Commanders or ACFOs arrangements could be made for those matters to be dealt with in sub-sets of the negotiations. The MFESB, on the other hand, suggested that if all ranks were to be covered by the one agreement the interests of Commanders and ACFOs would tend to be subordinated to the interests of operational employees generally and that Commanders and ACFOs would be in danger of being outvoted in areas where their interests diverged. 23(emphasis added)

[91] The CFMEU argues that in the context of the proposed combined agreement, despite common issues, the much larger groups of employees from the other cohorts presents a real risk that BEMS employees’ interests could be overborne where interests diverge.

[92] Mr Scott Reichmann (in a statement in support of the CEPU application) provided details of some of the issues unique to BEMS members. These included wage increases, standby allowances, qualification allowances, the BEMS maintenance allowance and the removal of the cap on redundancy.

[93] UCH suggests that the BEMS employees are not in danger of being outvoted where their interests diverged and uses the example of reimbursement for prescription safety glasses, a demonstration of UCH moving its position in the bargaining process while it was still seeking a combined agreement.

[94] While I accept there has been some movement by UCH on one particular issue for BEMS employees, there remains at this point in time, given the present factual circumstances, the potential for one larger group or the combined groups of employees to overwhelm the interests of this smaller cohort, a “danger of being outvoted in areas where their interests diverged” to use the language of the Full Bench in Firefighters.

[95] I therefore conclude it is fairer at this point in time to have a separate BEMS agreement.

[96] In terms of efficiency, the discussion about the ASU application also applies here. In relation to the BEMS unions it appears there was greater recognition by UCH of the need to meet separately than with the ASU, no doubt reflecting the practicalities of bargaining with this small but specialised group of employees of UCH.

[97] I am satisfied that the order sought by CFMEU and the CEPU would, at this point in time, promote fairness and efficiency in relation to the conduct of bargaining.

Group of employees fairly chosen: s.238(4)(c)

Is the group geographically, operationally or organisationally distinct: s238(4A)

[98] UCH argued these points collectively in regard to the ASU, the CFMEU and the CEPU. The submissions discussed above in regard to the ASU apply equally here. 24A significant difference here is the BEMS workforce is a very much smaller cohort.

[99] UCH resists that the BEMS employees are organisationally or geographically distinct but appears not to address the submissions of the CFMEU and the CEPU that they are operationally distinct. It seems tolerably clear that the BEMS employees are operationally distinct. The CFMEU submits distinctiveness of BEMS employees because they:

“(i) perform work that is significantly different from other employees to be covered by the proposed scope;

(ii) are entitled to different allowances from other employees to be covered by the proposed scope:

(iii) perform different shifts from other employees to be covered by the proposed scope; and

(iv) are the only trade-qualified employees to be covered by the proposed scope.”

[100] The CFMEU further argues that UCH’s conduct in undertaking separate bargaining meetings and proposing separate annexures relating only to BEMS employees supports differentiation.

[101] The CFMEU and UCH also differed on the applicable Award for BEMS employees. While I place no weight on that issue for this decision, it is indicative of underlying differences on key industrial issues. It would be desirable for parties to agree on this important matter as early as possible.

[102] The CEPU submits that electricians must be operationally distinct because only a licensed electrician can legally undertake electrical work. This point was made in contradiction of UCH’s submission that BEMS work can be undertaken by security staff.

[103] These factors together demonstrate the necessary operational distinction, and suggest that UCH’s BEMS staff are operationally distinct from the Clerical and Support Services staff. I am persuaded particularly on the grounds of the differences in the work performed.

[104] In the decision concerning the ASU, I referred to both employee preference and issues of productivity. Both these issues are also relevant here and I decide similarly in relation to these issues.

[105] I have therefore concluded that the BEMS employees who would be covered by a separate agreement as proposed in the scope order were fairly chosen.

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

[106] I have dealt with the reasonableness question in regard to the ASU above. UCH made no submissions on this point peculiar to the BEMS employees. For the same reasons given above, it is reasonable in all the circumstances to make the order sought.

Determination – CFMEU/CEPU Application

[107] The elements of s.238 are made out, and I make an order in the terms sought by the CFMEU and the CEPU.

COMMISSIONER

Appearances:

J Cannon for Australian Municipal, Administrative, Clerical and Services Union.

T O’Brien for Construction, Forestry, Mining and Energy Union.

P Rogers for Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

V Donaghy, Minter Ellison on behalf of UnitingCare Health.

Hearing details:

2013.

Brisbane:

27 June.

Final written submissions:

ASU, CFMEU and CEPU, 28 June 2013 and 1 July 2013.

UCH, 2 July 2013.

 1   Approved [2012] FWAA 5406, nominal expiry 31 December 2012.

 2   Approved [2010] FWAA 9179, nominal expiry 31 December 2012.

 3 AC320045, approved 31 July 2009, nominal expiry 30 June 2011.

 4   dates from UCH Submissions.

 5 Together Queensland, Industrial Union of Employees, of which the Australian Municipal, Administrative, Clerical and Services Union-Central and Southern Queensland Clerical and Administrative Branch is part for Queensland law. Together is a transitionally recognised association for Schedule 1 of the Fair Work (Registered Organisations) Act 2009. The ASU is the federally registered organisation.

 6   The Electrical Trades Union of Employees Queensland, also a transitionally registered association. The CEPU is the federally registered organisation.

 7   Covered by the UnitingCare Health and Queensland Nurses Union Enterprise Agreement 2009-12 and the UnitingCare Health Allied Health Enterprise Agreement 2012-2015.

 8   Compare United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board; Metropolitan Fire & Emergency Services Board v United Firefighters’ Union of Australia, Mr W. Crossley, Mr P. Swain and Mr P. Holmes [2010] FWAFB 3009 (Firefighters) per Giudice J, Lawler VP, Gay C at paragraph [54].

 9   The Association of Professional Engineers, Scientists and Managers, Australia v Australian Red Cross Blood Service [2010] FWA 3911, Richards SDP (Queensland case); The Association of Professional Engineers, Scientists and Managers, Australia v Australian Red Cross Blood Service and others [2011] FWA 2914, Hampton C (South Australian case).

 10   [2010] FWA 3911 at paragraph [35].

 11   [2010] FWA 3911 at paragraph [39].

 12   [2012] FWAFB 2206.

 13   [2012] FWAFB 2206 at paragraphs [20] and [21].

 14   [2012] FWA 2226, a decision that relied in turn on Australasian Meat Industry Employees Union v Woolworths Limited[2009] FWA 849.

 15   [ 2012] FWA 3753.

 16 Especially at paragraphs [80]-[81] where Comissioner Hampton notes the integration of the scientific employees’ duties with those of other laboratory staff working in a team. Senior Deputy President Richards was dealing with different factual circumstances in the Queensland matter as Commissioner Hampton notes at paragraph [85].

 17   Although that evidence was untested and UCH raised concerns about it in final submissions.

 18   [2010] FWAFB 3009.

 19   [2010] FWAFB 3009 at paragraph [54].

 20   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union.

 21   UCH submits that the notice was provided on 15 March 2013.

 22   [2010] FWAFB 3009.

 23   [2010] FWAFB 3009 at paragraph [65].

 24   See above at paragraph [52] and following.

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