Australian Nursing and Midwifery Federation

[2016] FWC 610

[2016] FWC 610

The attached document replaces the document previously issued with the above code on 5 February 2016.

The Appearances at the end of the decision have been corrected.

Associate to Commissioner Cribb

Dated 8 February 2016

[2016] FWC 610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.238—Scope order

Australian Nursing and Midwifery Federation
(B2015/1204)

COMMISSIONER CRIBB MELBOURNE, 5 FEBRUARY 2016

Application for a scope order re HammondCare.

[1] The Australian Nursing & Midwifery Federation (ANMF, the union) has made an application for a scope order in relation to a proposed agreement being negotiated between the ANMF and HammondCare (HammondCare, the employer). The application was made under section 238 of the Fair Work Act 2009 (the Act).

[2] The ANMF seeks an order that:

(a) HammondCare will be covered by the proposed agreement; and

(b) Employees of HammondCare in Victoria will be covered by the proposed agreement. 1

[3] It was common ground that the effect of the scope order, if issued, would be that employees of HammondCare who work in New South Wales would be excluded from the proposed agreement.

[4] The Health Services Union (HSU) filed written submissions 2 and also made brief oral submissions. The HSU supports and endorses the application by the ANMF and also made submissions in its own right.3

[5] Evidence was given on behalf of the ANMF by Mr L Hubbard, Senior Industrial Officer and Ms M Reeve, Industrial Officer. For HammondCare, evidence was given by Ms J Gulczynski, Head of People Services and Ms A Raguz, General Manager of Residential Care. The witness statement of Mr D Martin, General Manager- Victoria, was accepted into evidence 4 but Mr Martin was not required to give oral evidence.

1. Background

[6] HammondCare is a Christian charity which specialises in dementia care. It operates three main business streams - residential care; home care and health and hospital care. 5 The main business stream is the residential care stream with HammondCare providing more than 800 beds for predominantly dementia - specific residential aged care. The other streams provide care services to people in their own homes and sub acute care within the New South Wales local health districts network, respectively.6

[7] HammondCare has historically operated in New South Wales. However, since 2014, HammondCare has three residential care facilities at Caulfield Hospital in Melbourne, which were previously operated by Alfred Health. 7 The three Victorian facilities include a 30 bed dementia specific unit, a 30 per bed psychogeriatric unit and a 60 bed nursing home. Approximately 200 employees are employed in the residential care service.8 The terms and conditions of employment for employees in the HammondCare’s New South Wales operations are governed by the HammondCare Dementia Specific Facilities Employee Enterprise Agreement 20119 (Residential Dementia Agreement) and the HammondCare Residential Nurses and Care and Support Services Enterprise Agreement 201210 (Residential Nurses Agreement). The Residential Dementia Agreement applies to the Specialist Dementia Carers (SDCs) employed in HammondCare’s dementia specific facilities.11 The Residential Nurses Agreement applies to all Specialist Dementia Advisers (SDAs) (registered nurses) and care services employees working at HammondCare’s residential care facilities together with other employees such as maintenance, laundry and kitchen.12 Some of the supervisory and management staff are covered by the Residential Nurses Agreement or are employed on individual employment contracts.13

[8] In December 2014, when HammondCare started employing staff in Victoria, the employees were informed about their relevant modern award and that HammondCare had agreed to apply above award conditions derived from the two New South Wales agreements. 14

Negotiations

[9] Around 9 October 2014, the Victorian branch of the ANMF wrote to HammondCare requesting that HammondCare negotiate a greenfields agreement at the Caulfield site. On 12 November 2014, HammondCare wrote to the Victorian branch of the ANMF stating that the terms of the two New South Wales agreements would be provided to Victorian staff. HammondCare also stated that both of the New South Wales agreements were scheduled for renegotiation in July 2015 and that HammondCare intended to move the two existing agreements into one. The ANMF was also advised that HammondCare did not yet wish to commence negotiations but would like to meet with the ANMF in July 2015. 15

[10] The ANMF wrote to HammondCare on 5 December 2014 and, amongst other things, confirmed that it would like to meet with HammondCare to discuss HammondCare’s decision not to commence bargaining for a new enterprise agreement until July 2015. 16 Around 7 January 2015, HammondCare wrote to the ANMF confirming that HammondCare was ready to discuss the employment arrangements of the Victorian employees.17

[11] On 28 January 2015, the ANMF met with HammondCare. There are differing accounts of what was said during this meeting. 18

[12] On 5 February 2015, the ANMF emailed HammondCare indicating that the union would like to “touch base” about negotiations for an enterprise agreement to cover HammondCare Victorian employees. 19 HammondCare replied on 6 February 2015.20

[13] Between 5 May 2015 and 13 May 2015, there was correspondence between the parties about availabilities to attend a meeting. A meeting was organised for 21 May 2015 in Melbourne. 21

[14] Around 29 May 2015, the ANMF wrote to HammondCare requesting to commence bargaining for a Victorian agreement and enclosed an ANMF resolution. 22 On 10 June 2015, HammondCare wrote to the ANMF stating that its intention was to negotiate a national agreement covering employees in Victoria and New South Wales. HammondCare also advised that it intended to commence enterprise agreement negotiations in August 2015.23

[15] The ANMF wrote to HammondCare on 16 July 2015 expressing concern about HammondCare’s refusal to negotiate a Victorian agreement. The union also indicated that HammondCare’s position that it would only bargain for a multi-state agreement was causing bargaining to not proceed efficiently or fairly. The union reiterated its request that negotiations for a Victoria only agreement commence. If HammondCare did not agree to this request, HammondCare was asked to commit to maintaining six standard Victorian entitlements in a multi-state (national) agreement. 24

[16] On 4 August 2015, HammondCare wrote to the ANMF indicating that it was keen to negotiate a national agreement on the basis of renegotiating the two existing New South Wales enterprise agreements. 25 On 7 August 2015, the ANMF wrote to HammondCare to provide further notice of the ANMF’s concerns within the meaning of section 238(3)(a) of the Act.26

[17] On 3 September 2015, the HSU gave formal notice of the HSU’s concerns that bargaining was not proceeding efficiently or fairly. 27

[18] The New South Wales Nurses & Midwives Association (NSWNMA) wrote to HammondCare on 11 September 2015 seeking that negotiations for replacement agreements for the current agreements be state-based. 28 HammondCare met with the NSWNMA on 21 September 2015.29

[19] Bargaining meetings were held, in Sydney, on Thursday 8 October 2015 and Friday 9 October 2015.

2. Legislative requirements

[20] The relevant statutory considerations are set out in section 238 of the Act. Section 238 states 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.

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.”

3. Sections 238(1), (2) and (3)

[21] It was common ground between the parties that the jurisdictional requirements contained in sections 238(1), (2) and (3) have been met. 30

[22] The ANMF is a bargaining representative for the proposed agreement. It has made the application as a result of concerns that the bargaining for the agreement is not proceeding fairly or efficiently (section 238(1)).

[23] There is no single interest employer authorisation in place (section 238(2)). The ANMF gave notice of its concerns in its letters to HammondCare dated 29 May 2015, 16 July 2015 and 7 August 2015. 31

[24] A reasonable time was provided for HammondCare to respond to those concerns and the ANMF considers that HammondCare has not responded appropriately to those concerns (section 238(3)).

4. Section 238(4)

[25] This requirement was vigorously contested by the parties. I will deal with each of the requirements of section 238(4) in turn.

(a) Section 238(4)(a) - good faith bargaining requirements

(i) ANMF - submissions

[26] It was submitted on behalf of the ANMF that the ANMF has been, and is, meeting the good faith bargaining requirements. It was noted that the union is required to have satisfied one or the other of the good faith bargaining requirements. The ANMF argued that it has done both. This was on the basis that:

• The ANMF has repeatedly sought to bargain with HammondCare since at least 2014. As is its right, HammondCare stated that its intention was not to bargain until at least July 2015. In the end, it was stated that HammondCare did not commence bargaining until October 2015. 32



• At the time the application was made, the ANMF was meeting the good faith bargaining requirements. The ANMF had done everything that it could be reasonably expected to do to engage with HammondCare. It had sent correspondence that set out its position and had met with HammondCare to discuss the course of bargaining. 33 The ANMF was happy to sit down and discuss an agreement. The union certainly had a claim that the agreement would only cover workers in Victoria. However, the ANMF wanted to bargain with everything on the table.34



• It was HammondCare (as was their right) who not want to bargain prior to July 2015 and so it was HammondCare who was the cause of the delay rather than the union. 35



• HammondCare is not, and has never been, prepared to consider a separate agreement for Victoria. It was argued that HammondCare is not prepared to consider different terms and conditions between states and was said not to have agreed to any of the Victorian based conditions advanced by the ANMF. 36

[27] The ANMF further contended that the union was presently meeting the good faith bargaining requirements. HammondCare’s contention that the ANMF was simply going through the motions and has not kept an open mind was rejected by the ANMF. 37 This was on the grounds that:

• The ANMF had participated in 2 full-day negotiating meetings and two senior officials flew to Sydney to engage in those negotiations. 38



• The first part of the first day of the two day bargaining meeting was taken up by an introduction of all of the bargaining representatives to each other. Following this, the union set out its claims clearly and comprehensively in writing and through an oral presentation (of 1hour 40 minutes) to the bargaining group. The union listened and responded appropriately to the log of claims put by the other bargaining representatives. 39



• The rest of the first day and all of the second day was then taken up with a clause by clause analysis of the two existing New South Wales Agreements. The union actively engaged in this process which was imposed on it by HammondCare. The union has been critical of the process but participated in it. Ms Reeve was said to have made comments on various clauses and proposed wording changes to other clauses. She discussed the differences between a particular clause in the existing agreements and the ANMF’s claim. Ms Reeve was also said to have given in principle agreement to a number of matters, subject to the approval of the members. 40



• The union had then indicated its intention to continue to participate in future meetings. It also undertook to do some drafting and research work prior to the next meeting. 41



• The vast majority of the ANMF’s claims were said to have been placed in the “car park” for later discussion. As the clause by clause process was worked through, when a clause came up that touched on the ANMF’s log, Ms Reeve had discussed it. There was no opportunity for Ms Reeve to make concessions in circumstances where the parties did not get further than discussion of the claims and the differences. 42

[28] In addition, the contention by HammondCare that Ms Reeve did nothing more than repeat the ANMF’s claims and make no concessions was rejected. This was on the basis that not all of the bargaining representatives had put their logs of claims on the table. The stage of the process was not one where parties were reaching agreement or making concessions. Rather, it was described as a tedious clause by clause review of the two existing agreements and not a full and frank negotiation. 43

[29] Further, it was contended that the process for bargaining was established by HammondCare, taking into account feedback given by the ANMF. It was stated that ANMF representatives had engaged in each part of the process. Secondly, it was argued that HammondCare then dictated that the negotiation would proceed by way of a clause by clause analysis of the existing New South Wales agreements. The ANMF stated that the union had actively participated in this process as well. 44

[30] HammondCare’s submission that the ANMF was not bargaining in good faith because it was not prepared to sit down and discuss a national agreement was said to fail for two reasons. The first reason was that HammondCare had confused the concept of negotiation with the claims made in bargaining. It was stated that the ANMF had been asking to negotiate for over a year and that, now that bargaining had commenced, it was negotiating. It was submitted that there was nothing improper in the ANMF’s claim that the agreement has a scope that covers only workers in Victoria nor that the union was pressing it vigorously. The fact that the union was doing so does not mean that it is not prepared to sit down and bargain. 45

[31] The ANMF contended that previous scope cases have made it clear that there is a difference between the process of commencing bargaining and the scope of the resulting agreement. It was stated that they are two separate processes which must not be run together. The first step was said to be to bargain. The second step was that scope is determined during the course of negotiations or through good faith bargaining or scope orders. The evidence of Mr Hubbard and Ms Reeve was said to confirm that the ANMF was prepared to sit down and talk about a national agreement. 46 It was stated that the ANMF seeks to bargain for a scope that covers only employees in Victoria. If the union does not achieve that, it was stated that it will still be covered by the proposed agreement and the union intends to continue bargaining for an agreement.47

(ii) ANMF - evidence

Ms Reeve

[32] It was Ms Reeve’s evidence that:

• It was agreed that HammondCare, during the meeting on 28 January 2015, had stated that it wanted to negotiate an agreement that covered its facilities in Victoria and New South Wales. Ms Reeve confirmed that the ANMF had expressed concern about the differences in conditions between Victoria and New South Wales. She said that neither party said let’s sit down and talk through what a national agreement would look like, during that meeting. She disagreed that, at that stage, the union was simply not interested in what a national agreement would look like as the union wanted a Victorian agreement only. It was recalled that the discussion in January was a softer discussion where HammondCare stated its intent and the union stated a contrary view in that the union was concerned about the differences in conditions between the agreements ie. areas of disadvantage for their members. 48



• It was confirmed that the ANMF wanted a Victorian agreement and not a national agreement. However, the union always had an intention to negotiate. 49



• At the time of the ANMFs letter to HammondCare dated 16 July 2015, it was Ms Reeve’s view that both parties had opposing positions. 50 It was stated that it was very clear to HammondCare that the ANMF sought to commence bargaining from early on and that it was the ANMF’s position that a Victorian agreement was being sought. It was recalled that HammondCare’s reasons for not wanting to commence bargaining were because their operations had not fully started in Victoria and because of the timing of the expiry of their New South Wales agreements. The union did not think that the latter was a relevant consideration.51



• She disagreed with the contention that the request for HammondCare to agree to the six Victorian standard conditions was unrealistic. This was on the basis that they are standard in Victoria and are generally viewed as uncontroversial. 52



• It was stated that, as a primary position, the ANMF was not prepared to sit down and talk to HammondCare about negotiating a national agreement. This was because the union was still seeking a Victorian agreement. 53

• She disagreed that the ANMF has done no more than HammondCare in that it has simply refused to discuss negotiations for a national agreement. From the correspondence received from HammondCare, it was clear that HammondCare was unwilling to negotiate or commence negotiations for an enterprise agreement, whether it be national or Victorian, until a set timeframe that they had in their minds. That timeframe was said to have turned out to be October 2015 which was originally stated as July 2015. There was said to have been no willingness on the part of HammondCare to meet to discuss these issues and deal with the timeframe that HammondCare had proposed. 54



• It was Ms Reeve’s perception that HammondCare’s primary reason for not starting bargaining, when they already had a lot of Victorian employees employed at the Caulfield facility, was because they were waiting to get closer to the expiry dates of the New South Wales agreements. This, in the union’s view was not particularly relevant to a negotiation for a new enterprise agreement that would cover Victorian employees for the first time. She did not think that the Victorian facilities becoming fully operational was the dominant reason. 55



• She disagreed that the ANMF had refused to consider any alternative to a Victorian only agreement and pointed to the proposal put to HammondCare on 16 July 2015. 56



• She explained that she had not responded to Hammond Care’s email of 26 August 2015 because she did not have any queries about the correspondence and did not think that it required a response. 57



• She confirmed with HammondCare that the union’s position was that it would want to be covered by an agreement. It was denied that she had reserved her position with respect to every claim discussed. It was recalled that the statement she had made was that, whilst the union proposed a Victorian agreement, the union would engage in the clause by clause analysis in that context. The ANMF did not accept that the New South Wales agreements were the baseline to start discussions about a Victorian agreement. However, given that it seemed to be a fait accompli that the negotiations were going to proceed with a clause by clause analysis of the existing New South Wales agreements, it was in that context that the ANMF engaged in those discussions. 58



• The union also felt that it was a fait accompli, unless the scope application was successful, that there would be a national agreement. This was on the basis that HammondCare’s mind was made up and that that had been made very clear to the union throughout all of the correspondence and that the meetings on 8 and 9 October 2015 did not suggest any differently. 59 It was stated that, if it is a national agreement that has to be negotiated, the ANMF will continue to participate and represent the views of the members.60



• During the bargaining meetings on 8 and 9 October, the ANMF presented their log of claims. It was confirmed that HammondCare had asked her on a number of occasions during the meeting whether what the union was seeking was the standard entitlement in Victoria or whether it was more generous. 61 It was stated that there was no agreement indicated by HammondCare in relation to the ANMF’s claims at this time. It was confirmed that, after the ANMF had gone through their log, the union was asked by HammondCare if it wanted to be bound by a national agreement. The union’s response was said to be no that the union wanted a Victoria only agreement but that the union also wished to be bound by an agreement. It was acknowledged that there was nothing surprising about the latter part of the union’s response.62



• During the bargaining meetings on 8 and 9 October 2015, with respect to ADOs, even though they were virtually non-existent in Victorian aged care, this was something that she would have to discuss directly with members. She intended to do that. 63 She had also raised the issue that, in Victoria, the casual loading applies in addition to penalty rates on the weekends as well as in addition to shift allowances.64



• There was a lot of discussion from the employee bargaining representatives, during the bargaining meetings, in relation to the 2.5% for roster changes. While she did not retract from the ANMF’s position, she certainly engaged in the discussion along the lines of, should the wording change, then that claim may fall away. However there was no agreement around the wording at that point in the negotiations. 65



• She felt that she was an eager participant in the process during the bargaining meetings and had made comments in relation to a number of matters. It was recalled that she proposed, and it was accepted, that she would provide a template of a model flexibility clause. She also made comments and discussed wording in relation to a number of other clauses including superannuation, ordinary hours of work, shift allowances. 66 Ms Reeve noted that there were some claims in relation to hours of work and rosters. It was confirmed that she had made some proposals in relation to wording of the anti-discrimination clause, the no extra claims clause and hours of work and rosters.67 It was recalled that the union expressed that it had no objection in principle to rolling in the laundry allowance and that it would be taken back to the membership.68



• In relation to the discussions about the wording of clauses, these were centred around an existing entitlement in the New South Wales agreement and how it actually played out operationally. There was also discussion around claims (the union was putting their log) and where people were dissatisfied with the way in which the clause operated. It was recalled that the bargaining representatives talked about the rostering clause quite extensively and she had raised the issue of the change of roster allowance which is a standard condition in Victoria. That had resulted in quite substantial discussion around the operations. As a result, the wording that was suggested may take care of the change of roster issue, subject to agreement from the members. 69



• As she had not taken the bargaining group through the ANMF Victorian branch’s model template agreement, it was those matters that she sought to raise during the clause by clause analysis. 70



• She was frustrated by the clause by clause process and had raised her concerns about it before the meeting commenced. Her concerns were said to have been in the context that other bargaining representatives were not in a position to put forward their claims which meant that the parties would have to revisit all of those matters when the other bargaining representatives’ claims were ready to go. In addition, she felt that the focus was on the minutia of an agreement utilising the existing agreements which were not a baseline for negotiation. She felt that the logical place for the negotiations to start was the bigger picture items about how the agreement would look. 71



• She agreed that the ANMF has made it clear on a number of occasions (roughly 10) that it seeks to negotiate an enterprise agreement that applies to Victorian employees only. She also stated that HammondCare has said to the union consistently that they want an enterprise agreement that covers employees in Victoria and New South Wales. 72



• She said that the union was at the meetings on 8 and 9 October to negotiate an agreement. It was acknowledged that the union certainly sought a Victorian agreement. 73



• She confirmed that she had written to HammondCare and had proposed the agenda for the meetings scheduled for 8 and 9 October 2015. It was Ms Reeve’s view that the union got one small part of what it wanted in relation to the agenda. This was that the union had the ability to present their log of claims. 74



• In relation to the ANMF resolution, it was confirmed that the resolution was sent to HammondCare the day before the meeting. It was explained that, as a matter of course, the union would meet with its members in order to go through the claims. The resolution that was sent to HammondCare was the one that was passed at the meeting to endorse the claims. The resolution provided that, should a reasonable proposal not be provided, then the members would be in support of a protected industrial action ballot order application being made. It was stated that the members are not just sheep and that they are going to want to see what the union might consider to be an unreasonable proposal before such an application is made. Ms Reeve did not agree that the only reasonable proposal that the ANMF would consider is a Victorian only agreement. 75

Mr Hubbard

[33] Mr Hubbard gave evidence that:

• There are about nine major conditions of employment which are more favourable in Victoria than in New South Wales, together with a range of other matters including the number of paid tea breaks, payment of annual leave loading and public holiday provisions. 76



• At the time Mr Hubbard made his statement, the ANMF had not sat down and had a fulsome discussion with HammondCare about the terms and conditions of an enterprise agreement. 77



• At the meeting held with HammondCare on 21 May 2015, the union wanted to find out whether or not HammondCare would commit to preserve what the union regarded as quite significant differences between Victorian conditions and New South Wales. It was said to be important to the union to ascertain whether, if HammondCare was looking at a national agreement, they would engage on the basis that they would recognise and commit to preserve those differences. 78



• He disagreed that the real concern for the union was about preserving, in large part, Victorian terms and conditions. He agreed that it was part of it but said that the union had negotiated agreements where it has departed in various ways from the standard conditions. Rather, his concern was that, in the process of negotiating, Victorian employees, if they chose to give up something, understood what they were doing and that, if it was part of a national agreement, they understood that they effectively had very little say because they were only 20% of the workforce. 79



• He disagreed with HammondCare’s evidence that some clauses in the New South Wales agreements are necessarily more beneficial than the ANMF template. 80



• He disagreed with the proposition that, because it is the same model of care in New South Wales and Victoria, terms and conditions have to be negotiated as part of a national agreement. It was stated that it can be negotiated as part of a New South Wales agreement and a separate Victorian agreement - and equally in a national agreement. 81



• He did not accept HammondCare’s view that the industrial agreement is important to having a HammondCare model of care because very little in the existing agreements went to that model of care. 82



• In relation to the transfer of staff between New South Wales and Victoria on a short short-term basis, it was said that it may well be that some agreement can be reached. 83



• It was denied that what the ANMF was trying to do was to force on HammondCare’s Victorian operations, the union’s template agreement. He said that the union is willing to talk about variations, whether it is to the classification structure or to other conditions, as it has done with a number of other aged care providers. It was said that it was all in the context of a package of terms and conditions that apply. 84 The union was said to be willing to talk about the classification structure, which was key to HammondCare’s model of care, but that it is in the context of the rates of pay and the other conditions.85

(iii) HammondCare - submissions

[34] It was submitted by HammondCare that the ANMF has not met, and is not meeting, the good faith bargaining requirements as set out in section 228(1)(d) of the Act. This was on the basis that the ANMF has not and is not, giving genuine consideration to HammondCare’s proposal to bargain for a national agreement. 86 HammondCare contended that, at the time the application was filed, the ANMF had not sat down with HammondCare in one single meeting to discuss with HammondCare the terms that HammondCare would consider in a national agreement. Further, it was stated that at no stage, has the ANMF kept an open mind about the prospect of reaching an agreement about a national agreement. HammondCare contended that the ANMF had no genuine interest in actually agreeing or considering what the terms of a national agreement might be. It was said that the ANMF’s position has been that it is the ANMF’s Victorian-based terms and conditions or nothing. HammondCare argued that this was not bargaining in good faith as bargaining in good faith would require the ANMF to ask what a national agreement would look like.87

[35] In addition, HammondCare argued that there had been an assumption by the ANMF that a national agreement would just be rolling over the New South Wales agreements. It was stated that it may be that, after a number of bargaining meetings, that was an assumption that could be well-founded. However, this was said to have not happened. HammondCare explained that the framework for the negotiating meeting in October 2015 was a multi-framework which involved presentation of the ANMF’s log of claims followed by HammondCare explaining their log. It was stated that the parties had not even finished going through the New South Wales enterprise agreements. 88

[36] The Commission was referred to the Federal Court decision in Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia 89 where it was found that good faith bargaining meant approaching bargaining with a genuine or good-faith objective or intention to conclude an enterprise agreement if possible and keeping an open mind about the prospect of ultimately reaching an agreement.90

[37] HammondCare also contended that, each time HammondCare advised the ANMF that it wanted to negotiate a national agreement, the ANMF was said to be either non-responsive or the union reiterated that it wished to negotiate an enterprise agreement covering Victorian employees only. 91 In support of this contention, HammondCare referred to the following events:

• In reply to HammondCare’s letter dated 12 November 2014 where HammondCare indicated its desire to negotiate a national agreement, the ANMF response (letter dated 5 December 2014) was said to be unresponsive to the national agreement proposal but had set out its views about a number of issues. 92



• At the meeting on 28 January 2015 when HammondCare reiterated that it wanted to negotiate a national agreement, neither of the union officials told HammondCare that they were prepared to talk about what a national agreement would look like. It was stated that Ms Reeve had admitted that the ANMF had never had any intention to negotiate a national agreement. 93



• By email a week later, dated 5 February 2015, the ANMF again reiterated its desire to negotiate a Victorian only enterprise agreement. 94



• During a meeting on 21 May 2015, HammondCare made it clear that the purpose of the meeting was to meet the ANMF’s representatives. However, all that the union was said to want to discuss was the union’s template Victorian agreement. 95



• Following this meeting, HammondCare wrote to the ANMF, dated 10 June 2015, and outlined why it was important for HammondCare to have a national agreement. The ANMF responded (letter dated 16 July 2015) and said that, if HammondCare did not agree to a Victorian only agreement, the union would make a scope order application. 96 It was argued that the requirement for HammondCare to agree to six entitlements in isolation from other terms and conditions in a national agreement was unrealistic and did not indicate a genuine open mind to negotiate a national agreement. Ms Reeve’s evidence was highlighted where Ms Reeve had indicated that, at that time, the ANMF was not prepared to talk to HammondCare about a national agreement as its primary position was still a Victoria only agreement.97



• On 4 August 2015, HammondCare wrote to the ANMF and said that it was keen to negotiate a fair and equitable national agreement and to discuss the terms and conditions demanded by the ANMF in its 16 July 2015 letter. In its response, the ANMF was said to have accused HammondCare of refusing to give genuine consideration to an agreement covering Victorian employees only. The letter was also said to have expressed the view that HammondCare was not responding to the ANMF’s concerns appropriately. 98



• HammondCare had repeated its desire to negotiate a national agreement to the ANMF, by letter dated 24 August 2015 and an email dated 26 August 2015. It was stated that the ANMF had not responded to either. 99



• The resolution of ANMF members of 7 October 2015 which stated that, if there is not a Victorian agreement only, the members would embark on an industrial campaign. This was sent to HammondCare the day before bargaining commenced. The ANMF’s approach, during the negotiating meeting, was said to be that it repeated that the ANMF wanted a Victorian only agreement. This was described as the union just going through the motions of a national agreement and having not kept an open mind about reaching an agreement with HammondCare because they do not want to let go of the terms and conditions in Victorian enterprise agreements. 100

[38] In summary, HammondCare submitted that the only bargaining that the ANMF has engaged in is to simply press its claims for a Victorian only agreement. It was argued that the ANMF has not kept an open mind about reaching an agreement with HammondCare for a national agreement. Further, HammondCare contended that the union has not responded to HammondCare’s proposal in such a way that would assist the parties advance the negotiations. 101

(iv) HammondCare - evidence

Ms Raguz

[39] It was Ms Ruguz’s evidence that:

• HammondCare is currently giving to employees in Victoria the same terms and conditions that it gives to its New South Wales employees. 102



• it was accepted that employees in Victoria might have different views to their New South Wales colleagues in relation to their terms and conditions of employment. 103



• HammondCare has advanced a consistent position that it wants a national agreement and that remains HammondCare’s position. HammondCare was using the two New South Wales agreements as its bargaining base. 104

Ms Gulczynski

[40] Ms Gulczynski gave evidence that:

• It was her understanding that the ANMF first made contact with HammondCare in relation to its desire to negotiate an enterprise agreement in October 2014. In its first response, on 12 November 2014, HammondCare expressed its intention to negotiate a single national enterprise agreement to cover all of the staff. 105



• It was accepted that, since October 2014, the ANMF had been attempting to sit down and talk to HammondCare about an agreement for its Victorian workforce and that HammondCare did not want to sit down prior to July 2015. 106



• HammondCare’s position remains, and has been so since December 2014, that it wants to negotiate a single national agreement covering both Victoria and New South Wales. It was confirmed by Ms Gulczynski that HammondCare’s preference is to still have a national agreement. 107



• HammondCare wants to commence with the consolidation of the two existing New South Wales agreements. 108



• HammondCare did indicate to the ANMF that it would like to bargain directly with its employees and that it anticipated that those discussions would take place after July 2015 to which the ANMF would be invited. 109



• The reasons why HammondCare did not want to sit down prior to July 2015 included the organisation-wide staff engagement survey and the need to wait until the home care enterprise agreement negotiations had concluded as there were not the resources to run concurrent negotiations. 110



• HammondCare did not sit down until after July 2015 to commence talking about the specific terms of an agreement. This was due to timing issues in relation to completion of the takeover of Victorian operations. 111

• The expiration of one of the existing agreements on 31 December 2015 may have been a factor that was considered but it was not a deciding factor for why HammondCare wanted negotiations to commence in July 2015. 112



• HammondCare communicated to the ANMF that it wanted to proceed from the basis of the two existing New South Wales agreements and that they wanted to consolidate them into a single national agreement. It was confirmed that it was HammondCare’s intention from the very beginning that the two existing agreements consolidated together would form the basis for the negotiations. HammondCare was not, at any point, proposing to start from a blank sheet of paper. 113



• HammondCare has not at any time, and still is not, been prepared to commence from the basis of the template agreement provided by the ANMF. HammondCare is prepared to discuss the contents of the ANMF template agreement during the course of bargaining. 114



• In relation to the six standard Victorian aged care employee entitlements proposed by the ANMF, HammondCare has not undertaken a costing of the provision of those entitlements to its Victorian employees nor to its New South Wales employees. 115



• With respect to the ANMF’s proposed template agreement, one of the factors in forming the view that it was general, outdated and not necessarily applicable was that the proposed agreement provided for an enrolled nurse structure. It was confirmed that the existing New South Wales residential care agreement contains an enrolled nurse classification. In addition, HammondCare does not require employees to be on-call. It was confirmed that there was an on-call allowance in one of the existing agreements. She could not criticise the ANMF for making sure that it included terms from one of the existing agreements or a company policy in the proposed agreement. 116



• It was agreed that the ANMF was prepared to discuss the terms that form part of the template agreement but she was not alleging that the ANMF were not prepared to negotiate those terms. 117



• During the meeting with the ANMF on 21 May 2015, it was clear that the ANMF wanted to provide the terms and conditions which they claimed were the industry standard in Victoria to employees at Caulfield. 118



• At the time that HammondCare received the request to commit to maintaining six specific entitlements, it was HammondCare that was refusing to sit down with the ANMF. This was because HammondCare had not yet commenced the bargaining process and HammondCare wanted to involve the staff in the discussions. Further HammondCare was unable to agree to the six specific terms in isolation as an enterprise agreement needs to be negotiated as a whole. It was confirmed that HammondCare has not agreed to any of those six specific terms in the bargaining so far. 119



• As far as she was aware, HammondCare accepted nominations of employee bargaining representatives from every employee who indicated that they wanted to be part of the negotiations. Two individual employees expressed interest from Victoria. Ms Gulczynski was not aware of HammondCare taking any steps to see if more than those two employees might be interested in attending the negotiations. Only one Victorian employee representative attended the bargaining in October 2015. 120



• HammondCare was not proposing, at this stage, to roll the additional benefits provided to employees into the enterprise agreement. At this stage, it was HammondCare’s intention to continue to provide these benefits outside the terms of the enterprise agreement. This was because the process has not finished and HammondCare has not been able to hear from everyone about what they would like put on the table. Therefore, HammondCare cannot consider a total package to offer. 121



• HammondCare arranged the first formal negotiating meeting for 8 and 9 October 2015. The purpose of the meeting was, and still remains, to negotiate a single agreement to replace the two existing New South Wales agreements. 122



• She is not taking issue with the ANMF’s right to seek to improve the conditions it says are standard in Victoria nor the terms in the existing New South Wales agreements. 123



• The ANMF has made it very clear that they want a Victorian only agreement. She felt that the ANMF’s presence during the bargaining meetings, when the clause by clause analysis of the two existing agreements was being undertaken, was really just going through the motions. 124



• It was accepted that two ANMF representatives flew to Sydney to attend the bargaining meeting and that they were present for all of the 2 days except that they left 20 minutes before the close of the second day. It was also accepted that they presented a log of claims for over 1 hour and 40 minutes and that the entire ANMF log of claims and the question of a Victorian only agreement was placed in the car park, together with other matters. 125



• It was stated that there was no specific discussion about the ANMF’s log of claims outside of the clause by clause analysis process. Reference was made by Ms Reeve to specific items in the log of claims when they related to a clause that was currently being discussed. Of the two day bargaining meeting, an hour on the first day and all of the second day was devoted to the clause by clause analysis proposed by HammondCare. Ms Reeve was said to have had the opportunity to discuss the log of claims further when the meeting was going through the clause by clause analysis. 126



• Ms Reeve was said to have commented on many of the clauses that came up during the clause by clause analysis and that she made small suggestions about changes to wording. It was stated that most of the commentary was around what was standard in Victoria or whether it was different in Victoria - which was the ANMF representing its members. 127



• It was agreed that the process revealed differences between the HammondCare agreements under consideration and the Victorian terms and conditions. However, this was said to be the whole point of bargaining discussions which identified what the differences are and what is relevant to the employees and to the organisation. 128



• In relation to the issue of ADO’s (Allocated Days Off), it was accepted that Ms Reeve had actually said that they were virtually non-existent. Ms Gulczynski indicated that it was reasonable for a bargaining representative to take a question back to their members before committing either way. 129



• With respect to the claim for a shift allowance of 2.5% for roster changes, there was a lot of discussion about rosters. Ms Gulczynski was of the view that the staff were happy for the clause to stay as it was but did concede there were different views because the ANMF had put forward a different view. It was confirmed that elements of it remained in the car park for further discussion. 130



• It was confirmed that the NSWNMA did not provide a log of claims during the negotiating meeting because it had not yet been finalised. Ms Gulczynski stated that the NSWNMA was still able to express its views throughout the meeting. 131



• In addition to the clauses identified in her supplementary statement, it was indicated by Ms Gulczynski that Ms Reeve had also made comments on the confidentiality clause and the draft flexibility clause and undertook to provide a draft flexibility clause for consideration. It was stated that Ms Reeve had probably made comments on most of the clauses but that the ones in her statement were the ones that Ms Reeve had made minor suggestions about. Ms Gulczynski indicated that Ms Reeve contributed to the discussion around most of the clauses that were considered across the two days. 132



• The two existing New South Wales agreements are derived from the New South Wales State Award. 133 They contain terms and conditions which are superior to the State Award.134 Whilst some of the Victorian aged care terms are more beneficial than the existing New South Wales agreements, in some cases, the New South Wales agreements provide more beneficial terms.135 In addition, HammondCare provides a number of benefits to employees that are outside the enterprise agreements.136

(b) Section 238(4)(b) - fair and efficient bargaining

(i) ANMF - submissions

[41] It was submitted by the ANMF that, in considering the effect of the proposed order on the fairness and efficiency of bargaining, the Commission should properly have regard to the interests of all persons who have an interest in the bargaining process including the views of the employees. It was stated that, whilst the views of the employees are not determinative, they should be given substantial weight. 137 The ANF argued that the evidence in relation to the conduct of bargaining is as follows:

• The negotiations are being held in Sydney which places a significant burden on the Victorian ANMF officials. This was despite HammondCare’s late offer to “consider” paying for Victorian ANMF officials to fly to Sydney to participate in bargaining. 138



• Two days of bargaining have occurred from a total of three which were allocated by HammondCare. Only one Victorian employee representative was in attendance during those two days (a ratio of 1:8 as compared to New South Wales employee representatives). 139



• Bargaining has not progressed across the past nine months due to the impasse between the union bargaining representatives and HammondCare on the question of scope. As both parties are entrenched in their respective positions, it is likely that bargaining will continue to stagnate until the dispute about scope is resolved. 140



• HammondCare’s position is that bargaining should proceed on the basis of the conditions provided for under the modern award and the two existing agreements. HammondCare has also insisted that it be conducted primarily by a clause by clause review of the existing New South Wales agreements. 141



• Bargaining representatives from New South Wales have expressed frustration at the necessity to continually review the Victorian terms and conditions against the conditions contained in the two New South Wales agreements and have been dismissive of the Victorian specific claims. 142

[42] The ANMF contended that bargaining would proceed more efficiently if a scope order was made because:

• Negotiations would not proceed from the basis of a clause by clause analysis of the two New South Wales agreements which had restricted the parties’ ability to engage in discussion of the substantive matters in the claims. 143



• New South Wales and Victorian bargaining representatives respectively would be freed from the time and inconvenience of discussing the claims for Victorian/New South Wales specific conditions.



• Negotiations would not be constrained by HammondCare’s insistence on a single set of terms and conditions for all its employees. 144

[43] It was further argued by the ANMF that bargaining would be fairer if a scope order was made, as:

• Victorian employees and bargaining representatives will have a greater opportunity to participate in bargaining. The overwhelming majority of employees in Victoria are currently employed at the Caulfield campus (approximately 200 employees) with a small number employed in homecare. Therefore, there will be a greater opportunity for employees in Victoria to participate in bargaining. 145



• The Victorian employees will not be forced to bargain from the benchmark of the terms and conditions in the current New South Wales agreements. Rather, they will have the benefit of the Victorian industry standard terms and conditions. This was said to be particularly relevant as employees in Victoria only have the modern award safety net underpinning their terms and conditions and these negotiations represent the first opportunity for Victorian employees to negotiate for benchmark terms and conditions. 146



• Victorian standard terms and conditions are different to those applicable to New South Wales and, in most cases, are more beneficial including a substantial wages differential. 147 It was denied that the ANMF want nothing more than to impose on HammondCare the Victorian standard terms and conditions. Mr Hubbard’s evidence was referred to where he indicated the possibility of an outcome of bargaining that is different from what is standard in Victoria and also a range of workplaces where the ANMF has departed from the standard terms and conditions.148



• Bargaining can focus on the claims made by the Victorian bargaining representatives in the context of the history of industrial regulation in that state. 149



• The minority interests of the Victorian employees will not be subjugated to the interests of the majority in New South Wales. It was said to be clear that the interests of the Victorian employees are sufficiently different to their New South Wales colleagues so as to warrant protection and that the proposed method of bargaining poses a real risk that the majority will override those interests. Victorian employees represent around 20% of employees to be covered by the proposed national agreement. Ms Reeve’s evidence was referred to where she stated that, when there was a disagreement between the bargaining representatives for Victoria and New South Wales, weight was given to the majority of voices in the room. 150



• Two Victorian employees nominated to be employee bargaining representatives but only one Victorian employee representative attended the bargaining. HammondCare did not take any steps to encourage other Victorian employees to attend the negotiations. Ms Gulczynski conceded that the Victorian representative was “substantially outweighed” by the New South Wales representatives. 151

[44] In relation to HammondCare’s contention that the ANMF has conflated the process of bargaining with the outcomes of bargaining, it was contended that this is not the case. HammondCare’s argument was said to be that all of Mr Hubbard’s evidence was about the terms and conditions in Victoria and that, therefore, the ANMF was only concerned about the outcomes of bargaining rather than the process. It was stated that this evidence was called because “fairness” has to be assessed in context - in accordance with the relevant authorities particularly the Transport Workers Union case. A range of factors need to be looked at e.g. the interests of the employees, the history of industrial regulation. Fairness was not to be assessed in a vacuum. 152

[45] It was submitted that the evidence goes to the framework in which the ANMF is asking the Commission to make its assessment of fairness. It was stated that the framework is made up of a set of terms and conditions that are uniquely Victorian and a history of industrial regulation that has resulted in several hundred agreements which largely reflect those terms and conditions. More than 95% of providers in Victoria were said to have an agreement that reflects these terms and conditions. 153

[46] Further, it was argued that the criterion to be applied was not in the narrow way as contended by HammondCare. Rather, the Commission must have regard to the extent of common issues, the divergence of circumstances and apparent interests and the consequences of the various proposals in relation to the scope of the negotiations. It was stated that these criteria refer to the quality of the bargain and not merely its form. 154

[47] It was also accepted that the Commission is required to enquire into the interests of a minority whose interests will be adversely affected if the order is not made. Mr Hubbard’s evidence was referred to in this regard and was said to provide the context against which to assess “fairness”. Mr Hubbard’s evidence was stated to be about process and that it would be fairer if the scope order is made because currently, Victorian employees with a particular history do not have an opportunity to at least try and bargain for that group of conditions that have resulted from that history. 155

[48] Further, Mr Hubbard’s evidence was highlighted where he said that the issue was not necessarily about the outcome because the outcome of a Victoria only agreement could quite conceivably be slightly different to the normal Victorian standard given the low base of wages particularly for carers in the current HammondCare agreements. Rather, Mr Hubbard was said to have stated that it is about Victorian employees who would have that choice in the context of bargaining for a Victorian agreement about whether to give up some of those standard conditions which they would lose being part of a national agreement because they are outnumbered by 5 or 6 to 1. 156 It was stated that Mr Hubbard had denied the allegation that the ANMF wants to force the ANMF’s template onto HammondCare’s Victorian operations. Mr Hubbard was said to have indicated that the ANMF is willing to talk about variations to the standard Victorian arrangements as they have done in agreements with other employers.157

[49] With respect to HammondCare’s submission that differences can be worked out in bargaining, the ANMF contended that this was a somewhat heroic submission in light of the evidence that:

• HammondCare’s position remains that it wants a national agreement and that it is not actively considering a separate agreement for Victoria as it wants to consolidate the existing two New South Wales agreements into a national agreement. 158



• It was HammondCare’s intention from the beginning that the two New South Wales agreements consolidated together would form the basis for negotiations and HammondCare was not proposing to start from a blank sheet of paper. 159



• Hammond is not prepared to negotiate from the template provided by the ANMF. 160



• HammondCare wants consistent terms and conditions across its workforce. 161

[50] With respect to HammondCare’s contention that the ANMF might be able to negotiate all of the Victorian terms and conditions in a national agreement, it was argued that this was not feasible. This was because:

• The workforce in Victoria is small and there is a very large workforce in New South Wales. 162



• HammondCare has conceded that it has not costed the ANMF’s claims, either for the Victorian workforce or for the New South Wales workforce. This is despite having had the ANMF’s log of claims for many months. 163



• The ANMF has now sought six key terms to be preserved. HammondCare has conceded that not one of those has been agreed to. 164



• HammondCare wants a national agreement and is not prepared to consider a state-based agreement. 165



• HammondCare wants consistent terms and conditions across its workforce with those terms and conditions being the New South Wales terms and conditions together with whatever improvements can be bargained for from that base. 166

[51] Given this situation, the ANMF submitted that if the current process is allowed to continue, the unfairness for Victorian workers will come to pass. It was said to therefore be necessary that an order be made to improve both the fairness and efficiency of the bargaining. It was argued that the making of the order will substantially increase the opportunity for Victorian employees to participate in the bargaining - not just physically because it will take place in Melbourne rather than Sydney but also because it will permit more people from Victoria to actively attend and participate in the bargaining itself. 167

[52] In response to HammondCare’s submissions in relation to the decision in Transport Workers’ Union of Australia v Chubb Security Services Ltd 168 (Chubb), the ANMF contended that the factual circumstances in the two cases were substantially different. In this case, it was stated that the ANMF has consistently talked about the process of bargaining which is unfair and that it has nothing to do with the taking of industrial action or any particular outcome.169

[53] With respect to the decision in Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd 170 (Coles), the ANMF highlighted that the decision provided that the weight to be placed on the interests of the minority are to be assessed in all of the circumstances of any given case. It was argued that the circumstances in this matter include the history of industrial regulation. Further, the ANMF submitted that a group of employees being swamped is something that the Commission is entitled to take into account, provided it does so in all the circumstances of the case. It was stated that, in the peculiarities of this case, it is appropriate that regard to be had to this circumstance.171

(ii) ANMF - evidence

Ms Reeve

[54] It was Ms Reeve’s evidence that:

• Significant time, during the meetings on 8 and 9 October 2015, was spent in descriptive discussions about the standard Victorian aged care industrial entitlements. This would not be required if separate Victorian negotiations were conducted as these entitlements would be familiar to Victorian employees. 172



• It was agreed that, to some degree, even if there were separate Victorian negotiations, these terms would still need to be explained to HammondCare. However, it would maybe not be in the same way that one does when there are staff employee bargaining representatives present who were not familiar with industrial relations. 173



• A lot of the description around the Victorian entitlements was not just for HammondCare but for the other employee bargaining representatives. The union would still have to explain the genesis of the some of the terms to HammondCare. However, as HammondCare has had the model agreement since May 2015, HammondCare would have a different level of familiarity with the standard Victorian terms and conditions. This was compared with the other employee bargaining representatives who had only received the model agreement on 8 October 2015. 174



• When the union went through its log of claims during the meeting, it had gone through the process of explaining what it wanted. 175



• During the negotiations on 8 and 9 October 2015, weight was given to the majority views of the group which disadvantaged Victorian employees. 176



• During the clause by clause discussions, when there was disagreement about the merit of one of the union’s claims put on behalf of the Victorian employees, and the disagreement came from the New South Wales employee bargaining representatives, weight was given to the majority of the voices in the room (the New South Wales employee bargaining representatives). 177



• There were no decisions made regarding agreed matters but decisions were made in relation to what went into the car park. One had to be very active to get one’s issue in the car park given those other voices in the room. 178

Mr Hubbard

[55] In relation to this consideration, Mr Hubbard gave the following evidence:

• The bargaining process would be fairer due to, with a Victorian only agreement, it is Victorian employees who would have a choice about what terms and conditions to accept. If it is a national agreement, Victorian employees would not have that choice as they are outnumbered by 5 or 6 to 1. 179



• It would not be fair if Victorian employees, with a particular history, did not have the opportunity to try and negotiate for Victorian conditions. 180



• There was one representative from Victoria and one union representative from Victoria out of about a dozen employee representatives at the negotiating meeting in October 2015. There were not 10 people from Victoria who were arguing for the Victorian standard. 181



• It is not about the weight of numbers. Rather, it is about the fairness of the bargaining. Even if the bargaining results in something less than the Victorian standard, at least it would be Victorian employees who arrived at that outcome. 182



• HammondCare has made it pretty clear that they would rather engage directly with their employees. 183



• The proposed model of bargaining by HammondCare (the negotiating meetings are to be held in Sydney) results in a significant financial burden on the ANMF to ensure that appropriate staff and representatives can attend the bargaining meetings. 184



• It was accepted that HammondCare was willing to consider paying for the reasonable travel costs of Victorian union representatives. The union has not made such a request to HammondCare. 185



• HammondCare proposes that all employees be invited to participate in the negotiating meetings. This disadvantages Melbourne employees who will be less likely or less able to travel to Sydney to participate. 186



• In having to travel to Sydney for the negotiations, Victorian employees are additionally impacted as some may have carer’s responsibilities which make it difficult to be away from home overnight. 187

(iii) HammondCare - submissions

[56] The Commission was referred to the decision in United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board 188 (MFB) where it was found that the relevant consideration is that the Commission should be satisfied that, if the order is made, the bargaining will at least be fairer or more efficient or both than it would be, if no order was to be made. Further, HammondCare submitted that a more effective bargaining process was to be considered for all of the parties involved.189

[57] It was contended that the complaint by the ANMF, that bargaining was not fair or efficient because HammondCare has an entrenched position and so bargaining would be fairer if the order was made, was said to not be a correct characterisation of the real issues in dispute between HammondCare and the union. 190

[58] HammondCare submitted that the real issues in dispute between the ANMF and HammondCare are the terms and conditions of employment of its members employed Victoria. It was stated that this issue transcended the issue of scope. Mr Hubbard’s evidence, which was said to support this contention, was described as almost entirely concerned with the terms and conditions of employment in Victoria as compared with those in New South Wales. 191 Ms Reeves’s evidence was also referred to in this regard.192

[59] It was argued by HammondCare that the scope order was not going to make any difference to the fight that the parties were going to have - whether it was in the context of a national agreement or a Victorian only agreement. This was because the parties are entrenched between HammondCare’s position of wanting a national agreement based on the terms and conditions in the New South Wales agreements and a preparedness to depart from some of those terms and the ANMF’s template agreement and the ANMF’s preparedness to depart from some of those. It was stated that the same fight/robust bargaining is going to be had, just for a Victorian agreement, as the parties are now having for a national agreement. It was stated that there was going to have to be a meeting of minds at some stage between the ANMF and HammondCare. 193

[60] The true complaint of the ANMF was said to be that the ANMF was going to be swamped. HammondCare did not concede that the parties were entrenched. 194 It was submitted by HammondCare that the impasse is not about the scope of a proposed agreement but about the terms and conditions of an agreement.195 Rather, it was contended that the reason the ANMF wants a Victorian only agreement is not because it wants a Victorian only agreement per se. It was said that it was because the ANMF has fought for terms and conditions that are in the template agreement and it wants to hold onto those terms and conditions. Therefore, it cannot to be said to be about Victorian employees ie. the scope of the agreement. It is about what is in the agreement.196 As HammondCare wants to hold onto the existing New South Wales terms and conditions, the case can only be described as one about terms and conditions and the reason that they are different is because they come from different scopes.197

[61] It was stated that the evidence showed that the ANMF want Victorian-based terms and conditions. The question was asked as to how bargaining was going to be more efficient by allowing the parties to have the same fight about a Victorian enterprise agreement as they would have if it was a national agreement. The Commission was referred to the decision in Coles in this regard. 198 On the basis of the findings in that decision, HammondCare argued that there is no evidence of any special interest or potential disadvantage to the Victorian employees.199 Further, it was contended that there is no evidence that the New South Wales bargaining representatives would necessarily disagree with the Victorian bargaining representatives in relation to the potential terms and conditions of a national agreement.200

[62] HammondCare submitted that the ANMF’s argument is misconceived as scope orders are directed at the bargaining process and not the outcomes of bargaining. The ANMF was therefore required to satisfy the Commission that the scope order would promote the fairer and more efficient conduct of bargaining and not a fairer or more efficient outcome of the bargaining. It was argued, therefore, that any differences in terms and conditions between Victoria and New South Wales would be matters for bargaining. 201

[63] HammondCare’s evidence was said to have been that HammondCare is prepared to discuss and negotiate different terms in a national agreement that are more beneficial than the New South Wales pre-reform awards. 202 There has already been some common ground reached between what the ANMF is seeking and what is already in HammondCare’s enterprise agreements with the possibility of further agreement.203

[64] HammondCare stated that the bargaining representatives for a proposed enterprise agreement have not had sufficient opportunity to bargain about the terms and conditions in a national agreement. During the bargaining process, the parties will need time to reconcile the terms and conditions in the existing HammondCare agreements with the standard Victorian terms and conditions as alleged by the ANMF. It was contended that this negotiation will need to take place irrespective of any scope order being made. Therefore, it could not be said that bargaining would be fairer or more efficient if a scope order was made. 204

[65] In relation to the ANMF’s argument that Victorian employees will have their interests subjugated to the interests of the New South Wales majority, it was stated that this was based on the assumption that Victorian employees’ interests would be neglected. The evidence was said not to support such a conclusion. 205 The Commission was referred to the decision in the Chubb in support of the submission that the real purpose of the ANMF in seeking the scope order, was to strengthen the bargaining position of its (smaller) group of members at a particular site.206

[66] In relation to the ANMF’s concerns that the process of the bargaining meetings was a clause by clause analysis of the existing enterprise agreements, it was highlighted that Ms Reeve had conceded that HammondCare was entitled to negotiate a national enterprise agreement commencing with a clause by clause review of its existing agreements. 207 Further, HammondCare argued that there was no evidence to support the ANMF’s contention that bargaining would proceed more efficiently if the scope order is made because negotiations would then not proceed from a clause by clause analysis of the two New South Wales agreements. In addition, it was argued that there is no evidence that bargaining has not progressed across the nine months due to the impasse on the question of scope.208

[67] With respect to the ANMF’s argument that a scope order would result in a greater opportunity for Victorian employees to bargain, HammondCare submitted that the reality was that the ANMF and other industrial organisations will be representing, in the main, the Victorian employees. Further, it was argued that there was no evidence that the ANMF could not fly to Sydney to conduct negotiations on behalf of its Victorian members. It was stated that the ANMF had not taken up HammondCare’s offer for financial assistance in flying the union up to Sydney. In relation to Victorian employees wishing to attend negotiations in Sydney, HammondCare would be prepared to support those employees by paying for their Sydney flights and accommodation. 209

[68] In terms of the ANMF’s contention that the scope order would remove the prospect of parallel bargaining, it was said to be not clear how this would occur if there were negotiations for separate agreements. HammondCare argued that, if the scope order is granted, HammondCare would be required to conduct two separate sets of negotiations in Victoria and in New South Wales in relation to the terms and conditions for employees performing the same duties. It was said that it should be noted that, during the bargaining meetings on 8 and 9 October 2015, the NSWNMA agreed with the ANMF’s position on almost all occasions. 210

[69] Finally, HammondCare submitted that the ANMF’s argument that it would need to explain Victorian conditions to bargaining representatives during negotiations, and therefore waste time, was without merit. This was on the basis that, even if a scope order is made, the ANMF will still need to explain the genesis of the conditions it is seeking. It was noted that Ms Reeve had conceded that this will need to be done to some degree. 211

(iv) HammondCare - evidence

Ms Gulczynski

[70] It was stated by Ms Gulczynski that HammondCare has paid the reasonable travel and accommodation costs for Victorian employees to wish to participate in the bargaining process. Therefore, employees from Victoria who wish to participate in the bargaining process will not be disadvantaged. 212 In addition, HammondCare is willing to consider paying for the reasonable travel cost of Victorian union representatives.213

[71] Ms Gulczynski accepted that, potentially, Victorian workers might place different values on different elements of their terms and conditions compared with those of their New South Wales counterparts. This was said to be the whole purpose of having bargaining discussions – to actually hear from employees about that. 214

Mr Martin

[72] Mr Martin’s written evidence was that, during the meeting on 28 January 2015 with the ANMF, he told the ANMF that he had expected that there would be some differences between the terms and conditions for nurses in Victoria when compared to New South Wales. He had also said that he would be happy to work through these with the union. 215

(c) Section 238(4)(c) - is the proposed group fairly chosen?

(i) ANMF - submissions

[73] The ANMF submitted that, in accordance with the various authorities on this sub section of the Act, the Commission can find that the group proposed to be covered is fairly chosen, notwithstanding that other groupings of employees might also be said to be fairly chosen. It was argued that there might be any number of groups that are fairly chosen in any particular workplace. The issue was stated to not be whether this was the fairest group or whether there are other groups that are equally or more fair. Rather, the only issue was whether or not this particular group is fairly chosen. 216

[74] It was stated that the group of employees who will be covered by the agreement are employees of HammondCare employed to perform work in Victoria. This group encompasses all persons employed within the geographical confines of the State of Victoria. Therefore, for the purposes of section 238(4)(A) of the Act, it can properly be said that the group is geographically distinct. It was stated that this group of employees also recognises the distinct conditions of those employees and the particular industrial history that has led to those terms and conditions applying. 217

[75] Secondly, the ANMF argued that the group proposed to be covered encompasses all employees of HammondCare in Victoria without distinction as to classification or occupation. This was said to be consistent with the approach adopted in almost all facilities in Victoria that are covered by an enterprise agreement. 218

[76] In addition, it was contended by the ANMF is that the scope is fair because it recognises the distinct conditions of employment that pertain in Victoria and the particular industrial history in Victoria that led to the achievement and maintenance of those terms and conditions. It was stated that the proposed scope will ensure that bargaining for the proposed agreement acknowledges and reflects the distinct conditions of employment and the unique history of industrial bargaining in Victoria. 219

[77] It was submitted that the submissions of HammondCare failed to recognise that there may be more than one group of employees that could be said to be fairly chosen. Where two competing groups are proposed, it was argued that the Commission’s task is not to determine which group is fairer. It was stated that, as long as the group chosen by the Applicant is fairly chosen, the requirement is satisfied. 220

(ii) ANMF - evidence

Mr Hubbard

[78] Mr Hubbard gave evidence in relation to the historical background to enterprise bargaining in the aged care industry. He stated that:

• There are relatively few multi-state enterprise bargaining agreements in private aged care due to the distinct differences in the historical (now preserved and enhanced by bargaining) terms and conditions of employment in each state. 221



• Enterprise agreements in private aged care Victoria generally provide for the standard conditions contained in the pre-reform Nurses (Victorian Health Services) Award 2000 222 and the Health and Allied Services - Private Sector - Victoria Award 1995223. These awards were generally incorporated by express reference into enterprise agreements and have thereby continued in operation.224 Since 2012, the ANMF has had a policy of seeking comprehensive agreements that expressly include the terms of the pre-reform awards where these have not been improved through previous bargaining.225



• Terms and conditions in the private aged care sector in New South Wales were historically governed by the Nursing Homes, &C., Nurses’ (State) Award 226. Key provisions of the award have been preserved in the NSWNMA’s template agreement and the HammondCare agreements.227

(iii) HammondCare - submissions

[79] It was submitted by HammondCare that the Commission must consider whether the group of employees in Victoria is geographically, operationally or organisationally distinct. In this regard, the Commission was directed to the Oxford Dictionary definition of ‘distinct’. HammondCare submitted that the ANMF has not established that HammondCare’s employees in Victoria are a group which has been fairly chosen. 228

[80] HammondCare stated that it was accepted that the Victorian employees are geographically distinct as they work in a different state to the New South Wales employees. 229 However, it was argued that there are no particular features or circumstances associated with this distinctiveness that results in that group of Victorian employees being fairly chosen. This was on the basis that the Victorian and New South Wales employees perform the same duties in the same work environments and that HammondCare places a critical emphasis on providing the same model of care for its residents irrespective of the location of the facility.230

[81] HammondCare submitted that it was appropriate to have regard to the interests of the employer, as well as the interests of the employees, in determining whether the group of employees was fairly chosen. Reference was again made to the Full Bench decision in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Others 231 (Cimeco). The evidence of Ms Raguz and Ms Gulczynski was said to clearly establish that there is a business imperative for HammondCare to have a national agreement covering employees in both Victoria and New South Wales working in its Residential care services business.232

[82] HammondCare’s business imperatives were said to include:

• Aged care is federally funded and HammondCare receives the same funding for each bed licence and each state and it provides the same model in the same environment to its residents. The terms and conditions of employment in each facility ought to be the same in each state.



• Employees in each state are working in the same roles with the same position descriptions within the same care model and structure. The industrial conditions should therefore be relatively consistent.



• Having one enterprise agreement covering both Victoria and New South Wales facilitates staff transfers between facilities. This is encouraged by HammondCare and does occur. Having different enterprise agreements in different states could cause industrial confusion.

[126] It was common ground between the parties that employees in Victoria are geographically distinct from employees in New South Wales.

[127] The ANMF argued that the proposed group to be covered is fairly chosen because the group encompasses all persons employed within the geographical confines of Victoria without distinction as to classification or occupation and so can be said to be geographically distinct. As well, the union contended that the group is fairly chosen because it recognises the unique conditions of employment in Victoria and the particular industrial history that has led to these conditions. It was argued that the proposed scope will ensure that bargaining appropriately acknowledges and reflects the standards that have been achieved and the particular history of bargaining in Victoria.

[128] On the other hand, HammondCare submitted that employees in Victoria were not operationally distinct from employees in New South Wales because they performed the same duties in the same work environments within the same model of care. In regard to the interests of the employer, HammondCare contended that it is a business imperative for HammondCare to have one national agreement covering employees in Residential Care services in Victoria and New South Wales. It was HammondCare’s clear philosophy that employees who are performing the same roles within the same model of care should receive the same terms and conditions. To have a differential between the two states was said to be inconsistent with HammondCare’s model of care and philosophy. Further, it was also said that, to have inconsistent terms and conditions between the two states, would impede the transfer of employees interstate between facilities.

[129] The Full Bench in Cimeco made findings about the approach to determining if the group of employees to be covered has been fairly chosen. The Full Bench’s findings are as follows:

“[19] Given the context and the legislative history it can reasonably be assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen.

[20] 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.

[21] 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 tribunal. 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.” 304

[130] As set out in the findings in the quote from Cimeco above, it is appropriate to have regard to the interests of the employer in determining if the proposed group of employees to be covered is fairly chosen. HammondCare gave clear and strong evidence in relation to HammondCare’s business imperatives which included having one national agreement with common conditions covering employees in Victoria and New South Wales working in its Residential Care services business. In addition, it was HammondCare’s philosophy that employees in New South Wales and Victoria, who are working in the same roles with the same position descriptions within the same model of care, should receive the same terms and conditions. HammondCare’s business imperatives and philosophy are acknowledged and respected.

[131] It was common ground that HammondCare’s model of care currently sits outside the existing New South Wales agreements and that HammondCare is not planning to alter that situation in the proposed agreement. Therefore, the making of a scope order would not have an impact on HammondCare’s model of care. The staffing model and the hours of work (rosters) that support the model of care are also outside the current agreements except that one of the classifications refers to being required to remain with residents during their meal break. It was the ANMF’s evidence that it was prepared to sit down and discuss these particular matters with HammondCare. Further, it was accepted by HammondCare that there was no reason why the shift pattern, staffing model, multi skilling and other important terms and conditions could not be included in a Victorian only agreement.

[132] A further issue raised by HammondCare was that, if there were not common conditions across all of its facilities, there would be difficulties temporarily transferring employees interstate and that having wage differences between employees would cause unrest and take employees’ focus away from caring for the residents. It was the ANMF’s evidence that it was amenable to negotiating temporary transfer arrangements so that employees could be moved interstate. With respect to HammondCare’s concern that differing terms and conditions could cause disharmony within the workforce, this is understood. However, it would seem that this is a matter that is the responsibility of management to manage and to provide leadership on and so does not weigh against the making of an order.

[133] In relation to HammondCare’s concerns about the loss of the administrative efficiency which would be gained from managing one set of conditions rather than different sets of conditions across multiple agreements, it is noted that HammondCare currently manages two different sets of conditions across the two New South Wales agreements. It is open to HammondCare to consolidate the two New South Wales agreements into one agreement. In this situation, if a scope order was made, HammondCare would remain in the situation of administering two agreements, albeit along geographic rather than occupational lines as is the current situation.

[134] The Full Bench in Cimeco also held that the interests of the employees covered by the agreement are relevant. 305 Further, the MFB Full Bench accepted that, in considering the views of affected employees, the views expressed by particular employees and the relevant union are relevant.306 In this case, as was observed during the hearing, none of the affected employees, other than those represented by the unions, expressed any views to the Commission. The ANMF has made this application and the application is supported by the NSWNMA and the HSU, who are the other default bargaining representatives. Therefore, it is reasonable to conclude that the unions are representing their members and that their members support the making of a scope order in the terms sought.

[135] Therefore, having taken into account all of the material before me, I am satisfied that the proposed group of employees is fairly chosen. Employees in Victoria are geographically distinct from their colleagues in New South Wales and the group of employees proposed to be covered are all of the employees who are employed within the geographic boundaries of the state of Victoria. Further, it is accepted that the industrial history in Victoria is distinct from that in New South Wales in the private aged care sector. The interests of HammondCare have been taken into account as have the views of the employees, as represented by the unions.

(d) Section 238(4)(d) - is it reasonable in all of the circumstances?

[136] The final legislative requirement is that the Commission is satisfied that it is reasonable in all of the circumstances to make the order.

[137] The ANMF submitted that there was an impasse between the parties and that it was appropriate for the Commission to resolve the deadlock by making the order sought. Further, it was argued that HammondCare’s contention that it required a national agreement was not persuasive. This was on the basis that the model of care is currently not part of the existing agreements and is therefore not dependent on a national agreement. The ANMF highlighted HammondCare’s evidence where it was conceded that the staffing model, the shift pattern and the classification structure could be negotiated as part of a Victorian only agreement. Further, HammondCare’s evidence was said to be that it did not intend to roll the benefits it currently provides outside of the existing agreements into the proposed agreement.

[138] On the other hand, HammondCare submitted that it had been held that a relevant factor for consideration is whether the agreement coverage that would result from the scope order would replicate (or not) the existing award coverage. It was argued that the model proposed by the ANMF was derived from the pre-reform State Award system. HammondCare contended that this system has been replaced by the modern award system and that HammondCare’s model of negotiating a national agreement was consistent with the modern award system. Therefore, it was stated that the ANMF’s scope order was not consistent with the modern award system as it sought to maintain the pre-reform State based award system.

[139] The authority on which HammondCare relied in relation to the proposition that a relevant factor for consideration was whether the proposed agreement coverage was consistent with the modern award system was the decision of DP Richards in Woolworths 307. In that case, the context included the coverage of the proposed General Retail Award 2010 relative to the coverage of the proposed Meat Industry Award 2010. The Deputy President noted that the General Retail Award, with the support of the AMIEU, did not exclude meat units in supermarkets from coverage within the retail industry and that supermarkets were not included within the modern Meat Industry Award. It was within this context that the Deputy President found “nothing unfair in an agreement the coverage of which replicates the simplicity of coverage of the applicable Modern Award”.308

[140] I have not been persuaded that the considerations in Woolworths are relevant to this matter. This application involves a different context and one where there is not an issue regarding modern award coverage. As set out by the ANMF, it is common within the private aged care sector in Australia for there to be state-based agreements notwithstanding that the employer operates nationally with the same model of care throughout all of its facilities.

[141] Taking all of the circumstances into account, I am satisfied that it is reasonable in all of the circumstances to make the order sought. The parties have reached an impasse on the issue of whether the proposed agreement is a national agreement or a Victorian agreement. HammondCare’s model of care, on the basis of HammondCare’s witness evidence, sits outside the existing agreements and HammondCare is not contemplating changing this situation in the proposed agreement. Therefore, HammondCare’s model of care would not be affected if the order is made.

[142] The making of a scope order does not determine the outcomes of the bargaining process, namely, the terms and conditions of a proposed agreement. Rather, it determines the outside parameters (the scope) of the bargaining. The terms and conditions of an agreement will still need to be determined by the parties during the course of bargaining. Therefore, the making of an order does not prevent HammondCare from continuing to seek to achieve/achieving its business imperative and philosophy of common conditions across all of its facilities in New South Wales and Victoria. It is simply a different pathway for achieving the same end (for HammondCare - common conditions) than the one that is currently being trodden by the parties.

[143] Therefore, on the basis set out in paragraphs [136] - [142] above, I am satisfied that, in the circumstances, it is reasonable to make the scope order.

[144] The Commission has found that it is satisfied that the ANMF has met, and is meeting, the good faith bargaining requirements; that making the order will promote the fair and efficient conduct of bargaining between the parties; that the proposed group of employees is fairly chosen and that is reasonable to make the order, in all of the circumstances of this matter.

[145] Consequently, as the legislative requirements in section 238(4) have been met, the ANMF’s application is granted. An order 309, in the terms sought, will be issued separately.

Appearances:

S Kelly of Counsel for the Australian Nursing and Midwifery Federation

M Felman of Counsel for HammondCare

D Sherriff for the Health Services Union of Australia

Hearing details:

2015.

Melbourne:

October 19;

November 11.

<Price code J, PR576556>

 1   Exhibit A1 at paragraph 6

 2   Exhibit I1

 3   Ibid at paragraph 2 and Transcript PN 1316

 4   Exhibit R2

 5   Exhibit R1 at paragraphs 5 - 9

 6   Ibid at paragraph 10 - 12

 7   Ibid at paragraph 10(c) and Exhibit A1 at paragraphs 9 and 11

 8   Exhibit A1 at paragraphs 11 - 12

 9   AE891223

 10   AE400542

 11   Exhibit A1 at paragraph 10 and Exhibit R1 at paragraph 25

 12   Exhibit R1 at paragraph 25

 13   Ibid

 14   Ibid at paragraph 27

 15   Exhibit A4 at paragraphs 20 and 22 and Exhibit R1 at paragraphs 28 - 29

 16   Ibid at paragraph 24 and ibid at paragraph 30

 17   Ibid at paragraph 25 and ibid at paragraph 31

 18   Ibid at paragraph 26 and at paragraph 32

 19   Ibid at paragraph 27 and Attachment LH-13 and ibid at paragraph 31

 20   Exhibit R1 at paragraph 31

 21   Ibid at paragraph 33

 22   Exhibit A4 at paragraph 29 and Attachment LH-15 and Exhibit R1 at paragraph 39

 23   Ibid at paragraph 30 and Attachment LH-16 and ibid at paragraph 40

 24   Ibid at paragraph 31 and Attachment LH-17 and ibid at paragraph 41

 25   Exhibit R1 at paragraph 42 and Exhibit R4 at paragraph 34 and Attachment JG-21

 26   Ibid at paragraph 42, ibid at Attachment JG-22 and Exhibit A4 at paragraph 32 and Attachment LH-18

 27   Exhibit A4 at paragraph 36 and Attachment LH-21

 28   Ibid at paragraph 37 and Attachment LH-22

 29   Exhibit R4 at paragraph 41

 30   Exhibit R1 at paragraphs 45 - 46 and Transcript PN 95

 31   Exhibit A4 at Attachments LH-15, LH-17 and LH-18

 32   Transcript PN 1215 and 1217, Exhibit A1 at paragraph 27, Exhibit A2 at paragraph 5 and Exhibit A6 at paragraphs 10 - 12

 33   Ibid PN 1216, ibid at paragraph 28, ibid at paragraph 5 and ibid at paragraph 14

 34   Transcript PN 1218

 35   Ibid PN 1219 and Exhibit A2 at paragraph 6

 36   Ibid PN 1219 - 1220 and Exhibit A6 at paragraph 13

 37   Exhibit A2 at paragraph 7 and ibid at paragraph 16

 38   Ibid at paragraph 7, ibid at paragraph 15 and Transcript PN 1221, 1223 and 1237

 39   Ibid at paragraph 7, ibid at paragraph 15 and ibid PN 1221 and 1223

 40   Ibid at paragraph 7, ibid at paragraphs 15 and 19 and ibid PN 1224 - 1225

 41   Exhibit A6 at paragraph 15 and ibid PN 1221, 1223 and 1237

 42   Ibid at paragraph 19 and ibid PN 1225 - 1228 and 1662

 43   Ibid at paragraph 19 and ibid PN 1226 - 1228

 44   Ibid at paragraphs 17 - 18

 45   Ibid at paragraphs 20 - 23 and Transcript PN 1229 - 1230

 46   Ibid at paragraphs 23 - 25 and ibid PN 1231 - 1233

 47   Ibid at paragraphs 26 - 27 and ibid PN 1234 - 1236

 48   Transcript PN 234 - 242

 49   Ibid PN 247 - 250 and 256 - 257

 50   Ibid PN 265 - 268

 51   Ibid PN 269 - 272

 52   Ibid PN 276 - 280

 53   Ibid PN 281 - 282 and 291 - 293

 54   Ibid PN 299 - 300

 55   Ibid PN 305 - 306

 56   Ibid PN 307 - 308

 57   Ibid PN 491 - 492

 58   Ibid PN 160

 59   Ibid PN 504

 60   Ibid PN 506

 61   Ibid PN 411 – 413 and Exhibit A3 at paragraph 27

 62   Ibid PN 423 - 427

 63   Ibid PN 162 - 163

 64   Ibid PN 164 - 165

 65   Ibid PN 166 - 169

 66   Ibid PN 172

 67   Ibid PN 429 - 436 and Exhibit A3 at paragraph 29

 68   Ibid PN 438 - 440

 69   Ibid PN 441 - 447

 70   Ibid PN 172

 71   Ibid PN 174, 351 - 352, 361 and 503

 72   Ibid PN 207 - 216

 73   Ibid PN 449 - 452 and 478

 74   Ibid PN 338 - 350 and Exhibit A3 at paragraphs 9 - 11

 75   Ibid PN 380 - 393

 76   Ibid PN 547 - 549 and Exhibit A4 at paragraph 47

 77   Ibid PN 579 - 580

 78   Ibid PN 585

 79   Ibid PN 601 - 602

 80   Ibid PN 614 - 616

 81   Ibid PN 653 - 655 and Exhibit A 5 at paragraphs 10 - 11

 82   Ibid PN 658

 83   Ibid PN 659 - 668 and Exhibit A5 at paragraph 18

 84   Ibid 673

 85   Ibid PN 674

 86   Exhibit R6 at paragraphs 9 - 13

 87   Ibid at paragraph 15, Exhibit R1 at paragraph 58 and Transcript PN 1401 - 1405 and 1415 - 1417

 88   Ibid PN 1405 - 1407

 89 (2012) 206 FCR 576

 90   Transcript PN 1401

 91   Ibid PN 1404 and Exhibit R6 at paragraph 16

 92   Exhibit R6 at paragraph 16(a) and Exhibit R1 at paragraphs 29 - 30

 93   Ibid at paragraph 16(b) and ibid at paragraph 32

 94   Ibid at paragraph 16(c)

 95   Ibid at paragraph 17 and Exhibit R1 at paragraph 59

 96   Ibid at paragraph 18(a) and ibid at paragraphs 40 - 41

 97   Ibid at paragraph 18(a)

 98   Ibid at paragraph 18(b) and Exhibit R1 at paragraph 42

 99   Ibid at paragraph 18(c) and ibid at paragraph 43

 100   Transcript PN 1417 - 1448

 101   Ibid PN 1402 - 1405 and 1420 – 1448, Exhibit R1 at paragraph 60 and Exhibit R6 at paragraph 19

 102   Ibid PN 812

 103   Ibid PN 854

 104   Ibid PN 901 - 905

 105   Ibid PN 957 - 958 and Exhibit R4 at paragraphs 16 - 18

 106   Ibid PN 1017 - 1018 and 1028 - 1031 and ibid at paragraph 18

 107   Ibid PN 960 - 961, 991 and 1119 - 1120

 108   Ibid PN 992

 109   Ibid PN 962 and Exhibit R4 at paragraph 27

 110   Ibid PN 1019 - 1023 and ibid at paragraph 31

 111   Ibid PN 963 - 965

 112   Ibid PN 966 - 983

 113   Ibid PN 984 - 988

 114   Ibid PN 989 - 990

 115   Ibid PN 999 - 1002

 116   Ibid PN 1003 - 1013, Exhibit R4 at paragraph 28 and Exhibit R5 at paragraph 14

 117   Ibid PN 1012 - 1016

 118   Ibid PN 1012 and Exhibit R4 at paragraph 26

 119   Ibid PN 1027 - 1032 and 1045 and ibid at paragraph 33

 120   Ibid PN 1033 - 1041

 121   Ibid PN 1042 - 1046 and Exhibit R4 at paragraph 47

 122   Ibid PN 1089 - 1092

 123   Ibid PN 1096 - 1097

 124   Ibid PN 1105 and Exhibit R5 at paragraphs 17 and 24

 125   Ibid PN 1106 - 1110 and 1118 and Exhibit R5 at paragraphs 13 and 20

 126   Ibid PN 1111 - 1113

 127   Ibid PN 1114 - 1116 and Exhibit R5 at paragraph 22

 128   Ibid PN 1117

 129   Ibid PN 1126 - 1129 and Exhibit R5 at paragraph 22

 130   Ibid PN 1130 - 1142 and ibid at paragraph 22

 131   Ibid PN 1143 - 1145 and ibid at paragraph 10

 132   Ibid PN 1146 - 1153 and ibid at paragraph 24

 133   Exhibit R4 at paragraph 44

 134   Ibid at paragraph 45

 135   Ibid at paragraph 46

 136   Ibid at paragraph 47

 137   Exhibit A1 at paragraph 30 and Exhibit A6 at paragraph 30

 138   Exhibit A2 at paragraph 12, Exhibit A6 at paragraph 30 and Transcript PN 1238

 139   Ibid at paragraph 12, ibid at paragraph 30 and ibid PN 1239

 140   Exhibit A1 at paragraph 34, ibid at paragraph 42 and ibid PN 1253 - 1260

 141   Exhibit A2 at paragraph 12, Exhibit A6 at paragraph 30 and ibid PN 1239

 142   Ibid at paragraph 12, ibid at paragraph 30 and ibid PN 1240

 143   Ibid at paragraph 13, ibid at paragraphs 32 and 39 - 51 and ibid PN 1241 and 1275 - 1277

 144   Ibid at paragraph 13 and ibid at paragraph 32

 145   Ibid at paragraph 18, ibid at paragraphs 44 and 63, Exhibit A1 at paragraph 37 and Transcript PN 1241

 146   Ibid at paragraph 18, ibid at paragraph 43, ibid at paragraph 35 and ibid PN 1261 and 1269 - 1270

 147   Exhibit A6 at paragraph 44 and Transcript PN 1262

 148   Ibid PN 1271 - 1274

 149   Exhibit A1 at paragraphs 35 and 37, Exhibit A2 at paragraph 18 and Exhibit A6 at paragraph 33

 150   Ibid at paragraph 36, Exhibit A6 at paragraph 52, 55 - 56 and 62 and Transcript PN 1264 – 1268, 1278 - 1281 and 1654

 151   Exhibit A6 at paragraphs 53 - 54

 152   Ibid at paragraph 34, Exhibit A2 at paragraphs 14 - 15, and Transcript PN 1241 - 1242

 153   Exhibit A6 at paragraph 40 and ibid PN 1249

 154   Ibid at paragraph 34 - 35 and Exhibit A2 at paragraphs 14 - 15

 155   Ibid at paragraph 36 - 40, ibid at paragraphs 16 - 17 and Transcript PN 1247 - 1248

 156   Ibid at paragraphs 39 - 40 and 47 and ibid at paragraph 17

 157   Exhibit A6 at paragraph 48

 158   Ibid at paragraph 57 and Exhibit A1 at paragraph 19 and Transcript PN 1282 - 1283

 159   Ibid at paragraph 57, ibid at paragraph 19 and ibid PN 1284

 160   Ibid at paragraph 57 - 61, Exhibit A2 at paragraph 19 and ibid PN 1284

 161   Ibid at paragraphs 57- 61 and ibid PN 1285 - 1288

 162   Ibid PN 1290

 163   Ibid

 164   Ibid PN 1291

 165   Ibid PN 1292

 166   Ibid

 167   Ibid PN 1289 - 1293

 168   [2012] FWA 2226

 169   Transcript PN 1675 - 1676

 170   [2015] FWC 1591

 171   Transcript PN 1678 - 1680

 172   Exhibit A3 at paragraph 35

 173   Transcript PN 454 - 455 and 460

 174   Ibid PN 455 - 459

 175   Ibid PN 462

 176   Ibid PN 463 and Exhibit A3 at paragraph 36

 177   Ibid PN 465

 178   Ibid PN 467 - 468

 179   Ibid PN 620

 180   Ibid PN 624

 181   Ibid PN 624 - 625

 182   Ibid PN 626

 183   Ibid PN 627 - 628

 184   Ibid PN 640 – 641 and Exhibit A3 at paragraphs 50 and 52

 185   Ibid PN 642 - 651

 186   Exhibit A3 at paragraphs 50 - 51

 187   Ibid at paragraph 53

 188   [2010] FWAFB 3009

 189   Exhibit R1 at paragraphs 62 - 63, Exhibit R6 at paragraphs 21 - 22 and Transcript PN 1506

 190   Ibid at paragraphs 64 - 65 and ibid at paragraph 24

 191   Ibid at paragraph 65, ibid at paragraph 24 and Transcript PN 1448 - 1449

 192   Exhibit R6 at paragraph 25 and Ibid PN 1547 - 1549

 193   Ibid PN 1355 - 1356 and 1464 - 1480

 194   Ibid PN 1356

 195   Ibid PN 1366 and 1449

 196   Ibid PN 1375 - 1379

 197   Ibid PN 1380 - 1383

 198   Ibid PN 1356 - 1357 and 1486 - 1488

 199   Ibid PN 1529 - 1542, Exhibit R1 at paragraph 75 and Exhibit R6 at paragraphs 36 - 37

 200   Exhibit R1 at paragraphs 76 - 77 and Exhibit R6 at paragraph 38

 201   Ibid at paragraph 66 and ibid at paragraph 26

 202   Exhibit R6 at paragraph 31

 203   Ibid at paragraph 32 and Exhibit R1 at paragraph 72

 204   Ibid at paragraph 33

 205   Ibid at paragraph 35 and Exhibit R1 at paragraph 74

 206   Transcript PN 1512 - 1529 and 1548

 207   Exhibit R6 at paragraph 39

 208   Transcript PN 1626 - 1630

 209   Exhibit R1 at paragraphs 78 - 79 and Exhibit R6 at paragraph 40 - 41

 210   Ibid at paragraph 80, ibid at paragraphs 42 - 43 and Transcript PN1499 - 1506 and 1550

 211   Exhibit R6 at paragraph 44

 212   Exhibit R4 at paragraph 49

 213   Ibid at paragraph 43

 214   Transcript PN 1056

 215   Exhibit R2 at paragraphs 5 - 7

 216   Exhibit A1 at paragraph 39 - 40, Exhibit A2 at paragraph 21, Exhibit A6 at paragraphs 64 - 65 and Transcript PN 1294 - 1295

 217   Exhibit A1 at paragraphs 39 - 42, Exhibit A6 at paragraphs 64 - 67 and ibid PN 1296

 218   Exhibit A1 at paragraph 43 and Exhibit A6 at paragraph 68

 219   Ibid at paragraph 44 and ibid at paragraph 69

 220   Exhibit A2 at paragraph 21 and Exhibit A6 at paragraph 70

 221   Exhibit A4 at paragraph 41 and Exhibit A5 at paragraph 38

 222   AP790805

 223   AW807786

 224   Exhibit A4 at paragraphs 42 - 43

 225   Ibid at paragraph 44

 226   AN120387

 227   Exhibit A5 at paragraph 46

 228   Exhibit R1 at paragraphs 84 - 85 and Exhibit R6 at paragraphs 48 - 49

 229   Ibid at paragraph 87, ibid at paragraph 51 and Transcript PN 1553

 230   Ibid at paragraphs 87 - 88, ibid at paragraph 52 and ibid PN 1555 - 1577

 231   [2012] FWAFB 2206

 232   Exhibit R1 at paragraph 90, Exhibit R6 at paragraphs 53 - 55 and Transcript PN 1579 - 1581

 233   Ibid at paragraph 91, ibid at paragraph 55 and Exhibit R4 at paragraph 48

 234   Exhibit R4 at paragraph 48

 235   Ibid and Transcript PN 1057 - 1058

 236   Ibid PN 1060

 237   Ibid PN 1061 and Exhibit R4 at paragraph 48

 238   Ibid PN 1062 - 1063

 239   Ibid PN 1064 - 1071

 240   Ibid PN 1071 - 1075 and Exhibit R4 at paragraph 48

 241   Ibid PN 1073 and 1076 - 1087

 242   Ibid PN 1088

 243   Ibid PN 781 and Exhibit R3 at paragraph 35

 244   Ibid at paragraph 35

 245   Transcript PN 821

 246   Ibid PN 815 and 821 - 822

 247   Ibid PN 846 - 849 and Exhibit R3 at paragraph 35.5

 248   Ibid PN 859 - 862 and ibid at paragraphs 35.6 - 35.9

 249   Ibid PN 859 - 864 and ibid at paragraph 35.9

 250   Ibid PN 865

 251   Ibid PN 866

 252   Ibid PN 874 - 886 and Exhibit R3 at paragraph 35.10

 253   Ibid PN 850

 254   Exhibit R3 at paragraph 35

 255   Exhibit A6 at paragraphs 74 - 78 and Transcript PN 1298 - 1299 and 1653

 256   Ibid at paragraphs 79 - 88 and ibid PN 1300

 257   Ibid PN 1301

 258   Ibid PN 1302 - 1303

 259   Ibid PN 1304

 260   Ibid PN 1305

 261   Exhibit A6 at paragraphs 89 - 90

 262   Ibid at paragraph 91 and Transcript PN 1308

 263   Ibid PN 1306 - 1307

 264   Ibid PN 1309, Exhibit A1 at paragraph 47 and Exhibit A6 at paragraph 92

 265   Ibid at paragraph 49 and ibid at paragraph 94

 266   Transcript PN 1652

 267   [2009] FWA 849

 268   Transcript PN 1681 - 1682

 269   Ibid PN 586 - 599

 270   Ibid PN 600

 271   Ibid PN 654 - 658

 272   Ibid PN 672

 273   Ibid PN 29 - 216, 234 - 238, 241 - 242, 247 - 250, 256, 264 - 268 and 504

 274   Exhibit R1 at paragraphs 92 and 95 and Exhibit R6 at paragraphs 57 and 60

 275   Transcript PN 1581 - 1617

 276   MA000018

 277   MA000034

 278   Exhibit R1 at paragraph 94 and Exhibit R6 at paragraphs 58 - 59

 279   Transcript PN 1632 - 1646

 280   Ibid PN 780 - 785

 281   Ibid PN 786 and 842 - 843

 282   Ibid PN 845

 283   Ibid PN 789 - 793

 284   Ibid PN 804 - 806

 285   Ibid PN 810

 286   Ibid PN 823 - 828 and Exhibit R3 at paragraphs 28 and 31 - 34

 287   Ibid PN 832

 288   Ibid PN 833 - 834 and Exhibit R3 at paragraph 29

 289   Ibid PN 836

 290   Ibid PN 837

 291   Ibid PN 839 - 840

 292   Ibid PN 841

 293   Ibid PN 887 - 891 and Exhibit R3 at paragraph 36.1

 294   Ibid PN 892 - 896

 295   Ibid PN 897 - 898 and Exhibit R3 at paragraph 36.2

 296   Ibid PN 899 - 900 and Exhibit R3 at paragraph 36.34

 297   Exhibit A1 at paragraphs 16 - 20

 298   Ibid at paragraph 22

 299   Ibid at paragraph 24

 300   Exhibit A4 at attachment LH 17

 301   [2010] FWAFB 3009 at [55]

 302   [2013] FWC 9851

 303   [2015] FWC 1591 at [145]

 304   [2012] FWAFB 2206 at [19] - [21]

 305   Ibid at [21]

 306   [2010] FWAFB 3009 at [64]

 307   [2009] FWA 849

 308   Ibid at [188]

 309   PR576755

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