Australian Rail, Tram and Bus Industry Union
[2010] FWA 6428
•31 AUGUST 2010
[2010] FWA 6428 |
|
DECISION |
Fair Work Act 2009
s.238—Scope order
Australian Rail, Tram and Bus Industry Union
(B2010/2912)
Australian Municipal, Administrative, Clerical and Services Union
(B2010/2913)
v
Australian Rail Track Corporation Limited
DEPUTY PRESIDENT BARTEL | ADELAIDE, 31 AUGUST 2010 |
Applications for a scope order.
Introduction
[1] This decision concerns applications by the Australian Rail, Tram and Bus Industry Union (“RTBU”) and the Australian Municipal, Administrative, Clerical and Services Union (“ASU”) pursuant to s.238 of the Fair Work Act 2009 (“the Act”) for a scope order in relation to bargaining with the Australian Rail Track Corporation (“ARTC” or the “employer”). The order sought would have the effect of excising employees who are appointed to the classification of Network Controller and who are engaged outside New South Wales, from the scope of a proposed enterprise agreement (“the proposed agreement”).
[2] The proposed agreement has been the subject of negotiations between the parties since the latter part of 2009. ARTC advised its intention to put the proposed agreement to a vote of employees at a negotiation meeting on 15 April 2010, and this action precipitated the present applications. The vote on the proposed agreement has been delayed pending the outcome of these proceedings.
[3] The RTBU and ASU applications are in identical terms. Directions were issued on 31 May 2010 that the applications be heard concurrently and that submissions and evidence in one application could be relied upon in the other. 1
ARTC operations and workforce
[4] ARTC commenced operations in July 1998 after it was established as part of the Commonwealth’s disposal of the Australian National Railway Commission (“ANRC”). ARTC has responsibility for the management of over 10,000 kilometres of railway tracks in South Australia, Victoria, Western Australia, New South Wales and Queensland. It owns four rail corridors and leases many more.
[5] ARTC is responsible for selling access to rail operators; providing railway operators with access to routes; the management of the network, including train control; the management of infrastructure maintenance; the development of new business and capital investment in rail corridors. It also manages the New South Wales Country Rail Network (“CRN”) on behalf of the Rail Infrastructure Corporation.
[6] The workforce of ARTC consists of 988 employees in New South Wales, Victoria and South Australia. There are a total of 129 Network Controllers currently employed, of which 87 are in New South Wales and 42 in South Australia. There are 229 employees in total in South Australia.
Network Controllers
[7] Network Controllers perform a critical function involving responsibility for the safe control of rail traffic on an area of track. Witnesses for ARTC likened the work of Network Controllers to air traffic controllers, but for the railway. 2 Network Controllers are required to be competent in a range of areas including interface arrangements for network entry and exit; route and infrastructure knowledge; communications equipment and facilities; and train graphing techniques. They work in a control room, which is a purpose built facility for the network control function and which operates on a 24/7 basis. This is reflected in the shifts worked by the Network Controllers.
[8] The Network Controllers report to one of the Train Transit Managers. These positions have direct control of the room and also work over 24/7. While the control room is located in a building in which a number of other functions are located, particularly senior management functions, the control room itself can be accessed only by authorised personnel. The control room has a kitchen located within it, in recognition of the fact that the Network Controllers only have limited ability to leave the workstation.
[9] A number of other positions within ARTC have functions that relate to or arise from the work undertaken by Network Controllers. Programmers provide the Network Controllers with a graph which identifies the activity expected to occur on the track on any given shift. The Programmers work a pattern of afternoon and day shifts and have limited personal interaction with the Network Controllers.
[10] Data Administrators input data about the trains using the track, including the number of carriages and the nature and configuration of loads. The Network Controllers have limited personal interaction with the Data Administrators. It is generally confined to situations where the inputted data does not correlate with the actual situation or where the Data Administrators collect information from the Network Controllers on ad hoc train movements. Nonetheless, the Network Controllers rely heavily on the data that has been entered. The Data Administrators also work over 24/7, but on a different shift configuration.
[11] The majority of personal interactions that are undertaken by the Network Controllers are with train crews and other personnel external to ARTC.
Past and present industrial coverage
[12] ARTC employees work in administration, technical, engineering, professional services, operations, programming, terminal coordination, infrastructure management and signal maintenance. All employees outside New South Wales are currently covered by the ARTC Workplace Agreement 2006 (“the 2006 Agreement”) and were previously covered by the ARTC Enterprise Agreement 2003 (“the 2003 Agreement”). Since the first ARTC agreement was approved (“the 1999 Agreement”), all employees in South Australia, including Network Controllers, have been covered by a single agreement. 3
[13] The 1999, 2003, 2006 and proposed agreements each contain an appendix or section providing for conditions specific to Network Control. The specific conditions addressed in the 2006 and proposed agreements include a specific Network Controller classification structure (compared to a generic structure for all other employees); an explanation of the matters incorporated into the annual salary, which include a range of penalties otherwise prescribed in the Agreement; hours of duty; the prescription of rostering arrangements; additional annual leave; coverage of absences; swapping of shifts; and overtime.
[14] The ASU and RTBU each have Network Controllers as members. The ASU has had previous involvement in the negotiation of agreements with ARTC whereas the RTBU’s representation of Network Controllers is relatively recent and the current round of bargaining is their first involvement in enterprise bargaining with ARTC. The extent of the ASU’s coverage within ARTC, in relation to classifications other than Network Controller, is not clear on the evidence.
The unions’ evidence
[15] The RTBU called two witnesses. Darren Phillips is an RTBU Organiser, employed since June 2009, and was the bargaining representative for RTBU members in the negotiations for the new agreement. Mervyn Hill was the second witness for the RTBU. Mr Hill has been an employee of ARTC since its inception and prior to that, with ANRC. He is employed as a Network Controller and has been the RTBU delegate for the Network Controllers for approximately 18 months.
[16] The significant features of the evidence of these witnesses 4 can be summarised as follows. ARTC’s bargaining position in the current round was to maintain the status quo of terms and conditions in the existing agreement, apart from an increase in wages and subject to compliance with the requirements of the Act. This position was accepted by employees other than Network Controllers in late 2009, and the subsequent bargaining dealt solely with Network Controller issues. The RTBU bargaining representative and delegate became frustrated with the lack of progress on a number of their claims as the negotiations progressed.
[17] The frustration over a lack of a resolution to Network Controller issues reflected the experience of Network Controllers in the negotiations for the 2006 Agreement, where they felt that their concerns had not been properly addressed. They had ultimately supported the 2006 Agreement being put to a vote because of the length of time that negotiation over Network Controller issues had delayed the agreement for all other employees, and because they held the view that further negotiations were unlikely to deliver satisfaction on their claims.
[18] At the negotiation meeting on 15 April 2010, after further discussion but no resolution of key Network Controller issues, ARTC declared that the negotiations were concluded and the draft agreement would be put to a vote. The RTBU and ASU representatives did not share this view and subsequently sent correspondence to ARTC dated 19 and 20 April 2010, respectively. The letters were in almost identical terms and indicated dissatisfaction with the draft agreement and accused ARTC of putting the agreement to the vote in the full knowledge that the Network Controllers would be out voted. The letters also advised that a scope order would be sought from Fair Work Australia (“FWA”).
[19] It is uncontroversial that this was the first time that ARTC became aware that the ASU and RTBU were actively seeking a separate agreement for Network Controllers.
[20] The witnesses each stated that a separate agreement would be beneficial to both the Network Controllers and the other employees. Controllers would have the opportunity to properly deal with their issues without frustrating the interests of the other employees and in addition, would have the ability to control the outcome of the agreement because they would no longer be in the minority.
[21] It was Mr Hill’s evidence that the Network Controllers were a distinct part of ARTC’s operations, based on the work performed and the environment in which it was undertaken.
ARTC evidence
[22] ARTC led evidence from three witnesses. The first was Jennifer McAuliffe, Manager, Human Resources at ARTC. Ms McAuliffe has held this position since June 2004 and negotiated the 2006 Agreement on behalf of the employer and was ARTC’s main negotiator for the proposed agreement.
[23] Ms McAuliffe stated that there was an even split between the issues raised by Network Controllers and those raised by other employees in the negotiations for the 2006 Agreement, but conceded that additional time was required to complete the negotiations because of the Network Controllers issues. This is reflected in correspondence she sent to the ASU at the time, in which she stated, “As you would be aware, finalisation of the ARTC Workplace Agreement 2006 has been delayed for some time due to ongoing discussions regarding certain network control arrangements associated with the Agreement.” 5
[24] Ms McAuliffe stated that negotiations for the proposed agreement commenced in August 2009 when various advice and notices were provided to employees. The first meeting of the bargaining representatives was conducted on 12 October 2009. Ms McAuliffe’s witness statement sets out the details of the various meetings, including claims and responses, the details of which are not relevant to the present proceedings. The evidence confirms that the negotiations were dominated by discussion of claims made on behalf of the Network Controllers.
[25] Ms McAuliffe stated that, at the bargaining meeting on 15 April 2010, she advised that ARTC considered that the negatiations had been exhausted. This conclusion had been reached notwithstanding that the unions still had claims outstanding.
[26] After receiving the correspondence from the RTBU and ASU dated 19 and 20 April, respectively, Ms McAuliffe responded by letter dated 21 April 2010 advising that it would “strongly challenge” the making of a scope order. The letter continued with an outline of the historical and current position with respect to a single enterprise agreement for all employees, and notes that, “In only one of the earliest meetings was the issue of the proposed agreement not covering network controllers raised. It has never been pursued.” 6
[27] It was Ms McAuliffe’s view that the Network Controllers were not geographically, organisationally or operationally distinct from other ARTC employees, although she noted that they have different shift patterns to other employees and tend to be “bunkered down” during their shift. Mr McAuliffe pointed to a range of positions that are comparable to Network Controllers and that are classified at the same level, and to other positions that perform work relating to the control room and the work of Network Controllers.
[28] Ms McAuliffe stated that it was ARTC’s preference to have a single agreement covering all employees because it would be productive of consistent outcomes, reduce administrative and compliance costs and promote cohesion among employees.
[29] The second witness was Geoff Atkinson, currently a consultant to ARTC but previously directly employed by ARTC in senior managerial positions until August 2009. Mr Atkinson negotiated the 1999 Agreement and the 2003 Agreement on behalf of the employer and as such his evidence provides an historical context to bargaining at ARTC and the transition from ANRC.
[30] In summary, he stated that there was a separate agreement for Network Controllers (then called Train Controllers) at ANRC. This agreement transferred to ARTC when it was first established. In the first dedicated ARTC bargaining to be conducted, a single agreement was negotiated for all employees and a significant factor in this regard was the move to annual salaries for all employees. There was no dissent from any employees to the move to a single agreement.
[31] The third and final witness for the employer was Kirsten Alexander, an engineer employed by ARTC, who was appointed a bargaining representative for the proposed agreement by 10 employees within her Division. Of a total of seven bargaining meetings held between October 2009 and April 2010, inclusive, Ms Alexander attended four meetings. The purpose of her appointment as bargaining representative was to understand any matters that may affect the individuals she was representing. She stated that the meetings were dominated by Network Controller issues.
[32] Ms Alexander indicated that on 10 May 2010 she received correspondence from the RTBU with a copy of the letter dated 19 April 2010 that RTBU had sent to ARTC notifying its intention to seek a scope order. She stated that at no stage did she receive any correspondence from the ASU. I note that this evidence is accepted by both the RTBU and ASU.
[33] Ms Alexander and those she represents support a single enterprise agreement for all employees. She supports ARTC’s philosophy, encapsulated in the slogan, “One Nation, One Railway, One Company”. Her evidence generally echoed that of Ms McAuliffe in relation to the place of the Network Controllers within the organisation, the nature of their work, the interaction between Network Controllers and other employees and some of the distinguishing features of their working arrangements.
Unions’ submissions
[34] Mr Waddell for the RTBU and Mr Payne for the ASU submitted that the current negotiations have not been fair or efficient for the Network Controllers.
[35] It was contended that Network Controller issues have dominated current and past bargaining but as they are a minority group they can be outvoted. It was also submitted that the bargaining was not fair or efficient for the other employees because the conclusion of an agreement for them was delayed as a result of issues which have no relevance to them.
[36] The unions argued that the distinction between Network Controllers and other employees had been recognised in separate appendices or sections in past agreements; their working arrangements and environment were unique in the organisation; and their interests would be served by a separate agreement.
ARTC position on merit
[37] Mr Woods, of counsel, for ARTC, 7 stated that his client wished to maintain a single agreement consistent with the company’s philosophy and past practice. He submitted that ARTC had bargained in good faith on Network Controller issues and there is no evidence that resolution of controller issues is more likely to occur if they have a separate agreement. Mr Woods stated that the unions did not agitate for a separate agreement for the Network Controllers until such time as ARTC indicated that the proposed agreement was to be put to the vote. He contended that the Network Controllers were neither geographically, organisationally or operationally distinct.
Jurisdictional issues
[38] Mr Woods argued that the RTBU and ASU applications were not valid since they had not complied with various requirements of s.238 of the Act. Section 238 is in the following terms:
“238 Scope orders
Bargaining representatives may apply for scope orders
(1) A bargaining representative for a proposed single-enterprise agreement may apply to FWA 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 must have given notice of concerns
(3) The bargaining representative may only apply for the scope order if the bargaining representative:
(a) has given 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 FWA may make scope order
(4) FWA may make the scope order if FWA 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 FWA 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, FWA 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 FWA may make
(7) If FWA makes the scope order, FWA 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 FWA, or take such other actions, as FWA considers appropriate.”
Section 238(1) of the Act
[39] Mr Woods contended that the unions are unable to satisfy the requirement of s.238(1) of the Act. This argument was advanced on three grounds. Firstly, Mr Woods argued that the asserted concerns need to be more than the subjective view of the bargaining representative 8 and the evidence establishes that the bargaining has been fair and efficient. Secondly, he argued that the Act requires that the concerns must relate to the way bargaining is proceeding, i.e. in the present tense, and the evidence of Ms McAuliffe shows that bargaining had concluded before the concerns surfaced. Thirdly, Mr Woods contended that the unions were unable to substantiate that the concerns relate to issues of coverage of the proposed agreement because of the weight that must attach to the historical position of agreement coverage at ARTC and the absence of any factors to justify a change in this regard.
[40] I am not persuaded that the first and third arguments advanced by ARTC are correct. I am satisfied that the RTBU and ASU genuinely have concerns that the bargaining process is not proceeding fairly or efficiently. The evidence establishes that the Network Controllers currently have and previously have had concerns about the bargaining process in terms of the weight of their votes relative to the overall weight of their issues and the impact of the bargaining process on other employees. Moreover, it is not the role of FWA to make positive findings pursuant to s.238(1)(b) as to whether the concerns are valid. It is clear that s.238(1)(b) refers to the subjective views of the bargaining representative(s) and other provisions within s.238 of the Act require those concerns to be tested against relevant requirements. To adopt the submission of Mr Woods would be to ascribe a meaning to s.238(1)(b) that is not open on the ordinary meaning of the words of that provision.
[41] I consider that the second argument advanced by ARTC in relation to s.238(1) of the Act has more merit. I am of the view that in the circumstances of this matter the bargaining had concluded at the time that each of the applications for a scope order were made. There were no negotiations on-going or scheduled and ARTC had advised that, as far as it was concerned, the negotiations had been exhausted and the proposed agreement would be put to a vote.
[42] It is important to identify that in some circumstances the actions of an employer in ending negotiations in this manner, when there are clearly claims outstanding, may be a breach of good faith bargaining requirements and in these circumstances an appropriate order pursuant to s.229 of the Act could be sought. In the present matter, no such order has been sought and the unions have not suggested that ARTC is not meeting good faith bargaining requirements.
[43] A plain reading of the words of s.238(1)(a) of the Act implies that the bargaining is ongoing at the time that the order is sought. There are good reasons that this should be the case, as the present matter exemplifies. ARTC has bargained in relation to the Network Controller issues for five or six months before it announced that the negotiations were exhausted. The making of a scope order would have the effect of requiring ARTC to recommence negotiations in relation to Network Controller issues. For this reason I would find, in any event, that the scope order would not promote the fair and efficient conduct of bargaining in accordance with s.238(4)(b) of the Act and I could not be satisfied that the order would be reasonable in the circumstances as required by s.238(4)(d) of the Act.
[44] I have concluded that each of the applications for a scope order must fail on any or all of these grounds. Put simply, it is my view that the unions’ applications were filed too late in the process.
[45] I am not required to reach a conclusion on the extent to which the other requirements of s.238 of the Act have been met or on the other technical arguments advanced by ARTC and there is little point in doing so. I would however observe that the following matters do not appear to be in dispute. Network Controllers undertake a critical operational role similar to air traffic controllers but for rail and their working environment is unique within South Australia. There has been an historical recognition by ARTC that some significant terms and conditions of employment, including the classification structure, need to be tailored to the circumstances of Network Controllers and their conditions are delineated from that applying to other employees on this basis. It also uncontroversial that the Network Controller issues significantly delayed the finalisation of the 2006 Agreement and the proposed Agreement for all other employees and that Network Controller issues have dominated the bargaining in past and present rounds of enterprise bargaining.
[46] These circumstances suggest that negotiations may proceed more efficiently and fairly if Network Controllers have a separate agreement. ARTC’s preference for a single enterprise agreement for all employees consistent with its corporate philosophy is a relevant matter, but in my view it is not sufficient to outweigh the range of factors as set out in the preceding paragraph.
[47] For the reasons outlined earlier the scope order applications of the RTBU and the ASU are dismissed.
DEPUTY PRESIDENT
Appearances:
Mr A Waddell for the RBTU
Mr D Payne for the ASU
Mr A Woods Counsel for the Company
Hearing details:
2010
Adelaide
5 August
1 Unfortunately these applications have been attended by significant delay, due to the unavailability of parties, their representatives and/or witnesses.
2 Exhibit ARTC 1 at paras 19-21; Exhibit ARTC 6 at para 14.
3 ARTC employees in New South Wales are covered by two enterprise agreements, one that reflects the work covered by the existing agreement in South Australia and one which covers infrastructure maintenance. In South Australia, infrastructure maintenance is undertaken by a related company, ARTC Services, which has its own enterprise agreement.
4 Exhibits RTBU 1, RTBU 2 and RTBU 3; Transcript PN 14 - 284.
5 Exhibit ASU 2.
6 Exhibit ARTC 1 Attch JM39.
7 Leave was granted to Mr Woods to appear in [2010] FWA 5790.
8 Mr Woods referred to Liquor Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd[2009] FWA 818 in support of this position.
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