Australian Rail, Tram and Bus Industry Union; Australian Municipal, Administrative, Clerical and Services Union - [2014] FWC 1035

[2014] FWC 1035

FAIR WORK COMMISSION

DECISION

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

Australian Rail, Tram and Bus Industry Union; Australian Municipal, Administrative, Clerical and Services Union
(B2013/1538)

Australian Rail, Tram and Bus Industry Union; The Australian Workers' Union

(B2013/1552)

v
Australian Rail Track Corporation (ARTC)

COMMISSIONER HAMPTON

ADELAIDE, 26 MARCH 2014

Applications for scope orders - related matters heard together - representation - concerns about fairness and efficiency of the bargaining process - whether applicants meeting good faith bargaining obligations - whether change in scope to separate two work groups would promote fair and efficient bargaining - some limited grounds found - not satisfied that orders sought would promote fair and efficient bargaining in the present circumstances - not appropriate to make the orders given the basis of the findings and the circumstances of each matter - applications dismissed.

1. Introduction

[1] This decision concerns two related applications seeking bargaining scope orders under s.238 of the Fair Work Act 2009. Each application arises from a bargaining process that is presently underway regarding employees of the Australian Rail Track Corporation (ARTC).

[2] The ARTC has responsibility for the management of a large number of rail tracks in South Australia, Victoria, Western Australia, New South Wales and Queensland. In that capacity it owns or leases an extensive network of rail corridors and controls access to this network by various railway operators. The ARTC also has responsibility for the safe operating and maintenance of these corridors and employs in the order of 1,200 employees in various locations across Australia.

[3] The present negotiations involve most of the employees of the ARTC other than those who are subject to an existing enterprise agreement applying to the New South Wales operations and three other enterprise agreements applying to infrastructure employees in New South Wales, Victoria, South Australia and Western Australia. The present group of employees involves some 324 employees, many of whom are based in South Australia, where the ARTC head office is located.

[4] The Australian Rail, Tram and Bus Industry Union (ARTBIU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) have made an application seeking, in effect, that a group of employees described as Network Controllers be excluded from the present negotiations and subject to a separate bargaining process. In general terms, the application is based upon the contention that the Network Controllers are a distinct group whose interests are being submerged in the present process and their separation would promote fairer and more efficient bargaining.

[5] The ARTBIU and The Australian Workers’ Union (AWU) have also applied seeking in effect that a group of employees described as Signal Employees be excluded from the present negotiations and subject to a separate bargaining process. The grounds of this application are largely the same as for the Network Controllers with the additional factor that these employees are presently subject to their own enterprise agreement.

[6] The ARTC opposes each application on various grounds including that they had been made prematurely and the making of any order would not advance fairer and more efficient bargaining. The ARTC asserted its preference for retention of the existing scope of negotiations as part of an overall objective to reduce the number of enterprise agreements within its business.

[7] Mr Ilan Sagi, a Project Manager employed by the ARTC, is formally acting as a bargaining representative for a relatively large group of employees (83) covered by the present bargaining process. That group does not contain Network Controllers or Signal Employees. Mr Sagi raised concerns about whether each of the applicant unions had been bargaining in good faith and in effect opposed the granting of the applications. 1

[8] Each application involved largely common parties and contentions about the same existing bargaining process, and if granted, would have an impact upon that process. In that light, I determined that they would be heard together despite the views of the applicant unions that they should be heard separately.

2. Representation of the ARTC

[9] The ARTC sought permission under s.596 of the Act to be represented by a lawyer.

[10] Each of the applicant unions opposed the granting of permission.

[11] In the lead up to the hearing of these matters, all parties filed materials in support of their competing positions. Having considered the issue, I granted permission for the ARTC to be represented by a lawyer. In so doing, I indicated that I would subsequently provide reasons for that decision, which I now do.

[12] Section 596 of the Act provides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

[13] ARTC’s lawyers, Henry Davis York (and Mr Woods or any other lawyer) are not bargaining representatives in relation to any of these applications and the circumstances of subsections (3) and (4) above do not apply. Accordingly, permission could only be granted where one or more of the circumstances contemplated in s.596(2) of the Act are found to apply.

[14] The ARTC contended that permission should be granted on the grounds of efficiency and fairness. It submitted that the Commission and the hearing would be assisted by legal representation given the factual and legal complexity of the matters.

[15] In terms of fairness, it contended that it would be unfair not to permit representation given that the ARTC did not employ legally qualified staff and that the only employee with sufficient experience in industrial relations and proceedings was going to be its key witness. Further, any suggestion of unfairness to the unions should be considered in the context of the nature of the application and the nature of the representation available to them.

[16] The applicant unions contended that the issues involved in the applications were relatively straightforward and that the ARTC was a large corporation having specialist human resource (HR) and other senior staff that could effectively represent its interests.

[17] In terms of fairness, the ARTBIU referred to the fact that it had little resources and each of the applicant unions referred to the relative degree of advocacy experience available to them. It also contended that there were a range of HR staff that could represent the ARTC other than their key witness.

[18] Some guidance about the intent of the Parliament regarding the question of representation may be found in the following passages of the Explanatory Memorandum published at the time of the Fair Work Bill’s introduction in 2008:

“2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.

2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.

...

2296. In granting permission, FWA would have regard to considerations of efficiency and fairness rather than merely the convenience and preference of the parties.”

[19] It is evident from the terms of the Act that permission is not to be granted lightly and only where circumstances warrant that course of action. 2

[20] As can be seen from the scope of factual and legal issues dealt with in this decision, these matters are complex, were always going to involve multiple witnesses and include the consideration of two different applications canvassing a number of key aspects of the Act.

[21] Further, although the employer clearly has HR and other management expertise, there was evidence 3 before the Commission to support its position in relation to the absence of alternative (internal) representation. This included that Ms McAuliffe, who might otherwise represent ARTC in these proceedings, was herself to act as the main employer witness and would in all probability be cross-examined. This did in fact eventuate.

[22] In terms of fairness between the parties, subsection (2)(c) is directed to unfairness in relation to the party seeking to be represented given the nature and circumstances of the other party(s). In that context, I note that two of the three applicant unions were, or had been at various times in the preliminary stages of this matter, represented by legally qualified staff.

[23] Given all of these circumstances, I was satisfied that the matter would be dealt with more efficiently by the Commission with the ARTC being represented (s.596(2)(a)). In addition, as the evidence of the person who would otherwise appropriately represent the employer would be challenged under cross-examination and issues of credit might arise, it would be unfair not to grant permission for representation in this particular case (s.596(2)(b)).

[24] I note that subsequently, the AWU was, with permission, represented by an external lawyer, Mr Wilson.

3. The immediate statutory framework

[25] The present applications have been made under s.238 of the Fair Work Act 2009. This provision is found in Division 8 of Part 2-4 of Chapter 2 of the Act. Division 8 provides for the Commission to facilitate bargaining by making bargaining orders, serious breach declarations, majority support determinations and scope orders.

[26] The objects for Part 2-4 of the Act are provided in s.171 in the following terms:

“171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i) making bargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”

[27] The capacity for the Commission to make scope orders is established by the Act as follow:

“238 Scope orders

Bargaining representatives may apply for scope orders

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

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

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

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

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

Bargaining representative 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

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.”

[28] There is no doubt that the ARTBIU, ASU and AWU are relevant bargaining representatives and no party has contended that the requirements of s.238(1), (2) and (3) have not been met. The material before the Commission also establishes that compliance.

[29] The issues in dispute in these matters ultimately concern the requirements of s.238(4) and s.238(4A) of the Act. To grant the applications, the Commission must be satisfied that each of these requirements has been met given the conjunctive provisions of subsection (4).

4. The cases advanced by the parties

[30] In general terms, the applicant unions presented common cases and relied upon those advanced by the others. Accordingly, the summaries below are only intended to canvass the major elements of each party’s case and all positions have been considered in determining these matters.

4.1 The ARTBIU - Network Controllers and Signal Employees

[31] The ARTBIU contends that both the Network Controllers and Signal Employees form distinct and easily recognisable groups and the employees in those groups have indicated a strong desire to have their own separate enterprise agreements. In relation to the existing scope of negotiations, the ARTBIU contends that the ARTC unilaterally established that scope and the absence of a scope application by the employer to change the coverage of the existing enterprise agreements should be a factor taken into account.

[32] It also contends that the existence of multiple agreements has not negatively impacted upon the ARTC and the removal of the two groups from the broader bargaining group would ultimately be more efficient given the different positions and the time occupied dealing with matters only relevant to one or other of the relevant groups.

[33] In relation to the non-attendance at the most recent bargaining meetings, the ARTBIU contended that it was not reasonable for the applicant bargaining representatives to have attended given that they had formed the view that the bargaining was not proceeding effectively or fairly and noted that the ARTC had not itself applied to vary the present scope of the 2010 EA.

[34] The ARTBIU also submitted that the voting power of the employees outside of the Network Controllers and the Signal Employees was such that it impacted upon the applicant groups’ ability to negotiate. This, it contends, also extended to their capacity to take protected industrial action. That is, the ARTC could put the proposed agreement out to ballot and in effect, circumvent the capacity of the two groups to take industrial action.

[35] The ARTBIU contends that the two groups are operationally, geographically and organisationally distinct given their work locations and the nature of their work. That is, they are not sealed off from the organisation but do have distinct roles and perform shift work and/or work in remote locations. In that regard, the ARTBIU also referred to the decision 4 of Bartel DP in 2010 where the Deputy President indicated that the Network Controllers were a distinct group, and where the s.238 application was declined for reasons not present with these applications.

[36] In relation to the present state of negotiations, the ARTBIU contends that little if any weight should be attached to any draft agreement on offer from the ARTC as it was said to be irrelevant to the considerations of the Act.

[37] The ARTBIU relied upon evidence from the following witnesses:

● Mervyn Hill - Network Controller; 5

Simon Walkley - Control Systems Technician; 6

Glenn Ashman - Team Leader Adelaide Metro (Level 5 Signal Maintainer); 7 and

● Stephen Freysen - Signal Maintainer Mechanical Level 4 (work group leader). 8

4.2 The ASU - Network Controllers

[38] The ASU contends that all of the applicant unions had been, and were, meeting the good faith bargaining requirements of the Act. It submitted that the decision not to attend the last bargaining meetings was taken in the context of the earlier suspension of the process by the ARTC and the implications for these applications if the bargaining continued. Further, there was no failure to recognise the other bargaining representatives, including Mr Sagi.

[39] The ASU submits that it was not open to the Commission to consider an alternative formulation of the scope; rather, it was obliged to determine whether the bargaining would be fairer and more efficient on the basis of the two scope applications and not a further alternative.

[40] In relation to the scope of the proposed groupings, the ASU contends that a finding that the Network Controllers (and the Signal Employees) were geographically, operationally or organisationally distinct, would be a significant factor in favour of a finding that the group has been defined fairly, and that on order should be made.

[41] Further, the ASU contends that significant weight should be afforded to the views of the employees who were, in each case, supporting the scope applications.

[42] The ASU relied upon evidence from the following witness:

● Phillip Agaciak - Network Controller. 9

4.3 The AWU - Signal Employees

[43] The AWU contends that the Signal Employees are a distinct group and pointed to an earlier Memorandum of Understanding (MOU) that acknowledged the right of the parties, including the employees, to elect to pursue (retain) their own enterprise agreement.

[44] The AWU also contends that any preference of the ARTC to reduce the number of enterprise agreements should not outweigh the range of factors supporting the making of the scope applications. This, it submitted was consistent with earlier decisions of the Commission and it would be “bizarre” if a contrary finding was made.

[45] The AWU relied upon evidence from the following witnesses:

● Wayne Farley - Team Leader Level 5 (Projects); 10

Grant Nelson - Signals Electrician; 11

Jim Davolli - Work Group Leader (Signals); 12 and

● Michael Hopgood - Branch Organiser - AWU. 13

4.4 The ARTC - Network Controller and Signal Employees

[46] The ARTC contends that it was premature for the applicant unions to seek a change in scope on the basis of alleged improvements in fairness and efficiency. That is, the claims being advanced by the two groups concerned were still being negotiated and were capable of being considered as part of the existing process.

[47] The ARTC also contends that the negotiations to date reveal that any of the separate claims being made by the Network Controllers and Signal Employees were in fact being recognised in the process. This included a proposal to recognise the existing conditions for the Signal Employees and a proposal to work through the hours of work and related leave arrangements for the Network Controllers. In that regard, the ARTC submits that the same claims were being advanced by the two groups both prior to and after the proposed change in scope claimed by the applicant unions.

[48] The ARTC contends that the two groups are not geographically, organisationally or operationally distinct. Rather, it submits that they are interdependent with others within the broader group and notes that the 2010 EA contained coverage for both management and other employees in each of the relevant work groups.

[49] In relation to the Network Controllers and the fact that they work 24/7 shift rosters, the ARTC contends that the train network operates on that basis and that other employees, including the Train Transit Managers and Programmers also undertake shiftwork and work in close association with them.

[50] The ARTC contends that the Signal Employees mostly have their home base at the Mile End head office and also work in the field in conjunction with Engineers and Managers. It also referred to the circumstances of other employees who largely work in the field and contended that these were part of the broader bargaining group and were not distinct.

[51] In terms of the alleged minority interests, the ARTC contends that there was no indication that any difference of views or position would lead to an abuse of their circumstances. Further, it suggests that having to deal with any separate claims that were being advanced just for the two groups concerned, would not be fair or efficient in terms of the overall bargaining process.

[52] The ARTC relied upon evidence from the following witness:

● Jennifer McAuliffe - Executive General Manager of People, Culture and Development. 14

4.5 Mr Sagi

[53] Mr Sagi is representing a significant group of employees and contends that the applicant unions have not been bargaining in good faith. In particular, he contends that the unions have failed to properly engage with him as a bargaining representative in relation to their respective positions, including in relation to the suspension of the present bargaining process that occurred for a period soon after the lodgement of these applications.

[54] Mr Sagi further contends that the applicant unions refused to attend some bargaining meetings and that this was contrary to s.228(1)(a) of the Act.

[55] In relation to the proposition that the Network Controllers and Signal Employees be excluded from the present bargaining process, Mr Sagi contends that the present process was proceeding effectively and fairly, and that the different claims and issues should be resolved through the collective bargaining process. In support of that position, Mr Sagi referred to a survey of the employees he represents, which he suggests demonstrates that the interests of the two groups are not being overlooked in the process.

[56] Mr Sagi gave evidence 15 in support of his position in these matters.

4.6 The witness evidence

[57] All witnesses in this matter provided witness statements and were cross-examined. Although the applicant unions suggested that Ms McAuliffe was evasive, 16 I consider that all of the witnesses, including Ms McAuliffe, gave their evidence openly and to the best of their recollection. There are differences between the witnesses, however most of these arise from different perspectives and roles rather than direct facts.

[58] I have found that some of those witnesses called in relation to the circumstances of the Signal Employees were not aware of the actual state of negotiations and their evidence, at least to that extent, did not assist the Commission.

[59] In terms of the evidence of Ms McAuliffe, the criticisms arose from an exchange with Mr Wilson, who appeared for the AWU, about an apparent change in bargaining position concerning the Signal Employees. It was evident to me that one reason for the length and nature of the exchange was that certain (incorrect) assumptions, about the positions of the parties in December 2011 when the MOU concerning the signal employees was signed, and precisely when the ARTC in fact confirmed its position on a single agreement in the present process, were present in some of the questions.

5. Findings about the context for, and operation of, the present bargaining process

[60] The employees who are subject to the present bargaining process, including the Network Controllers and the Signal Employees are covered by the Rail Industry Award 2010.

[61] There are some 324 employees, out of total workforce of 1,200 employees, covered by the present process. Of the 324 employees, there are 53 Network Controllers and 26 Signal Employees.

[62] The Network Controllers are currently subject to the Australian Rail Track Corporation Limited Enterprise Agreement 2010 (the 2010 EA), which has a nominal expiry date of 30 September 2013. The 2010 EA also applies to all other employees within the present bargaining process with the exception of the Signal Employees.

[63] The Signal Employees are currently subject to the Australian Rail Track Corporation Services Company Enterprise Agreement 2008 (the 2008 Services Company EA). This enterprise agreement has also passed its nominal expiry date. At the time of its making, the 2008 Services Company EA was entered into by the Australian Rail Track Corporation Services Company Pty Ltd, being an organisation operated by the ARTC. In December 2011, the Signal Employees became direct employees of the ARTC and the 2008 Services Company EA now applies to the ARTC and those employees by virtue of the operation of the Act. 17

[64] The ARTC is also subject to the following enterprise agreements:

“(a) Australian Rail Track Corporation (NSW) Enterprise Agreement 2012 (2012 NSW Agreement). The 2012 NSW Agreement commenced operation on 20 August 2012 and has a nominal expiry date of 19 August 2015;

(b) Australian Rail Track Corporation (NSW) Infrastructure Maintenance Enterprise Agreement 2011 (2011 NSW Infrastructure Agreement). The 2011 NSW Infrastructure Agreement commenced operation on 13 May 2011 and has a nominal expiry date of 12 May 2014;

(c) ARTC South Australia/Western Australia Infrastructure Maintenance Enterprise Agreement 2013 (2013 SA/WA Infrastructure Agreement). The 2013 SA/WA Infrastructure Agreement commenced operation on 25 September 2013 and has a nominal expiry date of 25 September 2016; and

(d) ARTC (Victoria) Infrastructure Enterprise Agreement 2013 (2013 Vic Infrastructure Agreement). The 2013 Vic Infrastructure Agreement commenced operation on 21 March 2013 and has a nominal expiry date of 31 December 2015.” 18

[65] The ARTC commenced the present bargaining process by issuing the required notice of employee representational rights in mid 2013. This process was, in effect, intended to lead to an agreement that would replace the 2010 EA.

[66] The scope for the new enterprise agreement as proposed by the ARTC was to cover all employees other than those subject to the NSW Agreement and the three infrastructure enterprise agreements outlined above. This had the effect of continuing to include the Network Controllers and incorporating for the first time coverage of the Signal Employees under a common enterprise agreement.

[67] Each of the applicant unions, Mr Sagi, and one other employee, became bargaining representatives.

[68] There were five separate negotiation meetings conducted between 2 August 2013 and 5 November 2013. Each meting involved the ARTC and the other bargaining representatives.

[69] During the initial meeting on 2 August 2013, the ARTC outlined its intention to bargain for a single enterprise agreement to apply to all employees within the scope of its Notice of Employee Representational Rights.

[70] The bargaining representatives subsequently exchanged logs of claims and other proposals and the different working hours arrangements for the groups of employees falling within the ARTC’s intended scope was discussed.

[71] In the lead up to the third meeting on 27 September 2013, the AWU, ARTBIU and ASU provided their logs of claims. In the case of the ARTBIU and ASU, their joint log sought that an agreement be made to exclusively cover the Network Controllers, and in effect, the Signal Employees under the same instrument. This claim, along with the ARTC’s proposal to include a separate section for the Signal Employees within a combined agreement covering all employees, was discussed.

[72] The AWU also advanced proposals including in relation to a casual conversion clause, first aid allowance and the structure of the proposed agreement.

[73] On 11 October 2013, the ARTC responded to the various logs and proposals and this included some proposals with respect to rostering principles and annual leave arrangements for Network Controllers. In addition, the ARTC proposed some concessions in relation to the Signal Employees involving the classification of Signal Employee Level 5 and a potential inclement weather provision.

[74] At the subsequent meeting on 25 October 2013, the parties discussed the ARTC proposals and a large number of claims being advanced by the various bargaining representatives. It was also agreed that the parties would seek to advance a number of ARTBIU/ASU claims relating to working hours and shift arrangements for the Network Controllers through a separate process. I note that only preliminary progress has been made and the parties have a different understanding as to the status of this development. I will return to this aspect as part of my later consideration of the Network Controllers.

[75] At the meeting held on 5 November 2013, the parties discussed a range of matters including the ARTC’s proposals addressing a number of the Signal Employees’ claims. The ARTC also confirmed its intention to seek to amalgamate numerous other enterprise agreements as part of the bargaining rounds expected in 2015.

[76] At the conclusion of the 5 November meeting, the ARTBIU provided a letter setting out its concerns with the scope of the proposed enterprise agreement and joint ARTBIU/ASU logs of claims seeking, amongst other matters, a separate agreement for Network Controllers and a separate agreement for the Signal Employees. The AWU and ASU also subsequently provided written notice of its concerns to the ARTC and all other bargaining representatives.

[77] Positions in relation to the scope of bargaining were exchanged during November and following confirmation that the ARTBIU would make a s.238 application, the ARTC notified the bargaining representatives and the employees concerned that it would suspend the bargaining “until such time as the scope is determined by the Fair Work Commission”. 19

[78] Mr Sagi raised his concerns about the suspension with the ARTC and other bargaining representatives and sought clarification as to whether that was required under the Act. Following various exchanges between the bargaining representatives, on 29 November 2013, the ARTC advised the bargaining representatives and the employees that it no longer considered that the suspension was appropriate and contended that it was possible for “fair and constructive negotiations” to continue. 20

[79] Further exchanges took place between various bargaining representatives and the ARTBIU advised that it would not be attending the proposed further meeting given that it would prejudice its members. 21 This position was adopted by the ASU and AWU.

[80] A bargaining meeting was conducted on 6 December 2013. I note that this was originally scheduled as part of a program of meetings. The ARTBIU, ASU and AWU did not attend the meeting. The ARTC advised of a revised bargaining proposal at that meeting and indicated that a draft agreement would be tabled at the next scheduled meeting.

[81] During December the bargaining representatives exchanged views about the proposed agreement, the scope of negotiations and concerns held by the ARTBIU that the ARTC would use the continuing negotiations as a prelude to putting the employer’s proposal out to ballot and undermine the s.238 applications. 22

[82] On 16 December 2013, a further bargaining meeting was held. The ARTBIU, ASU and AWU did not attend. The ARTC tabled a draft enterprise agreement and following discussion with Mr Sagi and the other employee representative, additional changes were proposed.

[83] The revised proposal made by the ARTC involved an extended definition of a “Network Control Employee” which included Network Controllers, Train Transit Managers, Data Administrators and Programmers. Specific proposed provisions were included for this group of employees including a provision dealing with annual leave accruals and deductions in light of an earlier decision of the Commission. 23 The draft also contained a schedule incorporating all of the major conditions applicable to Signal Employees from the 2008 Services Company EA.

[84] A further meeting was conducted on 20 December 2013 without the applicant unions attending.

[85] There are a number of significant outstanding claims regarding the scope, wages and particular conditions matters, and no agreement has been reached between any of the bargaining representatives, including the ARTC and Mr Sagi, on a package.

[86] I will deal with the more detailed findings about the nature of the present bargaining process as part of my consideration of the statutory requirements.

6. Have the ARTBIU, ASU and AWU met, or are meeting, the good faith bargaining requirements - s.238(4)(a)?

[87] The good faith bargaining requirements are established by s.228 of the Act in the following terms:

“228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

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

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.”

[88] It is necessary for each of the applicant unions to satisfy the Commission that they have, or are now, meeting these obligations. As this requirement effects both applications and refers to the same bargaining process, I will consider and determine this issue before dealing with the particular circumstances of each application.

[89] The ARTC does not contend that any of the applicant unions have failed to bargain in good faith within the meaning of the Act. However, Mr Sagi has raised two contentions that need to be considered and determined.

[90] The lack of engagement as described by Mr Sagi potentially raises the requirements of s.228(1)(c), (d) and (f) of the Act. In particular, the concerns he raises arise from the fact that the applicant unions have not separately “caucused” with him (and the other employee representative) and his contention that they have not properly discussed their respective position regarding the overall claims, the revised positions and the original suspension of the bargaining process.

[91] I am satisfied that the applicant unions have been acting in a manner consistent with the relevant requirements of the Act. The “failure” to separately caucus as an employee bargaining group may not be helpful for those represented by Mr Sagi, however it is not a requirement of s.228 to caucus in this manner. What is required is that a bargaining representative discloses relevant information, responds to proposals in a timely fashion and gives genuine consideration to other positions.

[92] The evidence reveals that the applicant unions have participated in the bargaining process, advanced and explained their positions with respect to scope and other matters, and responded to proposals made by the ARTC and all of the other bargaining representatives. This included formally raising their concerns about the fairness of the bargaining with Mr Sagi and others prior to bringing these applications. This also complied with the requirements of s.238(3) of the Act.

[93] In terms of the initial suspension of the bargaining, this was initially raised only with the ARTC but when Mr Sagi’s opposition to that development was made known, there were exchanges between the applicant unions and Mr Sagi about the issue.

[94] The second issue concerns the non-attendance of the applicant unions at the bargaining meetings conducted after the ARTC re-established the bargaining process. This directly raises the requirements of s.228(1)(a) and in particular whether the meetings were at reasonable times. Further, I must also potentially consider whether the non-attendance at any meetings represents a breach of this requirement.

[95] There were three meetings after the resumption of bargaining. The ARTC originally agreed to suspend the bargaining process in light of these applications and then sought to resume meetings in response to Mr Sagi’s position. The applicant unions contend that these meetings were not at reasonable times, given the earlier suspension, and the fact that bargaining within the present scope was not reasonable at that time given the pending determination of these matters.

[96] The obligation in s.228(1)(a) refers to meeting at reasonable times. This concept implies that reasonable is to be assessed in the circumstances applying at the relevant time and not just to the physical timing of the meetings. The Commission has found in other matters that the concept of reasonableness needs to be considered in the broader context of bargaining and the positions of the parties. 24

[97] What is clear is that a refusal to meet at all, or only to meet on certain conditions that might themselves be subject to negotiation and discussion, will run a risk of a finding that the requirement is not being met. 25

[98] In this case, the meetings were conducted after the ARTC initially considered that future bargaining should be suspended pending the outcome of these applications. It is also evident to me that the concerns of the applicant unions about the continuing negotiations being used against them were real given that the basis of the resumption was directly linked by the ARTC to the fairness and efficiency of the present process. Further, the absence of any assurances that the ARTC would not proceed to finalise a position and put a proposed agreement out to ballot is a relevant consideration in this particular case.

[99] This occurred in the context of earlier applications involving the ARTBIU and ARTC regarding scope being directly influenced by the timing of the s.238 applications and the status of negotiations and ballot processes. 26 There had also been extensive earlier exchanges between the parties about the scope and the ARTC constructively continued to engage with the applicant unions about the revised proposals outside of the meetings process.

[100] On balance, I am satisfied that each of the applicant unions, as bargaining representatives, have met, or are meeting, the good faith bargaining requirements of the Act.

[101] This is not to suggest that in other circumstances continuing discussions without the prior resolution of scope would not have been worthwhile. I will return to this aspect in considering the appropriateness of any orders that might be considered in these matters.

7. The general approach to be adopted to the other requirements of s.238(4) and (4A)

[102] The requirements of s.238(4)(b) are that making the order will promote the fair and efficient conduct of bargaining. Having regard to that requirement, the objects of the Act and the authorities cited by the parties, 27 I consider that this assessment should be based upon the following approach.

[103] It is not necessary that the present bargaining be considered to be unfair or inefficient, however findings to that end would clearly be relevant and would be conducive to a finding that the requirements of this provision may be met by an alternative scope for bargaining.

[104] The applicant for a scope order must demonstrate that the making of the order would promote, that is encourage and facilitate, bargaining that is fairer and more efficient than if no order was made. That assessment is to take into account the interests of all relevant parties who are subject to the bargaining process, including those who are seeking the order, the other party (in this case the employer) and other bargaining representatives, and involve the weighing up of the relevant considerations touching upon the issue.

[105] The views of the employees potentially affected should be considered and given weight, however an overall consideration of the matters specified in s.238(4) and (4A) may make it appropriate for an order contrary to those views to be issued. 28

[106] In terms of the interests of the employees, this will include consideration of 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. Where minority interests are said to be involved, this will involve consideration of whether those interests are sufficiently different and whether they are at risk of being overridden by the majority who have different interests. 29

[107] The relevant considerations may also include the disadvantage to the interests of other bargaining parties if the scope order was to be made, 30 the progress of negotiations and their status at the time of making the decision, and the history of industrial regulation in relation to the employees subject to the bargaining process.31

[108] In relation to the requirements of s.238(4)(c) and (4A), each of the applications, if granted, would lead to scope orders that will not cover all of the employees of the ARTC. Accordingly, the Commission must, in deciding for the purposes of subclause (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. The meaning of fairly chosen was considered by the Full Bench in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 32 (Cimeco), in a different but closely related context; namely, s.186(3) of the Act which concerns the requirement that a group of employees in an enterprise agreement was fairly chosen as part of the approval requirements.33

[109] The Full Bench in Cimeco relevantly said (endnotes omitted):

“[10] ... ... If all of the employees are not covered then the Tribunal must make a finding as to whether the group of employees covered by the agreement is geographically, operationally or organisationally distinct. Absent such a finding the Tribunal cannot properly perform its statutory task. Section 186(3A) provides that the Tribunal must take that matter (ie. whether the group is geographically, operationally or organisationally distinct) into account and give it due weight, having regard to all other relevant factors. Finally, the Tribunal must state its reasons for concluding that the group of employees either was or was not fairly chosen.

[11] At issue in these proceedings is the proper construction of the expression “fairly chosen” in s.186(3). The starting point is to construe the words according to their ordinary meaning having regard to their context and purpose.

[12] The words “fairly” and “chosen” have a variety of meanings, depending on the context. The Oxford Dictionary defines “chosen” to mean, among other things, “taken by preference, selected, picked out”. The word “chosen” in the context of s.186(3) simply means selected to be covered by the relevant agreement.

[13] The word “fairly” is derived from the adverb “fair” and is a word of wide import. What is fair in a particular context is largely a matter of impression and judgment. Of the various definitions of “fairly” in The Oxford Dictionary the most apt in this context are:

“by proper means, legitimately, impartially, justly”; and

“with due regard to equity, candidly, impartially; without undue advantage on either side.”

[14] It is also relevant to note that s.186(3) requires FWA to be satisfied that the group of employees covered by the agreement ‘was fairly chosen’. We agree with the observation of Lawler VP in Re ANZ Stadium Casual Employees Enterprise Agreement 2009 that:

“... the group of employees to be covered by a proposed agreement is ‘chosen’ when the employer and the main employee bargaining representatives agree on a particular scope or the bargaining representatives commence bargaining on a shared assumption as to scope (as is often the case when bargaining proceeds by reference to the terms of an existing agreement that is to be replaced by a proposed new agreement)... The time of the choosing is a factual issue to be determined in the usual way. The group of employees to be covered by a proposed agreement - the scope of the agreement - will typically be chosen at or shortly after the commencement of bargaining ...”

[15] Section 186(3A) is also relevant. In circumstances where an agreement does not cover all of the employees of the employer(s) covered by the agreement s.186(3A) imposes an obligation on FWA, in deciding whether the employees were ‘fairly chosen’, to ‘take into account’ whether the group of employees covered by the agreement is geographically, operationally or organisationally distinct. To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.”

[16] Curiously the Act does not specify how the matters in s.186(3A) are to be taken into account. The context and legislative history are relevant. In terms of the context each of the characteristics identified in s.186(3A) has a degree of objectivity about them. The selection of the group of employees to be covered by an agreement on some objective basis (as opposed to an arbitrary or subjective basis) is likely to favour a conclusion that the group was fairly chosen.

[17] The legislative history of these provisions is also instructive. For example, the Workplace Relations Act 1996 (the 1996 Act) provided that collective agreements could be made covering a ‘single business’ or ‘part of a single business’. Section 322(3) of that act provided that ‘part of a single business’ included:

“(a) a geographically distinct part of the single business; or

(b) a distinct operational or organisational unit within the single business.”

[18] Hence, under the 1996 Act an agreement could be made in relation to a part of a business that was geographically, operationally or organisationally distinct, without any separate consideration of whether the group of employees covered by the agreement were fairly chosen.

[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. We note that there is a suggestion to the contrary in the oral submissions put on behalf of Cimeco when counsel submitted that:

“It was an erroneous approach to introduce the identification of the persons who were relevantly employed at the time of the making of the agreement for the purposes of testing the group chosen.”

[22] To the extent that it is suggested that the interests of the excluded employees are irrelevant we reject that submission. In evaluating whether the group to be covered by the agreement has been fairly chosen it is entirely appropriate to have regard to the consequences of that choice, that is, which employees have been excluded from the agreement.”

[110] The application of all of the considerations outlined above is also to be informed by a construction of the Act that would promote the statutory objects, 34 including those applicable to the relevant part35 of the Act.36 These objects include collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits.

[111] I have applied this approach where relevant to the considerations required by the Act in the context of these two applications.

[112] Various parties have made submissions concerning the impact of any scope orders on the propensity for, and the availability of, protected industrial action. Members of the applicant bargaining representatives are able to take protected industrial action provided a majority of the eligible members support a protected action ballot granted in accordance with s.437 of the Act (and other conditions are met). Any such ballot does not require the majority support of the entire workforce and in that context, the scope of the present bargaining does not directly impact upon the availability of this option. The capacity for an employer to seek orders suspending or terminating industrial action 37 is also not dependent on the scope of the bargaining but rather the nature and impact of the industrial action.

[113] In any event, protected industrial action is part of the scheme of the Act and is not relevant to the present applications except to the extent that it reflects upon whether a change will lead to fairer and more efficient bargaining. This potentially arises from the capacity for a proposed agreement to be put to the employees for approval, and if adopted, prevent the minority groups from in fact taking protected action. I will deal with the basis of what is said to the minority interests under my consideration of the two groups.

8. Network Controllers

8.1 Will making the proposed order promote the fair and efficient conduct of bargaining?

[114] In 2010, Bartel DP indicated 38 as follows:

“[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.”

[115] The Deputy President had already determined to dismiss the scope application at that point on jurisdictional grounds and as a result, the above represents observations rather than findings. I have however respectfully considered them in reaching my conclusion.

[116] I accept that the preference of many, and probably most, of the Network Controllers is to pursue an enterprise agreement applying only to them. This is a factor to be weighed in support of the application.

[117] The history of bargaining is relevant here. This includes the fact that the Network Controllers have been subject to the 2010 EA and that there has been a difference of view about the scope of negotiations over successive bargaining rounds. Further, issues involving the Network Controllers have tended to occupy much of the time of the negotiations. The separation of the Network Controllers from the rest of the negotiating group could facilitate an earlier resolution of the agreement for the broader group. However, this assumes that the ARTC and the other employees involved would be willing to resolve their agreement without knowing the outcome of the other discussions. This may happen, but not on present indications, given the concerns of Mr Sagi about the potential for changes in parity that would arise if separate negotiations were conducted. 39 In reality, the bargaining process in this case is not advanced to the point where a confident assessment can be made about this potential efficiency.

[118] The nature of the working hours and annual leave arrangements for the Network Controllers is a point of distinction and I consider that the working party proposed to deal with some of these matters is a useful means of progressing discussions, but is not a substitute for properly established conditions. The provision in the proposed agreement as recently provided by the ARTC to enable the shift and working hours issues to be resolved after the making of an agreement is very uncertain and not satisfactory as part of an approvable instrument. This is acknowledged by the ARTC 40 and the employer is now open to additional negotiations on the actual issues and proposals. If this were not so, I may have a different view about the application affecting the Network Controllers.

[119] My findings about the absence of strong features indicating a distinctive grouping for the Network Controllers discussed below is also a factor to be taken into account.

[120] There are also a range of common issues being pursued along with the Signal Employees and the separation of the Network Controllers would mean a duplication of negotiations on those matters and more broadly. Depending upon the approach taken by the Commission to the application concerning the Signal Employees, the combined group represented by the applicant unions, although not being the majority, represent a significant group of employees with many common claims and interests.

[121] In relation to the “minority” position of the Network Controllers, they are outnumbered by the other employees in the group. The existence of minority groups within any scope of bargaining is a very common feature in any form of collective bargaining. The reality is that the substantive negotiations had only begun to deal with the major issues, following the clarification of the applicant unions’ position seeking two additional agreements, when the dispute about the scope became the focus. This makes the assessment of the present process difficult.

[122] There is an indication that the group represented by Mr Sagi considers that some elements of the applicant unions’ logs of claims are unrealistic. 41 Equally, that group are also apparently aware of the circumstances of the Network Controllers and are not supportive of the proposal by the ARTC to change their annual leave provisions.42 Based upon the conduct of the negotiations to date and the attitude of the other bargaining representatives, there is little indication that the Network Controllers’ interests will be submerged.

[123] I also take into account that the entire group of employees to be covered by the agreement as proposed by the ARTC is relatively small in the context of their entire workforce. Further, the group of Network Controllers (and Signal Employees) are even smaller and this does impact upon the efficiency of negotiations should the proposed order be granted. The further segmentation of the bargaining group is also not necessarily consistent with improved productivity given the integrated nature of the operations.

[124] On balance, I am not presently satisfied that the change in scope as proposed would lead to fairer and/or more efficient bargaining when all of the circumstances and the interests of all parties are taken into account.

8.2 Was the group of employees who will be covered by the agreement proposed to be specified in the scope order, fairly chosen?

[125] In 2010 Bartel DP did make some findings about the nature of the work of the Network Controllers as follows:

“[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. 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.” 43

[126] The Deputy President did not deal with the consequences of those findings in terms of the considerations of the Act given a jurisdictional barrier that prevented the application being further considered.

[127] I would respectfully generally adopt those findings as being relevant to the facts that emerged from the evidence before me. The evidence does however reveal that the extent of limited access to the control room may have been modified in the period since 2010, with the swipe card access being turned off, and with more interaction with other staff than was apparent in 2010.

[128] In light of the evidence now before the Commission, I find that the Network Controllers are not geographically distinct. They work in a particular separate control room; however, they interact with a number of other groups of employees on a relatively regular basis. They also work with source materials provided by the Programmers and others, and directly report to the Train Transit Managers. The Network Controllers are the only group who undertake full 24/7 shift rosters however other groups, including those who work in association with them, do undertake shiftwork and cover 24 hour periods. In that regard, I note that unlike the case in many workplaces, it has been the practice for both managers and employees more generally to be covered by the same instrument at the ARTC. This means that there are elements of distinctiveness pertaining to the Network Controllers but they are not operationally or organisationally distinct to any significant degree.

[129] There are also different ways in which the broader workforce of the ARTC could be defined and still be considered to be fair. I could conceive of the Network Controllers as a group being considered to be fair for present purposes, however I do not need to determine that issue given my findings above.

[130] I would observe that a grouping involving the Network Controllers, the Train Transit Managers and those who work in close association with them would make more objective sense given the various considerations under the Act. I also note that the applicant unions expressly submitted that the Commission should not consider alternative scopes that might arise from the considerations of the Act. 44

8.3 Is it reasonable in all the circumstances to make the order?

[131] In light of my findings in relation to the requirements of s.238(4)(b) of the Act, there is no basis to consider the making of an order in relation to the present application.

[132] Subsequent developments in the bargaining could of course lead to a different conclusion in that regard, particularly if the shift, leave and related arrangements for the Network Controllers are not the subject of further direct negotiations before any proposals are finalised. In that event, the capacity to make a scope order, and the fairness of the proposed grouping, would need to be considered further.

9. Signal Employees

9.1 Will making the proposed order promote the fair and efficient conduct of bargaining?

[133] I accept that the preference of many, and probably most, of the Signal Employees is to pursue an enterprise agreement applying only to them. This is a factor to be weighed in support of the application.

[134] The elements of distinctiveness discussed below are also a factor to be taken into account to the extent that it reflects upon the fairness and efficiency of the bargaining process.

[135] The history of bargaining is also relevant here. This includes the fact that the Signal Employees are presently subject to a separate enterprise agreement, the reasons why that eventuated, and that it is the ARTC that is effectively seeking a modified scope. In addition, the MOU, which was entered into at the time of their “incorporation” into the ARTC and in effect contemplated either party electing to seek continuing separate coverage, is also relevant.

[136] There is no evidence to suggest that the Signal Employees’ interests are not being taken into account in the existing bargaining process. Indeed, the evidence of many of those with concerns about the bargaining process indicated that they were not aware of the developments that had occurred as a result of the bargaining process. These include the incorporation of the major elements of the 2008 Services Company EA into the ARTC’s most recent draft agreement, proposed changes within that draft to classifications as sought by the Signal Employees, and a proposal with respect to inclement weather.

[137] These developments also tend to indicate that the different starting point of the Signal Employees (their existing enterprise agreement) and the distinct nature of some of their working arrangements have been recognised. This does not mean that there are no outstanding issues and claims, but is consistent with the view that these are capable of further negotiation within the present scope.

[138] The findings made earlier about the nature and extent of the “:minority” interests pertaining to the Network Controllers and the implications of some common claims and interests between those employees and the Signal Employees, are also relevant here.

[139] On balance I am not presently satisfied that the change in scope as proposed would lead to fairer and/or more efficient bargaining when all of the circumstances and the interests of all parties taken into account.

9.2 Was the group of employees who will be covered by the agreement proposed to be specified in the scope order, fairly chosen?

[140] This initially requires consideration as to whether the proposed group is geographically, operationally or organisationally distinct. This provides the foundation for any consideration of the issue of fairness.

[141] The Signal Employee do undertake a different role, largely based outside of the mainstream workforce of the ARTC that would be covered by the proposed agreement. They do work in conjunction with management and engineering staff, but the nature of their role and the relative isolation of their actual work make them distinct in certain respects. There are elements of geographical, and operational distinctiveness that must inform the assessment of the fairness of the group as would be defined by the application.

[142] The definition of the group of employees to isolate the Signal Employees would also be consistent with the fact that they presently have a separate enterprise agreement. This is a consideration, albeit that the different coverage arose by virtue of changes in corporate structure and does not mean that the separate coverage must be seen as an ongoing feature.

[143] There are also different ways in which the broader workforce of the ARTC could be defined and still be considered to be fair. For instance, a grouping which included all of the signal work related employees, including their managers and supervisors, or alternatively, the entire group as presently proposed by the ARTC, could also be considered to be fairly defined having regard to the relevant considerations.

[144] On balance, I find that the Signal Employees as a group are fairly chosen for present purposes.

9.3 Is it reasonable in all the circumstances to make the order?

[145] In light of my findings in relation to the requirements of s.238(4)(b) of the Act, there is no basis to consider the making of an order in relation to the present application.

10. Conclusions and orders

[146] I am not persuaded that either application should be granted at this time. For reasons outlined, there is no basis to make the order in each case given all of the prevailing circumstances.

[147] This does not mean that bargaining is concluded or that there are not issues that arise from the circumstances of each group that should be taken into account. Rather, the consequences of my findings are that further bargaining within the present scope is required and the interests of all employees will need to be genuinely considered.

[148] I have also expressed certain views about alternative approaches to the scope concerning the Network Controllers and related employees. I have emphasised that the working hours and shift arrangements (and annual leave provisions) for the Network Controllers and other shift workers must be properly considered and subject to further genuine bargaining. In the present context, these are matters for the parties.

[149] I would also remind all parties that the good faith bargaining provisions of the Act remain relevant and that any, or all, parties could seek the assistance of the Commission to deal with the bargaining dispute under s.240 of the Act.

[150] For the moment, the applications must be dismissed and I so order.

Appearances:

K Brown for the Australian Rail, Tram and Bus Industry Union.

A Purdy for the Australian Municipal, Administrative, Clerical and Services Union.

D Wilson, Solicitor, with permission for the Australian Workers’ Union.

T Woods of Henry York Davis, with permission, for the Australian Rail Track Corporation Limited.

I Sagi (employee bargaining representative) for himself and 83 other employees.

Hearing details:

2014

Adelaide

February 10 and 11.

1 Another ARTC employee, who is acting as a bargaining representative on his own behalf, was informed of the applications however he did not seek to be heard.

2 See also Warrell v FWA [2013] FCA 291.

3 Statutory declaration lodged with the ARTC submissions on representation.

4 Australian Rail, Tram and Bus Industry Union; Australian Municipal, Administrative, Clerical and Services Union v Australian Rail Track Corporation[2010] FWA 6428.

5 Exhibit ARTBIU2.

6 Exhibit ARTBIU3.

7 Exhibit ARTBIU4.

8 Exhibit ARTBIU5.

9 Exhibit ASU2.

10 Exhibit AWU2.

11 Exhibit AWU3.

12 Exhibit AWU4.

13 Exhibit AWU5.

14 Exhibit ARTC2.

15 Exhibit S1.

16 Transcript PN2071.

17 S.313 of the Act.

18 Exhibit ARTC 2.

19 JM37 attached to exhibit ARTC 2.

20 JM41 attached to ARTC 2.

21 JM43 attached to ARTC 2.

22 JM49 attached to ARTC 2.

23 Australian Rail, Tram and Bus Industry Union and Australian Municipal, Administrative, Clerical and Services Union v Australian Rail Track Corporation[2013] FWC 6861.

24 See for example ANF v Victorian Hospitals’ Industrial Association[2012] FWA 285.

25 See Flinders Operating Services Pty Ltd T/A Alinta Energy v Australian Municipal, Administrative, Clerical and Services Union, The Association of Professional Engineers, Scientists and Managers, Australia, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[2010] FWA 4821.

26 Australian Rail, Tram and Bus Industry Union and Australian Municipal, Administrative, Clerical and Services Union v Australian Rail Track Corporation[2010] FWA 6428 and Australian Rail, Tram and Bus Industry Union v Australian Rail Track Corporation[2012] FWA 6329.

27 Including United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board[2010] FWAFB 3009.

28 Ibid at par [53].

29 See Royal District Nursing Service Limited v Health Services Union of Australia and Australian Nursing Federation[2012] FWAFB 1489 and the decision at first instance - Health Services Union of Australia and Australian Nursing Federation v Royal District Nursing Service Limited [2011] FWA 8033 at pars [56] to [70].

30 See National Union of Workers v Linfox Australia Pty Ltd[2013] FWC 9851 at [59].

31 This is drawn from my decision in The Australian Workers' Union v Sodexo Remote Sites Australia Pty Limited[2013] FWC 6892 as cited by most parties in their submissions in this matter.

32 [2012] FWAFB 2206.

33 S.186(3) - for the purposes of finding that a group of employees in an enterprise agreement was fairly chosen as part of the approval requirements.

34 S.3.

35 S.171.

36 S.15AA of the Acts Interpretation Act 1901.

37 Division 3 of Part 6-6 of the Act.

38 [2010] FWA 6428.

39 Mr Sagi at transcript PN1518.

40 Mr Woods for the ARTC at transcript PN1989.

41 Mr Sagi at transcript PN1558.

42 Informal survey of employees represented by Mr Sagi and his oral evidence.

43 Ibid.

44 Transcript PN1773.

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