Australian Rail, Tram and Bus Industry Union v Bombardier Transportation Australia Pty Ltd T/A Bombardier
[2020] FWC 4945
•14 SEPTEMBER 2020
| [2020] FWC 4945 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.238 - Application for a scope order
Australian Rail, Tram and Bus Industry Union
v
Bombardier Transportation Australia Pty Ltd T/A Bombardier
(B2020/241)
COMMISSIONER SPENCER | BRISBANE, 14 SEPTEMBER 2020 |
Application for bargaining orders and scope orders in relation to the negotiation of a proposed enterprise agreement at Bombardier Transportation Australia Pty Ltd – s. 238 considerations – Application seeking inclusion of classifications not presently covered.
[1] The Australian Rail, Tram and Bus Industry Union (RTBU/the Union/the Applicant) filed an application under s.238 of the Fair Work Act (the Act) seeking for an Order to be made concerning the scope of the proposed replacement Agreement (the replacement Agreement). This was to replace the current Bombardier Transportation Australia Pty Ltd Queensland A&M Services Agreement 2016-2019 (the current Agreement). The application named Bombardier Transportation Australia Pty LtdT/A Bombardier as the Respondent (the Employer/Bombardier).
[2] The RTBU sought in their application that Technical Specialist/In Service Support Technician (ISSTs) and Maintenance Superintendent classifications be included in the scope of the replacement Agreement.
[3] Directions were issued for filing of submissions and evidence. The matter was listed for video Hearing using the Teams platform. A series of witnesses provided evidence via statements, and a number have been cross-examined. The evidence has been addressed in the summaries. The Applicant was represented by Mr L. Kennedy, Industrial Officer of the RTBU, with the Respondent being represented (with permission granted pursuant to s.596 of the Act) by Mr J. Wells, Partner of King & Wood Mallesons.
[4] Whilst not all of the submissions and evidence are referred to in this decision, all of such have been considered.
BACKGROUND
[5] The RTBU submitted by way of background, that it has been a bargaining representative for the proposed Agreement to replace the Bombardier Transportation Australia Pty Ltd Queensland A&M Services Agreement 2016-2019 since November 2019, and that they had been bargaining with Bombardier for a period of some seven months, at the time submissions were filed. The current Agreement passed its nominal expiry date on 31 December 2019.
[6] The RTBU submitted that they provided Bombardier with a log of claims produced by RTBU members (who are employed by Bombardier), at a bargaining meeting on 29 November 2020. The log of claims sets out the following claim regarding an expansion of the scope of the proposed Agreement:
“Coverage of this Agreement
1. ISST staff to be included under this agreement, with a schedule to be developed as a part of negotiations to provide clarity on any unique business requirements.
2. Maintenance Supervisors to be included under this agreement, with a schedule to be developed as a part of negotiations to provide clarity on any unique business requirements.” 1
[7] The RTBU said that Bombardier refused to accept the claim at subsequent bargaining meetings on 29 November, 16 December, and 30 January 2019, and 16 April 2020.
[8] The RTBU wrote a letter to Bombardier on 30 January 2020 raising the issue of scope for the positions of Technical Specialist/ISST and Maintenance Superintendent:
“30 January 2020
Att: Duncan Hughes
Via email: [address redacted]
To Whom It May Concern,
RE: Scope Issues with the Proposed Agreement
This letter is to formally inform you the RTBU believes the recent negotiations of the Bombardier Transportation Australia Pty Ltd Queensland A&M Services Agreement (“Agreement”) are not proceeding efficiently due to Bombardier’s insistence that employees classified in the Technical Specialist/ISST (In Service Support Technician), and Maintenance Superintendent positions are to be excluded from the scope of this
Agreement.
The RTBU maintains that the Agreement should continue to cover all existing classifications and those of the Technical Specialist/ISST and Maintenance Superintendent. To exclude the positions of ISST and Superintendents would be unfair and would subject them to lesser conditions in the future.
Bombardier has not provided satisfactory reasoning for their view and, given the like nature of the positions, as well as the fact that they work in the same locations, and that the positions operate in the same business structure, the RTBU remains convinced that these positions should be scoped into the Agreement.
This scope issue has been discussed on:
➣ The RTBU’s Log of Claims, 29/11/19
➣ EBA meeting 2, 29/11/2019
➣ EBA meeting 3, 16/12/2019
Please confirm by 5pm on 6 February 2020 that Bombardier agrees to include in the scope of the proposed Agreement the Technical Specialist/ISST and Maintenance Superintendent classifications. Alternatively, please provide in writing by this time as to the reasons that Bombardier believes that these positions should not be included in the proposed Agreement.
We look forward to your response
Regards
Yours sincerely,
Owen Doogan
Secretary, Queensland Branch”
[9] Bombardier wrote back to the RTBU on 30 January 2020:
“30 January 2020
Mr Owen Doogan
Secretary, Queensland Branch, RTBU
[address redacted]
Delivered via email: [address redacted]
Dear Mr Doogan,
Alleged Scope Issues with the Proposed Agreement
We refer to your letter dated 30 January 2020, in which you outline the RTBU's preference regarding proposed scope of the Bombardier Transportation Australia Pty Ltd Queensland A&M Services Agreement ("the proposed Agreement"), which is currently subject to negotiation between Bombardier Transport Australia ("BTA"), its employees and their representatives.
We acknowledge receipt of the RTBU's formal notification that it believes the recent negotiations of the proposed Agreement are not proceeding efficiently, due to BTA's stated preference that employees classified in the Technical Specialist / lSST (In Service Support Technician) and Maintenance Superintendent positions remain outside the scope or coverage of the proposed Agreement.
We also note the RTBU's request that BTA respond by 5pm on 6 February 2020 with either:
• BTA's agreement to include Technical Specialist/lSST (In Service Support Technician) and Maintenance Superintendent positions in the scope of proposed Agreement, or
• clarification of BT A's rationale for these positions to remain outside the scope of the proposed Agreement.
First, we do not accept the RTBU's assertion that the recent negotiations of the proposed Agreement are not proceeding efficiently. On the contrary, we consider that negotiations have been constructive to this point, that BTA has complied with 'good faith bargaining' requirements and that bargaining has progressed in a fair and efficient manner.
We take this opportunity to reiterate BTA's commitment to genuinely consider any proposal from the RTBU and/or employee bargaining representatives, with the objective of reaching agreement on a set of terms and conditions which are suitable and appropriate for sustainable operations at our Wulkuraka site.
Notwithstanding that we consider negotiations have been efficient to this point, we note the RTBU has requested clarity on the issue of coverage or scope. We confirm that BTA does not agree to include the roles of Technical Specialist/lSST (In Service Support Technician) or Maintenance Superintendent within the scope of the proposed Agreement. We consider the employees (and classifications} covered by the current Bombardier Transportation Australia Pty Ltd Queensland A&M Services Agreement 2016-2019 ("the 2016 Agreement") were fairly chosen. The roles have been outside of the EBA and are all recruited on salaried contracts. Further, we consider the employees (and classifications) for the proposed Agreement, as proposed by BTA, have been fairly chosen.
We consider that the stated roles of Technical Specialist/lSST (In Service Support Technician) and Maintenance Superintendent are operationally and/or organisationally distinct from the classifications included in the scope for the proposed Agreement. The operational and/or organisational distinction has no basis in any arbitrary, prejudicial or discriminatory criteria.
Our rationale is as follows:
1. Technical Specialist/lSST (In Service Support Technician) ("Technician")
The role requirements for this classification are highly specialist in nature and require considerably greater technical competency, accountability and breadth of decision-making, than the roles covered by the scope of the 2016 Agreement. The Technician role requires advanced capability and demonstrably higher-level skill competencies than those required at the Service Maintainer classifications (Levels 1 to 4), as described at clause 21 of the 2016 Agreement. The Technician role holders would typically attend the Wulkuraka site for approximately ten per cent of their working hours. Additionally, the Technicians typically spend the remainder (and overwhelming majority) of their working hours off-site, at the rail management control centre.
The· role requirements include liaison and relationship management with the Rail Operator, identification of key maintenance issues, delivery of specialist training and plain English communication of highly technical information to non-technical roles and external stakeholders.
Accordingly, the Technician role is considered to be distinct from classifications covered under the 2016 Agreement.
2. Maintenance Superintendent
These roles are considered to be part of the management function at the Wulkuraka site, responsible and accountable for managing the performance of employees in technical roles described at clause 21 of the 2016 Agreement. The role requires higher level management capability than Team Leader level roles. The Maintenance Superintendent role requires the incumbent to have demonstrable management skills at an advanced level. The role requirements represent significantly greater management accountability and breadth of decision-making than other roles predominantly engaged in day-to-day supervision and/or technical guidance. The role also requires elevated resource planning and leadership capability.
The role is the functional lead for continuous improvement and delivery of maintenance operations at the Wulkuraka maintenance site. The role requirements include responsibility and accountability for safety obligations, training needs assessment, training planning, workplace safety investigations and regular reporting on maintenance activities, team performance and customer issues.
Accordingly, the role is considered to be distinct from classifications covered under the 2016 Agreement.
We welcome the opportunity to further describe and explain our rationale to the RTBU, upon request.
We advise that should the RTBU apply to the Fair Work Commission for a scope order under section 238 of the Fair Work Act 2009 (Cth), BTA is prepared to make arguments in support of the existing scope.
We look forward to continuing constructive and amicable negotiations towards a satisfactory new Agreement.
Yours sincerely
lain Crockett
HR Business Partner
Bombardier Transportation Australia Pty Ltd”
LEGISLATION
[10] The provisions of the Act setting out the powers of the Commission to make a scope Order are set out in s. 238 of the Act as follows:
“238 Scope orders
Bargaining representatives may apply for scope orders
(1) A bargaining representative for a proposed single-enterprise agreement (other than a greenfields agreement) may apply to the FWC for an order (a scope order) under this section if:
(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and
(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.
No scope order if a single interest employer authorisation is in operation
(2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.
Bargaining representative to give notice of concerns
(3) The bargaining representative may only apply for the scope order if the bargaining representative:
(a) has taken all reasonable steps to give a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and
(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(c) considers that the relevant bargaining representatives have not responded appropriately.
When the FWC may make scope order
(4) The FWC may make the scope order if the FWC is satisfied:
(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and
(b) that making the order will promote the fair and efficient conduct of bargaining; and
(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and
(d) it is reasonable in all the circumstances to make the order.
Matters which the FWC must take into account
(4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Scope order must specify employer and employees to be covered
(5) The scope order must specify, in relation to a proposed single-enterprise agreement:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
Scope order must be in accordance with this section etc.
(6) The scope order:
(a) must be in accordance with this section; and
(b) may relate to more than one proposed single-enterprise agreement.
Orders etc. that the FWC may make
(7) If the FWC makes the scope order, the FWC may also:
(a) amend any existing bargaining orders; and
(b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by the FWC, or take such other actions, as the FWC considers appropriate.”
[11] The good faith bargaining requirements referred to in s. 238(4)(a) are established by s.228 of the Act:
“228 Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
Note: See also section 255A (limitations relating to greenfields agreements).
(2) The good faith bargaining requirements do not require:
(a) 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.”
[12] The Commission must also be satisfied that the group of employees specified in the proposed scope order was fairly chosen. Section 238(4)(c) must therefore be read in conjunction with s.238(4A), which is similarly worded to ss.186(3) and (3A), in relation to the approval of enterprise agreements.
[13] The Explanatory Memorandum to the Fair Work Bill 2009 deals with the question of whether a group of employees is “fairly chosen” for the purposes of considering whether an enterprise agreement should be approved, and states that:
“It is intended that in assessing whether a group of employees is fairly chosen, FWC might have regard to matters such as:
• the way in which an employer has chosen to organise its enterprise; and
• whether it is reasonable for the excluded employees to be covered by the agreement having regard to the nature of the work they perform and the organisational and operational relationship between them and the employees who will be covered by the Agreement.” 2
SUMMARY OF APPLICANT’S SUBMISSIONS AND EVIDENCE
s.238(1) of the Act
[14] In relation to their discharge of s.238(1) of the Act, the RTBU submitted that Bombardier has not permitted the holding of a genuine discussion concerning the expanding of scope for the proposed Agreement at any of the five bargaining meetings. The RTBU said they had made it clear to Bombardier that the outstanding scope issue needs to be resolved, so as to permit non-EBA employees the opportunity to bargain for their wages and conditions under the proposed agreement. The RTBU said it outlined its concerns surrounding the efficiency of the bargaining, formally by way of a letter provided to Bombardier on 30 January 2020.
[15] The RTBU submitted the parties have been bargaining for the proposed Agreement for the past seven months, and for the past five months since the current agreement passed its nominal expiry date. The RTBU submitted that it holds genuine concerns about the inherent unfairness in the Respondent’s position, to exclude the non-EBA employees.
[16] The RTBU submitted that the identified non-EBA employees are geographically, operationally, and organisationally similar enough to warrant being included in the proposed agreement, and that to exclude these employees from being included in the scope of the proposed agreement, is both against the wishes of the employees themselves, and industrially unfair.
s.238(3) of the Act
[17] The RTBU submitted it had taken all reasonable steps to give a written notice setting out the concerns regarding the classification of the employees, had given Bombardier a reasonable time within which to respond to those concerns, and considered that Bombardier had not responded appropriately.
[18] As earlier included, Ms Natalie Neideck, an Organiser for the RTBU, provided with her witness statement in this matter a letter the RTBU wrote to Bombardier on 30 January 2020 outlining the following concerns regarding the scope of the Agreement which said:
“This letter is to formally inform you the RTBU believes the recent negotiations of the Bombardier Transportation Australia Pty Ltd Queensland A&M Services Agreement (“Agreement”) are not proceeding efficiently due to Bombardier’s insistence that employees classified in the Technical Specialist/ISST (In Service Support Technician), and Maintenance Superintendent positions are to be excluded from the scope of this Agreement.
The RTBU maintains that the Agreement should continue to cover all existing classifications and those of the Technical Specialist/ISST and Maintenance Superintendent. To exclude the positions of ISST and Superintendents would be unfair and would subject them to lesser conditions in the future.
Bombardier has not provided satisfactory reasoning for their view and, given the like nature of the positions, as well as the fact that they work in the same locations, and that the positions operate in the same business structure, the RTBU remains convinced that these positions should be scoped into the Agreement.
This scope issue has been discussed on:
➣ The RTBU’s Log of Claims, 29/11/19
➣ EBA meeting 2, 29/11/2019
➣ EBA meeting 3, 16/12/2019
Please confirm by 5pm on 6 February 2020 that Bombardier agrees to include in the scope of the proposed Agreement the Technical Specialist/ISST and Maintenance Superintendent classifications. Alternatively, please provide in writing by this time as to the reasons that
Bombardier believes that these positions should not be included in the proposed Agreement.”
[19] Ms Neideck stated that the employer had refused to meet with delegates or the employees the subject of the scope order, to further discuss the matter. She stated in her evidence:
“38. Bombardier refused all requests to meet with RTBU representatives, at this EBA meeting, to discuss the scope claim and seek a mutually acceptable outcome. Members contacted me advising that on 3 January 2020, Mr Duncan Hughes emailed the Superintendents asking for a list of their requests relating to their desire to be included in the scope of the EBA, and that Lindsay Menzies, (Director Fleet Management, based in Victoria), had met with them along with Mr Hughes and Mr Crockett.” 3
[20] Ms Neideck also provided the reply from Mr Iain Crockett, HR Business Partner for Bombardier. received on 30 January 2020. The letter stated that Bombardier does not agree to include the roles of Technical Specialist/lSST and Maintenance Superintendent within the scope of the proposed Agreement, and that it considered that the employees and classifications covered by the current Agreement were chosen fairly. The letter stated Bombardier did not consider that the roles of Technical Specialist/lSST and Maintenance Superintendent are operationally and/or organisationally distinct from the classifications included in the scope for the proposed Agreement, and went into some detail as to the role requirements for these positions and the nature of work performed by these classifications. The letter said that Bombardier welcomed the opportunity to further describe and explain their rationale and that Bombardier looked forward to continuing constructive and amicable negotiations towards a satisfactory new Agreement.
[21] The RTBU submitted it has met its obligations to bargain in good faith with Bombardier. The RTBU submitted it has not had any good faith bargaining orders brought against it by Bombardier for any conduct during the bargaining process. Ms Neideck under cross examination regarding the process of the bargaining stated that ‘Pay and Scope’ were the remaining issues.
Fairly chosen
[22] The RTBU submitted that the concept of “fairly chosen” is defined as the objective selection, “as opposed to an arbitrary or subjective” selection, of a group of employees, for a purpose under the Act. 4 The RTBU submitted it there is a nexus between the existing positions in the Agreement and the ISST, and Maintenance Superintendent classifications.
[23] The RTBU submitted the current Agreementcovers the following classifications within Bombardier’s business in South East Queensland:
• Apprentices;
• Service Support 1;
• Service Support 2;
• Service Maintainer 1;
• Service Maintainer 2;
• Service Maintainer 3;
• Service Maintainer (Lead).
[24] The Union conducted a survey, by phone, of Maintenance Superintendents (that the RTBU sought to include in a new Agreement) which sought a yes or no answer, from them as to whether they sought to be included.
[25] The RTBU submitted that these positions cover a range of differing formally named roles, including amongst others “Mobile Technicians” and “Service Maintainer Leaders”. The RTBU submitted these roles can be best characterized as being primarily manual handling roles aligned closely with the Manufacturing and Associated Industries and Occupations Award 2010. 5
[26] The RTBU said that as the proposed Agreement will not result in all of Bombardier’s workforce being covered by the industrial instrument, and that s.238(4) is relevant as it requires a more thorough examination of the particulars of the roles seeking to be included, into the scope of a proposed Agreement.
Geographically, operationally, and organizationally distinct
[27] In relation to the two classifications the RTBU is seeking to have included in the proposed Agreement, the RTBU submitted the following.
Technical Specialist/In Service Support Technician
[28] The RTBU submitted the ISST classification is not geographically distinct from the Agreement covered employees. The RTBU submitted that ISST classified employees work in two distinct workplaces due to their rostering arrangements, split between Queensland Rail’s, Rail Maintenance Facility (RMC) and Bombardier’s Wulkuraka Maintenance Facility.
[29] The RTBU relied on the evidence of Mr Andrew Bryce, a Technical/ In Service Support Technician for Bombardier and RTBU delegate. Mr Bryce said that he, like all other ISST employees, works alongside other Agreement covered employees at Bombardier’s Wulkuraka Maintenance Facility and there are no physical barriers or demarcations between ISSTs and Agreement covered employees, at the Wulkuraka Maintenance Facility. 6
[30] Mr Bryce set out in his evidence the advantages of being covered by the Agreement. He stated:
“47. At the beginning of 2019 informal discussions were held between the ISST Team and Bombardier Outstations Manager, Mr Quintin Bunting.
48. I believe these discussions were instigated from comments made during Employee Performance Appraisal Meetings that were held with ISSTs.
49. The content of these discussions with Mr Bunting regarded addressing the unhappiness that the ISSTs, including myself, felt about their pay and conditions following pay adjustments that were provided to EBA covered employees outside of the EBA group’s annual pay increase.
50. I believe that these pay adjustments, which were increases, affected the majority of the workforce except the ISST grade.” 7
[31] He agreed that being covered by an enterprise bargaining agreement would be better than being on an individual contract. He said in his evidence:
“9. An Enterprise Agreement would also allow the Superintendent grade a means in which to collectively bargain with our employer.
10. In discussions held with the other Superintendents, we have collectively come to the same position regarding an Enterprise Agreement.
11. I believe that all employees under the Superintendent classification, in the first instance, would favour being covered by the new Operational Enterprise Agreement.
12. In the second instance, I believe that all employees classified under the Superintendent’s classification would prefer being covered by an Enterprise Agreement rather than being employed under the current individual contract arrangements.
13. I have been excluded from the bargaining meetings by Bombardier for the replacement Agreement of the Bombardier Transportation Australia Pty Ltd Queensland A&M Services Agreement 2016-2019.
14. As a Superintendent I work side by side with EBA covered employees within Bombardier’s Wulkuraka site.
15. This is the same case with all Superintendents employed by Bombardier within South East Queensland.
16. As a Superintendent, my duties are to supervise and assist in the maintenance and repair work that is carried out by employees covered by the existing Enterprise Agreement.”
[32] It was put to him that the collective vote of the other groups of employees may mean the majority of employees, in other categories, may outweigh their interests. He understood that was their choice. However, Mr Bryce conceded that there had not been any discussions on these matters with the RTBU. He considered, that in an Agreement the classification should have a higher rate of pay than technicians.
[33] Mr Bryce said that when ISSTs work at Queensland Rail’s Rail Maintenance Facility, they work in what is colloquially called the ‘Mayne Facility’ which is large and expansive and is about a five minutes’ walk through a series of gates and railway crossings from the Rail Maintenance Facility (RMC) building, to the railyard proper.
[34] The RTBU submitted that in The Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd (Kwinana) 8, the Full Bench found when considering geographical distinctiveness:
“Geographical distinctness under s.238(4A) is concerned with the geographical separateness of the employer’s various worksites or work locations, not a separation of a few hundred metres within the same work site.” 9
[35] The RTBU submitted that the RMC is one expansive worksite, containing continuous facilities and the distance between the different, internal facilities, does not denote a separate work site or work location, when considering the Full Bench’s findings in Kwinana. The RTBU submitted that the ISSTs are therefore not geographically distinct.
[36] The RTBU submitted the ISST employees are not operationally distinct.
[37] Mr Bryce said that the primary duty of ISSTs is to make Next Generation Rollingstock Trains ‘available’ to the Queensland State Government, and for Queensland Rail to utilise these trains as the rail operator.
[38] Mr Bryce said that ISSTs are provided induction courses that allow them to access the railyard portion of the facility but that they do not usually go out into the railyard, which is where the Agreement covered employees primarily work. 10 Mr Bryce said that the ISST’s primary duty at RMC is to assist in-service, locomotive units and their Queensland Rail traincrews. This requires providing over the phone troubleshooting, for issues that cannot be resolved in the field11 but that there exists the option for ISSTs to provide these services in person.12
[39] The RTBU submitted, that there is also a requirement for ISSTs to work as shift workers. Mr Bryce’s evidence is that ISSTs work on a 10 week roster at either the RMC or the Wulkuraka site.
[40] Mr Bryce said that ISSTs worked 7 weeks out of the 10 week roster at the RMC as follows:
• Monday to Friday Shift – 5:00 AM to 2:00 PM;
• Monday to Sunday Shift- 6:00 AM to 5:00 PM;
• Monday to Sunday Afternoon Shift – 1:30 PM to 12:30 AM;
• Sunday to Thursday Night Shift - 7:30 PM to 6:00 AM;
• Friday and Saturday Night Shift – 8:30 PM to 7:00 AM.
[41] Mr Bryce said 3 weeks of the 10 week roster, were worked at the Wulkuraka site as follows:
• Wednesday, Thursday, and Friday - 6:00 AM to 4:00PM (Week 3);
• Monday to Friday – 6:00 AM to 4:00 PM (Week 6);
• Monday to Wednesday - 6:00 AM to 5:00PM (Week 10). 13
[42] The RTBU submitted that the similarities in both working arrangements and complimentary duties show that ISST staff are not operationally distinct from Agreement covered employees.
[43] The RTBU submitted that ISSTs are organisationally distinct only due to recent changes of the organisational structure within Bombadier’s South East Queensland operations, and that historically, they were not organisationally distinct.
[44] Mr Bryce said that prior to July 2019, the ISST classified employees were required to report directly the Outstations Manager, a position responsible for Bombardier’s Mobile Technician Teams.14 The RTBU submitted these Mobile Technician Teams are covered by the existing Agreement.
[45] Mr Bryce said that since July 2019, ISSTs have been required to report to Bombardier’s Engineering QNGR Service Execution manager, and that there was no consultation regarding this change in organisational structure 15 and that the role had not been filled to date.16
[46] The RTBU submitted that this state of flux around the organisational structure that the ISSTs find themselves in, can, and should, be resolved by way including the classification in the proposed agreement.
[47] Further, the RTBU submitted they conducted an SMS survey of RTBU members employed in the ISST classification. Employees in the ISST roles were asked the following:
“Do you support the inclusion of the Technical Specialist /ISSTs classification into the scope of the currently being negotiated Bombardier Transportation Australia Pty Ltd Queensland A&M Services Agreement?
Simply respond with a YES or NO”17
[48] The RTBU said that on 10 February 2020, the RTBU sent a text message to RTBU members who are employed in the Superintendent classification:
“Do you support the inclusion of the Superintendent classification into the scope of the currently being negotiated Bombardier Transportation Australia Pty Ltd Queensland A&M Services Agreement?
Simply respond with a YES or NO”18
[49] The RTBU submitted that six unique responses were received, of which all six were yes. The RTBU submitted that there are seven ISST employees who are members of the RTBU and nine ISST employees in total.
[50] The RTBU submitted that the Commission is required to consider the needs of the workgroup as a component of the overall context of the matter and may make a scope order contrary to the employee’s views. The RTBU submitted that the Commission should be inclined to observe that the majority of employees believe that they are organizationally similar enough to seek inclusion in the proposed Agreement.
Maintenance Superintendent
[51] The RTBU submitted that the Maintenance Superintendent classification is not geographically distinct in comparison to the workforce covered by the existing Agreement and that employees under the Maintenance Superintendent classification carry out their duties at Bombardier’s Wulkuraka site, working alongside employees covered by the current Agreement.
[52] The RTBU submitted that the Maintenance Superintendent classification is not wholly operationally distinct. While the RTBU admitted Maintenance Superintendents are required to undertake supervisory duties to a greater extent than the Agreement covered employees, the Superintendent classification carries out a comparable amount of physical labour when carrying out their substantive duties.
[53] The RTBU submitted as evidence a witness statement from Mr Matthew Barden, a
Supervisor Service Maintenance and formally Maintenance Superintendent. He said:
“7. I believe that the current contract does not provide enough financial and employment security for my role.
8. I further believe that being covered under an Enterprise Agreement would provide a much improved means in which to protect and enhance my conditions of employment.
9. An Enterprise Agreement would also allow the Superintendent grade a means in which to collectively bargain with our employer.
10. In discussions held with the other Superintendents, we have collectively come to the same position regarding an Enterprise Agreement.
11. I believe that all employees under the Superintendent classification, in the first instance, would favour being covered by the new Operational Enterprise Agreement.
12. In the second instance, I believe that all employees classified under the Superintendent’s classification would prefer being covered by an Enterprise Agreement rather than being employed under the current individual contract arrangements.
13. I have been excluded from the bargaining meetings by Bombardier for the replacement Agreement of the Bombardier Transportation Australia Pty Ltd Queensland A&M Services Agreement 2016-2019.
14. As a Superintendent I work side by side with EBA covered employees within Bombardier’s Wulkuraka site.
15. This is the same case with all Superintendents employed by Bombardier within South East Queensland.
16. As a Superintendent, my duties are to supervise and assist in the maintenance and repair work that is carried out by employees covered by the existing Enterprise Agreement.
17. The role requires a degree of physical labour to be carried out in its duties.
18. This includes manually ‘throwing’ railway switches, installing components on rollingstock, coordinating shunts that occur in the railyard, and manually inspecting locomotive units prior to them being handed over to the client (Queensland Rail).
19. Participating in disciplinary discussions with employees for Superintendents is very rare.
20. We do not have the authority to terminate a fellow employee’s employment.
21. We do not have the authority to demote or formally discipline an employee.
22. We are only empowered to remind an employee of Bombardier’s expectations as they relate to the Code of Conduct.
23. As Superintendent I carry out my workings as a shift worker, as do the staff that are covered by the Enterprise Agreement.” 19
[54] Mr Barden’s evidence was that the disciplinary functions conferred upon the Superintendent classification are greatly limited in that the classification can only “remind an employee of Bombardier’s expectations as they relate to the Code of Conduct”20 and is not empowered to terminate or “formally discipline” a fellow employee. 21
[55] Mr Barden said that the Superintendent classification is required to carry out its substantive workings as a shift worker, and that these shifts occur on the following times and days of the week:
• Monday to Friday Day Shift – 5:00 AM to 3:30 PM
• Monday to Friday Afternoon Shift- 3:30 PM to 12:30 AM
• Monday to Thursday Night Shift – 8:30 PM to 6:00 AM
• Friday Afternoon Shift – 1:30 PM to 10:00 PM
• Friday Night Shift – 9:30 PM to 6:00 AM
• Weekend Shifts (Saturday and Sunday) – 6:00 AM to 6:00 PM
• Weekend Night Shifts (Saturday and Sunday) – 6:00 PM to 6:00 AM.22
[56] The RTBU submitted that this type of working does not align with the notion of the role being consistent with that of a traditional white collar worker, wherein a white collar worker is expected to work 38 hours a week, between 9:00 AM to 5:00 PM, Monday to Friday.
[57] The RTBU said that the Superintendent classifications, due to its requirement to work on a shift basis, carry out physically laborious tasks, and its minimal disciplinary responsibilities does not make it operationally distinct enough from Agreement covered employees to warrant its exclusion from the proposed agreement.
[58] The RTBU submitted that the Superintendent classification is not organisationally distinct enough to warrant its exclusion from the proposed Agreement in that it reports directly to Mr Duncan Hughes, Bombardier Lead Maintenance Operations – Wulkuraka, and that it is required to carry out tasks on a frequent enough basis to be comparative to other Agreement covered employees.23
[59] The RTBU submitted it could distinguish this case from the ruling in United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board; Metropolitan Fire & Emergency Services Board v United Firefighters' Union of Australia, Mr W. Crossley, Mr P. Swain and Mr P. Holmes (United Fire Fighters).24 The RTBU submitted that unlike the classifications that were examined in United Fire Fighters, the Superintendent grade has demonstrated a clear belief, that their interests align with that of the lower classifications, and this demonstration is quantifiable.25
[60] The RTBU said that on 10 February 2020, the RTBU sent a text message to RTBU members who are employed in the Superintendent classification:
“Do you support the inclusion of the Superintendent classification into the scope of the currently being negotiated Bombardier Transportation Australia Pty Ltd Queensland A&M Services Agreement?
Simply respond with a YES or NO”26
[61] Mr Barden agreed he answered the RTBU survey as to whether he wanted to be covered by the Agreement. He stated that he had limited knowledge of the effect of moving into the Agreement. He was concerned that the current employment contract, he and other Maintenance Superintendents are covered by, could be changed at any time. He did not consider that his entitlements would be less under the Agreement, but he recognised it was a possibility. Under cross examination he recognised the larger cohort of employees could vote to the detriment of Maintenance Superintendents on issues. He agreed this had not previously been advised, in detail to him. Mr Barden said he has not seen a document regarding relevant classification rates for him.
[62] The RTBU said that they received six unique responses, and that of these six unique responses, all were recorded as a “yes”, and at the time of the text message there was only six employees employed under the Superintendent classification. The RTBU submitted that all Superintendents have demonstrated a belief that they have been fairly chosen and wish to see the inclusion of the Superintendent classification into the proposed Agreement. The RTBU said that if the Superintendents believed that their interests were contradictory to those of the Agreement covered employees, they were given the opportunity to cast a “no” vote.
[63] The RTBU further submitted the facts in United Fire Fighters decision,demonstrated that the senior classifications seeking inclusion in the “operational agreement” carried out their more operational tasks on an infrequent basis, which is not the case with the Maintenance Superintendent classification as evidenced by their conducting operational tasks, (such as a coordinating shunting, throwing railway switches and manually inspecting locomotive units) on a frequent basis.27 The RTBU submitted that Bombardier’s reliance on the Maintenance Superintendent classification carrying out these operational tasks permits Team Leader classified employees, who are covered by the existing Agreement, to work at higher duties in the Superintendent role. It was argued that this ability for the Team Leader role to work in the Superintendent classification blurs the notion, that the role is significantly organisationally distinct.
Whether per s.238(4)(d) it is reasonable in all the circumstances to make the determination
[64] The RTBU submitted that it would be reasonable for the Commission to make a scope order, for the inclusion of the ISST and Maintenance Superintendent classifications into the proposed Agreement as it had met all other requirements under s.238.
SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE
[65] Bombardier submitted it initiated bargaining by issuing the Notice of Employee Representational Rights (the NERR) to relevant employees on 10 October 2019, and the parties met on 14 November 2019, in a meeting which Bombardier said might be characterised as for the purpose of ‘scheduling and other administrative issues’.
[66] Bombardier said the RTBU provided its log of claims on 29 November 2019, at the first genuine bargaining meeting. The parties met once more on 16 December 2019, before the RTBU delivered the concerns notice at the next meeting on 30 January 2020. Bombardier said it responded to the concerns notice, in a timely way in the days following.
[67] Bombardier said that since then, and subject to COVID-19 conditions, the parties met on 16 April, 8 May, and 22 May 2020. Bombardier said that no applications in relation to good faith bargaining have been made, nor threatened.
s.238(3) of the Act
[68] Bombardier submitted that the requirement of notice was mandatory and an important step in the process. Bombardier said the the clear purpose of a notice under s.238(1) is to alert the other bargaining representatives of concerns, and to give those bargaining representatives an opportunity to consider, and respond to, those concerns. Bombardier submitted the concerns identified in the notice, define the matters of disputation, and must necessarily be the basis of the concerns referred to in s238(1).
[69] Bombardier said it took no issue with the form of the RTBU’s notice, and that it was provided as required. However, Bombardier submitted that it did not accept that, the RTBU genuinely held the relevant concerns.
Prerequisites for an order – s238(4)
[70] In summary terms, Bombardier submitted that an order under s.2384(4) can be made where the Commission is satisfied that:
• A bargaining representative has met, or is meeting, the good faith bargaining requirements;
• making the order will promote the fair and efficient conduct of bargaining;
• the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and
• it is reasonable in all of the circumstances to make the order.
Good faith bargaining requirements – s238(4)(a)
[71] Bombardier submitted that much of the RTBU’s material appeared to be directed to aspects of Bombardier’s engagement with the RTBU. Bombardier said it did not accept the RTBU’s articulation of the events, as described in the RTBU’s material.
[72] Bombardier denied it commenced bargaining from a time before serving the NERR. Bombardier said the context of discussions before the NERR was issued was clear, even in the email to bargaining representatives on 26 August 2019 which read:
“Team,
As the EBA discussions are nearing I’d like for you all to get your teams together and discuss who your delegate will be. Each team delegate will consult with their team and email myself with questions, requests, comments and any other relevant business relating to the EBA.
Step 1. Reply with delegate name by COB 02/09/19.
Kind regards,
Duncan Highes
Maintenance Operations Manager
Wulkuraka Maintenance Facility” 28
[73] Bombardier said that the NERR was served in advance of the meeting said to have taken place on 17 October 2019.
[74] Bombardier denied it was not at liberty to hold discussions with Technical Specialist/ISSTs and Maintenance Superintendents, not only because they had not been involved in bargaining negotiations, but also that the circumstance would not necessarily be a barrier. Bombardier denied it had not considered in any meaningful way the status of Technical Specialist/ISSTs and Maintenance Superintendents. Bombardier submitted that as evidenced by the application, the only real criteria advanced are that the groups are insufficiently distinct, and inclusion is what those groups wish. Bombardier said it is well placed to assess the degree of distinction, given the roles are within its organisational structure; and it has formed the view that the roles are distinct.
[75] Bombardier denied that it, more than the RTBU, contributed to disagreements around the negotiating process, including caucus and timetable.
[76] Bombardier submitted that the Commission would be slow to find that any party involved in the bargaining had not complied with the good faith bargaining requirements, and that while limited progress has been made; this is not unusual in these circumstances, and in bargaining more generally.
Fair and efficient conduct of bargaining – s238(4)(b)
[77] Bombardier submitted that any an express criterion in s238(4)(b) was that a scope order must promote fair and efficient bargaining. Bombardier submitted that this also aligned with the threshold question under s238(1)(a) which enabled a bargaining representative to make an application.
[78] Bombardier said that section 238(1) is enlivened only if a bargaining representative has concerns that bargaining is not proceeding efficiently or fairly; and the reason for this is that the bargaining representative considers (relevantly) the agreement will not cover appropriate employees. Bombardier argued that there must exist a causal link between the way bargaining is proceeding, that is, if it is specifically lacking efficiency or fairness, and Bombardier’s preferred scope. Bombardier refuted that this link was made out.
Efficiency
[79] Bombardier submitted that the concerns notice was sent on 30 January 2020, and at that time, there had been 2 substantive bargaining meetings, excluding what Ms Neideck described as an ‘initial meeting [for] scheduling and other administrative issues’ 29. The RTBU log was not provided until the first of those meetings on 29 November 2019, and so there was a single meeting between when the log was provided, and the sending of the concerns notice. Bombardier said that the concerns notice does not outline concerns about efficiency. Bombardier said it responded to the concerns notice promptly, and in detail.
[80] Bombardier said that even if the parties had made limited progress across a larger number of meetings on particular issues, that is not unusual, and would be consistent with the full spectrum of possible bargaining eventualities, some of which are resolved quite quickly, while others can take much longer. Bombardier said that this is also consistent with the philosophical structure of enterprise bargaining, where parties may test their bargaining power to resist, or to pursue, a claim. Bombardier said that the Commission should not assume inefficiency because a party is holding its ground on a substantive issue of importance to it.
[81] Bombardier said that parties have met on a reasonable timetable, and that if the timetable is being challenged, no link is drawn to disagreement about scope, and rather that the evidence shows, any argued hiatus was due to the onset of COVID-19.
[82] Bombardier argued that there must be made out a causal link between the perceived inefficiency and the scope issue. It was submitted that the meetings, were not stalled by disagreement over scope, and other issues were freely discussed notwithstanding the difference of views about scope. Bombardier submitted that scope was one of the line items being discussed, and one on which Bombardier has a firm, contrary position. Bombardier argued, the extent the meetings did get distracted, it is clear that it was for a range of matters unrelated to scope.
[83] Bombardier submitted that the RTBU proposal anticipates, the inclusion of new classifications, and with a schedule to be developed as a part of negotiations. Bombardier said this demonstrated that the intention is not to ‘roll’ the two classifications into the new agreement under the umbrella of whatever applies to the cohort already covered by the current agreement, and that there would need to be bargaining about matters specific to those two roles. Bombardier argued this would not make the bargaining process more efficient and may take up valuable bargaining time and extend the time, as to when the new agreement can be rolled out to vote with the support of bargaining representatives, resulting in the scope order making the process less efficient.
Fairness
[84] Bombardier refuted the basis that the concerns notice in which refered to unfairness in two contexts: the exclusion of Technical Specialist/ISSTs and Maintenance Superintendents would be unfair and would subject them to lesser conditions in the future; and that those roles are said to be similar to, and located at the same places, and within the same business structure, as roles that are to be covered.
[85] Bombardier submitted the scope preferred by the employer equates with the current agreement, and there is nothing to suggest the substantive or procedural interests of the cohort covered by the current agreement (or those in the proposed scope) is unfairly impacted by the exclusion of Technical Specialist/ISSTs and Maintenance Superintendents or that their negotiations are being affected by it.
[86] Bombardier argued there is a distinction between being covered by an enterprise agreement, and being covered by a specific enterprise agreement that is specifically applicable to a group of employees. Bombardier said that scope is not a means to promote, or not to undermine, collective bargaining.
Fairly chosen
[87] Bombardier submitted that a group is likely to be fairly chosen if it is selected on “some objective basis (as opposed to an arbitrary or discriminatory basis).” 30 Bombardier said that for a group to be fairly chosen, there must be “a sound and fair reason for why some employees are included and why some are excluded.”31
[88] Bombardier argued the issue of fairness in this matter is limited to the choice of the group of employees, not to the proposed content of the agreement, and that there is no preference to be given to agreements that cover as much of an enterprise as possible. 32
[89] Bombardier said that there is nothing in the Act to suggest that, the fact that a group of employees is defined by reference to the eligibility rules of an employee organisation, means that the ‘fairly chosen’ requirement will be met, or that union eligibility rules are necessarily relevant to that question. 33 They argued that the concept of fairly chosen is not to be construed as “was chosen in a manner which would not undermine collective bargaining”34 and not all employees need to enjoy identical outcomes for a group to be fairly chosen. Bombardier submitted that it is relevant that a group might be prejudiced by bargaining, within the same scope as other employees when their views cannot properly be aired35 and the ability of one larger group to overwhelm the interests of a smaller cohort, where their interests diverge, is a matter relevant to fairness.
[90] Bombardier argued it is also appropriate to have regard to the interests of the employer, such as enhancing productivity. 36
Geographically, operationally, and organizationally distinct
[91] Bombardier submitted that whether a group of employees is geographically, operationally, and organizationally distinct is not a decisive factor, and that while it should be given due weight, all other circumstances must be regarded. Bombardier submitted that given the distinct nature of maintenance supervisors it was not suitable to add them to this group; they were distinct on all of the bases.
Whether per s.238(4)(d) it is reasonable in all the circumstances to make the determination
[92] Bombardier said it preferred the current scope of the new agreement, and that is a legitimate position for it to hold and maintain. Bombardier argued that even if the Commission were otherwise satisfied as to the requirements of s.238(4), the current scope equally meets those requirements and is an appropriate scope to maintain in their bargaining. In those circumstances, Bombardier argued there is no basis to have another scope imposed, and for the employer to lose the opportunity to bargain for its preferred scope.
CONCLUSION
[93] The following criteria must be assessed in accordance with s.238 of the Act:
[94] From the evidence on the votes undertaken by the survey by the RTBU, a majority of Maintenance Superintendent and ISST employees want to bargain. However, only minimal information was provided on this survey. In addition, it was clear on the evidence that this group of employees did not have information on the survey nor the effect of the proposed scope order on the bargaining for their employment group, within the wider scope.
Section 237(2)(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement
[95] In terms of s.238(1)(a) and (b), on the evidence, Bombardier has commenced bargaining but had not yet begun to bargain with the Maintenance Superintendents and ISST employees, who are currently covered by employment contracts. The employer indicated that this agreement was not appropriate for this smaller group of employees. Further the interests of this group had not formed any part of the discussions and would now, delay the bargaining.
[96] In terms of increasing the efficiency of the negotiations, Ms Neideck’s evidence was that the two remaining issues were ‘pay’ and this matter (scope). There was no evidence that the bargaining had been advancing fairly or on an inefficient basis and in fact, limited issues remained. To the contrary, given the aspirations of those proposed classifications to be included, and their lack of prior discussions on the inclusion in the Agreement, it is likely that the changes sought to the scope will cause delay and inefficiency.
[97] s.238(4) of the Act relevantly states:
“(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.”
[98] The following case is analogous to the current circumstances regarding satisfaction on the scope. In the case of United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board; Metropolitan Fire & Emergency Services Board v United Firefighters' Union of Australia, Mr W. Crossley, Mr P. Swain and Mr P. Holmes 37 the UFUA sought an order to include all employees in the agreement including senior officers (commanders and ACFOs) who were in senior management positions. MFESB sought that the agreement only cover employees from Recruit to Senior Station Officer.
[99] The Full Bench held that senior officers should not be included as despite the fact they had much in common with other ranks and enjoyed many of the same conditions, they had a senior management character which made them distinct and meant they had distinct interests which were often conflicting with lower ranks:
“[70] On the material and submissions in this case a great deal of weight should be attached to the fact that the Commanders and ACFOs occupy senior management positions in the MFESB and for that reason their interests are distinct from, and in some respects in conflict with, the interests of the ranks below them. Despite the views expressed by and on behalf of all ranks up to ACFO, we have concluded that a scope order specifying a group comprised of employees in the ranks from Recruit to Senior Station Officer would promote the fair and efficient conduct of bargaining and that it would be more likely to be effective in that regard than a scope order specifying a group comprised of employees in the ranks from Recruit to ACFO. A group comprised of the ranks from Recruit to Senior Station Officer would also be fairly chosen. Such a group has distinct interests related to the primarily operational nature of their roles. Senior management employees, such as Commanders and ACFOs, have many interests in common with the other ranks and enjoy many of the same conditions, but the principal differentiating characteristic of their roles, rendering them a distinct group in the sense provided for in s.238(4A), is its senior management character. Given the troubled history surrounding the negotiation of conditions for Commanders and ACFOs and the negative effect that it is having on attempts to negotiate a new agreement, it is desirable that Fair Work Australia exercise its powers under s.238 and make an appropriate order. Such an order would also support attempts by the MFESB, referred to in the evidence, to improve organisational efficiency and productivity by promoting better understanding of managerial roles.”
[100] The Employers evidence that the nature of the roles within the organisation and their duties is accepted. Bombardier submitted that a group is not indistinct, merely because employees in the proposed groups interact with each other as they perform their duties, or even share some common duties. Groups can involve operational or organisational distinction even if they are at the same site, or perform similar tasks that are part of a wider function of those separate roles.
[101] The evidence was adopted that, the Maintenance Superintendent role shares some duties with other roles covered by the proposed agreement, but it also has distinct management and reporting responsibilities. Similarly, the ISST role has increased accountability (including for passenger safety) 38 and reporting compared to other roles covered by the proposed agreement,39 and requires communication skills as ISSTs talk to staff from all roles at the RMC.40
[102] Bombardier was not opposed to the Maintenance Superintendents having a separate enterprise agreement covering their interests. Those Maintenance Superintendents that gave evidence could not clearly address what specific advantages or efficiencies, being covered by the proposed agreement would provide. In fact, the evidence of these employees, did not provide support for the scope order.
Whether per s.238(4)(d) it is reasonable in all the circumstances to make the determination
[103] In line with BRB Modular Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) 41the Full Bench considered when it is reasonable to make a determination in relation to scope of an agreement:
“[58] As we have said above, a consideration of reasonableness requires a full consideration of all of the circumstances and a level of satisfaction that the order requiring the parties to adopt a particular scope of an enterprise agreement in their ongoing bargaining is objectively justified. We are not satisfied that the applicant has established that it is reasonable in all the circumstances to make the scope order. We are satisfied that bargaining can continue and it remains open to the parties to continue to consider the scope of the agreement in the overall context.”
[104] As set out in that decision, a consideration of reasonableness requires a full consideration of all of the circumstances and a level of satisfaction that the order required the parties to adopt a particular scope of an enterprise agreement in their ongoing bargaining is objectively justified. In this matter, based on all of the considerations as set out, such satisfaction can’t be reached.
[105] In this matter, it is recognised that the Respondent was cognisant that the new classifications sought to be included, sought to be covered by an Agreement (rather than their current arrangements), and that a separate possibility. The alteration of the current scope could not be justified, on the circumstances. The inclusions of these classifications in the current Agreement, would on the evidence not add to the efficiency. In fact, limited matters remained in the negotiations. It is also considered that the inclusion of these classifications in the scope of this Agreement does not meet the relevant tests. The evidence provided by the Respondent set out the distinctive nature of the work of these maintenance superintendents, and the separate requirements on the operational conduct of these classifications.
[106] Further the outcome of the inclusion of these classifications in the scope of this Agreement, had not been specifically considered (by those employees), in terms of particular provisions. It had not been addressed with these employees, how the provisions they sought might be achieved, within this Agreement, given their cohort formed a small subset of the coverage of the current Agreement. However, the concept of another Agreement, covering these classifications had not been dismissed by the employer.
[107] It is noted that the s.238(1)(a) and (b) that the union had concerns that bargaining for the Agreement was not proceeding efficiently or fairly, however, the evidence given the limited matters remaining, did not support this. Not could it be supported, in real terms that any delay in the negotiations was for reasons related to the scope of the agreement, in accordance with s.238(1)(b).
[108] In terms of section 238(4) (a -d), there was no significant evidence that either party was not complying with the good faith bargaining requirements. The evidence also did not support that the making of an order to change the scope, as applied for, would promote the fair and efficient conduct of bargaining. Limited issues remained in the current bargaining: the scope application outcome being one of them. On the evidence, amending the scope in the manner sought, would delay the Agreement, rather than bringing about a fair and efficient conclusion to the bargaining. The evidence was that relevant discussions had not been conducted with the technical specialist/in service support technicians and maintenance superintendents, with regard to what would be sought in terms of provisions to be included in the current negotiations.
[109] The granting of this proposed scope order would not advance the fair and efficient conduct of the bargaining. The employer specifically refuted that there was any causal link between enhancing the efficiency or fairness of the negotiations and the grant of the scope order. The employer also objected to the scope order on the basis of fairness, noting that there was nothing in the current Agreement to confirm that the substantive or procedural interests of the scope of the current agreement was unfairly impacted by the exclusion of the ISST’s and the maintenance superintendents. Given the separate interests of this group and that they were yet to consider what relevant provisions might be achieved by an Agreement covering them only as a smaller distinct group within the current scope. Therefore, consideration of including them in the current scope does not demonstrate that the amended scope sought was fairly chosen. The scope does not provide more opportunity for a fairer outcome considering their distinct operational and organisational interests, as required by the employer compared to those employees in the current Agreement. However, it is open for the employer to consider the scope of an agreement covering this smaller cohort. Accordingly, given there is no satisfaction of the criteria in section 238(4), it is not reasonable in the circumstances to grant the scope order as sought.
[110] For the aforementioned reasons, the application made pursuant to s.238 is dismissed.
[111] I Order accordingly.
COMMISSIONER
Appearances:
Mr Lucas Kennedy, for the Applicant.
Mr Jamie Wells, for the Respondent.
Printed by authority of the Commonwealth Government Printer
<PR722787>
1 Witness Statement of Natalie Caoimhe Neideck, [6]
2 Explanatory Memorandum to the Fair Work Bill 2009 at [777]
3 Witness Statement of Natalie Neideck, [38]
4 Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union[2012] FWAFB 2206 per Ross J, Hamilton DP, Spencer C, at paragraph [16]
5 Manufacturing and Associated Industries and Occupations Award 2010
6 Witness Statement of Andrew John Bryce, [19]-[20]
7 Witness Statement of Andrew Bryce, [47]-[50]
8 [2014] FWCFB 1476.
9 The Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476 at [13]
10 Ibid, [21]-[26]
11 Ibid, [27]-[28]
12 Ibid, [28]
13 Ibid, [33]-[36]
14 Ibid, [38]-[46]
15 Ibid, [39]
16 Ibid, [41]
17 Witness Statement of Natalie Caoimhe Neideck, [48].
18 Witness Statement of Natalie Neideck, [54]
19 Witness Statement of Matthew Barden, [7]-[23]
20 Ibid, [20]-[22]
21 Ibid, [20]-[21]
22 Ibid, [24]
23 Ibid, [16]- [23]
24 United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board; Metropolitan Fire & Emergency Services Board v United Firefighters' Union of Australia, Mr W. Crossley, Mr P. Swain and Mr P. Holmes[2010] FWAFB 30
26 Witness Statement of Natalie Neideck, [54]
27 Witness Statement of Mathew Geoffrey Barden,[16]- [23]
28 Witness Statement of Natalie Neideck, Annexure NN2
29 Witness Statement of Natalie Caoimhe Neideck at [16]
30 Cimeco v CFMEU [2012] FWAFB 2206 at [16] and [21]; approved in CFMEU v ResCo [2012] FWAFB 8461
31 Newlands Coal [2010] FWA 4811
32 United Firefighters Union v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009
33 ResMed v AMWU [2015] FCA 360 at [61]
34 John Holland v CFMEU [2014] FCA 286 at [37], upheld on appeal; TWU v ALDI Foods [2016] FWCFB 91
35 Stadium Australia Operations at [35]
36 Cimeco at [21]; AWU v BP Refinery (Kwinana) [2014] FWCFB 1476 at [29]; Australian Nursing and Midwifery Federation [2016] FWC 610 at [134]
37 [2010] FWAFB 3009
38 Witness Statement of Graeme Morris, [47]
39 Ibid, [23] and [53]
40 Ibid, [34]
41 [2015] FWCFB 1440
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