Australian Workers' Union, The v Tassal Operations Pty Ltd
[2022] FWC 1215
•11 JULY 2022
| [2022] FWC 1215 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.238 - Application for a scope order
Australian Workers' Union, The
v
Tassal Operations Pty Ltd
(B2022/76)
| DEPUTY PRESIDENT BELL | MELBOURNE, 11 JULY 2022 |
Application for a scope order.
Background
Tassal Operations Pty Ltd (Tassal) is part of the Tassal group, which is a vertically integrated seafood producer with substantial operations in Tasmania. The Tassal Operations Pty Ltd (Marine Operation) Enterprise Agreement 2017 (2017 Agreement) covers a subset of its employees in Tasmania. Bargaining for a new enterprise agreement to replace the 2017 Agreement was commenced by Tassal on 5 August 2021.
The applicant, the Australian Workers’ Union (AWU), through its Tasmania Branch, is a bargaining representative in the current round of bargaining. The AWU has applied under s.238 of the Fair Work Act 2009 (Act) for a ‘scope order’ in relation to a cohort of employees variously called ‘Feed Technicians’ or ‘feeders’ or ‘farm attendants’. The disputed group employees are employed to work at Tassal’s centralised ‘Feed Centre’, located at level 8 in the Marine Board Building, Hobart. The Feed Technicians total approximately 20 in number.
There are a number of other bargaining representatives, who relevantly include two Feed Technicians. While the other bargaining representatives were not party to the AWU’s application, none opposed it and the two Feed Technician bargaining representatives actively supported it and appeared as witnesses called by the AWU.
The outcome sought by the proposed scope order sought would be that any enterprise agreement made in relation to the Feed Technicians would only cover that cohort of employees. Tassal opposes the application.
Sections 238(1) and (3) specify various matters about when a bargaining representative may apply for a scope order. Those matters were not in dispute and I am satisfied they are met.
There was also no dispute that the AWU had met, and was meeting, the good faith bargaining requirements: s.238(4)(a). The principles for the interpretation for s.238 were largely not in dispute but, rather, it was the application of those principles that was in issue. The applicable principles are described further below.
Factual findings
The AWU filed statements for five witnesses and Tassal for three. There was very little challenge to either party’s evidence. Only one witness was required for cross-examination and that cross-examination was confined.
In addition to the witness evidence, I also undertook an inspection, in the presence of the parties. The inspection was on the application of the AWU. The inspection was conducted on the morning of the hearing of the matter. The two facilities I was asked to inspect were, in this order, the Feed Technician Centre in Hobart and then a salmon fishery farm located near Margate, whose beach-point access was approximately 30 minutes’ drive from Hobart. I describe various observations about the inspection below. The AWU submitted that the purpose of the inspection was to assist the Commission with understanding the evidence which is before it, including seeing for myself the workplaces described in the evidence so that that would assist me with the evidence before me. I accept that the inspections assisted that purpose.
Tassal’s business includes the spawning, breeding, harvesting and processing of salmon in Tasmania through the operation of hatcheries, farms, boats and processing facilities. Tassal has a premises in Lidcombe, NSW, used for processing and sales.
The parties provided a simplified map showing various locations for aspects of Tassal operations in Tasmania. The head office is located in Hobart. There are two hatchery locations: one is located inland near Russell Falls, which is approximately about 70km from the head office, roughly to the west. The other hatchery is on the western side of Huonville, Tasmania, which is roughly 40km southwest from the Hobart head office.
Tassal has processing operations in Huonville, Dover and Margate. Dover is approximately 40km directly south of Huonville. Tassal’s Margate location is about 20km south of Hobart. The distances I’ve described so far are by road. The exact distances are not material but are intended to convey in broad terms the various locations.
Tassal’s marine operations – i.e farms - on the eastern side of Tasmania are described as the ‘Southern Zone’, ‘Channel Zone’, ‘Eastern Zone’, and ‘Okehampton’. Save for Okehampton, all of these are located in coastal waters roughly aligned between Margate (at the northern reaches) and Dover (to the south). Okehampton is located near Okehampton Bay, which is approximately 100km northeast of Hobart. Tassal also has marine operations located at Macquarie Bay, which is on the west coast of Tasmania.
Tassal’s business in Tasmania incorporates approximately 1015 employees across a range of functions. The ‘marine operations’ employees for whom the current bargaining dispute is relevant total approximately 252 in number. There is some dispute as to whether the Feed Technicians, who total around 20, are strictly covered by the 2017 Agreement. The AWU contend that this cohort are not covered. Although this is not a matter I need to resolve, I address it further below having regard to how the parties put their cases.
The salmon ‘farms’ are located in coastal waters known as leases. The lease defines the area in which the farms are permitted to be located. The sizes of the leases vary. The leases are generally marked out at their extremities by marker buoys. Leases are regularly inspected and audited to ensure compliance with lease terms.
Travel to and from a farm is by boat. The farm I inspected was near Margate, which was also the location of the beach access point for the boat. Other than perhaps being selected because it was more sheltered than other farms on the day and its relative proximity to Hobart, there was no suggestion that farm I inspected was materially atypical of other farms in Tassal’s marine operations. Boat travel between the shore and the farm was, for the farm I inspected, about 15 minutes each way. Other farms have longer travel times.
The farm I inspected had about eight ‘pens’ and a feed ‘barge’. The pens are the netted cylinders in which the growing salmon are kept. Figure 1 is a photograph of a pen contained in the 2017 Agreement.
Figure 1
There is mesh fencing at the pen surface, which is in part to keep salmon within but also to keep predators (typically, seals) out. There are two standard sizes of pens – 80m and 120m – measured by the circumference at the surface. The circumference at the surface has a walkway for access. While the top of the pen floats at surface level, the entire pens are anchored to keep their location fixed. The depth of a pen is about 17m. Pens also have lighting. Artificial light is an important tool used to control the growth of fish and maturation.
A grouping of pens is serviced by a feed barge. Like the pens, the barges are anchored to a fixed location. The barge I saw at my inspection was about 20m in length and about 4m wide at its widest point. On top of the barge were hoppers, where feed for the salmon is delivered. A critical function of the barges is to distribute the feed via large polytubing pipes running from the barge to each individual pen. The feed is delivered through the feed pipes by compressed air (the machinery being located on the barge).
The summary above oversimplifies, and significantly understates the sophistication of, Tassal’s marine operations but it provides useful context for the evidence of the witnesses regarding the Feed Technicians’ work. That evidence was in part directed at what the Feed Technicians currently perform, but also by reference to changes in that role over time.
The AWU’s witnesses included four Feed Technicians and an officer of the AWU, Mr Danny Mundey.
Clarissa Murphy and Edon O’Dwyer gave evidence for the AWU. The evidence of Ms Murphy and Mr O’Dwyer is substantially similar – in parts, identical - albeit in respect of their “crews”. The reference to “crews” is to the fact that the (approximately) twenty Feed Centre employees are divided into two teams or crews of ten, who work on alternative rotational rosters. Over the roster pattern, if one crew is working, the other is rostered off. Work in the Feed Centre occurs seven days a week, during daytime hours, although hours vary upon daylight availability.
Ms Murphy and Mr O’Dwyer gave evidence about how the role of feeders changed from an ‘On Farm Feeder’ role to the current role of Feed Technician. Much of their evidence about historical matters involved matters occurring before they were employed and they did not directly observe themselves. The evidence was based (as both witnesses acknowledged) on discussions with other crew members. Noting that their evidence was substantially supported by two other crew members who gave evidence – Brendon McGee and Max Lockley – who were employed during much of the historical period described and that Tassal’s witness, Luke Cordwell, largely agreed with that evidence, I accept it. The following summary is primarily from the evidence of the Feed Technicians Mr McGee and Mr Lockley.
Historically, delivering feed to the pens was performed by a feeder operating a vessel/boat. The vessel sizes varied. A smaller vessel might hold about 1 tonne of feed, others had up to a 5 or 6 tonne capacity. Later, the capacity increased to 7 – 8 tonnes. The feed was fish feed pallets, which were loaded at the shore before a feeder would travel to the pens. The feeder would control the vessel.
Feed from these types of boats was delivered by either a water cannon or (as became established practice over time) an air blower. To ensure the correct amount of feed was delivered, a feeder would lower a camera into the pen. By various attachments, the camera could be moved. For feeding purposes, the camera was lowered to a designated depth, usually 7 meters. The camera would then transmit to a black and white TV monitor on the vessel. Feeders were instructed to feed the pellets until pellets could be observed falling to the location of the camera. It was considered that if pellets could be observed at that depth, the fish had received enough feed.
At that time, each vessel had one feeder, who was responsible for the operation and some maintenance of the vessel, as well as feeding. Each vessel would travel from pen to pen, undertaking feed on one pen at a time. Each pen was fed three times a day, with smolt (i.e. young salmon) being fed five to six times a day.
After a time, the feeder vessels were replaced by barges. The exact time barges were introduced is unclear but Mr Lockley’s evidence indicates it was around 2011. The exact time is not material and it appears they were also introduced over time. A feeder would now travel between the shore and a barge by boat.
The barges could hold substantially more feed pellets, taking up to 100 tonnes of feed. The distribution of feed to the pens from barges by pipes and compressed air is described above.
The use of barges also meant that two pens could be fed at the same time. There were also now two cameras for each pen – one on the surface to observe feed distribution occurring at the surface level and one under water to observe feeding activity. A computer on the barge operated by the feeder controlled the feeding and associated cameras, under the direction of the feeders.
During this period, feeders were also responsible for some maintenance, upkeep and troubleshooting of feed equipment. As Mr McGee noted, this included repairing pipes, cleaning cameras, maintaining the feed system components used for feeding the stock, maintaining fuel levels and some maintenance checks. Mr McGee also stated that feeders undertook algae sampling and monitored dissolved oxygen levels in the pens, as well as removing seals from pens that had gained access. Feeders would report damage to farm infrastructure to team leaders.
Feeding from the barges was assisted by computers. Mr McGee explained that the computer program on the barges triggered a number of alarms where faults or problems within the feeding system were identified and needed to be fixed by feeders. These included the positioning of pipes, lubrication, feed distributors and thermal overload.
During the period when feeders worked from the barges, a ‘feed sheet’ was manually filled in and lodged at the site office at the end of each day, which recorded how much feed had been fed in each pen.
Before describing the current role of the Feed Technicians, it is useful to provide some detail about other employees covered by the 2017 Agreement. The 2017 Agreement describes ‘Farm Attendants’, ‘Night Watch / Stock Protection Officers’, and ‘Skilled Operators’ at various levels. The organisational charts in evidence described them as ‘Farm Attendants’ and ‘Divers’. The work of these two groups – Farm Attendants and Divers – is primarily physically located at the farm pens and leases. Some of the witnesses also described ‘Farm Attendants’ to mean feeders (prior to their centralisation in the Feed Technician Centre). The Farm Attendants were also described by Tassal and the AWU as the ‘works crew’ and for convenience and to avoid inadvertent confusion, I will use the term ‘works crew’ to distinguish that group of employees from either the Feed Technicians or divers.
The works crews are primarily responsible for the upkeep and maintenance of the marine operations infrastructure, such as vessels and the fish farms. For example, if a feeding pipe is not fully sealed (i.e. it is losing pressure), they might weld it. They are also involved in ‘bathing’ fish.
Bathing of the fish was described as a ‘critical’ activity. It was explained to me on the inspection of the pens that this involves removing fish from a pen into a specialised marine vessel – the specific vessel for that purpose is called the ‘Aqua Spa’ – where the fish will be able to swim in fresh (i.e. unsalted) water for about 2 hours. If the fish are not bathed, they can develop amoebic gill disease or ‘AGD’. Severe cases of AGD can lead to fish death, while milder cases can cause feeding to be compromised. The Aqua Spa vessel is also used for transporting fish from nurseries to the pens and to and from the pens for a range of other reasons.
The divers are relied upon by Tassal to support the works crew in performing upkeep and maintenance on fish farm infrastructure. Among other matters, the divers inspect the condition of the pens. Divers also inspect the bottom of the pen nets for waste feed – if waste feed is found on the bottom of the nets, that information is given to the Feed Technicians. In addition, divers also retrieve fish mortalities – known as ‘morts’ – from a pen.
For the feeders, a change to centralised feeding occurred in the first half of 2018. In Mr McGee’s case, he was transferred from the Shepard’s Point lease location (i.e. the Eastern Zone) to the Feed Technician Centre in Hobart. Mr Lockly also transferred from his location near Dover to the Feed Technician Centre. The changes saw the number of feeders – all now located at the Feed Technician Centre – reduce from around 65 to 20. When describing the feeders since they were relocated to the Feed Technician Centre, I refer to them as Feed Technicians for clarity although it appears the terms are used somewhat interchangeably.
The Feed Technician Centre occupies a discrete area of the floor in which it is located in Hobart. It is an office environment. It was not in dispute, and is clearly correct, that the technology available in the Feed Technician Centre is significantly more advanced than the ‘on farm’ technology used before the introduction of remote, centralised feeding.
The Feed Technicians have desks called ‘feed stations’ – akin to control stations – facing an array of about 11 large, high-definition monitors. At any given time, one or more monitors in the array will typically show a live stream camera feed from cameras located in the fish pens. The direction of the cameras is controlled from the Feed Technician Centre. The camera technology is used for varying functions but includes visual inspection of feed pellets during feeding time, inspection of the pen and net conditions, viewing fish activity, and the identification of ‘morts’.
The cameras in the pens are more dynamic than previous versions, in the sense that they can be remotely moved to different areas in the pens than was previously the case. There are now also cameras mounted on the feed barges. The cameras can also be used to view other infrastructure, such as the feed pipes. The quality of the cameras and monitors is significantly advanced from the black and white images feeders initially used.
The array of monitors displays a range of other information, largely under the control of the Feed Technicians. This includes outputs from sophisticated computer programs used as part of the remote operations. The current technology includes:
-The programs ‘Feedstation’ and ‘AKVA’, which are programs to ensure the efficient feeding of fish in the pens.
-Monitoring programs such as ‘AMS Cloud’ and ‘Aquacurrent’, which monitor various environmental conditions and feed activity.
-Remote start programs such as ‘DSE’, ‘Core’ and ‘WebSupervisor’, which are used to control various functions of the feed barges.
Some of the programs above overlap in function. It is beyond the scope of the witness evidence, but it was explained during the inspection that some of the different computer programs in part reflect different stages of technology upgrades and integration – i.e some are newer and have improved features. One example explained at the inspection at the Feed Technician Centre was the use of artificial intelligence to help guide the Feed Technicians in the optimal delivery of feed.
Feed Technicians can be responsible for up to four leases and twelve or more feeding lines simultaneously. Mr Cordwell, who was a Fish Performance Manager and gave evidence for Tassal, qualified that evidence and he said that the number of leases per feeder ranged from one large stocked lease to four low-stocked leases.
At the inspection of the Feed Technician Centre, it was explained to me that the Feed Technicians have toolbox meetings, in the mornings, where they consider the plans for particular farms or pens that they're responsible for feeding that day. These meetings allow them to take into account the actual plans in place on a particular farm that day, which can impact when they feed their pens.
An example is the cleaning of the pen nets, which need to be cleaned on a regular basis. Farm staff at the pens have schedules for cleaning nets and for the divers to inspect the condition of them. Feed Technicians also inspect and ‘score’ the condition of the nets. If the net condition is affecting feeding, the cleaning schedule at the pens might be changed.
Another example will be ‘bathing’ schedules. Fish need to fast for a period of time before bathing. The Feed Technicians follow the bathing plans – set by the central well-boat team – to ensure fasting times are met.
At the start of each shift, the Feed Technicians conduct pressure tests on the pipes used in the feedlines to the pens to identify any faults and to ensure structural integrity of the feedlines.
Also at the beginning of each shift, Feed Technicians monitor ‘mort’ numbers and report those numbers. Occasionally, this might be required three to four times a day. At the inspection of the pens, it was also explained to me that the Feed Technicians will sometimes indicate to divers which pens to prioritise for removal of ‘morts’, which is largely based on numbers.
Each day, the Feed Technicians check the integrity of the lights on the pens (when lights are in use) to ensure they are operational.
Feed Technicians are responsible for the distribution of feed to be delivered to the farms. The amount of feed per pen is not determined by the Feed Technicians, however the Feed Technicians determine how it is to be distributed based on the volume of feed, the type of feed, the number of silos to be filled and the size of the silo.
The Feed Technicians’ role within the centralised Feed Technician Centre includes report writing for ‘mortality, midday and fishtalk’.
Feed Technicians have direct communications with their farm colleagues (i.e. works crew and divers) all day. At the inspection of the Feed Technology Centre, I was shown that this included dedicated radio communication and mobile phone. Communications were regular, and included communications about issues at the pens requiring fixing, such as dirty cameras, seized machinery, broken or faulty or blocked pipes, predator activity, or equipment alarms from the feed barges (e.g., the feed blowers).
Mr Tim Stephens gave evidence for Tassal. Mr Stephens has worked at Tassal in varying roles since 2010. He is currently ‘Senior Manager – Central Operations’ for Tassal, a role he has held since 2019. Organisational charts included with Mr Stephen’s evidence show he is part of the ‘Farming Operations’ leadership team. Mr Stephens reports to the Head of Aquaculture. Mr Stephens is responsible for ‘Fish Performance & Remote Operations’ and ‘Central Operations’.
Mr Stephens’ direct reports for ‘Fish Performance & Remote Operations’ are two Feed Technician Team Leaders (i.e. the team leaders for the two Feed Technician crews) and the Fish Performance Manager, Mr Luke Cordwell. The Feed Technicians primarily report directly to their respective Feed Technician Team Leader. An organisation chart for ‘Fish Performance & Remote Operations’ showed two direct reports to Mr Cordwell.
Mr Stephens explained in his oral evidence that the organisational chart for ‘Fish Performance & Remote Operations’ did not include a feed analyst reporting to Mr Cordwell, which he said it should have included. He also explained that two of the Feed Technicians reported to Mr Cordwell in part. The latter arrangement was the subject of some cross-examination, but that reporting arrangement related to two Feed Technicians who perform ‘night security’ work outside of standard hours. They are still acting as Feed Technicians when doing night security, working from their stations, monitoring the fish and the environment and the security of the farms. But during that time, they report directly to Mr Cordwell if there are matters arising that needed his attention.
Mr Stephens’ direct reports for ‘Central Operations’ are five ‘Fish Performance Managers’ – two for ‘Day’, two for ‘Night’ and one for ‘Central Operations’. The ‘Day’ Fish Performance managers each have a ‘Dive Team Leader’ and ‘Ops Team Leader’ reporting to them and, a level below them, the ‘Divers’ and ‘Farm Attendants’. The ‘Night’ Fish Performance managers each have an ‘Ops Team Leader’ reporting to them and, a level below them, ‘Farm Attendants’. The ‘Central Operations’ Fish Performance Manager has two direct reports titled ‘Integrated Rating (Aqua Spa)’.
Mr Stephens explained in oral evidence that ‘Central Operations’ refers to the Aqua Spa bathing operations. The Aqua Spa vessel is described above. Mr Stephens described the Aqua Spas as a charter vessel moving around to all the sites. To facilitate those operations, Tassal has a centralised team of people that also move around all those sites. He described each of the managers as overseeing a section of their teams.
The witnesses for each party gave evidence about changes to the role of the Feed Technicians following the centralisation of the feeders to the Feed Technology Centre. The forensic focus of much of this evidence from the Applicant was, presumably, to show that whatever the historical position of the feeders was regarding their geographical, operational or organisational distinctness, that position changed following the establishment of the Feed Technology Centre. I would state again that much of that evidence was largely not in contest – and some was plainly self-evident - although there were degrees of nuance between parties regarding the significance of the changes.
The applicant’s witnesses had collaboratively prepared a document showing various changes between the role of feeders when historically located at the farms and the role of Feed Technicians as now located at the Feed Technology Centre. The comparison document had nine headings, being: “Lease Responsibilities (per feeder)”; “Administrative duties”; “Equipment”; “Work Hours”; “Skills Required”; “Upskilling Available”; “Covid”; “Additional Duties”; and “Cross-department/company Collaboration”. Each heading contained a number of dot-points describing matters relating to them for when work was at the “Farm” and when at the “Feed Centre”.
The comparison document was qualified in various respects by Tassal’s witnesses. The Tassal witnesses did not add new headings but rather they added extra dot-points (primarily to the tasks in the “Farm” column that were listed in the “Feed Centre” column.) No witness was cross-examined on the document by either party.
I note some of the differences identified by the comparator document (as qualified by Tassal’s witnesses) were:
-In relation to hours, the evidence in the comparator document was that rostered hours have not changed between farm feeding and central feeding. There were some changes to the activities within the spread of rostered hours. During on-farm feeding, travel time (site to barge) was included in the work hours. There is no longer an ability to join work BBQs on site.
-There were differences in options for upskilling. Prior to the centralisation of the feeding function, these options included a Certificate III in basic fish husbandry, ‘tickets’ for mobile cranes, radio and fork lifts. Courses were available for ‘seal deterrence’ and in ‘algae’. None of these are applicable at the Feed Centre.
-There were particular matters at the Feed Centre related to Covid. Although in respect of these matters, Tassal correctly notes that management of Covid did not present as a problem prior to June 2018.
-There were differences in additional duties. Feed Technicians no longer perform seal and bird removal from pens, nor do they feed pens from a boat or by hand. Additional duties at both locations included feed trial maintenance and software trials.
-There were some differences regarding cross-department/company collaboration, although they do not appear to be significant and neither party specifically addressed me on them.
Separate to the comparator document, the witness statements appeared to identify the more salient aspects of the changes. Mr Lockley described various changes to the Feed Technicians’ roles in 2018 that he perceived. A key change emphasised by Mr Lockley – and other AWU witnesses - was the change in physical location and environment. This was variously described as a change from working in a “natural environment” – i.e. on boats and barges, and working physically at the fish pens – to working in an indoor “built environment”, namely in an office environment. The office environment was located in Hobart, as opposed to being at one of the various ‘zone’ locations described above. Self-evidently, these are clearly changes and Tassal did not suggest to the contrary.
Other changes identified included the operation of boats, cranes and forklifts – these were all tasks formerly undertaken but none of which are performed in the Feed Technology Centre. Other functions no longer performed include algae collection/identification, and barge maintenance.
Functions that have been added, and the skills required for them, are increased use of computer programs, reading fish behaviour, multi-tasking, and time and feed management. There is little doubt that increases in technology (including various computer programs) has occurred. A qualification to this evidence was that some of the feeding programs were in use when feeders were located at the farms – examples are ‘Feedstation’ and ‘AKVA’. I also accept Tassal’s evidence that many of the technology changes would have been introduced whether the feeders stayed physically at the farms or were relocated to a central location, although how quickly and to what extent is less clear.
I have noted the changes to the number of feeders (from about 65 to 20) and responsibilities of leases and feed lines per feeder above. It follows that the evidence given by the AWU witnesses that Feed Technicians now carry more responsibility for the number of fish being fed at any point in time is correct. I do accept, however, the qualification by Tassal regarding the increased level of responsibility for the numbers of fish being fed at any one time as being due to improved technological advancements.
Other aspects of the evidence were, with respect, more in the nature of opinion evidence or outright submission about legal conclusions. For example, each party led evidence from witnesses that explained why or why not that witness considered the Feed Technicians to be “operationally” part of the farm crew physically at the farm pens. Similarly, there was evidence about witnesses’ understanding of what the term “on farm” meant, as that term appears in the definition of “Marine Operations” in the 2017 Agreement. I find those aspects of the parties’ evidence to be of limited assistance, although I had regard to underlying facts supporting a witness’ opinion (where those facts were stated) and to which facts were said to support particular legal conclusions.
The parties gave evidence about the progress and content of the bargaining between the parties. Most of that evidence was largely unchallenged either way, with two exceptions I describe below.
Mr Mundey gave an overview of various enterprise agreements with Tassal involving the AWU. He identified five enterprise agreements with Tassal’s “processing” business and two enterprise agreements for its “farming” business (which included the 2017 Agreement). Neither party considered it necessary to address the specifics of those enterprise agreements, save for the 2017 Agreement, and I proceed on the basis they are not material other than they show that enterprise agreements for different operational or geographic locations exist.
Mr Mundey gave evidence about steps taken in bargaining for a new enterprise agreement to replace the 2017 Agreement. Relevantly, Mr Mundey gave evidence to the effect that since the first bargaining meeting on 6 September 2021 and consistently since, employees in the Feed Centre had expressed their wish to pursue a separate enterprise agreement specific to their circumstances. His evidence included correspondence to Tassal setting out various grounds as to why Tassal ought to have a discrete enterprise agreement for the feeders. I accept that evidence, which was not controversial, as do I accept that Tassal had consistently stated that it would not agree to a separate enterprise agreement of that kind and that, in Tassal’s view, a discrete feeders agreement was not appropriate. Given that communications between the parties during bargaining substantially reflected the positions of the parties before the Commission (which I describe in detail below), it is not necessary to set it out here.
In respect of the 2017 Agreement, Mr Mundey gave evidence as to why, in his view, the 2017 Agreement did not apply to the work activities of the Feed Technicians. This concerns one of the ‘disputed’ categories of evidence about bargaining I foreshadowed above.
Ms Murphy and Mr O’Dwyer were both bargaining representatives for their respective crews. Their evidence in that respect was that the Feed Technicians wanted to bargain for their own enterprise agreement, separate from the divers and works crew. It was not in dispute that the Feed Technicians have been seeking their own enterprise agreement since around September 2021, noting that bargaining was commenced by Tassal in August 2021. In addition to that claim, the Feed Technicians’ log of claims includes a fifteen percent pay increase, a parking allowance, mobile phone reimbursement, set seasonal rostering, a 4.25 percent per year wage increase, and a new level 5 classification. The initial log of claims by the AWU also stated that the Feed Technicians wanted a separate agreement. Other claims in the AWU log of claims included wage increases of 4 percent per year, matters about rostering, matters about overtime, some changes to how certain allowances were paid (in particular divers’ allowances) and claims for additional allowances, among a number of other matters.
It is unnecessary to rehearse the cut and thrust of the bargaining. There are matters Tassal agreed to, such as a Feed Technologist classification and a level 5 classification. There are matters it has rejected. There have been revisions to previously stated positions throughout bargaining.
Tassal has consistently rejected the fifteen percent pay claim. Tassal has also consistently rejected any claim for a separate enterprise agreement solely with Feed Technicians. In this respect, Tassal’s points out (and it was the case) that the 2017 Agreement was voted on after the feeders had been relocated to the Feed Technician Centre. Tassal says those arrangements have worked well and are unnecessary to change. The AWU submissions note that the F17 declaration accompanying the application to approve the 2017 Agreement showed that there were 240 eligible employees entitled to vote for that agreement, of whom 196 voted and 188 of those votes were in favour of the agreement.
On 21 April 2022, Tassal’s position included offers for revised meal allowances, annual pay increases (essentially at 3 percent per annum) and other matters it believed were largely agreed to by that point. Tassal put a proposed agreement to the vote. Mr Burles, in a supplementary statement, gave evidence that he understood he had an in-principle agreement with the AWU on his latest offer. The position was in fact more nuanced and this is the other disputed category of evidence I foreshadowed. Mr Mundey gave supplementary oral evidence, which I accept, to the effect that the AWU’s position was not an agreement, but was that the AWU’s position would be informed by feedback from members.
By about 6 May 2022, Mr Mundey had spoken to a number of members. As a result, the AWU issued a flyer by around 9 May 2022 that urged “Tassal Marine Operators: VOTE NO”. Five matters were listed in support of a ‘no’ vote, being the proposed wage increase was too low, the proposed cap on the dive allowance should be changed, the fuel reimbursement was too low, the proposed overnight allowance was not what was asked for, and that a 4-year agreement was too long.
A vote was held on 12 May 2022. Of the 247 employees eligible to vote, 92.7% cast a vote. Of those, 65% voted no and 35% voted yes.
Applicable principles
Sections 238(4) and (4A) of the Act set out when the Commission “may” make a scope order and what “is” be taken into account. Those sections are as follows:
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.
The parties drew attention to various decisions that have considered the factors relevant to s.238(4) and (4A). A number of those decisions were common to both parties. As a general observation, there was not a significant degree of difference between the parties but, rather, the differences were more in the nature of which aspects to emphasise and the application of the principles to the present dispute. As noted above, there was no dispute that s.238(4)(a) was satisfied. As the proposed agreement does not cover “all” Tassal employees, s.238(4A) was engaged.
For s.238(4)(b), the Full Bench in United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board[2010] FWAFB 3009 (UFUA v MFESB) stated at [55]:
“The relevant consideration under s.238(4)(b) is whether the order will promote the fair and efficient conduct of bargaining. The implication is that the tribunal should be satisfied that if an order is made the bargaining will at least be fairer or more efficient or both than it would be if no order were to be made.”
In AMWU & Ors v Shinagawa Refractories Australasia Pty Ltd[2011] FWA 5935, Sams DP stated to similar effect that it was necessary to consider “the current state of the negotiations and the reasons why the proposed order would promote fair and efficient bargaining.” In that matter, the state of bargaining was described as a “stalemate”: at [26].
The AWU stated that where a minority of employees might have their terms and conditions “overwhelmed” by those employees in the majority, that tends against being fair or efficient. Reliance was made on Stadium Australia Operations Pty Ltd t/a ANZ Stadium re ANZ Stadium Casual Employees Enterprise Agreement 2009 [2010] FWAA 3758 at [35]:
“The real remedy for a subgroup of employees, such as the customer service employees in this case, who perceive themselves to be unfairly disadvantaged by a proposed agreement, is for one or more of their bargaining representatives to seek a scope order under s.238. Such an order can be sought if bargaining is “proceeding… unfairly” because “the agreement… will cover employees that it is not appropriate for the agreement to cover”.”
The AWU drew attention to similar observations made in Australian Salaried Medical Officers Federation v Commonwealth of Australia as represented by the Department of Human Services[2011] FWA 5920 at [24].
Reliance was placed by the AWU on The Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd[2014] FWCFB 1476 (AWU v Kwinana) at [31], that “prima facie” weight might be given to the views of employees unless there is good reason otherwise. The passage in that decision was located under the heading “Overall exercise of discretion under s.238”, having followed the preceding headings respectively addressing s.238(4)(b) and s.238(4)(c). It appears from the structure of the decision that the discretion referred to was the Commission’s satisfaction of the matters in s.238(4)(d), being whether it is reasonable in all the circumstances to make the order.[1]
That particular passage in AWU v Kwinana was recently considered by the Full Bench in CEPU & ors v Utilities Management Pty Ltd[2022] FWCFB 42 (CEPU v Utilities Management). In that latter decision, the majority (Hatcher VP and Bissett C) observed[2] - with whom Colman DP generally agreed on this aspect[3] - that there “are (at least potentially) two decision-making steps required under s 238(4).” The first is being “satisfied” of the matters in s.238(4)(a) – (d). The second, which is dependent on the first step, is the overall discretion signified by the word “may” in the chapeau to s.238(4).
In relation to AWU v Kwinana, the majority in CEPU v Utilities Management observed it “arguably went somewhat further” by the statement “the preferences of employees as to the appropriate collective should be respected unless there is some good reason under the legislation to decide otherwise”, when compared to what was stated by the Full Bench in UFUA v MFESB at [53]. At UFUA v MFESB at [53], the Full Bench stated:
“The legislative scheme supports collective bargaining principles and the Fair Work Act encourages freedom of association and collective bargaining. It may be implied from the legislative scheme that the collective choice of employees is significant. It must be said, however, that while weight should be given to the views of the employees potentially affected, it may be that a proper consideration of the matters specified in s.238(4) and (4A) in a particular case may make it appropriate to make a scope order contrary to the views of the employees potentially affected.”
The majority concluded that it was “sufficient to say for present purposes that the required consideration under s 238 of the need to facilitate good faith collective bargaining will necessitate giving significant weight to the collective views of employees as to their preferred coverage scope”. Colman DP considered that the Commission is required to afford the collective views of employees “appropriate” weight, rather than “always” significant weight. I do not consider there is necessarily a practical difference between the stated positions, as I do not read UFUA v MFESB or s.238(4) as standing for the proposition that there is a general rule that the views of employees will always be given “significant” weight. The particular weight that ought to be given to those views in a particular case will necessarily turn on the circumstances of that case upon a proper consideration of the matters specified in s.238(4) and (4A): UFUA v MFESB at [53], above. In circumstances, that may well be significant.
However, in relation to the satisfaction of the specific criteria in s.238(4)(b), I do not consider that the views of employees, without more, determines consideration of the criterion in s.238(4)(b) as submitted and I do not understand the Full Bench in AWU v Kwinana to have said otherwise. While the preferences or views of employees may inform, in appropriate cases, the assessment of whether bargaining might become more “efficient” or “fairer” if the proposed scope order is made, the assessment of whether either of those outcomes will be promoted is necessarily a matter for the Commission to be satisfied about taking into account any matters relevant to the case at hand. The Full Bench in AWU v Kwinana gave examples[4] of an impasse in bargaining because of scope or demarcation issues where it considered that the views of employees are likely to inform the question of whether an order might promote more efficient bargaining. The views of the employer might similarly inform that inquiry. (To be clear, the views of employees are separately capable of being relevant in s.238(4)(c), s.238(4)(d) or even for the overall exercise of discretion required by the word “may” in the chapeau of s.238(4) and I also consider them in that context below.)
Dealing next with the criterion in s.238(4)(c) that the proposed group is “fairly chosen”, the Full Bench in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union & Ors[2012] FWAFB 2206 (Cimeco) stated it is relevant that the selection of an identifiable group of employees has a degree of objectivity – it is not arbitrary or subjective or discriminatory.[5] While Cimeco concerned s.186(3) & (3A), I consider the same relevant considerations apply to s.238(4)(c) & (4A). The interests of employees to be included in the proposed scope are relevant, as are the interests of the excluded employees and the employer.[6] The interests of the respective parties are likely to be informed by the views of the parties.
In assessing whether the group proposed to be specified in the scope order is “fairly chosen”, the Commission is required to “take into account” of the factors set out in s.238(4A) where the proposed group does not cover all employees. Those factors are whether the group is “geographically, operationally or organisationally distinct”. In Cimeco at [19], the Full Bench stated:
“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.” (original emphasis).
The construction of the statute does not give preference to agreements that cover as much of an enterprise as possible[7] and, correlatively, I consider there is no statutory presumption for the reverse.
The parties drew attention to various cases in the matter before me. It appears the principles in them were largely uncontroversial between the parties (although the application of those principles was in dispute). Suffice to say, the inquiry is necessarily informed by the particular circumstances of the case at hand.
Geographical distinctness is concerned with the geographical separateness of the employer's various worksites or work locations, rather than a separation of workplaces within the same worksite.[8]
The term “operational” signifies an “industrial or productive activity”.[9] The fact that some employees perform a different role, task or function to that performed by other employees is not of itself a sufficient basis upon which a finding of operational distinctness can be made,[10] although this will be guided by the circumstances of the case.
In determining organisational distinctness, the following propositions stated in Aerocare Flight Support v TWU & ASU[2017] FWCFB 5826 at paragraph [27] are applicable (citations omitted):
-the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations;
-the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct;
-however the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function; and
-most businesses have organisation structures which will allow organisationally distinct groups to be identified.
The requirement to “take into account” the factors stated in s.238(4A) does not dictate a conclusion from those factors that the proposed group is or is not “fairly chosen”. As stated in QGC v AWU at [43] “where the group is not geographically, operationally or organisationally distinct, it is necessary to identify what, if any, factors outweigh the absence of such characteristics” such that the group might be fairly chosen. While those observations were made in the context of an application for a majority support determination under s.237, I consider them applicable here. The weight ascribed to particular factors will necessarily be informed by the case at hand – in QGC v AWU, the absence of geographical, operational or organisational distinctness was significant.
As the Full Bench in UFUA v MFESB stated at [55], more than one group may be “fairly chosen”. In this respect, the majority in CEPU v Utilities Management noted that while competing coverage proposals have been considered “in a number of cases” as a relevant matter, the consideration of competing coverage proposals is not a matter to be given “determinative” weight[11].
Where the group proposed in a scope order application is found to be fairly chosen, this suggests some comparison might be appropriate with the group that would exist if the application was refused. The Full Bench in UFUA v MFESB noted that s.238(4)(b) invites consideration of whether the proposed grouping “at least be fairer or more efficient or both than it would be if no order were to be made”. So much necessarily follows from the requirement that the proposed order would “promote” the fair and efficient conduct of bargaining.
I similarly consider that the consideration of the proposed group’s “distinctness” required by s.238(4A) would ordinarily be assessed against the group that would exist if no order were made. It does not follow, however, that the proposed group is not fairly chosen because the group that would exist if no order were made is better chosen. As stated in UFUA v MFESB, more than one group might be fairly chosen.
In this sense, the grouping that is more fairly chosen would be a relevant factor to be given appropriate weight in the circumstances. If that comparison is not directly required – or permitted - by the terms of s.238(4)(c) and (4A), it would appear relevant to the assessment of reasonableness in s.238(4)(d) or to the overall discretion contemplated in the chapeau to s.238.
In CEPU v Utiltities Management at [69], it is stated that “No part of s 238(4)(c) requires consideration of whether any proposal for coverage of an agreement other than that contained in the scope order sought by the applicant is “fairly chosen”.” I do not disagree, although I do not consider that statement is intended to convey that competing coverage scopes cannot be considered. In many cases, it may be appropriate to do so. If, contrary to my understanding of s.238(4)(c), competing coverage scopes are not permitted to be considered under s.238(4)(c), they may be relevant under s.238(4)(d).
As to the requirements of s.238(4)(d), the Commission must be satisfied that “it is reasonable in all the circumstances to make the order”. What those circumstances are will necessarily be dictated by the case at hand. As the majority in CEPU v Utilities Management observed, it requires the exercise of a broad discretion, subject only to taking into account all the relevant circumstances. The discretion should not be conflated with the overall discretion at the second step of the decision-making process. [12]
A relevant circumstance for the inquiry under s.238(4)(d) is likely to be the views of employees. As noted above, those views might be afforded significant weight in appropriate cases. As noted above, I would also consider the inquiry required by s.238(4)(d) might require consideration of competing scopes. An example where this might be relevant is where two alternative coverage scopes are primarily in issue – one being the subject of the proposed order, the other being the scope proposed by the other party under the current bargaining that might remain if there were no order. Where, for example, it was found that both proposed scopes were fairly chosen, it might be the case that one of the scopes only faintly passed that standard but the other clearly did so, possibly on basis that one grouping was far more distinct (geographically, operationally or organisationally) than the other.
Consideration
There is no dispute that the requirements of s.238(4)(a) were satisfied and I accept that the AWU has met, and is meeting, its good faith bargaining requirements.
Dealing with the requirement that the proposed order will promote the fair and efficient conduct of bargaining, the Full Bench in UFUA v MFESB states “the tribunal should be satisfied that if an order is made the bargaining will at least be fairer or more efficient or both than it would be if no order were to be made”.
As to the proposed order making bargaining more “efficient”, I do not consider this will be the case. Bargaining to date has progressed more or less efficiently, at least within the spectrum of bargaining that commonly occurs. As the summary of the bargaining evidence indicates, the parties have not yet reached agreement although progress is being made. Tassal contends that bargaining for one agreement is “intuitively more efficient” than bargaining for two agreements, with the implication being that the proposed order would make bargaining less efficient. I express no view on whether efficiency of bargaining would be lessened if the order was made but it is sufficient to note that I am not satisfied the proposed order will “promote” efficiency. The differences on proposed scopes do not appear to me to have caused issues with bargaining such that a scope order will promote the efficient conduct of bargaining.
The question of whether the proposed order will promote the “fair” conduct of bargaining raises different considerations, particularly on the applicant’s case. The AWU submits that “bargaining on scope is clearly at an impasse”. I accept that submission, with one important qualification – while Tassal has no appetite for bargaining on scope, I do not consider that bargaining itself is at an impasse. Far from it, and as noted above, bargaining is progressing.
The AWU further submitted that the effect of bargaining without the proposed scope order will be that the minority’s terms and conditions “may be overwhelmed by the votes of those in a majority”, which is unfair. The AWU contends that “where there is a clear risk of the tyranny of the majority prejudicing the minority in a proposed agreement, it may well be open to FWC to find that if bargaining is proceeding unfairly towards the minority this makes it inappropriate that they be covered by the agreement and appropriate to make a scope order”[13].
In my view, the evidence does not extend so far to satisfy me there is a sufficient risk of tyranny of the majority prejudicing the minority. At present, I note that a clear majority of employees has rejected the one agreement put to a vote. The Feed Technicians did not submit that they wished for that agreement to be approved. The most I can infer is that the Feed Technicians opposed the agreement put to the vote. In doing so, their opposition (along with others) was successful and I do not consider the evidence indicates one group or another being overwhelmed or dominated in that outcome. I also do not consider that the evidence, as presented, or the conceptual prospect of the Feed Technician’s views being overwhelmed, reaches a level in the circumstances that the proposed order will promote the fair conduct of bargaining.
The AWU also rely on the support of the Feed Technician’s preference for bargaining on their proposed scope – a matter that it said should be given “significant” weight having regard to AWU v Kwinana at [31]. I do not consider that the views of employees, without more, automatically affects consideration of the criterion in s.238(4)(b) as submitted and I do not understand the Full Bench in AWU v Kwinana to have said otherwise. As noted above, while the preferences or views of employees may inform, in appropriate cases, the assessment of whether bargaining might become more “efficient” or “fairer” if the proposed scope order is made, the assessment of whether either of those outcomes “will” be promoted is necessarily a matter for the Commission to be satisfied about taking into account any matters relevant to the case at hand.
Dealing next with the criterion that the proposed group is “fairly chosen”, I accept that the AWU selection of an identifiable group of employees has a degree of objectivity – it is not arbitrary or subjective or discriminatory – which is a factor supportive of that group being fairly chosen.[14] The interests of employees to be included in the proposed scope are relevant, as are the interests of the excluded employees and the employer. [15] As noted, the Feed Technicians support the application. It is less clear what the views of the remaining employees are (e.g. works crew and divers), although I am prepared to infer from the fact that the AWU – who is a bargaining representative for that group as well – is seeking the proposed scope order that the excluded group either support the application or at least do not oppose it. These are further factors in favour of the proposed group being fairly chosen.
Where, as is the case here, the proposed grouping will not cover all employees, the factors in s.238(4A) “must” be taken into account in determining if the group is fairly chosen. Taking into account whether the proposed grouping is geographically, operationally or organisationally distinct is not decisive but is a matter to be given due weight having regard to all other relevant considerations.[16]
The AWU submits that the location where Feed Technicians Work is geographically distinct from the location/s where the remainder of the marine operations work is undertaken. The AWU contends that it cannot be said that the work is undertaken “on farm” when clearly the location where the work is undertaken is in an office building in Hobart.
Putting aside the dispute about the meaning of “on farm”, there is no dispute that the Feed Technicians are in an office environment and no longer on a barge at a farm. The AWU describes - correctly - this change as moving from a “natural environment” to a “built environment”.
Tassal point out, with some force, that the marine operations as a whole span across various worksites and locations and that the geographic location of the Feed Technicians is, and remains, a part of that geographic spread with the Feed Technicians now located approximately centrally within it.
So much may be accepted from both submissions although in the present case, I am satisfied there is some level of geographic distinctness arising from the centralisation of the Feed Technicians that better favours the AWU’s submission. While Tassal correctly states that the other operations staff themselves span worksites and locations (which was not a source of complaint in bargaining), there is a different span for Feed Technicians and other operational employees. These matters need to be taken into account with the operational and organisational distinctness, which I now describe.
Tassal submits that, as that work could have been retained on a barge geographically proximate to the farms, the fact that they were instead located in Hobart is of little moment. While that might be conceptually the case, the fact remains that those staff are no longer physically located on barges within a farm lease area. The hypothetical example proffered of Feed Technicians being located on barges, utilising all the current equipment contained in the Feed Technician Centre, has an air of unreality about it. One of the critical advantages of the Feed Technician Centre is that it allows a greater number of functions to be performed remotely, by fewer people. It was not seriously suggested that it was contemplated ever locating that centre on a floating barge or barges. Whatever might be the theoretical position of where the Feed Technician’s work stations could have been located, the fact remains that the Feed Technician Centre is located in Hobart and is not on a barge.
The AWU also contends that the change in work from a “natural” environment to at “built” environment is a relevant factor to distinctness. Tassal disputes that the distinction between a “built” or “natural” working environment is relevant to geographic distinctness. I am inclined to prefer the AWU’s contention, although that factor is perhaps more relevant to showing operational distinctness. In the present case, the geographical distinctness of the AWU’s proposed scope is tempered somewhat by the fact that Tassal’s marine operations on the east coast of Tasmania themselves span hundreds of kilometres, above and below the capital, and a disparate number of marine farm locations. Since the centralisation of the Feed Technicians to the Feed Technician Centre, the Feed Technicians are more geographically concentrated than was previously the case when they were dispersed throughout the farms along with other operational staff although it should be recognised that there was some inherent geographic dispersal prior to that centralisation.
Overall, I consider these factors point to a conclusion of some geographic distinctness, although I consider this factor is only marginally supportive.
As to operational distinctness, I find that the Feed Technicians are a highly integrated and critical function of the farm operations. This is not simply because they control the feeding of the fish in those farms, although that alone is a significant factor.
The operation of the farms is a carefully managed and sophisticated operation. The marine operations of farming salmon are carefully managed at all stages as between Feed Technicians, works crew, and the divers.
The work of the Feed Technicians, works crew, and divers are each impacted by the other, and not in a general sense but in a frequent and meaningful way on a daily, hourly (and often shorter) basis. The daily work of the Feed Technicians is framed by what work is being planned by other crew on the farms. That might be maintenance (pipes, nets, pumps, feed distributors, etc). It might be because, on that day, the fish in a particular pen or pens are going to be removed (whether for ‘bathing’ or to be relocated.) Those plans might change on short notice and this will in turn directly affect the work of the Feed Technicians.
The reverse is also the case. The daily or hourly plans for the divers might change if Feed Technicians identify ‘morts’, particularly more than a few, by way of example. Other examples might involve identification by Feed Technicians of equipment that needs inspection or repair – such as nets or pipes – or even a security issue such as breach by a seal. The groups are required to be, and are, in frequent contact with each other.
I have had regard to the changes in the tasks and functions performed by the Feed Technicians upon their relocation to the Feed Technician Centre. I accept the AWU’s contention that the current role involves a greater use of technology and that there are aspects of the role that have otherwise clearly changed (vessel control and some maintenance works being obvious examples).
I have described aspects about the overall operations earlier, including the role of the Feed Technicians, but those descriptions do not give justice to the interconnectedness of the various aspects of farm operations between the Feed Technicians, the works crew and divers. My conclusion on this matter was informed by the inspection I undertook with the parties.
Overall, these matters taken together point very strongly to the conclusion that the work of the Feed Technicians, divers and other works crew are a highly integrated function of Tassal’s marine operations and their respective roles directly impact on and rely upon each other throughout the day.
Organisationally, Mr Stephen’s evidence is that the Feed Technicians are within ‘Fish Performance & Remote Operations’. The works crew, divers and Aqua Spa are part of ‘Central Operations’. Both groups are under the direct responsibility of Mr Stephens, the ‘Senior Manager – Central Operations’, as reporting through various team leaders and fish performance managers.
Mr Stephen’s evidence is that there is a high degree of interconnectivity between the work of the Feed Centre and the operations crew on farm sites. While the interconnectivity described by Mr Stephens is a factor more relevant to operational distinctness, it also indicates an organisational alignment – not distinctness – between the Feed Technicians and other operational crew and explains why, organisationally, they are all located under Mr Stephen’s area of responsibility.
Taking into account the factors listed in s.238(4A), I am not satisfied that a proposed group of employees confined to Feed Technicians is “fairly chosen”. In the present case, in particular, the degree of operational integration between the Feed Technicians with other operational crew is of such significance in the present case that it outweighs those changes arising from the centralisation of the Feed Technicians to Hobart. The limited organisational distinctness supports this conclusion, although I do not consider it necessary in the present case. I have considered whether there are other factors that would nonetheless militate a different conclusion, such as the Feed Technician’s concern that they are a minority (which they are) and that they support the application (which they do). I have assumed the excluded group of employees support the action. While there is some support by reason of geographical distinctness, I consider that support only faintly assists.
Turning to the factors in s.238(4)(d), there are factors that point each way on the question of whether it is reasonable “in all the circumstances” to make the proposed order. As noted above, the preference of the affected Feed Technicians is, in particular, a factor in support of the application. That factor, together with the other factors that were submitted as being in support of the application, do not rise to such a level that, in all the circumstances of this application, it is reasonable to make the proposed scope order. In the present case, for the reasons set out above, even if I concluded that the AWU’s proposed grouping was fairly chosen in the sense described, I remain of the view that the grouping currently the subject of bargaining is a far better choice – that is, it is more fairly chosen – such that it would still not be reasonable in all the circumstances to make the proposed order.
As I am not satisfied of more than one of the factors in s.238(4)(a) – (d), it follows that I cannot make the order as proposed. It is unnecessary to consider the wider discretion as to whether I “may” make the order in those circumstances.
I order that the application be dismissed.
DEPUTY PRESIDENT
Appearances:
R Flanagan from the The Australian Workers' Union
S Masters of Edge Legal for Tassal Operations Pty Ltd
Hearing details:
2022.
Hobart:
Thursday 19 May
[1] Cf AWU v Kwinana at [43] – [44].
[2] CEPU v Utilities Management at [61].
[3] CEPU v Utilities Management at [113].
[4] At [23] and [25].
[5] Cimeco at [16], [21].
[6] Cimeco at [21].
[7] UFUA v MFESB at [56]
[8] AWU v Kwinana at [13].
[9] QGC Pty Ltd v Australian Workers’ Union[2017] FWCFB 1165 (QCG) at [44] (QGC v AWU).
[10] QGC v AWU at [44].
[11] CEPU v Utilities Management at [69].
[12] CEPU v Utilities Management at [70].
[13] Cf the AWU relied here on ANZ Stadium Casual Employees Enterprise Agreement 2009 [2010] FWAA 3758 at [35].
[14] Cimeco at [16], [21].
[15] Cimeco at [21].
[16] Cimeco at [20].
Printed by authority of the Commonwealth Government Printer
<PR741731>
1
5
0