“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Orontide Group Limited
[2021] FWC 5981
•23 SEPTEMBER 2021
| [2021] FWC 5953 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.238—Scope order
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Orontide Group Limited
(B2021/618)
DEPUTY PRESIDENT BEAUMONT | PERTH, 23 SEPTEMBER 2021 |
Section 589(2); Section 238; Scope Order; Interim Order to preclude ballot
[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the Applicant) made an application under s 589 of the Fair Work Act 2009 (Cth) (the Act) to restrain Orontide Group Limited (the Respondent) from conducting a ballot of employees in respect of a proposed enterprise agreement. As the Respondent had scheduled the ballot for 22 and 23 September 2021, the Applicant requested the matter be dealt with on an urgent basis.
[2] By way of background, the substantive matter before the Commission was an application for a scope order sought under s 238 of the Act. The Applicant had sought the scope order in relation to a group of employees working in the Port Hedland workshop and those who attended client sites. That application was listed for hearing in October. However, with a ballot impending on a proposed enterprise agreement covering all of the Respondent’s Western Australian operations, the Applicant initially sought the following interim order:
Orontide Group Limited not request its employees to approve an enterprise agreement under s 181 of the Act unless:
a) the scope of the proposed enterprise agreement does not include, or only includes, the Respondent’s employees who work in the Respondent’s Port Hedland business unit; or
b) the Fair Work Commission has issued a final order in matter B2021/618 relating to the Applicant’s application for a scope order.
[3] Come 19 September 2021, the Applicant filed submissions and amended the interim orders to read as follows:
a) An interim order requiring the Respondent to stop the voting process for the proposed Orontide Group Limited Enterprise Agreement 2021 that is scheduled to occur on 22 and 23 September 2021.
b) An interim order requiring the Respondent not request its employees to approve an enterprise agreement under s 181 of the Act unless:
i. the scope of the proposed enterprise agreement does not include, or only includes, the Respondent’s employees who work in the Respondent’s Port Hedland business unit; or
ii. the Fair Work Commission has issued a final order in matter B2021/618 relating to the Applicant’s application for a scope order.
[4] In light of the circumstances, it was highly desirable that the matter be determined without delay and that the parties be advised of the outcome of the Interim Order prior to the beginning of the ballot. Directions were therefore issued mindful of the condensed timeframe.
[5] At the conclusion of the hearing on 20 September 2021, I informed that parties that my decision was reserved but cognisant of the urgency of the matter both would be notified of the order prior to the ballot taking place. On 21 September 2021, I issued an Order 1 dismissing the Applicant’s application. Here are my reasons for so doing so.
1 Background to the matter
[6] The Respondent provides maintenance and manufacturing services to its clients in Western Australia. 2 Its clients are said to operate in a range of heavy industries.3
[7] It divides its operational workforce into four business units. 4 They are: (a) Port Hedland; (b) Bunbury; (c) Henderson; and (d) Industrial Services.5
[8] The employees in the Port Hedland business unit are engaged in the north-west or Pilbara region of Western Australia. They provide fabrication and on-site maintenance services to companies in the mining industry (e.g., BHP, Rio Tinto, FMG and Roy Hill). 6
[9] The employees in the Bunbury business unit are engaged in the south-west region of Western Australia. They provide maintenance services to the Respondent’s clients in the mining industry and the power industry. 7
[10] The employees in the Henderson business unit are engaged in Henderson in Western
Australia. 8 The employees in the Industrial Services business unit are engaged to provide on-site maintenance services in a range of industries.9
[11] The parties agreed that there were several companies within the Respondent’s group, including: (a) Orontide Wovodich Pty Ltd; (b) Orontide Madco Pty Ltd; (c) Orontide Alphablast Pty Ltd; and (d) Orontide Robil Pty Ltd; 10 all of which were said to be related corporations for the purposes of the Corporations Act 2001 (Cth).
[12] At hearing, Ms Helm, Group HR and HSEQ Manager, gave evidence that the Respondent has an employing entity for each of its business units. For example, the company that employed the employees at Port Hedland was Orontide Robil Pty Ltd. If an employee transferred from one business unit to another, it seemed, from Mr Helm’s evidence, that a secondment arrangement would be established for a long term transfer, and if permanent, a new contract.
[13] Pay roll and administrative services were provided to each of the subsidiary companies from the Respondent. Tendering for work was also driven by the Respondent.
[14] On 23 January 2018, the Fair Work Commission approved the Orontide Group Limited
Enterprise Agreement 2017 11(2017 Agreement). The nominal expiry date for the 2017 Agreement is 22 January 2022.
[15] The 2017 Agreement covers and applies to the Respondent, the Applicant, and the Respondent’s employees who are engaged in several classifications, which in lay terms readily lend themselves to being understood as trade and manufacturing roles. The underpinning modern awards are said to be the Mining Industry Award 2020, 12 the Hydrocarbons Industry (Upstream) Award 202013 and the Manufacturing and Associated Industries and Occupations Award 2020.14
[16] On or around 17 June 2021, the Respondent issued a Notice of Representational Rights, a proposed replacement agreement and an information document to employees who worked under the 2017 Agreement. 15 The Respondent and its employees commenced bargaining for a new enterprise agreement.16
[17] The Applicant is the bargaining representative for its members that work in the Port Hedland business unit. 17 It also has members in the Henderson business unit and the Industrial Services business unit.18
[18] On 6 July 2021, the Applicant presented a log of claims to Respondent, 19 and both attended a first bargaining meeting.20 That log of claims sought ‘site specific agreements’ with the scope to exclude offshore facilities including islands.21
[19] On 20 July 2021, the Applicant and the Respondent attended a second bargaining meeting. 22 In the minutes for that bargaining meeting the following was recorded by a Human Resources Advisor of the Respondent:
Business Unit | Request | Orontide’s Response | EBA Representative Response (Meeting 2) |
Simon (Port Hedland) | Site specific agreement – separate agreement for each business unit specifically Port Hedland | IFA’s and site specific assignment letters to manage differences for site based work | Claim still stands for separate agreement for PH and for 3 years. |
[20] On 27 July 2021, the Applicant wrote a letter to the Respondent. That letter outlined the Applicant’s observation and several issues. 23 The Applicant observed that the Respondent’s employees working in the north west of Western Australia were geographically distinct from the Applicant’s other employee groups, and from an operational perspective, they were managed from the north west and worked in a different industry to other groups within the Respondent.24 The following issues with the negotiations were also identified:
a) the north west employees could not attend bargaining meetings in person;
b) the north west employees had very different requirements than the employees in the south west and local Perth area – where the work included defence and manufacturing;
c) the negotiation was not efficient; and
d) the negotiation was perceived as not fair by employees. 25
[21] On 29 July 2021, the Respondent wrote a letter to the Applicant setting out that the scope of the of the Orontide Group Limited Enterprise Agreement 2021 was identical to that of its predecessor agreement, the Respondent operated as a single enterprise and that the Respondent did not wish to facilitate having a number of enterprise agreements within its business, and it disputed bargaining could only occur at face-to-face settings.
[22] On 3 August 2021, the Applicant and the Respondent attended a third bargaining meeting. The Applicant said that in its log of claims and at each bargaining meeting, the Applicant told the Respondent that it wanted the scope of the proposed enterprise agreement to be confined to employees who work in the Port Hedland business unit. 26
[23] Mr Rushworth gave evidence about the third bargaining. He expressed that he was taken aback in the meeting when an employee from the Bunbury business unit and an employee from the Henderson business unit indicated that they were happy with the proposed agreement. 27 Mr Rushworth’s astonishment appears to have arisen because, in his words, the Respondent ‘had flat out refused … most of the AMWU’s claim. I felt that we hadn’t got anywhere with the bargaining’.28
[24] Mr Rushworth said at the third meeting 90% of the meeting was dedicated to the non-bargaining representatives and when it came to him, he indicated to the Respondent that the parties were at an impasse on the scope issue and the wages issue. 29
[25] A failed ballot appeared to have occurred with ballot results being publicised on 26 August 2021. 30 Mr Rushworth gave evidence that the Respondent put the proposal out to vote despite not having reached any sort of consensus with the Applicant about the Applicant’s log of claims. This he said, increased the Applicant’s concerns that the bargaining was not proceeding fairly or efficiently, and that the Respondent’s behaviour indicated that it simply was not interested in trying to reach a consensus with the Applicant in the negotiations.31
[26] A fourth bargaining meeting was held on 7 September 2021, and on 13 September 2021, the Respondent held a fifth bargaining meeting where the Applicant was said to have attended. 32
[27] Ms Helm gave evidence that at the fifth meeting the Respondent proposed a number of new matters to its employees as part of the Respondent’s offer to employees for a new agreement. 33 It also advised its employees that the new and improved conditions in the new agreement would be passed on to employees from the first pay week after the agreement was voted up, rather than waiting for the agreement to commence operating in January 2022.34 Ms Helm said that the majority at the meeting indicated that they were in favour of the Respondent’s proposal and therefore at the conclusion of the meeting Ms Helm advised the group that they would put the proposed agreement to an employee vote on 22-23 September 2021.35
[28] Later in the day on 13 September 2021, Ms Helm said she received an email from the Applicant’s organiser, a Mr Gary Carozzi. 36 According to Ms Helm the email set out a number of claims that the Applicant wished to ‘lock in’ to the new agreement.37 The email read:
Hi Amy,
As per discussion today and also having discussions with both Julian and Brendon (bargaining reps), having a second agreement within the main agreement to lock in conditions to protect workers over the duration of a 3- agreement. The following points need to be locked in:
1. 2.5% pay increase on top of CPI of which CPI is paid every 6-months.
2. 6-month increment pay increase for site workers (March quarter / June Quarter.
3. 10% weekend workshop rate increase (flat rate) with when site workers work weekend in workshop they to receive the 10% on their flat rate.
4. 5% night shift loading for site workers.
5. 4 hrs paid for FIFO workers travelling to site (travel to accommodate the roster the employees are working).
6. Redundancy capped at 16 weeks.
7. LSL after 7 years entitlement for all employees taking leave.
8. Paid meal breaks (8-hrs) worked on weekends.
9. 5-weeks annual leave
10. Casual employees time served count towards LSL and redundancy.
Regards
Gary Caroz
State Organiser 38
[29] Ms Helm replied to Mr Carozzi’s email on 14 September 2021; parts of that email are extracted below:
Hi Gary,
Please see below responses to your queries:
1. 2.5% pay increase on top of CPI of which CPI is paid every 6-months- Following a market rate review Orontide have elected to pass on this one off increase our Port Hedland workshop rate, in addition to the CPI increases included in the Agreement.
2. 6-month increment pay increase for site workers (March quarter/June Quarter). This is the 6 monthly CPI review which is in the EBA, clause 9.3.
3. 10% weekend workshop rate increase (flat rate) with when site workers work weekend in workshop they to receive the 10% on their flat rate. This is in the proposed EBA, clause 1.5
4. 5% night shift loading for site workers. This will be included in each of the Port Hedland and Site Services Employees site specific contracts and will apply to all site work in the Pilbara.
5. 4 hrs paid for FIFO workers travelling to site (travel to accommodate the roster the employees are working). This will be included in each of the Port Hedland FIFO Site Services Employees site specific contracts. The clause will read as follows:
…
6. Redundancy capped at 16 weeks. This is in the proposed EBA, clause 29.3
7. LSL after 7 years entitlement for all employees taking leave. This is in the proposed EBA, clause 24
8. Paid meal breaks (8-hrs) worked on weekends. This is in the proposed EBA, clause 8.4
9. 5-weeks annual leave This is in the proposed EBA, clause 19.2
10. Casual employees time served count towards LSL and redundancy. This is in the proposed EBA, clause 6.11.
[30] Ms Helm said that she responded to Mr Carozzi’s email confirming that the proposed agreement would deal with the majority of his concerns. 39
[31] A rationale for the Applicant’s application was explained by Mr Rushworth, an abridged version of which is detailed for the purpose of this decision:
a) the Applicant was concerned that the negotiations with the Respondent were not proceeding fairly or efficiently;
b) in Mr Rushworth’s view, the environment, rosters and work sites in the north west were normally less attractive and worker-friendly than the conditions that exist below the 26th parallel – hence why workers in the northwest were usually paid more than their Perth counterparts;
c) Mr Rushworth said that the wages and conditions in the 2017 Agreement were not competitive when compared to what was normally offered to similar types of workers in the north west;
d) the Applicant’s members in Port Hedland wanted to continue to bargain with the Respondent for an enterprise agreement, however, there was an ongoing risk that the Respondent would continue to refuse all claims and continue to put draft agreements to the vote until the majority of employees working south of the 26th parallel voted something up; and
e) because the 2017 Agreement was still within its nominal expiry date, the Port Hedland workforce did not have access to protected industrial action and as there was no legal mechanism to place pressure on the Respondent this was unfair.
2 The Law
[32] The Order sought by the Applicant is in the nature of an interlocutory order preserving the status quo until its application for a scope order can be determined. The terms of the draft order are framed so that it operates until that application is determined. The Applicant has relied upon section 589(2) of the Act, which provides.
(2) The FWC may make an interim decision in relation to a matter before it.
[33] The Applicant’s substantive application, that is the application for scope orders, has been brought under s 238 of the Act. That section sets out that a bargaining representative may apply for scope orders. However, before the Commission can exercise discretion to grant such orders certain perquisites must be met and the Commission take into account various factors and be satisfied of factors such as those set out in s 238(4). Section 238 reads:
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.
[34] As to the operation of the scope order, s 239 of the Act addresses just that, detailing:
239 Operation of a scope order
A scope order in relation to a proposed single-enterprise agreement:
(a) comes into operation on the day on which it is made; and
(b) ceases to be in operation at the earliest of the following:
(i) if the order is revoked—the time specified in the instrument of revocation;
(ii) when the agreement is approved by the FWC;
(iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;
(iv) when the bargaining representatives for the agreement agree that bargaining has ceased.
[35] Part 2-4 of the Act includes certain ‘Objects’. Those ‘Objects’ are:
171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.
3 Submissions of the parties
[36] Having received written submissions of the parties, I observed that neither had referred to the decision of the Full Bench in Ms Virginia Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another (Virginia Wills). 40 In that decision, the Full Bench provided an exposition of the operation of s 589(2) of the Act. While Virginia Wills concerned an application made under s 789FC of the Act, I considered it sufficiently relevant that parties were notified of my expectation that they address the decision in their submissions. An adjournment was provided for consideration of the decision. Whilst the Applicant’s representative was familiar with the decision and ready to address it there and then, the Respondent’s representative was not and required further time.
[37] The Respondent had similarly approached the matter on the basis of responding to there being a serious question to be determined and the balance of convenience.
3.1 The Applicant’s submissions
[38] The Applicant presented its case premised upon there being a serious question to be tried, the balance of convenience and the approach that had been adopted by the Commissioner in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Plumbing Division, Queensland Divisional Branch; Australian Municipal, Administrative, Clerical and Services Union; Construction, Forestry, Mining and Energy Union v Northern SEQ Distributor - Retailer Authority T/A Unitywater (Northern SEQ). 41
[39] The Applicant submitted that the Fair Work Commission has broad powers under s 589(2) of the Act to make interim decisions in relation to matters before it. It may do so, said the Applicant, on application from a party to proceedings, or on its own initiative. 42
[40] Referring to Northern SEQ, 43 the Applicant observed that in that decision the Commissioner had issued interim orders under s 589(2) to stop a ballot in circumstances where there was a scope order application pending before the Commission. The approach adopted by the Commissioner was articulated in the following terms:
[58] The test to be applied in this matter is whether one or more of the Unions made a prima face case: did any of one of the Unions establish a sufficient likelihood of success to justify the preservation of the status quo, pending the hearing of the claims for scope and bargaining orders? 44
[41] In respect of the decision in Northern SEQ and Virginia Wills, the Applicant submitted that the decision in Virginia Wills concerned a stop bullying application and the orders sought focused on the reinstatement of an employee and cessation of any disciplinary process – that is to stop the termination of employment. The Applicant argued that the difficulty with that application was that there were jurisdictional pre-requisites to make out such that the applicant had to prove that there was bullying occurring and there was an ongoing risk. The exercise of the Commission’s power was dependent on those jurisdictional pre-requisites being met.
[42] The Applicant pressed that there was a difference between an application for a scope order as compared to an order to stop workplace bullying. While an application for a scope order included some jurisdictional pre-requisites, the bargaining representative’s state of mind was considered, including the reasons why it was appropriate for the proposed agreement to cover or not cover a particular group. The Applicant continued that it understood that the Respondent did not dispute that the Applicant had a concern that bargaining for the proposed agreement was not proceeding efficiently or fairly and that the Applicant had provided evidence of the same. If those pre-conditions were met, said the Applicant, then it had standing to make the application for a scope order.
[43] The Applicant noted that the application for a scope order did not have to be finally decided, but it did need to reach a level where it had a reasonable prospect of success. Referring to Northern SEQ, it observed that the test the Commission had to apply was whether the Applicant had a prima facie case – meaning - did it have a sufficiently likelihood of success. The Applicant noted that what could be taken from both the Virginia Wills case and Northern SEQ was that establishing a prima facie case and the balance of convenience were not the only factors - an applicant must show that there is sufficient likelihood of success.
[44] In respect of a serious issue to be tried, the Applicant submitted that it relied upon the evidence and submissions filed in relation to the Applicant’s scope application under s 238 of the Act. The Applicant expressed that on an interim assessment of the Applicant ’s filed materials, and without finally deciding the matter, the AMWU’s case had a reasonable prospect of success.
[45] As to the balance of convenience, the orders sought, said the AMWU, amounted to a minor convenience for the Respondent given the delay in making the replacement agreement. The only detriment to the Respondent was the delay.
[46] The Applicant observed that the 2017 Agreement applied to the Respondent and the relevant employees. It was an in-term agreement, not reaching its nominal expiry date until 22 January 2022. On that basis, there was no pressing urgency for the Respondent to make a replacement enterprise agreement with its employees.
[47] In summary, the Applicant pointed to the consequences if the interim orders were not granted, and the ballot proceeded as scheduled. It argued that the Applicant and its members in the Port Hedland business unit would suffer an irreversible detriment. It was the Applicant’s view that those members would lose significant bargaining rights arising under the Act, and in addition would be locked out of enterprise bargaining for at least four years.
3.2 The Respondent’s submissions
[48] The Respondent approached the matter on the basis that the granting of interim orders was dependent on there being a ‘serious question to be determined’ and that the balance of convenience was such that an interim order was warranted.
[49] In respect to there being a serious question to be determined, the Respondent disagreed with the Applicant’s assertion that it had complied with s 238(3)(a) of the Act. Turning to the evidence adduced by the Applicant to support its compliance with the section, namely the letter to the Respondent dated 27 July 2021, the Respondent argued that this did not constitute the requisite written notification as contemplated by s 238(3)(a). According to the Respondent it followed that there was no serious question to be determined as the Applicant did not currently have standing to bring an application for a scope order.
[50] In respect to the balance of convenience, the Respondent asserted that the balance favoured it in the current circumstances. In short, it made the following points:
a) the majority of its employees had indicated that they wished to make an agreement on the terms of that proposed;
b) those employees in favour of the proposed agreement included those within the Port Hedland business unit;
c) the Respondent was operating under certain commercial pressures (such as the need to win tenders by demonstrating it has an in-term agreement for the scope of work – hence certainty of costs and labour conditions for clients; it retains skilled employees and can similarly attract new employees who are skilled); and
d) the employees stand to obtain improved terms and conditions of employment as at the date of the proposed agreement.
[51] In response to the submission that the Respondent’s employees who were not engaged in the Port Hedland business unit could vote to make an agreement with the Respondent and in doing so bind the employees in the Port Hedland business unit against their wishes, the Respondent referred to the case of Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd and Others, 45 citing the following passage:
[17] Enterprise bargaining often involves scope or coverage within which there are identifiable groups who may represent a minority or sectional interest. There are often dissatisfied minorities, indeed some individuals, who have to reluctantly accept the outcome determined by a majority vote in support of an Enterprise Agreement. This circumstance can be described as the tyranny of workplace democracy. 46
4 Consideration
4.1 The relevant approach to determine the matter
[52] In Virginia Wills, 47 the Full Bench of this Commission comprehensively dealt with the applicable principles concerning applications for interim orders under s 589(2) of the Act.
[53] It considered whether s 598(2) of the Act empowers the Commission to grant interlocutory relief if satisfied that there is a serious issue to be tried and the balance of convenience favours the grant of the relief sought in the context of an application for orders to stop bullying. As part of that consideration the Full Bench traversed whether the Commission was not required to be satisfied as to the matters in s 789FF when an application had been made under s 598(2). 48
[54] The Full Bench rejected the Appellant’s contention that an interim anti-bullying order
may be issued based only on a prima facie case or a serious question to be determined, and after having considered the balance of convenience. 49 It reasoned that s 789FF allowed the Commission to make an anti-bullying order, including an interim order, only if it was ‘satisfied’ that a worker has been bullied at work and that there was a risk that the bullying would continue.50
[55] Having generally agreed with the reasoning of the Deputy President in Mayson v Mylan Health Pty Ltd, 51 the Full Bench expressed the following:
s.589(2) states that the Commission ‘may make an interim decision in relation to a matter before it.’ It is not an independent source of power to issue interim orders because absent a particular ‘matter before it’, the Commission has no power to do anything at all under s.589(2). To the extent that it might be contended that s.589(2) can be used in respect of any ‘dispute’ that might be referred to the Commission, s.595 makes clear that the Commission may deal with a dispute ‘only if (it) is expressly authorised to do so under or in accordance with another provision of this Act.’ Section 589(2) is not such a provision.
The ‘matter’ now before the Commission, for the purpose of s.589(2), is an application made under s.789FC. That application alleges that a worker has been bullied at work. It seeks an order under s.789FF to prevent a worker from being bullied by an individual or group. Any order made in relation to this application will be an order under s.789FF and the relevant requirements of that section must be satisfied.
Section 789FF confers jurisdiction on the Commission to make an anti-bullying order if, and only if, it is satisfied that a worker has been bullied at work, and that there is a risk that the worker will continue to be bullied at work. In order to be satisfied that a worker has been bullied at work, the Commission would first need to make factual findings about what has occurred and assess whether the behaviour of relevant persons may be characterised as falling within the definition of ‘bullied at work’ in s.789FD(1). This would require the Commission to make a finding that the impugned conduct was repeated and also unreasonable, that the conduct was towards a worker, and that it created a risk to health and safety.
Section 789FF deals directly and in general terms with the Commission’s powers to make orders in relation to applications made under s.789FC. The Commission may make ‘any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work.’ Even if s.589(2) did not exist, the Commission could make an interim (temporary) order under s.789FF. But it cannot issue any order at all unless the relevant preconditions are met.
A conclusion that an applicant for an anti-bullying order has established an arguable case or serious issue to be determined falls short of the state of satisfaction required by s.789FF. One cannot be satisfied on an arguable basis. One is either satisfied, or not satisfied, that a certain state of affairs exists.
Section 589(2), a general provision which must relate to a ‘matter before the Commission’, would then have the effect of disengaging express requirements of the substantive provision and source of power – that the Commission be satisfied of the relevant matters. The applicant’s argument reads s.789FF as requiring the Commission’s satisfaction of these matters, unless an application is made for interim anti-bullying orders. This is not a sensible or coherent interpretation of the relevant provisions.
The Commission, unlike a court, has no inherent jurisdiction. It can only do what the Act allows, and it must do what the Act requires.
There is nothing to prevent the Commission from issuing interim decisions in an anti-bullying matter, consequent upon having reached the required state of satisfaction as to the matters set out in s.789FF(1). For example, the Commission might be satisfied that a worker has been bullied at work and that there is a risk of continued bullying but require further submissions from the parties as to the final orders; an interim order might be made ‘in the interim’ on the material before the Commission at that time. But what the Commission cannot do is issue an order under s.789FF, without being satisfied that a worker has been subjected to bullying at work, and that there is a risk that the bullying will continue. To make an order in such circumstances would be beyond power.
The fact that an anti-bullying order under s.789FF can only be issued once the Commission reaches the requisite state of satisfaction about the relevant matters does not mean that the Commission cannot deal with anti-bullying matters quickly. The Commission may be able to conduct an expedited hearing, swiftly decide whether it is satisfied of the relevant matters in s.789FF and if so whether to issue an order. The Commission might decide to issue an interim (temporary) order, pending further deliberations on the appropriate framing of a final order, which might require further evidence. Or an expedited hearing might lead directly and quickly to the issuing of final orders. (Citations omitted).
[56] The application before me is made under s 238. However, I am of the view that the approach adopted by the Full Bench in Virginia Wills is apposite and therefore consider it correct to apply it to the matter before me now.
[57] Section 238(4) of the Act permits the Commission to issue a scope order if certain prerequisites are met and the Commission is satisfied in relation to others in s 238. At paragraph [33] of this decision the section is set out in full. The section deals directly with the Commission’s powers to make orders in relation to applications for scope orders.
[58] Once the scope order has been made, and only if it has been made, does the Commission have the power to amend any existing bargaining orders, make or vary such other orders, determinations or other instruments that have been made by the Commission, or take such other actions, as the Commission considers appropriate.
[59] Section 238(4) contemplates only the making of a scope order, it does not give rise to a power for the Commission to order, for example, an employer not to proceed with a ballot. Once that scope order is made then it may be the case that the applicant for the scope order seeks an interim decision under s 589(2) premised on the Commission’s powers as outlined in s 238.
[60] As observed in Virginia Wills, the Commission’s power to make an interim decision under s 589(2) of the Act is not an independent source of power to issue interim orders because absent a particular ‘matter before it’, the Commission has no power to do anything at all under s 589(2). The Full Bench continued that to the extent that it might be contended that s 589(2) can be used in respect of any ‘dispute’ that might be referred to the Commission, s 595 makes clear that the Commission may deal with a dispute ‘only if (it) is expressly authorised to do so under or in accordance with another provision of this Act.’ Section 589(2) is not such a provision.
[61] While an argument might be postulated that s 589(3)(a) operates such that the Commission may make a decision of its own initiative 52 and s 589 does not limit the Commission’s power to make decisions, s 589 does not operate to preclude other sections of the Act from limiting the Commission’s power.
[62] In Virginia Wills, the Appellant submitted that if its construction of s 589(2) was not accepted, the result was that the Commission had no effective capacity to grant interim relief in respect of anti-bullying matters in order to preserve the subject matter of the application before it, with the result that the purpose of Part 6-4B may readily be defeated (for example, by dismissing an employee) before the final hearing. The Full Bench did not agree with that submission observing that it proceeded on the apparent assumption that, at an interlocutory hearing in which an applicant for an anti-bullying order seeks an interim decision pursuant to s 589(2), it would not be possible for the Commission to reach the requisite state of satisfaction concerning the matters specified in s 789FF(1)(b)(i) and (ii).
[63] It was observed by the Respondent that the Applicant had engaged in an unacceptable delay in pursuing the proposed interim order in this matter when the Applicant had been aware of the Respondent’s intention to proceed to a vote on the proposed agreement since 13 September 2021, and that it was only after the Respondent drew issue with the Applicant’s right of entry conduct that the Applicant filed its application for an interim order late in the day on 17 September 2021.
[64] As was the case in Virginia Wills, there was nothing precluding the Commission reaching the requisite state of satisfaction concerning the matters in s 238 at the time of the hearing on 20 September 2021. By way of observation only it is noted that except for the Applicant’s submissions in reply, all materials had been filed in the matter for the substantive hearing under s 238. Further, as was observed in Virginia Wills, the Commission has the capacity to conduct final hearings in relation to applications on an expedited basis where required.
[65] It was open to the Applicant to have sought an expedited final hearing upon filing its application and, if it had done so, it would have been accommodated. As an aside, the Applicant may have contemplated making an application under s 240 of the Act for the Commission to deal with a bargaining dispute and where the preconditions in s 229(3) were met to apply for bargaining orders – appreciating of course that in this matter that one such precondition may not have been met. For the purposes of this decision, I broach not the recourse available in other jurisdictions, but observe that it appears to be accepted that this jurisdiction does not have an inherent or implied power to grant interlocutory relief in order to preserve the subject matter of the litigation.
[66] The Applicant sought to distinguish the case of Virginia Wills to the current matter on the basis that Virginia Wills addressed an application under s 789FC, which required two jurisdictional pre-requisites to be satisfied prior to issue orders under s 789FF. However, I am unpersuaded that this renders immaterial the exposition by the Full Bench in Virginia Wills. To reiterate, s 238 confers jurisdiction on the Commission to make a scope order if, and only if, it is satisfied of those matters in ss 238 (1)-(4). The scope order is required to specify the matters in s 238(5) and must be in accordance with s 238 as provided for in s 238(6). The Commission, unlike a court, has no inherent jurisdiction. It can only do what the Act allows, and it must do what the Act requires. 53
[67] The application before me, namely under s 589(2), was put on the basis that the Applicant only needed to establish a prima facie case, or that there was a serious issue to be determined, and that the balance of convenience favoured the grant of relief sought. Albeit I acknowledge that the Applicant expressed the view that this Commission should adopt the reasoning of the Commissioner in Northern SEQ and there for the relevant question was whether or not the application of the Applicant had a sufficient likelihood of success to justify the preservation of the status quo.
[68] I am satisfied that the application for interlocutory orders in the terms sought by the Applicant should be dismissed. I am of the view that the Commission cannot issue an order under s 589(2) in the terms sought. As observed by the Full Bench, s 589(2) is not an independent source of power to issue interim orders because absent a particular ‘matter before it’, the Commission has no power to do anything at all under s.589(2). A conclusion that an applicant for an order has established an arguable case or a serious issue to be determined falls short of the state of satisfaction that is required under s 238.
[69] However, for completeness, I have addressed the application under s 589(2) adopting the approach pressed by both Applicant and Respondent and in doing so have considered all evidence and submissions filed for both the applications under s 238 and s 598(2) as requested by the parties, in addition to the evidence and submissions provided during the course of the hearing on 20 September 2020.
4.2 Serious question to be determined or tried
[70] In the Health Services Union v Victorian Hospitals Industrial Association and Others, 54 the Full Bench of the Commission held that the test for making an interim order was the test set out by the High Court in Australian Broadcasting Corporation v O’Neill:
The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks. 55
[71] This test is often summarised as:
• there is a serious question to be tried; and
• the balance of convenience favours making the order.
4.3 Bargaining representatives may apply for scope orders – s 238(1)
[72] It appears uncontentious that the Applicant is a bargaining representative for the proposed agreement, and it held the concerns detailed in s 238(1)(a) of the Act.
[73] Further it is accepted that there is no single interest employer authorisation in operation in relation to the agreement. 56
4.4 Section 238(3) Notice requirements
[74] Subsection 238(3)(a) of the Act requires the Applicant to have provided written notice to the relevant bargaining representatives for the proposed agreement setting out its concerns. Those ‘concerns’ are referrable to s 238(1). Sub-section 238(3)(b) of the Act requires that a reasonable time within which the other bargaining representatives are able to respond to the identified concerns is provided. Sub-section 238(3)(c) of the Act provides that the Applicant must consider that the relevant bargaining representatives have not responded appropriately.
[75] The Respondent observes that the Applicant relies on its letter to the Respondent of 27 July 2021 as evidence of it having satisfied s 238(3)(a). The Respondent submits that the letter of 27 July 2021 does not state that the Applicant is concerned that bargaining is not proceeding efficiently or fairly because the proposed agreement will not cover appropriate employees or will cover employees that it is not appropriate for the proposed agreement to cover.
[76] The Respondent holds the view that the letter of 27 July 20201 stated that bargaining for the proposed agreement is not efficient, or ‘perceived as fair by the employees’, because the Respondent’s employees based in Port Hedland cannot attend bargaining meetings in person, and that a meaningful negotiation cannot be conducted ‘in just three meetings’, and therefore was insufficient to meet the requirements of s 283(3).
[77] Referring to the decision of the Deputy President in Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd (Coco-Cola Amatil), 57 the Respondent extracted the following in support of its position:
[33] Notwithstanding these submissions, I am unable to accept the LHMU position. The requirements in subsection 238(3) must be regarded as prerequisites for the making of an application for a scope order. A scope order is but one of a range of mechanisms available to Fair Work Australia to facilitate the bargaining process. It is a significant step in that it may form a foundation for other actions and has the real potential to impact on the negotiation process. In contrast to the prerequisites for the making of a bargaining order set out in section 229, which allow Fair Work Australia to consider a bargaining order application even if it does not comply with certain of the prerequisites established within that section, section 238 does not provide the capacity for Fair Work Australia to waive the requirement that these prerequisites be met. Unless the conditions precedent set out in subsection 238(3) are met, I do not consider that Fair Work Australia is able to exercise the discretion to grant a scope order.
[78] No issue is taken with the analysis of the Deputy President regarding the operation of s 238(3) and the observation that the subsection prescribes the prerequisites for the making of an application for a scope order.
[79] Section 238(3) sits within Part 2-4 the objects of which are set out at s 171. Section 171(a) provides that the objects of this Part are to provide a simple, flexible and fair framework that enables collective bargaining in god faith particularly at the enterprise level. The Applicant has clearly not adopted the precise wording found in s 238(1) Act and set it out in a written notice. However, it is evident in the letter of 27 July 2021 that the Applicant has expressed its concerns that the current negotiation is not efficient and is not perceived as being fair because the employees in the Pilbara are geographically distinct from the other employee groups, are operationally managed from the north west, work in a different industry to their counterparts, have very different requirements to employees based in the south west and Perth, and cannot attend bargaining in person.
[80] The contents of the letter of 27 July 2021 lend themselves to a finding that the Applicant’s concerns are premised on the view that the proposed agreement will cover employees that it is not appropriate to cover. It has not been necessary to read words into the letter of 27 July 2021 to reach that finding. All that has been necessary is not to read the quoted part of the letter, referred to the Respondent, in isolation from the rest of the letter’s contents. While the letter lacks the eloquence and logical flow that might otherwise be adopted by a learned writer, it does necessarily convey the Applicant’s concerns as relevant to s 238(3) of the Act.
[33] In light of when the letter was provided to the Respondent, and in the absence of further material to suggest that other employee representatives at the bargaining meetings were bargaining representatives, I am satisfied at this stage that there is an arguable case that the Applicant has given the written notification to the relevant party, has provided a reasonable time in which the Respondent could respond, and that the Respondent’s response has not been appropriate in the Applicant’s view.
4.5 Section 238(4)(a) Meeting good faith bargaining requirements
[81] Section 238(4)(a) of the Act requires the applicant for a scope order to have been bargaining in good faith. The Respondent accepts that the Applicant has met this requirement. The evidence and submissions before the Commission clearly demonstrates that at this point the Applicant has been bargaining in good faith.
4.6 Section 238(4)(b) Promotion of fair and efficient conduct of bargaining
[82] The Applicant submits that the making of the scope order as sought will promote the fair and efficient conduct of bargaining. The Respondent disputes such contention.
[83] As was stated in the Full Bench decision of United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board (UFU v MESFB): 58
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. 59
[84] The requirements of s 238(4)(b) of the Act were further considered by the Full Bench in BRB Modular Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, 60 where the Full Bench expressed that in its view the interpretation taken by the Full Bench in UFU v MESFB was consistent with the ordinary meaning of the language, considered in the context of the Act as a whole.61 Further, the Full Bench considered it consistent with the dictionary meaning of the term ‘promote’ as ‘to advance in rank, dignity, position etc’,62 and other decisions in relation to the section including the Full Bench decision in Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd,63 as well as single member decisions.
[85] It is therefore not necessary that the present bargaining be considered to be unfair or inefficient. However, the applicant for a scope order must demonstrate that the making of the order would promote, that is encourage and facilitate, bargaining that is fairer and more efficient than if no order was made. That assessment is to take into account the interests of all relevant parties who are subject to the bargaining process, not just those who are seeking the order, and involve the weighing up of the relevant considerations touching upon the issue. 64
[86] It is evident from Mr Rushworth’s evidence that at least some of the employees at the Port Hedland operations wish to continue bargaining with the Respondent notwithstanding the view adopted by some employees in Bunbury and Henderson. The Respondent submits that its members in Port Hedland are precluded from taking industrial action due to the 2017 Agreement and therefore the practical effect is that the Applicant’s members in the Port Hedland business unit have no legal means to put immediate industrial pressure on the Respondent to move from its bargaining position. The Applicant continued that the Respondent would likely refuse the claims made by the Port Hedland employees in bargaining and put proposed agreements to the vote of all business units to secure a yes vote from the Bunbury, Henderson, and Industrial Services business units to avoid conceding any claims made by the employees in the Port Hedland business unit.
[87] While the Applicant may hold these views, it does not necessarily follow that this in turn means that the making of a scope order will promote the fair and efficient conduct of bargaining. Having heard the evidence and submissions of both parties, what is clear at this stage, is that the bargaining conduct of both parties reflects no more than what would typically be expected to occur at enterprise bargaining negotiations. The Applicant has submitted a log of claims, meetings have been held, and discussions have taken place. This scenario is not in and of itself unusual.
[88] In its Form F31 application, the Applicant states that bargaining is not proceeding fairly because ‘the interests of smaller employee groups are drowned out by larger employee groups’. 65 While Mr Rushworth notably reiterated multiple times that the Respondent had not been responsive to the Applicant’s log of claims in respect of the Port Hedland members, it nevertheless remains that when Ms Helm received an email from Mr Carozzi, the Applicant’s concerns (not log of claims) were addressed regarding the new terms and conditions proffered to the employees. It is not open to conclude that the interests of the Port Hedland employees are excluded, and it would appear that due consideration is given to the interests of that same group. As to the necessity to participate in bargaining remotely via technological means, this argument holds little weight given efficiency of technological platforms to facilitate ‘virtual meetings’ – including bargaining meetings.
[89] In Mr Rushworth’s view, the environment, rosters and work sites in the north west were normally less attractive and worker-friendly than the conditions that exist below the 26th parallel – hence why workers in the northwest were usually paid more than their Perth counterparts. While Mr Rushworth may hold that view, it is just simply that, a view. There was no evidence adduced to substantiate the assertions made in this respect. Further, it must be remembered that a scope order may be made if, amongst other factors, the Commission considers the making of the order will promote the fair and efficient ‘conduct’ of bargaining. It is not apparent that the view expressed by Mr Rushworth goes to the ‘conduct’ of bargaining.
[90] Further, while the Respondent has put a proposed enterprise agreement to the ballot and may continue to do so, it is not conduct that is necessarily precluded by the Act. If, however, the conduct falls foul of the Respondent’s obligation to conduct itself in good faith, an applicant is free to pursue an order under s 229.
[91] 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. 66
[92] Despite the argument pressed by the Applicant, the evidence has not demonstrated at this point that there is a prima facie case that bargaining for two enterprise agreements as opposed to one with the coverage proposed, would promote the fair and efficient conduct of bargaining.
[93] For the Commission to make a scope order it must be satisfied as the factors listed in s 238(4) of the Act.
4.7 Section 238(4)(c) Fairly Chosen
[94] The Commission is required to be satisfied that the employees who will be covered in the scope order was fairly chosen.
[95] Where the scope order will not cover all employees of the employer, s 238(4A) of the Act states that in reaching a conclusion as to whether the employees are fairly chosen the Commission is required to take into account whether the group is geographically, operationally or organisationally distinct.
[96] In Cimeco Pty Ltd v CFMEU & Ors (Cimeco), 67 the concept of ‘fairly chosen’ was discussed by the Full Bench albeit under s 186(3) of the Act as follows:
[19]Given the context and the legislative history it can reasonably be assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen.
[97] Whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not however decisive. It is a matter to be given due weight, having regard to all other relevant considerations. 68
[98] The word ‘fairly’ suggests that the selection of the group was not arbitrary or discriminatory. 69 In Cimeco,the Full Bench gave examples, noting that selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, selection based on criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair. The Full Bench continued that it was also appropriate to have regard to the interests of the Respondent and the interests of employees in determining whether the group of employees was fairly chosen. In this regard, it is not only the interests of the employees covered by the agreement that are relevant; the interests of those employees who are excluded from the coverage of the agreement are also relevant.
[99] The Full Bench inQGC Pty Ltd v The Australian Workers’ Union 70 (QGC) adopted the reasoning of the Full Bench in Cimeco.
4.7.1 Geographical distinctiveness
[100] Geographical distinctiveness relates to the group of employees with respect to whom the scope order is sought. The Full Bench decision in QGC contemplates geographical distinctiveness in single locations or geographical subsets of a total business.
[101] In its Form F1 the Applicant stated that the industrial dispute that underpinned the Applicant’s application for a scope order was that the Applicant’s members who work in the Respondent’s Port Hedland business unit wished to bargain for an enterprise agreement that was limited in scope to the Respondent’s employees in the Port Hedland business unit that work in an operational or supervisory classification. Similarly, in its submissions this scope was replicated.
[102] However, attached to the Witness Statement of Ms Helm dated 14 September 2021 was a list of employees who had nominated the Applicant to act on their behalf as a bargaining representative (Annexure A). I have no reason to believe that Annexure A is not a genuine reflection of the employee’s support for an agreement with a particular scope. At the top of Annexure A was the following preamble that detailed that scope:
We, the undersigned employees of Orontide, currently work under the Orontide Enterprise Agreement 2017 with an expiry date 22 January 2022, want to have a standalone Agreement which has coverage within the 26th parallel and covers the workshop facility and those employees performing site work for all locations that Orontide may request their employees to do.
[103] By all indications, employees of the Respondent that perform site work are not limited to those situated or based out of Port Hedland. Ms Helm gave evidence that the Respondent utilised employees from its other business units to similarly undertake client based site work – the example given was when a client undertook a ‘shut’. There was no evidence advanced to challenge this proposition.
[104] The Respondent submitted that the north west employees had indicated a preferred scope of agreement was one that applied to them in all locations where they may be required to work and as such those employees were not seeking an agreement that was geographically distinct from the proposed agreement but one that was industrially distinct.
[105] However, the consideration for the Commission is whether the group of employees is geographically distinct – as was correctly identified by the Respondent in another part of its submissions.
[106] The evidence before the Commission to date has not demonstrated a prima facie case that as a group the employees sought to be covered by the scope application exhibit any geographical distinctiveness in single locations or geographical subsets of the Respondent’s business. Given the extension of the scope to those employees working on the Respondent’s clients sites and observing that employees from other locations such as Henderson, Perth and Bunbury may also undertake such work at client sites in all locations, I do not consider at this stage that the group is geographically distinct.
4.7.2 Organisational distinctiveness
[107] The word ‘organisation’ is said to refer to the manner in which the employer had organised its enterprise in order to conduct those operations. 71 In this respect, the Full Bench in Cimeco noted that the performance of different roles, tasks or functions to that performed by others, was not of itself a sufficient basis upon which a finding of operational or organisational distinctiveness could be made in that particular case.72
[108] In Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers’ Union of Australia; Australian Municipal, Administrative, Clerical and Services Union, 73 the Full Bench set out a number of propositions relevant to interpreting the phrase ‘organisationally distinct’ in s 186(3A). It considered the following relevant:
a) the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations; 74
b) 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; 75
c) 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; 76 and
d) most businesses have organisation structures which will allow organisationally distinct groups to be identified. 77
[109] The Full Bench in Australian Worker’s Union v Job Connect Recruitment Pty Ltd t/a Job Connect 78 reaffirmed the above when stating:
… the term “organisation” refers to the manner in which the employer has organised its business in order to conduct its business, that most businesses have organisational structures which allow organisationally distinct groups to be identified, and that the performance by a group of employees of duties which are qualitatively distinct may be a marker that the group is organisationally distinct. Organisational distinctiveness will weigh in favour of, but not be conclusive as to, whether the group of employees covered by an agreement is fairly chosen. 79
[110] Having considered the submissions of the Respondent and the evidence of Ms Helm, I consider that there is a prima facie case that the group of employees is organisationally distinct. The group of employees is employed by one employing entity. If an employee from Orontide Robil Pty Ltd is assigned to work for another entity during the course of employment, and the engagement is long term, a secondment agreement is entered into or alternatively employment is offered with that employing entity. While payroll, administration, marketing and commercial negotiations in a tendering process may negate the finding of organisational distinctiveness, at this stage there is sufficient evidence before me to find there is an arguable case.
Operational distinctiveness
[111] As to the concept of operational ‘distinctiveness’, the Full Bench considered the term denoted an industrial or productive activity. 80 In QGC, the activity in question was said to be the operation and maintenance of gas extraction and processing infrastructure in a particular location.
[112] The evidence and submissions are insufficient to give rise to a prima face of operational distinctiveness.
4.7.3 Section 238(4)(d) Reasonable in all the circumstances
[113] In addition to the above the Commission is required to be satisfied that it is reasonable in all the circumstances to make the order sought. I accept that the scope of the proposed agreement reflects the group of employees that the Applicant believes will be better able to achieve the outcomes it seeks for this group of employees. At the same time, I do not accept that at this stage there is a prima face case that the interests of those employees in the Port Hedland business unit are being disregarded by the Respondent in the negotiations.
4.8 Balance of convenience
[114] Briefly stated, the Applicant argues that any inconvenience arising out of cancellation of the ballot is a minor inconvenience with the only detriment being ‘delay’. It continues, advancing that if the interim orders are not granted and the ballot proceeds as scheduled and succeeds, the detriment to the Applicant and its member in the Port Hedland business unit will be irreversible. Bargaining rights which will be forgone should the vote proceed and will be locked out of enterprise bargaining for another four years.
[115] The Respondent argues that the majority of its workers have indicated that they wish to make an agreement in the terms of the proposed agreement, the Respondent is operating under certain commercial pressures and that employees who will be covered by the proposed agreement stand to obtain improved terms and conditions as at the date the proposed agreement is approved notwithstanding the operation of the 2017 Agreement.
[116] In my view the Applicant’s argument is not implausible. While a delay to the ballot is unfortunate it is not final. Should the ballot proceed and be successful, it is fatal to the application under s 238. However, the Applicant was aware that Respondent sought to put the proposed agreement to the vote as early as the fifth bargaining meeting. It did not make the application under s 589(2) until some days later. On the Applicant’s own evidence it knew a ballot was imminent and was aware of the dates.
[117] Further, at this point and for the reasons given, I am not satisfied that there is a prima facie case that the issuing of a scope order would promote the fair and efficient conduct of bargaining. By way of observation only, no evidence suggests the exclusion of minority groups albeit Mr Rushworth considers that inadequate time is allocated to the Applicant in bargaining meetings.
[118] On balance, and taking into consideration all of the aforementioned circumstances, I am not satisfied that the balance of convenience favours the Applicant and based upon all the evidence before me, I was not content to conclude that there was a serious question to be determined.
DEPUTY PRESIDENT
Appearances:
Mr Cory Fogliani, for the Applicant;
Mr Ben O’Brian, for the Respondent.
Hearing details:
Perth (video);
September 20;
2021.
Printed by authority of the Commonwealth Government Printer
<PR734285>
1 PR734157.
2 Witness Statement of Simon Rushworth (Rushworth Statement) [4].
3 Agreed Statement of Facts (ASOF) [6] to [9]; Rushworth Statement [4].
4 ASOF [5].
5 Ibid.
6 ASOF [6].
7 ASOF [7].
8 ASOF [8].
9 ASOF [9].
10 ASOF [4].
11 [2018] FWCA 473.
12 MA000011.
13 MA000062.
14 MA000010.
15 ASOF [10].
16 Ibid.
17 ASOF [11].
18 Ibid.
19 ASOF [12].
20 ASOF [13].
21 ASOF Annexure AD-2.
22 ASOF [14].
23 ASOF Annexure AD-5.
24 Ibid.
25 Ibid.
26 ASOF [18].
27 Witness Statement of Simon Rushworth (Rushworth Statement) [26].
28 Ibid.
29 Rushworth Statement [27].
30 Rushworth Statement [33].
31 Rushworth Statement [32].
32 Witness Statement of Amy Helm dated 20 September 2021 (Second Statement Helm) [4].
33 Second Statement Helm [6].
34 Second Statement Helm [7].
35 Second Statement Helm [9].
36 Ibid.
37 Second Statement Helm [10].
38 Second Statement Helm Annexure B.
39 Second Statement Helm [10].
40 [2020] FWCFB 4514.
41 [2016] FWC 5218.
42 Fair Work Act 2009 (Cth) s 589(3).
43 [2016] FWC 5218 (‘Northern SEQ’).
44 Northern SEQ [58].
45 [2015] FWC 5127.
46 Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd and Others[2015] FWC 5127 [17].
47 [2020] FWCFB 4514.
48 Ms Virginia Wills [32].
49 Virginia Wills [33].
50 Ibid.
51 [2020] FWC 1404.
52 Fair Work Act 2009 (Cth) s 589(3)
53 Virginia Wills [34].
54 (2012) 221 IR 1.
55 [2006] HCA 46.
56 Fair Work Act 2009 (Cth) s 238(2).
57 [2009] FWA 320.
58 [2010] FWAFB 3009 (‘UFU v MESFB’).
59 UFU v MESFB [55].
60 [2015] FWCFB 1440.
61 [2015] FWCFB 1440 [12], [14].
62 Ibid [9].
63 [2014] FWCFB 1476 [22]-[28].
64 The Association of Professional Engineers, Scientists and Managers, Australia v Australian Red Cross Blood Service and others [2011] FWA 2914.
65 Applicant’s Form F3, section 2.1.1 [8].
66 [2010] FWAFB 3009 [55].
67 [2012] FWAFB 2206 (‘Cimeco’).
68 Cimeco [20].
69 Cimeco [221].
70 [2017] FWCFB 1165 (‘QGC’).
71 Ibid.
72 Ibid.
73 [2017] FWCFB 5826(‘Aerocare’)[24].
74 Ibid [27]; QGC [44].
75 Ibid [27]; United Firefighters’ Union v Metropolitan Fire & Emergency Services Board[2010] FWAFB 3009, 193 IR 293, [60].
76 Aerocare [27]; QGC [44] - [45].
77 Aerocare [27]; Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd[2014] FWCFB 1476, 242 IR 238, [15]; see also National Union of Workers v Cotton On Group Services Pty Ltd [2014] FWC 6601, [15]-[16] (permission to appeal refused in [2014] FWCFB 8899) and ASU v Shine Lawyers Pty Ltd[2017] FWC 4158, [68]-[71] as examples of where the employer’s organisational structure was used to determine organisational distinctiveness.
78 [2019] FWCFB 5132.
79 [2019] FWCFB 5132 [21].
80 QGC [44].
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