[2021] FWC 5921

FAIR WORK COMMISSION

REASONS FOR 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
Thiess Pty Ltd T/A Thiess
(B2021/141)

DEPUTY PRESIDENT ASBURY

BRISBANE, 4 NOVEMBER 2021

Application for a scope order – s. 238 considerations – Scope order seeks separate agreement for employees in maintenance classifications – Commission not satisfied that making the order will promote fair and efficient conduct of bargaining – Application refused

Overview

[1] This Decision concerns an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for a scope order under s.238 of the Fair Work Act 2009 (the Act) with respect to bargaining for an enterprise agreement (proposed agreement) with Thiess Pty Ltd (Thiess/the Respondent). The proposed agreement is to replace the Thiess Curragh Mine Enterprise Agreement 2017 (the 2017 Agreement). The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) are also bargaining representatives for the proposed agreement and have been involved in bargaining.

[2] The 2017 Agreement covers production and maintenance employees engaged by Thiess at its Curragh Mine Project and nominally expired on 31 May 2020. Bargaining has proceeded on the basis that the proposed agreement will cover employees of Thiess at the Curragh mine engaged in production and maintenance work in the classifications in the proposed agreement, which essentially mirror those of the 2017 Agreement and its predecessors. 1

[3] The AMWU applies for an order altering the scope of the proposed agreement so that it excludes employees in maintenance classifications and seeks a separate agreement for those employees. The AMWU asserts that bargaining for the proposed agreement is not proceeding efficiently or fairly because it has focused on the claims of production employees, who constitute a majority of employees to be covered by the proposed agreement, at the expense of the advancement of the claims of maintenance employees. The AMWU also asserts that the maintenance employees at the Curragh Mine operate as part of a “distinct separate entity” and are organisationally and operationally distinct from production employees. Further, the AMWU asserts that it has met the good faith bargaining requirements in s. 228 of the FW Act. The CEPU supports the application. The AMWU’s application is opposed by Thiess and the CFMMEU with both seeking that the proposed agreement maintain the coverage of the 2017 Agreement with respect to both production and maintenance employees.

[4] It is not in dispute that the AMWU is a bargaining representative for the proposed agreement. Thiess also does not dispute that the AMWU has complied with the steps required of an applicant for a scope order in s. 238(3) of the FW Act. It is not asserted by Thiess that the AMWU has failed to comply with the good faith bargaining requirements although there is a suggestion that the AMWU’s representative in the negotiations has attempted to engineer a situation to support the making of a scope application, by not progressing maintenance specific claims. Further, Thiess makes no submission as to whether the group of employees proposed by the AMWU is fairly chosen.

[5] Thiess opposes the AMWU application on the basis of asserting that the Commission could not be satisfied on the basis of the evidence that making the order sought by the AMWU will promote the fair and efficient conduct of bargaining and nor could the Commission be satisfied that it is reasonable in all the circumstances to make the order. The CFMMEU opposes the AMWU application on essentially the same grounds as Thiess and in addition contends that the group of employees proposed by the AMWU is not fairly chosen

[6] A two day hearing was conducted in Yeppoon and oral submissions were heard on a third hearing day in Brisbane. The AMWU was represented by Mr T Bunnag, Industrial Advocate. Evidence in support of the application was given by:

• Mr Glenn Sam, State Organiser for the AMWU 2; and

• Mr Craig Thomas, Organiser for the CEPU. 3

[7] The AMWU also filed a witness statement from an employee of Thiess which was later withdrawn on the basis that the employee did not wish to attend the hearing. I have not had regard to that statement. The CEPU while supportive of the AMWU’s application, did not make submissions or lead evidence and did not attend the hearing.

[8] Permission was granted for Thiess to be represented by Mr A Herbert of Counsel, instructed by McCullough Robertson Lawyers. Evidence for Thiess was given by:

• Mr Adrian Francis McCowan, Employment Relations/ Employee Bargaining Representative Lead 4; and

• Ms Liesl Nell, People and Capability Manager. 5

[9] The CFMMEU was represented by Mr C Newman, Senior Legal Officer. Evidence for the CFMMEU was given by:

• Mr Jeffrey Scales, Vice President of the Queensland District of the CFMMEU (Mining and Energy Division) 6; and

• Mr David Paterson, Operator at Curragh North mine 7.

[10] After considering the evidence and submissions I determined to refuse the scope order and to dismiss the application on the basis that I am not satisfied that the making of the order will promote the fair and efficient conduct of bargaining. I am also not satisfied that it is reasonable in all the circumstances to make the order. My reasons for these conclusions and for dismissing the application are set out below.

Legislation and the approach to deciding whether to make a scope order

[11] I first consider the legislative provisions and the approach to considering whether to make a scope order. The provisions of the Act setting out the powers of the Commission to make a scope order are set out in s. 238 of the Act as follows:

“238 Scope orders

Bargaining representatives may apply for scope orders

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

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

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

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

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

Bargaining representative to give notice of concerns

(3) The bargaining representative may only apply for the scope order if the bargaining representative:

(a) has taken all reasonable steps to give a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and

(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

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.”

[12] It is apparent, and sometimes misunderstood, that s.238 is directed to the fair and efficient conduct of bargaining and not a generalised power in the Commission to determine the scope of proposed agreements. Fairness and reasonableness are relevant in the exercise of the discretion under s.238 of the Act but the purpose of a scope order is to promote the fair and efficient conduct of bargaining.⁸ The precondition to the exercise of the discretion requires that the Commission is satisfied that the making of the order will promote the fair and efficient conduct of bargaining.⁹ It is not necessary that a finding be made that the bargaining is inefficient or unfair, but the Commission should be satisfied that if a scope order is made the bargaining will at least be fairer or more efficient or both than it would be if no order was made.¹⁰

[13] The potential power imbalance between a minority and a majority group of employees may be relevant but is not determinative and may be affected by considerations such as the group’s special interests and potential disadvantage, the impact on the interests of other bargaining parties, the history of the conduct in bargaining and the stage of bargaining.¹¹ The efficiency of bargaining may be impacted by the duplication created in bargaining for two agreements when compared with a single agreement¹² and there is no statutory bias in favour of an enterprise agreement that covers as much of the employer’s enterprise as possible.¹³

[14] The views of employees are a significant factor when considering reasonableness and carry greater significance than the subjective views of the employer although an alternate conclusion may be appropriate in particular circumstances.¹⁴

[15] The Commission must be satisfied that the group of employees specified in the proposed scope order was fairly chosen. In this regard, s. 238(4)(c) must be read in conjunction with s.238(4A), which is similarly worded to ss.186(3) and (3A), in relation to the approval of enterprise agreements. The Explanatory Memorandum to the Fair Work Bill 2009 states in relation to the question of whether a group of employees is “fairly chosen” for the purposes of considering whether an enterprise agreement should be approved that:

“It is intended that in assessing whether a group of employees is fairly chosen, FWC might have regard to matters such as:

• the way in which an employer has chosen to organise its enterprise; and

• whether it is reasonable for the excluded employees to be covered by the agreement having regard to the nature of the work they perform and the organisational and operational relationship between them and the employees who will be covered by the Agreement.”¹⁵

[16] In relation to these provisions a Full Bench of the Commission held in Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd¹⁶that the Commission is not required to make a positive finding or express satisfaction that a group is geographically, organisationally or operationally distinct, but rather, take this into account.

[17] The case law dealing with the approach to considering an application for a scope order was comprehensively summarised by Deputy President Sams in "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union; Australian Workers' Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited t/a Qantas as follows:

“[165] Perhaps a useful starting point is the general approach framed by the Full Bench in BRB Modular v AMWU in the following passage found at paras 53-54:

[53] The scope of an agreement is an open question in many enterprise bargaining exercises. It is frequently a topic of competing claims, discussion and negotiation. Rarely will it be possible to say that one scope proposal is wrong and another correct. There may be justifications for a preference one way or another. Hence it is usually the case that the scope is left to the bargaining parties to determine in the context of the overall enterprise bargaining framework. The reasonableness of making a scope order should be considered against that background.

[54] As we have said above, a consideration of reasonableness requires a full consideration of all of the circumstances and a level of satisfaction that the order requiring the parties to adopt a particular scope of an enterprise agreement in their ongoing bargaining is objectively justified. We are not satisfied that the applicant has established that it is reasonable in all the circumstances to make the scope order. We are satisfied that bargaining can continue and it remains open to the parties to continue to consider the scope of the agreement in the overall context.

[166] A number of other general principles have been developed in the body of jurisprudence dealing with scope order applications. These include the following:

1. By the inclusion of the word ‘may’ in the heading to s 238(4) of the Act, the Commission is to exercise its discretionary powers after determining whether all of the criteria in ss (a)-(d) are satisfied. As all of the criteria must be satisfied (by use of the disjunctive word ‘and’ separating each criterion), it must follow that if one of the criterion is not met, then a scope order cannot be made. The converse is true; that is, if all of the ss (4) criteria are met, the Commission may make a scope order.

2. The scope of a proposed enterprise agreement is a matter that can itself be the subject of bargaining by the parties for their agreement. …

3. Consideration of the views of employees may be taken into account. However, this does not mean that such views are given any greater weight than the other factors to be considered by the Commission under the other subsections. In UFU v MFESB, the Full Bench of Fair Work Australia said at para 53:

[53] As recorded above, it was submitted by the UFUA and the ACTU that particular weight should be given to the views of employees because of, for example, legislative policy imperatives concerning freedom of association. While we generally agree with that submission it requires some qualification. The power to make a scope order is predicated on disagreement between bargaining representatives. The discretion to resolve that disagreement is to be exercised as provided for in ss.238(4) and (4A). While those provisions do not assign priority to the views of employees, in applying the provisions it is necessary to have regard to the overall context. 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 ss.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. (My emphasis)

Evidence

[19] The evidence of Mr Sam for the AMWU relevant to the matters in dispute can be summarised as follows. There are approximately 380 to 400 employees employed by Thiess who work on site under the Agreement. These employees can be grouped into two sub-categories – production and maintenance. There are approximately 300 production employees and 80 to 90 maintenance employees at Curragh. Production employees operate plant and machinery such as haulage trucks, whereas maintenance employees maintain the plant and machinery. Maintenance employees include Trades Assistants, Servicepersons, and qualified Tradespersons such as Fitters, Mechanics and Electricians. Production employees operate earth moving equipment or plant.

[20] In Mr Sam’s experience, maintenance and production employees are largely operationally distinct working groups as they do not work together as an integrated team. At Thiess Curragh maintenance and production employees have separate crib rooms, camp accommodation, transport to and from site, safety/pre-start meetings, and break times. Thiess’
maintenance and production sections also have separate internal organisational and financial arrangements. The separation between production and maintenance employees is further illustrated by the way that Thiess sought employee feedback from production and maintenance employees at different times and in different locations, before bargaining commenced.

[21] On 3 December 2019 Thiess gave notice that it wished to initiate bargaining for a replacement agreement and the first bargaining meeting was set for 29 January 2020. Thiess sought to delay the first bargaining meeting following a fatal workplace accident on 12 January 2021 and the delay was agreed to by bargaining representatives. Negotiations were proposed to continue in March 2020, which were then delayed due to the onset of the COVID-19 pandemic. Further dates for bargaining were proposed by Thiess in April 2020 with the first meeting to be held in May 2020. This was delayed again with the first meeting taking place on 24 June 2021.

[22] Mr Sam’s evidence is that prior to the commencement of the first bargaining meeting, AMWU representatives had a discussion with the other bargaining representatives and proposed a separate agreement for maintenance employees. The AMWU also tabled a proposal with Thiess for a separate maintenance agreement, based on an eighteen-month agreement duration with small amendments to the expired agreement clauses to reflect that the new separate agreement would be a maintenance specific agreement. The proposal was effectively a roll-over of the expired agreement with a nominal increase on the certification and termination.

[23] During the first bargaining meeting on 24 June 2020, the CFMMEU provided Thiess with a Log of Claims, however the CEPU and AMWU did not provide a log of claims, given their position in relation to having a separate agreement for maintenance employees. Mr McCowan provided a response on behalf of Thiess rejecting the claim for a separate maintenance agreement on the basis that having separate agreements for production and maintenance employees did not support a cohesive workplace and that Thiess did not want to create an artificial barrier between the maintenance and operations departments.

[24] The AMWU reiterated its desire for a separate maintenance agreement at the second bargaining meeting held on 15 July 2020. In response, Thiess re-asserted its desire to see the maintenance Log of Claims and the meeting proceeded on the basis that the parties would discuss maintenance specific items as they arose. On 29 July 2020, the third bargaining meeting was held. Mr Sam noted a distinct change in approach by Thiess, which included Thiess withdrawing the commitment it had made to provide minutes after each bargaining meeting. Ms Nell subsequently advised parties by email that it was the responsibility of each bargaining representative to take their own robust notes.

[25] Mr Sam stated that from this point on in the bargaining process, Thiess would at times make unilateral changes to the proposed agreement/log of claims without the agreement of the negotiating parties. Thiess would provide a copy of the proposed document as a PDF one day before a bargaining meeting for ‘review’ and that this made it difficult for any substantive review to be undertaken. Some matters that were not agreed between the parties during bargaining meetings were taken as agreed by Thiess and inserted into the document without consultation and this approach significantly slowed the bargaining process. Between 26 and 28 March 2021, Thiess put a proposed agreement to a ballot of employees and it was voted down by eligible employees, with 5% voting in favour of the proposed agreement and 95% voting against it.

[26] Mr Sam stated that throughout the bargaining process, there has been a disproportionate focus on the claims of production employees at the expense of the claims of maintenance employees. Mr Sams provided examples of this said to have occurred at bargaining meetings on 7 October 2020, 28 October 2020 and 25 November 2020. At the Meeting on 7 October 2020 maintenance bargaining representativesattempted to bargain with Thiess representatives regarding increasedallowances, specifically the coordinator allowance, trainer and assessorallowance, tool allowance (which was slightly increased in the offer) and atrades special allowance. According to Mr Sam, a significant amount of time was spent discussing an increase in the “dispatch allowance” and trainer and assessor allowance. The dispatch allowance increase was a particular claim by production employees and the trainer and assessor allowance was relevant to both production and maintenance employees. The claim relating to a special tradesperson allowance was rejected by Thiess and the attempts to improve the coordinator allowance were unfruitful, as very little time was spent discussing these allowances.

[27] There were other claims put forward at this meeting for discussion, including an increase in superannuation contributions and improved personal leave provisions. The discussion around personal leave entitlements devolved into a discussion regarding site performance records for leave and the quality of the amenities at the Thiess Curragh camps, none of which related to the enterprise agreement negotiations.

[28] At the Meeting on 28 October 2020, Mr McCowan indicated that from Thiess’ perspective, there were only a few outstanding items to be run through and Thiess did not want to debate their responses with bargaining representatives. Thiess representatives tabled an offer for discussion, that included increases to tool allowance and a rejection of the wet weather payment claimed by maintenance employees. Thiess representatives left the room to allow the Union and employee bargaining representatives to consider the proposal and indicated that when they returned, they expected that Union and employee bargaining representatives to provide an indication of expectations around wages. When the Thiess representatives re-entered the room, several bargaining representatives raised the issue that Thiess had made changes to the proposed enterprise agreement without discussion or consultation, which changed the intent of some clauses. Mr Sam said some of these clauses remained changed until the vote on the agreement and this was because there had been limited opportunity during bargaining meetings to discuss these changes in a transparent way.

[29] The meeting then moved forward to a discussion around wages. According to Mr Sam the CFMMEU put forward a wages proposal which included a percentage increase of 5% each year of the Agreement and a variety of increased allowance rates, whereas the AMWU proposed a wage increase of 5% in the first year, followed by 3% each year after. Thiess representatives indicated that they would come back with a final position for the bargaining representatives to consider at the next meeting.

[30] At the last bargaining meeting on 25 November 2020, Thiess representatives asked for feedback on the proposal relating to an improved pay offer. Mr Sam said that throughout the course of the three-hour bargaining meeting, approximately 17 minutes were devoted to discussing maintenance related claims, while only six minutes were devoted to maintenance employee specific claims. The first maintenance claim (a revised trainer and assessor allowance) was discussed for about one minute before the discussion returned to a claim for the “grandfathering” of certain rates for production employees. The maintenance specific claim relating to the trainer and assessor allowance was discussed for approximately three minutes, before the meeting began discussing production specific issues relating to incorrect pays, the timing of breaks (neither of which effect maintenance) and the grandfathering issue.

[31] At around 9.35am, maintenance bargaining representatives interjected and raised concerns around the proposed maintenance classification levels including the reference in the proposed agreement to “advanced trades person” and the lack of definition or clarity as to who would be able to be classified as such. Maintenance bargaining representatives reiterated their desire to have a separate maintenance agreement to address these matters and at 9.37am, the discussion around this maintenance specific issue was closed without resolution and transitioned into a conversation around voting methods and the lack of phone service at camp. At around 9.43am, production bargaining representatives commenced a discussion about payment for dispatch workers, a production employee specific claim. This discussion ran for the rest of the meeting which was then closed just after 10.00am. Thiess representatives indicated that there was no value in holding a further bargaining meeting.

[32] On 26 November 2020, the AMWU gave written notice to other bargaining representatives, directed to Mr McCowan, Mr Thomas and Mr Scales, outlining its concerns that the bargaining process for the proposed agreement was not proceeding efficiently or fairly, because the AMWU considered that the proposed agreement will cover all Thiess Curragh Mine employees whereas production and maintenance employees are operationally distinct. The notice stated that the AMWU had been instructed by members who work as maintenance employees that bargaining had been predominantly focused on claims by production workers and that this had had a detrimental and significant impact on bargaining for the proposed agreement. It was also asserted in the notice that the claims of maintenance employees are distinct from those of production employees and that maintenance employees had been unable to have their claims progressed or have the unique nature of their work considered by Thiess. Examples of a claim for wet weather allowance and improved pay scales to reflect trade qualifications were given. The notice concluded by stating that in accordance with s. 238(3) of the Act, the AMWU sought to meet with bargaining representatives on an urgent basis to resolve its members concerns. 17 Mr Sam said no substantive response was received from Mr McCowan and a follow up email was sent to Mr McCowan on 4 December 2020. When no response was received, the AMWU filed its scope application.

[33] According to Mr Sam the disproportionate focus of the bargaining on the claims of production employees means that maintenance employees have been unable to progress their log of claims or otherwise have their claims, concerns and the unique nature of their work taken into genuine consideration by Thiess as part of the bargaining process. There are two items which demonstrate this - separate maintenance classifications and a modified wet weather allowance for maintenance employees. In relation to the classification claim, maintenance bargaining representatives have sought the inclusion of a pay table and classifications within the proposed agreement to recognise the skills of maintenance workers as distinct from operators. This request has been largely ignored by Thiess.

[34] Instead, Thiess has arbitrarily and inappropriately classified certain trades within the existing classifications table. For example, Thiess listed mechanics and fitter turners in separate levels, despite objections from maintenance bargaining representatives that a fitter-machinist with ten years’ experience in mining is equally as qualified as a diesel fitter and should be paid accordingly. The classification table remains segregated in the final draft of the proposed enterprise agreement.

[35] Moreover, Mr Sam asserts that the claims of maintenance bargaining representatives for adjusted pay levels for trade skilled employees compared to production employees have been largely ignored throughout the bargaining process and there have been difficulties for maintenance representatives getting any discussion time on this issue during the bargaining process because of the inordinate amount of time allotted to dealing with the claims of production employees.

[36] The wet weather claim advanced by maintenance bargaining representatives seeks the inclusion of a specific wet weather allowance clause for maintenance employees in the new agreement. The rationale behind this claim is that when it rains on site, production stops at a certain point where the roads become too dangerous. Production employees are directed to park up their equipment and retire to the crib huts or return to camp (getting paid under the wet weather clause). In contrast, maintenance employees are required to continue working on plant and equipment that is wet, muddy and unpleasant. In addition, maintenance employees are usually placed under more pressure due to the sudden influx of work on plant and equipment.

[37] In response to this claim, Thiess indicated that it was happy with the current wet weather clause in the expired agreement and would not be changing it. Mr Sam asserts that this claim has not been able to be meaningfully progressed due to the difficulties in getting any discussion time on this issue during the bargaining process because of the significant time allotted to dealing with the claims of production employees.

[38] From Mr Sam’s perspective, the key issue that has resulted in the bargaining process being flawed is that the proposed agreement will cover all Thiess Curragh Mine employees. There have been a significant number of production employees participating in bargaining meetings relative to maintenance bargaining representatives, which has meant that the bargaining process is like “herding cats”.

[39] The claims of production employees are different to maintenance employees and should be dealt with separately. However, because the dialogue at bargaining meetings has predominately focused on the claims made by production employees due to the sheer number of production employees present, maintenance employees have had very little “air-time” to have their claims discussed, considered and or meaningfully responded to by Thiess. These arrangements, if maintained throughout bargaining in the future, will continue to unfairly disadvantage maintenance employees because it will mean they do not have an opportunity to ventilate their clams adequately, which in turn will slow the bargaining process.

[40] Mr Sam disagreed with Ms Nell’s evidence regarding the operational arrangements of Thiess and maintained that maintenance and production employees, are largely distinct work groups because of the nature of the work that is done by each work group; the trade qualifications and high risk tickets required to be held by maintenance employees; the requirement that maintenance employees continue to work during heavy rain while production employees stop work and go to crib huts; the number of production employees is significantly greater than maintenance employees; maintenance and production employees stay in different accommodation; the camp maintenance employees stay in has longstanding issues with amenities and food; transport from camps is different; start times and crib times are different as are the locations of crib rooms; and maintenance employees are often told during workplace meetings about the financial status of the maintenance department indicating that it is a stand-alone department.

[41] Mr Sam acknowledged that Ms Nell and/or Mr McCowan did ask at the conclusion of meetings if anyone wanted to add things but said that it is important to recognise that at the same time they were proposing to close the meeting and he did not consider that this was the appropriate time to be breaking new ground to discuss particular claims. Mr Sam also referred to one occasion where maintenance bargaining representatives stayed back to discuss the claim for the separate maintenance classification table without the presence of production bargaining representatives. Mr Sam considered that this discussion was reasonable and a good use of time, however there remained unresolved issues relating to the claim following that discussion.

[42] Whilst Mr Sam noted Ms Nell’s evidence in relation to successful claims made by the AMWU, CEPU and other maintenance bargaining representatives, Mr Sam disagreed that the parties had achieved a separate maintenance classification table and said that this clause remained in dispute for reasons including that the classification table as currently drafted would allow maintenance employees to be engaged at Levels 1 and 2, whereas the combined classifications table in the current agreement prescribes that maintenance or engineering employees are to be engaged at Level 3 upwards. Mr Sam also stated that Thiess did not detail the wage rates for the levels in the table until the fifth version of the proposed agreement which was the version put to a ballot of employees by Thiess.

[43] Mr Sam agreed with Ms Nell’s classification of maintenance only issues and stated that the status of those claims was as follows:

• Maintenance classification table (unresolved);

• A wet weather allowance for maintenance (rejected);

• Specific allowances related to maintenance employees such as electrical, high risk, tyre fitter and tool allowance for trades and non-tradespersons (rejected apart from slight escalation in tool allowance);

• Field allowance (rejected); and

• Special allowances applied to tradespersons based on their years of experience on site (rejected).

[44] Further, Mr Sam stated that a review of the minutes provided by Ms Nell demonstrates that these claims were not discussed in depth, aside from the maintenance classification table, which remains unsatisfactory.

[45] Early on during bargaining Mr Sam stipulated that there should be an exchange of logs of claims and recalled that Mr Thomas also asked Mr McCowan when Thiess would be able to provide a Company log of claims. The response from Mr McCowan was to the effect that “Thiess will be in a position to respond when we see the log for maintenance”. Mr Sam stated that Thiess’ failure to provide a log of claims was one of the reasons why the parties worked through the enterprise agreement, rather than a log of claims.

[46] Mr Sam disagreed with Ms Nell’s evidence that bargaining meetings were not conducted in such a way that issues related to one group of employees were discussed in preference to issues relating another group, and referred to the fact that the maintenance bargaining representatives had to stay back at the October 2020 meeting to discuss the maintenance classification table without production employee representatives and that this highlighted that there was a struggle to get “air time” to discuss maintenance claims during the primary bargaining meetings.

[47] While Ms Nell has emphasised the proportion of maintenance bargaining representatives relative to employee numbers, Mr Sam states that the reality is that at all bargaining meetings, there were more production bargaining representatives then there were maintenance bargaining representatives. This is illustrative of the broader issue at play, that maintenance employees are significantly outnumbered by production employees on site, who have distinct claims owing to their distinct work arrangements. According to Mr Sam, this caused some maintenance bargaining representatives to stop attending meetings.

[48] Mr Sam also noted that the discussions held between the parties delivered a maintenance classification table that contained no pay rates until Thiess sent version 5 of the proposed agreement out to vote, indicating that there was a shortage of time or an unwillingness by Thiess to meaningfully bargain on the pay rates of maintenance employees. Mr Sam complained that the maintenance classification table included in version 5 of the proposed agreement set lower levels than the current agreement for the initial engagement of maintenance employees who currently start on level 3.

[49] Mr Sam disputed Ms Nell’s evidence that Thiess “enhanced” the classification levels for maintenance employees and asserts that in the proposed agreement as currently drafted, level 2 maintenance (which is the same as level 2 production) and level 1 maintenance (slightly higher than level 1 production) provide Thiess with a lower figure to start maintenance employees on. The issue which has not been addressed is that by virtue of allowances, the highest Level 4 production employees are effectively paid more than the highest Level 4 (mechanical) advanced trade maintenance employees.

[50] In relation to the wet weather claim, Mr Sam states that while maintenance employees do work in workshops when it is raining, there are large openings in the workshops (sufficiently large enough to drive earth moving equipment through) which allows the rain to blow in making everything wet and slippery (including the workers).

[51] Mr Sam disagrees with Ms Nell’s evidence that bargaining for two separate agreements would not be fairer or more efficient than bargaining for a single enterprise agreement. Mr Sam said that at the first bargaining meeting, the AMWU offered a 2 year maintenance agreement, which was essentially a roll over with the “tidy up” of a few clauses including the wage table and clauses like a wet weather allowance. Mr Sam asserts this would have been a relatively straightforward and efficient bargain.

[52] Mr Sam also disagrees with Ms Nell’s evidence that Thiess would effectively be required to undertake two separate bargaining processes for two different groups and that this would undoubtably delay the process. Mr Sam’s evidence is that the proposed scope order would allow maintenance employees to control their own destiny, rather than be tied to a much larger group of production employees who are operationally distinct, located in a separate area of the mine, lodge in different camps, perform different tasks, have different roster and onsite arrangements and should be paid differently. Mr Sam tendered a copy of a petition signed by 57 employees who are supportive of the proposed scope order. Mr Sam states these signatures were only collected in a short period of time, as is shown by the date of the signatures.

[53] Mr Sam provided a further example of the unfairness and inefficiency of the bargaining process, stating that the bargaining meeting which was scheduled for 12 May 2021 was cancelled by Thiess because production representatives could not attend. Mr Sam states that in circumstances where maintenance representatives, such as the AMWU have not been available to attend a meeting, the meeting has continued as planned.

[54] Mr Sam disputes Mr McCowan’s evidence in relation to the AMWU not providing a log of claims. Mr Sam states that he repeatedly stipulated to Mr McCowan that the AMWU would be prepared to exchange logs, and that Mr McCowan said that Thiess would be in a position to provide a company log of claims after a log from the AMWU was provided for consideration. There was no exchange and Thiess never provided a Company log of claims. In relation to Mr McCowan’s evidence about the issues raised by Mr Irvine, Mr Sam said that these issues remain unresolved and that some of them had been raised by Mr Sam. Mr Sam states Mr McCowan does not seem to grasp the primary issue that made bargaining inefficient and unfair which is said to be the sheer weight of production numbers around the table and onsite relative to maintenance bargaining representatives and maintenance employees. In a process where the scope of bargaining covers both production and maintenance employees at Thiess Curragh, Mr Sam states it has been very difficult to have targeted discussion on maintenance claims and this is why there has been a need for discussions without production representatives present.

[55] Mr Sam considers Mr McCowan’s evidence in relation to the reasons why Thiess did not agree to bargaining for separate agreements to be disingenuous. If Thiess wanted to maintain a “cohesive workplace”, then it is difficult to understand why Thiess have segregated production and maintenance employees in the manner described by Mr Sam. Mr Sam also disputes Mr McCowan’s evidence that bargaining for two agreements would be inefficient and time consuming and that the bargaining groups would take the position to the effect that “we are not going to sign off on this agreement until we see what you agree to with the other group”. Mr Sam contends that while Mr McCowan laments the possibility of having to “go back and forward between the parties” to reach a finalised agreement, this is what enterprise bargaining is. In any event, as evidenced by bargaining to date, Thiess only has a real interest and desire to go back and forward with the majority production bargaining representatives, which is why the process to date has been unfair and inefficient.

[56] Under cross-examination by Mr Herbert for Thiess, Mr Sam accepted that the AMWU’s proposal for a separate maintenance agreement was put forward before bargaining commenced and that this was the first order of business for the AMWU and CEPU. Mr Sam also said that at the outset his view was that the success of the scope application depended on the maintenance employees being organisationally and operationally distinct but agreed that later in the negotiations he was also aware of the need to demonstrate that bargaining was not fair or efficient. 18 Mr Sam was also asked about his supplementary statement where he said that the AMWU did not provide Thiess with a log of claims given its position on a separate maintenance agreement. Mr Sam said that additional reasons for not providing a log of claims were that Thiess did not provide a log.19 Later in his evidence Mr Sam said that the AMWU had hoped to come into the meeting and get an agreement done very quickly on the basis that the Union was offering a roll-over of the existing agreement to apply only to maintenance employees.20 In response to the proposition that the AMWU gave a new reason for not providing a log of claims when its proposal for a roll-over agreement was rejected, Mr Sam said that the AMWU had a log of claims prepared ready to exchange with Thiess21 and later said that the log was not provided because he believed that Thiess would simply reject the matters in the log and Mr Sam believed that more would be achieved by working through the document provided by Thiess and speaking to each issue as it arose.22 Mr Sam rejected propositions that the AMWU had deliberately taken this approach to slow bargaining down.

[57] Mr Sam agreed that advancement of the AMWU’s claims involved concessions by Thiess and that evidence that negotiations were not productive was based on the fact that Thiess had not made concessions. Mr Sam agreed that Thiess had increased the tool allowance by 35% or an amount of $400 per annum and agreed to reimburse employees (including those in production) for work related licences and that these offers were pleasing. 23 Mr Sam also agreed that refusal by Thiess to increase Trainer/Assessor allowances and rejection of other claims related to all employees and that there were also increases to other terms and conditions which applied to both maintenance and production workers.24

[58] Mr Sam agreed that he had time between receiving a draft of the proposed agreement from Thiess before the 28 October 2020 meeting and the 27 January 2021 meeting, to consider the proposed agreement and provide written comment on it but did not do so and said that this was because the AMWU does not bargain by email. 25

[59] In relation to the AMWU’s claim for a maintenance specific pay scale, Mr Sam accepted that a classification structure needs to be developed before pay rates can be attached to it and said that Thiess not hearing what the AMWU claimed was ignoring the Union. Mr Sam accepted that Ms Nell prepared a draft of the pay scale but maintained that she did not “advance the pay rates” which is what the AMWU had claimed. Mr Sam agreed that the wet weather provisions of the current 2017 Agreement apply to all employees on site but maintained that the application of the provisions because of the conditions that the employees work under. Mr Sam also maintained that there was no obligation on Thiess to address the claims of maintenance employees in relation to wet weather because the Company only needed to keep production employees who are the majority, happy. Mr Sam agreed that during the negotiations Thiess rejected a lot of claims that applied to both maintenance and production employees but maintained that Thiess only needed to keep 70 – 75 % of production employees happy to get an agreement. 26 Mr Sam also asserted that the CFMMEU would look after its membership, the majority of which would be in production rather than maintenance.

[60] Mr Sam agreed that that maintenance bargaining representatives raised issues which were listened to, discussed and taken away for further consideration, or accepted or rejected. In response to a question about what was wrong with that process, Mr Sam said: “It’s not the process that I have a criticism of, it’s generally the fairness of the outcome.” Mr Sam clarified that the unfairness he complained of was the rejection by Thiess of the claims. In response to a question as to whether there was any onus on Thiess under a single agreement to provide anything to the maintenance employees, Mr Sam said:

“No, because they are heavily out voted by the production employees and that is the issue. So Thiess know, in effect, that even if they give the maintenance guys nothing, they only really have to look after one group and it's, potentially, not even 100 per cent of that group, the production employees. If 75 per cent of them vote yes, we're in a situation where the maintenance employees are under an agreement and, potentially, not one single person, not one single maintenance employee has voted ‘Yes’ to that agreement, and they're covered by it. That's unfair.” 27

[61] Further, Mr Sam was asked whether his concern about fairness was whether the AMWU was going to have the sheer numbers to carry a vote for the agreement and said that it was unfair because there was a massive imbalance in the voting space as a result of the coverage of the proposed agreement. 28 Mr Sam also said that the scope application is to enable the maintenance employees to control their own destiny by being 100% of the vote for the proposed agreement. 29 Mr Sam also said in relation to his allegation that maintenance employees had previously been ganged up on, that he had been told this by maintenance employees.30 Mr Sam also agreed that his assertion about the unfairness of the outcome was based on his view that Thiess was refusing maintenance claims because they thought they could get away with this because the CFMMEU and production employees were on the Company’s side and that this had happened in the past. This is what the AMWU is trying to avoid now and in the future.31

[62] A proposition was put to Mr Sam that he had not been stopped from ventilating anything and that his complaint is that the matters he raised were not accepted. Mr Sam said in response that the most effective bargaining the AMWU did was when the maintenance employees stayed back and had a one-on-one conversation with Thiess and that the point of the scope application was to move people to that space to have an efficient and productive conversation. That was probably the most effective bargaining that we did and that's all we want to do, is move people to that space so we can have an efficient and productive conversation about the issues that relate to maintenance workers. In response to the proposition that if he needed more time to have such discussions Mr Sam could have asked for further meetings, Mr Sam said that maintenance employees wanted their own agreement to have such discussions. Mr Sam disputed that the failure to request such discussions evidenced that the AMWU was not fair dinkum about reaching an agreement and said that: “A hundred per cent we were trying to get a deal for our members.” Mr Sam also said that stalling the negotiations had never been his intention or the intention of that bargaining representatives. 32

[63] Under cross-examination by Mr Newman for the CFMMEU, Mr Sam was able to identify one Mine – German Creek – where there are separate production and maintenance agreements and in response to the proposition that the preponderance of black coal mining agreements covered both production and engineering (maintenance) employees said: “it doesn’t make it right”. 33 Mr Sam agreed that the Black Coal Mining Industry Award classification structure combines production and engineering classifications and that advancement through the classification structure required the same number of competencies regardless of whether an employee was employed in a production or maintenance role.

[64] Mr Sam was also taken to the CFMMEU’s letter of 3 December responding to the AMWU’s notice of concerns about bargaining. In response to a question of whether he had taken up the offer in the CFMMEU’s letter to discuss the AMWU’s concerns about bargaining, Mr Sam said he had discussed the scope application with Mr Scales and the time devoted to maintenance issues in negotiations but could not recall the contents of his discussion about the latter issue. In response to a proposition that Mr Scales’ evidence was that the discussion was about the scope application rather than further time for maintenance claims to be discussed, Mr Sam said he could not recall. 34 Mr Sam agreed with the evidence of Mr Scales that the January 2021 bargaining meeting finished one hour before the scheduled completion time and that the parties could have raised issues during that additional hour. Mr Sam also agreed that this was the first meeting where he kept track of the time spent discussing claims and said that he did this because by that time he was tired of not discussing maintenance issues.

[65] Mr Sam was asked to clarify whether he was asserting that the CFMMEU would sell out maintenance employees to benefit production employees and said that what he meant was that the CFMMEU might be inclined to look after the majority of its members who are in production rather than maintenance classifications. Mr Sam also said that he was not asserting that the CFMMEU would reject the views of maintenance employees over the views of production employees. 35

[66] Mr Thomas’ evidence is that the AMWU has advocated on behalf of its members for a separate maintenance agreement since bargaining commenced and the CEPU supports the application. Mr Thomas gave evidence about the bargaining meeting on 16 June 2021 where the classification structure of the proposed agreement was discussed. Mr Thomas’ evidence is that at no stage did he, on behalf of either the CEPU or the AMWU, agree to include the engineering classification structure in the proposed agreement because to do this would be at odds with the CEPU and AMWU position that maintenance be covered by a separate agreement.

[67] In relation to the engineering classification structure, Mr Thomas does recall saying words to the effect of “let’s move on to the next topic” because this issue was unresolved and was the subject of FWC proceedings. Mr Thomas said that it is possible that Ms Nell misinterpreted his comment to mean that he was happy for the table to be included in the proposed agreement but that is not the CEPU’s position on the issue. The CEPU maintains that there should be a separate maintenance agreement.

[68] Under cross-examination, Mr Thomas was asked about the negotiation meeting on 16 June 2021 and agreed that at the beginning of that meeting he stated that any subject pertaining to the AMWU scope application should be deferred until after the hearing of that application. In response to questioning about why he could not have discussed and settled on terms of the maintenance classification schedule Mr Thomas said: “Because the [CEPU] backed the AMWU’s proposal for the scope application”. 36 In response to a question about why the CEPU could not have attempted to negotiate the classification table to finality regardless of whether it was in a separate maintenance agreement or a combined production and maintenance agreement, Mr Thomas said that if it was finalised in the current document, the Company would say that it is good enough in that document and why do you need an engineering stream agreement.37 In response to the proposition that he had stopped negotiating about the classification table for this reason, Mr Thomas said that the CEPU had not commenced bargaining on the issue because the AMWU had made the scope application.38

[69] Ms Nell said in her evidence on behalf of Thiess that she became involved in bargaining for the proposed agreement in late June 2020 following a change in Human Resources Manager at the Curragh Mine. Ms Nell’s role in negotiations for the proposed agreement, involves attending the bargaining meetings for the Proposed Agreement, negotiating with the bargaining representatives and updating the Proposed Agreement as bargaining progressed and responding to claims made by bargaining representatives.

[70] Ms Nell said that Thiess employs approximately 394 production employees at Curragh Mine and they work in four crews of approximately 100 employees in each crew. Thiess employs approximately 129 maintenance employees (including apprentices) who work in crews of between 30 to 35 employees on dayshift and crews of approximately 25 employees on night shift. For the entire time that Thiess has been contracted to provide mining services at Curragh Mine (since 2004), it has always been party to a single enterprise agreement (or its predecessor names) which applied to both production and maintenance employees at the Curragh Mine, including agreements made in 2004, 2008, 2013 and 2017.

[71] The production and maintenance departments are required to work together to deliver their specific contract outcomes at the mine site. Those outcomes cannot be delivered without extensive collaboration, planning and combined effort between the two departments.

[72] Ms Nell attended seven of the nine bargaining meetings for the Proposed Agreement which occurred on the following dates and for which minutes were taken by a Thiess representative:

(a) Meeting 3 – 29 July 2020

(b) Meeting 4 – 2 September 2020

(d) Meeting 6 – 7 October 2020

(e) Meeting 7 – 28 October 2020

(f) Meeting 8 – 25 November 2020

(g) Meeting 9 – 27 January 2021

[73] Annexed to Ms Nell’s statement were copies of the minutes taken by Thiess at each of these meetings. Ms Nell did not attend meeting 1 held on 24 June 2020 and meeting 2 held on 15 July 2020 but is aware the minutes of these meetings were taken by a Thiess representative. Ms Nell has read those minutes and was briefed about the progress of negotiations prior to attending meeting 3.

[74] Mr Sam is the primary AMWU official who attended the bargaining meetings for the proposed agreement on behalf of the AMWU. Ms Nell is aware from reading the meeting minutes that Mr Kegan Scherf, AMWU Industrial Advocate, attended Meeting 1 but did not attend Meeting 2 or any of the bargaining meetings at which Ms Nell was present. Mr Thomas was the primary official involved in bargaining for the proposed agreement on behalf of the CEPU and participated in a number of the bargaining meetings. Mr Scales is the primary official involved in bargaining on behalf of the CFMMEU. In addition to the AMWU and CEPU representatives who represented maintenance employees, a number of employee bargaining representatives (EBRs) who perform maintenance roles at Curragh Mine were nominated and most attended bargaining meetings for the proposed agreement.

[75] Ms Nell led bargaining meetings with Mr McCowan, who is a consultant engaged by Thiess to assist with bargaining for the Proposed Agreement. Ms Nell said neither herself or Mr McCowan closed a bargaining meeting without asking whether anyone at the meeting wanted to add anything further to the matters discussed at that meeting. All bargaining representatives at bargaining meetings had an opportunity to raise any questions or claims during meetings and prior to the end of meetings.

[76] Ms Nell states that the maintenance employee bargaining representatives, AMWU and CEPU officials actively participated in bargaining for the proposed agreement, even after Thiess rejected their claim for a separate enterprise agreement for maintenance employees. Further, they were responsible for Thiess conceding increases in entitlements and changes to terms for both maintenance and production employees prior to the Proposed Agreement being put to vote in March 2021. As an example, Ms Nell referred to the AMWU and CEPU obtaining a significant increase to the tool allowance under the Proposed Agreement in comparison to the 2017 Agreement.

[77] Ms Nell acknowledges the proposed agreement put to vote in March 2021 may change with further bargaining, but contends it shows that Thiess listened to the maintenance representatives’ claims and concerns, considered them and agreed to make changes, or if it did not, responded to the concerns. Ms Nell provided examples of claims or requests achieved by maintenance representatives in bargaining for the Proposed Agreement including: introduction of a separate maintenance classification; introduction of a new allowance for permanent dayshift Trainer Assessor; reduced qualifying period for maintenance employees regarding eligibility for next level in the classification table; Emergency Rescue Training allowance introduced additional allocation of PPE; introduction of a Paid Parental Leave; and introduction of a Family and Domestic Violence Leave clause into the Proposed Agreement which references Thiess’ relevant policy to ensure employees are aware of the policy.

[78] Ms Nell states that the individual maintenance employee bargaining representatives were also actively involved in and raised a significant number of issues during bargaining for the Proposed Agreement. Ms Nell provided an example of one maintenance EBR who raised a large number of issues and claims throughout the bargaining meetings, and referred to the minutes of Meeting 5 said to clearly detail that more than 17 different issues and claims that were discussed by the bargaining group during that meeting, including various allowances, a loyalty bonus, superannuation, the Trainer Assessor allowance, and salary sacrifice.

[79] According to Ms Nell, the vast majority of issues discussed during the bargaining process to this point have related to both production and maintenance employees. Ms Nell undertook an analysis of the issues raised during bargaining for the Proposed Agreement and whether those issues relate to production, maintenance or both production and maintenance. Ms Nell said the analysis indicates that all but the following issues are relevant to the claims of both production and maintenance employees:

(a) maintenance only issues:

(i) maintenance classification table;

(ii) a wet weather allowance for maintenance;

(iii) specific allowances related to maintenance employees such as electrical, high risk, tyre fitter and tool allowance for trades and non-tradespersons;

(iv) Field allowance; and

(v) special allowances applied to tradespersons based on their years of experience on site.

(b) production only issues:

(i) the grandfathered employees’ clause (total of forty-eight employees of 394 production employees);

(ii) main and relief dispatch employees (eight employees in total);

(iii) the introduction of additional core equipment skills such as electrical trucks and rubber dozer; and

(iv) advanced operator allowance.

[80] Ms Nell also stated that of the 77 items discussed during bargaining, ten were relevant only to maintenance employees and eight were relevant only to production employees. The AMWU has never provided any log of claims to Thiess at any stage of bargaining for the Proposed Agreement and has refused to do so, instead raising issues during bargaining. Bargaining meetings were scheduled as often, and for such period, as was necessary in order to deal with the issues that were presented at those meetings. They were not conducted in such a way that issues related to one group of employees were discussed in preference to issues relating to another group of employees, such that the meeting was concluded before the issues to be discussed in relation to the second group were reached.

[81] Ms Nell states the number of bargaining representatives is proportionate considering the numbers of production and maintenance employees with the total number of nominated employee bargaining representatives (EBR’s) for the Proposed Agreement being:

(a) 21 production employees of a cohort of approximately 394 production employees (approximately one EBR to every 19 production employees), however, four resigned resulting in 17 production EBRs (approximately one EBR to every 23 production employees); and

(b) 12 maintenance EBRs of a cohort of approximately 129 maintenance employees (approximately one EBR to every 11 maintenance employees) however, five maintenance EBRs ceased in their role as EBRs for a variety of reasons (e.g. resignation) resulting in 7 maintenance EBRs (approximately one EBR to every 19 maintenance employees).

[82] In addition to these EBR’s, the AMWU nominated two officials, and the CEPU and the CFMMEU each nominated one official, to bargain for the proposed agreement. Thiess has not placed any restriction on the number of bargaining representatives who could be nominated or attend bargaining meetings. Further, the maintenance EBRs could have outnumbered the production EBRs if more maintenance employees wished to attend bargaining meetings.

[83] Meeting 3 on 29 July 2020 was the first bargaining meeting that Ms Nell attended for the Proposed Agreement. During the meeting, the bargaining representatives undertook a “page turner” of the 2017 Agreement, working through the document and discussing each clause and any issues or claims the representatives wished to raise. Ms Nell states that before the bargaining representatives commenced the page turner, Mr Sam re-stated the AMWU’s claim to have a separate enterprise agreement for maintenance employees, and stated words to the effect of “we have a list of topics if a separate agreement is not approved by Thiess. We do not want to say what they all are but will raise them as we work through the page turner.”

[84] Ms Nell’s evidence is that Mr McCowan responded by reiterating Thiess’ position that a separate agreement for maintenance employees was not a viable option for Thiess and stating that given that position, Company representatives would like to hear if there are any claims that the AMWU wished to focus on. The bargaining representatives then proceeded with the “page turner”, talking through terms of the 2017 Agreement while working through the document. Mr Sam actively participated in this process, requesting a variety of changes and raising issues for consideration throughout the meeting and Ms Nell said this was reflected in the minutes of meeting which she tendered.

[85] Following this, Ms Nell states one of the maintenance EBRs, Mr Mayes raised the issue of the coordinator allowance, appointment of coordinators and further defining this allowance in the Proposed Agreement. Ms Nell also gave evidence in relation to Mr Sam engaging in negotiations about a range of issues including: the co-ordinator allowance definition; annualised wage calculations; the difference between “employee representative” and “support person” (which were subsequently updated as per Mr Sam’s request); and the definition of “immediate family” be updated to include “aunty/uncle” for indigenous employees (which was not agreed by Thiess). One of the production EBRs, raised a concern about the “Trainer Assessor” which was supported by a maintenance EBR Mr Mayes and Thiess ultimately agreed to include a $50 per day Trainer Assessor allowance for the permanently appointed day shift Trainer Assessors, which included maintenance employees.

[86] During this meeting, Mr Thomas of the CEPU raised the possibility of a separate classification table for maintenance employees in the proposed agreement to reflect how maintenance employees progress through classification levels. Ms Nell had participated in bargaining with Mr Thomas and Mr Sam for the Lake Vermont Agreement during which they had pushed for a separate maintenance classification structure. Given her previous experience in negotiation of the Lake Vermont Agreement, Ms Nell asked: “What do you want to see in that separate classification table? Lake Vermont has a separate classification table, would that be a good place to start?” Ms Nell states that Mr Sam agreed and Mr Thomas said that the Lake Vermont structure could be used as a template.

[87] Ms Nell’s evidence is that Thiess’ normal bargaining practice is to not provide minutes of each bargaining meeting for an enterprise agreement and instead rely on each representative making notes to represent the discussion points to the group that they represent. Ms Nell referred to an email she authored which was tendered by Mr Sam, where she communicated the decision to cease providing detailed minutes of meetings on 21 August 2020.

[88] Ms Nell disputes Mr Sam’s evidence that Thiess made changes to the proposed Agreement which were not actually agreed to. In this regard, Ms Nell said that Thiess presented a tracked version of the Proposed Agreement during each of three “page turner” meetings. Each bargaining representative received a PDF copy prior to each meeting, and the proposed Agreement was up on the screen for all to read the document, follow the discussion and provide comment. As a result, there was significant consultation between Thiess and the bargaining representatives as to the content of all the clauses.

[89] Following Meeting 3 on 29 July 2020, and the request from Mr Thomas and Mr Sam for a maintenance classification table, Ms Nell prepared a draft maintenance classification table with the assistance of colleagues at Thiess with maintenance operational expertise. The draft was based on the maintenance classification table from the Lake Vermont Agreement and the draft was expanded so the classifications would suit what Thiess considered might be required for Curragh Mine.

[90] Ms Nell then provided the draft maintenance classification table to Mr Scherf, Mr Sam, Mr Thomas and Mr Scales and requested their review and comment at the next meeting on 2 September 2020. Later that day Ms Nell received an email from Mr Scherf which stated that a preliminary review of the document raised some questions for the AMWU, and that their official would be having conversations with members and the other Union officials and further feedback would be provided. Ms Nell did not receive any other response from the AMWU officials or any other recipients of the 31 August 2020 email prior to Meeting 4 on 2 September 2020.

[91] During Meeting 4, Mr Thomas stated that no feedback would be provided that day and Mr Sam said he had not had time to review the table and there were some discrepancies. Mr Thomas responded to Ms Nell’s email on 11 September 2020 requesting that Ms Nell amend the table so the “Electrical Trades” are included and that he would review further. Following receipt of Mr Thomas’ email, Ms Nell updated the classification table to incorporate electrical trades into the classifications, as requested. Ms Nell then emailed a revised copy of the draft maintenance classification table to Mr Thomas, Mr Sam, Mr Scherf and Mr Scales on 15 September and requested that they advise of their thoughts prior to the next bargaining meeting on 23 September 2020. According to Ms Nell, neither Mr Sam, Mr Thomas nor any of the other officials provided any response to the revised draft maintenance classification table provided on 15 September 2020 prior to Meeting 5 on 23 September 2020.

[92] Mr Thomas and Mr Sam were not in attendance at Meeting 5. Maintenance EBRs Mr Mayes and Mr Cook stated that they could not comment for electricians and otherwise provided no feedback regarding the draft classification table. Ms Nell received no feedback from the Union representatives regarding the draft maintenance classification table between Meeting 5 and Meeting 6. On 28 September 2020, Ms Nell circulated a copy of the proposed agreement incorporating the draft maintenance classification table, for comment or feedback. Ms Nell included the draft maintenance classification table in mark-up so that it could be clearly identified in the revised version of the proposed agreement.

[93] During Meeting 6 on 7 October 2020, Mr Chris Irvine, a maintenance employee bargaining representative, stated words to the effect of “the classification definitions for maintenance employees needs to be reviewed.” Mr Irvine stated words to the effect that the progression detailed in the draft maintenance classification table was not logically following and did not provide for employees who had a trade external to mining (e.g. fitting and turning trade) and had not previously worked in mining to enter and progress their career.

[94] Given she had not received any feedback from the union representatives regarding the draft maintenance classification table since providing the revised version on 15 September 2020, Ms Nell and Mr McCowan agreed with the maintenance representatives to stay behind following the conclusion of Meeting 6 on 7 October 2020 to discuss the table. This part of Meeting 6 went for approximately 30 to 40 minutes. Following this meeting, Ms Nell updated the draft maintenance classification table to capture the issues that had been discussed with the maintenance bargaining representatives at the end of Meeting 6 and on 21 October 2020, Ms Nell emailed the maintenance bargaining representatives a revised version of the draft maintenance classification table tracked into the Proposed Agreement. Ms Nell requested feedback at the next meeting scheduled for 28 October 2020

[95] Ms Nell disputes Mr Sam’s assertion that Thiess largely ignored the maintenance bargaining representatives’ claim for classifications that recognise the skills of maintenance workers distinct from operators. Ms Nell said she has spent a significant amount of time preparing a maintenance classification table, including seeking feedback from those within Thiess with operational knowledge, providing Mr Sam and the other union representatives with the opportunity to provide feedback, chasing the union and EBRs for feedback and revising the table following their feedback when it was finally provided. Despite the time dedicated to addressing this claim, Ms Nell contends she received little to no specific feedback or assistance from the maintenance bargaining representatives, particularly the AMWU, regarding the clause until the end of Meeting 6 on 7 October 2020.

[96] Further, Ms Nell states that Thiess did not just separate out the maintenance employees but enhanced the classification levels for those employees when drafting the maintenance classification table. The maintenance classification table prepared and included in the proposed agreement created a separate classification structure for maintenance employees, which is not in the 2017 Agreement, and also created additional levels to provide progression and pathways for maintenance employees new to the mining industry. In the 2017 Agreement, there is currently only Level 3 and Level 4 for maintenance employees whereas, the maintenance classification table in the proposed agreement now proposes four levels (Levels 1, 2, 3 and 4).

[97] Even if Thiess was required to negotiate a separate enterprise agreement with maintenance employees at Curragh Mine, Ms Nell’ evidence is that she would approach the classification of employees for that agreement in exactly the same way as she did for the proposed agreement. Ms Nell also disputes Mr Sam’s evidence that Thiess has largely ignored claims of the maintenance bargaining representatives for adjusted pay levels for trade skilled employees. Neither Mr Sam nor any other maintenance representative raised or pursued a claim for different pay rates for trade skilled employees compared to production employees during bargaining for the proposed agreement. In any event, while the base rates of production and maintenance employees are the same, maintenance employees’ benefit from allowances and entitlements which result in a distinct difference in their annualised salary in comparison to those of the production employees. Thiess presented the annual escalation impacts, including base rate application and annualised salary build up totals for both production and maintenance employees on 23 September 2020 and the presentation was again shown during Meeting 8 on 25 November 2020.

[98] Ms Nell’s evidence in relation to the inclusion of a specific wet weather allowance for maintenance employees is as follows. During Meeting 4 on 2 September 2020 one of the maintenance employee representatives affiliated with the CEPU, said that the wet weather clause is not applicable to maintenance and when wet weather occurs, maintenance employees are expected to continue to work, rain comes into the workshop and they are still expected to work in the pit. Ms Nell responded by seeking clarification about what a dirty work allowance would look like and said that she did not receive any definitive response. Mr Sam and the other maintenance employee representatives did not add anything to this discussion and were simply nodding. Because she received no further detail during Meeting 4 Ms Nell said that she would look into the matter.

[99] The wet weather allowance claim was also discussed at the meeting with the maintenance bargaining representatives at the end of Meeting 6. Ms Nell asked the representatives to provide details for the allowance proposal because she had not received any further details regarding the maintenance employees’ concerns about wet weather work since Meeting 4. Mr Sam confirmed that he would discuss it with the AMWU members. Ms Nell suggested that the Trigger Action Response Plan (TARP) which sets action response plans at the Mine for levels of risk, could be used to determine when a wet weather allowance would be paid. No response to this suggestion was received from maintenance representatives.

[253] It is not necessary to determine whether Mr Sam’s conduct at meetings was deliberate or calculated to support a scope application. It is sufficient to note that Mr Sam sat through numerous meetings where maintenance specific claims were discussed and did not raise a single objection to the duration of the discussion or express concern that it was side-tracked or hijacked by other bargaining representatives. Mr Sam does not assert that he attempted to intervene at points when he believed discussion had been side-tracked and was ignored or overborne by other bargaining representatives. If discussion about maintenance specific claims was limited, this was because Mr Sam and other maintenance bargaining representatives did not take any steps to articulate or advance their claims.

[254] The maintenance classification table is a case in point. Mr Sam sought a maintenance specific classification structure. Whether that structure was contained in a stand-alone maintenance agreement or the proposed agreement, should not have prevented the AMWU from articulating and advancing this claim. The evidence establishes that Mr Sam did little more than state that the AMWU wanted such a table. He did not develop the table and tender it at a bargaining meeting. Instead, Ms Nell took the running and drafted a table based on an agreement at Lake Vermont, that the AMWU had been involved in negotiating. Ms Nell’s uncontested evidence is that when she suggested the Lake Vermont approach as a basis, Mr Sam agreed that this would be a good starting point. There is no evidence that Mr Sam engaged with the process commenced by Ms Nell other than to criticise it in these proceedings.

[255] If Mr Sam was dissatisfied with the table developed by Ms Nell, he could have responded to Ms Nell’s emails seeking his input or raised his issues at a bargaining meeting. The very fact that Ms Nell took steps to draft a classification table and suggest a basis for the wet and dirty work allowance in circumstances where these matters were claims by the AMWU indicates that Thiess was open to suggestions made by bargaining representatives and that the bargaining process was fair.

[256] The AMWU asserts that Ms Nell and other bargaining representatives failed to understand what the Union was seeking with respect to the table. Mr Sam states that the AMWU was seeking wage increases for maintenance employees relative to production employees and complains that Ms Nell’s draft did not reflect what was being sought and contained lower rates for maintenance classifications than they were being paid under the 2017 Agreement. The difficulty with Mr Sam’s complaints is that there is no evidence that he made them at the time the draft table was circulated for discussion. If Mr Sam and the AWMU were dissatisfied with the proposal, there was ample opportunity to advance a counter proposal or to draft their own classification table. Further, if Mr Sam and the maintenance bargaining representatives were concerned that the table did not contain wage rates, they could have raised this issue or suggested wage rates for inclusion.

[257] Ms Nell also said that the lower wage rates in the table would not have applied to any existing employees and were introductory rates for tradespersons who had no previous experience in the coal industry. Even if the wage rates in the classification table drafted by Ms Nell were lower than existing rates, the time for Mr Sam to complain was at the bargaining meetings. Despite repeated requests from Ms Nell for feedback, there is no evidence that the AMWU responded in any meaningful way to the proposal advanced by Ms Nell. Absent evidence of a counter proposal or even a complaint by the AMWU about Thiess’ proposal, or feedback that was ignored or not properly responded to by Thiess, I do not accept that this issue is evidence of unfairness with respect to the bargaining process.

[258] It is also the case that Ms Nell’s uncontested evidence is that when the AMWU made a claim for an allowance for wet and/or dirty work, she asked Mr Sam and maintenance bargaining representatives for details of what they were seeking, or what such an allowance would look like. Again, absent a response, Ms Nell advanced a proposal to use TARP as a basis to address this issue.

[259] An allowance for wet and dirty work such as that sought by the AMWU, would require a clause to be inserted in the proposed agreement setting out the circumstances in which the allowance would be paid, or at very least, the quantum sought. The evidence makes clear that the circumstances described by the AMWU include working outside in wet weather and conditions associated with working in workshops which are open to the elements or on dirty and muddy plant and equipment. The AMWU did not advance a proposal for such a clause until 27 October 2020, the day before a bargaining meeting. The proposal was advanced by email from Mr Sam which was copied only to Thiess and maintenance bargaining representatives. I do not accept that it is legitimate for the AMWU to complain that other bargaining representatives did not address its claim for a wet weather allowance, in circumstances where the AMWU did not circulate the claim to all bargaining representatives. I also do not accept that it was the responsibility of Thiess’ bargaining representatives to circulate a claim advanced by the AMWU and that any unfairness arises in this regard.

[260] When all of the evidence is considered, it is probable that the limited time spent discussing maintenance specific issues these matters at meetings was because the AMWU did not press its claims when discussion in the meeting turned to other matters and did not articulate them in a way that could have been the subject of negotiations. Even if the AMWU did fully articulate its claim for a wet work allowance or a maintenance classification table, or any other maintenance specific matter, the fact that Thiess rejected such claims is not of itself, unfair and nor is such rejection indicative of unfairness in the bargaining process. Rather, it is a normal incident of bargaining that claims are rejected. There is also evidence that Thiess accepted some maintenance specific claims and that maintenance employees stood to benefit from clauses Thiess agreed to which applied to maintenance and production employees. Further, there is evidence that Thiess rejected claims from the CFMMEU with little or no discussion. The minutes of meetings evidence that where claims were rejected out of hand by Thiess, the reasons were financial impact if claims were granted. There is nothing unfair or remarkable about an employer taking this position and in fact it is an entirely normal incident of bargaining.

[261] I do not accept that a Union Official in the position of Mr Sam, representing a large and well- resourced Union such as the AMWU, can sit in negotiations and make little if any effort to advance claims on behalf of maintenance employees and then complain that the negotiations are unfair because of the failure of other bargaining representatives to devote sufficient time to discussing such claims. Mr Sam does not give any evidence of attempting to articulate claims and being prevented by Thiess or other bargaining representatives from doing so. To the contrary Mr Sam accepts that he advanced claims, the claims were discussed, considered and either rejected or accepted.

[262] That Thiess did not share pay rates for its proposed maintenance table before putting the proposed agreement to ballot, has no apparent relationship to the fairness of the bargaining process. If there was an issue in this regard, it is an issue that would be better addressed as a good faith bargaining concern. In any event, Thiess put a proposed agreement to ballot containing pay rates, which was not approved by a majority of employees.

[263] I do not accept that bargaining for the proposed agreement is, or has been, inefficient. There is nothing inefficient about the process that has been followed. The proposed agreement is the fifth in a series of agreements over a period of 17 years commencing in 2004 and there was no evidence of any need to reinvent the wheel based on past negotiations. Indeed, there was no evidence of any incidents of unfairness in past negotiations and as I have previously observed, the initial claim to roll over the 2017 Agreement is inconsistent with any claims of past unfairness.

[264] It was entirely reasonable for the bargaining process to have commenced with a “page turner” meeting whereby a clause-by-clause consideration of the 2017 Agreement was conducted to determine the views of bargaining representatives as to which clauses could be retained in their present form and which clauses required consideration or were sought to be renegotiated. Thereafter, bargaining appears to have followed a normal course whereby claims were made by bargaining representatives and either accepted or rejected. Issues such as the AMWU’s assertion that Thiess representatives ceased to distribute minutes of meetings or providing drafts without sufficient notice for bargaining representatives to consider them, if they are issues, are more appropriately addressed by a good faith bargaining application rather than a scope application. Those issues apply equally to all bargaining representatives and are not related to the difference in the numbers of maintenance and production bargaining representatives. Accordingly, I do not accept that the scope order sought by the AMWU will result in bargaining being fairer based on these matters, as the scope order will not address them.

[265] I also do not accept that bargaining will be more efficient if the scope order sought by the AMWU is made. Firstly, the fact that a vast majority of clauses in the current agreement cover both production and maintenance employees means that it is more efficient for a single set of negotiations to be conducted rather than two sets of negotiations in relation to two agreements. Even if all maintenance specific claims advanced by the AMWU are agreed by Thiess, it is more probable than not that a maintenance specific agreement would be identical to any production agreement in all respects other than those maintenance specific claims.

[266] Secondly, the negotiation of a maintenance specific agreement would not be efficient for Thiess and the CFMMEU with both organisations participating in negotiations for two agreements. Thiess would be involved as the employer bound by both the maintenance and production agreements. The CFMMEU, will also probably be involved in the negotiations for both agreements given that it has the right to represent maintenance employees and has one such employee as a member. Even if the CFMMEU did not have a member among the cohort of maintenance employees the CFMMEU would still have an interest in negotiations between Thiess and the AMWU about clauses which are identical to those in the production agreement. The CFMMEU would also have an interest in any maintenance specific classification structure which changed existing relativities between maintenance and production employees.

[267] Thirdly, I do not accept that the negotiations for the proposed agreement are proceeding inefficiently. The fact that claims made by the AMWU have not been accepted by Thiess is not a basis for a finding of inefficiency. Further, the fact that other bargaining representatives were not aware of the details of maintenance specific claims does not evidence inefficiency of the bargaining process. As I have previously observed, if Thiess’ bargaining representatives were not aware of the detail of the AMWU’s maintenance specific claims, this was because the AMWU did not clearly articulate the claims or press them during the negotiations rather than because the negotiations were not efficient. If production bargaining representatives were not aware of the AMWU’s claims it was because of a failure on the part of the AMWU to even copy in other bargaining representatives on email correspondence detailing such claims.

[268] Nor do I accept that the separate discussions held between the maintenance representatives and Thiess after the bargaining meeting on 7 October 2021, are evidence that the bargaining was not proceeding efficiently. There is nothing inherently inefficient about having side meetings with a smaller group of bargaining representatives to discuss matters specific to a particular part of the workforce that they are representing. Such a discussion may be more efficient than involving a wider group in discussions that may not concern them or about which they may only be in a position to state a concluded view when there is a specific clause or proposal to discuss. Given the lack of clarity about the AWMU’s position on its claim for a separate classification table, such a discussion was entirely appropriate and there is no reason why the AWMU could not have pursued this approach within the broader negotiations for a single agreement.

[269] Absent evidence of unfairness or inefficiency impacting the AMWU, there is no basis to disturb the status quo and create an additional impost for Thiess and the CFMMEU by making a scope order to require negotiations for a maintenance specific agreement and a production agreement. In my view such an outcome would be unfair and inefficient for Thiess and the CFMMEU.

[270] The cases cited by the AWMU do not support its application. In the Qantas Case 65, the facts were the reverse of those in the present case, in that for 12 years over which four agreements had been successfully negotiated, the status quo was a Mainline Agreement covering employees in Sydney and Melbourne and a Brisbane Agreement covering employees at the Brisbane Base. The AMWU, AWU and CEPU sought a scope order requiring Qantas to bargain for a single agreement for employees covered by the Mainline and Brisbane Base Agreements. Deputy President Sams found that the proposition of unfairness relied on by the Unions that Brisbane employees did not get an opportunity to bargain because the Mainline Agreement was already negotiated before bargaining for the Brisbane Agreement commenced and that the Brisbane employees felt like “poor cousins” or “second class citizens” was, in the context of the status quo, inconsistent and counterintuitive.

[271] The observation of Deputy President Sams to the effect that under the status quo, Brisbane employees could not be outvoted by the larger number of Sydney and Melbourne employees if the status quo was maintained, cited by the AMWU in support of its application in the present case, was made in the context of preceding observations that:

• The Brisbane employees had never raised concerns about not getting an opportunity to bargain because Qantas had hardened its position in the Mainline negotiations;

• The evidence was that the Brisbane employees made a judgment call as to whether they would accept the Mainline Agreement outcomes;

• The proposition that different conditions were sought for Brisbane had not been tested and the evidence established that there were significant items in the two agreements that were the same; and

• One of the central grounds relied on by the Unions was that the same log of claims could be pursued in a single set of negotiations and this was inconsistent with a claim of unfairness because Brisbane employees did not have their concerns considered with the consequence of achieving something different or better than what the Mainline employees had agreed upon. 66

[272] The same observation could be made in the present case. Here, there is also no evidence of any concerns being raised by maintenance employees of unfairness or inefficiency associated with the status quo in previous negotiations. Mr Sam’s evidence went no higher than a statement that he had been informed by maintenance employees that they had been outvoted in previous negotiations. There was no evidence about what impact this had on previous claims. The majority of terms and conditions in the 2017 Agreement are applicable to both production and maintenance employees. There is no evidence that different terms and conditions had been sought by maintenance employees in previous negotiations and a single agreement will result in the same terms and conditions applying to both production and maintenance employees.

[273] In the context of the absence of direct evidence of unfairness or inefficiency in the bargaining process, either with respect to the current negotiations or to past negotiations, I do not accept that a petition signed by maintenance employees is a sufficient basis to grant the scope application. It is unclear how many of the signatories are members of the AMWU or how many members the AWMU has. When the evidence about the total number of employees is considered and regard is had to the evidence of Mr Scales and Mr Paterson about the number of employees who are members of the CFMMEU, it is possible that non-union members may outnumber members in any bargaining or ballot process.

[274] The claim for a separate maintenance agreement in the present case is also inconsistent and counter intuitive, given that what was sought at the outset was a roll-over of the 2017 Agreement with very few changes. It is probable that a single agreement at Thiess Curragh has provided maintenance employees with terms and conditions of employment that they would not have enjoyed had they not been bargaining in conjunction with production workers. The pursuit of a separate maintenance agreement is also inconsistent with the issue raised by the AMWU to the effect that Thiess seeks to favour the claims of production workers. If that is the case, maintenance workers and the AMWU would arguably have greater bargaining power by aligning with the CFMMEU and the majority group of production workers and seeking their support for maintenance specific claims. In this regard, there is no evidence that Mr Sam took Mr Scales up on his offer to discuss the AMWU’s concerns with the CFMMEU prior to the next bargaining meeting, notwithstanding that the AMWU’s notice of concerns stated that the urgent response of bargaining representatives was sought for such a meeting.

[275] The essence of the AMWU’s complaints of unfairness appear to be that it has not achieved its claims, and I agree with the observations of Mr Scales in this regard. If the objective of the AMWU in seeking a maintenance only agreement, is to achieve its claims in relation to wet work and a maintenance classification table with higher wage rates and changes to relativities with production employees, there is no greater likelihood that such claims would be achieved if the scope application was granted than if it was refused and the status quo remained.

[276] Similarly, to the observations of the Full Bench in BRB Modular 67, the evidence in the present case is that the bargaining has been unremarkable: claims have been made; meetings have been held; explanations have been provided for the AMWU’s claims; negotiation has occurred; some of the AMWU claims have been rejected as Thiess is entitled to do; the AMWU is unhappy and maybe frustrated – a relatively normal set of circumstances.68 Also similarly to that case, the AMWU’s complaints go to the conduct of Thiess in the negotiations, such as non-responsiveness to the AMWU’s log of claims or failure to engage with the detail of those claims. Those complaints might raise questions about whether Thiess is bargaining in good faith, but do not establish that if the scope order was made, bargaining would be fairer or more efficient.

[277] Unlike the situation in the present case, in Shinagawa there had been significant disputation about scope. In the extract from the decision cited by the AMWU in support of its application in the present case, Deputy President Sams specifically notes that bargaining had stalled and negotiations were deadlocked over the issue of scope and that protected action had been, and continued to be, taken centred on the issue of the Respondent refusing to negotiate separately with the Unions. This was the basis for the order in that case being made and the facts in that case are in stark contrast with those in the present case. I also do not accept that the present case involves a clear risk of the tyranny of the majority prejudicing the minority, so that the comments of Vice President Lawler in Stadium Australia are relevant.

Is the group of employees the subject of the scope order fairly chosen?

[278] I accept that a group comprising only maintenance employees, could in the circumstances of this case, be considered as operationally distinct. However, given the findings I have made in relation to fairness and efficiency, it is not necessary to decide this point.

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

[279] For the reasons set out above, and absent any countervailing considerations, I am not satisfied that it is reasonable in all of the circumstances to make the order sought by the AMWU in its application. The proposed order will not result in bargaining being fairer or more efficient and neither will it assist the AWMU to advance its claims.

Conclusion

[280] As Mr Herbert for Thiess put it, the AMWU’s claim appears to be predicated on a desire to be the biggest fish in the pond. I agree with that submission and I am unconvinced by the submission of Mr Bunnag for the AMWU in reply, that the bargaining process at Thiess Curragh is unfair because the constituents in the pond are a shark, a killer whale and a few tadpoles. 69 I do not accept that the AMWU or its members are tadpoles much less that either Thiess or the CFMMEU can be likened to a shark or a killer whale. Mr Sam and the AMWU are more than capable of fending for themselves and representing members in any pond they swim in.

[281] In summary:

• I am satisfied that the AMWU being a bargaining representative for a proposed single-enterprise agreement for Thiess at the Curragh Mine, has concerns that bargaining is not proceeding efficiently or fairly and the reason for this is that the AMWU considers that bargaining is unfairly focused on the claims of production employees.

• I am satisfied that the AMWU has taken all reasonable steps to give a written notice of its concerns to other relevant bargaining representatives;

• I am satisfied that the AMWU is meeting the good faith bargaining requirements;

• I am not satisfied that an agreement covering maintenance employees only will promote the fair and efficient conduct of bargaining;

• While in other circumstances it may be found that the group of employees who will be specified in the scope order was fairly chosen that is not determinative in the present case; and

• I am not satisfied that it is reasonable in all of the circumstances to make the scope order in the terms sought by the AMWU.

[282] Accordingly, I decided to dismiss the application by the AMWU for a scope order and issued an Order to that effect on 18 October 2021. 70

DEPUTY PRESIDENT

Appearances:

T Bunnag for the AMWU.

C Newman for the CFMMEU.

A Herbert of Counsel instructed by McCullough Robertson for Thiess.

Hearing details:

21 June, 22 June & 21 July.

2021.

Yeppoon & Brisbane.

Final written submissions:

AMWU: 1 July

CFMMEU: 8 July

Thiess: 8 July

Printed by authority of the Commonwealth Government Printer

1 Thiess Curragh North Certified Agreement 2004; Thiess Curragh North Agreement 2008 – 2012; Thiess Curragh Mine Enterprise Agreement 2013.

2 Exhibit AMWU2 – Witness Statement of Glenn Desmond Sam dated 27 April 2021; Exhibit AMWU3 Witness Statement of Glenn Desmond Sam dated 2 June 2021.

3 Exhibit AMWU1 Statement of Craig Thomas dated 18 June 2021.

4 Exhibit THIESS1 Witness Statement of Adrian Francis McCowan dated 19 May 2021.

5 Exhibit THIESS2 Witness Statement of Liesl Nell dated 19 May 2021; Exhibit THIESS3 Supplementary Witness Statement of Liesl Nell dated 17 June 2021.

6 Exhibit CFMMEU1 Witness Statement of Jeffrey Michael Scales dated 14 June 2021; Exhibit CFMMEU2 Supplementary statement of Jeffrey Michael Scales filed on 18 June 2021.

7 Exhibit CFMMEU3 Witness Statement of David Andrew Paterson filed 14 June 2021.

8 LexisNexis Butterworths, Workplace Law - Fair Work, Vol 1 Service 73 [80,730]

9 Fair Work Act 2009 s.238(4)(b).

10 United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board (2010) 913 IR 293 at [54] – [55]; BRB Modular Pty Ltd v AMWU [2015] FWCFB 1440 at [6]-[15].

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

12 Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2015] FWC 1591 at [145]-[148].

13 United Firefighters’ union of Australia v Metropolitan Fire & Emergency Services Board (2010) 193 IR 293.

14 The Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd (2014) 242 IR 238.

15 Explanatory Memorandum to the Fair Work Bill 2009 at [777].

16 [2016] FWCFB 1151 at [31].

17 Exhibit AMWU 2 Annexure GS-7.

18 Transcript PN207 – 209.

19 Transcript PN229.

20 Transcript PN234.

21 Transcript PN239.

22 Transcript PN428.

23 Transcript PN331 – 337.

24 Transcript PN 340 – 345.

25 Transcript PN355 – 357, 368.

26 Transcript 487.

27 Transcript PN289 – PN308.

28 Transcript PN501.

29 Transcript PN464 to PN466.

30 Transcript PN451 to PN452.

31 Transcript PN305 to PN308.

32 Transcript PN502 – PN514.

33 Transcript PN564.

34 Transcript PN665 – 670.

35 Transcript PN711 – 720.

36 Transcript PN59.

37 Transcript PN70.

38 Transcript PN71.

39 Exhibit CFMMEU 1 Annexure JS-3.

40 [2015] FWCFB 1440 at [54].

41 United Workers’ Union [2020] FWC 3211.

42 Ibid at [14].

43 United Firefighters' Union of Australia [2010] FWAFB 3009 at [55].

44 [2011] FWA 5935.

45 [2010] FWAA 3758.

46 [2017] FWCFB 1165.

47 [2012] FWA 2226.

48 Transcript PN300 – 301.

49 [2017] FWC 1526.

50 Transport Workers’ Union of Australia v Chubb Security Services Limited[2012] FWA 2226 (TWU v Chubb) at [64]

51 General Principle 9 of that case described at [166]; adopted in the UWU Case at [18] and quoting Deputy President Asbury from TWU v Chubb at [60]

52 [2017] FWC 1526 at [183] to [184].

53 Transcript PN289 – PN308.

54 Transcript PN501.

55 Transcript PN464 to PN466.

56 AMWU’s closing submissions at paragraph 16.

57 BRB Modular Pty Ltd v AMWU[2015] FWCFB 1440 at [54].

58 [2012] FWA 6329 at [69].

59 Transcript PN502 – PN514.

60 [2014] FWC 7123 at [62].

61 (2012) 219 IR 139.

62 [2017] FWCFB 1165.

63 Ibid at [45].

64 [2010] FWAFB 3009.

65 [2017] FWC 1526.

66 Ibid at [174].

67 [2015] FWCFB 1440.

68 Ibid at [38].

69 Transcript PN302.

70 PR734988.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Thiess Pty Ltd T/A Thiess

[2021] FWC 5921

4 NOVEMBER 2021

REASONS FOR DECISION

Evidence