Clarence Coal Pty Limited
[2009] FWA 462
•30 SEPTEMBER 2009
[2009] FWA 462 |
|
DECISION |
Fair Work Act 2009
s.238 - Application for a scope order
(B2009/10608)
COMMISSIONER ROBERTS | SYDNEY, 30 SEPTEMBER 2009 |
Application for a scope order.
[1] This decision deals with an application for a scope order lodged with the tribunal on 4 September 2009 pursuant to s.238 of the Fair Work Act 2009 (the Act). The Applicant is Clarence Coal Pty Limited (Clarence) and the Respondents are the Construction, Forestry, Mining and Energy Union (the CFMEU), Mr J Bannerman and Mr G Channing. The CFMEU is the bargaining representative for employees of Clarence who are members of that union. Mr Bannerman and Mr Channing are bargaining representatives for employees of Clarence who are employed as Deputies at the Clarence Colliery and who are members of the Colliery Officials Association of New South Wales (the COA).
[2] The application by Clarence contains the following grounds in support:
“1. On 11 August 2009 Clarence Coal Pty Limited (Clarence) gave notice to its employees under section 173 of the Fair Work Act 2009 (Cth) of its intention to bargain for an enterprise agreement which it proposed cover the following classes of employees at Clarence Colliery:
a. Production/Mining employees
b. Electrical trades employees
c. Mechanical trades employees
d. Deputies
2. The proposed enterprise agreement is intended to replace two existing agreements, namely, the Clarence Colliery Workplace Agreement 2006, and the Clarence Colliery Deputy Workplace Agreement 2007.
3. Clarence has received instruments appointing the Construction, Forestry, Mining and Energy Union (CFMEU) and Mr James Bannerman/Mr Gerry Channing in their capacity as officials of the Colliery Officials Association of New South Wales (COA) as bargaining representatives for the purpose of the negotiations for the proposed enterprise agreement.
4. Meetings have been held between Clarence and representatives of employees on 18, 21, 24 and 27 August 2009 for the purpose of negotiating an enterprise agreement.
5. Employees who are members of the COA and who are represented by Mr James Bannerman/Mr Gerry Channing have advised at the meetings and through their legal representative that the proposed agreement should not cover employees employed in the classification of deputy. The participation of such employees, through their representatives in the bargaining process has been stated at the meetings to be conditional upon this matter being resolved.
6. Clarence has concerns that bargaining for the proposed enterprise agreement is not, in these circumstances, proceeding efficiently or fairly because the representatives of employees who are members of the COA are participating in bargaining on a conditional basis.
7. The reason bargaining is not proceeding efficiently or fairly is a concern as to whether the proposed enterprise agreement will cover employees, namely deputies, that it is not appropriate for it to cover.
8. Clarence contends that the proposed enterprise agreement should cover the classifications set out in paragraph 1, including deputies, on the basis that all deputies work at the same geographical location as other employees to be covered by the proposed enterprise agreement.
9. Clarence has met and is meeting the good faith bargaining requirements. If a scope order was to be made in its favour it would continue to recognise the right of employees in the classification of deputy to be represented both during negotiations for the proposed enterprise agreement and thereafter during their employment by the organisation or persons of their choice.”
[3] The Respondents were served with a notice pursuant to s.238(3) of the Act. The application first came before me on 14 September 2009 in Sydney. Clarence was represented by Mr S Woodbury of Blake Dawson, the CFMEU by Mr P Pasfield, solicitor. Mr J St Vincent Welch appeared with Mr Channing for Deputies at the Clarence Colliery who are members of the COA. Ms C Bolger of the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) sought, and was granted, limited rights to appear by way of a submission on behalf of APESMA. The application was then adjourned until 24 September 2009 in Sydney for a full hearing. The parties were to supply written materials prior to the hearing and did so. APESMA provided a written submission.
[4] At the hearing on 24 September 2009, Mr Woodbury continued to appear for Clarence. Mr A Slevin of Counsel now appeared for the CFMEU and Mr R Keller of Higgins & Higgins Lawyers together with Mr I Collins appeared for the Deputies who are members of the COA. Ms K Rooke appeared by way of intervention for APESMA. Mr B Vanderventer, the Mine Manager at the Clarence Colliery, gave evidence for Clarence and provided a witness statement 1. Mr G Osborne, the CFMEU’s District Vice President, South-western District Branch, gave evidence for the CFMEU and provided a witness statement2. Mr G Channing, a Deputy at the Clarence Colliery and the Secretary of the Western District Branch of the COA, gave evidence on behalf of Deputies who are members of the COA at the Clarence Colliery and provided a witness statement3. The CFMEU supported the application by Clarence. It was opposed by Mr Bannerman and Mr Channing as representatives of the Deputies who are members of the COA. APESMA adopted what would best be described as a neutral position.
Legislative Framework
[5] Section 238 of the Act provides:
“238 Scope orders
Bargaining representatives may apply for scope orders
(1) A bargaining representative for a proposed single-enterprise agreement may apply to FWA for an order (a scope order) under this section if:
(a) the bargaining representative has concerns that bargaining for he agreement is not proceeding efficiently or fairly; and
(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.
No scope order if a single interest employer authorisation is in operation
(2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.
Bargaining representative must have given notice of concerns
(3) The bargaining representative may only apply for the scope order if the bargaining representative:
(a) has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and
(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(c) considers that the relevant bargaining representatives have not responded appropriately.
When FWA may make scope order
(4) FWA may make the scope order if FWA 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 FWA 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, FWA 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 FWA may make
(7) If FWA makes the scope order, FWA 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 FWA, or take such other actions, as FWA considers appropriate.”
Conclusion
[6] The Applicant employer in this matter has requested an urgent decision from me and is content for me to issue such decision with limited analysis and reasons, at least in the first instance.
[7] Accordingly, after considering the evidence, materials and submissions presented as part of the hearing, it is my decision to refuse the application largely pursuant to s.638(4)(b) in that I am not convinced that the making of such an order “will promote the fair and efficient conduct of bargaining”. In making my decision, I have paid regard to all the requirements contained in s.238 of the Act. Broadly, it is my view that the making of a scope order at this time would disadvantage Deputies employed by Clarence and thus not be fair. Should any of the parties require further written reasons for my decision, those further reasons will be provided in due course.
[8] The application for a scope order by Clarence is hereby dismissed.
COMMISSIONER
Appearances:
S Woodbury for Clarence Coal Pty Limited.
A Slevin of counsel, for the Construction, Forestry, Mining and Energy Union.
R Keller, solicitor, for the Collieries Officials Association of New South Wales.
K Rooke for the Association of Professional Engineers, Scientists and Managers, Australia.
Hearing details:
2009.
Sydney:
September 14, 24.
1 Exhibit Clarence 1.
2 Exhibit CFMEU 1.
3 Exhibit COA 1.
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