Construction, Forestry, Maritime, Mining and Energy Union v Os McAp Pty Ltd T/A Operations Services

[2021] FWC 6706

[2021] FWC 6706

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.238—Scope order

Construction, Forestry, Maritime, Mining and Energy Union
v
OS MCAP Pty Ltd T/A Operations Services
(B2021/246)

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union
v
OS ACPM Pty Ltd
(B2021/269)

DEPUTY PRESIDENT ASBURY BRISBANE, 31 DECEMBER 2021

s.238—Applications for scope orders – Relevant principles – Consideration of competing applications made by two union bargaining representatives – Relevance of employer position in relation to scope where counter application not made by employer – Whether impasse in bargaining caused by scope or structure of agreements proposed by employer – Finding that making the order will not promote the fair and efficient conduct of bargaining – Finding that is not reasonable in all the circumstances to make either order – Circumstances where there are two competing union scope applications relevant to whether reasonable to make order – Applications dismissed.

SUMMARY

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) apply under s. 238 of the Fair Work Act 2009 (FW Act) for scope orders relating to two employers: OS MCAP Pty Ltd and OS ACPM Pty Ltd. Both employers are companies within an asset of BHP known as Operations Services (OS).

[2] OS is a production and maintenance services provider to any BHP Minerals Australia business group (BHP) operations. OS ACPM (OS Maintenance) provides maintenance services and OS MCAP Pty Ltd (OS Production) provides production services. The principal operations in which OS Maintenance and OS Production undertake work are BHP’s black coal mining and iron ore mining operations which I will refer to as metalliferous mining (ie. including metals, minerals, ores, phosphates, gemstones, mineral sands, uranium and other radioactive substances) 1 or as the parties refer to that sector, non – coal mining. Bargaining initiated by OS Maintenance and OS Production has been proceeding for two agreements: an OS Maintenance agreement covering all maintenance employees across the black coal and metalliferous mining industries and an OS Production agreement to cover all production employees across the black coal and metalliferous mining industries.

[3] The CFMMEU scope application, filed on 9 April 2021, proposes an agreement to cover all employees of OS Production and OS Maintenance performing work covered by Schedule A of the Black Coal Mining Industry Award 2010 (Black Coal Award) undertaking production and maintenance activities in the black coal mining industry. The CFMMEU application states that the Union is not a bargaining representative of employees working on “non-coal operations” and that the scope of an enterprise agreement covering those employees is a matter for the relevant bargaining representatives. The CFMMEU also observes that a single enterprise agreement covering non-coal employees undertaking maintenance and production work would seem to be logical.

[4] The AMWU proposes three agreements covering OS Maintenance employees as follows:

•  Queensland employees performing maintenance in the black coal industry;

•  Western Australian employees performing maintenance work in the metalliferous mining industry, excluding rail; and

•  New South Wales employees performing maintenance work in the black coal industry in the unlikely event that OS Maintenance employs persons at the Mt Arthur Mine in that State although this claim was not pressed.

[5] The AMWU does not express a view about the scope of agreements covering production employees of OS Production, in the areas it seeks to establish maintenance agreements. The Australian Workers Union (AWU) supports the CFMMEU’s application. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) supports the AMWU’s application and in the alternative, supports the scope proposed by the CFMMEU.

[6] OS Production and OS Maintenance oppose both applications and each seeks to continue bargaining for separate production and maintenance agreements, with both agreements covering black coal mining and metalliferous mining operations. Neither OS Maintenance nor OS Production made an application for a scope order in response to the CFMMEU or AMWU application.

[7] There is some history to the bargaining. OS Production and OS Maintenance respectively issued notices of employee representational rights in August 2018 and commenced bargaining with employees for an OS Maintenance agreement and an OS Production agreement. Each employer invited employees to vote on a proposed agreement and in October 2018, applications were made to the Commission for approval of the agreements. The applications were determined together and the agreements were approved. 2 In each case, on appeal to a Full Bench of the Commission, the approval decisions were quashed3. On rehearing, the applications for approval of the agreements were refused by the majority of the Full Bench, which found that the agreements were not genuinely agreed4.

[8] Bargaining for those proposed agreements continued and the present applications were made after nine meetings were conducted, five in relation to the proposed production agreement and four in relation to the proposed maintenance agreement. At the time the applications were heard seven meetings had been conducted for the proposed OS Maintenance agreement and six for the proposed OS Production Agreement.

[9] By an Order issued on 29 November 2021, I dismissed both the CFMMEU and the AMWU applications. These are my reasons for deciding to dismiss the applications. I regret that I was not in a position to provide written reasons to the parties at the time the Order was made. I caused my Associate to correspond with the parties to inform them of this and to acknowledge that the reasons would not be provided within the 21 day period for any application to appeal to be made. The parties were further informed that I had no issue with my correspondence being referred to by any party seeking to appeal.

PROCEDURAL HISTORY OF THE SCOPE APPLICATIONS

[10] The scope applications were allocated to me and listed for Mention on 21 April 2021. In addition to Directions for hearing, the Mention dealt with whether the applications should be joined so that evidence in one was considered as evidence in the other or whether the applications should be heard together for convenience, without formally being joined. No formal application for joinder was made and the matters were listed for hearing on the basis that they would be heard together.

[11] Permission for the parties to be legally represented was granted pursuant to s. 596 of the FW Act, on the basis that I was satisfied that it would allow the matters to be dealt with more efficiently taking into account its complexity. I was also satisfied that no issues of fairness arose on the basis that all parties were represented by experienced Advocates or lawyers. The CFMMEU was represented by its National Legal Officer Mr Adam Walkaden. The AMWU was represented by Mr Robert Reed of Counsel instructed by Maurice Blackburn Lawyers. OS Production and OS Maintenance were represented by Mr Michael Coonan of Herbert Smith Freehills. The AWU was represented by its Senior National Legal Officer Mr Stephen Crawford and made submissions. Mr Michael Wright, National Assistant Secretary, appeared for the CEPU at the commencement of the hearing and after indicating the CEPU’s position, did not seek to participate further.

[12] At the commencement of the hearing, the AMWU, CFMMEU and CEPU submitted that the evidence in one matter should be considered as evidence in the other. In this regard, it was submitted that the AMWU and the CFMMEU have competing applications and that the Commission should be informed as to what witnesses for each said about the scope sought by the other. It was also submitted that no issues of fairness arose on the basis that the parties had filed material in both matters in response to Directions and all parties knew what other parties said in relation to both applications. Further, it was submitted that any of the material might be objected to on the grounds of relevance. OS Production and OS Maintenance did not agree that the evidence in one matter would be the evidence in the other matter if inferences were to be made and conclusions drawn to their detriment, and otherwise did not take a position in relation to whether the applications should be joined.

[13] After considering the positions of the parties, I determined that the matters would be joined and that the evidence in one matter would be evidence in the other, to the extent that the evidence was relevant. I took this course on the basis that the CFMMEU and the AMWU had structured their submissions in this way, and that no issues of fairness arose on the basis that the Directions had required material, including outlines of submissions and statements of evidence from witnesses, to be filed with the Commission and served on all other parties, in advance of the hearing. I also indicated to the parties that given that they were represented by lawyers, if any issue of prejudice arose during the hearing in relation to the evidence given in one matter being taken to be evidence in the other, I would expect that the party who took issue would raise it so that concerns could be dealt with. No such objections were raised.

[14] Evidence for the CFMMEU was given by:

•  Mr Peter John Colley, National Research Director of the Mining and Energy Division 5; and

•  Mr Mitch Hughes, Senior Vice President of the Queensland Branch of the Mining and Energy Division 6.

[15] Evidence for the AMWU was given by:

•  Ms Cassandra Baynton, Maintenance Technician OS Maintenance 7;

•  Mr Mitchell Brotherton, Maintenance Worker OS Maintenance 8;

•  Mr Mark Malone, Service Person Maintenance OS Maintenance 9;

•  Mr Joshua John Allen, Maintenance Technician OS Maintenance 10;

•  Mr Renee Jones, Technical Maintenance OS Maintenance 11;

•  Mr Terrence Lee Taylor, Boilermaker OS Maintenance 12;

•  Mr Trevor Charles Hawken, Maintenance Technician OS Maintenance 13;

•  Mr Jacob Boss, Maintenance Technician OS Maintenance 14; and

•  Mr Kegan Wilson Scherf, Industrial Advocate Queensland Branch of the AMWU 15.

[16] Evidence for OS Production was given by Ms Allison Chauncy, Principal Employee Relations, BHP Coal Pty Ltd. Mr David Ruggieri, Manager Maintenance, OS Maintenance and Ms Jessica Morkel, Principal Employee Relations, BHP Coal Pty Ltd gave evidence for OS Maintenance.

[17] It was necessary to interpose the evidence of Ms Chauncy, when Mr Scherf became ill and was unable to give evidence in the three days initially scheduled for the hearing. Initially, Mr Coonan sought that witnesses for OS not give evidence prior to Mr Scherf giving his evidence. When it became clear that Mr Scherf’s incapacity would continue past the three days initially scheduled for the hearing, Ms Chauncy’s evidence was brought forward on the proviso that permission could be sought by the Mr Coonan to recall Ms Chauncy if necessary, after Mr Scherf had given his evidence. Three additional days of hearing were scheduled and Mr Scherf, Ms Morkel and Mr Ruggieri gave their evidence on those days. Mr Coonan did not seek to recall Ms Chauncy.

LEGISLATION

[18] The provisions of the FW Act setting out the powers of the Commission to make a scope order are set out in s. 238 as follows:

“238 Scope orders

Bargaining representatives may apply for scope orders

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

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

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

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

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

Bargaining representative to give notice of concerns

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

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

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

(c)  considers that the relevant bargaining representatives have not responded appropriately.

When the FWC may make scope order

(4)  The FWC may make the scope order if the FWC is satisfied:

(a)  that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and

(b)  that making the order will promote the fair and efficient conduct of bargaining; and

(c)  that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and

(d)  it is reasonable in all the circumstances to make the order.

Matters which the FWC must take into account

(4A)  If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Scope order must specify employer and employees to be covered

(5)  The scope order must specify, in relation to a proposed single-enterprise agreement:

(a)  the employer, or employers, that will be covered by the agreement; and

(b)  the employees who will be covered by the agreement.

Scope order must be in accordance with this section etc.

(6)  The scope order:

(a)  must be in accordance with this section; and

(b)  may relate to more than one proposed single-enterprise agreement.

Orders etc. that the FWC may make

(7)  If the FWC makes the scope order, the FWC may also:

(a)  amend any existing bargaining orders; and

(b)  make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by the FWC, or take such other actions, as the FWC considers appropriate.”

[19] The good faith bargaining requirements referred to in s. 238(4)(a) are established by s.228 of the Act and are as follows:

“228 Bargaining representatives must meet the good faith bargaining requirements

(1)  The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a)  attending, and participating in, meetings at reasonable times;

(b)  disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c)  responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d)  giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;

(e)  refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f)  recognising and bargaining with the other bargaining representatives for the agreement.

Note:          See also section 255A (limitations relating to greenfields agreements).

(2)  The good faith bargaining requirements do not require:

(a)  a bargaining representative to make concessions during bargaining for the agreement; or

(b)  a bargaining representative to reach agreement on the terms that are to be included in the agreement.”

APPROACH TO CONSIDERATION OF SCOPE APPLICATIONS

[20] The cases in relation to the approach to consideration of scope applications were extensively canvassed in the submissions of the parties. Generally, s. 238 of the Act is directed to the fair and efficient conduct of bargaining and is 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 it remains the case that the purpose of the order is to promote the fair and efficient conduct of bargaining. 16

[21] The scope of an agreement is a matter that can of itself, be the subject of bargaining. 17 As a Full Bench of the Commission observed in BRB Modular v AMWU18 the scheme of the Act is that enterprise agreements are made by the employer and employees covered by them, and the terms of agreements, including their scope are matters for the parties to address in the bargaining process. the Full Bench in that case went on to observe that the involvement of the Commission in the terms of enterprise agreements is very limited but that one exception is when the test for issuing a scope order is satisfied.19 Later in that decision the Full Bench also observed that the scope of an enterprise agreement is frequently the subject of competing claims, and it will rarely be appropriate to say that one scope proposal is wrong and another correct. There may be justification for preference one way or another and hence it is usually left to the parties to determine in the overall context of the bargaining framework.20

[22] The matters in s. 238(1) – (3) are prerequisites to the making of an application for a scope order. While the test for the purposes of s. 238(1) as to whether a bargaining representative has concerns that bargaining is not proceeding efficiently or fairly might be subjective, the validity of those concerns is also subject to a reasonableness test, such that the concerns must be reasonable and logical 21, and are not fanciful or asserted merely for the purpose of attracting jurisdiction.22 The requirement in s. 238(2) is a question of fact as to whether or not a single interest declaration is in operation in relation to the agreement.

[23] Section 238(3) provides that a bargaining representative may only make an application for a scope order if the bargaining representative has taken all reasonable steps to give written notice setting out its concerns that bargaining is not proceeding efficiently and that the reason is the coverage or scope of the agreement. In AMIEU v Woolworths 23a Full Bench of the Commission considered whether the AMIEU had met the requirements in s. 283(3)(a) in the terms it was then framed, which simply required a written notice setting out concerns to be given to relevant bargaining representatives. In that case, the AMIEU had copied other bargaining representatives into a notice it provided to Woolworths setting out its concerns and seeking a response. The circumstances in that case were that Woolworths had reached agreements with the Shop Distributive and Allied Employees Association (SDA) and the AMIEU disputed the ability of the SDA to represent certain employees.

[24] The Full Bench accepted the conclusion at first instance that by copying the SDA into the letter to Woolworths, the AMIEU had not satisfied the requirements in s. 283(3)(a) on the basis that the AMIEU letter was a letter to Woolworths raising concerns about Woolworths’ conduct and seeking Woolworths’ response on three matters, two of which were specific to the AMIEU and Woolworths and “could not reasonably be read as a notice given to the SDA setting out the AMIEU’s concerns to which the SDA could respond”. The Full Bench went on to observe:

“[18]Because of the nature of the AMIEU’s letter of 8 September we do not need to address the broad question of whether “copying in” one party on the notice given to another is sufficient compliance with s.238(3)(a). As a general approach, we would be reluctant to adopt a pedantic approach to such matters. Suffice to say that in this case the AMIEU in sending a copy to the SDA of its letter to Woolworths did not meet the requirements of ss.238(3)(a) and (b). It had no basis for the consideration required by s.238(3)(c).”

[25] Section 238(3)(a) was amended in 2012 to by the addition of a reference to a bargaining representative taking “all reasonable steps” to notify relevant bargaining representatives of concerns with respect to the scope of an enterprise agreement. That amendment was directed at the steps taken to identify and notify relevant bargaining representatives rather than the content of the notice. 24

[26] The present case concerns two separate and competing scope applications. In AWU v BP Refinery Kwinana 25 was considering competing applications made by the employer and the AWU. The Full Bench said:

“[23] It is true that the Commission can only make a scope order when such an order will be “necessary to promote fair and efficient conduct of bargaining”. Where, as here, bargaining is at an impasse because of the disagreement over scope of a proposed enterprise agreement and the Commission is confronted with competing applications an order is “necessary” to break that impasse.

[24] When considering two competing applications in a particular case, it may properly be found in the case of each application that “making the order sought will promote the fair and efficient conduct of bargaining” within the meaning of s.238(4)(b). The relative degree of promotion of such fairness and efficiency in the conduct of bargaining will obviously be relevant to a determination of which of the two competing applications should be accepted.” 26

[27] The Full Bench went on to say:

“[43] The Commissioner was considering two separate and competing applications for a scope order. Each had to be considered on its own merits. In circumstances where each of the competing proposed agreements satisfied the requirements in s.238(4)(a) to (c), the resolution of the competing applications is governed by s.238(d). One of the two applications will be a more reasonable exercise of discretion. It would not be reasonable to make the orders sought in the other application.”

[28] The tests which must be satisfied for a scope order to be issued, are essentially set out in s. 283(4). The preamble to s. 283(4) indicates that the power to make a scope order is discretionary and can be exercised only if all criteria in section 284(a) – (d) are satisfied. 27 Section 283(4)(a) requires that the Commission is satisfied that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements. The good faith bargaining requirements are set out in s. 228 of the Act and it is not necessary to discuss them here.

[29] Section 238(4)(b) requires that the Commission is satisfied that making the order will promote the fair and efficient conduct of bargaining. The section directs attention to the efficiency of bargaining, rather than to efficiency generally. Accordingly, while efficiency in the context of the work that is performed by employees to be covered by the agreement or the way that the employer seeks to organise the work or to structure operations, may be relevant to considering whether it is reasonable in all the circumstances to make the order, these matters are relevant for the purposes of s. 238(4) insofar as they impact on the fairness and efficiency of bargaining. The following principles in relation to fairness and efficiency of bargaining and the reasonableness of making a scope order, can be distilled from the cases:

•  Section 238(1), does not require that present bargaining be considered unfair or inefficient, but findings to this effect would clearly be relevant and conducive to a finding that a scope order should be made 28.

•  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. 29

•  The Commission should be less inclined to make a scope order where bargaining would be marginally fairer but less efficient, or vice versa. 30

•  The term “promote” in s. 238(4)(b) conveys a notion of advancing or furthering progress and it is not sufficient that there is a nebulous correlation between the scope order and fairness and efficiency. 31 

•  Considerations of fairness and efficiency supporting the grant of a scope order should not be merely speculative or presuppose outcomes of bargaining 32 and nor should they be hypothetical.33

•  The efficiency of bargaining may be affected by the duplication created in bargaining for two agreements when compared with a single agreement 34 but there is no statutory bias in favour of an enterprise agreement that covers as much of the employer’s enterprise as possible.35

•  The scope order provisions are focussed on the bargaining process and not on the fairness of any outcome of bargaining. 36

•  A scope order application is not a proper vehicle to ventilate and address good faith bargaining concerns. 37

•  Issues of mere inconvenience or preference with the bargaining process are not decisive to whether a bargaining process is fairer or more efficient. 38

•  The history of bargaining between the parties including any status quo with respect to earlier agreements, is a relevant consideration as to whether a scope order should or should not be made. 39

•  Seeking leverage by increasing the bargaining power by weight of numbers is not a valid basis to make a scope order. 40

•  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. 41

[30] In relation to the views of employees, in UFU v MFESB 42 a Full Bench of the Commission held that in deciding whether to make a scope order, the views of employees may be taken into account, but it is necessary to have regard to the overall context. The Full Bench in that case also held 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 make it appropriate to make a scope order contrary to the views of those employees.43 It should be noted that the Full Bench in UFU v MFESB stated that the conclusions in its decision were bound up with the findings on the evidence and were not intended to be expressions of general principle.44 In the later decision in AWU v BP Refinery Kwinana45,a Full Bench of the Commission held that where a group proposed by a union bargaining representative is reasonable and is supported overwhelmingly by employees, it should be preferred unless there is some good reason for to prefer groups proposed by the Company. In finding that there was no proper basis to prefer the groups proposed by the Company, the Full Bench said that:

“…unless there are factors relating to the fairness and efficiency of bargaining and demonstrated prejudice to the employer’s business operations that make it more reasonable to accept the employer’s application notwithstanding the contrary preference of employees, weight should be accorded to the views of employees.”

[31] The Full Bench went on to conclude that:

“There was nothing in the evidence to demonstrate how the Company would be prejudiced if in the fairness and efficiency of bargaining, or in its business operations, through a combined group proposed by the Union rather than separate agreements that had existed for many years.” 46

[32] In relation to the question of whether a group of employees is fairly chosen, a Full Bench of the Commission held in Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd 47that the Commission is not required to make a positive finding or express satisfaction that a group is geographically, organisationally or operationally distinct, but rather that the Commission take this into account. In Aerocare Flight Support Pty Ltd v Transport Workers’ Union48a Full Bench of the Commission set out relevant principles in relation to finding whether a group of employees are fairly chosen for the purposes of s. 186(3) – (3A) of the Act. The provisions are virtually identical and it is appropriate to apply these principles for the purpose of considering whether a group of employees is fairly chosen to determine whether a scope application should be made. Relevantly, Aerocare establishes that:

•  Once it has been determined that an agreement does not cover all of the employees of the employer, it is necessary for the Commission to make a finding as to whether the group of employees who are covered is geographically, operationally or organisationally distinct, and then take that matter into account and give it due weight, having regard to all other factors;

•  If the group of employees covered by the agreement is geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen; conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen;

•  However while the question of whether the group of employees covered is geographically, operationally or organisationally distinct must be evaluated and given due weight having regard to all other relevant considerations, that is not a determinative consideration in that it is not necessary to make a finding that the group is geographically, operationally or organisationally distinct in order to be satisfied that it was fairly chosen;

•  The selection of the group of employees to be covered on some objective basis, as opposed to an arbitrary or subjective basis, is likely to favour a conclusion that the group was fairly chosen;

•  The relevant considerations will vary from case to case, but the word “fairly” suggests that the selection of the group covered was not arbitrary or discriminatory, so that for example selection based upon employee characteristics such as date of employment, age or gender would be likely to be unfair; and

•  It is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreement’s coverage and the employees excluded.” 49

[33] There are a number of references to cases decided by single members of the Commission cited in the final submissions filed on behalf of OS Maintenance and OS Production which it is necessary to comment on. Some of the cases are not authority for the proposition said by OS to have been confirmed in the case. The OS final submissions also cited the Decision of Vice President Watson in Re Svitzer Australia Pty Ltd 50 as authority for the proposition that “the alleged problems must be real and substantive about the efficacy of bargaining.” The proposition is not specifically set out in the Decision cited. That Decision dealt with the interaction between an application for a scope order and an application for approval of an enterprise agreement in relation to the same bargaining. After deciding not to remove an application for a scope order related to the same bargaining from another member of the Commission, Vice President Watson determined the approval of the agreement. In doing so, the Vice President made some passing observations about the purpose of a scope application to the effect that it is premised on bargaining representative having concerns that bargaining is not proceeding efficiently or fairly and the factors to be considered in determining the application are whether a scope order will promote fair and efficient conduct of bargaining and whether it is reasonable in all the circumstances to make a scope order that will determine the employees to be covered by a proposed agreement.

[34] The OS submissions also cite the Decision of Commissioner Hampton in APESMA v Australian Red Cross Blood Services 51as standing for the proposition that the Commission must reach a level of satisfaction that “there is sufficient evidence of the specific improvements in the bargaining process from the proposed new scope that make it more fair and more efficient”. The Decision of Commissioner Hampton does not contain such a statement but is does state that considerations supporting an application for a scope order cannot be merely speculative.52

[35] OS also cited a decision of Commissioner Roe in HSU v Royal District Nursing Service 53and the Decision of a Full Bench on appeal from that decision, as authority for the proposition that the Commission must be satisfied that “it would be fairer or more efficient for all”. While the OS submission does not identify what it is that should be fairer or more efficient for all, it is presumably bargaining. This proposition is not found in those terms in either the decision of Commissioner Roe at first instance or the decision of the Full Bench in the appeal affirming that decision. In the first instance decision Commissioner Roe made the following statement (cited by the Full Bench in the appeal):

“There are a number of considerations I have set out earlier which favour a conclusion that making the order will make the bargaining fairer and or more efficiency that [sic] if the order was not made. In addition there are two considerations where no positive finding can be made. However, in respect to those two considerations I am not satisfied that making the order would adversely affect the ability of bargaining to meet the needs of the changing structure and objectives of the business in the Head Office area. I am also satisfied that there will be no significant negative impact on fairness in respect to the bargaining strength of employees or the employer or the prospects of reaching an agreement if the order was made. Taking all of the matters into consideration I am satisfied that the test in Section 238(4) is met in that I am satisfied on balance that bargaining will at least be fairer and more efficient than it would be if no order were to be made. The order would promote fair and efficient conduct of the bargaining.” 54

[36] Commissioner Roe did not specifically find that bargaining must be fairer or more efficient for all, but rather that on balance, bargaining will be fairer and more efficient. This finding is framed in a manner that is consistent with the terms of the statute, as is acknowledged by the Full Bench in the appeal against the Commissioner’s decision. Fairness and efficiency relevant to the making of a scope application, is with respect to the bargaining process and not simply the interests of the parties. While the interests of the parties may be relevant to the overall consideration of whether bargaining will be fairer or more efficient if an order is made, those interests and their advancement are not determinative, but instead, are weighed in the balance to decide whether the discretion to make an order should be exercised. It may be the case that on balance, the Commission is satisfied that making an order will promote the fair and efficient conduct of bargaining so that it will be fairer or more efficient, notwithstanding that the making of such an order is contrary to the interests of one or more parties so that it could not be said to be fair to that party.

[37] I also do not accept that making a scope order is conditioned by the requirement of fairness and efficiency to all. If there was such a requirement, it is doubtful that a scope order would ever be made. Such an approach is also contrary to the authorities. As the Full Bench found in UFU v MFSB while weight should be given to the views of the employees potentially affected, 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. In AWU v BP Refinery Kwinana a scope order was made contrary to the views of the employer.

[38] OS also cites the decision of Commissioner Cambridge in APT Management Services Pty Ltd v AMWU & Ors 55 as establishing that “…unions should not impede or frustrate the employer’s legitimate scope, particularly if bargaining is proceeding efficiently or fairly”. In my view, this overstates the finding in that decision, which read in context, is in the following passage:

“In this instance I am most concerned that the impasse reached with the bargaining has been, in no small part, attributable to the apparent mistrust and friction between different Branches of one or more of the Unions. In some respects the historical State based Branch structure of the Unions has operated to impede and frustrate the employer’s legitimate and sensible reconfiguration for industrial instrument coverage.”

[39] Rather than a general statement of principle, Commissioner Cambridge’s point clearly relates to the specific circumstances of that case and in particular, friction between the various branches of a union. It is certainly not a statement to the effect that the wishes of the employer with respect to scope are given precedence on the basis that they are viewed as “legitimate”. To the contrary, as the Full Bench in BRB Modular observed, the scope of an enterprise agreement is frequently the subject of competing claims, and it will rarely be appropriate to say that one scope proposal is wrong and another correct.

[40] Another proposition advanced by OS is that “A scope order is not a tool for removing an impasse. It can give one party an unfair advantage over others.” The source from which this proposition is said to be derived is the following passages in Re SDA 56:

“[105] However the SDA submits that making the scope order will remove the sticking point which is preventing the parties conclude bargaining for the new Distribution Agreement. It is submitted that bargaining currently is not proceeding because the parties are at an impasse on the issue of the new Distribution Agreement’s scope. Whilst this is correct it cannot be ignored that this state of affairs has only come about as a consequence of the SDA putting forward a claim for a different scope which Inghams does not agree to

[106] To reward a party making a claim that the second party rejects with a decision in favour of the first party’s claim simply to remove the rejection of that claim from blocking further negotiations unfairly assists the first party which made the claim to the detriment of the second party and so in my view would offend subsection 238(4)(d) of the Act because this approach in isolation would not be reasonable.”

[41] It is relevant that the passages cited above, are preceded by a finding at [104] that it is not apparent from the evidence that the conduct of bargaining to date had been unfair or inefficient. Clearly, where scope is an impasse between bargaining parties and is causing unfairness or inefficiency in the bargaining process, a scope order is the appropriate mechanism to remove it. In my view this proposition is better framed as: Simply arguing that a scope order will remove the source of an impasse between the parties and allow bargaining to recommence is not of itself, a persuasive reason for the Commission to exercise the discretion to make a scope order.

POSITIONS OF THE PARTIES

Issues not in dispute

[42] It is not in dispute that bargaining has commenced. Nor is it in dispute that the CFMMEU and the AMWU are bargaining representatives for the enterprise agreements proposed by OS Production and OS Maintenance (s. 238(1)) and that the Unions have standing on this basis to make the applications. OS Maintenance and OS Production initially objected to the applications asserting that these entities are not engaged in a common enterprise. It was later conceded that OS Maintenance and OS Production are single interest employers and that the agreement proposed by the CFMMEU is a single enterprise agreement. Based on the evidence before me I am satisfied that this concession is correct, and that OS Maintenance and OS Production are single interest employers as provided in s. 172(5).

[43] It is also not disputed that the AMWU and the CFMMEU are meeting the good faith bargaining requirements as required by s. 238(4)(a) of the FW Act. The CFMMEU accepts that the group of employees specified in the AMWU scope application are fairly chosen.

The relationship between OS Maintenance, OS Production and BHP

[44] Given the concession that OS Maintenance and OS Production are single interest employers, it is not necessary to traverse in detail the evidence about the structure of OS and its relationship with other BHP entities. It is sufficient to note that Mr Colley gave evidence about the relationship between OS and BHP and tendered various documents evidencing that OS employees are told that they are permanent employees of BHP and that the Company proclaims to the world at large that there is no difference between OS and BHP. 57 In particular, Mr Colley gave evidence that there is a dedicated section concerning OS on the BHP website. There is a question near the top of the first webpage in the section concerning OS: “What is OS all about?” with the following text displayed below that question:

“BHP Operations Services (OS) is a Production and Maintenance workforce. We offer permanent roles within BHP with full-time benefits including flexible working arrangements and more.”

[45] Each of the webpages in the dedicated OS section on the BHP website refer to either BHP Operations Service, Operations Services or OS. There is no specific reference to either OS MCAP Pty Ltd or OS ACPM Pty Ltd. Mr Colley also gave evidence about questions and answers included in a section of BHP’s website dedicated to OS containing the following information: OS will offer permanent employment opportunities; there is no difference between BHP and OS; OS is still BHP; OS is a new team within BHP that will provide production and maintenance services; and employees of OS will be permanent BHP employees. 58 Mr Scherf supported the evidence of Mr Colley about the relationship between OS and BHP and referred to similar material to that referred to by Mr Colley.

[46] Mr Ruggieri’s evidence about the OS entities explained that Operational Services (OS) is an asset within the BHP Group which is a production and maintenance services provider to any BHP Minerals Australia business. The OS asset does not have any alliance or joint venture obligations or reporting structures.

[47] OS Maintenance and OS Production are companies within the OS asset. Each company may have different clients with which they may have different and unrelated standing contractual arrangements. Each company provides totally different services. The services of one company do not support that of the other. Nor does one depend on the other. Each also has its own budget and profitability targets. Each pursues its own business plan.

[48] Mr Ruggieri stated that OS Maintenance provides maintenance services to other assets but not to OS Production. It provides maintenance services to any equipment within an asset. This means it provides maintenance services to mobile equipment that OS Production does not use. It also maintains fixed plant such as conveyors, CHPPs, ROMs, Ore Handling Plants and load out facilities. OS Production does not provide production services in these areas.

[49] According to Mr Ruggieri, the mission for the OS Maintenance business is to deliver consistent and improving outcomes in “mech-elec” reliability and performance, and in health and safety. The business is structured nationally to concentrate on a single service and foster commonality of tasks across product groups in that service and provide a consistent, stable approach to the provision of maintenance services in the business. In the case of OS Production, it is in mining production services. It was structured that way to remove silos and to make it easier to design, create and transfer cross asset solutions and innovations. According to Mr Ruggieri, a maintenance agreement supports that objective. In contrast, a product-based agreement is antithetical to that model. Further, the proposed EA will still allow for local solutions to local problems.

Disputed issues

[50] OS Maintenance and OS Production submit in relation to both applications that there is no jurisdiction to make any scope order because:

•  Neither Union could hold genuine concerns that bargaining for either of the Agreements proposed by the OS entities is not proceeding efficiently or fairly, or to the extent that the Commission considers it does, the reason for this is that either agreement will not cover appropriate employees or will cover employees that it is not appropriate for the agreement to cover;

•  There are procedural flaws in the concerns process for at least the CFMMEU application;

•  There is no basis for either the AMWU or the CFMMEU to consider that either OS Maintenance or OS Production have not responded appropriately to the concerns in relation to scope; and

•  The making of that scope order will not promote the fairer and efficient conduct of bargaining.

[51] OS Maintenance and OS Production also submit in relation to both applications that it is not reasonable in all the circumstances to make an order as:

•  Bargaining has not been unfair or inefficient;

•  Making any order will not promote fairer or more efficient conduct of bargaining; and

•  The group of employees who will be covered by the Agreements as proposed in the scope order are not fairly chosen.

[52] The CFMMEU rejects the submissions of OS Maintenance and OS Production and in relation to the AMWU application contends that:

•  The AMWU has not complied with s. 238(3) of the FW Act because its notice of concerns in relation to bargaining sought a response only from OS Maintenance and not from other bargaining representatives;

•  The persons to whom the notice was addressed included some persons who were not bargaining representatives and who were not involved in bargaining for the maintenance agreement; and

•  The question is not whether the AMWU took all reasonable steps to give a written notice to other bargaining representatives, but rather, whether the AMWU notice is a written notice setting out relevant concerns and inviting a response, consistent with the requirements set out in the decision of a Full Bench of the Commission in AMIEU v Woolworths Limited 59;

•  The scope order sought by the AMWU will not promote the fair or efficient conduct of bargaining; and

•  It is not reasonable in the circumstances to make the AMWU order.

[53] The position of the AMWU, summarised in its final submissions is that it:

•  Agrees with OS that there should be a bargaining distinction between maintenance and production;

•  Disagrees with OS over the need to maintain a bargaining distinction between coal and non-coal employees;

•  Agrees with the CFMMEU that there should be a bargaining distinction between coal and non-coal employees; and

•  Disagrees with the CFMMEU over the need to maintain a bargaining distinction between maintenance and production employees.

[54] As previously noted, the AWU supports the application of the CFMMEU and opposes the application of the AMWU. The CEPU supports the application of the AMWU and in the alternative, supports that advanced by the CFMMEU.

[55] Underpinning the competing positions about the scope of the agreements, is a question about whether scope should be occupational in that it is based on the work performed by employees or the industry in which it is to be performed, albeit the AMWU proposal is based on a combination of the work of employees and the industry in which it is performed. In addition to the contentions about whether various prerequisites for the making of the order have been satisfied, other areas of dispute focus on the impact of making or not making the order on efficiency and fairness of bargaining. I turn now to consider the submissions and evidence in relation to each of these matters.

BARGAINING MEETINGS

Background

[56] It is convenient to commence by setting out the evidence about the bargaining meetings. Meetings have been conducted for agreements proposed by OS Maintenance and OS Production. Due to the effects of the COVID – 19 Pandemic, bargaining meetings were held by videoconference.

[57] It is common ground that following the decisions of a Full Bench of the Commission dismissing the applications for approval of OS Maintenance and OS Production Agreements, a second round of bargaining commenced. Mr Hughes gave evidence about a series of correspondence with OS between 27 November and 11 December 2020, not disputed by Ms Chauncy or Ms Morkel, other than to refer to additional correspondence that was not discussed by Mr Hughes, which it is not necessary to consider. The first correspondence in the series was sent by Mr Hughes to Mr Swinnerton, the Vice President of OS on 27 November 2020 and comprised letters to OS Production and OS Maintenance respectively. In those letters Mr Hughes indicated that the CFMMEU sought an enterprise agreement with each of OS Production and OS Maintenance to cover employees performing work covered by Schedule A of the Black Coal Award and seeking meetings to timetable further meetings in respect of each proposed agreement.

[58] Mr Swinnerton responded on 3 December 2020 indicating the view that following the Decision of the Commission on 11 November 2020 dismissing applications for approval of enterprise agreements, OS considered that bargaining was still on foot and would continue to seek agreements with employees of OS Production and OS Maintenance respectively. Mr Hughes responded to that letter on 7 December 2020, disagreeing with the assertion that bargaining remained on foot and repeating his earlier request for bargaining to commence in relation to agreements for OS Production and OS Maintenance respectively.

[59] On 8 December, Ms Morkel copied Mr Hughes into a letter from BHP’s Manager Employee Relations, Ms McLellan, to Mr Maher of the CFMMEU, advising that simple safety net agreements were sought to reduce the complexities under multiple modern awards and that OS would now share proposed OS safety net agreements with its production and maintenance operational workforce and would be engaging with those employees. Copies of the proposed agreements were appended to the letter. On 11 December 2020 Mr Hughes sent correspondence to Ms McLellan taking issue with earlier assertions that bargaining remained on foot and seeking that new notices of employee representative rights (NERRs) be issued to employees.

[60] The letter also stated that the CFMMEU as a bargaining representative for its members, would be putting forward logs of claim and that a meeting was sought. After telephone discussions and exchanges of emails with Ms Chauncey and Ms Morkel, bargaining meetings were scheduled for the maintenance agreement on 17 December and the production agreement on 22 December 2020. Similar correspondence was exchanged between the AMWU and BHP which was tendered by Mr Scherf. 60 Mr Hughes also tendered three documents provided to him by Ms McLellan being a fact sheet entitled Operations Services Making an Agreement and two Q&A documents in relation to the maintenance and production agreements, which are in virtually identical terms. The Q&A document stated that separate agreements are sought for maintenance and production on the basis that they are separate employing entities and have slightly different ways of working. The Q&A document also states that while there are lots of similarities between the proposed production and maintenance agreements, there are also specific provisions such as types of work and classifications, which apply to one group.

[61] Prior to the scope applications being made, seven meetings have been conducted in relation to the proposed OS Maintenance Agreement and six in relation to the proposed OS Production agreement. The evidence about what was discussed at bargaining meetings was largely contained in comprehensive records of Meetings tendered by Mr Hughes, Ms Morkel and Ms Chauncy. Ms Morkel represented OS Maintenance at bargaining meetings for the maintenance agreement and Ms Chauncy represented OS Production at bargaining meeting for the production agreement. The attendees for the meetings have also included employee bargaining representatives and representatives of the Queensland District Branch of the CFMMEU Mining and Energy Division (CFMMEU Queensland), the Northern Mining and New South Wales Energy District Branch of the CFMMEU (CFMMEU New South Wales) (in respect of the OS Production agreement), the AMWU Queensland Branch, the AMWU Western Australian Branch, the AWU and the CEPU.

[62] The records of meetings were prepared by OS bargaining representatives and emailed to all bargaining representatives after each meeting. The records are in a standard from and consist of a summary of discussions at each meeting; documents such as draft agreements exchanged by the parties at or prior to the meeting; and an appendix summarising the topic of each bargaining proposal, a proposal summary and the Company’s response to such proposals. After each meeting the OS bargaining representatives prepared Updates which were posted on an information hub accessible by employees. To the extent that they document what was discussed at bargaining meetings and the positions of the parties, the records of meetings are objective. The update documents represent the subjective views of the OS Bargaining representatives and I have not considered them in any detail.

[63] There was no suggestion of any significant inaccuracies in the meeting records and where issue was taken with their contents by Union or employee bargaining representatives during the bargaining, there is evidence in the form of email exchanges confirming the issue and whether it had been addressed by revision of the relevant record of meeting. The witness evidence about the discussions at the meetings was largely based on the records of meetings and these are summarised below. Mr Hughes accepted in cross-examination that there was one occasion when he asked for clarification in the record of meeting and that every other record was accepted as accurate. 61 Evidence from witnesses of additional comments they made at various meetings or their views about the negotiations is also considered.

Bargaining meetings for proposed OS Maintenance agreement

[64] The first OS Maintenance bargaining meeting was held on 17 December 2020. The record of meeting confirms that OS Maintenance stated its position that a national agreement is important and that proposals tabled will be considered through a lens of simplicity, maximising flexibility and choice for employees and enabling OS to remain cost competitive and continue to grow. It is recorded that the CFMMEU and AMWU advised that scope is a concern and they are seeking a Queensland only agreement. The record of meeting also indicates that no proposals were tabled and Union bargaining representatives indicated that they would not be in a position to present proposals until late January 2021. 62

[65] On 21 January 2021, prior to a meeting on that date, logs of claims were received in respect of a proposed OS Maintenance agreement from the CFMMEU and AMWU. The second OS Maintenance bargaining meeting was held on 21 January 2021. The record of the meeting indicates that OS again explained its position that a national agreement is important and reiterated that proposals tabled will be considered through a lens of simplicity, maximising flexibility and choice for employees and enabling OS to remain cost competitive and continue to grow. The record of meeting also indicates that the CFMMEU Queensland and AMWU Queensland representatives talked to their proposals and that the AWU, CEPU and AMWU Western Australia did not put any proposals. Employee and Union bargaining representatives were informed that feedback had been received from employees on a range of topics including leave entitlements, flights and accommodation, superannuation, arrangements for working on Christmas Day and Boxing Day, allowances, accident pay, salaries/bonus and salary sacrifice options and that this was currently being considered by OS Maintenance.

[66] The CFMMEU log of claims appended to the meeting record, included a full and comprehensive Queensland coal agreement outlining all terms and conditions of employment and the AMWU sought an agreement that is “the supreme governing document for terms and conditions of employment” with separate agreements fitting this description, to cover black coal mining in Queensland, black coal mining in New South Wales and iron or mining in Western Australia. The AWU position is documented with respect to scope as “coal as separate production and maintenance agreements” and “metalliferous and other non-coal mining production and maintenance agreements”. 63 A log of claims was received from the CEPU after the second meeting and a representative of that Union was unable to attend. A log of claims from the AWU was received by OS Maintenance on 11 February 2021 and the CFMMEU Queensland provided a draft OS Maintenance Agreement on 16 February 2021.

[67] The third OS Maintenance bargaining meeting was held on 17 February 2021. The record of the third meeting tendered by Ms Morkel indicates that OS Maintenance repeated its previous statements that a national agreement is important to the Company and that proposals tabled will be considered through a lens of simplicity, maximising flexibility and choice for employees and enabling OS to remain cost competitive and continue to grow. The Appendix to the meeting record setting out the Company’s response to the various proposals indicates that in response to the scope proposals made by the CFMMEU and the AMWU, OS Maintenance indicated that is has a national business model and works across Minerals Australia and wants an agreement that covers its maintenance workforce across Australia to suit that model and to provide consistency and certainty to customers. 64 OS Maintenance agreed to change four of its proposed clauses, described as updating provisions for meal breaks and the minimum break time between shifts and clarifying annual leave and compassionate leave payments being at an employee’s annual salary rate.

[68] On 19 February 2021, Ms Morkel received an email from Mr Hughes in response to the record of meeting, seeking clarification on whether OS acknowledged the CFMMEU’s request for “any policy, procedure, handbook, or whatever it may be, that applies to any worker covered by the agreement, as those policies etc are impacting on [the CFMMEU’s] claims”. On 22 February 2021, Ms Morkel responded to Mr Hughes acknowledging his request and the requested documents were provided on 1 March 2021, comprising documents referred to in the Respondent’s proposed OS Maintenance Agreement or in response to union proposals. The email also attached information about the “Mastery Program” and quick reference guides which explain how the annual salary review process and OS incentive scheme work.

[69] The fourth bargaining meeting for the proposed OS Maintenance agreement was held on 10 March 2021. The record of meeting indicates that OS confirmed that all current OS Maintenance employees who fall under the scope of the Black Coal Award would be benchmarked against the Mineworker Specialised classification of that Award for the purposes of the over award guarantee in the proposed agreement and that future employees (such as those new to the industry) may be classified differently and would be advised of their classification at the time of hire. OS also confirmed that moving forward tooling would be provided to employees and indicated that it would consider a revised proposal on an additional payment for working on Christmas day should one be put forward. Further feedback from employees was shared by OS. OS also responded to previous proposals from employee and Union bargaining representatives in relation to clauses of the proposed Maintenance agreement as follows:

•  Provisions relating to relationship to parent award would not be amended as this was clear from the clause proposed by the Company;

•  A proposed clause relating to deskilling is too broad and OS wanted to retain the right to allocate work as it deems appropriate;

•  Proposed clauses relating to notice and payments for transfer and requiring transfers to be voluntary were rejected on the basis that the OS business model and point of hire approach allows the Company to transfer employees to other deployment sites as directed and the inclusion of further restrictions would limit flexibility and would not benefit employees who enjoy the flexibility to move between deployments;

•  Proposed clauses in relation to training were considered to be too prescriptive;

•  A claim that OS’ policy with respect to parental leave be the substance of the agreement clause and OS did not agree to have a wider BHP Group policy incorporated into the proposed Maintenance agreement.

•  Limitations on matters to be dealt with in the individual flexibility clause were rejected and in line with OS objectives for a simple safety net agreement, the model clause would be adopted;

•  A clause dealing with management of change and consultation proposed by the ETU was rejected on the basis that it was not consistent with the objective to have a simple safety net agreement;

•  Claims for transport for employees commuting, flights to and from work to be paid for by OS, and permanent camp accommodation were rejected on the basis of significant increases in costs which would result placing OS’ competitiveness at risk.

•  Claims relating to statutory health checks including extra payments in certain circumstances and that such checks be undertaken where practicable were rejected by OS on the basis that the matter is dealt with under relevant State safety legislation which is important given that OS works across and the agreement covers, different jurisdictions in Australia;

•  Claims for employees to have the right to be represented in relation to matters arising under the agreement, in the course of their employment and in meetings requiring a particular employee to attend were rejected on the basis that the issue resolution clause proposed by OS Maintenance makes it clear that an employee is entitled to a support person/representative and that for matters outside the issue resolution procedure employees are offered and entitled to have a support person (which may be a union representative) in appropriate circumstances;

•  A claim for income protection insurance to be provided by the Company and for the Company not to seek to remove itself from the jurisdiction of the workers’ compensation system in States where it operated was also refused on the basis of an increase in costs and risk to competitiveness.

•  Bargaining representative concerns regarding travel and accommodation were also discussed and OS Maintenance while acknowledging challenges maintains that the proposals would put its cost base and competitiveness at risk and it did not agree to terms about flights and accommodation being included in the agreement;

•  OS Maintenance agreed to consider a proposal about rental assistance in local communities in light of it not being charged for camp accommodation for employees living locally; and

•  OS advised that the agreement does not specify a higher rate for dual trades and would consider this only if the employee would be classified at a higher level under the award.

[70] The CFMMEU tabled a revised position in relation to scope, proposing a black coal agreement covering production and maintenance employees and a non-coal agreement covering production and maintenance employees. The record of meeting also indicates that the AMWU tabled a more detailed proposal in relation to the issues resolution clause to the effect that any issue may escalated to the Commission for arbitration without the consent of all parties, and that any party may raise an issue under the clause and that issues could be raised in relation to the agreement, the NES and as they arise in the course of employment. OS Maintenance undertook to consider those proposals. The record of meeting also indicates that:

“The parties had a robust discussion regarding the fact we are significantly apart in our objectives for the proposed agreement and the vast number of proposals tabled by the unions and employee bargaining representatives. The union raised that they consider that OS is not bargaining in good faith having rejected a significant number of claims. OS rejects this assertion and maintains that it has approached each bargaining meeting in good faith. OS asked the unions to narrow their proposals to areas of key importance to assist with a meaningful conversation at the next meeting.”

[71] On 18 March 2021, Ms Morkel circulated a copy of the proposed maintenance agreement which had been updated to reflect changes agreed to regarding meal breaks, minimum breaks between shifts and payments of annual leave and compassionate leave at the employee’s salary rate. The fifth bargaining meeting for the proposed OS Maintenance agreement was held on 6 May 2021. The record of meeting indicates that OS explained its position on award classifications for determining minimum rates of pay and answered questions about trades assistants and Future Fit Academy graduates. The AMWU is recorded as pressing concerns about salaries being included in the agreement and the reduction of contractual rates of pay being reduced and OS reiterated that it cannot legally reduce an employee’s contracted salary without their consent.

[72] It is also recorded that OS restated its objective of a simple safety net national agreement to maximise flexibility for employees and enable it to remain cost competitive and to grow. Feedback was also provided in relation to additional proposals received from bargaining representatives as follows:

•  A proposal for increasing salary rates in the agreement was rejected on the basis that the agreement provides for minimum salaries with employees having a contractual salary which may be higher and employees will be remunerated fairly and competitively by guaranteeing a salary that is 5% higher than the relevant modern award;

•  The proposed agreement provides for personal/carers leave in accordance with the NES and OS does not accept a proposal for additional paid leave for travel as this would increase costs and is considering agreeing to a provision for paying out accrued but untaken personal/carers leave entitlements upon termination of employment in limited circumstances such as those in the Black Coal Award;

•  Union proposals in relation to the issues resolution clause dealing with disputes over matters relating to employment generally (rather than just disputes in relation to the terms of the agreement or the NES) would add unnecessary complexity, reduce flexibility and increase costs and the present clause proposed by OS is fair and consistent with its objective to deal with matters at local level to the maximum extent possible;

•  Proposals that any party may escalate for arbitration any issue arising in the course of employment, under the agreement or in relation to the NES were rejected on the basis that OS has other defined process to deal with those matters and OS maintained the position that arbitration of issues under the procedure should be by agreement only;

•  OS is not in a position to liquidate the cost of supplying village accommodation in accordance with employees’ contracts and does not agree to fund accommodation for employees who choose to live in a particular location; and

•  Moving forward all tooling will be provided negating the requirements under awards to pay a tool allowance.

[73] The record of meeting also indicates that discussions were held in relation to specific proposals that had previously been tabled, including:

•  Issue resolution procedure

•  Inclement weather

•  Hours of work

•  Consultation

•  Types of employment

•  Annual leave

•  Stand down

[74] The record of meeting states that the response of OS Maintenance on scope was as follows:

“OS ACPM Pty Ltd has a national business model in maintenance works across Minerals Australia. We employ only maintenance employees. We want an agreement for our workforce that covers our maintenance business across Australia and enables OS to provide consistency and certainty to our customers.

Having multiple agreements would increase complexity and can reduce our flexibility which could hinder our ability to win future work packages and/or keep exiting scopes of work.

Additionally, OS ACPM Pty Ltd and OS MCAP Pty Ltd are different businesses with different workforces and interests. The CFMMEU’s proposed scope requires OS ACPM Pty Ltd to bargain for an agreement which includes classifications it does not employ and does not intend to employ. This significantly increases complexity for OS.

For these reasons, OS does not accept any union proposal.” 65

[75] On 19 May 2021, Ms Morkel sent an updated copy of the proposed Maintenance Agreement to the bargaining representatives. The Agreement was updated to include the minimum award pay level table, which had been discussed during the meeting on 6 May 2021. On 20 May 2021, Ms Morkel received an email response from an AMWU Queensland bargaining representative asking why no monetary amount had been provided against the defined pay levels in the pay level table in the draft Agreement and pointing out that an indicative salary table had been tabled for black coal mining industry award workers. On 26 May 2021, Ms Morkel responded clarifying that the pay level table had been included to give clarity around how OS will calculate the minimum annual salary payable under the proposed Agreement. The indicative salary table was never intended to be included in the proposed Agreement.

[76] The sixth meeting was scheduled for 3 June 2021. Prior to the meeting there was an exchange of correspondence about matters including classifications in the proposed maintenance agreement, how salaries would be reflected in the terms of the agreement and how advancement would be achieved. The record of the sixth bargaining meeting indicates that there was a discussion about qualifications obtained at the Future Fit Academy with the AMWU expressing concerns about whether employees would be trade or non-trade which OS undertook to share with managers of the Academy. Questions from employee bargaining representatives were answered and tooling was discussed. Feedback on additional proposals from bargaining representatives was provided as follows:

•  OS maintained its commitment to permanent jobs and does not currently employ casuals but sought to maintain flexibility to employ casuals in the future should it be appropriate;

•  Offering matched superannuation in accordance with the BHP scheme was refused due to cost and the risk to competitiveness; and

•  OS would not agree to a provision requiring requests to take annual leave to be responded to in a particular time frame on the basis that it would be prescriptive and reduce flexibility.

[77] The meeting record also indicates that some employee bargaining representatives had advised support for the CFMMEU’s proposed issues resolution clause.

[78] Ms Morkel said in her evidence that the meeting on 3 June 2021 lasted just under 2 hours. According to Ms Morkel, at that meeting:

•  The main focus of the discussion was the Issue Resolution Procedure, as well as a number of other proposals on inclement weather, types of employment and annual leave.

•  Mr Scherf made two comments about the scope of the proposed Maintenance Agreement being a concern and issue for the progress of bargaining. On the second occasion, Ms Morkel rejected Mr Scherf’s assertions and advised him that there was a difference between the scope of an agreement and its structure.

[79] Prior to the seventh bargaining meeting scheduled for 30 June 2021, there were exchanges of correspondence in which bargaining representatives sought clarification on a range of matters including rostering and working time. The CFMMEU, via Mr Hughes, provided proposed wording for an annual leave clause.

[80] The record of the seventh bargaining meeting on 30 June 2021 indicates that:

•  OS provided an update on tooling;

•  The CFMMEU tabled a revised annual leave proposal and OS Maintenance representatives asked questions regarding the proposal and undertook to respond at the next meeting;

•  There was some discussion around the dynamic roster and taking of annual leave for employees on that roster; and

•  Employee bargaining representatives tabled a proposal for a leading hand allowance and Ms Morkel undertook to consider this further and respond at the next meeting.

[81] The record also indicates that the parties conducted a clause-by-clause review of the proposed OS Maintenance Agreement, to clarify where they were aligned and where they weree still apart. Ms Morkel stated that the CFMMEU and AWU actively participated in working through the document however the AMWU was less willing to do so. The record also indicates that the CFMMEU Queensland stated that the document did not reflect all proposals to date and the AMWU Queensland noted that the review of the proposed Maintenance agreement did not involve the majority of their claims. The AMWU is recorded as stating a belief that bargaining is not proceeding efficiently or fairly due to the scope of the proposed OS Maintenance agreement. The record indicates that in response, OS Maintenance acknowledged that not all bargaining claims put forward by unions in previous meetings are included in the Appendix setting out proposals and responses because this exercise was to review the wording in OS’ proposed Maintenance agreement and that OS had responded to all proposals.

[82] According to Ms Morkel’s evidence the following issues regarding scope were discussed at the seventh OS Maintenance Bargaining meeting:

•  Currently, OS employees on a dynamic roster are required to book annual leave in weekly blocks. Mr Scherf suggested this is an area where scope is an issue as WA conditions are being imposed on East Coast employees. Ms Morkel stated that she rejected this notion and explained the OS Employee Handbook already requires any commute employee to take leave in blocks that equate to blocks of rostered work. Ms Morkel also advised during the meeting that the dynamic roster is not WA specific and has previously been worked in QLD and may be worked again in QLD.

•  The unions noted they did not agree with the current title and coverage clause of the OS Maintenance Agreement proposed by OS. Mr Scherf mentioned that he did not believe bargaining was proceeding fairly or efficiently at present due to the scope of OS’ proposed Agreement, but other than the comments referred to above, did not elaborate on why he thought this was the case.

•  The unions noted they did not want to table their position on the classifications and salaries in the proposed OS Maintenance Agreement until scope is determined.

•  Mr Jason Lipscombe (AMWU Queensland bargaining representative) made comments that bargaining is being inhibited by the scope of the proposed Agreement.

[83] Ms Morkel also provided details and tendered out of session correspondence she exchanged with bargaining representatives about a range of matters relating to bargaining and OS Maintenance terms and conditions of employment.

[84] Mr Hughes maintained that scope was the main issue discussed at the first OS Maintenance bargaining meeting. Ms Morkel also said that the discussion on scope in this first meeting occupied around 5 to 10 minutes in a meeting that ran for 22 minutes, which was not more time than the discussion on the intention of OS Maintenance to have a simple safety net structure. Mr Hughes also said that at the second Maintenance bargaining meeting, OS did not respond to any claims made by the CFMMEU Queensland or the AMWU. Ms Morkel said in response that the discussion on scope in the second meeting occupied less than 10 minutes in a one hour 21 minute meeting. Ms Morkel also maintained that the discussion on the specific claims for terms and conditions raised by and union or individual bargaining representative, was not in any way affected by the differences on scope. Similarly, Ms Morkel said that the discussion on scope in the third meeting occupied less than 10 minutes in a 3 hour and 21 minute meeting and that the discussion on the specific claims for terms and conditions raised by any union or individual bargaining representative, was not in any way affected by the differences on scope.

[85] Ms Morkel said that at the fourth meeting when the CFMMEU altered its scope proposal, the discussion occupied around 5 minutes in a 2 hour 34 minute meeting. In response to Mr Hughes’s statement that the lack of progress in bargaining can also be attributed to the dispute between the Unions and OS as to structure of the proposed OS Maintenance agreement, Ms Morkel said that different views on scope have not affected:

•  discussion and progress on the claims made by various parties,

•  the clarifications provided by OS Maintenance;

•  the concessions/alternative proposals made by OS Maintenance; specifically:

•  inserting a table in draft clause 7 to show which award classifications will be used for the purposes of minimum salaries;

•  updating provisions for meal breaks and the minimum break time between shifts in draft clause 9;

•  clarifying an Employee’s annual leave paid on termination will be at Annual Salary rate in draft clause 11; and

•  clarifying compassionate leave will be paid at an Employee’s Annual Salary rate in draft clause 13.

[86] Mr Scherf stated that in respect of the conduct of bargaining meetings for the proposed Maintenance agreement, he agreed with the evidence of Mr Hughes, as set out in Mr Hughes witness statement 66 and documents referred to by Mr Hughes. Mr Scherf said that in bargaining meetings and throughout the course of negotiations, OS Maintenance has rejected the AMWU’s proposed scope, reiterated that it desires an agreement with the scope OS proposes and has given no indication that this position may change in the course of further bargaining. According to Mr Scherf, the refusal of OS Maintenance to meaningfully engage on the issue of scope, has meant that bargaining is not proceeding efficiently or fairly. Scope is the biggest stumbling block in progressing negotiations. Mr Scherf also said that without determining the issue of scope, the parties have been unable to make any meaningful progress in negotiations. Mr Scherf recalled in the last bargaining meeting which occurred, prior to issuing OS Maintenance with AMWU’s notice of concerns, Mr Scherf expressly advised Ms Jessica Morkel, Principal Employee Relations and lead negotiator for OS Maintenance words to the effect that: “it seems evident that meaningful progress cannot be made by the parties because we are diametrically opposed to the structure and scope of the EA.” Mr Scherf also recalled that Ms Morkel agreed with that proposition.

[87] At present, Mr Scherf cannot see the parties making any meaningful progress towards reaching any form of agreement, even on discrete issues, given this fundamental dispute about
scope. Because of the position adopted by OS Maintenance, Mr Scherf believes this impasse appears likely to continue. In relation to Ms Morkel’s evidence of OS Maintenance having made concessions or alternative proposals in the course of bargaining, Mr Scherf asserted that those items were not substantive concessions or alternative proposals made by OS Maintenance. Rather, the matters were related to issues which went to whether the proposed Agreement was capable of passing the BOOT or otherwise could meet pre-approval requirements (i.e. they were changes that had to be made for approval to occur). Mr Scherf also said that there have been no concessions or movements from OS Maintenance in respect of scope.

[530] That said, I accept that OS Maintenance and the AMWU (and the CFMMEU) are engaging in hard bargaining. OS Maintenance has an apparently implacable position whereby it seeks a minimal, safety net agreement which operates by prescribing minimum wage rates set by establishing a margin above the relevant award. It is also apparent that OS Maintenance is agreeing to clauses which contain any form of prescription, only to the extent necessary to obtain approval of the agreement under the FW Act.

[531] However, I do not accept these issues are because the proposed agreement will not cover appropriate employees or will cover employees that it is not appropriate to cover. Rather, the issues are caused by the fact that OS Maintenance is seeking a minimal safety net agreement and the AMWU and other Unions are seeking a comprehensive agreement. The divergence in views between OS Maintenance and the AMWU is apparent from the description of the nature of the agreement sought by OS and repeated at most if not all bargaining meetings and Mr Scherf’s description of an agreement that is “the supreme governing document for terms and conditions of employment”.

[532] The evidence also establishes that, on balance, the AWMU is seeking the scope order to advance its bargaining position in pursuit of better outcomes for its members. Overwhelmingly the evidence indicates dissatisfaction with the terms and conditions of OS Maintenance employees relative to those of BHP employees. I have set out that evidence in detail and it is apparent that this is a major issue that the AMWU seeks to address by way of a scope application. As Mr Scherf made clear, the leverage of OS Maintenance employees in the Queensland coal mining industry will be increased if they are bargaining together without the involvement of employees in other sectors. The issues range from wages, bonuses, superannuation, insurance, travel benefits and allowances for employees living locally, to access to crib huts.

[533] Finally, I consider that if the AMWU scope application is not granted, the next best option for the AMWU is the status quo. I base this view on the strongly held views of witnesses for the AMWU that the interests of maintenance workers are fundamentally different to those of production workers and that the work of maintenance workers is distinct from that of production workers. The present position is that the AMWU is bargaining in a group which likely comprises all its membership within the OS Companies and this is consistent with its views that maintenance employees should bargain separately to production employees.

The CFMMEU scope application

[534] The scope application made by the CFMMEU is a different proposition. I do not accept the submission of OS that the CFMMEU application will result in bargaining for more agreements than is presently the case. The direct outcome of granting the CFMMEU application would be that OS Maintenance and OS Production would be bargaining with the CFMMEU, the AMWU and the CEPU for a single agreement to cover production and maintenance work at all of BHP’s coal operations. It would be a matter for OS and Unions other than the CFMMEU as to what the coverage of agreements to cover OS work in BHP’s metalliferous mining operations would be. As the CFMMEU points out, it would be logical if its scope application was granted, for other parties to agree to bargain for a single agreement to cover production and maintenance work in metalliferous mining operations. For the parties to bargain for a multiplicity of agreements in metalliferous mining operations is an inefficiency arising from their own actions rather than the scope proposed by the CFMMEU an agreement to cover only coal mining operations.

[535] While not the preferred approach of OS Maintenance and OS Production, the CFMMEU proposal is not inconsistent with the OS objectives of a single consistent set of terms and conditions of employment to facilitate flexibility for employees to move between coal and metalliferous mining operations. The current proposal for the agreements proposed by OS for its Maintenance and Production workforces is bifurcated within each agreement. The proposed OS Maintenance Agreement covers employees to whom either the Black Coal or the Mining Industry Award would apply but for the agreement. As previously discussed, to calculate the minimum remuneration for an employee under the proposed OS Maintenance agreement, it is necessary to first establish the award which would cover the work and to then calculate what the employee would be paid under the award for working the relevant roster and then add a margin of 5%.

[536] The practical effect, with reference to Mr Ruggieri’s desire to use teams of employees who have worked on a project at a metalliferous mine to take best practice approaches from that project and apply them at a coal mine, would result in the underpinning award for the wages guarantee under the proposed OS Maintenance agreement changing upon the transfer of an employee from a metalliferous mining site to a coal mining site. That change may also result in an increase to the employee’s remuneration for the period of the transfer. Alternatively, it may result in a reduction which could be problematic both in a legal and practical sense. While I accept that these are not insurmountable problems, but I am also of the view that in a practical sense, they are no different from the problems that would be encountered by OS if the CFMMEU scope proposal was accepted. In short, OS could achieve its objectives of simplicity and flexibility if it negotiated two agreements – one to cover OS Production and Maintenance employees in coal operations and one to cover OS Production and Maintenance employees in metalliferous mining operations. Given the relationship between the OS entities, and that they are both supported by BHP employee relations specialists, I do not accept that this would place an unfair or unreasonable imposition on either OS Production or OS Maintenance.

[537] Conversely, the CFMMEU’s proposed scope would involve OS Maintenance and OS Production in negotiations for agreements which cover classifications of employees who are not employed by one or the other of those entities and which they do not intend to employ. It would also be contrary to the legitimate rights of the OS entities to arrange their operations in the manner that they believe promotes the efficiency and flexibility objectives they seek.

[538] However, these considerations are not the proper starting point. Given my earlier findings in relation to the matters in ss. 238(1) – 238(4)(a) of the FW Act, it is necessary to consider whether I am satisfied as to remaining matters in s. 238(4). I commence with s. 238(4)(b). For the reasons I have set out above, including in relation to the AMWU scope application, I am not satisfied that bargaining is proceeding unfairly or inefficiently. While not a necessary finding, this weighs against the making of a scope order. More significantly, I am also not satisfied that the reason bargaining is not proceeding efficiently or fairly is the scope of the proposed OS Maintenance and OS Production agreements. As a result, I am not satisfied that making a scope order will promote efficiency and fairness in the conduct of bargaining.

[539] It is clear from the evidence of Mr Hughes that the fundamental barrier to reaching agreement from the CFMMEU’s perspective, is that the OS entities with which it is bargaining are seeking minimal safety net agreements while the CFMMEU is seeking a comprehensive agreement. I accept that that the CFMMEU approach is aimed at protecting its members from having entitlements which are found only in policies from being removed at the discretion of the employer. It is also arguable that the issue of accident pay raised by the CFMMEU raises a BOOT issue that will need to be addressed in some way in relation to employees to whom the Black Coal Award would otherwise apply.

[540] Accepting that I have not had the benefit of any argument that may be advanced, it is unclear how replacing an entitlement to accident pay enjoyed by employees covered by the Black Coal Award with a discretionary benefit in a Company policy, will not create a BOOT issue. That this is a problematic question was clear from the concessions made by Ms Morkel and Ms Chauncy under cross-examination. However, this issue is related to the structure of the agreements proposed by the OS entities and not to their scope.

[541] I do not accept that inefficiency and duplication will be caused by the CFMMEU being required to review two awards twice, to determine whether the agreements proposed by the OS entities pass the better off overall test. There is no requirement for the CFMMEU to undertake such a comparison, and I accept the evidence of Ms Chauncy that if the proposed agreement passes the better off overall test in respect of the Black Coal Award it will pass in respect of the Mining Award. As a matter of logic, the Black Coal Award provides for a 35 hour week and it is highly improbable that an agreement which passed the test against that Award would fail against the Mining Award. I do not understand why the CFMMEU would seek to undertake a BOOT analysis in respect of an Award it has no apparent interest in with respect to the present proceedings. It is also the case that it is the Commission that is charged with determining whether an agreement passes the better off overall test.

[542] For the reasons set out above, I am also of the view that at a point when the CFMMEU has not fully articulated its claims it cannot be said that the

[543] After weighing the evidence of Mr Hughes, I have concluded that the CFMMEU is also endeavouring to break a bargaining impasse on the substantive claim in relation to the structure of the proposed agreements, by seeking a scope order. That the CFMMEU is also seeking to advance claims for bargaining outcomes is also evidenced by the material the Union has distributed at coal mine sites in Queensland pointing out the advantages enjoyed by BHP employees covered by the BMA Agreement or other BHP coal agreements, compared to the terms and conditions of OS employees.

[544] I accept that the OS entities have made concessions in the bargaining process. While views about the significance of those concessions may reasonably vary, they are nonetheless changes in position, which are directed at addressing matters raised by the Unions in bargaining. In any event, I do not accept the CFMMEU position that it is appropriate to make a scope order to send a strong signal to parties that compromise is necessary to conclude bargaining. One of the key tenets of the statutory regime under which bargaining is conducted, is that the Commission’s powers to impose substantive outcomes on parties engaged in enterprise bargaining is limited. A scope order is an exception. However, the starting point is that scope is properly a matter for negotiation and is the subject of a claim by the OS entities. Contrary to the submission of the CFMMEU, a scope order would impose a substantive outcome on OS and involve making a judgment about its claims.

[545] To make a scope order simply to send a message to parties that they will be required to make concessions to reach agreement, in circumstances where scope is not the issue which has created an impasse, is not an appropriate exercise of the Commission’ power to make such an order.

Whether it is reasonable in all of the circumstances to make a scope order

[546] For the reasons set out above in respect of the AMWU application, I am not satisfied that the discretion to make a scope order is triggered. Even if the discretion was triggered, I would not make the order sought by the AMWU in the circumstances of this case. There is rational basis for the AMWU scope order in terms of fairness and efficiency and my view is that the application is directed at substantive bargaining outcomes rather than the conduct of bargaining.

[547] As I have previously noted, this case involves competing applications made by two Unions. If I was considering applications by both Unions for a scope order consistent with the order the CFMMEU is seeking, the outcome of this case may have been more finely balanced.

[548] There is no established bargaining framework for OS entities. The 2018 agreements were not validly made and in the circumstances described in the evidence of Mr Hughes and Mr Scherf, that bargaining process is not a matter that could be weighed in the balance of considering whether an order such as that sought by the CFMMEU should be made. Conversely there is an established bargaining framework in the black coal and metalliferous mining industries for agreements based on industry coverage.

[549] However, in addition to the issues I have identified in my consideration of matters relevant to s. 238(4)(b) of the FW Act, there is an additional consideration which bears on whether it is reasonable in all the circumstances to grant the CFMMEU’s application. For reasons I have discussed earlier in this decision, the fact that there are two competing scope applications made by unions is of itself, a matter that is relevant to considering whether a scope order will promote the fair and efficient conduct of bargaining and whether it is reasonable in all the circumstances to make an order.

[550] If the CFMMEU’s application is granted, the AMWU will be bargaining in a group which consists of maintenance and production workers and the CFMMEU, which has coverage of both groups. While the CFMMEU has no apparent issue bargaining in a group that includes the AMWU, the same cannot be said with respect to AWMU and its members. Based on the evidence of witnesses for the AMWU, including Mr Scherf, I consider it likely that the AMWU will continue to hold concerns about its membership being swamped by the larger numbers of production workers and those concerns will impact on the efficiency and fairness of bargaining.

[551] By refusing to make the order sought by the CFMMEU, the AMWU (and the CEPU) is in a position which is closer to its preferred position than it would be if the CFMMEU application was granted. OS has maintained its preferred position. The CFMMEU has not achieved its objectives in terms of scope but will continue to represent its members in the coal industry in the bargaining for production and maintenance employees. The involvement of the CFMMEU in bargaining for both proposed agreements, may benefit employees in the metalliferous mining sector to the extent that there conditions are less favourable than those enjoyed by coal industry employees and vice versa. While not an applicant in the proceedings, the AWU’s current position will not be adversely impacted by the scope orders not being granted.

[552] I do not doubt that there are some differences in terms and conditions of OS employees and BHP employees and that this is the cause of dissatisfaction on the part of the CFMMEU the AMWU and their members. However, scope applications are not an appropriate mechanism to address such concerns.

[553] BHP is entitled to establish entities such as OS and to use those entities to perform work in a manner that it believes best suits operational requirements, creates flexibility and reduces costs including by those entities making enterprise agreements which while meeting the requirements for approval, may provide for lesser terms and conditions than are provided for under agreements covering BHP employees. In short, there is no requirement in the legislative framework for enterprise bargaining, that all related entities have the same terms and conditions of employment or the same enterprise agreements.

[554] While I accept that there is a serious impasse in the negotiations, it is an impasse based on substance and not the conduct of bargaining. Even if the impasse is based on the conduct of bargaining, it is not conduct that relates to the bargaining process. In this regard, Mr Walkaden’s criticism of the approach of the OS negotiators has some force. Even allowing for the fact that Ms Morkel and Ms Chauncy were giving evidence in a hearing before the Commission, rather than engaging in a bargaining meeting, some of their responses to questions in cross-examination about the rationale for views about matters canvassed in the negotiations appeared to be formulaic. The meeting records indicate that responses given and statements made in bargaining meetings by Ms Chauncy and Ms Morkel could be similarly criticised – for example, repeating that OS will consider proposals “through a lens of flexibility” without stating what it is about the proposal that is believed to create inflexibility, is problematic in terms of fairness and efficiency as it is difficult for the proposer to modify a proposal absent that information. On occasion, both Ms Morkel and Ms Chauncy gave responses in cross-examination which did not engage with the questions they were asked. Both had difficulty nominating three provisions in the draft agreements provided by the CFMMEU which were said to be inflexible.

[555] Notwithstanding these issues, I would not go so far as to say that either Ms Morkel or Ms Chauncy is employing a mantra to respond to questions. It is apparent that what they are doing is engaging in hard bargaining on behalf of the respective OS entities they represent. I am also of the view that it is probable that the same approach would be taken by OS negotiators regardless of the scope of the agreement subject of the negotiations. Further, it is well established that issues with the conduct of bargaining representatives, as distinct from the conduct of bargaining per se, can be addressed by seeking bargaining orders. It is also well established that scope applications are not a basis for such orders to be made.

CONCLUSION

[556] On balance, and in light of my findings in relation to the matters in s. 238(4), I am not satisfied that it is reasonable in all of the circumstances to make the orders sought by either the CFMMEU or the AMWU and for that reason, I dismissed both applications and issued an order to that effect.

[557] In conclusion, I remind the parties that the Commission is available to assist parties to resolve impasses in bargaining through conciliation.

DEPUTY PRESIDENT

Appearances:

Mr A Walkaden for the CFMMEU.

Mr R Reed of Counsel instructed by Maurice Blackburn for the AMWU.

Mr S Crawford for the AWU.

Mr M Coonan for OS ACPM Pty Ltd and OS MCAP Pty Ltd.

Hearing details:

7 June, 8 June, 9 June, 14 July, 15 July, 16 July & 6 August.

2021.

Brisbane.

Final written submissions:

30 July 2021.

Printed by authority of the Commonwealth Government Printer

<PR737240>

 1   Refer Mining Industry Award 2020 clause 4.2.

 2   [2019] FWCA 8595; [2019] FWCA 8601.

 3   [2020] FWCFB 2434.

 4   [2020] FWCFB 6089.

 5   Exhibit CFMMEU – 1 Witness Statement of Peter John Colley 27/04/21; Exhibit CFMMEU – 2 Witness Statement of Peter John Colley 27 May 2021; Exhibit CFMMEU – 3 Further Reply Statement of Peter John Colley 3 June 2021.

 6   Exhibit CFMMEU – 4 Witness Statement of Mitch Hughes 29/04/21; Exhibit CFMMEU – 5 Witness Statement of Mitch Hughes 27/05/21; Exhibit CFMMEU – 6 Witness Statement of Mitch Hughes (Response to AMWU) 03/06/21.

 7   Exhibit AMWU – 3 Statement of Cassandra Baynton.

 8   Exhibit AMWU – 4 Statement of Mitchell Brotherton.

 9   Exhibit AMWU – 5 Statement of Mark Malone.

 10   Exhibit AMWU – 6 Statement of Joshua John Allen.

 11   Exhibit AMWU – 7 Statement of Renee Jones.

 12   Exhibit AMWU 8 – Statement of Terrence Taylor.

 13   Exhibit AMWU – 10 Statement of Trevor Hawken.

 14   Exhibit AMWU – 11 Statement of Jacob Boss.

 15   Exhibit AMWU – 12 Statement of Kegan Scherf 03/06/21; Exhibit AMWU – 13 Statement of Kegan Scherf 06/05/21.

 16   Australian Manufacturing Workers' Union v Broadspectrum[2019] FWC 4913 at [117]

 17   Stuartholme School and Others; The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane t/as Brisbane Catholic Education Office and Others v Independent Education Union of Australia[2010] FWAFB 1714.

 18   [2015] FWCFB 1440.

 19 Ibid at [10].

 20 Ibid at [53].

 21  Paterson v Police Federation of Australia [2011] FWC 7357 at [39]; ASU & Ors v Unity Water [2016] FWC 6104.

 22  TWU v Chubb Security Services [2012] FWC 2226; AMIEU v Woolworths [2009] FWA 849.

 23   [2010] FWAFB 1625.

 24   The Explanatory Memorandum to the Fair Work Bill Amendment Act 2012 stated that the amendment to s.238(3)(a) was in response to Recommendation 16 of the Fair Work Act Review Panel Report 2012, which noted that the requirement in s. 238(3)(a) as then framed, to notify all relevant bargaining representatives, may be impossible to meet, because the identity of all bargaining representatives might not be known to a party seeking a scope order.

 25   [2014] FWCFB 1476; (2014) 242 IR 238.

 26   Ibid at

 27   AMWU, AWU,CEPU v Qantas Airways Limited t/a Qantas [2017] FWC 1526

 28   Association of Professional Engineers and Scientists and Managers, Australia v Australian Red Cross Blood Service and Others [2011] FWA 2914.

 29   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].

 30  Australian Manufacturing Workers' Union v Broadspectrum [2019] FWC 4913 at [159].

 31   BRB Modular Pty Ltd v AMWU [2015] FWCFB 1440 at 13.

 32  APESMA v Australian Red Cross Blood Services [2011] FWC 2914 at [70].

 33  Australian Manufacturing Workers' Union v Broadspectrum [2019] FWC 4913 at [163].

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

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

 36  Application by Wilson [2015] FWC 7835

 37   BRB Modular v AMWU ibid at [52].

 38   AMWU v Shinagawa Refractories Australasia Pty Ltd [2011] FWA 5935 at [28].

 39   TWU v Chubb [2021] FWA 5935 at [69].

 40 Ibid at [60].

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

 42   [2010] FWAFB 3009;(2018) 193 IR 293.

 43   Ibid at [53]; 309.

 44   Ibid at [71]; 314.

 45   [2014] FWCFB 1476; (2014) 242 IR 238.

 46 Ibid at [44].

 47   [2016] FWCFB 1151 at [31].

 48 (2017) 270 IR 385; [2017] FWCFB 5826.

 49 Ibid at [26].

 50   2016 FWC 794.

 51   [2011] FWA 2914.

 52 Ibid at [70].

 53   [2011] FWA 8033; [2012] FWAFB 1489.

 54   Royal District Nursing Service v HSU (2012) 218 IR 276 at [19].

 55   [2015] FWCC 699 – at [72]

 56   [2016] FWC 8089.

 57   Exhibit CFMMEU – 1 Annexure PC – 15.

 58   Exhibit CFMMEU – 1 Annexure PC 14 – 15.

 59   [2010] FWAFB 1625.

 60   Exhibit AMWU 12 Annexures KS1 – KS5.

 61   Transcript PN382 – 383.

 62   Exhibit OSM 1 Annexure JAM – 20.

 63   Ibid Annexure JAM – 26.

 64   Ibid Annexure JAM – 30.

 65   Ibid Annexure JAM – 41.

 66   Exhibit CFMMEU 4 paragraphs [29], [31], [32], [33] to [35], [38], [43] to [53], [56], [71] to [82], [84], [94] to [98], [103] to [106], [108], [117] and [120]

 67   Transcript PN757.

 68   Transcript PN811 – 812.

 69   Transcript PN813 – 815.

 70   Transcript PN952.

 71   Transcript PN1089 – 1092; 1213 – 1214.

 72   Transcript PN1132.

 73   Exhibit OSP – 2 Annexure AMC – 7.

 74   Ibid – Annexure AMC – 14.

 75   Ibid – Annexure AMC – 28.

 76   Ibid – Annexure AMC – 34.

77 Exhibit OSM – 5.

78 Exhibit CFMMEU4: paragraph 129 of the Witness Statement of Mitch Hughes dated 29 April 2021, PN1579 – PN1590, PN1967 – PN1985.

79 PN1619, PN1624.

80 PN1993, PN1994.

81 PN1711 – PNPN1804.

82 PN1722 – PN1724.

83 PN1725.

84 PN1766.

85 PN1770 – PN1787; FW Act ss.16 and 106.

86 PN1799 – PN1804.

87 See JAM-43 (page 551) of the Witness Statement of Jessica Anne Morkel dated 27 May 2021: Exhibit OSM1

88 PN2093 – PN2111.

89 PN2069 – PN2091.

90 PN1722 – PN1724.

91 PN2097 – PN2099.

92 PN2113 – PN2118.

93 PN2120 – PN2122.

94 PN2123 – PN2125.

95 PN2126 – PN2127.

96 PN2126 – PN2127.

97 PN1694 – PN1703, PN1989 – PN1992.

98 PN2015 – PN2111.

99 PN333 – PN370.

100 PN589 – PN596.

101 PN189, PN205, PN225 – PN231, PN241.

102 Paragraph 101 of the Hughes Statement.

103 PN252 – PN259.

 104   PN258 – 259.

105 PN1512 – PN1527.

106 See, MH-30 (pages 191 – 214) of the Hughes Statement, PN1872 – PN1878, MH-36 (pages 268 – 291) of the Hughes Statement.

107 PN1888 – PN1964.

108 PN2203 – PN2263.

109 PN1988, PN1993 – PN1994.

110 Paragraphs 8.5 – 8.9 & 13 of the OS Submissions.

111 PN309 – PN606

112 Paragraphs 8.5 – 8.7 of the OS Submissions.

 113   [2019] FWC 4913

114 Paragraphs 8.11 & 13.7 of the OS Submissions.

115 Paragraphs 8.11 & 13.7 of the OS Submissions.

116 Paragraph 149 of the Hughes Statement.

117 Annexure MH-52 of the Hughes Statement (page 563).

118 Paragraph 150 of the Hughes Statement.

119 Annexure MH-53 of the Hughes Statement (page 567).

120 Paragraph 151 of the Hughes Statement.

121 Annexure MH-54 of the Hughes Statement (page 573).

122 Paragraph 152 of the Hughes Statement.

123 Annexure MH-55 of the Hughes Statement (page 579).

124 Paragraphs 153 & 156 of the Hughes Statement.

125 Annexure MH-56 of the Hughes Statement (page 585). 69 Annexure MH-59 of the Hughes Statement (page 598). 70 Annexure KS-7 of the Scherf Statement (pages 36 - 40).

126 AMWU non-compliance with s.238(3)

 127   [2010] FWAFB 1625.

128 Paragraph 11(a) – (b) of the AMWU Reply.

129 Paragraph 11(c) of the AMWU Reply.

130 PN408 – PN417.

131 PN419 – PN432.

 132   PN434.

133 PN435 – PN452.

134 PN453 – PN470.

135 PN471 – PN472.

136 Paragraph 13 of the AMWU Reply.

137 Paragraph 14 of the AMWU Reply.

138 Paragraph 9.1 & 14.2 of the OS Outline.

139 [2015] FWCFB 1440 at [6] – [15].

140 [2010] FWAFB 3009.

141 The CFMMEU does not press the third ground that was outlined at paragraph 19 of part 2.1 of the Form F31 – Application for a scope order dated 9 April 2021.

142 Paragraph 6.6 of the OS Outline.

143 PN1806 – PN1859.

144 PN1859.

145 Paragraph 3.5 of the OS Outline.

146 Paragraph 27 of the AMWU’s Outline of Submissions dated 6 May 2021.

147 Paragraph 33 of the AMWU Outline.

148 Exhibit OSM5.

149 PN2330 – PN2336.

150 PN403.

151 Paragraph 21 of the AMWU Outline.

 152   [2019] FWC 4913

153 Paragraph 138 of the Hughes Statement. PN1859.

154 Paragraph 59 of the Hughes Statement.

155 Paragraph 17 of the Scherf Statement adopting paragraphs 45 & 50 of the Hughes Statement.

156 AMWU claims: see paragraphs 45 & 50 & Annexure MH-25 (page 129) of the Hughes Statement, which has been adopted at paragraph 17 of the Scherf Statement, see also paragraph 130 of the Scherf Statement.

157 ETU claims: see paragraphs 73 & 78 & Annexure MH-37 (page 292) of the Hughes Statement, which has been adopted at paragraph 17 of the Scherf Statement, see also paragraph 52 of the Hughes Statement, which has been adopted at paragraph 17 of the Scherf Statement.

158 PN359 – PN381.

159 [2017] FWCFB 5826.

160 QGC Pty Ltd v Australian Workers’ Union[2017] FWCFB 1165 at [44].

161 PN1995, Paragraphs 147 – 148 of the Hughes Statement.

162 Paragraphs 143 – 144 of the Hughes Statement.

163 PN359 – PN381.

164 Exhibit CFMMEU – 5: paragraph 13 of the Witness Statement of Mitch Hughes dated 27 May 2021 (hereafter Hughes Reply Statement).

165 Paragraph 46 of the AMWU Outline.

166 AMWU 2019 at [125] – [126].

167 Paragraphs 13 – 14 of the Hughes Reply Statement.

168 Paragraphs 143 – 144 of the Hughes Statement.

169 PN547.

 170   Transcript PN326 – 328.

171 Transcript PN324.

 172   Transcript PN95 – 98.

 173   Transcript PN128 – 129.

 174   Transcript PN133 – 134.

 175   Transcript PN139 – 140.

 176   Exhibit CFMMEU 4 Annexure MH – 52.

 177   Exhibit CFMMEU 4 Annexure MH – 30.

 178   Transcript PN252 – 257.

 179   Transcript PN260 – 265.

 180   Transcript PN286 – 296.

 181   Transcript PN297 – 303.

 182   Transcript PN312 – 317.

 183   Transcript PN330 – 340.

 184   Transcript PN359 – 367.

 185   Transcript PN368 – 373.

 186   Transcript PN474 – 478.

 187   Transcript PN467 – 471.

 188   Transcript PN478 – 482.

 189   Transcript PN499 – 509.

 190   Transcript PN510 – 519.

 191   Transcript PN528 – 538.

 192   Transcript PN538 – 584.

 193   Transcript PN590 – 605.

 194  The Construction, Forestry, Maritime, Mining and Energy Union; The Australian Workers' Union; The Australian Manufacturing Workers' Union and The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v OS ACPM Pty Ltd and OS MCAP Pty Ltd[2020] FWCFB 2434; The Construction, Forestry, Maritime, Mining and Energy Union; The Australian Workers' Union; The Australian Manufacturing Workers' Union and The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v OS ACPM Pty Ltd and OS MCAP Pty Ltd[2020] FWCFB 3669; and The Construction, Forestry, Maritime, Mining and Energy Union; The Australian Workers' Union; The Australian Manufacturing Workers' Union; and The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v OS ACPM Pty Ltd and OS MCAP Pty Ltd[2020] FWCFB 6089.

 195   Exhibit AMWU 12 Annexure KS – 1 KS – 6.

 196   Exhibit AMWU – 12 Annexure KS – 11.

 197   Exhibit AMWU – 12 Annexure KS – 16; KS – 17 and KS – 18.

 198   Exhibit AMWU – 13 at [14] – [15].

 199   Exhibit AMWU 12 Annexure KS – 7.

 200   Exhibit AMWU 12 Annexure KS – 8.

 201   Exhibit AMWU 12 Annexure KS – 9.

 202   See Attachments MH 6 and MH 7 to the statement of Mitch Hughes dated 29 April 2021.

 203   Clause 5.2 and 5.3 of both proposed agreements.

 204   Clause 7.2 of both agreements.

 205   Clause 7.2 of both agreements.

 206   Clause 7.2 of both agreements.

 207   Clause 7.2 of both agreements.

 208   Clause 7.2 of both agreements.

 209   Transcript at PN2023 to PN2049.

 210   CFMMEU written response to AMWU at [28]

 211   No submission is made on how the Commission can make scope orders for work that is currently not being performed.

 212   CFMMEU written response to AMWU [28]

 213   CFMMEU written response to AMWU [28]

 214   AMWU, AWU,CEPU v Qantas Airways Limited tla Qantas [2017] FWC 1526

 215   Australian Manufacturing Workers' Union v Broadspectrum [2019] FWC 4913 at [17]

 216   CPSU v CSC [2020] FWC 265

 217   ANMF v Bolton Clarke [2019] FWC 4452

 218   Australian Manufacturing Workers' Union v Broadspectrum [2019] FWC 4913.

 219   Re Svitzer Australia Pty Ltd [2016] FWC 794.

 220   United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board [2010] FWCFB 3009 at [55]; Application by Wilson [2015] FWC 7835 at [65]-[66]

 221   AM/EU v Woolworths [2009] FWA 849; APT Management v AMWU & Ors [2015] FWC 699; BRB Modular Pty Ltd v AMWU [2015] FWCFB 144

 222   APESMA v Australia Red Cross Blood Services [2011] FWC 2914

 223   HSU v Royal District Nursing Service [2011] FWA 8033; [2012] FWAFB 1489

 224   Australian Manufacturing Workers' Union v Broadspectrum [2019] FWC 4913

 225   Peterson v Police Federation of Australia [2011] FWC 7357; ASU & Ors v Unity Water [2016] FWC 6104

226 TWU v Chubb Security Services [2012] FWC 2226

 227   ASU v City of Perth [2011] FWA 2897; TWU v Coles Supermarkets Aust Pty Ltd [2015] FWC 1591

228 Re RTBU [2021] FWC 4945; UWU v M&S [2020] FWC 3211; APT Management Services Pty Ltd v AMWU & Ors [2015] FWCC 699

 229   APESMA v Australian Red Cross Blood Services [2011] FWC 2914

 230   BRB Modular v AMWU [2015] FWCFB 1440; AMWU, AWU, CEPU v Qantas Airways Limited tla Qantas [2017] FWC 1526

 231   CPSU v CSC [2020] FWC 265; BRB Modular v AMWU [2015] FWCFB 1440

 232   Applications by TasPorts and AIMPE [2017] FWC 2471 at [70]

 233   APT Management Services Pty Ltd v AMWU & Ors [2015] FWCC 699

 234   APT Management Services Pty Ltd v AMWU & Ors [2015] FWCC 699

 235   Application by Wilson [2015] FWC 7835

 236   ANMF v Bolton Clarke [2019] FWC 4452

 237   Re SDA [2016] FWC 8089

 238   Re SDA [2016] FWC 8089

 239   AMWU v Broadspectrum [2019] FWC 4913

 240   BRB Modular v AMWU [2015] FWCFB 1440 at [52].

 241   United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board [201O] FWAFB 3009; AMWU, AWU, CEPU v Qantas Airways Limited tla Qantas [2017] FWC 1526; RE ANMF [2017] FWC 4100

 242 Statement of Mitch Hughes dated 29 April 2021 at [142].

 243 Statement of Mitch Hughes dated 29 April 2021 at [136].

 244   Hughes [PN492-509].

 245   Hughes [PN478-482].

 246   Hughes [PN386-388]; [PN469-471]; [PN478]; Scherf [PN765].

 247   See Hughes [PN472] for example. More meetings are scheduled, and no party has failed to attend any meeting.

 248   See statements of all witnesses.

 249   See for example Hughes [PN391]

 250   See for example Hughes [PN409 -1O]; Scherf [PN862-883]

 251 Hughes [PN 433]; Statement of David Ruggieri at [21]; Statement of Allison Chauncy ([94], [96], [98], [100], [102], [103], [108], [114], [116], [118] and [119]); Statement of Jessica Morkel ([137], [139], [141], [143], [145], [146], [148], [150], [154], [158], [164], [234] and [235]).

 252   Scherf [PN 862-83]

 253   See for example. Hughes [PN395]; Scherf op cit

 254   Scherf [PN911-913]

 255   Hughes [PN482]

 256   Scherf [PN 811-814]

 257 Hughes [PN 433]; Statement of Allison Chauncy {[94], [96], [98], [100], [102], [103], [108], [114], [116], [118] and [119]); Statement of Jessica Morkel ([137], [139], [141], [143], [145], [146], [148], [150], [154], [158], [164], [234] and [235]); Scherf [PN757-760]

 258   Hughes [PN 456]; Scherf [PN 782]

 259   See for example Scherf [PN1037], [PN 1046], [PN 1048], [PN 1052-7], [PN 1178].

 260   See for example Statement of David Ruggieri at [48] [60] and [102]

 261   Scherf [PN 1100]; and he conceded that changes in legislation in one state/industry would not undermine the other at [PN 111O]

 262   Scherf [PN1087]

 263   Scherf [PN604] and [PN 628]

 264   Scherf [PN665]

 265   See for example 9 July 2021 [PN918]; 14 July 2021 [PN1169].

 266   Scherf [PN1064 -6]

 267   Statement of David Ruggieri at [16] to [18]; Ruggieri [PN 2558-2565], [PN2603]

 268   See footnote 42.

 269   Hughes [PN 368-73], [PN386-8], [PN468-471]; Statement of Kegan Scherf at [20]; Scherf [PN 719], [PN765], [PN809-81O], [PN839]

 270   Scherf [PN 1202]

 271   Hughes [PN 600-05]

 272   First Statement of Jessica Morkel and First Statement of Allison Chauncy; Markel [PN1474], [PN1597], [PN1630-1641], [PN1772-1773].

 273   Proposing a national agreement effecting a compromise on an insignificant number of employees

 274   First Statement of Allison Chauncy at [94], [96], [98], [100], [102], [103], [108], [114], [116], [118] and [119];

 275   First Statement of Jessica Morkel at [137], [139], [141], [143], [145], [146], [148], [150], [154], [158], [164], [234] and [235].

 276   Hughes [PN392]; [PN443].

 277   Scherf [PN757]-[PN760].

 278   Hughes [PN390]; Scherf [PN711]

 279   Scherf [PN 811-6]

 280   First Statement of Ms Chauncy at [105]; Chauncy at [PN1716]; [PN1789], [PN1798], [PN1800]; First Statement of Ms Morkel at [145(c)]; Markel at [PN2064]-[PN2134]

 281 First Statement of Allison Chauncy at [112]; First Statement of Jessica Markel at [145]. Markel [PN2113]-[PN2119].

 282 Hughes [PN386]-[PN388]; [PN413] to [PN455], [PN471]; [PN599], Scherf at [PN718]; [PN757]; [PN765]; [PN809] to [PN81O]; [PN839]; Chauncy [PN1597]; Scherf [PN1607]; First Statement of Allison Chauncy at [94].

 283 Transcript 7 June 2021 at [PN486]; [PN493], [PN506]-[PN509]; Transcript 14 July 2021 at [PN60] to [PN63]; First Statement of Allison Chauncy at [108]; First Statement of Jessica Markel at [148].

 284   First Statement of Ms Chauncy at [105]; Transcript 9 June 2021 at [PN1716]; [PN1789], [PN1798], [PN1800]; First Statement of Ms Markel at [145(c)] and Transcript 15 July 2021 at [PN2064]­ [PN2134].

 285 First Statement of Ms Chauncy at [112].

 286   First Statement of Ms Markel at [74]; [81]; [99]; [106]-[107]; [115]-[116]; [138]

 287   First Statement of Ms Chauncy at [34] to [73]; First Statement of Ms Markel at [46] to [126].

 288   First Statement of Ms Chauncy at AMC-2 (p 23).

 289   Further Statement of Mitch Hughes Attachments MH1 to MH7.

 290   Hughes [PN520] to [PN529]

 291   Transcript 7 June 2021 [PN321]; [PN648]; [PN800]; [PN922]; [PN1092]; Transcript 8 June 2021 [PN1195]; [PN1253]; [PN1255]; Transcript 14 July 2021 at [PN966]-[PN968].

 292   See for example Transcript 7 June 2021 at [PN336]-]PN340]; [PN750]; Transcript 8 June 2021 at [PN1211]; Transcript 14 July 2021 at [PN974]-[PN1023].

 293 First Statement of Ms Morkel at [10].

 294 Supplementary Statement of Ms Morkel at [34].

 295   Hughes [PN804]; Morkel [PN163-4], [PN1639-40]

 296 Markel [PN1630]; Ruggieri [PN 2559-68]; [PN2573], [PN259-98]; [PN2656]; Statement of David Ruggieri at [18-19] and [91].

 297   See for example Scherf [PN 1037], [PN1046],[PN1048], [PN1052-7], [PN1178]; the CFMMEU could not even take the witness to the full legislation in NSW Scherf [PN1048].

 298   Statement of David Ruggieri at [23] to [102].

 299   Scherf [PN 995], [PN1026-9]

 300   Hughes [874]-[876]; Scherf [PN929]; Statement of David Ruggieri at [22]-[102].

 301   Ibid; Statement of Ruggieri [68]

 302   Scherf [PN 922-3], [PN985]

 303   Even Mr Scherf accepted this in the end Scherf [PN 1021]

 304   Scherf [PN 1021] they were identical but not 100% (sic)

 305   Scherf ]PN1058-1062]

 306   Scherf [PN206]; [PN264]; [PN305]; [PN312]-[PN328].

 307   Scherf [PN 637-59], [PN 1151-67]

 308   Scherf [PN1223]

 309   Hughes [PN386]-[388]; [PN469-471]; [PN478]; Scherf [PN765].

 310   Transcript PN1464 – PN1484.

 311   Transcript PN1630 – 1631.

 312   Exhibit AMWU1.

 313   Transcript PN1976 – 1977.

 314   Exhibit OSP – 2 Annexure AMC – 35.

 315   Ibid Annexure AMC – 36.

 316   Transcript PN1597 – 1603.

 317   [2010] FWAFB 1625.

 318   [2010] FWAFB 1625.

 319   AMWU Outline of Submissions dated 6 May 2021 paragraph 27.

 320   CFMMEU Consolidated Final Outline of Submissions paragraph 68.