Finance Sector Union of Australia v BWA Group Services Pty Ltd

[2014] FWC 919

[2014] FWC 919

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.238—Scope order

Finance Sector Union of Australia
v
BWA Group Services Pty Ltd
(B2013/277)

COMMISSIONER WILLIAMS PERTH, 13 FEBRUARY 2014

Application for a scope order.

[1] This matter involves an application made under section 238 of the Fair Work Act 2009 (the Act) for a scope order. The applicant is the Finance Sector Union of Australia (the FSU or the applicant) and the respondent is BWA Group Services Pty Ltd (Bankwest or the respondent).

Introduction

[2] Bankwest is covered by the following enterprise agreements:

• Bankwest General Enterprise Agreement 2011 [AE885034] (the General Agreement); and



• Bankwest Retail Division Concept Stores Enterprise Agreement 2010 [AE879240] (the Concept Agreement).

[3] Both agreements’ nominally expired on 31 December 2013.

[4] Bankwest and the FSU have agreed to negotiate a single agreement to replace the agreements.

[5] The General Agreement covers Level 1 and 2 employees in all divisions of Bankwest, other than retail stores and also four Level 3 employees and one Level 4 employee. These five Level 3 and 4 employees did not transfer onto management contracts in 2001 with all the other Level 3 and 4 employees at that time.

[6] The Concept Agreement covers Level 1 and 2 employees in retail stores outside Western Australia plus approximately 50 employees working in Level 3 Assistant Store Manager (ASM) roles in retail stores outside Western Australia. The Level 3 ASM classification in the Concept Agreement is agreed to be equivalent to the Level 2.3 classification for ASMs in the General Agreement.

[7] Around Australia the approximate number of Bankwest’s employees classified in particular levels and their agreement coverage is as set out below:

Agreement coverage	Employee Level	Number of employees
General and Concept	1 and 2 3 4	2342 54 1
No Agreement	3	1096
No Agreement	4	789
No Agreement	5	199
No Agreement	6 to 8	35

[8] In April 2013 Bankwest agreed to commence negotiations in regard to employees covered by the existing enterprise agreements and subsequently issued Notices of Representational Rights to that effect.

[9] Negotiations for a single replacement agreement commenced on 22 July 2013. To date there have been 10 negotiating meetings. At the time of the hearing the most recent meeting was on 9 December 2013.

[10] The scope of bargaining had been in relation to Level 1 and 2 employees.

[11] On 3 October 2013 the FSU wrote to Bankwest setting out its concerns that negotiations were not proceeding fairly or efficiently. The FSU stated that while negotiations to date had been productive, they were not proceeding fairly or efficiently because Bankwest had made it clear it did not want the new agreement to cover Level 3 employees.

[12] The FSU subsequently made this application for a scope order to include the approximately 1096 Level 3 employees in future bargaining for a new agreement.

The legislation

[13] Section 238 of the Act deals with scope orders:

“238 Scope orders

Bargaining representatives may apply for scope orders

(1) A bargaining representative for a proposed single-enterprise 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.”

Consideration

[14] Bankwest does not dispute, and I accept, that the FSU is entitled to apply for a scope order having satisfied the notification requirements in section 238(3) of the Act. In addition Bankwest does not challenge, and I am satisfied that, the FSU has met and is meeting the good faith bargaining requirements as required by section 238(4)(a) of the Act.

[15] There is a difference of view between the parties as to the requirements in section 238(4)(b) of the Act that the Commission must be satisfied “...that making the order will promote the fair and efficient conduct of bargaining...”.

[16] The FSU argue that this does not require the Commission to be satisfied that making the order will promote the fair, as well as the efficient conduct of bargaining. In short they argue only one of fairness or efficiency in the conduct of bargainingneed be promoted by making the order.

[17] The respondent argues making the order must promote both the fair and efficient conduct of bargaining. It is argued the “and” in “...the fair and efficient conduct...” should be given its ordinary meaning and is conjunctive.

[18] The FSU refer to the decision of the Full Bench [[2010] FWAFB 3009 at [55]] for support. This point has previously been considered by the Commission and I agree with the view of Commissioner Hampton in APESMA v Australian Red Cross Blood Service & Ors [[2011] FWA 2914] who considered this Full Bench decision.

[19] Commissioner Hampton said at [63] of his decision that he was:

“...inclined to the view that the Full Bench was making general observations in the context of dealing with (and rejecting) the suggestion that scope orders should only be made where the scope of the present negotiations was unfair, rather than making a definitive finding on the issue raised here. In any event, it is not necessary to resolve the matter for the purposes of this application. I would also observe that a finding that the proposed scope would not be fair, or alternatively not efficient, would clearly be relevant in any event to the discretion in s.238(4)(d) of the Act.”

[20] I agree with Commissioner Hampton’s view and similarly do not accept the Full Bench as having decided that “and” in section 238(4)(b) of the Act is disjunctive.

[21] Consistent with the respondent’s submission, in APESMA v Australian Red Cross Blood Service & Ors [[2010] FWA 3911 at [26] and [35]] Senior Deputy President Richards held that the requirements of section 238(4)(b) of the Act were conjunctive. He concluded that the Commission must be satisfied that a scope order will promote both the fair and the efficient conduct of bargaining. I agree this is the correct approach.

[22] In determining this application section 238(4)(b) of the Act requires that the Commission must be satisfied that making the scope order sought by the FSU would in this instance promote both the fair and the efficient conduct of bargaining.

Findings - Level 1 and 2 versus Level 3 positions

[23] The evidence of the applicant’s witnesses addressed whether in particular positions some of which were classified as Level 2 whilst others were classified as Level 3 there were in fact real differences. An example of this being evidence from various witnesses that the job of an ASM was, perhaps unsurprisingly, more similar to the job of a Store Manager than it was different. Given these similarities it was broadly argued by these witnesses that such Level 3 positions should be covered by the same agreement as the Level 2 positions and not treated differently by Bankwest.

[24] More of the applicant’s evidence dealt with the opinion of individual witnesses that their personal preference was that Level 3 positions should be covered by an agreement as is the case for Level 1 and 2 positions.

[25] The evidence of other witnesses for the respondent in particular Mr Dasey highlighted the different approach Bankwest has taken since 2001 to determining the terms and conditions of Level 3 and above employees.

[26] Considering the evidence of all the witnesses I accept in general that the qualitative difference between Level 3, 4, 5 and above roles and Level 1 and 2 roles is that the higher level roles involve an increasing degree of managerial responsibility and the capacity to make decisions independently without referral.

[27] I accept that a point of differentiation between Level 3 roles and Level 1 and 2 roles is that the former are often involved in leadership and planning functions and will have accountabilities for outcomes as opposed to accountabilities for following processes. Commonly Level 3 roles will also involve a greater degree of specialisation than the Level 1 and 2 roles which are usually operational in nature.

[28] I do accept however that in a business which has 1150 employees who are classified as Level 3 and another 1308 other employees classified as Level 2 there will be individual cases where these findings may be legitimately disputed however I am satisfied that overall the differences between these two levels are as I have concluded above.

[29] With regard to the terms and conditions of employment Level 3 employees are expected to work the hours required to complete the role as opposed to working specified hours with over time as is the case for Level 1 and 2 employees. This difference reflects the increased level of responsibility and the flexibility Bankwest requires from these higher level employees.

[30] Level 1 and 2 employees are remunerated under the agreements at prescribed rates and have historically received fixed percentage increases to these rates through the agreements the applicant has negotiated with Bankwest.

[31] These payment arrangements contrast with the remuneration arrangements for Level 3 employees who receive a range of different payments which are far less standardised.

[32] The evidence is that the salaries paid to Level 3 employees are market driven with the consequence that two Level 3 employees in different roles in different parts of the Bankwest business may receive quite different salaries 1.

[33] Bankwest has a system of remuneration ranges for Level 3 employees so that employees who meet performance expectations will be remunerated in line with market median rates while exceptional employees who perform at the top end will have the opportunity to be paid at the top quartile of market rates.

[34] In addition Bankwest provides additional short-term variable incentives to Level 3 employees.

[35] Across Bankwest in 2013 the fixed annual remuneration, being the total fixed salary plus superannuation, on average for Level 2 employees was $67 533, for Level 2.3 employees this was $74 182 and for Level 3 employees it was $90 984.

[36] However the variability or range of Level 3 remuneration can be seen from the fact that the highest Level 3 fixed annual remuneration was $160 000 for a Senior Relationship Manager the next highest was $158 000 for a Partnership Manager then $150 000 for a Senior Legal Adviser and the evidence was that there are many Analysts who are receiving $130 000.

[37] The approximate total annual payroll for all of the employees classified at the respective levels was as follows:

Level 1 $53 700 000

Level 2 $92 400 000

Level 3 $117 600 000

Will making the order promote the fair and efficient conduct of bargaining?

[38] In terms of the questions the Commission must consider regarding the promotion of the fair and efficient conduct of bargaining the FSU submits that the evidence demonstrates that unless the scope order is issued unfairness will arise because employees at Level 3 will be left out of the bargaining process and excluded from the agreement being negotiated with Bankwest.

[39] It is submitted unfairness also attaches to excluding Level 3 employees because unlike Level 1 and 2 employees only the Level 3 employees will be required to demonstrate that a majority of them support bargaining for an agreement before they are able to bargain with Bankwest.

[40] It is also submitted that inefficiency will arise in so far as employees at Level 3 will need to demonstrate this majority support by a separate application to the Commission and then seek a separate agreement via separate negotiations in order for them to be covered by an enterprise agreement.

[41] The inefficiency it is argued of bargaining separately for two agreements instead of one is self evident.

[42] Witnesses for the applicant gave evidence as to their view of the fairness in this matter which included concerns about the terms and conditions of Level 3 employees compared to Level 1 and 2 employees and that their terms and conditions were not safeguarded in an enterprise agreement. A significant focus was on the fact that Level 3 employees did not receive the perceived benefit of a fixed percentage increase as Level 1 and 2 employees have in the past under an agreement.

[43] The respondent submitted that the applicant’s evidence sought to paint a picture of Level 3 employees being in an unequal or unfair position relative to Level 1 or 2 employees (which was disputed) but that any such evidence and submissions relying on this was wrongly directed to the outcomes of bargaining which is not what the Commission must consider. The respondent says the Commission is not required to consider the potential outcomes of bargaining but rather only the fairness of the conduct of bargaining.

[44] In any event the respondent argues the level of remuneration and benefits Level 3 employees enjoy is as demonstrated by the evidence significantly greater than their colleagues at Level 2 under the agreements.

[45] The respondent does not accept that not bargaining with a group of employees such as the Level 3 employees is self-evidently unfair or requiring this group of employees to demonstrate there is majority support for bargaining is in any way unfair and points out that this situation is clearly contemplated by the Act.

[46] The respondent argues there is no basis to say that precisely what section 236 of the Act envisages, which is employees is applying for a majority support determination, actually amounts to unfair and/or inefficient conduct of bargaining so that this scope order should be made to prevent a section 236 application needing to be made.

[47] The respondent submits that it cannot be interpreted as being unfair or inefficient conduct of bargaining for the respondent to simply say, as the Act allows, that it will not bargain with a particular group of employees unless there is a demonstration of majority support amongst these employees.

[48] The respondent further submits that it cannot be argued that Bankwest’s approach which may require Level 3 employees to bargain separately involves any unfairness in the conduct of bargaining. This group of employees is large in number, over 1000, and of significant importance to the respondent and it cannot be argued they are in a weak collective bargaining position or that they are unable to bargain on their own account given they are able to be represented by the FSU if they so wish.

[49] In terms of efficiency the argument that bargaining for two agreements is less efficient conduct of bargaining ignores the differences between the Level 3 employees and the Level 1 and 2 employees and ignores the different basis on which Level 3 employees are remunerated.

[50] It is submitted that adding Level 3 employees to the current negotiations will significantly broaden and complicate the negotiations and potentially lead to delay and frustration for all levels of employees.

[51] The annual payroll of the Level 3 employees being more than $117 million means any decision made through negotiations regarding salary adjustments or other monetary benefits will have significant budgetary implications for the respondent. Such matters may well impact on the respondent’s recruitment and retention strategies for specific groups of employees. Consequently consideration of any claims by the FSU will involve consultation across a large number of business units within the bank and modelling of considered responses which may vary, given the different needs of the different parts of the business, will need to be undertaken 2.

[52] In particular it was submitted that the FSU has historically campaigned for guaranteed salary increases for Level 3 employees or across-the-board annual increases which would have a significant impact on the respondent for Level 3 employees and would be a major departure from the current remuneration arrangements 3.

[53] Finally the respondent makes the point that it cannot be assumed that there will be two sets of negotiations, one for Level 1 and 2 employees and subsequently other negotiations for Level 3 employees because it cannot be assumed if this scope order is not made that the FSU will successfully obtain a majority support determination requiring the parties to negotiate a second agreement for Level 3 employees.

[54] Considering the submissions of the parties and the evidence I accept that the Commission must be positively satisfied that there is evidence that making the scope order will promote both the fair and efficient conduct of bargaining and the onus ofdemonstrating this falls on the applicant.

[55] It is quite plain from the wording of the Act that it is the conduct of bargaining which is to be considered and not the potential outcomes of bargaining.

[56] To that extent there is little evidence to support the applicant’s submissions regarding the promotion of fairness and efficiency in the conduct of bargaining.

[57] There is no evidence to support the conclusion that if Level 3 employees are left out of the current negotiations involving Level 1 and 2 employees that they are in any way a vulnerable group such that it would be unfair for the future conduct of bargaining that they bargain separately. They are a large group of employees and there is no reason to believe that they are not as well placed as their Level 1 and 2 colleagues, if the majority of them do wish to bargain for an agreement, to do just that with Bankwest.

[58] The FSU argues that Bankwest by refusing at this point to negotiate with Level 3 employees because they doubt there is a majority support for bargaining amounts to unfairness in the conduct of bargaining which should be remedied by the issuance of the scope order. This submission is at odds, in my view, with the scheme of the Act which provides rights and responsibilities for both employees and employers in bargaining.

[59] An employer is not obliged to bargain with each and every group of employees that a bargaining representative says wants to bargain for an agreement.

[60] Where an employer does not agree to bargain with a group of employees section 236 of the Act provides a mechanism for that group to demonstrate that a majority of them do wish to collectively bargain with their employer and where this has been found to be the case by the Commission the Act then allows employees to, if necessary, seek bargaining orders under section 229 of the Act.

[61] The fact that Level 3 employees will not be included in the current bargaining involving Level 1 and 2 employees is not inherently unfair in terms of the conduct of bargaining and the fact that they may have to go through the process of obtaining a majority support determination to persuade Bankwest that a majority of them do wish to bargain is not unfairness in the conduct of bargaining that the Commission should have regard for in this application.

[62] Turning then to consider the question of efficiency in the conduct of bargaining. The FSU’s simple proposition is that it is likely there will be two sets of negotiations for two separate agreements and hence the efficient conduct of bargaining will be promoted by a scope order issuing requiring only one negotiation for a single agreement. The efficiency suggested in have one not two sets of negotiations assumes the Level 3 employees who otherwise may be involved in a second round of negotiations have similar interests to the Level 1 and 2 employees involved in the current negotiations and similarly that Bankwest has the same concerns for the purposes of any negotiations regarding Level 3 employees as they have for Level 1 and 2 employees.

[63] The evidence here quite clearly demonstrates that there are significant differences between the roles and responsibilities of Level 1 and 2 employees and Level 3 employees which cast real doubt on the FSU’s assumptions above.

[64] It is fair to say that there are a large number of the Level 1 and 2 employees who operate in very similar roles. Consequently negotiations for this group will involve many common issues that affect large numbers of this group and in the same way there will be many issues Bankwest wish to progress which will have the same impact on a large proportion of this group. Level 3 employees however are operating in a wider range of different roles with less homogeneity and across more areas of Bankwest’s business. Level 3 employees are employed in the respondent’s retail and enterprise service divisions as well as the business and corporate division and also in specialist areas such as HR, Finance, Risk Management and Marketing. Their roles and responsibilities have more variety with a number of smaller groups of individuals working in unique specialist roles. This variation is reflected in their individualised and variable remuneration arrangements. Self-evidently in my view negotiations with this group will inherently be more complex in that any common claim made for this group will have a range of differential impacts on various parts of the bank raising a number of particular issue for Bankwest all of which will need to be addressed in negotiations and many of which will be different from the concerns regarding Level 1 and 2 employees.

[65] The evidence of Mr Dasey was persuasive in this regard 4 and I accept that the involvement of Level 3 employees will significantly add to the complexity in the respondent’s internal considerations. Consequently their responses to all union claims will be likely to involve specific issues unique to particular subgroups of these employees. This will inevitably make the negotiations more complicated and therefore likely to be more time-consuming than will be the case for Level 1 and 2 employees alone. Given Level 1 and 2 employees also have a starting point of a well-established agreement history whereas negotiations for Level 3 employees will be starting from a totally different basis which involves an individualised and variable remuneration structure this alone does not suggest at all that making the scope order to include Level 3 employees in the negotiations will promote the more efficient conduct of bargaining.

[66] In conclusion I am not persuaded that making the order sought will promote either the fair or the efficient conduct of bargaining in the circumstance of this matter.

Was the group of employees who will be covered by the agreement proposed by the scope order geographically, operationally or organisationally distinct?

[67] Whether the group of employees who will be covered by the agreement proposed by the scope order are geographically, operationally or organisationally distinct are factors the Commission must take into account when deciding whether that group was fairly chosen.

[68] The applicant does not suggest that the group of employees it proposes to be covered by the agreement proposed by the scope order are geographically distinct 5.

[69] In terms of the operational and organisational characteristics the applicant submits that in the non-retail areas the scope order would include employees up to and including team leader and middle management roles at Level 2 and 3 but would not include senior management roles at Level 4 and 5.

[70] In non-retail areas some Level 2 and Level 3 employees are located at the same layer of management on Bankwest’s organisational charts which the applicant submits demonstrates there is no distinction between these two levels in this non-retail area. Whilst the FSU accepts there are some differences between Level 2 and Level 3 employees they argue this is a matter of degree but it does not make them distinct groups.

[71] As such the FSU argues that the group they have specified in the scope order is organisationally and operationally distinct. The thrust of the argument is that Level 3 employees are not materially a different group from Level 1 and 2 employees.

[72] The applicant called evidence from a number of witnesses seeking to demonstrate the similarities between the roles of Level 2 and Level 3 employees.

[73] Considering the FSU’s submission and evidence I agree with the respondent that there is little evidence that demonstrates that the group of employees whom would be covered by the scope order, being employees at Level 1, 2 and 3, are distinct from the balance of Bankwest employees being Levels 4 and above which is what section 238(4A) of the Act is concerned with.

[74] The evidence, in my view, demonstrates that there is not a homogenous group of employees in terms of roles or responsibilities at Level 3. Whilst there are some subgroups of Level 3 employees who are undertaking roles where is it clear there is delineation between their jobs and those of the level above them there are apparently other Level 3 employees whose roles are quite close to that of the level above them to the point of some blurring of the delineation between levels.

[75] Bearing in mind the onus is on the applicant in this matter I am not satisfied that there is sufficient evidence before me to positively find that there is a dividing line of sorts between the group of employees which are Level 1, 2 and 3 and those other employees at Level 4 and above such that I can accept that the Level 1, 2 and 3 employees are operationally and organisationally distinct. I do not accept the reliance on organisational charts amounts to evidence demonstrating this operational or organisational distinction. In my view the evidence is clearer that there is, in the main, organisational and operational distinction between the group of employees which are Level 1 and 2 and those other employees at Level 3 and above.

Was the group of employees who will be covered by the agreement proposed by the scope order fairly chosen?

[76] Because the agreement proposed to be specified in the scope order will not cover all of Bankwest’s employees section 238(4A) of the Act requires the Commission, in considering whether the group of employees was fairly chosen, to take into account whether the group is geographically, operationally or organisationally distinct.

[77] In this case the geographical factor in my view is a neutral matter given the spread of all Bankwest’s employees across the country however the fact that I have not been satisfied the group of employees whom would be covered by the proposed agreement, if the scope order was issued, are operationally or organisationally distinct does tell against a finding that the group was fairly chosen.

[78] I note here that the fact the General Agreement covers four Level 3 employees and one Level 4 employee is a legacy of events in 2001 and the fact that the Concept Agreement covers approximately 50 employees in Level 3 assistant store manager positions whose roles are broadly accepted to equate to Level 2.3 classification in the General Agreement are in the context of a business with nearly 4500 employees minor anomalies with unique historical backgrounds that are not relevant in the determination of this application.

[79] The FSU’s position on the scope of the proposed agreement has altered throughout 2013 as follows. The FSU originally in April 2013 wrote to Bankwest seeking to commence negotiations for an enterprise agreement to cover those employed in retail and non-retail roles including those “...in managerial roles and roles in Level 3 and above”.

[80] In June 2013 the FSU presented a petition to Bankwest signed by numerous employees supporting the inclusion of employees at “...Level 3 and above...” in the scope of negotiations for an enterprise agreement.

[81] On 3 October the FSU advised in writing to Bankwest that it now sort to pursue an enterprise agreement that would cover the “...Level 3 colleagues, in addition to Level 1 and 2 colleagues...”.

[82] Whilst it would not be fair to the FSU to conclude that their change in position as to the scope of the proposed agreement so that Level 4 and above employees would not be included demonstrates the group of employees who will be covered by the scope order they now seek was arbitrarily chosen, this change in position demonstrates that there a number of different groups of employees that it could be argued would have been fairly chosen. One of those groups also arguably is the group that Bankwest wishes to negotiate with being Level 1 and 2 employees only.

[83] The Commission in the past has accepted that there can readily be more than one group of employees whom it could be said were fairly chosen when considering section 238(4A) of the Act. That is the case here.

[84] There is no evidence that choosing the group of employees the FSU has involves any unfairness to them or to the other Bankwest employees. The group chosen is simply based on the discrete level identifiers, i.e. 1, 2 and 3, the respondent uses in its operations.

[85] In this case notwithstanding my conclusion that the group of employees is not geographically, operationally or organisationally distinct I am satisfied that the group of employees who will be covered by the agreement proposed by the scope order was fairly chosen.

Is it reasonable in the circumstances to make the order?

Views of employees

[86] The views of the employees involved may be a matter that makes it reasonable in the circumstances to make the scope order the applicant seeks.

[87] On 10 June 2013 the FSU presented to Bankwest a petition signed by approximately 1800 employees. On presenting this petition the FSU urged Bankwest to accept the petition as evidence of support for the inclusion of Level 3 and above classifications in the scope of negotiations for an enterprise agreement 6.

[88] Both parties made submissions and a number of the witnesses gave evidence regarding this petition.

[89] The petition has a heading as follows:

“PETITION: An Agreement for All.

Petition to Robert De Luca, BankWest Managing Director

The BankWest general enterprise agreement covers level 1 and 2 employees; employees graded level 3 and above have not been included in the past 3 rounds of enterprise bargaining negotiations.

BankWest employees graded level 3 and above should have a legally enforceable set of conditions of employment, and want to be covered by the next BankWest enterprise agreement.

At a time of increasing uncertainty and insecurity, all BankWest employees should be able to collectively bargain, and enjoy the certainty that an enterprise agreement provides.

We are all BankWest employees, all part of one team.

We are not asking for massive improvements to our current entitlements under our individual arrangements; we are simply asking to be covered by the next BankWest enterprise agreement so that we have a legally enforceable safety net of minimum conditions of employment.

In the past, when we have asked for everybody to be included in the enterprise agreement, BankWest has refused to even consider the request.

This petition has been created and signed by employees so that there is no misunderstanding about the depth of feeling on this issue. Please BankWest; don’t leave any of us out of the enterprise agreement again.”

[90] The sentiment of the petition can be summarised as an expression of preference for an agreement that would cover all employees of Bankwest and specifically those graded Level 3 and above.

[91] Mr Dasey has given evidence regarding Bankwest’s analysis of the signatories to the petition. I accept his evidence that the number of signatures by employees classified at each level and what this figure is as a percentage of the total number of Bankwest employees in each level is as follows:

Level	Employees per level	Number of signatories	Signatories as a percentage of employees per level
1	1034	499	48.3
2	1308	780	59.6
3	1150	419	36.4
4	789	112	14.2
5	199	10	5.0
Unknown	2
Total	4480	1822	40.7

[92] Both parties made submission as to what the Commission should conclude from the petition. A fundamental deficiency with the submissions made by both the FSU and Bankwest is that the petition expressly was designed to demonstrate support for an agreement for all Bankwest employees and specifically that employees graded Level 3 and above should be covered by an enterprise agreement. This however is a quite different proposition from what the scope order seeks.

[93] On 3 October 2013 the FSU advised Bankwest that it now wished to pursue an enterprise agreement that would cover “...Level 3 colleagues, in addition to Level 1 and 2 colleagues...”. Significantly the FSU was advising it was no longer agitating for the proposed enterprise agreement to apply to employees in classifications above Level 3. The scope order the subject of this application is consistent with that and if ordered by the Commission would not require Bankwest to negotiate for an agreement that would cover employees above Level 3.

[94] The petition the FSU has tabled in these proceedings did not ask Bankwest employees to demonstrate their support for an agreement that would cover only Level 1, 2 and 3 employees. It would be pure speculation as to whether a petition seeking support for an agreement with this narrower scope would have resulted in a similar number of signatories for each level or would have resulted in some different outcome let alone what that different number of signatories might have been for each level.

[95] The parties’ submissions have not addressed the fact that the scope of agreement the petition proposed is different from the scope order this application involves.

[96] Would for example a proposal that Level 4 employees not be covered by the same agreement as Level 3 employees cause more or less Level 3 employees to want to be covered by the same agreement as Level 1 and 2 employees? The reasons individual employees signed and others did not sign this petition will be many and varied and how they would each react to a differently worded petition is unknown 7.

[97] In any event even if Bankwest’s employees were assumed to support this application for a scope order in exactly the same proportion at each level that they supported the petition such results could not be said to demonstrate clear support for this application. For example there were just less than half of Level 1 employees and around 60% of Level 2 employees who signed the petition but only slightly over a third of all Level 3 employees who signed the petition and it is these Level 3 employees who are most directly affected by this application.

[98] Separately I recognise that the applicant’s witnesses did express their individual preference for Level 3 classifications to be covered by an enterprise agreement and that they believed other employees also held that view however given the large number of employees of Bankwest this evidence cannot be taken as being indicative of the views of Bankwest employees generally.

[99] For the purposes of this application the petition is not evidence of the views of the Bankwest employees about the scope order the applicant seeks. As explained it would be unsafe for the Commission to draw inferences from the results of this petition in the manner both parties have urged.

[100] Consequently the existence of this petition with the particular number of signatories at each classification level is not of significance in the determination of this application.

Historical context

[101] The evidence is that the Level 3 employees in question have not been covered by any enterprise agreement since 2001. The evidence does not suggest the existing arrangements for Level 3 employees generally are problematic.

[102] The respondent’s willingness to negotiate to replace the existing two agreements with a single agreement for Level 1 and 2 employees does not disturb this status quo of industrial regulation that has been in place for 13 years. Indeed it is the applicant that is proposing a major change to the well established industrial arrangements in this case.

[103] There is nothing in Bankwest’s actions in this matter and particularly not their refusal to include Level 3 employees in the Level 1 and 2 employee negotiations that can be said to be unreasonable or capricious given this historical context.

[104] In these circumstances, without other compelling reasons, it would not be reasonable to make the scope order the applicant seeks which would be contrary to the well established industrial arrangements in place.

Conclusion

[105] In conclusion I am satisfied the applicant in this case has met, or is meeting, the good faith bargaining requirements and that the group of employees who would be covered by the agreement proposed to be specified in the scope order was fairly chosen.

[106] However I am not satisfied that making the order the applicant seeks will promote the fair and efficient conduct of bargaining nor that it is reasonable in all the circumstances to make the order.

[107] Given the requirements of section 238(4) of the Act the Commission is not able to make the scope order sought and this application is dismissed.

COMMISSIONER

Appearances:

G McConville for the applicant.

J Blackburn of Counsel for the respondent.

Hearing details:

2013.

Perth:

December 17 and 18.

 1   Transcript at PN482 to PN492.

 2   Exhibit A4 at paragraphs 7 and 9. Exhibit A5 at paragraphs 9, 11 and 14.

 3   Exhibit A3 at paragraph 8 and Attachment LY1.

 4   Ibid., at PN515 to PN516, PN568, PN871 to PN874 and Exhibit R4 at paragraphs 98 to 111.

 5   Transcript at PN1243.

 6   Statement of Agreed Facts at paragraph 20.

 7   Exhibit A4 at paragraph 9.

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