Svitzer Australia Pty Ltd

[2016] FWCA 794

[2016] FWCA 794

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Svitzer Australia Pty Ltd
(AG2016/2196)

SVITZER AUSTRALIA PTY LIMITED NATIONAL TOWAGE ENTERPRISE AGREEMENT 2016

Port authorities
VICE PRESIDENT WATSON	MELBOURNE, 10 FEBRUARY 2016

Application for approval of the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 – Fairly chosen – Fair Work Act 2009, ss.186, 187, 188.

Introduction

[1] An application has been made for approval of an enterprise agreement known as the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Svitzer Australia Pty Limited (Svitzer). The agreement is a single enterprise agreement.

[2] The Agreement was made on 22 January 2016. Of the 628 employees of Svitzer who will be covered by the Agreement, 561 cast a valid vote, and 353 of those employees voted in favour of the Agreement. The following employee organisations filed a statutory declaration in relation to the proposed Agreement:

• The Maritime Union of Australia (MUA)



• The Australian Maritime Officers’ Union (AMOU), and



• The Australian Institute of Marine and Power Engineers (AIMPE).

[3] The MUA and the AMOU support approval of the Agreement. The AIMPE objects to the approval of the Agreement. The grounds of the AIMPE’s objection are that the group of employees covered by the proposed agreement are not fairly chosen.

[4] The matter was listed for hearing on 4 February 2016. Mr M Easton of counsel appeared on behalf of Svitzer, Ms S Andronikos appeared on behalf of the MUA, Ms M Papa appeared on behalf of the AMOU, and Mr B McNally of counsel appeared on behalf of the AIMPE.

Background

[5] On 20 October 2015, Svitzer commenced the process of negotiating the new Agreement with the AIMPE, the MUA and the AMOU. The proposed agreement is to replace the following three agreements:

• Svitzer Australia Pty Limited and AIMPE Towage Enterprise Agreement 2013 (AIMPE Svitzer Agreement) which covers Engineers



• Svitzer Australia Pty Limited and AMOU Towage Enterprise Agreement 2013 (AMOU Svitzer Agreement) which covers Masters, and



• Svitzer Australia Pty Limited and MUA Towage Enterprise Agreement 2013 (MUA Svitzer Agreement) which covers Deckhands.

[6] On 6 November 2015 the AIMPE filed an application for a scope order under s.238 in relation to the proposed agreement. It sought a single agreement to cover engineers employed by Svitzer on its tugs to replace the AIMPE Svitzer Agreement. The matter was listed for conference before Commissioner Cambridge on 17 and 30 November 2015. On 30 November 2015 the AIMPE filed an application for an Interim Order to restrain Svitzer from conducting a ballot of relevant employees who may be requested to vote in relation to a proposed Agreement. The matter was listed for hearing before Commissioner Cambridge on 3 December 2015. Commissioner Cambridge issued an Interim Decision 1 and granted an Interim Order2 broadly in the terms sought by the AIMPE, as follows:

“1. Svitzer Australia Pty Ltd is hereby Ordered not to conduct a ballot of employees to approve of any enterprise agreement to replace the SVITZER Australia Pty Limited and AIMPE Towage Enterprise Agreement 2013 (the 2013 AIMPE Agreement) unless and until the final determination of the application for a scope order in this matter (B2015/1549) is made or the application is otherwise finalised.”

[7] On 3 December 2015 the AIMPE lodged an application for protected action ballot order concerning employees covered by the AIMPE Svitzer Agreement and engaged as Marine Engineers on Svitzer’s vessels at a number of specified ports. Deputy President Booth issued a protected action ballot order on 9 December 2015. 3

[8] Following the proceedings in relation to the AIMPE’s application for protected action ballot order, Deputy President Booth listed the matter for hearing on 18 December 2015 at her own initiative. The purpose of that hearing was to consider whether, pursuant to s.603 of the Act, the Commission ought to vary or revoke the Interim Decision and Interim Order of Commissioner Cambridge.

[9] The Deputy President expressed her reasons for listing the matter at her own initiative in the following terms:

“…I listed the matter today to hear the parties on this question, because in the course of hearing an application for a protected action ballot order… I was troubled by the juxtaposition of the protected action ballot order that I formed the view I must and did as a result grant, and the existence of the interim order that I have just referred to.”

[10] On 18 December 2015 Deputy President Booth issued a decision on transcript in which she decided to revoke Commissioner Cambridge’s Interim Order, effective as of 18 December 2015.

[11] Svitzer had lodged a Notice of Appeal in relation to the Interim Decision and Interim Order on 11 December 2015, and had included an application that the Interim Order be stayed. Following the decision of Deputy President Booth, Svitzer advised the Commission that it did not press the application for a stay of the Interim Order and requested that the appeal be stood over generally.

[12] On 24 December 2015 the AIMPE filed a Notice of Appeal in relation to Deputy President Booth’s decision on transcript and made an application for that decision to be stayed. The application for a stay order was determined by Vice President Catanzariti on 14 January 2016. The Vice President issued a decision on transcript in which he declined to grant the stay application.

[13] Between 19 and 22 January 2016 Svitzer caused a ballot to be conducted in relation to the proposed enterprise agreement.

[14] The application for approval of the Agreement was lodged with the Commission on 25 January 2016. The matter was listed for hearing on 4 February 2016. The date of the hearing coincided with the hearing in relation to the application for a scope order, which was listed before Commissioner Cambridge on 4 and 5 February 2016.

[15] The matter was listed for Mention on 29 January 2016 with a view to determining the programming of the application for approval of the Agreement and the application for a scope order. The AIMPE requested that that the two applications be heard together. I determined that the application for approval of the Agreement would remain listed on 4 February 2016 and would not be joined with the hearing of the scope order application listed before Commissioner Cambridge. I was subsequently advised that the hearing in relation to the application for a scope order was cancelled, and any relisting of the matter is subject to the outcome of this application.

[16] I decided not to remove the matter from Commissioner Cambridge and conduct a joint hearing of the two applications because I did not consider that course to be an efficient way of dealing with the matters in dispute. The application for a scope order is premised on a bargaining representative having concerns that bargaining is not proceeding efficiently or fairly. The factors to be considered in determining the application include whether the order will promote fair and efficient conduct of bargaining and whether it is reasonable in all of the circumstances to make a scope order that will determine the employees to be covered by a proposed agreement. The scope order application assumes an on-going negotiation process. However the application for approval of the agreement is premised on an agreement being made between the employer and employees by way of a majority vote of employees covered by the agreement. Once that point was reached, understandably, there have been no further negotiations - and as far as the parties other than the AIMPE are concerned, no prospect of further bargaining. That situation will only change if the application for approval is unsuccessful.

[17] Further, the questions in the scope order application depend on the position regarding the agreement approval. Put another way, the approval or non-approval of the agreement is an important consideration in determining the reasonableness of making the scope order.

[18] An additional factor is the alleged overlap in the subject matter of the proceedings. While both applications invoke the “fairly chosen” issue, they address it in different ways. The scope order application requires a consideration of whether the scope sought in the order was “fairly chosen”. The agreement approval application requires consideration of whether a different scope (the scope of the agreement) is “fairly chosen”. As the authorities make clear, if one proposed scope is fairly chosen, it does not necessarily follow that any other proposed scope is not fairly chosen. Hence the overlap is not complete and in reality the applications raise separate questions.

[19] Further I am reluctant to interfere with the allocation of matters once they have been allocated unless there are strong reasons advanced and preferably general agreement. No such strong reasons were presented to me in the circumstances of this matter. Nor was there agreement on the course proposed. I considered that the best course was to proceed to hear the agreement approval matter on the day I had previously listed the matter.

[20] At the hearing on 4 February 2016 statements from the following persons were admitted into evidence:

• Mr Luke Bettesworth, General Manager, Western Australia and South Australia, employed by Svitzer



• Mr Peter Ernst, Port Manager, Sydney, employed by Svitzer



• Mr Albert Umansky, Manager, Industrial Relations, employed by Svitzer



• Mr David James, former Engineer, AIMPE Delegate and National Tug Convener



• Mr Donald Moore, Engineer, employed by Svitzer in the Port of Newcastle



• Mr Gary Browne, Engineer, employed by Svitzer in the Port of Freemantle, and former AIMPE Delegate



• Mr Greg Primrose, Engineer in Port Kembla, and former AIMPE Delegate



• Mr John Redmond, former Engineer and honorary member of the AIMPE



• Mr Peter Toohey, Engineer, employed by Svitzer in their Brisbane towage operations, and AIMPE Delegate, National Tug Convener, Queensland Branch Secretary and Senior Vice President of the AIMPE



• Mr Martin Byrne, Federal Secretary of the AIMPE



• Mr Greg Yates, Senior National Organiser for the AIMPE.

[21] Mr Umansky, Mr Byrne and Mr Yates were cross-examined.

Fairly Chosen

[22] The main area of contention between the parties is whether or not the group of employees to be covered by the Agreement was fairly chosen.

[23] The requirement that the group of employees covered by the Agreement must be fairly chosen is set out in ss.186(3) and 186(3A) of the Act, which provide as follows:

“186 When the FWC must approve an enterprise agreement—general requirements

…

Requirement that the group of employees covered by the agreement is fairly chosen

(3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.”

[24] Although there have been various Full Bench decisions dealing with the “fairly chosen” requirement, those cases are not consistent with subsequent Federal Court authority. The leading cases on the issue are now the Full Federal Court decision in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (John Holland) 4and the first instance decision of Siopis J that was upheld by the Full Court5. Siopis J said:

1. At the heart of the applicant’s complaint in relation to its first broad ground of review, was the contention that the Full Bench fell into jurisdictional error by reason of a misconstruction of s 186(3) and s 186(3A) of the Fair Work Act.

1. In my view, for the reasons which follow, the Full Bench fell into jurisdictional error because it misconstrued s 186(3) and s 186(3A) and so misconceived its task in applying those two subsections.

1. The statutory scheme proceeds on the basis that the power to make an agreement to which s 186(3) applies, resides in the parties to the agreement, namely, in this case, the employer and the employees covered by the agreement who were employed at the same time that the agreement is made (s 172(2) of the Fair Work Act). Sections 180, 181(1) and 182(1) specifically recognise that an agreement is “made” when the majority of the employees covered by the agreement who are employed at that time, vote in favour of the agreement.

1. The Fair Work Act goes on to provide that Fair Work Australia must, nevertheless, approve the agreement made by those persons. Section 186 and s 187 of the Fair Work Act set out the matters in respect of which Fair Work Australia must be satisfied. One of these matters is that the agreement has been genuinely agreed to by the employees covered by the agreement. This, of course, refers back to the employees who are covered by the agreement and were employed at the time that the agreement was made. Also, importantly, Fair Work Australia must be satisfied that the agreement met the better off overall test.

1. It is in this context that the requirement under s 186(3) that Fair Work Australia be satisfied that the group of employees covered by the agreement was fairly chosen, arises. The content of the matters in respect of which Fair Work Australia is to be satisfied under s 186(3) is, of course, informed by a proper construction of the Fair Work Act.

1. First, it is appropriate to observe that s 186(3) calls upon Fair Work Australia to be satisfied that the group of employees covered by the agreement “was” fairly chosen. It is of significance that the past tense “was” is used. This directs Fair Work Australia to have regard to the conduct of those persons who made the agreement and the content of that agreement. In other words, the question is whether the parties that made the agreement acted fairly in choosing those employees to be covered by the agreement. The question of fairness of choice arises because those employees who are “chosen” to be covered by the agreement will, ex hypothesi, be the better off overall than those employees who were not “chosen” to be covered by the agreement. Thus, for example, if only some of a group of employees doing the same work and in the same location were chosen to be covered by an agreement on the basis of their place of birth or their support of a particular political party, the group of employees chosen to be covered by the agreement would not have been fairly chosen. In this regard, it is also of some interest to observe that s 186(3) follows immediately after s 186(2)(d), which is the provision in the Fair Work Act which requires that the agreement satisfy the better off overall test.

1. In my view, it is also necessary in determining the task to be undertaken by Fair Work Australia in applying s 186(3) to have regard to the terms of s 186(3A). Of particular significance is the characterisation of the specific criteria prescribed in s 186(3A) as mandatory considerations to which regard is to be had in assessing whether the group of employees covered by an agreement has been fairly chosen, when not all the employees of a single employer are covered by the agreement.

1. Each of the three criteria mentioned as mandatory considerations describes a legitimate business related characteristic. The reason for this, in my view, is to preclude approval of an agreement which excludes an employee or number of employees from the benefit of being covered by an agreement for an extraneous characteristic of the kind referred to at [30] above.

1. The Fair Work Act contemplates, therefore, that in applying s 186(3) and s 186(3A), Fair Work Australia will, by reference to the coverage clause, undertake an examination of the criteria by which the group of employees was chosen. In determining whether the group was fairly chosen, Fair Work Australia will have regard to whether the criteria reflect the criteria identified in s 186(3A) or some other like legitimate business related characteristic, rather than an extraneous characteristic of the kind referred to at [30] above.

1. In my view, there is nothing in the language of s 186(3) and s 186(3A) of the Fair Work Act which conditions the exercise by Fair Work Australia of the power under s 186(3) to approve an agreement, upon Fair Work Australia being satisfied as to the number of employees who will, or may, during the term of the agreement, be covered by the agreement.

1. Accordingly, in my respectful view, in finding that it was unable to make the assessment of whether the group of employees was fairly chosen because it could not say with any certainty how many employees would, or may, be covered by the agreement throughout its term, the Full Bench misapprehended its statutory task and fell into jurisdictional error.

1. It was common cause that there were no agreements of the kind referred to in cl 1.2 in existence at the time that the agreement was made. There was nothing unfair in including a clause which contemplated that circumstances may arise when employees who would otherwise have been covered by this agreement may be covered by a different agreement. However, in my view, the inclusion of a clause which contemplated a potential change in circumstances did not affect the fairness of the criteria chosen as identifying a group of employees who were, in the absence of such circumstances, to be covered by the agreement. In other words, the inclusion of cl 1.2 did not preclude Fair Work Australia from embarking upon an assessment of the fairness of the fundamental criteria specified by the makers of the agreement.

1. Further, in my view, the words “was fairly chosen” in s 186(3) are not to be construed as “was chosen in a manner which would not undermine collective bargaining”. Notwithstanding the patient argument of Mr Reitano at the hearing, I am of the view that s 578(a) of the Fair Work Act does not support giving that construction to the words of s 186(3).

1. Section 578(a) relevantly provides that Fair Work Australia must, in exercising its powers, take into account any objects of the Fair Work Act and the objects of any part of the Act. However, I am of the view that the general words in s 578(a) do not permit Fair Work Australia to imbue the words of the statute with concepts which are not to be found in those words when properly construed. In my view, the proper construction of s 186(3) is informed by s 186(3A). That section prescribes the nature of the considerations to which Fair Work Australia is to have regard in exercising its power under s 186(3). Therefore, in my view, Fair Work Australia is not at liberty to exercise its s 186(3) powers on some other basis in reliance upon the general provisions in s 578(a) of the Fair Work Act. In other words, the general words in s 578(a) must yield to the specificity embodied in s 186(3A) in relation to the proper construction of the words “was fairly chosen” in s 186(3).

1. Further, there are specific provisions in Pt 2-4 of the Fair Work Act which give Fair Work Australia powers to withhold approval on grounds which reflect conduct inconsistent with the objects of Pt 2-4 identified in s 171. Thus, for example, s 187(2) permits Fair Work Australia to withhold approval for an agreement if approval would not be consistent with, or would undermine, good faith bargaining. It is significant, therefore, that there is no similar provision permitting Fair Work Australia to withhold approval on the grounds that it is of the view that the approval of the agreement would undermine collective bargaining. In the absence of that power having been conferred expressly on Fair Work Australia, it is, in my view, not open to Fair Work Australia to exercise such a power under the rubric of s 186(3) of the Fair Work Act.

[25] I will apply the approach adopted by the Federal Court to the determination of this matter.

[26] The scope of the Agreement is set out in clause 4:

“4.1 The Agreement covers and binds:

4.1.1 Svitzer Australia Pty Limited; and

4.1.2 The AMOU, AIMPE and MUA providing that, in approving the Agreement, FWC notes that the Agreement covers the respective Union; and

4.1.3 Employees and Trainees employed by Svitzer, in relation to work performed by Employees on tug boats in or about the ports specified in Schedule 1.

4.2 Exclusions

4.2.1 This Agreement does not cover employees employed by Svitzer:

(i) in work covered by the Dredging Industry Award 2010 or its successor;

(ii) in work on lines boats and mooring launches;

(iii) in all tugboat operations in the port of Darwin or any other port not specified in Schedule 1;

(iv) the tug and barge operations at the Koolan Island Project (WA).

(v) Contract towage or Tug and Barge operations that are the subject of another enterprise agreement.”

[27] Svitzer submits that the group of employees covered by the agreement was fairly chosen. The Agreement covers employees and trainees employed by Svitzer in relation to work performed by employees on tug boats in or about the specified ports. It does not apply to clerical, administrative and customer-service employees, employees who work on line boats and mooring launches, and employees who work in offshore support vessels under the Maritime Offshore Oil and Gas Award, because it states that the work performed by those employees is operationally distinct from the work performed by employees who perform who on tug boats, who are engaged for the principal purpose of harbour towage.

[28] The Agreement also does not apply to employees who are the subject of a separate enterprise agreement, namely employees employed on Svitzer’s Terminal Towage operations in the Port of Darwin serving the current LNG Project for Conoco Philips.

[29] Svitzer contends that it is a logical and reasonable choice of employees, and it is a choice that does not cause unfairness.

[30] Mr Ernst states that each crew that works on a Svitzer tug is comprised of 1 Master, 1 Engineer and 1 Deckhand, except for the Port of Whyalla where a larger crew is deployed on a transhipment/harbour towage vessel operation. Mr Ernst and Mr Bettesworth’s evidence is that while Masters, Engineers and Deckhands each perform different duties, there are similarities and an overlap in the duties performed by the three ranks. Further, the ranks work very closely together as a team for the same purpose—to operate the vessel.

[31] Mr Bettesworth states that in his experience of negotiating with the AMOU, the MUA and the AIMPE, the three unions require parity on many issues because they are issues of general application. The way that can be achieved in the most efficient and common sense way is with a single agreement.

[32] Mr Bettesworth states that from an operational point of view it is impractical to deal with three separate agreements when, in his experience, the vast majority of issues that arise under the current agreements are of generic application to all three ranks. Mr Bettesworth and Mr Ernst’s evidence is that the majority of Engineer-specific issues that engineers approach each of them about are not issues that would be covered by any enterprise agreement.

[33] Mr Umansky gave evidence as to why the particular group of employees was chosen. One such reason was because Svitzer believed that the bargaining process would be more efficient if bargaining for one agreement rather than three separate agreements. Mr Umansky gave evidence that one of the key reasons Svitzer sought to maintain an efficient bargaining process in the lead up to the vote on the 2016 Agreement is the desire to demonstrate to the relevant Port Authorities, its customers and the market that Svitzer can continue to deliver premium services in 2016. He said that in the first bargaining meeting for the agreement he said the following to the representatives of the three unions:

“We want a single bargaining unit and a single national towage agreement covering all harbour towage crews. It is highly inefficient to continue to negotiate a National Towage Enterprise Agreement under separate bargaining. We experienced significant delay and expense in running duplicate negotiations in 2013. We want to avoid bidding auctions, leapfrogging and one-out bargaining by one or other bargaining representatives. This EA needs to be negotiated quickly to consolidate job security after the Smit/Lamnalco transaction, and sustaining the business for the longer term. It has become simply too difficult to reconcile and manage disparate claims. One agreement will promote transparency and a stable platform for the next few years.

….

There are good reasons why we want a single agreement. Having multiple agreements means disjointed negotiations. Look at 2013 for example, when [Managing Director] Mark Malone spent 2 days of his time talking to one negotiating group, and then had to turn up the next day and repeat himself and re-run the discussions from scratch -this also led to a significant hold up in the negotiations with the other groups.”

[34] Mr Umansky gave evidence that Svitzer has sought to allay concerns from the AIMPE that its members’ rights would be adversely affected under a single agreement. Part of the assurance involves inserting additional commitments and obligations under the consultation clause of the new Agreement.

[35] Mr Umansky rejects the assertion advanced by the AIMPE that once Svtizer reached an ‘in-principle’ agreement with the AMOU, it refused to consider any issues raised by the AIMPE, and states that Svitzer continued to meet with the AIMPE in relation to the Agreement and considered each of the AIMPE’s proposals.

[36] The MUA referred to CFMEU v ResCo Training and Labour Pty Ltd 6 and submitted that simply because the group of employees advanced by the AIMPE may be described as fairly chosen, does not mean that another group of employees, such as that covered by the proposed agreement, is not fairly chosen. Further, the MUA notes that a significant number of employees participated in the vote for the agreement, and of those employees who cast a valid vote, a significant number voted in favour of the Agreement. Finally, the MUA submits that the requirements of the Act as they relate to enterprise agreement approval have been made out, so the Commission must approve the enterprise Agreement. The AMOU concurs with the submissions of the MUA and notes its support for the approval of the agreement.

[37] The AIMPE submits that the group of employees was not fairly chosen. It contends that the evidence establishes that tug crew level changes in 2000 caused great antagonism in sections of the MUA, and on-going anger has been directed towards some engineers ever since.

[38] The AIMPE submits that the evidence of these events and on-going tensions has not been denied by Svtizer and no contradictory evidence has been led by any party. The AIMPE notes that Svitzer has given evidence that at least two deckhands have been dismissed because they have engaged in misconduct against fellow crew members. The AIMPE submits that as the evidence stands, the evidence relating to antagonism by deckhands weighs heavily in favour of the allegations made on behalf of the AIMPE.

[39] Further, the AIMPE contends that there are relevant consequences of this antagonism. It alleges that some deckhands who would vote against issues involving working conditions of engineers irrespective of the merits of the matters. The AIMPE contends that this concern justifies that exclusion of deckhands from the vote in any enterprise agreement ballot involving engineers. The AIMPE submits that if the Commission agrees with the above assertion then it should find that the group of employees covered by the proposed agreement are not fairly chosen, and the application should be dismissed.

[40] Mr Byrne gave evidence of issues contained in the Agreement that are of particular relevance to engineers, including the duties clause, the recruitment clause, in particular concerning the qualifications of persons employed as engineers, conditions relating to dry-docking, and maintenance and emergency maintenance. Mr Byrne’s evidence is that AIMPE’s concerns regarding the matters referred to above are not always shared by others, so a combined vote by three Marine Unions in deciding Engineer specific issues when Engineers are a minority is against the interest of AIMPE members.

[41] Further, Mr Byrne gave evidence that once an in-principle agreement was reached with the AMOU and the MUA, Svitzer refused to consider any issues raised by the AIMPE.

[42] Mr Yates gave evidence that the AIMPE is concerned that bargaining for the agreement did not proceed efficiently or fairly. Mr Yates believes that it is important to hold separate meetings with Engineers to ensure that the other unions do not override or deride engineer issues and claims during the process of negotiations. Mr Yates states that the reason for this belief is that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover. Mr Yates gave evidence of different classifications, different qualifications and different operational requirements.

[43] Mr Yates’ evidence is that the assurances referred to by Mr Umansky concerning the consultation clause does not provide any assurance to AIMPE that would provide any comfort for engineers that Svitzer or the other unions would not attempt to alter the specific clauses that protect work performed by engineers under the conditions prescribed by the agreement. Further, Mr Yates gave evidence that the undertakings were not negotiated or agreed to by AIMPE, which he states demonstrates that bargaining is neither fair nor efficient for AIMPE members.

[44] I find on the evidence that the agreement does not cover all of the employees of Svitzer. I also find that the employees it does cover, being the tug crews employed on vessels is organisationally, operationally and geographically distinct from the employees who are not covered. There is no arbitrariness about the coverage of the entire tug crew. Such coverage is logical. The difficulties faced by Svitzer in the negotiating process and the application of different agreements are understandable and valid.

[45] Further, it is relevant that in the maritime industry coverage of members of different unions by one agreement is the exception rather than the rule. This is especially the case in relation to engineers and deckhands. The reasons for this appear to include tensions between the respective unions, tensions between the employees, the existence of discrete issues confined to one group or another, and the history of separate agreement coverage.

[46] Svitzer explained the reasons for its preferred scope at the first bargaining meeting. It is clear that the AIMPE opposed the agreement structured in that way from the start and pressed its position consistently over subsequent months. Nevertheless, the scope clause was an integral part of the agreement, and the agreement was agreed by a majority of employees who voted for the agreement.

[47] In many workplaces there are different groups of employees broken up along occupational lines. However it is very common for enterprise agreements to cover all award covered employees in a business, or at least all blue collar award employees. It is also common for there to be tensions between different groups of employees, such as between trades and production employees. In my view coverage of disparate groups in a single instrument is conducive to cooperation. Indeed the existence of separate instruments maintains differences and “silo thinking” which is generally regarded as disadvantageous in a team work environment.

[48] I am also mindful of the history of tensions revealed in the AIMPE evidence. Clearly any exploitation, domination or unfair discrimination in the making or application of the agreement is to be avoided by all parties. Where it does occur, appropriate remedies exist and should be considered. I am not satisfied that the perceived problems of a single enterprise agreement are likely to be real or substantiated.

[49] The group of employees covered by the agreement is the entire tug crew. In all of the circumstances I am satisfied that the group of employees covered by the agreement was fairly chosen.

Other Factors

[50] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[51] The MUA, AMOU and AIMPE have each given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act I note that the Agreement covers the organisations.

[52] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 February 2016. The nominal expiry date of the Agreement is 31 December 2019.

VICE PRESIDENT

Appearances:

Mr Easton, M of counsel, with Ms Lenard, C on behalf of Svitzer.

Ms Andronikos, S, Mr Patterson, R and Mr Garrett, P on behalf of the MUA.

Ms Papa, M and Mr Coombs, R on behalf of the AMOU.

Mr McNally, B of counsel, with Mr Burns, M on behalf of AIMPE.

Hearing details:

2016.

Melbourne.

4 February.

Final written submissions:

Svitzer on 3 February 2016.

AIMPE on 2 February 2016.

 1   [2015] FWC 8334.

 2   PR574626.

 3   PR574879.

 4 [2015] FCAFC 16.

 5   John Holland Pty Ltd v Construction, Forestry, Mining and EnergyUnion[2014] FCA 286.

 6   [2012] FWAFB 8461.

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