The Association of Professional Engineers, Scientists and Managers, Australia v Australian Red Cross Blood Service

[2011] FWA 2914

[2011] FWA 2914

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.238 - Application for a scope order

The Association of Professional Engineers, Scientists and Managers, Australia
v
Australian Red Cross Blood Service and others
(B2011/2520)

Health and welfare services
COMMISSIONER HAMPTON	ADELAIDE, 25 MAY 2011

Scope order - proposed enterprise agreement - application to exclude medical scientists from the broader group of employees - whether order would promote fair and efficient negotiations - whether group fairly chosen - whether appropriate to grant order - application refused.

INTRODUCTION

[1] This is an application by The Association of Professional Engineers, Scientists and Managers, Australia (APESMA or the applicant) for a scope order to be made pursuant to s.238 of the Fair Work Act 2009 (the Act). The application has been made in the context of negotiations for a new enterprise agreement to apply to the South Australian operations of the Australian Red Cross Blood Service (the ARCBS or the employer).

[2] The ARCBS accepts that the application has been validly made and does not raise any jurisdictional objections; however it opposes the application on various grounds.

[3] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) and the CPSU, the Community and Public Sector Union, State Public Service Federation SA Branch (the CPSU) are also bargaining representatives in the negotiations and have appeared in this matter. The AMWU supports the application whereas the CPSU has opposed the making of the scope order.

[4] There are a number of individual employee bargaining representatives and although provided with notice of these proceedings, they did not seek to present any position to Fair Work Australia.

[5] The existing instrument applying to the employees who are subject to the present negotiations is the Australian Red Cross Blood Service South Australia Employees Collective Agreement 2007 1 (the 2007 collective agreement). These negotiations are also taking place against the background of a dispute between the parties regarding the introduction of a new classification framework (the classification framework) by the ARCBS as foreshadowed in clause 33 of the 2007 collective agreement. There is a dispute as to the effect of the classification framework upon the 2007 collective agreement and its introduction and fairness.

THE APPLICATION

[6] APESMA filed the application in January 2011, however by consent, it was held in abeyance to permit further discussions between the parties. Ultimately, whilst other matters have progressed, the parties have been unable to resolve the issue of the scope as part of the ongoing negotiations and the application has now been heard on 12 May 2011.

[7] The application seeks a scope order which would have the following effect:

“... to remove those employees who were classified as medical scientists or holding roles however described which required the occupant to hold qualifications as a medical scientist or scientist and carry out a supervisory function in relation to the operations of the SA Blood Service.” 2

[8] This has been explained to mean that the following should be excluded from the present negotiations:

• Employees who were classified as Medical Scientists under the 2007 collective agreement as originally approved; and



• Employees who hold roles however described where the occupant was required under the 2007 collective agreement as originally approved to hold qualifications as a Medical Scientist or Scientist and who carry out a supervisory function in relation to the operations of the SA Blood Service. 3

THE STATUTORY REQUIREMENTS PERTAINING TO THE APPLICATION

[9] The Act provides as follows:

“238 Scope orders

Bargaining representatives may apply for scope orders

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

(a) the bargaining representative has concerns that bargaining for 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 must have given notice of concerns

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

(a) has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and

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

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

When FWA may make scope order

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

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

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

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

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

Matters which FWA must take into account

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

Scope order must specify employer and employees to be covered

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

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

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

Scope order must be in accordance with this section etc.

(6) The scope order:

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

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

Orders etc. that FWA may make

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

(a) amend any existing bargaining orders; and

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

[10] APESMA is a bargaining representative for all present purposes and there is no contention by the ARCBS (or any other party) that the requirements of s.238(1), (2) and (3) have not been met. I am satisfied that the application is properly made and that the exercise of discretion contemplated by s.238(4) of the Act is enlivened in this matter, subject to the relevant conditions in that provision. 4

THE EVIDENCE

[11] APESMA led evidence from Mr Tim Emery, a Medical Scientist in the transportation services department of the ARCBS. That evidence included materials associated with the introduction of the classification framework and the bargaining process now underway.

[12] The ARCBS led evidence from Mr Ian McFetridge, its Human Resources Business Partner for SA. His evidence dealt with the bargaining process, the introduction of the classification framework and the broader context for these matters.

[13] I accept the evidence of Mr Emery and Mr McFetridge. Their evidence was in my view honest and reliable, however it did contain some elements of opinion and I have treated those aspects as such. In terms of facts, there was little dispute and these were largely matters of perspective.

GENERAL FINDINGS AS THE CONTEXT OF THE APPLICATION

[14] I will leave the specific findings regarding the nature of the present negotiations and the introduction of the classification framework to the consideration of those matters. However, some broad context is necessary given the positions advanced in this matter.

[15] The ARCBS is a national division of the Australian Red Cross Society. It operates to supply blood and related products and services through both national and state-based service agreements.

[16] In South Australia, the ARCBS employs approximately 530 staff in roles which include Medical Specialists, Medical Officers, Registered and Enrolled Nurses, Managers, Medical and other Scientists, Technical Officers, Logistic staff, Contact Centre Agents and administrative and operational staff. The work locations involved include collection centres, laboratories, inventory and distribution, and other administrative and operational areas

[17] Negotiations are presently underway for a new enterprise agreement that is intended by the ARCBS to apply to the same general coverage as the 2007 collective agreement. This involves approximately 337 employees, of which 40 or so hold positions that were classified as Scientists and or Scientist Managers under the 2007 collective agreement, approximately 50 Technical Officers, 125 Contact Centre Workers and approximately 120 administrative and operational employees.

[18] The same coverage as now proposed has been broadly consistent in terms of earlier agreements involving the ARCBS for a period of some 14 years. The ARCBS is subject to an enterprise agreement that applies to its nursing employees and medical practitioners and specialists are also beyond the scope of the present process. This also represents a consistent approach over time which reflects various factors including different professional registration requirements and award coverage.

[19] The nature of agreement coverage in this State is also broadly consistent with many of the other State operations of the employer. In Queensland, Scientists have been excluded from the most recent enterprise agreement as a result of a scope order. I will return to the implications of this relevant event when considering the requirements of s.238(4) of the Act.

[20] APESMA represents 19 of the Scientists. The CPSU represents employees across the employee group, including Scientists, however the extent of that particular representation is not revealed in the evidence before Fair Work Australia. The AMWU represents employees within the present employee group including Technical Officers, who work alongside the Scientists, however again the extent of that representation is not in evidence.

[21] The ARCBS commenced a classification review on a national basis in June 2009 and this involved the use of an external consultancy firm who undertook consultation with employees and research into the nature of the work performed and external comparators. The external consultants made some draft recommendations to management of the ARCBS and some proposed job descriptors and all staff were provided with the opportunity to comment on those descriptors.

[22] In June 2010, a proposed classification framework was provided to employees and to the CPSU as the major union. This included details of the proposed “job families”, grades and new pay range. On 4 August 2010, the employer further advised employees in South Australia about the classification framework and confirmed the earlier process, acknowledged that some concerns had been raised, and that it was proposed that the framework be implemented on 1 September 2010.

[23] In late August 2010, APESMA wrote to the ARCBS and sought that the classification framework not be introduced. A petition signed by some 33 employees (mainly Scientists although some Technical Officers and administrative employees also apparently endorsed the views) was also provided by APESMA and this indicated a range of concerns with the classification framework.

[24] The ARCBS subsequently rejected the request to delay the implementation of the framework and is now seeking that it be included in the next agreement presently being negotiated.

[25] Further communication with at least some employees on the classification framework took place in mid October 2010. In the case of Mr Emery, this confirmed that as his present salary fell within the new pay range, it would remain unchanged, except that he would continue to receive annual increments due under the 2007 collective agreement. However, the ARCBS subsequently recognised to Mr Emery that the classification framework reduced the maximum of the former pay range for his classification and a one-off payment was proposed to him (and I understand some other Scientists and other employees, including those in non-scientist positions) subject to certain conditions. 5

[26] The present negotiations have been underway since February 2011. Various meetings have been conducted involving the bargaining representatives (this includes the ARCBS) and these have considered, amongst other matters, the scope of the negotiations including APEMSA’s formal concerns about the matter and its request for a separate Scientist’s agreement.

[27] APEMSA has strongly argued against the classification framework and for the establishment of a separate agreement. The CPSU and the AMWU have also indicated opposition to the classification framework however there is a different emphasis in each of their respective positions.

[28] In late March and early April 2011, it was agreed by all bargaining representatives that the negotiations could continue notwithstanding that APEMSA was pressing ahead with this application. In that context, it was mutually recognised that the main body of conditions that might be agreed in the negotiations could be replicated in any separate agreement.

[29] I will deal with the nature of the work of the scientists in considering the relevant requirements of s.238 of the Act. It is however appropriate to note that the work of the Scientists in not geographically distinct and whilst they form the majority of employees within the laboratories, they are integrated into the business of the employer in many respects and work alongside other employees, including in particular, Technical Officers and administrative staff.

THE CLASSIFICATION FRAMEWORK

[30] The classification framework developed by the ARCBS could be best described as being the grouping of the existing classifications into five groups, described as families, based upon their organisational roles. The classifications have then been broad-banded into six grades and salary ranges attached to the grades. This has been done on a national basis and is a move away from the occupation streaming evident in the classification structure appearing in the 2007 collective agreement.

[31] The ARCBS implemented the classification framework in its South Australian operation in September 2010. It is the case that the employer is conducting its affairs, including its approach to the negotiations, on the basis that the classification framework was introduced consistently with the provisions of the 2007 collective agreement and is in effect.

[32] APESMA argue that the purported introduction of the classification framework was not valid and has meant that the present negotiations are not proceeding fairly or efficiently. The ARCBS reject each element of that contention and suggest that the status of the classification framework is in any event not relevant for present purposes.

[33] Although the validity of the classification framework is ultimately a matter for a Court of competent jurisdiction, its introduction is one of the central platforms of the applicant’s case in this matter. As a result, I will deal with the issue, at least for the purposes of setting the context for the application of s.238(4) of the Act in this matter.

[34] Clause 33 Classification Structure of the 2007 collective agreement provides as follows:

“33 CLASSIFICATION STRUCTURE

33.1 During the term of this Agreement the ARCBS will commence a review of the classification structures contained in this agreement. The review process will ensure that there is extensive consultation with employees. Employees may nominate their Union to represent them.

33.2 The objectives of the review will be to ensure that the classification structure is appropriate for the most efficient and effective achievement of the objectives of the ARCBS.

33.3 The review will take into account the industrial history in relation to current classification structures but will not be bound by this in forming any recommendations for change.

33.4 The ARCBS may implement any recommendations of this review during the life of this agreement.

33.5 During the life of this agreement, no individual employee will suffer any reduction in salary expectations, as specified in this agreement, due to the implementation of any recommendations of the Classification Review. Salary expectations refer to the percentage increases contained in this agreement and normal increments that would apply if no changes were made.

33.6 The positions of Medical Scientist in any new classification structure would be based on the requirement for professional level employees taking into account professional registration standards.

33.7 The implementation of any new classification structure will be considered in the determination of future wage increases. Where employees receive wage movements via the implementation of the new classification structure, these wage movements will be given consideration and recognition with respect to future wage increases which may apply.”

[35] APESMA contend that the classification framework has not been properly introduced for three reasons. Firstly, that Schedule 8 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that a workplace agreement made under the Workplace Relations Act 1996 (the WR Act) may only be varied in certain circumstances which do not apply to the type of “variation” comprehended by clause 33 of the 2007 collective agreement.

[36] Secondly, it is argued that the “variation” to introduce the classification framework would not be the kind of change authorised by s.367(2) of the WR Act as the change involved represents a change to the entire classification structure within the agreement and there was no clear mechanism for determining who has authorised the change. APESMA relied upon the decision of Merkel J in Finance Sector Union v Commonwealth Bank of Australia [2005] FCA 796 in support of its approach.

[37] Thirdly, APESMA contended that the classification framework was introduced without the appropriate and required consultation with the employees or agreement with the relevant unions and was unfair in its impact upon employees, and Scientists in particular.

[38] The ARCBS argued that the classification framework has been properly introduced. That is, clause 33 of the 2007 collective agreement expressly contemplates that the recommendations of the classification review may be implemented by the employer during the life of the agreement. This, it argued, was reinforced by the provisions in clause 33.5 which expressly contemplate the introduction of what became the classification framework.

[39] The employer also contended that the introduction of the classification framework did not contemplate or require a variation to the 2007 collective agreement and that the provisions of the WR Act relied upon by the applicant were not relevant at the time. In terms of the authority cited by APESMA, the employer argued that the decision dealt with the issue of validity of the certification of an agreement that purported to allow for the total contracting out of the agreement through individual arrangements and that on the contrary, the use of the provisions of clause 33 of the 2007 collective agreement would be consistent with the legislative note to s.367(2) of the WR Act, if it were relevant at the time. 6

[40] The ARCBS argued that all of the consultation requirements of clause 33 had been met and that it was not necessary to reach agreement with APESMA or with the other unions prior to its introduction.

[41] I propose to deal with this aspect on the basis that the classification framework reflects the recommendations of the review contemplated by clause 33.1. There is evidence from Mr McFetridge to support that notion however there is little direct evidence on this aspect.

[42] There has been no application to vary the 2007 collective agreement and as a result, the introduction of classification framework could only be effective to the extent that it was consistent with the provisions of that agreement. That is, expressly contemplated and authorised by its terms or able to operate without contravening any of its provisions.

[43] The decision in FSU v CBA was in the context of a different statutory framework and for a different purpose. 7 However, the approach to facilitative provisions evident in that decision8 reinforces that it is the express terms and effect of the provision that should be considered.

[44] In my view, clause 33 of the 2007 collective agreement expressly contemplated that subject to the other conditions of the provision, the recommendations of the classification review could be implemented during the life of the agreement. Whilst there may be good policy reasons for requiring agreement with the majority of employees prior to introduction, the implementation of the recommendations under clause 33 is not subject to that condition. In terms of whether a certifiable agreement made under the WR Act could intend to operate in that manner, one of the conditions is that any new structure must operate such that no employee may suffer any reduction in salary expectations as specified in the agreement. These expectations refer to percentage increases contained in the agreement and normal increments that would apply if no change were made (clause 33.5). I will return to that aspect shortly. In that light however, it is certainly conceivable that the agreement intended the provision to operate as contended by the employer.

[45] Without detailing all of the evidence before Fair Work Australia it is sufficient to indicate that the rather non-prescriptive consultation requirements of the agreement provision have been met and there would appear to be no other solid basis to challenge the implementation of the classification framework provided that it operates subject to the provisions of clause 33.5.

[46] One of the concerns of APESMA, and for that matter the CPSU, is that the classification framework purports to have the impact that the Medical Scientists have lost access to the full extent of salary increments provided by the 2007 collective agreement. I make the observation that these increments may fall within the scope of “salary expectations” as contemplated by clause 33.5 of the agreement. That is a matter for the parties and no doubt will also feed into the negotiations for a subsequent agreement(s) along with the broader concerns.

[47] To a large degree, whilst the classification framework itself is directly relevant to the merits of this application, the validity is less so given all of the circumstances. It is sufficient for present purposes to deal with this application on the basis that the classification framework is being applied by the employer however it must operate subject to all of the provisions of clause 33 of the 2007 collective agreement. Further, and of importance for present purposes, the classification framework, as with any of the exiting arrangements, will not continue beyond the 2007 collective agreement unless it forms part of its successor(s). In that regard, the fact that the classification framework is being opposed for a variety of reasons by all of the unions appearing in these proceedings is an important consideration when assessing the impact of the proposed scope order.

[48] The question as to fairness and efficiency of bargaining as raised by s.238(4)(b) of the Act must be assessed against this background, including the degree to which the particular interests of the Medical Scientists in opposing the classification framework point in favour of the making of the proposed scope order. The absence of formal agreement to the classification framework by employees and their representatives is also a factor in assessing the considerations of s.238(4) of the Act in this particular case.

THE REQUIREMENTS OF SECTION 238(4) OF THE ACT

[49] In approaching this matter I have been mindful of the statutory objectives set out in the legislation, including those of most immediate import. Section 171 of the Act provides as follows:

“171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i) making bargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay.”

[50] It is apparent that all of the requirements of s.238(4) of the Act must be met in order for a scope order to be made. It is convenient to deal with each subsection in turn.

Section 238(4)(a) - that the bargaining representative who made the application (APESMA) has met, or is meeting, the good faith bargaining requirements

[51] No party has contended that APESMA has not or is not meeting the good faith bargaining requirements of the Act. The evidence before Fair Work Australia supports a finding that s.238(4)(a) has been met in this matter and I so find.

Section 238(4)(b) - that making the order will promote the fair and efficient conduct of bargaining

[52] APESMA contend that the introduction of the classification framework, and its impact upon the Medial Scientists in particular, means that the present negotiations have not been proceeding fairly or efficiently. This is said to be so as a number of Scientists have been disadvantaged in a manner that does not affect the majority of employees in other classifications. The concerns include the:

• Loss of a dedicated professional stream;



• Reduction in the classification levels and salary expectations of Scientist positions;



• Replacement of Scientists with Technical Officers; and



• Introduction of rates of pay which are allegedly market based, but which are less than the rates payable under the 2007 Agreement.

[53] APESMA submit that these concerns are not shared by the majority of employees and that if they remain as part of the broader bargaining group they will simply be swamped by the majority in the process.

[54] In terms of efficiency, APESMA contend that it would be more efficient for negotiations on their matters to be separated and that this would allow the issue relevant to the administrative, technical and operational streams to deal with their matters without that distraction.

[55] APESMA relied upon the decision of Richards SDP in The Association of Professional Engineers, Scientists and Managers, Australia v Australian Red Cross Blood Service and Anor[2010] FWA 3911 (the Queensland decision) where his Honour granted a scope order to remove Scientists from the broader bargaining group in the Queensland operations of the employer.

[56] The AMWU supported the application on the basis that the Medical Scientists were a readily distinguishable group, the interests of the AMWU members would not be disadvantaged, and that the scope order would allow both the APESMA members and its own interests to pursue their respective positions more efficiently.

[57] The ARCBS contended that I must be satisfied that the scope order would promote both fair and efficient bargaining in order to satisfy s.238(4)(b) of the Act. 9 Further, APESMA carried the onus to demonstrate that this would be so and the employer argued that this had not been done in this matter.

[58] Rather, the ARCBS contended that:

• The present negotiations were being conducted fairly and efficiently;



• The issues associated with the classification framework will arise and need to be dealt with even if a separate bargaining process is commenced;



• All of the unions involved in the negotiations opposed elements of the classification framework and there was therefore no basis to consider the interests of the Medical Scientists would be swamped in the broader negotiations;



• There was no evidence that the bargaining power of APESMA would be increased if the scope order was granted; and



• The need to duplicate the bargaining process would not be more efficient and was not necessary.

[59] The ARCBS sought to distinguish the Queensland decision on a number of largely factual grounds.

[60] The CPSU opposed the application and contended that it was in the best interests of all employees, including the Medical Scientists, to remain as part of the broader bargaining group. Further, it confirmed that it was also seeking the retention of a separate schedule and classification criteria for Medical Scientists and was opposed to elements of the classification framework.

[61] APESMA has contended that the Full Bench in United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board 10 took the view that the requirements of s.238(4)(d) of the Act were disjunctive, that is, that the making of the scope order required that it would contribute to fairness or efficiency. The ARCBS submitted that this should be treated with caution given that the issue was not decisive and the comments were said by the Full Bench to be observations.

[62] The aspect of the Full Bench decision relied upon by APESMA is as follows:

“...

[55] The relevant consideration under s.238(4)(b) is whether the order will promote the fair and efficient conduct of bargaining. The implication is that the tribunal should be satisfied that if an order is made the bargaining will at least be fairer or more efficient or both than it would be if no order were to be made. The relevant consideration under s.238(4)(c) is whether the specified group is fairly chosen. It may be that a number of groupings might be fair – what this criterion requires is that the group which is included in the scope order is fairly chosen. This issue is also dealt with in s.238(4A), which we discuss shortly.

...”

[63] I am 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.

[64] The requirements of s.238(4)(b) are that making the order will promote the fair and efficient conduct of bargaining. Having regard to that requirement, the objects of the Act and the authorities cited by the parties, I consider that this assessment should be based upon the following approach.

[65] It is not necessary that the present bargaining be considered to be unfair or inefficient however findings to that affect would clearly be relevant and would be conducive to a finding that the requirements of this provision may be met by an alternative scope for bargaining.

[66] The applicant for a scope order must demonstrate that the making of the order would promote, that is encourage and facilitate, bargaining that is fairer and more efficient than if no order was made. That assessment is to take into account the interests of all relevant parties who are subject to the bargaining process, not just those who are seeking the order, and involve the weighing up of the relevant considerations touching upon the issue.

[67] Those considerations tending to support APESMA’s case in relation to s.238(4)(b) of the Act include the following:

• There are particular concerns held by the majority of the Medical Scientists regarding the classification framework and these are related to the professional standing and recognition of those roles, as well as the pay rates and ranges.



• If a proposed single agreement was subsequently put to the employees for approval and only the Medical Scientists continued to oppose the classification framework, they could not be out-voted by the other employees.



• It is conceivable that the majority of conditions that would be common to both agreements could be resolved through a common process, or resolved in the negotiations affecting the majority and then considered for adoption in the (other) negotiations concerning the Scientists.



• To the extent that different groups of employees have issues that only concern them, the separation of the negotiations would permit additional focus upon those matters.

[68] Those considerations tending to militate against APESMA’s case on this issue include:

• The major issue, being the status and future of the classification framework, will need to be addressed and resolved in both negotiations and the separate scope will not of itself address the matter.



• The present bargaining process permits APESMA to peruse its bargaining objectives on behalf of the Medical Scientists.



• The good faith bargaining requirements of the Act 11 require the ARCBS to genuinely consider and respond to the issues raised by APESMA, and the other bargaining representatives, concerning the classification framework and this will apply even in the case of the present scope.



• None of the bargaining representatives are presently supporting the classification framework and it is has not been established that the differential interests of the Medical Scientists are being marginalised.



• The resolution of the classification framework concerns being pursued by APESMA could have an impact on the other employees, including in particular, the Technical Officers.



• There are bargaining representatives, other than APESMA and the employer, who would also need to be involved in the two processes if a separate set of negotiations were established.



• The present bargaining process is capable of continuing to progress matters in common whilst allowing specific issues to be resolved or advanced through a parallel process.

[69] I have also considered the circumstances evident in the Queensland experience and this does assist the assessment of elements of this matter. However, the scope order was considered at a different stage of bargaining and in that matter the classification framework had not been proposed or introduced. Rather, a provision along the lines of clause 33 of the 2007 collective agreement was being pursued by the employer. I also consider that it is difficult to transpose the outcomes of that matter to the different circumstances now evident in the South Australian operations. However it indicates at one level that the separation of the Scientists did facilitate the making of an agreement for the rest of the employees 12, however it has not in reality readily facilitated the making of an agreement for the Scientists.13 This must though be seen in the context of an agreement that was already at the point of being put to the employees for approval at the time of the scope order application and the desire of the Scientists not to be incorporated into that agreement.

[70] On balance, I am not persuaded that the granting of the scope order would promote fairer or more efficient negotiations in this matter. The evidence reveals that at this point in time many of the considerations supporting the application are largely speculative, and weighing up all of the considerations it has not been demonstrated that the making of a scope order would meet the requirements in s.238(4)(b) of the Act given all of the circumstances of this matter.

[71] This finding means that the application cannot be granted however as it has been fully argued I will deal with each of the issues arising.

Section 238(4)(c) - that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen

[72] Given that the agreement scope proposed in the scope order does not cover all employees of the employer, s.238(4A) of the Act requires that I must for this purpose take into account whether the group is geographically, operationally or organisationally distinct.

[73] APESMA argued that the group to be subject to the proposed scope order were easily distinguished on the basis of their qualifications and were as a result, organisationally distinct. The classifications of Medical Scientist and Scientist were said to be well understood in the workplace and had specific issues associated with their wage rates and qualifications which were not shared by other employees. This approach was supported by the AMWU.

[74] APESMA also contended that the employer in this case had already recognised different operational groups in terms of Nurses and Medical Officers who had their own agreements with ARCBS.

[75] The ARCBS contended that the group proposed for the scope order was not fairly chosen and could not be clearly defined. Further, it contended that the Scientists were integrated into laboratory work both administratively and in terms of functions and the granting of the scope order would lead to confusion and the potential for employees to be doing the same work but subject to two different negotiation processes and agreements. As such, the proposed group were not geographically, operationally or organisationally distinct.

[76] The employer also argued that unlike the case of the Nurses, the Medical Scientists had been subject to the same industrial instrument as the other employees within the present negotiations for many years and were covered by the same modern award. 14

[77] The essential question here is whether the group who would be comprehended by the proposed scope order was fairly chosen. As outlined above, in so doing I must in this case take into account whether the group is geographically, operationally or organisationally distinct. That is, I must consider and give weight to these considerations as fundamental elements when determining the fairness of the proposed scope. 15

[78] It is fair to say that the practical application of the proposed scope in this case is not entirely clear. In terms of those holding actual Medical Scientist, Scientist or Manager Medical Scientist classifications as specified in the classification schedule of the 2007 collective agreement, an order could be crafted with some clarity however there are employees and classifications where the application of the criteria proposed would be problematic. 16 This is a consideration in terms of the fairness of the scope, and potentially the discretion contemplated by s.238(4)(d) of the Act, however in my view this aspect is of itself not necessarily fatal to this application.

[79] It is important that the scope can be defined with sufficient certainty as it will establish fresh negotiations focused upon the group of employees as defined (s.173(2)(a)) and establishes good faith bargaining requirements specifically in connection with the group (s.187(2)). However, the detailed actual scope of negotiations is to some extent always a matter of negotiation 17 and the rough edges of the scope of a potential agreement could be resolved as part of that process.

[80] However, the lack of clarity within the coverage as proposed in this case does reflect the broader problem with the proposed scope itself. The Medical and other Scientists are not in this workplace geographically, operationally or organisationally distinct. They are integrated with other employees in many important respects and whilst the actual qualifications could provide a basis to distinguish some of the employees, qualifications are not the sole criteria for some of the Scientists positions that would fall within the claimed scope. Further, unlike the Nurses and Medical Practitioners, there are no external registration or express qualification criteria for some of these positions and at the introductory Scientist levels, the work of the more experienced Technical Officers is broadly common. I would however add that at other levels of the work of the Scientists, there are distinct roles and responsibilities for those employees that would not be performed by Technical Officers (or other employees). I also accept that having a reasonable proportion of qualified Scientists within the laboratories is a requirement for accreditation purposes and that actual qualifications at the senior levels are in practice required. 18 However, given all of these circumstances and the fact that equivalent experience is also recognised at some levels within the 2007 collective agreement Scientist classification criteria, reliance upon qualifications or job titles would not provide a fair or consistent demarcation element for some positions apparently contemplated by the scope order as sought.

[81] The evidence also reveals that the Scientists work as a team in the same operational and administrative environment as other laboratory employees in particular.

[82] The lack of a geographically, operationally or organisationally distinct group is a significant consideration militating against a finding that the proposed grouping is fair for present purposes however there may be other reasons why the group should still be assessed as meeting the requirements of s.238(4)(c) of the Act.

[83] I do accept that there are particular concerns that apply given the professional nature of these positions and there are aspects of the broad-banding and grouping effects of the classification framework that may well have a particular impact upon the group concerned. The employee petition is an indication of the strong and broadly held concerns of many of the Scientists. These have been taken into account in terms of the impact of the proposed order but also to some degree reflect into the fairness of the scope itself.

[84] The history of industrial regulation within this workplace and the fact that the Medical and other Scientists are covered by the same modern award that applies to the great majority of employees within the existing grouping are countervailing factors.

[85] I have also considered the basis and import of the Queensland decision and the view taken in that case that the Medical Scientists could in effect be dealt with discretely. It is clear from the decision of the learned Senior Deputy President that certain factors weighed heavily in that assessment. In particular, the fact that the Scientists had already been treated as a distinct group by the employer for certain salary purposes, 19 the apparent concession by the employer in that case that the distinction could be readily accommodated20 and the absence of evidence as to the overlap of duties between the Scientists and the Technical Officers21 were significant factors. In that matter it was also the case that a proposed agreement was about to be put to a vote where the Scientists in particular were strongly opposing its approval.22 None of these considerations or circumstances apply in this case and in particular I have heard detailed evidence about the South Australian operations including the integrated role of the Scientists, Technical Officers and other related workers in that context.

[86] In all of the circumstances as evident in this workplace I am on balance not satisfied that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen for present purposes.

[87] I note that although it is not a pre-requisite for satisfying s.238(4)(c) of the Act, the above considerations also do not indicate that the present scope of negotiations is unfair for present purposes.

Section 238(4)(d) - it is reasonable to make the order

[88] Given my views in relation to section 238(4)(b) and (c) of the Act there is no basis to make the order as sought and the discretion contemplated by s.238(4)(d) does not arise.

CONCLUSIONS

[89] For reasons outlined above, the application must be dismissed and I so order.

COMMISSIONER

Appearances:

M Butler with T Emery for The Association of Professional Engineers, Scientists and Managers, Australia

P Bauer for The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU)

I Peak for the CPSU, the Community and Public Sector Union, State Public Service Federation SA Branch

D Proietto of Lander & Rogers with permission with I McFetridge for the Australian Red Cross Blood Service

Hearing details:

2011

Adelaide

May 12

 1   This was approved pursuant to the Workplace Relations Act 1996.

 2   Exhibit APESMA 1.

 3   Submissions made by Mr Butler on behalf of APEMSA - Transcript PN304 - PN327.

 4 I note that there is no direct evidence that a written notice as contemplated by s.238(3) has been provided by APESMA to the individual bargaining representatives. The question arises as to whether these representatives are relevant for the purposes of that provision and if so whether the notice has effectively been provided. This issue was not taken up by the ARCBS and it is clear that the concerns were raised with all of the bargaining representatives during negotiations. It is not necessary to determine this matter given the ultimate conclusions I have reached on the application.

 5   TE 6 as attached to Exhibit APEMSA 2.

 6   The legislative note indicated in effect that changes which were authorised by the terms of the agreement itself would not fall within the scope of the relevant variation provisions.

 7 Section 170MD(7) of the WR Act is in the same terms as s.367(2) as relied upon by APESMA however the learned Judge was considering the validity of certification rather than the legal import of the provision.

 8   At par 78.

 9   Queensland decision at par [26] and [35].

 10   [2010] FWAFB 3009, 14 April 2010, per Giudice J, Lawler VP and Gay C.

 11   S.228 of the Act. Those obligations do not require a party to agree to any claims, however given the history associated with the introduction of the classification framework, the concerns of the unions cannot be dismissed simply because they might change an existing circumstance or complicate the national intentions. They must be genuinely considered and a rationale provided for any response.

 12   The Australian Red Cross Blood Service Collective Enterprise Agreement Queensland 2010 was approved by Cribb C on 6 July 2010. This agreement excludes Scientists, Scientist 2IC, Laboratory Managers and Supervising Scientists.

 13   Despite what could be described as robust and lengthy negotiations, an agreement for the Scientists in Queensland has not yet been made.

 14   Health Professional and Support Services Award 2010. The Nurses Award 2010 would cover the nurses concerned.

 15   The concept of “taking into account” is comparable to “must have regard to” and in that context see: R v Hunt: Ex parte Sean Investments Pty Ltd [1979] HCA 32.

 16   There are some positions where the requirement to hold scientific based qualifications is in dispute.

 17   Stuartholme School and Others v Independent Education Union[2010] FWAFB 1714, 3 March 2010 per Giudice J, Hamberger SDP and Spencer C.

 18   Refer to evidence of Mr Emery - transcript PN33.

 19   Queensland decision at par [14], [43], [46] and [49].

 20 Queensland decision at par [48].

 21   Queensland decision at pars [51] and [52].

 22   The evidence of Mr McFetridge and various references in the Queensland decision.

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