The Association of Professional Engineers, Scientists and Managers, Australia v Australian Red Cross Blood Service
[2010] FWA 3911
•25 MAY 2010
[2010] FWA 3911 |
|
REASONS FOR 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 & Anor
(B2010/2951)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 25 MAY 2010 |
Summary: scope order – discussion of meaning of promotion of fair and efficient conduct of bargaining – matters relevant to the exercise of discretion – order granted.
[1] This application under s.238 of the Fair Work Act 2009 (“the FW Act”) was made by the Association of Professional Engineers, Scientists and Managers, Australia (“APESMA”), which was a bargaining agent in relation to the proposed Professional Employees Enterprise Agreement Queensland 2010 (“the proposed Agreement”). The proposed Agreement is to replace the Australian Red Cross Blood Service Collective Agreement Queensland 2008, the nominal expiry date of which was 30 September 2009 (“the current Agreement”).
[2] The bargaining representatives in relation to the proposed Agreement include the Australian Red Cross Blood Service (Queensland) (“the Employer”), APESMA, the Queensland Public Sector Union of Employees (“the QPSU”), the Transport Workers’ Union of Australia, Union of Employees (Queensland Branch) (“the TWU”), the Australian Municipal, Administrative, Clerical and Services Union (“the ASU”) and the Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees (“the LHMU”).
STATUTORY CONTEXT
[3] Section 238 of the FW Act reads 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.
239 Operation of a scope order
A scope order in relation to a proposed single-enterprise agreement:
(a) comes into operation on the day on which it is made; and
(b) ceases to be in operation at the earliest of the following:
(i) if the order is revoked—the time specified in the instrument of revocation;
(ii) when the agreement is approved by FWA;
(iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;
(iv) when the bargaining representatives for the agreement agree that bargaining has ceased.
[4] This matter was brought on urgently at the request of APESMA on the basis of a presumption that the Employer was moving to request the employees to be covered by the prospective agreement to approve the agreement.
[5] The Employer made it clear in its submissions that it was indeed on the cusp, as it were of initiating that request.
[6] I provided an initial summary decision in transcript and subsequently invited the parties to request that full reasons be given in writing. The QPSU, which appeared at the hearing and led submissions against me making the order, requested such reasons be provided. The Employer also made such a request. These reasons for my decision upon full consideration of the evidence now follow.
[7] The essential issue in contest was APESMA sought to exclude from the coverage of the proposed Agreement those employees in the classification of professional scientist.
[8] It sought to do so on the basis of the evidence as led that the classification structure (and the applicable pay rates) relevant to employees working in professional scientist classifications under the current Agreement was uncertain as it was contingent upon a review that had not been completed in the life of that agreement (as had been anticipated at clause 39.1 of the agreement). The review was not completed within that time frame.
[9] The Employer intended to replicate in effect (bar procedural modifications) the same clause in the proposed Agreement.
[10] The application sought to ensure that the professional scientists were able to bargain separately in relation to the applicable classification structure, which they effectively were unable to do at present as they did not possess the numerical weight relative to the whole set of (union) bargaining representatives who appear to support the proposed Agreement on its current terms. There are about 40 or so professional scientists as opposed to some 340 employees to be covered by the proposed Agreement. 1
[11] Because the Employer was awaiting direction from its national office about the detail of the classification review, the state market analysis and its implications, the Employer could not and did not negotiate in relation to such matters in respect of this state-based agreement (with the professional scientists). Indeed, it appears from the evidence that the Employer did not wish to negotiate about the classification review per se, but preferred to advance the classification review “outside of the negotiations” for the proposed Agreement. 2
[12] The evidence was that the professional scientists had an interest in this matter as they are of the belief that their salary levels are substantially behind those of commensurate classifications in the public sector, and that these are not matters about which other bargaining representatives share a concern.
[13] These issues were in contest between professional scientists and the Employer in the negotiations for the current Agreement, and the scope to agitate those issues then (as now) were limited by their numerical standing in the work place.
[14] The evidence also demonstrates that Employer had made a market-based adjustment to the salaries of employees employed in professional scientists and technical officer classifications over the course of the life of the current Agreement. This comprised a 3.0% increase that was paid outside of the arrangements provided for in the current Agreement on the basis that there was a judgement made by the Employer about the relationship of the market to the rates under the current Agreement. The increase was not extended to other classifications, such as clerical staff. 3
[15] The evidence further demonstrated that in the event that there was a disagreement about the classification review outcomes then the ability of the professional scientists to agitate the issues about the outcomes of that review would be deferred until 2013, at which time the nominal expiry date of the proposed Agreement would be reached. 4
[16] It appears from the evidence that the Employer is a party to some 26 agreements nationally. 5 The Employer is party to a separate agreement in Queensland covering nurses only.
CONSIDERATION
[17] It is uncontested that the requirements of s.238(1)(a) and s.238(1)(b) of the FW Act have been met. 6
[18] Section 238(2) of the FW Act is not relevant to this application, as no single interest employer authorisation is in operation.
[19] The material accompanying the application is sufficient to satisfy me that that the requirements of s.238(3)(a), s.238(3)(b) and s.238(3)(c) of the FW Act have been met. This material comprised various items of correspondence to each on the bargaining representatives, setting out APESMA’s concerns and providing a time line within which to apply. The opportunity for discussions about APESMA’s concerns raised in that correspondence was not taken up by the other bargaining representatives.
[20] APESMA claimed that it met the requirements of s.238(4)(a) of the FW Act, and no one cavilled with that claim, nor does the evidence suggest any grounds upon which I might make an inference to the contrary.
[21] In this respect I note that there were some 13 meetings conducted between 29 September 2009 and 21 April 2010, and Mr Henderson, for APESMA, which is a bargaining representative for a number of the professional scientists, appears to have attended all such meetings. 7
[22] For purposes of s.238(4)(b) of the FW Act, in my view “the making of the order will promote the fair and efficient conduct of bargaining”.
[23] Section 238(4)(b) of the FW Act does not require me to be satisfied that the current bargaining (for the proposed Agreement) is not proceeding fairly or efficiently.
[24] Section 238(4)(b) of the FW Act only requires me to be satisfied that the order I might make will promote fair and efficient conduct of bargaining, in a procedural sense. It does not require me to be satisfied that the order will make the conduct of the bargaining fairer still or more efficient than the conduct of the bargaining for the proposed Agreement. The threshold condition for an application is not a finding of unfairness and inefficiency in relation to the conduct of bargaining as it has been. This is unsurprising as issues of relative fairness and efficiency will often be in contest in matters of this kind.
[25] The order that FWA might make, however, must stand on its own terms, as it were, grounded in the evidence, and have the effect of promoting the fair and efficient conduct of bargaining.
[26] The requirement that an order must promote fair and efficient conduct of bargaining is a conjunctive requirement. An order by FWA, therefore, must manifest a capacity to promote both fairness and efficiency in the conduct of bargaining. In a definitional sense, the order must promote - in that it must excite - the principles of fairness and efficiency in relation to the conduct of bargaining. The plain words of the FW Act do not suggest more than this (and the Explanatory Memorandum provides no further guidance).
[27] In the circumstances before me, professional scientists have agitated classification and salary matters in the negotiations for the current Agreement and they have agitated again in this agreement round and such matters. Their salaried conditions appear to give rise to market relativity issues to which other occupational groupings are not sensitive.
[28] The terms of the earlier agreement which covered the professional scientists undertook to determine classification and market related salary issues in the life of that agreement. Those issues were not resolved within that stipulated time frame. The professional scientists are now being asked to approve an agreement that incorporates a similar clause.
[29] The capacity of the professional scientists to agitate their concerns has been limited by their representative profile within the Employer’s organisation.
[30] An order that the professional scientists be permitted to bargain for an agreement in their own right would appear to me, in the circumstances of this case, to promote fairness in the conduct of bargaining.
[31] Would the order that I might make also promote the efficient conduct of bargaining?
[32] As I have discussed above in the context of “fairness”, I note that s.238(4)(b) of the FW Act does not require me to be satisfied that the order I might make must provide for more efficient conduct of bargaining than had been the case hitherto, any more than an order would need to provide for a greater quantum of efficiency than the existing bargaining conduct has yielded.
[33] The statutory requirement only is that an order must promote efficiency in the conduct of bargaining. To that end, there is no necessity for a finding relative to the conduct of bargaining in relation to the proposed Agreement. The order must promote efficiency in the conduct of bargaining in its own right.
[34] It would appear to me that issues are likely to arise as to the efficiency of bargaining in circumstances where an application is made to excise a class of employees from a bargaining process that would otherwise have been for the purpose of the making of a single enterprise agreement. This may be because the duplication of the bargaining process may not inherently contribute to efficiency in the conduct of bargaining.
[35] Conceivably therefore, excising a class of employees from a bargaining process might promote fairness in the conduct of bargaining, but it might not promote efficiency in the conduct of bargaining. Section 238(4)(b) of the FW Act requires FWA to be satisfied that the outcome of an order it might make under s.238 of the FW Act promotes both the fair and efficient conduct of bargaining.
[36] That said, in the circumstances of this matter, I am satisfied that an order I might make would promote the efficiency of bargaining. The reasons for this are as follows.
[37] Firstly, the Employer made no submission in relation to whether an order would promote efficient bargaining, and did not contest the claim led by APESMA in relation to the application of the statute to the factual milieu. That is, there was no express challenge to the claim that an order would promote the efficiency of bargaining.
[38] Secondly, the Employer submitted that the excision of the professional scientist’s classifications from the current agreement would be a task readily achieved.
[39] Thirdly, it appears to me also that the Employer is not unused to dealing with discrete agreements or discrete market conditions for professional scientists (amongst others).
[40] In this regard, the Employer is a party to 21 agreements nationally and it has a discrete agreement with nurses in Queensland.
[41] Importantly, in my view, the Employer has also taken steps in the life of the current Agreement to remunerate professional scientists (along with technical officers) outside the agreement framework.
[42] In so far as the Employer has entered into extramural arrangements with professional scientists to date, it would appear to me that to reach an agreement with professional scientists about their terms and conditions of employment discretely would hardly appear an obstacle, at least, to the efficient conduct of bargaining. Indeed, it would appear to me that in light of this prior conduct the Employer has demonstrated a willingness to deal with professional scientists discretely and in respect of the market sensitivities of their salaries and it has not found these supplementary processes to be impediments to efficiency in resolving issues around the terms and conditions of employment of certain classes of employees.
[43] That is, the past conduct of the Employer suggests to me that the Employer is willing and capable of accommodating enhanced and differentiated processes for settling pay issues in relation to professional scientists and it has done so efficiently.
[44] In view of these three reasons, I am readily able to be satisfied, therefore, that an order that I might make would not be an impediment or be detrimental to the efficiency with which the conduct of bargaining has progressed to date, given the above discussion. In my view, such an order would promote efficiency in relation to the conduct of bargaining (only even if arguably to the same degree as the current bargaining conduct).
[45] For purposes of s.238(4)(c) of the FW Act I must be satisfied:
“that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen”.
[46] It appears to me that this is a provision that requires a consideration, in distinction to the requirements of s.238(4A) of the FW Act, as to whether the group of employees, in the case of this application, be excised from the scope of the proposed Agreement. On the facts before me there is no evidence that would give me cause to find that the identification of professional scientists, who are identifiable as a group by way their professional qualification and who as a group (to some measure) appear to share a concern about the position of their salaries within the marketplace, have not been fairly chosen. Equally, the evidence suggests that the professional scientists, for the same reasons, were fairly chosen for the purpose sought in the application.
[47] Section 238(3)(d) of the FW Act requires me to be satisfied that:
“it is reasonable in all the circumstances to make the order.”
[48] Nothing was expressly put to me at an evidentiary level why I should not make the order. Submission was made by the QPSU that the effect of the scope order if made might be to cause the Employer to rescind the opportunity for backdating of the proposed Agreement and to perhaps withdraw the totality of the offer. The Employer did not expressly submit what outcome might follow if the scope order were made, though it did indicate the proposed Agreement could be easily amended to excise the classifications relevant to professional scientists.
[49] The Employer’s evidence did highlight that it would be unable to move on the issues of the resolution of salary and the classification review and that further bargaining in respect of this matter would be futile. Such a consideration might be important. But in the current circumstances, given the past conduct of the Employer in relation to this clause in the current Agreement and its willingness to supplement the salaries of certain classes of employees outside of the agreement regardless, I am not persuaded I should not make the order because of this claim.
[50] There might be an equal likelihood, for all I know, that the professional scientists, after a period of further negotiation, might seek to resume coverage within the proposed Agreement.
[51] The QPSU made the further point that there is some overlap in the range of duties performed by technical officers and professional scientists and that it was a bargaining representative role in relation to the same class of employees as APESMA represents.
[52] Such issues, if made out at an evidentiary level, might have had a bearing on the exercise of my discretion. For example, weight might be given to evidence that the professional scientists were integrated functionally within a wider workforce and that a separate agreement might not to be able to operate at a practical level in relation to the business imperatives of the Employer.
[53] Further, if the claims made in relation to professional scientists were not shared to any marked degree within that class of employees that, too, might have been a relevant consideration.
[54] So, too might any issues arising from s.238(4A) of the FW Act (which is discussed below). There might be other considerations in different circumstances.
[55] But overall, I think it is reasonable in the circumstances to make the order as sought by APESMA.
[56] In coming to this conclusion, I have also taken into account the circumstances contemplated at s.238(4A) of the FW Act. Section 238(4A) of the FW Act requires me to take into account:
“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.”
[57] There may be, on the basis of the submission of the QPSU in particular, be some overlap in functions performed by the professional scientist and technical officer classifications. But despite that, it appears to me that the group of employees to be covered by a discrete agreement (and as sought to be excised from the proposed Agreement) have been fairly chosen in relation to their operational distinctiveness (which is evidenced by their differentiated professional classifications). That is, the professional scientists are readily identifiable as a discrete class of employees within the totality of the employees by reason of their professional qualifications. In any event, as the Employer submitted, the professional scientists were able to be readily excused from the proposed Agreement, this attests to the ease of their identification as a distinct class of employees.
CONCLUSION
[58] For the above reasons, I am of the view that I should make a scope order in the terms as published in PR997171.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr N Henderson for the Association of Professional Engineers, Scientists and Managers, Australia
Mr B Mann for the Queensland Public Sector Union of Employees
Ms M Salmon for the Australian Red Cross Blood Service
Hearing details:
Brisbane
2010
May 17.
1 Transcript of Proceedings dated 17 May 2010 at PN 331
2 Transcript of Proceedings dated 17 May 2010 at PN 253, 291 and 337-344
3 Transcript of Proceedings dated 17 May 2010 at PN 270-275
4 Transcript of Proceedings dated 17 May 2010 at PN 285
5 Transcript of Proceedings dated 17 May 2010 at PN 337
6 Transcript of Proceedings dated 17 May 2010 at PN 11-16
7 Statutory Declaration of Mr Stephen Bosse dated 17 May 2010; Transcript of Proceedings dated 17 May 2010 at PN 429
Printed by authority of the Commonwealth Government Printer
<Price code {C}, PR997386>
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