The Australian Maritime Officers' Union, The v Harbour City Ferries Pty Ltd

[2015] FWC 8003

[2015] FWC 8003 [Note: An appeal pursuant to s.604 (C2015/8065) was lodged against this decision - refer to Full Bench decision dated 15 April 2016 [[2016] FWCFB 1151] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

The Australian Maritime Officers' Union, The
v
Harbour City Ferries Pty Ltd and Others
(B2015/766)

AND

Harbour City Ferries Maritime Agreement 2015
(AG2015/4301)

COMMISSIONER CAMBRIDGE SYDNEY, 20 NOVEMBER 2015

Application for a scope order - application for approval of an enterprise agreement - application for scope order dismissed - challenge to application for approval of enterprise agreement upon grounds of group not fairly chosen and agreement not genuinely agreed - enterprise agreement approved.

[1] This Decision is made in respect of two related applications which were taken respectively under s. 238 and s. 185 of the Fair Work Act 2009 (the Act). The first application (B2015/766) was made on 27 July 2015, by the Australian Maritime Officers' Union (the AMOU) and it involves an application for a scope order. The second application (AG2015/4301) was made on 12 August 2015, by Harbour City Ferries Pty Ltd (HCF or the employer) and it seeks the approval of the Fair Work Commission (the Commission) for an Enterprise Agreement known as the Harbour City Ferries Maritime Agreement 2015 (the 2015 Agreement).

[2] Both applications involve the same four Parties, namely; the AMOU; the Australian Institute of Marine and Power Engineers (the AIMPE); the Maritime Union of Australia (the MUA); and HCF. Further, the positional alignment of the respective Parties is the same in each matter, that is, the AMOU and the AIMPE both support the making of a scope order and oppose the approval of the 2015 Agreement, while both HCF and the MUA oppose the scope order and support the approval of the 2015 Agreement. The AMOU, the AIMPE and the MUA are collectively referred to as the Unions or the three Unions.

[3] The scope order matter was the subject of an Interim Decision, [2015] FWC 5127, issued on 29 July 2015. The Interim Decision refused interim relief sought by the AMOU to have the Commission restrain HCF from conducting a ballot of employees scheduled for the following day, 30 July 2015. The ballot of the employees of HCF was conducted in respect of a proposed Enterprise Agreement to replace the Sydney Ferries Maritime (AMOU and MUA) Enterprise Agreement 2012 (the 2012 Agreement). The ballot of the relevant employees made the 2015 Agreement and subsequently the application for approval of the 2015 Agreement was made by HCF.

[4] The Parties agreed to have further proceedings in the scope order matter conducted concurrently with the Hearing of the approval of the 2015 Agreement matter. In respect of the earlier interlocutory Hearing for the scope order matter, the Commission had been satisfied that the relevant provisions of s. 596 of the Act had been met. The Commission identified that the matters involved, inter alia, a degree of complexity such that they would be dealt with more efficiently if permission was granted for lawyers or paid agents to represent any of the respective Parties. Consequently, as s. 596 of the Act had been satisfied, permission was granted for Mr A Howell, barrister, to appear for the AMOU; and for Mr A Gotting, barrister, to appear for HCF; and for Mr N Keats, solicitor, to appear for the AIMPE; and for Ms L Doust, barrister, to appear for the MUA.

[5] The Hearing of the matters was conducted in Sydney on 9 and 12 October 2015, and final additional written submissions were received on 21 October 2015. The evidence in the matters included various witness statements of Mr J Wydell from the AMOU who was re-called as a witness after giving evidence as a witness in the interlocutory proceedings. The AIMPE provided evidence by way of two witness statements, the deponents of which were not called for cross-examination.

[6] Further, evidence was provided on behalf of HCF in the form of various witness statements of Mr D Moy. Mr Moy was also re-called as a witness to provide evidence which supplemented his previous evidence given during the interlocutory proceedings. In addition, evidence from HCF was provided by way of witness statements, the deponents of which were not called for cross-examination. Evidence from the MUA was provided by Mr P Garrett who made a witness statement and was called as a witness and cross-examined on the contents of his statement. The Parties provided extensive written submissions which were supplemented with oral submissions.

Background

[7] Before July 2012, Sydney Harbour passenger ferry services were owned and operated by the New South Wales Government. Prior to 2009, the arrangements for industrial regulation of workers engaged in the operation of these passenger ferry services involved separate instruments which respectively covered the work of ferry masters, engineers, and general purpose hands (GPHs). Consequently, historically, the three Unions, which represented the respective categories of ferry operations employees, being either; the AMOU for ferry masters; the AIMPE for engineers; and the MUA for GPHs, each negotiated separate industrial instruments to cover the particular work of each category of employees. Further, in the case of engineers, the AMIPE negotiated separate industrial instruments for engineers who worked on outer harbour services (Manly to Circular Quay) because of the particular nature and qualifications required for that work.

[8] In 2007, the New South Wales Government established a Commission of inquiry into the operation of Sydney Harbour passenger ferry services. This inquiry was conducted by Mr Brett Walker SC who issued a report (the Walker report), which, inter alia, made findings which relevantly criticised inefficiencies which were identified with the separate industrial regulations negotiated with each of the AMOU, the AIMPE and the MUA.

[9] In 2009, the AMOU and the MUA formed a Single Bargaining Unit (SBU) and negotiated a single industrial instrument which governed the work of both ferry masters and GPHs.

[10] In 2012, the AIMPE joined the SBU and following extensive negotiations between the three Unions and the New South Wales Government, an Enterprise Agreement was made which covered the work of ferry masters, inner harbour engineers, GPHs, and other associated roles including reference to customer assistance officers (CAOs). This Enterprise Agreement was approved by a Decision of Sams DP of Fair Work Australia [2012] FWAA 1481 issued on 24 February 2012 (the 2012 Agreement).

[11] On 28 July 2012, HCF commenced to operate the Sydney Harbour passenger ferry services which had previously been operated by Sydney Ferries as a corporation established under relevant New South Wales Government legislation. HCF operates the Sydney Harbour passenger ferry services by way of a franchise arrangement with the New South Wales Government and that franchise arrangement was specifically anticipated in terms contained in the 2012 Agreement. Consequently, on and from 28 July 2012, the terms of the 2012 Agreement applied to and bound HCF and its employees engaged in the work of ferry masters, inner harbour engineers, GPHs, CAOs, and associated roles, as well as the AMOU, the AIMPE and the MUA.

[12] The 2012 Agreement has a nominal expiry date of 2 May 2014. As was mentioned in the Interim Decision, there has been a long and troubled history associated with negotiations for an Enterprise Agreement to replace the 2012 Agreement. The troubled history of negotiation is reflected in the 15 May 2015 Full Bench Decision in Australian Maritime Officers Union v Harbour City Ferries and Others. 1

[13] The negotiations for an Enterprise Agreement to replace the 2012 Agreement formally commenced in early 2014, and involved numerous bargaining meetings between HCF and the three Unions comprised as a SBU. This bargaining configuration reflected the arrangements which had operated to successfully establish the 2012 Agreement. As the enterprise bargaining progressed during 2014, each of the Unions successfully concluded Protected Action Ballots in anticipation of the taking of industrial action in pursuit of terms for an Enterprise Agreement to replace the 2012 Agreement.

[14] In late June 2014, the MUA had given HCF notice of intention to take protected industrial action which comprised various bans on the performance of particular work including a ban on the collection of fares from ferry passengers. Following the notification of this particular industrial action, discussions occurred directly between HCF and the MUA. These discussions did not involve either the AMOU or the AIMPE in the SBU bargaining configuration. However, in order to avert the anticipated industrial action, HCF improved various aspects of its offer in respect to the enterprise bargaining. The MUA sought to secure these improvements and decided to withdraw its intention to take the notified protected industrial action.

[15] During July, August and September 2014, the enterprise bargaining for an Enterprise Agreement to replace the 2012 Agreement continued under very strained relationships between the three Unions that comprised the SBU. Essentially, HCF had secured agreement in principle with the MUA, but this agreement could not be translated into an agreed position of the SBU. In October 2014, despite there being no agreement reached with the SBU, HCF decided to put a proposed Enterprise Agreement to replace the 2012 Agreement to a vote of relevant employees.

[16] On 10 October 2014, HCF requested that employees vote to approve the Harbour City Ferries Maritime Agreement 2014 (the 2014 Agreement). The AMOU and the AIMPE arranged to conduct a vote in respect of the (proposed) 2014 Agreement separate to the arrangements that had been made by HCF for the conduct of the ballot. Consequently, two separate ballots were conducted, one involved a vote by way of show of hands of MUA members in attendance at a meeting at Sydney Town Hall, and the other involved a vote by way of ballot papers of members of the AMOU and the AIMPE in attendance at a meeting at the Gallipoli Club premises.

[17] The vote of members of the MUA at the meeting held at the Sydney Town Hall was recorded to be 236 votes in favour of the 2014 Agreement with eight votes against. The vote of members of the AMOU and the AIMPE at the Gallipoli Club was recorded as six votes in favour of the 2014 Agreement and 81 votes against. Consequently, the 2014 Agreement was made in that a majority of employees to be covered by it and who had participated in the ballot process, had voted in approval of it. HCF then filed an application for the Commission to approve the 2014 Agreement.

[18] The application for approval of the 2014 Agreement was dealt with by Booth DP. The application was supported by the MUA and opposed by both the AMOU and the AIMPE. At the conclusion of a Hearing held on 12 December 2014, an ex tempore Decision [2014] FWCA 9069, was issued which approved the 2014 Agreement.

[19] The coverage of the 2014 Agreement was essentially the same as that of the 2012 Agreement. However, the coverage was not identified in the Notice of Employee Representational Rights (NERR) which had been issued for the 2014 Agreement. The AMOU appealed the Decision of Booth DP which had approved the 2014 Agreement. In light of the appeal against the Decision to approve the 2014 Agreement, the MUA and HCF agreed that if the AMOU appeal was successful, the process for approval of the 2014 Agreement would be repeated with any rectification of the NERR or other issue, but without any substantial changes to the terms of the 2014 Agreement.

[20] On 15 May 2015, the approval of the 2014 Agreement was quashed by the Full Bench Decision which found the NERR to be defective in a manner that was fatal to the application for approval of the 2014 Agreement. On 18 May 2015, HCF issued a NERR for the 2015 Agreement. On 20 May 2015, the AMOU sent an email communication to HCF which acknowledged the NERR for the 2015 Agreement and, inter alia, indicated that the AMOU did not agree with the proposed coverage of the 2015 Agreement and instead proposed a coverage which would essentially be confined to ferry masters and engineers.

[21] On 27 May 2015, the SBU met with HCF and discussions occurred regarding the dispute about contested coverage of the 2015 Agreement. At this meeting HCF informed the SBU that it intended to conduct a ballot of relevant employees in respect to the 2015 Agreement. During June and July 2015, the contested coverage question for the 2015 Agreement was the subject of various communications between the Parties. On 21 July 2015, HCF advised relevant employees and the three Unions that a ballot in respect of the proposed 2015 Agreement was scheduled for 30 July 2015.

[22] On 27 July 2015, the AMOU filed the scope order application. That application was then the subject of interlocutory proceedings on 29 July, and the Interim Decision that did not disturb the vote in respect of the 2015 Agreement, which took place on 30 July 2015.

[23] The vote in respect to the 2015 Agreement was conducted by way of a show of hands at a meeting of relevant HCF employees held on board of the ferry Collaroy berthed at jetty three at Circular Quay. This meeting involved relevant employees of HCF who were members of all of the three Unions and the vote was recorded to have been 115 in favour of approval of the 2015 Agreement and 64 against. Consequently, the 2015 Agreement was made, in that a majority of employees to be covered by it, and who participated in the ballot process, had voted in support of it. On 12 August 2015, HCF made the application seeking that the Commission provide approval of the 2015 Agreement.

The AMOU Case

[24] Each of the Parties in these matters advanced their respective cases by firstly articulating a position in respect of the scope order application, and then subsequently each Party advanced their argument in respect of the agreement approval application.

[25] Mr Howell, who appeared for the AMOU, made extensive oral submissions in addition to the various documentary materials which had been provided on behalf of the AMOU. Mr Howell commenced his submissions by directing attention to the objects of the Act. Mr Howell referred to the objects contained in s. 3 of the Act and in particular sub-section 3 (f), and he also referred to objects in respect to enterprise bargaining found at s. 171 of the Act.

[26] Mr Howell submitted that the Act was not prescriptive in respect to how Parties to industrial arrangements may bargain. However, he stated that the overriding obligation involved bargaining in good faith and the avoidance of capricious or unfair conduct. Mr Howell stated that it was not simply the fact that there was a difference in collective size of the various groups represented respectively by the AMOU, the AIMPE and the MUA which had prompted agitation for separate industrial coverage for masters and inner harbour engineers. Mr Howell submitted that the inherent notions of good faith bargaining embodied in the objects of the legislation, would be enhanced if the separate industrial coverage as was sought by way of the scope order was provided.

[27] Mr Howell made further submissions which addressed the various legislative requirements established by sub-sections 238 (1) and 238 (3) which operated as prerequisites to the making of any scope order. Mr Howell acknowledged that a particular potential difficulty arose in respect to the terminology of sub-section 238 (1), which involved the prospect that a scope order would be confined to a proposed Enterprise Agreement rather than one that had been made such as had occurred on 30 July 2015 in respect to the 2015 Agreement. In this regard, Mr Howell submitted that the submissions made on behalf of HCF at the interlocutory proceedings held on 29 July, urged that there was no impediment to the making of a scope order after an Agreement had been made but before it was approved by the Commission.

[28] Mr Howell made further submissions which rejected assertions from HCF that the AMOU had not satisfied the requirements of sub-section 238 (3) of the Act. In particular, Mr Howell submitted that the AMOU had satisfied the legislative requirements in respect to providing notice of its concerns and giving other bargaining representatives a reasonable time within which to respond to those concerns.

[29] Mr Howell stressed that the evidence of the conduct of the Parties in relation to the making of the 2015 Agreement had to be considered in the context that it had subsequently been revealed that an agreement had been made between HCF and the MUA that if the 2014 Agreement failed at Appeal, it would be returned to the ballot of employees process immediately upon any such failure. Mr Howell submitted that this arrangement between HCF and the MUA was conduct that was contrary to the good faith bargaining requirements and as such should be considered when assessing whether or not the notice requirements of sub-section 238 (3) of the Act had been met.

[30] In his further submissions made in respect to the scope order application, Mr Howell contended that the requirements of sub-sections 238 (4) and 238 (4A) of the Act had been met and it was therefore appropriate for the scope order to be made. Mr Howell submitted that the AMOU had met the good faith bargaining requirements and he rejected the argument made by HCF and the MUA that the scope order application had been delayed and made at a point in time for tactical purposes which operated to undermine collective bargaining.

[31] It was also submitted by Mr Howell that the making of the scope order would promote fairer and more efficient conduct of bargaining and that the ferry masters and inner harbour engineers were a group of employees that were operationally and organisationally distinct. According to the submissions of Mr Howell, this distinction was reflected in the historical position which involved separate industrial instruments which governed the work of ferry masters and both inner and outer harbour engineers. Further, in respect to issues surrounding the historical position of industrial coverage, Mr Howell referred to the Walker report and noted that the coverage of the 2015 Agreement extended to persons other than those engaged in the operation of vessels or as it was described in the Walker report “afloat staff”.

[32] The submissions made by Mr Howell also addressed the second application involving the agreement approval. Mr Howell submitted that there were two primary issues which prevented the Commission from being satisfied that it should approve the 2015 Agreement. Mr Howell submitted that the Commission could not be satisfied that the 2015 Agreement had been genuinely agreed to as required by sub-section 186 (2) (a) of the Act. In addition, Mr Howell said that the Commission could not be satisfied that the group of employees covered by the 2015 Agreement was fairly chosen as required by sub-sections 186 (3) and (3A) of the Act.

[33] Mr Howell submitted that the 2015 Agreement had not been genuinely agreed to having regard to the requirements of s. 188 of the Act, and because of the existence of four particular factors which he said established an absence of genuine agreement. In this regard, Mr Howell submitted that: (a) the time of the vote which occurred on 30 July had not been specified in the notification as was required by sub-section 180 (3) of the Act, and; (b), the NERR which was issued on 18 May 2015 was not a valid NERR because it did not properly specify the employees to be covered by the 2015 Agreement, and; (c), the 2015 Agreement was not validly made in accordance with s. 182 of the Act as there was no proper basis upon which to establish that there was a majority of votes cast because there was no roll of voters used at the time that the show of hands was taken, and; (d), certain representations and communications made by the MUA misled or unduly influenced the ballot of employees.

[34] It was further submitted by Mr Howell that the group of employees to be covered by the 2015 Agreement had not been fairly chosen and that the group could not be found to be a group that was geographically, operationally or organisationally distinct as required by sub-section 186 (3A) of the Act. Mr Howell said that the group of employees covered by the 2015 Agreement had been chosen by arbitrary determination as a consequence of the agreement that had been reached between HCF and the MUA in respect to the re-balloting of the quashed 2014 Agreement.

[35] Further, Mr Howell submitted that the composition of the workforce covered by the 2015 Agreement was not confined to “afloat staff” as was contemplated by the Walker report nor did the group of employees represent a group that could be described as being geographically, operationally or organisationally distinct. It was submitted by Mr Howell that the group of employees covered by the 2015 Agreement traversed various organisational structures and was not based upon some other recognisable distinction such as that which applied to the group of outer harbour engineers.

[36] In summary, Mr Howell submitted that the group of employees covered by the 2015 Agreement had been unfairly chosen as it was essentially an arbitrary determination made as a consequence of the agreement between HCF and the MUA to return to the balloting of employees process immediately following the quashing of the 2014 Agreement. Further, the group of employees was not one that was fairly chosen when taking into account any geographical, operational or organisational distinctions. In addition, Mr Howell submitted that the 2015 Agreement had not been genuinely agreed to by the employees who were alleged to have made the Agreement in the voting process conducted on 30 July 2015.

[37] Consequently, according to the submissions made by Mr Howell, the legislative requirements for approval of the 2015 Agreement had not been met and the agreement approval application should be dismissed. Further, Mr Howell urged that the Commission should grant the scope order application made by the AMOU.

The AIMPE Case

[38] Mr Keats appeared for the AIMPE at the Hearing and made oral submissions in amplification of an outline of submissions document which had been filed on behalf of the AIMPE.

[39] Mr Keats indicated that the position of the AIMPE in respect to the scope order application was that once an Enterprise Agreement had been made, bargaining had ceased and it was therefore no longer tenable to make a scope order application. Mr Keats said that the position of the AIMPE was confined to the issue of whether the group of employees covered by the 2015 Agreement had been fairly chosen as required by sub-sections 186 (3) and 186 (3A) of the Act.

[40] Mr Keats made submissions which summarised the historical industrial coverage that had applied to the work of those persons now encompassed by the coverage of the 2015 Agreement. In this regard Mr Keats submitted that just because there had been particular coverage arrangements in the past, or because at different points in time, Parties had agreed to particular coverage arrangements, those arrangements could not necessarily be held to be fair. Further, Mr Keats stressed that the coverage arrangements that were now the matter of contest had not been the subject of any prior examination or determination by the Commission or its predecessor Tribunals.

[41] It was further submitted by Mr Keats that an analysis of the group that had been chosen to be covered by the 2015 Agreement did not reflect any particular geographical, operational or organisational distinction. Mr Keats noted that the coverage of the 2015 Agreement included shore-based CAOs along with the grouping of masters, inner harbour engineers and GPHs. Mr Keats submitted that this group could not be considered to have been fairly chosen when taking into account whether the group was geographically, operationally or organisationally distinct.

[42] Mr Keats further submitted that when one examined the various job descriptions, rosters, organisational charts, reporting lines and different operational structures which applied to different categories of employees which were covered by the 2015 Agreement, it was clear that that group had not been chosen upon any basis which reflected these various factors. In particular, Mr Keats stressed that the selection of the group covered by the 2015 Agreement was little more than a decision to maintain the status quo. According to Mr Keats, this was not a proper basis to establish that the group had been fairly chosen.

[43] It was also submitted by Mr Keats that as the ferry masters and inner harbour engineers were numerically less than half of the total of the number of employees that were covered by the 2015 Agreement, the decision to choose such a group created a voting imbalance which reflected the arbitrary nature of the chosen group and established that the group was not fairly chosen. Mr Keats submitted that the separation of ferry masters and inner harbour engineers as a group that would be covered by a separate Enterprise Agreement would more appropriately reflect operational distinctions which applied to ferry masters and inner harbour engineers.

[44] In conclusion, Mr Keats submitted that the Commission could not be satisfied that the group of employees covered by the 2015 Agreement had been fairly chosen. Mr Keats urged the Commission to dismiss the application for approval of the 2015 Agreement.

The HCF Case

[45] At the Hearing of these matters, HCF was represented by Mr Gotting. Mr Gotting made verbal submissions in elaboration of various written outlines of submissions which had been provided on behalf of HCF. Mr Gotting commenced his submissions by stating that HCF opposed the scope order application and maintained that the Commission should approve the 2015 Agreement.

[46] Mr Gotting submitted that the evidence established that the AMOU had made the scope order application at a time which was designed to provide a tactical advantage for the AMOU. Mr Gotting submitted that the AMOU had delayed making the scope order application until after the start of the access period for the voting process despite there being unequivocal rejection from HCF in late May and early June regarding any alteration to the coverage of the proposed 2015 Agreement as was set out in the NERR issued on 18 May 2015. Mr Gotting said that it was plain that there was a significant period of delay on the part of the AMOU in commencing the scope order application particularly having regard for the history of contest regarding the 2014 Agreement.

[47] The submissions made by Mr Gotting rejected the explanations which had been provided for the delay in the making of the scope order application. Mr Gotting submitted that the AMOU had sought to obtain a tactical advantage in delaying its application for a scope order in an attempt to disrupt the bargaining because it was dissatisfied with the bargaining process. According to the submissions made by Mr Gotting, the Commission should reject the scope order application because, particularly in respect of the time that the application was made, it had not been taken for legitimate or proper purpose.

[48] Mr Gotting made further submissions which asserted that the jurisdictional requirements for the making of a scope order had not been met. In particular, Mr Gotting submitted that the AMOU had not met the notice requirements established under sub-section 238 (3) of the Act. Mr Gotting stressed that the AMOU had not taken all reasonable steps to notify the MUA of its concerns regarding coverage, nor did they afford the MUA a reasonable time to respond to those concerns. Consequently, Mr Gotting urged the Commission to dismiss the scope order application on the basis that the AMOU had not satisfied the notice requirements established under sub-section 238 (3) of the Act.

[49] The submissions made by Mr Gotting also dealt with the requirements of sub-section 238 (4) of the Act. Mr Gotting submitted that the AMOU had not met the good faith bargaining requirements in respect to the bargaining that occurred for the 2015 Agreement. In this respect, Mr Gotting stated that the AMOU had asserted that the coverage for the 2015 Agreement should be altered so that a separate industrial instrument would be created for ferry masters and inner harbour engineers, but there had been no proper explanation for the basis for such alteration, other than it was the desire of ferry masters and inner harbour engineers to vote upon their own Enterprise Agreement. Further, according to the submissions made by Mr Gotting, the AMOU argument for altered coverage was without proper explanation and also without agitation of any particular claims in respect to the terms of any separate Enterprise Agreement. Mr Gotting said that this conduct meant that the AMOU had not met the good faith bargaining requirements.

[50] In further submissions, Mr Gotting asserted that the making of the scope order as proposed by the AMOU, would not promote fair and efficient conduct of bargaining. Mr Gotting noted the extensive difficulties and extended delays associated with the 2014 Agreement and he asserted that there could be no fair or efficient bargaining if at a point in time after the access period had commenced for voting on the 2015 Agreement, a scope order was made which would require bargaining to be undertaken for a separate Agreement to cover ferry masters and inner harbour engineers.

[51] Mr Gotting made further submissions which addressed the requirements of sub-section 238 (4) (c) of the Act. Mr Gotting said that the group of employees covered by the 2015 Agreement had been fairly chosen. Mr Gotting submitted that there were clear operational efficiencies that were achieved by having one industrial instrument cover the work of ferry masters, inner harbour engineers, GPHs and CAOs. It was submitted by Mr Gotting that the operational and organisational efficiencies, including the provision of enhanced career path opportunities, were matters of practical application during the operation of the 2012 Agreement. Mr Gotting said that it was logical and reasonable for HCF to have these arrangements continue and it had approached the enterprise bargaining process via the SBU accordingly. Mr Gotting submitted that it would not be reasonable in all the circumstances to make the scope order sought by the AMOU.

[52] The further submissions made by Mr Gotting supported the application for approval of the 2015 Agreement. Mr Gotting submitted that the group of employees covered by the 2015 Agreement had been fairly chosen. Mr Gotting submitted that the historical development of the coverage of the 2012 Agreement involved a progression away from separate industrial instruments which covered discrete groups of employees for no sound reason. Mr Gotting said that HCF had sought to maintain the status quo in terms of coverage because there were a variety of operational efficiencies identified by having a single Enterprise Agreement covering the various operational employees that had been covered by the 2012 Agreement.

[53] Mr Gotting made further submissions which rejected the various factors that had been asserted by the AMOU as basis for an absence of genuine agreement in respect to the 2015 Agreement. Mr Gotting made submissions which rejected the proposition that the vote of employees taken on 30 July 2015 was somehow impacted by alleged misrepresentation on the part of the MUA. Further, Mr Gotting submitted that there was sufficient specification of the time of the vote because the meeting at which the vote was to be taken had been indicated to commence at 10 am and finish at approximately 2 pm. It was also submitted by Mr Gotting that the NERR was valid and that it properly identified the group of employees to be covered by the proposed 2015 Agreement. Further, Mr Gotting submitted that the Commission could be satisfied that the vote taken on 30 July 2015 established that a valid majority of relevant employees voted to approve the 2015 Agreement.

[54] In summary, Mr Gotting submitted that the scope order application should not be entertained as it had been made for tactical rather than legitimate purposes. Alternatively, Mr Gotting submitted that the scope order application should be dismissed because the AMOU had not met the notice requirements of sub-section 238 (3) of the Act. Mr Gotting also submitted that the scope order application should be dismissed because the various aspects of sub-section 238 (4) of the Act had not been satisfied and in all the circumstances it was not reasonable to make the scope order sought by the AMOU.

[55] In respect to the application for approval matter, Mr Gotting submitted that the opposition to the approval application advanced upon the allegation that the 2015 Agreement had not been genuinely agreed to by the employees covered by that Agreement, could not be sustained upon the evidence. Further, according to the submissions of Mr Gotting, the group of employees covered by the 2015 Agreement was fairly chosen. Consequently, Mr Gotting urged the Commission to dismiss the scope order application and grant the Enterprise Agreement approval application and thereby approve the 2015 Agreement.

The MUA Case

[56] Ms Doust, who appeared for the MUA at the Hearing, commenced her submissions by stating that the MUA opposed the scope order application and supported the application for approval of the 2015 Agreement. Ms Doust relied upon a written outline of submissions filed on behalf of the MUA, and she made further oral submissions which elaborated upon that material.

[57] At the commencement of her submissions, Ms Doust focused upon the requirements of sub-section 238 (3) of the Act. Ms Doust submitted that the Commission could not be satisfied that the AMOU, as the applicant for the scope order, had taken the notification steps required by sub-section 238 (3). Ms Doust said that these notification requirements were mandatory steps and if they were not taken the power of the Commission to make any scope order had not been enlivened.

[58] Ms Doust made submissions which focused upon evidence regarding the communications made by the AMOU to the MUA in respect to concerns arising under sub-section 238 (1) of the Act. Ms Doust said that the evidence did not establish that the AMOU had taken reasonable steps to give written notice setting out its concerns and it had not asked the MUA to respond to those concerns. Ms Doust submitted that these were mandatory pre-requisites to the making of any scope order and the absence of the proper notification steps as required by sub-section 238 (3) must be fatal to the scope order application of the AMOU.

[59] In her further submissions, Ms Doust focused upon whether or not the making of any scope order would promote fair and efficient conduct of the bargaining as was contemplated by sub-section 238 (4) of the Act. Ms Doust submitted that in the context of the history of the bargaining for an Enterprise Agreement to replace the 2012 Agreement, the scope order sought by the AMOU would frustrate and impede the bargaining which had included a vote in support of the 2015 Agreement. In this regard, Ms Doust mentioned the particular object established by sub-section 171 (b) (iii) of the Act which sought to ensure that applications for approval of Enterprise Agreements were dealt with without delay.

[60] Ms Doust submitted that rather than promote the fair and efficient conduct of bargaining, the scope order would only impede and delay what had already been a protracted process involving the endorsement of employees of both the 2014 and then the 2015 Agreements.

[61] It was further submitted by Ms Doust that the approach adopted by the MUA and HCF following the Appeal taken against the Decision to approve the 2014 Agreement, was completely proper and unexceptionable. Ms Doust said that the MUA could hardly be criticised for abiding by the agreement that it had made with HCF in respect to the terms and conditions contained in the 2014 Agreement. It was, according to the submissions of Ms Doust, a completely appropriate way for the Parties to proceed in circumstances where there were established differences between the three Unions at the time that the 2014 Agreement was made.

[62] Ms Doust submitted that the delay associated with the AMOU scope order application, whether it be a product of some inadvertence, negligence or for tactical reasons, should not be permitted to operate to the disadvantage of the majority of the employees who had voted in favour of the 2015 Agreement. According to Ms Doust, the AMOU had ample opportunity to bring a scope order application at an earlier time and by not doing so it was unacceptable to have the bargaining process, which had been difficult and protracted, become the subject of any further delay.

[63] Ms Doust made further submissions in respect to the application for approval of the 2015 Agreement. Ms Doust submitted that the group of employees to be covered by the 2015 Agreement had been fairly chosen, and that it was a matter of “industrial reality” that the starting point for replacement Agreements would involve the scope of the existing instrument. Ms Doust further submitted that the argument against the particular coverage really related to the breakdown of the SBU rather than any other matter. This was reflected by the fact that the terms and conditions of the 2015 Agreement were fully accepted by the AIMPE who simply wanted those terms and conditions reflected in a separate Enterprise Agreement.

[64] It was also submitted by Ms Doust that any suggestion that the 2015 Agreement had not been genuinely agreed to by the employees covered by it should be rejected. Ms Doust made submissions which rejected the assertion that there was any misleading communication made by the MUA. Ms Doust submitted that the evidence regarding the voting process which occurred on 30 July did not provide any basis for the Commission not to be satisfied that the 2015 Agreement had been genuinely agreed in accordance with, in particular, the requirements of s. 188 of the Act. Specifically, Ms Doust submitted that there were no reasonable grounds for believing that the 2015 Agreement had not been genuinely agreed to by the relevant employees.

[65] In summary, Ms Doust submitted that the scope order application should be dismissed because it had not been made in accordance with the requirements regarding notice to other bargaining representatives nor was it an application taken for legitimate purpose or in satisfaction of the relevant legislative requirements. Finally, Ms Doust rejected that there was any impediment to the Commission providing approval of the 2015 Agreement.

Consideration

The Scope Order Application

[66] The AMOU application for a scope order involved earlier interlocutory proceedings which resulted in the Commission issuing the Interim Decision which refused the interim relief sought to stop the ballot of employees voting in respect to the 2015 Agreement. The Interim Decision included the following observation:

“In the context of protracted, difficult enterprise bargaining which has identified that the question of scope was contentious, an application for a scope order made only days before a scheduled vote on a proposed Enterprise Agreement provides the appearance of an eleventh hour hand grenade.”

[67] Of course, at the time of the making of the Interim Decision, the Commission did not have the benefit of the fully argued and articulated positions of the respective Parties as has now been provided during the Hearing of these matters. Having had the benefit of a full Hearing, I have not been persuaded that, other than in respect to one particular issue, the observations and findings made in the Interim Decision should not be embraced and confirmed.

Sub-section 238(1) - A proposed agreement

[68] The one particularly unfortunate issue which arose in the Interim Decision and which, following the full Hearing, should now be carefully reconsidered, involved the operation of sub-section 238 (1) of the Act. During the interlocutory proceedings a position was advanced which asserted that the absence of the interim relief sought (stopping the ballot of employees), would not operate to deprive the applicant (the AMOU) of capacity to further argue the scope order application after any successful vote of employees had made the 2015 Agreement. Upon further consideration I believe that this proposition may have been mistaken.

[69] It would seem that once an Enterprise Agreement has been made by way of vote of a majority of relevant employees, there is no capacity for a bargaining representative to apply to the Commission for a scope order. This would, in my view, be the undeniable effect of terminology used in sub-section 238 (1) of the Act and the entire s. 238 is in the following terms:

“238 Scope orders

Bargaining representatives may apply for scope orders

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

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

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

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

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

Bargaining representative to give notice of concerns

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

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

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

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

When the FWC may make scope order

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

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

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

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

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

Matters which the FWC must take into account

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

Scope order must specify employer and employees to be covered

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

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

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

Scope order must be in accordance with this section etc.

(6) The scope order:

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

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

Orders etc. that the FWC may make

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

(a) amend any existing bargaining orders; and

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

[70] It would appear that once an Enterprise Agreement has been made it could no longer be a proposed Enterprise Agreement. Sub-section 238 (1) uses the terminology, “A bargaining representative for a proposed single-enterprise agreement may apply to the FWC for an order (a scope order)…” [emphasis added]. Therefore, it would seem that scope order applications are confined to proposed Enterprise Agreements as opposed to Enterprise Agreements that have been made.

[71] In the particular circumstances of this scope order application, the 2015 Agreement had not been made when the application was filed with the Commission. At the time of the filing of the scope order application, the 2015 Agreement was a proposed Enterprise Agreement. The proposed Agreement became an Agreement only after the scope order application had been made.

[72] Upon careful reflection, it would seem that there would be no capacity for a bargaining representative to make a scope order application at a point in time after the relevant Enterprise Agreement had been made. It would appear that any such application would be without jurisdiction. Further, a scope order application which was made at a point in time when the relevant Enterprise Agreement was proposed but then was subject to the Enterprise Agreement being made, would seem to suffer a loss of jurisdiction and place the application in the same circumstance as if it had been filed with the Commission after the Enterprise Agreement had been made.

[73] Therefore, the Interim Decision wrongly entertained the continued agitation of the scope order application after the 2015 Agreement was made on 30 July 2015. However, in the particular circumstances of this case it would be highly inappropriate to now dismiss the scope order application on the basis that it was deprived of jurisdiction as a result of the making of the 2015 Agreement. Therefore all other contested aspects of the scope order application shall be considered and determined.

Sub-section 238(3) - The Notice Requirements

[74] There are particular notice requirements that must be satisfied by any applicant for a scope order. It is clear from the use of the words “… may only apply…” in sub-section 238 (3) of the Act, that the notice requirements represent a mandatory precondition to the making of any scope order application.

[75] These notice requirements are a significant aspect of s. 238. Sub-section 238 (3) places a significant onus upon an applicant to ensure that a process of advising other bargaining representatives and engaging with them about the concerns that might give rise to an application for a scope order, must occur before any application for a scope order can be taken.

[76] The particular circumstances whereby a bargaining representative notifies other bargaining representatives of their concerns regarding efficient or fair bargaining and appropriate coverage of an Enterprise Agreement, need to be carefully examined in the context of the particular nature of the bargaining and the ordinary means of communication that had been adopted by the bargaining representatives throughout the bargaining process. The approach to consideration of the notification requirements can be conveniently summarised from the following extracts of a Full Bench Decision in AMIEU v Woolworths (Woolworths):

“[17] As to whether the AMIEU did meet the requirements of s.238(3) in relation to the SDA, copying the SDA in on the letter of 8 September cannot be said in this case to have satisfied the requirements. It is a letter to Woolworths, raising concerns about Woolworths’ conduct and seeking Woolworths’ response on 3 matters, two of which were specific to the AMIEU and Woolworths. It could not reasonably be read as a notice given to the SDA setting out the AMIEU’s concerns to which the SDA could respond. The concerns in which the SDA was to have a reasonable time to respond are “those concerns” (s.238(3)(b)), that is, the concerns referred to in subsection (1) as set out in the notice. The concerns in the first of the 3 matters on which the AMIEU sought Woolworths’ response relate to Woolworths’ conduct.

[18] Because of the nature of the AMIEU’s letter of 8 September we do not need to address the broad question of whether “copying in” one party on the notice given to another is sufficient compliance with s.238(3)(a). As a general approach, we would be reluctant to adopt a pedantic approach to such matters. Suffice to say that in this case the AMIEU in sending a copy to the SDA of its letter to Woolworths did not meet the requirements of ss.238(3)(a) and (b). It had no basis for the consideration required by s.238(3)(c).” 2 [emphasis added]

[77] In this instance, the AMOU sought to primarily rely upon communications that were marked as annexures to the witness statements of Mr Wydell, namely JW14, JW18 and JW21, as the notification of concerns which had been made in accordance with sub-section 238 (3) of the Act. I have approached the consideration of this evidence having particular regard for the comments of the Full Bench in Woolworths that I have emphasised above.

[78] I accept that the communication made by Mr Wydell on behalf of the AMOU on 3 June 2015 (JW14), was a notice that both in terms of its content and in respect to its timing, would satisfy the requirements of sub-section 238 (3). However, I have considerable concern about the communication on 23 July 2015 to HCF (JW18), and even greater concern regarding the communication on 24 July 2015, to inter alia, the MUA (JW 21).

[79] The latter communications, JW18 and JW21, occur after the start of the access period. These communications are made at a point in time when employees have been notified that a vote of the relevant employees has been scheduled. It appeared that it was the notification of the ballot and voting method as required by sub-section 180 (3) of the Act, which prompted the AMOU to act, notwithstanding that the coverage issue had been a matter of significant contest for a considerable period of time, and it had been identified as firmly unresolved in so far as HCF was concerned, when it responded to the AMOU in its communication of 4 June 2015 (JW15).

[80] More importantly, the communication to the MUA on 24 July 2015 (JW21), must, on any objective analysis and applying the reluctance for any pedantic approach to the notification requirements, represent a failure to meet the requirements of sub-section 238 (3) of the Act. In particular, the MUA was not given a reasonable time within which to respond to that communication and there was simply no capacity for the requirements of paragraph (c) of sub-section 238 (3) to have been met before the scope order application was made on 27 July 2015.

[81] Consequently, I am unable to find that the scope order application has been made in compliance with the notice requirements of sub-section 238 (3) of the Act. That non-compliance would be sufficient to dismiss the application. However, for abundant caution and because of the unusual circumstances of this case, I shall also consider and determine the requirements of sub-sections 238 (4) and 238 (4A) as they may relevantly apply.

Sub-section 238(4) - Satisfaction of the Legislative requirements

[82] Paragraph (a) of sub-section 238 (4) introduces a requirement for the Commission to be satisfied that an applicant for a scope order has complied with the good faith bargaining requirements as a pre-condition to the making of any scope order. The good faith bargaining requirements are set out in s. 228 of the Act which is in the following terms:

“228 Bargaining representatives must meet the good faith bargaining requirements

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

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

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

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

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

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

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

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

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

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

[83] The position adopted by the AMOU in the period of the bargaining for the 2015 Agreement following the issuing of the NERR on 18 May and until the notification of the ballot on 21 July, would seem to contravene the good faith bargaining requirements. In the context of the failed 2014 Agreement and the collapse of the SBU, it was incumbent upon the AMOU (and the AIMPE), to advance an Enterprise Agreement with their desired coverage and containing relevant terms and conditions for the employees that they represented. Instead, the AMOU (and the AIMPE) advanced little more than opposition to any Agreement which included coverage of the MUA (GBH and CSO employees).

[84] The position which emerged in the relatively short period of enterprise bargaining negotiation for the 2015 Agreement manifests as a demand for an Agreement with a particular scope but without any properly articulated terms and conditions. The AIPME advised HCF that it was content with the terms and conditions contained in the proposed 2015 Agreement. The AMOU did little more than make mention of its concern about percentage salary increases, back pay and the loss of a Trainers/Assessors allowance. Although it has subsequently been revealed that HCF and the MUA had established an agreement to put the failed 2014 Agreement back to a vote of employees, what was the fully articulated, realistic and sensible alternative that was being advanced by the AMOU?

[85] In the period May to July 2015, HCF was confronted with a position in the enterprise bargaining which involved the AMOU demanding coverage with the AIMPE, excluding the MUA. The AIMPE put a position of acceptance of the terms of the proposed 2015 Agreement, while the AMOU did not clearly articulate whether or not it would accept the terms of the proposed 2015 Agreement, nor did it properly advance any other set of terms and conditions. Consequently, HCF could not determine that if it was to agree to the AMOU demand for a separate Agreement, what would be the terms of such an Agreement? Would it just mimic the proposed 2015 Agreement as the AIMPE had suggested? Or would it contain some other terms not yet disclosed by the AMOU? In my view, the position which the AMOU adopted was entirely unreasonable, and contrary to the good faith bargaining requirements particularly because the AMOU did not disclose relevant information concerning the terms of any proposed Agreement with the coverage that it demanded.

[86] Paragraph (b) of sub-section 238 (4) of the Act, involves the promotion of fair and efficient conduct of the bargaining. The promotion of fairness was, according to the AMOU and the AIMPE, to be achieved if masters and inner harbour engineers voted on their “own” Enterprise Agreement rather than be compelled to vote along with GPH and CAO (MUA) employees. For this proposition to hold true, one would need to identify the unfairness or disadvantage that was inflicted upon the masters and inner harbour engineers as a consequence of the vote together with the MUA employees.

[87] In the case of the AIMPE, the terms of the proposed 2015 Agreement were acceptable. How then is there some unfairness in the outcome? The AMOU seemed to accept most of the terms of the 2015 Agreement although, as mentioned above, this was unclear. The perceived unfairness for the AMOU and the AIMPE appeared to involve a strong desire to establish a class distinction between different workers based upon the particular work which each performs, because the outcome of any separate vote for separate Agreements would not significantly change the terms and conditions being proposed in the 2015 Agreement. The concept that individuals should reject employment terms if they were embodied in an Agreement with another class of employees, but accept those same terms if the Agreement excluded the other class of employees, has the appearance of being little more than petty elitism rather than any genuine unfairness.

[88] There was no evidence that the bargaining would be more efficient if the scope order was made. Clearly, given the protracted history of the negotiations, to return to the start of the bargaining with separate negotiations for masters and inner harbour engineers in one forum, and GBH and CAOs in another, would in itself, create significant inefficiency.

Sub-section 238 (4A) and paragraph (c) of sub-section 238(4) - Fairly chosen

[89] In this instance the scope order (and the 2015 Agreement), does not cover all of the employees of HCF. Consequently, sub-section 238 (4A) of the Act operates to require the Commission to take into account whether the group of employees proposed by the scope order was fairly chosen having regard for whether that group is geographically, operationally or organisationally distinct.

[90] The fairly chosen question is an issue which, to some extent, overlaps with the agreement approval application. Essentially, the same considerations regarding fairly chosen are applicable to both the group of employees to be covered by the scope order and the group of employees covered by the 2015 Agreement. Consequently, in respect to the scope order application, the fairly chosen issue involves an examination in respect to the group of employees which can be described as the masters and inner harbour engineers. Later in this Decision, the fairly chosen question will be applied in respect of the broader group of employees covered by the 2015 Agreement.

[91] The AMOU asserted that the masters and inner harbour engineers were a group of employees that were geographically, operationally and organisationally distinct. In particular, a distinction was said to be made in that masters and inner harbour engineers worked exclusively on vessels whilst some GBH and CAO employees were shore based.

[92] However, the primary basis upon which the AMOU asserted that the masters and inner harbour engineers were a group of employees that would be more fairly chosen concerned the separate representational arrangements for masters and inner harbour engineers. It was suggested that because masters and inner harbour engineers had “different industrial interests” it would be fairer for them as a group, if they were able to have a separate Enterprise Agreement.

[93] As was stated in the Interim Decision, enterprise bargaining often involves scope or coverage within which there are identifiable groups who may represent a minority or sectional interest. There are often dissatisfied minorities, indeed sometimes individuals, who have to reluctantly accept the outcome determined by a majority vote in support of an Enterprise Agreement. It is understandable that an identifiable sub-group within a broader group might seek to be able to determine for themselves the outcome of any vote in respect to enterprise bargaining.

[94] However, in the absence of manifest unfairness, which would ordinarily be reflected in significantly substandard terms of an Enterprise Agreement for the sub-group when compared to the broader group, the desire to be the “masters of their own destiny” in respect to the enterprise bargaining, does not translate into a position whereby the sub-group could validly establish that, in respect to the fairness criteria, it should be separated from the broader group. The prospect that the scope for enterprise bargaining should follow the representative arrangements for a particular group of employees is an untenable proposition. Consider the application of such a proposition if, for example, a group of inner harbour engineers decided to become members of another Union hypothetically identified as the XYZU. The consistent application of an approach which recognised representation as a basis for a fairer scope would potentially lead to multiple Agreements for inner harbour engineers, one for those represented by the AIMPE, another for those represented by the XYZU and perhaps a third for engineers represented by some other bargaining representative.

[121] Consequently, the requirements of sub-section 188 (b) of the Act have been satisfied and the 2015 Agreement was validly made in accordance with the requirements of sub-section 182 (1) of the Act.

Voters Misled by the MUA

[122] The fourth factor which was said to provide a basis on which the Commission should not be satisfied that the 2015 Agreement had been genuinely agreed to by relevant employees, concerned what was described as false or misleading representations made to employees by the MUA. There were two particular examples of communications made by the MUA which were relied upon. There was an email sent to a number of HCF employees on 28 July 2015 which included suggestions that the scope order application made by the AMOU involved an attempt to stop the MUA representing their members who were inner harbour engineers and masters, a further example involved a communication made on 6 December 2014 8 including a resolution of the MUA shop committee.

[123] There was no evidence provided by or on behalf of any individual who suggested that they had been misled by any of the communications made by the MUA. However, the Commission was asked to infer there was prospect that, because of the nature and content of various communications from the MUA, voters may have been misled and their votes had been improperly influenced by the false or misleading representations made by the MUA.

[124] In the absence of any direct evidence about false or misleading communications which actually influenced any of the relevant employees, there is no sound basis upon which to infer that the vote which was conducted on 30 July 2015 was somehow improperly influenced. Particularly in view of the significant majority vote that was recorded, it would seem that there would be negligible capacity, even if a handful of individuals were misled, for there to be any valid basis to disturb the ballot outcome.

[125] Consequently, I do not accept that there was any realistic prospect of improper influence arising from any of the communications made by the MUA, and there are no other reasonable grounds for believing that the 2015 Agreement had not been genuinely agreed to by the relevant employees.

Group Not Fairly Chosen

[126] The second primary ground upon which the application for approval of the 2015 Agreement was opposed concerned the issue of whether the group of employees to be covered by the Agreement was fairly chosen. As previously mentioned, there is something of an overlap in respect of the fairly chosen question, as it also had application for the group identified in the scope order application. Relevantly, in respect to the Enterprise Agreement approval application, the fairly chosen criteria are contained in sub-sections 186 (3) and 186 (3A) of the Act.

[127] In respect to the coverage of the 2015 Agreement, it was asserted that the group of employees that were chosen was particularly unfair because the choice of that group involved an agreement that had been made between HCF and the MUA, to re-submit the failed 2014 Agreement to another vote of the same group of employees. It was asserted that in this context, there had not been a fair and considered choice of the group to be covered by the 2015 Agreement, but rather the coverage was an arbitrary determination made to simply follow the coverage that had been included in the failed 2014 Agreement.

[128] It is unnecessary to repeat the history of relevant industrial coverage which led to what might be described as the watershed development whereby the 2012 Agreement covered for the first time in a single Agreement, the work of masters, inner harbour engineers and GPHs and CAOs. There was evidence which supported various operational efficiencies that were obtained when the 2012 Agreement covered what had been previously the subject of three separate Agreements. Understandably, HCF has sought to maintain these operational efficiencies. Further, particularly in respect to career path opportunities, there would seem to be tangible benefits for employees if there is a single Agreement rather than two or three separate instruments.

[129] In view of the shared benefits which are obtained through what might be described as the simplification of Agreement coverage, and in the context of the protracted difficulties associated with the enterprise bargaining for an Agreement to replace the 2012 Agreement, there is a compelling case to support that the group of employees covered by the 2015 Agreement was fairly chosen when taking into account factors such as the geographical, operational and organisational distinctions, which can be identified.

[130] It is relevant to observe that the geographical, operational and organisational distinctions which have been identified have not significantly altered from the position that existed when the 2012 Agreement was made. The asserted unfairness of the group of employees chosen to be covered by the 2015 Agreement has arisen because the SBU became dysfunctional. It would seem to be entirely inappropriate to translate relational difficulties between the three Unions into a proper basis for deciding that the group to be covered by the 2015 Agreement was not fairly chosen, when there was no suggestion that that same group of employees was not fairly chosen in 2012 when there were more harmonious relationships between the three Unions.

[131] The absence of unfairness is reinforced by the lack of any articulated terms and conditions of employment which were identified as manifestly detrimental consequences arising from the particular choice of the group of employees to be covered by the 2015 Agreement. The purported unfairness was broadly confined to a desire for self-determination which, particularly in the case of the AIMPE, would not alter any of the terms contained in the 2015 Agreement.

[132] Particularly in the absence of the identification of any manifestly deleterious consequences in respect to the terms achieved as outcomes from the enterprise bargaining, the Commission is satisfied that the group of employees covered by the 2015 Agreement was fairly chosen having regard for the requirements of sub-section 186 (3A) of the Act.

Conclusion

[133] The determination of these matters has involved an examination of firstly, the scope order application, and secondly the application for approval of the 2015 Agreement. The matters have been underpinned by an unfortunate, protracted and difficult period of enterprise bargaining. The determination of the two applications will hopefully conclude this particularly difficult period and provide some basis upon which there can be some stability and certainty regarding the industrial regulation at HCF.

[134] For the reasons which have been set out above, the scope order application made by the AMOU has not satisfied the requirements of s. 238 of the Act and is dismissed accordingly.

[135] The various challenges which have been advanced opposing the application made by HCF for approval of the 2015 Agreement have been carefully examined and dealt with in the preceding paragraphs of this Decision. In summary, the Commission determines to reject each of the grounds which have been made as opposition to the application for approval of the 2015 Agreement. Consequently, the Commission determines to approve the 2015 Agreement. For convenience, a separate Decision [2015] FWCA 8004 approving of the 2015 Agreement shall be issued in conjunction with this Decision.

COMMISSIONER

Appearances:

Mr A Howell of Counsel with Mr J Wydell appeared for The Australian Maritime Officers’ Union.

Mr N Keats, solicitor appeared for The Australian Institute of Marine and Power Engineers.

Mr A Gotting of Counsel appeared for Harbour City Ferries.

Ms L Doust of Counsel with Ms S Andronikos appeared for the Maritime Union of Australia.

Hearing details:

2015.

Sydney:

October 9, 12.

 1   Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd; Maritime Union of Australia; Australian Institute of Marine and Power Engineers, [2015] FWCFB 3337.

 2   The Australasian Meat Industry Employees Union v Woolworths Ltd - [2010] FWAFB 1625 - 3 March 2010.

 3   Exhibit 1 – Attachment JW15.

 4   Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014] FWCFB 2042.

 5   Serco Australia Pty Limited v United Voice and Union of Christmas Island Workers [2015] FWCFB 5618.

 6   Exhibit 4.

 7   Exhibit 24.

 8   Exhibit 19.

Printed by authority of the Commonwealth Government Printer

<Price code G, PR574181>