Transport Workers' Union of Australia v SouthLink Pty Ltd

[2014] FWC 1361

[2014] FWC 1361

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
SouthLink Pty Ltd
(B2014/452)

COMMISSIONER HAMPTON ADELAIDE, 4 MARCH 2014

Application for a scope order - bus drivers involved in the provision of public transport service - proposal to separate drivers based at two depots - whether change in scope would promote fair and efficient bargaining - whether proposed grouping geographically, operationally or organisationally distinct - approach outlined - degree of separate interests and bargaining process considered - circumstances of employee and business taken into account - ability to take protected industrial action considered - open to find that group would be defined fairly - not satisfied that scope order would promote fair or efficient bargaining in all of the circumstances - no basis for order - application dismissed - recommendation made.

1. Background and case outline

[1] The Transport Workers’ Union of Australia (TWU) has applied for a scope order under s.238 of the Fair Work Act 2009. The effect of the scope order would be to separate a group of bus drivers 1 who are based at two particular bus depots of SouthLink Pty Ltd (SouthLink) from an enterprise agreement bargaining process that presently involves all of the bus drivers of that employer.

[2] SouthLink operates a significant proportion of the Adelaide public bus network under a single contract with the Government of South Australia. In particular, it operates the North, South 2 and Adelaide Hills contract regions from various bus depots. This application seeks to separate the bus drivers from the two Adelaide Hills depots, Aldgate and Mt Barker, from the broader group.

[3] SouthLink employs something in the order of 600 bus drivers within the scope of the present negotiations. There are currently in the order of 82 drivers based at the Hills depots (the Hills drivers). Of these, 54 are subject to the TransitPlus Drivers Enterprise Agreement 2010 (the TransitPlus EA). The TransitPlus EA applies to this sub-group of the Hills drivers following a transfer of business to SouthLink in 2010 and it has a nominal expiry date of 30 June 2014.

[4] The remainder of the Hills drivers (28 plus any new drivers subsequently employed or transferred to the two depots concerned), and all of the other drivers within SouthLink, are presently covered by the SouthLink Bus Drivers Enterprise Agreement 2010 (the SouthLink EA). The SouthLink EA has passed its nominal expiry date but remains in force under the terms of the Act. 3

[5] Enterprise bargaining for the SouthLink drivers commenced during 2013 when SouthLink issued a notice of employee representational rights to all of its bus drivers, including those who were subject to the TransitPlus EA. The TWU is a bargaining representative for a significant proportion of the bus drivers, including the Hills drivers.

[6] Negotiations commenced on 18 October 2013 and various meetings have been conducted with the locations being rotated amongst the various SouthLink depots. In addition to the TWU and SouthLink, there are a number of individual employee bargaining representatives including two from amongst the Hills drivers.

[7] The TWU has advanced a number of claims, including in relation to wages and safety, and has sought a series of model agreement provisions. In addition, the TWU has sought that the Hills drivers “remain” on a separate enterprise agreement. No agreement on that claim has been reached.

[8] In early January 2014, a proposed new enterprise agreement was put out to employees through a ballot and the proposal was rejected by a significant margin.

[9] In late January, a majority of relevant members of the TWU endorsed the taking of protected industrial action following a protected action ballot. Industrial action has subsequently been taken in various forms including by not wearing uniforms, refusing to collect fares and more recently, by a work stoppage. Those employees subject to the TransitPlus EA are not eligible to take industrial action, and have not done so.

[10] Negotiations in relation to the proposed enterprise agreement have continued right up until the hearing of this matter. This has included SouthLink recently making a revised proposal with an increased wages offer and other changes, including in relation to some conditions that have in effect been drawn from the TransitPlus EA.

[11] At the point of hearing this matter, there was however no agreement between the TWU and SouthLink about the revised proposal or the scope of any enterprise agreement to be made.

[12] The TWU contends that a scope order should be made with respect to the present negotiations because that process is not proceeding efficiently or fairly. It does so on the basis that an enterprise agreement, if made as a result of the present process, will cover employees (the Hills drivers) that it is not appropriate for it to cover. Consequently, it also contends that a scope order to establish a separate bargaining process for the Hill drivers would lead to two appropriately scoped agreements.

[13] In particular, the TWU contends that the Hills drivers are operationally, organisationally and geographically distinct due to factors including:

● The relatively high proportion of part-time employees (due in part to the nature of their work and the degree of school runs);
● The different buses driven in the Hills (14.5m Controlled Access Buses - “CABs”), the utilisation of procedures that apply only to the Hills drivers and the additional training needed to drive the CABs and other buses in the Hills;
● The nature of the roads and the weather conditions experienced by the Hill drivers; and
● The use of an additional ticketing system that operates outside of the “Metrocard” zones applied within the rest of the network.

[14] The TWU further contends, in effect, that these differences and the circumstances of the Hill drivers more generally mean that the present process is proceeding unfairly. It does so on the basis that:

● The TransitPlus EA contains various conditions of employment that are more favourable than the SouthLink EA and it is unfair to “force” the Hills drivers onto the SouthLink EA;
● The Hills drivers are a minority of the broader employee group and there is a very real risk that their interests will be subordinated by the broader interests; and
● There are restrictions on the capacity of the Hills drivers to take protected industrial action and the absence of this right means that the present process is not as contemplated by the Act and is unfair.

[15] The TWU was represented by Mr Lawrie and led evidence from the following members employed by SouthLink:

● Mr Rodney Dyke, Bus Driver and TWU delegate based at Aldgate; 4

Mr John Murray, Bus Driver and TWU delegate based at the Mt Barker depot - subject to the TransitPlus EA; 5

Mr John Blanchard, Bus Driver and Health and Safety Representative - subject to the TransitPlus EA; 6 and

● Mr Vincent Leeton, Bus driver - subject to the TransitPlus EA. 7

[16] SouthLink contends that an order should not be made, principally on the basis that the present negotiations are proceeding effectively and fairly, and that it would not be appropriate to separate the Hills drivers into an alternative bargaining process.

[17] SouthLink’s position is that the Hills drivers are not geographically, operationally or organisationally distinct for reasons that include:

● There is nothing unique about the nature of the roads or the weather conditions experienced by the Hills drivers;
● Although the CABs are operated only in the Hills, this is a matter of history and these buses could be used interchangeably in other parts of the network;
● The additional training (associated with the CABs and the additional ticketing system) was not significant; and
● The Hills drivers are doing the same job, are subject to the same rostering, time-keeping, policies and procedures, and no distinction has been made for other employee groups in the two Hills depots.

[18] SouthLink also contends that although there are differences between the TransitPlus EA and the SouthLink EA, proposals have been made in the negotiations to include some of the provisions from the TransitPlus EA into the proposed new agreement. SouthLink also contest the notion that there are minority interests that are being overlooked or prejudiced by the present scope of negotiations and suggest that any proposed new agreement will be beneficial to all.

[19] In relation to the appropriateness of any scope order, SouthLink contends that the separation of the Hills drivers would frustrate the better utilisation of staff and buses across all areas of its bus contract and would result in fewer opportunities for full-time employment for the Hills drivers.

[20] SouthLink was represented by Ms Hinton of Business SA and led evidence from the following members of its staff:

• Mr Peter Dunlop, General Manager Business Development and General Manager of Link SA Pty Ltd (a related business); 8

Mr Geoff Sutton, Senior Operations Supervisor; 9

Mr Mark Krylow, Hills Area Manager; 10 and

Mr Daryll Conlon, Operations Manager. 11

2. The immediate statutory framework

[21] This application has been made under s.238 of the Fair Work Act 2009. This provision is found in Division 8 of Part 2-4 of Chapter 2 of the Act. Division 8 provides for the Commission to facilitate bargaining by making bargaining orders, serious breach declarations, majority support determinations and scope orders. The immediate provision is as follow:

“S. 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 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 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.”

[22] Section 238(2) does not apply in this matter. There is no doubt that the TWU is a relevant bargaining representative and SouthLink has conceded that the requirements of s.238(1), (2) and (3) of the Act have been met. The material before the Commission also establishes that compliance.

[23] SouthLink has also conceded that the TWU has been meeting the good faith bargaining requirements as called up by s.238(4)(a) of the Act.

[24] The issues in dispute in this matter ultimately concern the requirements of s.238(4)(b), (c) and (d) of the Act. To grant the application, the Commission must be satisfied that each of these requirements has been met given the conjunctive provisions of ss.(4).

[25] The requirements of s.238(4)(b) are that making the order will promote the fair and efficient conduct of bargaining. Having regard to that requirement, the objects of the Act and the authorities cited by the parties, 12 I consider that this assessment should be based upon the following approach.

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

[27] The applicant for a scope order must demonstrate that the making of the order would promote, that is encourage and facilitate, bargaining that is fairer and more efficient than if no order was made. That assessment is to take into account the interests of all relevant parties who are subject to the bargaining process, including those who are seeking the order, the other party (in this case the employer) and other bargaining representatives, and involve the weighing up of the relevant considerations touching upon the issue.

[28] The views of the employees potentially affected should be considered and given weight, however an overall consideration of the matters specified in s.238(4) and (4A) may make it appropriate for an order contrary to those views to be issued. 13

[29] In terms of the interests of the employees, this will include consideration of the extent of common issues, the divergence of circumstances and apparent interests, and the consequences of the various proposals in relation to the scope of the negotiations. Where minority interests are said to be involved, this will involve consideration of whether those interests are sufficiently different and whether they are at risk of being overridden by the majority who have different interests. 14

[30] The relevant considerations may also include any disadvantage to the interests of other bargaining parties if the scope order was to be made, 15 the progress of negotiations and their status at the time of making the decision, and the history of industrial regulation in relation to the employees subject to the bargaining process.16

[31] In relation to the requirements of s.238(4)(c) and (4A) the application, if granted, would lead to scope orders that will not cover all of the employees of Southlink. Accordingly, the Commission must, in deciding for the purposes of subclause(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. The meaning of fairly chosen was considered by the Full Bench in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 17 (Cimeco), in a different but closely related context; namely, s.186(3) of the Act, which concerns the requirement for a group of employees in an enterprise agreement to be fairly chosen as part of the approval requirements.18

[32] The Full Bench in Cimeco relevantly said:

“[10] ... ... If all of the employees are not covered then the Tribunal must make a finding as to whether the group of employees covered by the agreement is geographically, operationally or organisationally distinct. Absent such a finding the Tribunal cannot properly perform its statutory task. Section 186(3A) provides that the Tribunal must take that matter (ie. whether the group is geographically, operationally or organisationally distinct) into account and give it due weight, having regard to all other relevant factors. Finally, the Tribunal must state its reasons for concluding that the group of employees either was or was not fairly chosen.

[11] At issue in these proceedings is the proper construction of the expression “fairly chosen” in s.186(3). The starting point is to construe the words according to their ordinary meaning having regard to their context and purpose.

[12] The words “fairly” and “chosen” have a variety of meanings, depending on the context. The Oxford Dictionary defines “chosen” to mean, among other things, “taken by preference, selected, picked out”. The word “chosen” in the context of s.186(3) simply means selected to be covered by the relevant agreement.

[13] The word “fairly” is derived from the adverb “fair” and is a word of wide import. What is fair in a particular context is largely a matter of impression and judgment. Of the various definitions of “fairly” in The Oxford Dictionary the most apt in this context are:

“by proper means, legitimately, impartially, justly”; and

“with due regard to equity, candidly, impartially; without undue advantage on either side.”

[14] It is also relevant to note that s.186(3) requires FWA to be satisfied that the group of employees covered by the agreement ‘was fairly chosen’. We agree with the observation of Lawler VP in Re ANZ Stadium Casual Employees Enterprise Agreement 2009 that:

“... the group of employees to be covered by a proposed agreement is ‘chosen’ when the employer and the main employee bargaining representatives agree on a particular scope or the bargaining representatives commence bargaining on a shared assumption as to scope (as is often the case when bargaining proceeds by reference to the terms of an existing agreement that is to be replaced by a proposed new agreement)... The time of the choosing is a factual issue to be determined in the usual way. The group of employees to be covered by a proposed agreement - the scope of the agreement - will typically be chosen at or shortly after the commencement of bargaining ...”

[15] Section 186(3A) is also relevant. In circumstances where an agreement does not cover all of the employees of the employer(s) covered by the agreement s.186(3A) imposes an obligation on FWA, in deciding whether the employees were ‘fairly chosen’, to ‘take into account’ whether the group of employees covered by the agreement is geographically, operationally or organisationally distinct. To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.”

[16] Curiously the Act does not specify how the matters in s.186(3A) are to be taken into account. The context and legislative history are relevant. In terms of the context each of the characteristics identified in s.186(3A) has a degree of objectivity about them. The selection of the group of employees to be covered by an agreement on some objective basis (as opposed to an arbitrary or subjective basis) is likely to favour a conclusion that the group was fairly chosen.

[17] The legislative history of these provisions is also instructive. For example, the Workplace Relations Act 1996 (the 1996 Act) provided that collective agreements could be made covering a ‘single business’ or ‘part of a single business’. Section 322(3) of that act provided that ‘part of a single business’ included:

“(a) a geographically distinct part of the single business; or

(b) a distinct operational or organisational unit within the single business.”

[18] Hence, under the 1996 Act an agreement could be made in relation to a part of a business that was geographically, operationally or organisationally distinct, without any separate consideration of whether the group of employees covered by the agreement were fairly chosen.

[19] Given the context and the legislative history it can reasonably be assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen.

[20] It is important to appreciate that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations.

[21] It is not appropriate to seek to exhaustively identify what might be the other relevant considerations. They will vary from case to case and will need to be demonstrated to the satisfaction of the tribunal. The word ‘fairly’ suggests that the selection of the group was not arbitrary or discriminatory. For example, selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, selection based on criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair. It is also appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of employees in determining whether the group of employees was fairly chosen. In this regard, it is not only the interests of the employees covered by the agreement that are relevant; the interests of those employees who are excluded from the coverage of the agreement are also relevant. We note that there is a suggestion to the contrary in the oral submissions put on behalf of Cimeco when counsel submitted that:

“It was an erroneous approach to introduce the identification of the persons who were relevantly employed at the time of the making of the agreement for the purposes of testing the group chosen.”

[22] To the extent that it is suggested that the interests of the excluded employees are irrelevant we reject that submission. In evaluating whether the group to be covered by the agreement has been fairly chosen it is entirely appropriate to have regard to the consequences of that choice, that is, which employees have been excluded from the agreement.”

[33] I have applied this approach where relevant to the considerations required by the Act in the context of this application.

3. Consideration

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

[34] I accept that the preference of many, and probably most, of the Hills drivers is to pursue an enterprise agreement applying only to them. This is a factor to be weighed in support of the application.

[35] The interests of the Hills drivers are different to the degree that some of the proposed group are subject to the TransitPlus EA. That is, they have a different starting point in the sense that their enterprise agreement has some different and more beneficial terms. This includes the basis of ordinary hours, being spread over five rather than six days; the public holiday arrangements; certain part-time provisions; the disciplinary policy as a term of the agreement; and the time allowances of shift commencement and conclusion. There is also a higher proportion of part-time employees amongst the Hills drivers.

[36] I find that some of the claimed impact of “losing” the provisions of the TransitPlus EA has been overstated by some of the TWU witnesses. The impact of the difference in the allowance of sign-off times would not in itself lead to a loss of earnings and some of the impacts of the roster changes have already occurred within the existing enterprise agreement provisions. 19 In any event, the focus must be upon the degree to which a change in scope would impact upon the fairness and efficiency of the bargaining process.

[37] The TWU has expressly raised the issue of the impact of the present bargaining process, and any scope order, on the availability of protected industrial action. Members of the TWU are able to take protected industrial action 20 in relation to the present bargaining process provided they are not subject to an existing enterprise agreement that is within its nominal life.21 This means that some of the employees who would fall within the proposed scope are already able to take such action, whereas others are not. That is, those covered by the TransitPlus EA are not able to take protected industrial action until the expiry of that instrument in late June this year.

[38] Protected industrial action is part of the scheme of the Act and I accept that its availability is a relevant consideration in this matter, particularly in terms of the fairness of the bargaining process. 22 The significance of this would be even greater where all of the employees of the group potentially subject to the scope order could not take protected action and/or where their interests were not able to be advanced by others in the bargaining process. It is however the entire factual context that must be considered in determining whether the change in scope would lead to fairer or more efficient bargaining.

[39] The sub-group that are subject to the TransitPlus EA, and not presently able to take protected industrial action, are only part of the group proposed to be covered by the scope order. The TWU has members in both sub-groups of the Hills drivers and in the broader group, and its members have taken protected industrial action to advance their interests including in support of the view that a change be made in the scope of bargaining.

[40] Further, the negotiations have led to relatively significant changes to the proposed enterprise agreement, in part, to pick up certain key aspects of the TransitPlus EA. These include changes to the part-time provisions and the public holiday arrangements that are particularly relevant to the Hills drivers. There are other issues that no doubt would still be pursued by the TWU on behalf of the Hills drivers and their members more generally, however these developments are indicative of the fact that the present scope of negotiations has not meant that the Hills drivers are being overlooked in the process.

[41] The fact that an agreement has not yet been reached, and the difficulties in the bargaining process, are not in my view attributable to any significant degree to the present scope. The need to duplicate the bargaining process for the proposed separate group of drivers is also a factor militating against an order in this case, given the overall circumstances.

[42] These circumstances include the degree of distinctiveness of the proposed group that I deal with below. The absence of significant overall factors that set the Hills drivers apart from the broader group is also relevant to the assessment as to whether the granting of the scope order would lead to fairer and more efficient bargaining.

[43] On balance, I am not satisfied that the making of the proposed scope order would lead to fairer and more efficient bargaining in the particular circumstances of this application.

3.2 Was the group of employees who will be covered by the agreement proposed to be specified in the scope order, fairly chosen?

[44] This initially requires consideration as to whether the proposed group is geographically, operationally or organisationally distinct. This provides the foundation for any consideration of the issue.

[45] The present scope of bargaining comprehends all of the bus drivers engaged by SouthLink throughout all of its contract areas. Bus drivers perform a unique role, are generally subject to common modern award 23 coverage, and although they form part of the overall operations of the business, that group is fairly chosen having regard to the various statutory considerations.

[46] I note that SouthLink is subject to approved enterprise agreements that apply to workshop staff 24 and coordinators25 respectively that apply across the various depots and work locations.

[47] It is however possible to have more than one basis to fairly define a group of employees in an enterprise. 26 Importantly, the focus of s.238(4)(c) of the Act is the fairness or otherwise of the group that would be covered by the proposed scope order.

[48] The group proposed to be covered in the scope order are those drivers who operate from the Adelaide Hills depots of SouthLink at Mt Barker and Aldgate. The TWU contends that the group is geographically, operationally and organisationally distinct.

[49] The Hills drivers may be geographically distinct, at least to the degree that their base locations can be define as applying to a group of the drivers. However, there is a relatively regular transfer of drivers between these depots and those outside of the Hills region, and this tends to undermine the geographical basis for any distinction. This is also a factor to be taken into account more broadly.

[50] There are differences in the degree to which poor weather conditions might apply to the Hills work and I accept that the incidence of poor weather conditions is higher in the Adelaide Hills than the rest of the network. However, this does not of itself make the Hills drivers distinct. Other drivers within the SouthLink operations drive on similar roads, and in some cases, the same roads, through charter and other route work.

[51] The Hills drivers may also be operationally and organisationally distinct to a limited degree in that they operate from the Mt Barker and Aldgate depots and report to local management. The CABs only operate in the Hills region, although they may be utilised in other parts of the network, subject only to the designation of roads by the relevant regulator. 27 The additional training required for the CABs and the use of the additional ticketing system is a factor but is not in my view significant given the nature of the work, and is not such as to support the notion that the Hills drivers are distinct from the broader group of drivers.

[52] A relatively high proportion of the Hills drivers are part-time employees and this is an appropriate consideration in the present context.

[53] The Hills drivers perform the same major functions; drive the same buses (beyond the CABs); operate as part of the broader network; are subject to the same operational policies, rostering procedures and system, down-hill driving procedures and employment policies as the broader bus driver group; and are directly administered by the Lonsdale depot at various times. 28

[54] The Hills drivers also do not have common existing enterprise agreement coverage and are covered by the same modern award as applying to the rest of the employees in the presently defined scope.

[55] I note that SouthLink has coped with the operation of two different enterprise agreements applying to the Hills drivers, albeit at some inconvenience. It is also likely that changes in the extent of weekend work required on the hills routes and the benefits of a further integration of the network for both SouthLink and drivers, in terms of the capacity to offer more full-time employment, may make that more problematic into the future. 29

[56] On balance, it may be open for me to find that the group of employees were fairly chosen for present purposes. However, there are a range of competing considerations, including the transfer of drivers between the Hills depots and depots outside of that area. Further there are strong objective indicators pointing towards the more rational grouping being the broader bus driver cohort, and all these are important factors in any consideration as to whether a scope order would be reasonable in these circumstances.

3.3 Is it reasonable in all the circumstances to make the order?

[57] Given my findings in relation to the considerations established by s.238(4)(b) of the Act I am not able to make the proposed order. Further, given the findings in relation to the relative fairness of the proposed grouping and the overall circumstances, I would not have been inclined to make the order as a matter of discretion.

4. Conclusions

[58] I am unable to make the proposed order and the application must be dismissed. I so order.

[59] I do note that SouthLink has indicated 30 that it is keen to put its latest enterprise agreement offer out to a ballot of employees. Given the circumstances evident here, my recommendation is that the bargaining representatives expeditiously meet to further consider and confirm their positions on the content of any proposed agreement, now that the scope has been determined by the Commission.

Appearances:

E Lawrie for the Transport Workers’ Union of Australia.

V Hinton of Business SA with D Conlon for SouthLink Pty Ltd.

Hearing details:

2014

Adelaide

February, 21.

 1   The terms “bus drivers” and “bus operators” are used interchangeably by some parties.

 2   Sometimes these regions are called the far north and far south Adelaide regions.

 3   S.54 of the Act.

 4   Exhibit TWU1.

 5   Exhibit TWU2.

 6   Exhibit TWU3.

 7   Exhibit TWU4.

 8   Exhibit SL2.

 9   Exhibit SL3.

 10   Exhibit SL5.

 11   Exhibit SL7.

 12   Including United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board[2010] FWAFB 3009.

 13 Ibid at par [53].

 14   See Royal District Nursing Service Limited v Health Services Union of Australia and Australian Nursing Federation[2012] FWAFB 1489 and the decision at first instance - Health Services Union of Australia and Australian Nursing Federation v Royal District Nursing Service Limited [2011] FWA 8033 at pars [56] to [70].

 15   See National Union of Workers v Linfox Australia Pty Ltd[2013] FWC 9851 at [59].

 16   This is predominantly drawn from my decision in The Australian Workers' Union v Sodexo Remote Sites Australia Pty Limited[2013] FWC 6892 as cited in various submissions.

 17   [2013] FWAFB 2206.

 18   S.186(3) - for the purposes of finding that a group of employees in an enterprise agreement was fairly chosen as part of the approval requirements.

 19   Blanchard and Leeton in oral evidence.

 20   A protected action ballot order was made on 19 December 2013 (PR545967) and an extension to the authorised action was later granted by consent (PR547616).

 21   S.417 of the Act.

 22   See Australian Nursing Federation [2012] FWA 452 at pars [179] to [180].

 23   Passenger Vehicle Transportation Award 2010. This also includes other classifications including Supervisors.

 24   SouthLink Maintenance 2011 Enterprise Agreement.

 25   SouthLink Operations 2012 Enterprise Agreement.

 26   See Transport Workers’ Union of Australia v Chubb Security Services Limited[2012] FWA 2226.

 27   National Heavy Vehicle Regulator. Some roads in the broader Adelaide metropolitan area have already been approved for CABs.

 28   Dunlop in oral evidence.

 29   Dunlop in oral evidence.

 30   During closing submissions.

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