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Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Brisbane City Council[2017] QIRC 87

Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Brisbane City Council[2017] QIRC 87

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and Others v Brisbane City Council [2017] QIRC 087

PARTIES: 

Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland

(Applicant - CB/2017/1)

and

The Electrical Trades Union of Employees Queensland

(Applicant - CB/2017/2)

and

Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland

(Applicant - CB/2017/3)

and

The Australian Workers' Union of Employees, Queensland

(Applicant - CB/2017/4)

v

Brisbane City Council

(Respondent)

CASE NOS:

CB/2017/1

CB/2017/2

CB/2017/3

CB/2017/4

PROCEEDING:

Applications for Scope Order

DELIVERED ON:

27 September 2017

HEARING DATES:

21 August 2017

22 August 2017

1 September 2017

HEARD AT:

Brisbane

MEMBERS:

Deputy President Kaufman

Industrial Commissioner Fisher

Industrial Commissioner Black

ORDER:

The applications are dismissed

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – applications for scope order under s 187 of Act – where applications in same terms – where respondent opposes the making of the scope order – whether group was geographically, organisationally or operationally distinct – whether group was fairly chosen – where group claims to be numerically disadvantaged – where group claims imbalance in bargaining and voting power – whether single agreement framework disadvantaged the group – whether reasonable in all of the circumstances

CASES:

Industrial Relations Act 2016, Chapter 4, Part 4, ss 163, 184, 185, 186, 187, 209

Fair Work Act 2009, ss 186, 238, 239

Cimeco Pty Ltd v CFMEU and Others [2012] FWAFB 2206

United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board & Anor [2010] FWAFB 3009

The Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476

The Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd [2016] FWCFB 1151

APPEARANCES:

Mr J. Blundell-Thornton for the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (CB/2017/1).

Ms N. Traill for The Electrical Trades Union of Employees Queensland (CB/2017/2).

Ms K-J. Johnstone and Mr A. Borg for the Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (CB/2017/3).

Mr T. McKernan for The Australian Workers' Union of Employees, Queensland (CB/2017/4).

Mr L. Norris, Transport Workers' Union of Australia, Union of Employees (Queensland Branch.

Mr A. Herbert, of counsel, instructed by City Legal - Brisbane City Council, for the Respondent.

Reasons for Decision

The Applications

  1. [1]
    On 20 March 2017 the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKIU) filed an application for a scope order under s 187 of the Industrial Relations Act 2016 (the IR Act).  The Australian Workers' Union of Employees, Queensland (AWU), The Electrical Trades Union of Employees Queensland (ETU) and the Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (CFMEU) each filed separate scope order applications in the same terms shortly thereafter.
  1. [2]
    On 20 June 2017 the Brisbane City Council (Council), the employer respondent to the applications for scope orders, made an application that it be granted permission to be legally represented in the proceedings.  That application came on before a differently constituted Full Bench, which, in an ex tempore decision, permitted the Council to be legally represented.
  1. [3]
    As has been the case for the past 23 years, the Council and its employees and their unions are parties to a single certified agreement.  The current agreement nominally expired on 7 October 2016.  Negotiations for its successor commenced later that month.  The IR Act came into operation on 1 March 2017 and the applicants sought the making of a scope order shortly thereafter.
  1. [4]
    As has been observed, the applications are all in the same terms and essentially seek the making of a scope order to cover the Council and its employees engaged in work within the coverage of the BCC Operational and Trade Employees Award - State 2016 (the OTE award), being:
  •  Operational services employee;
  •  Building trades employee;
  •  Engineering/Electrical trades employee;
  •  Miscellaneous Worker; and
  •  Plant operator.

(Collectively, the OTE award employees).

  1. [5]
    The scope order would also cover:
  • AMEPKIU;
  • CFMEU;
  • ETU;
  • Plumbers and Gasfitters Employees' Union Queensland, Union of Employees (PGEU);
  • AWU;
  • Transport Workers' Union of Australia, Union of Employees (Queensland Branch (TWU); and
  • United Voice, Industrial Union of Employees, Queensland (UV).
  1. [6]
    The Council opposes the making of the scope order, contending that its current single enterprise agreement format, covering all its employees, ought to form the basis for the new agreement that is currently under negotiation.
  1. [7]
    This is the first occasion upon which the Commission has been required to consider Part 4 of Chapter 4 of the IR Act which deals with the making of scope orders.  Sections 184, 185 and 186 are relevant to these proceedings:

Part 4 Scope orders

184 Applications for scope orders

  1. (1)
    A negotiating party may apply to the commission for an order under section 185 (a scope order) in relation to a proposed bargaining instrument if the negotiating party has concerns the instrument—
  1. (a)
    will not cover appropriate employees; or
  2. (b)
    will cover employees whom it is inappropriate for the instrument to cover.
  1. (2)
    The application—
  1. (a)
    may be made any time after the notice of intention for the negotiations has been given; but
  2. (b)
    may not be made after part 3, division 2 starts applying in relation to the negotiating parties.

185 Making scope orders

  1. (1)
    The commission may make an order providing for the matters mentioned in section 186 in relation to a proposed bargaining instrument if satisfied—
  1. (a)
    an application for the order has been made under section 184; and
  2. (b)
    the negotiating party who made the application has not contravened the requirement to negotiate in good faith under section 173; and
  3. (c)
    the group of employees to be covered by the proposed bargaining instrument to be stated in the scope order was fairly chosen; and
  4. (d)
    it is reasonable in all the circumstances to make the order.
  1. (2)
    For subsection (1)(c), if the group of employees does not include all employees of each employer who will be covered by the proposed bargaining instrument, in deciding whether the group was fairly chosen the commission must consider whether the group is geographically, operationally or organisationally distinct.
  1. (3)
    The scope order may relate to more than 1 proposed bargaining instrument.

186 Matters to be stated in scope orders

A scope order in relation to a proposed bargaining instrument must state—

  1. (a)
    the employer, or employers, to be covered by the instrument; and
  2. (b)
    the employees to be covered by the instrument; and
  3. (c)
    the employee organisations to be parties to the instrument.
  1. [8]
    There is no issue between the parties that the requirements of s 185(1)(a) and (b) are satisfied and that the proposed agreement would comply with  the requirements of s 186.  It also seems that there is no issue that the applicant unions, which are all negotiating parties in relation to the proposed bargaining instrument, in this case a certified agreement, have concerns that it will cover employees whom it is inappropriate for the instrument to cover.  It follows that the requirements of s 184 have also been met.
  1. [9]
    Accordingly, the Commission may make the order sought by the applicants if it is satisfied that:
  • the group of employees to be covered by the proposed bargaining instrument, the OTE group, was fairly chosen; and
  • it is reasonable in all the circumstances to make the order.
  1. [10]
    As we have noted, four unions have made applications for scope orders pursuant to s 184 of the IR Act.  Two other unions, the TWU and UV, informed the Commission that they supported the applications.  There was some uncertainty about the position of the PGEU.  While that union did not appear in the proceedings, the applicant unions claimed that it also supports the applications.
  1. [11]
    The attitude of the other unions proposed to be covered by the scope order is relevant because the proposed scope order identified the employees subject to the OTE award, eligible to be their members, as the employees to be covered by the proposed bargaining instrument.
  1. [12]
    Clause 4 of the OTE award names seven unions as respondents.  This includes the four applicant unions, as well as the others named in the proposed scope order.
  1. [13]
    In the circumstances, there being no submission to the contrary, we are satisfied that all unions respondent to the OTE award either support, or at least do not object to, the making of the proposed scope order.

The OTE Award

  1. [14]
    The creation of the OTE award was a product of the award modernisation process.  For the Council, this process ultimately led to the establishment of three awards in lieu of the pre-existing seven awards.  The three resulting modern awards are:
  • the OTE award;
  • the Brisbane City Council Salaried Staff Award - State 2016 (the salaried staff award); and
  • the Brisbane City Council Bus Transport Employees' Award - State 2016 (the bus employees' award).
  1. [15]
    The Council's employees' terms and conditions of employment are currently regulated by the Brisbane City Council Certified Agreement 2013, underpinned by the three modern awards mentioned above.  The agreement has a nominal expiry date of 7 October 2016.
  1. [16]
    During the bargaining process associated with the renegotiation of the 2013 certified agreement the ETU and CFMEU informed the Council that it wanted to establish a separate certified agreement applicable to employees who were covered by the OTE award.  When the Council resisted the proposal, the subject applications for scope orders were lodged.
  1. [17]
    The coverage clause of the OTE award provides that the award applies to all employees of the Council who are engaged in the following capacities and for whom classifications and rates of wages are prescribed in the award:
  •  Operational services employees;
  •  Building trades employees;
  •  Engineering/Electrical trades employees;
  •  Miscellaneous workers; and
  •  Plant operators.
  1. [18]
    It is apparent that the scope order seeks to cover the same groups of employees.
  1. [19]
    Exhibit BCC 7 was said to comprise an exhaustive list of the types of jobs covered by the OTE award.  The exhibit discloses that 1328 persons are employed under the OTE award with the following distribution of employees:
  • Horticultural, gardening and labouring (249);
  • Investigation and enforcement (32);
  • Labourers (432);
  • Cleaners and car park attendants (25);
  • Fitness instructors (13);
  • Parks and garden employees (15);
  • Regulation and inspection (94);
  • Trades other than mechanical trades (82);
  • Truck drivers (69);
  • Store persons (7);
  • Mechanical trades (257); and
  • Plant operators and street sweepers (37).
  1. [20]
    The trades areas comprise 144 diesel mechanics and apprentices; 25 mechanics and apprentices; 14 metal fitters and machinists; 44 coach builders/panel beaters; 44 persons engaged in the electrical trades; 10 person engaged in the plumbing trades; 7 persons engaged in carpentry; 18 persons engaged in painting and sign writing; 2 communications trades officers; and 1 general tradesperson.

The 2013 Certified Agreement

  1. [21]
    The Council's employees have been employed subject to a single industrial agreement since 1994.  Approximately 8,000 employees are covered by the 2013 certified agreement.  The main body of the current agreement is divided into four sections:

A. The Agreement;

B. Organisation of Work;

C. Developing a capable and adaptive workforce; and

D. Conditions of Employment.

  1. [22]
    In addition to these four sections, the agreement includes four groups of schedules.  The first group deals with the administration of the agreement and includes provisions relevant to a Joint Consultative Committee, Divisional and Work Unit Consultative Committees, and Local Consultative Committee.  The second group deals with procedures associated with personal leave, workers' compensation, organisational change, rehabilitation and medical conditions, redundancy and separation procedures.  The third group deals with employee groups, while the fourth group provides for transitional arrangements.
  1. [23]
    It is the employee groups' schedule which is most relevant to the proceedings.  The following groups are included:
  • Schedule 8:  Salaried Staff Employees (professional, technical, supervisory or administrative roles);
  • Schedule 9:  City Service Employees (OTE type employees);
  • Schedule 10:  Passenger Services Employees (bus drivers and bus assistants); and
  • Schedule 11:  Trade Services Employees (OTE trade categories).

 The Application of the Act

  1. [24]
    Because the group of employees does not include all the employees of the Council, in deciding whether it was fairly chosen, the Commission must consider whether the group is geographically, operationally or organisationally distinct.  Ultimately an order may be granted if the Commission is satisfied that the group of employees was fairly chosen and that it is reasonable in all the circumstances to make the order.
  1. [25]
    Scope order provisions are new to Queensland state industrial law.  The inclusion of provisions facilitating the making of scope orders was recommended in the review of the industrial relations framework in Queensland commissioned by the Minister for Employment and Industrial Relations.  In discussing a "collective bargaining model", the report identified a number of elements to bargaining the first of which was the "initiation of bargaining". In this regard the report stated:

"1. Initiation of bargaining

The bargaining period will commence when one party formally initiates the bargaining process by way of written notice (notice of intention). This can occur six months prior to the nominal expiry date of the agreement or award, unless otherwise provided for in the agreement.

In the drafting of the new provisions the QIRC should be given the power to make 'scope orders' to deal with circumstances where negotiating parties are unable to agree on the coverage of a proposed agreement.  The provision could be modelled on the similar provisions of the FW Act."[1]

  1. [26]
    The Explanatory Notes make no reference to the meaning or purpose of the new provisions.  However in the introductory explanations, the Notes deal with the subject of "Consistency with legislation of other jurisdictions" in these terms:

"The Bill is specific to the State of Queensland, and is not required to be uniform with or complementary to legislation of the Commonwealth or another state. However, in developing the provisions of the Bill consideration has been given to relevant provisions of the Commonwealth's FW Act and FWRO Act. Where appropriate the Bill's provisions have been drafted to reflect similar regulation. Examples of this approach can be found in those parts of the Bill that deal with minimum employment standards, general protections against adverse action, access to an anti-workplace bullying jurisdiction and in the financial reporting and training obligations of registered industrial organisations and officers."[2]

  1. [27]
    The scope provisions of the IR Act are contained within Chapter 4 of the Act.  The purpose of the chapter is set out in s 163:
  1. (a)
    to facilitate collective bargaining by employees and employers, in good faith and with a view to reaching agreement, as the primary basis under this Act on which wages and employment conditions are decided; and
  1. (b)
    if the negotiating parties can not reach agreement, to provide for the commission to—
  1. (i)
    help the parties reach agreement or, if agreement can not be reached, reduce the matters in dispute; and
  2. (ii)
    arbitrate the matter if conciliation is not successful; and
  1. (c)
    if the negotiating parties reach agreement, to enable the parties to—
  1. (i)
    make an agreement and apply to the commission for the agreement to be certified; or
  2. (ii)
    in particular circumstances, apply to the commission for the making of a bargaining award and revocation of the modern award that covers the negotiating parties; and
  1. (d)
    to recognise the right of negotiating parties to take protected industrial action, if particular requirements are satisfied, as part of the collective bargaining process.
  1. [28]
    It is tolerably clear that an important purpose of the chapter is to facilitate and encourage collective bargaining and to give the process primacy in the setting of wages and conditions of employment.

Commonwealth Law

  1. [29]
    Provisions enabling the granting of scope orders have been included in commonwealth industrial law for some time and several decisions on scope orders have been delivered, in which the law as expressed in the Fair Work Act 2009 (the FW Act) has been expounded.  It is relevant to note that the provisions in the IR Act dealing with scope orders differ in some significant respects from their counterpart federal provisions.
  1. [30]
    It is also relevant to note that the "fairly chosen" issue is a matter requiring consideration in the federal legislation both in the determination of scope orders and in the approval of certified agreements.  As a consequence, some federal decisions referred to in these proceedings address the "fairly chosen" issue in the context of a decision to certify or not to certify an agreement, rather than in respect to an application for a scope order.  Section 186 of the FW Act, which deals with the approval of certified agreements, provides:
  1. (3)
    The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.
 

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

  1. [31]
    The counterpart provisions in the IR Act are expressed in somewhat different terms:

209 Employees covered by the proposed bargaining instrument

  1. (1)
    The commission must refuse to grant a part 5 application if—
  1. (a)
    the proposed bargaining instrument applies only to a group or category of employees; and
  2. (b)
    the commission considers the instrument defines the group or category in a way that results in other employees not being covered by the instrument, if it would be reasonable for the other employees to be covered by the instrument; and
  3. (c)
    the commission considers it unfair the other employees are not covered by the instrument.
  1. (2)
    For subsection (1)(b), in deciding whether it would be reasonable for the other employees to be covered by the proposed bargaining instrument, the commission must consider—
  1. (a)
    the nature of the work performed by the other employees; and
  2. (b)
    the organisational and operational relationships between the group or category and the other employees.
  1. [32]
    For present purposes we assume that the strictures of s 209 of the IR Act would not apply in circumstances where a scope order defines the group or category.  It also follows that when considering whether to certify an agreement that applies to all the employees, such as is the case with the 2013 certified agreement, no questions of reasonableness or fairness would arise, because s 209 has no application.
  1. [33]
    Unlike the position with the FW Act where, prior to certification, the Fair Work Commission (FWC) must be satisfied that the group of employees covered by the agreement was fairly chosen, s 209 does not come into play unless the proposed bargaining instrument applies only to a group or category of employees.
  1. [34]
    The counterpart FW Act scope order provisions are set out in sections 238 and 239:

238 Scope orders

 Bargaining representatives may apply for scope orders

  1. (1)
    A bargaining representative for a proposed single-enterprise agreement (other than a greenfields agreement) may apply to the FWC for an order (a scope order ) under this section if:
    1. (a)
      the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and
    2. (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.

…

When the FWC may make scope order

  1. (4)
    The FWC may make the scope order if the FWC is satisfied:
  1. (a)
    that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and
  1. (b)
    that making the order will promote the fair and efficient conduct of bargaining; and
  1. (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
  2. (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

  1. (5)
    The scope order must specify, in relation to a proposed single-enterprise agreement:
  1. (a)
    the employer, or employers, that will be covered by the agreement; and
  2. (b)
    the employees who will be covered by the agreement.

Scope order must be in accordance with this section etc.

  1. (6)
    The scope order:
    1. (a)
      must be in accordance with this section; and
    2. (b)
      may relate to more than one proposed single-enterprise agreement.
  1. [35]
    Section 239 of the FW Act deals with the operation of a scope order.
  1. [36]
    It is immediately apparent that there are differences between the scope order provisions of the FW Act and the IR Act, including:
  • Section 184 of the IR Act, as a condition precedent to the making of an application for a scope order, requires that a negotiating party have concerns that the proposed agreement will not cover appropriate employees, or will cover employees whom it is not appropriate for the agreement to cover.  It does not have the FW Act requirement that the negotiating party "has concerns that bargaining for the agreement is not proceeding efficiently or fairly" and that "the reason for this is that the bargaining representative considers that the proposed agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover"; and
  • the IR Act does not include a provision requiring the bargaining representative to take all reasonable steps to give notice of its concerns.
  1. [37]
    Under s 238(1) of the FW Act, the concepts of efficiency, fairness and appropriate coverage are inextricably linked.  That seems to suggest that under the FW Act inappropriate coverage may have a causal connection with bargaining not proceeding efficiently or fairly.  This would not be so under the IR Act.
  1. [38]
    A further difference and a matter in contention in the proceedings related to the exclusion from the IR Act of provisions similar to those contained in s 238(1)(a) and s 238(4)(b) in the FW Act.  The applicants pressed the view that the absence of provisions requiring consideration of whether bargaining was proceeding fairly or efficiently, or whether the scope order sought would promote the fair and efficient conduct of bargaining, was not a relevant consideration in the determination of their applications.  The unions contended that the deliberate omission of these requirements from the IR Act resulted in a requirement that the Commission only need have regard to, and be satisfied that, the requirements in s 185 of the IR Act have been met.  The Council on the other hand submitted that in any determination about whether it was reasonable in all the circumstances to make the scope order sought, consideration must be given to whether its making would be likely to promote fair and efficient bargaining.
  1. [39]
    The Council's submission has merit.  In our view, although the Commission, unlike its federal counterpart, need not be satisfied that the making of the scope order will promote the fair and efficient conduct of bargaining, it is a matter that legitimately could be taken into consideration in determining whether it is reasonable in all the circumstances to make the scope order.  Depending on the circumstances, the weight given to fairness and efficiency will vary from case to case.

FWC Decisions

  1. [40]
    The FWC has published several decisions which are relevant to the construction that it has placed on the provisions of the FW Act.
  1. [41]
    In Cimeco Pty Ltd v CFMEU and Others[3] a Full Bench of the FWC considered, in the context of an application to approve an enterprise agreement, the approach to be taken to the "fairly chosen" test included at s 186(3) of the FW Act:

"[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'."

  1. [42]
    The Full Bench also dealt with the effect of a positive finding about distinctness and the determination to be made about whether a group was 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 [sic] 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."[4]

  1. [43]
    The Full Bench also stated that the use of the word "fairly" suggested that the selection of the group should not occur in an arbitrary or discriminatory manner:

"[21] 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."[5]

  1. [44]
    We respectfully agree with the observations of the Full Bench and have regard to them in determining these applications, as they seem to apply to the concept of "fairly chosen" in the Queensland legislation.
  1. [45]
    In an earlier decision in United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board & Anor,[6] a Full Bench acknowledged that particular weight should be given to the views of employees in the determination of scope order applications, subject to some qualification:

"[53] As recorded above, it was submitted by the UFUA and the ACTU that particular weight should be given to the views of employees because of, for example, legislative policy imperatives concerning freedom of association.  While we generally agree with that submission it requires some qualification.  The power to make a scope order is predicated on disagreement between bargaining representatives.  The discretion to resolve that disagreement is to be exercised as provided for in ss.238(4) and (4A).  While those provisions do not assign priority to the views of employees, in applying the provisions it is necessary to have regard to the overall context.  The legislative scheme supports collective bargaining principles and the Fair Work Act encourages freedom of association and collective bargaining.  It may be implied from the legislative scheme that the collective choice of employees is significant.  It must be said, however, that while weight should be given to the views of the employees potentially affected, it may be that a proper consideration of the matters specified in ss.238(4) and (4A) in a particular case may make it appropriate to make a scope order contrary to the views of the employees potentially affected."

  1. [46]
    Whilst recognizing the differences between the Acts (particularly that the power to make a scope order under the IR Act is not predicated on disagreement between bargaining representatives, rather the only consideration is appropriate award coverage, which, if the agreement will not cover all employees, requires further consideration of fairly chosen and reasonableness), the passage set out above nevertheless provides useful guidance.  However, when referring to decisions of the FWC regard should be had to the differences between the two sets of legislation, as well as to their histories and objects.
  1. [47]
    In United Firefighters the Full Bench also stated:

"[69] The reasons advanced to support the UFUA application are based to a very large extent on the preferences of the operational employees generally and the Commanders and ACFOs in particular.  Those preferences are important.  So is the perception, expressed by a number of Commanders and ACFOs, that it would be unfair if they were not to be included in negotiations for an agreement covering operational staff generally.  Viewed objectively, however, and having regard to what has been achieved to date, it is difficult to draw the conclusion that the interests of Commanders and ACFOs would be prejudiced if they negotiate their conditions separately.  While there was a deal of information presented to us about the history of attempts to negotiate conditions for ranks above Senior Station Officer, there was little to support the conclusion that if the UFUA application was granted the conduct of bargaining would be fairer and more efficient than otherwise."[7]

  1. [48]
    This passage, which highlights the necessity of objective evidence, is relevant to the matters before us because much of the evidence led by the unions consisted of subjective impressions.  As was highlighted in the Council's submissions, the union witnesses were hard pressed to demonstrate any real, rather than perceived, disadvantage they suffered as a result of there being only the one agreement.
  1. [49]
    In The Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd,[8] a Full Bench of the FWC said, after quoting the paragraph from United Firefighters:

"[31] It is in this way that the views of the employees become significant and prima facie carry greater weight than the subjective views of the employer unless, as in United Firefighters, there are particular circumstances in a given case that make a contrary conclusion appropriate upon a proper application of s.238."

  1. [50]
    Whilst we agree that the collective view of employees is significant, we respectfully do not consider that it is necessary to go beyond the views expressed by the Full Bench in United Firefighters quoted in paragraph [45].  The IR Act's main purpose is to provide for a framework for cooperative industrial relations by, amongst other things, promoting collective bargaining.  The achievement of that purpose does not seem to us to suggest that primacy should be given to the views of one negotiating party over that of the other.
  1. [51]
    In BP Refinery (Kwinana) Pty Ltd,[9] the Full Bench, when considering the meaning of a provision equivalent to s 185(2) of the IR Act (whether the group is geographically, operationally or organisationally distinct), concluded that:
  • "The obligation of the Commission is to 'take account' of geographical, operational or organisational distinctness in deciding whether the group to be covered by the proposed enterprise agreement was 'fairly chosen'. A particular type of distinctiveness may not exist in respect of a proposed group in a particular case, and yet, having taken account of that absence, it may still be clear, that the group has been fairly chosen in all the circumstances of the particular case";
  • There may be more than one way of fairly choosing the group of employees to be covered by a proposed enterprise agreement;
  • Geographical distinctness is concerned with the "geographical separateness of the employer's various worksites or work locations";
  • "The weight to be attached to the geographical, operational or organisational distinctness of groups with[in] a broader group will be neutral in determining whether an order ought to be made, unless there are particular features of, or circumstances associated with, that distinctness that render that broader group one that is not fairly chosen"; and
  • "Enterprise agreements that cover all employees in a business are commonplace.  Almost all such business[es] will have organisation structures that will allow organisationally distinct groups to be identified.  Many of those businesses contain operationally distinct groups.  Yet, it will rarely be the case that a 'whole of enterprise' group would be unfairly chosen".
  1. [52]
    In The Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd[10] the decision under appeal had determined the issue of "fairly chosen" by reference to an absence of "manifestly detrimental consequences" for the group seeking the scope order in the event that the application failed.  In effect, the Commission at first instance did not accept that the group would be worse off in terms of enterprise bargaining outcomes.  The decision also expressed the view that any purported unfairness was a product of "a desire for self-determination" which would not lead to any difference in outcomes.  The Full Bench observed:

"[29] If the group of employees to be covered by an agreement is selected on the basis that a majority section of the employees may vote to approve an agreement with terms advantageous to themselves but disadvantageous to a minority group, that may support a conclusion that the group was not fairly chosen.  But, as the Commissioner correctly found, there were no identifiable provisions of the 2015 Agreement which caused any manifest detriment to the ferry masters represented by the AMOU (or the inner harbour engineers represented by the AIMPE)."

 Are the OTE Award Employees Geographically, Operationally or Organisationally Distinct?

  1. [53]
    We must now consider, pursuant to s 185(2), for the purposes of determining whether the OTE group was fairly chosen, whether it is geographically, operationally or organisationally distinct.
  1. [54]
    Whether distinctness exists requires a consideration of something relative to something else.  The comparison to be made is between the group of employees identified in the applications (the OTE group) and, in the circumstances of this case where currently a single agreement applies to all employees of the Council, all other employees of Council.
  1. [55]
    In terms of the operation of s 185(1)(c) of the IR Act, it was the Council's submission:

"… section 185(1)(c) should be interpreted as requiring the Commission to be satisfied that all components of the Applicant Group were fairly chosen by the unions who made that choice, in that inappropriate extraneous considerations have not been applied to the choice, and, in the particular case of scope orders covering less than the entire workforce, the Commission must consider whether there is sufficient geographical, operational, or organisational distinction as between the chosen group and other employees of the same employer so as not to result in operational confusion within the business of the employer."

  1. [56]
    The Council submitted that the inclusion in s 185(2) of criteria which must be considered directs attention to "the structure of the business of the employer, its geographical spread and the manner of its organisation and operation, and the place within that structure, organisation and operation occupied by the group chosen for the purposes of these proceedings".
  1. [57]
    The Council advanced the view that the diverse composition of the OTE group rendered it incapable of designation as a group distinct from the main or remaining group of employees.  The Council drew attention to the disparate make-up of the OTE group including classifications such as investigation and enforcement officers, cleaners and car park attendants, fitness instructors, and regulation and inspection employees, which categories were said not to be compatible with the notion of blue collar work or outdoor work.  However, in the end result, we prefer to proceed on the basis that the predominant part of the OTE group can accurately be described as blue collar or outdoor workers and that there is a capacity to satisfy the test of distinctness.
  1. [58]
    The ETU and AWU maintained in effect, that regardless of any considerations of geographical, organisational, or operational distinctness, any test of distinctness was satisfied by the implementation of the OTE award, the effect of which was to create a distinct group of employees.  The OTE group was said to be distinct from remaining employees covered by the 2013 agreement because it was made up predominantly of blue collar or outdoor workers and was already recognised as a separate group for industrial regulation purposes through the operation of the OTE award.  The contrast is with the remaining groups of employees which predominantly comprise bus drivers or administrative staff, both of which groups are covered by their own modern awards.
  1. [59]
    The CFMEU added that the exclusion from the coverage of the OTE award of salaried staff also represented a point of operational distinction between the two groups.  It followed from these propositions that a distinction derived from the terms of the OTE award could not be considered to be either arbitrary or discriminatory.  Further the OTE award operated in a complementary fashion with the other two Council modern awards applicable to salaried staff and bus drivers.  The CFMEU similarly submitted that a determination about whether a group of employees was fairly chosen can validly be made by reference to the group's underpinning modern award.  The CFMEU also relied on the proposition that the minority status or size of the OTE group was a legitimate basis upon which to issue a scope order and was a factor to be considered when assessing whether the OTE group was fairly chosen.
  1. [60]
    In terms of geographical distinctness, the Council submitted that there is no, or no sufficient, geographical separation between the applicant group and other employees of Council. In particular:
  • all members of the applicant group work from or at a Council depot at which they co-locate with salaried employees who are not members of that group;
  • the Council depot is the allocated home base at which training is delivered, workers attend for administrative purposes and where the supervisors of the workers are based; and
  • a high proportion of members of the applicant group are widely spread around the Brisbane area and share their work time and responsibilities with employees who are not members of the applicant group.
  1. [61]
    The ETU and AMEPKIU argued that the place or location where members of the OTE group undertake their work is geographically distinct from the workplace locations of other employee groups.  However they did not explain how this was so, nor provide any developed reasoning on the subject.  The AWU similarly submitted that geographical distinctness was derived from the fact that employees in the OTE group "work out of various sites around Brisbane, drive vehicles and operate plant at various sites around Brisbane and travel or present at different sites around Brisbane."  This test however does not geographically distinguish the group from the bus driving group who in the course of their work, move across a range of locations within the area of the City of Brisbane.
  1. [62]
    The difficulty with the approach of the unions is that the geographical element in the proposition, the requirement to work at various locations across Brisbane, is a common feature of both the OTE group and the non-OTE group and does not establish geographical distinctness.  As a generality, both the OTE group and non-OTE group members are deployed across the city of Brisbane in numerous locations.  It would be difficult to sustain an argument that both groups are distinct from each other by reference to where they report to work and where the work is actually performed.
  1. [63]
    The CFMEU expressed the proposition a little differently.  It advanced the view that geographical distinctness arises from the fact that OTE group workers perform work on-site and at locations other than Council depots.  The practical effect of this is that OTE workers may work at a variety of sites or locations across Brisbane.  It seems to us that this factor does not distinguish the group from the non-OTE group who also work at a variety of locations across Brisbane.  We acknowledge that the standard of amenities or facilities may be quite different, but this is an operational consideration, not a geographical consideration.
  1. [64]
    We are not persuaded that the OTE group is geographically distinct.
  1. [65]
    The Council led considerable evidence in support of a proposition that the OTE group could not be considered to be organisationally distinct.  The Council submitted that there were many examples where its organisational structures result in employees in the OTE group performing complementary roles with the salaried staff engaged in the same division.  It was submitted that the Council draws no distinction between the work and areas of work of the selected group and the salaried employees who fall outside that group.  Despite this, both the ETU and the AMEPKIU claimed that the determinative consideration should focus on the performance of the work.  It was their view that despite the method of organisation, "the role and function of each individual within the silo is distinct; the operations that they carry out and the primary purpose of their role are distinct."
  1. [66]
    The AMEPKIU claimed that organisational distinctness existed by virtue of the operation of the OTE award which had the effect of restricting the work undertaken by reference to classifications and definitions included in the award.  It was put that as a result of the operation of the OTE award, the OTE group occupied a distinct part of the Council's operations.  There was no overlap or operational confusion on who undertakes the work performed by the OTE group.  The OTE group was said to be capable of elemental utility and it was submitted that the roles and responsibilities of those making up the group are performed to the exclusion of all other employee groups.
  1. [67]
    It appears to us that the AMEPKIU is addressing mainly operational characteristics rather than organisational characteristics.  While award provisions may impact on work demarcation, in our view the organisation of work is largely a matter for determination by management.  In any event the agreement, which prevails over the OTE award where there is inconsistency between them, covers the entire workforce.  The test of distinctness would relate to how management organised the work and whether it did so in a manner in which geographical, organisational or operational issues were significant.
  1. [68]
    The CFMEU's view was that blue collar workers engaged by the Council have their own organisational structure and that these workers are organised in a manner that allows them to address the requirements of the group independent of other groups of employees.  An organisational distinction was also drawn by reference to the scope of the 2013 agreement schedules, where schedules 9 and 11 are dedicated to the OTE group, while salaried employees are covered by schedule 8 and bus drivers are covered by schedule 10.  It was noted that these groupings are consistent with the coverage of the underpinning modern awards.
  1. [69]
    The need to organise the work to promote efficiency and productivity leads to workers with different skill sets, tasks and responsibilities being brought together to most efficiently fulfil the organisational objective.  This is evident for example in the deployment of mechanical trades responsible for the maintenance and servicing of the bus fleet.  A considerable proportion of the mechanical trades are located at bus depots and are engaged in the maintenance and repair of buses.  They could not be considered to be organisationally unconnected from administrative and salaried staff and bus drivers who also operate out of the same depot.
  1. [70]
    We are not satisfied that the OTE group is organisationally distinct.
  1. [71]
    If organisational distinctness relates to the manner in which Council plans and organises its work, operational distinctness is more likely to relate to how the work is carried out and what actual work is undertaken.  The AMEPKIU submitted that the establishment of the OTE modern award in itself, including Council's support for the making of the award, confirmed the distinct and unique nature of the OTE group.  The AWU distinguished the OTE group operationally on the basis that outdoor workers do not perform work that is carried out by either indoor workers or bus drivers and that work of an administrative nature is predominantly performed by indoor workers.
  1. [72]
    We are of the view that the OTE group, being predominantly comprised of outdoor workers, manual workers, operators of equipment and machinery or workers using tools, is operationally distinct from the remaining group which is predominantly made up of bus drivers and administrative staff.
  1. [73]
    In conclusion, pursuant to s 185(2) we consider that the OTE group is not geographically or organisationally distinct.  However, we find that it is operationally distinct.

Fairly Chosen

  1. [74]
    The determination to be made for the purposes of s 185(1)(c) is whether the group of employees chosen, namely the OTE group, was fairly chosen.  One matter to be taken into account is the issue of distinctness.  Our finding that the OTE group is operationally distinct supports, but does not compel, a conclusion that the OTE group was fairly chosen.
  1. [75]
    The Council submitted that the bringing together of a disparate group of employees to form the OTE group is an arbitrary exercise that would lead to the conclusion that the group was not fairly chosen.  The choice is not sufficiently grounded on common characteristics which are likely to form any durable or lasting collective which would be capable of developing common policies, tactics or strategies needed to underpin an effective and constructive bargaining process.
  1. [76]
    The Council considered that the applicant group had not been fairly chosen but had been selected on an arbitrary basis.  It submitted that, other than in respect to award coverage, the range of employees included in the group had no relevant vocational or other internal connection between and among the subgroups that made up the applicant group.  Further, it submitted that the applicant group excludes a significant number of "blue collar" employees such as bus operations employees and bus assistants who work in and from the same depots as members of the applicant group.  The Council maintained that the applicant group was a disparate group which could not claim any distinctness as a group in a way consistent with s 185(2) of the IR Act.
  1. [77]
    It was also submitted that members of the applicant group often worked side by side, and in close conjunction with, employees who are not members of the group.  This practice was said to occur as part of "a deliberate work organisation by the Council to silo many of its business functions in such a way as to allocate particular work activities to multi-disciplinary groups made up of employees who fall both within and outside the OTE group, with all employees in all groups working under the same certified agreement."
  1. [78]
    The Council disputed the applicants' submission that the existence of the OTE modern award constituted a determinative or highly persuasive measure in the decision to be made about whether the OTE group was fairly chosen.  The Council argued that the OTE modern award should be construed in the following context:

"The OTE Award does not control or regulate in any way the manner in which Council conducts its business and organises its employees.  It is an instrument of the Commission, not of Council, and says nothing at all about the commonality or bonds between members of the chosen group.  In truth, so far as award coverage is concerned, the Applicant Group remains effectively covered by the historical terms of the same six Awards as has historically been the case, which were brought together under the heading of the OTES Award.  Each of the six awards has a longstanding separate history because of the longstanding separation between each of those groups, which has not changed by collecting the six awards into one document and leaving their terms effectively untouched."

  1. [79]
    Whilst we acknowledge the force of the Council's submission, the choice of a group that is covered by a separate award is logical and supports the conclusion that the OTE group was fairly chosen.  Further, there are enough similarities amongst the groups that comprise the OTE group to lead us to conclude that it was not arbitrarily chosen.

 Reasonable in all the Circumstances

  1. [80]
    However, a finding that the OTE group was fairly chosen is not the end of the matter.  The Commission needs to be satisfied that it is reasonable in all the circumstances to make the order.
  1. [81]
    Before embarking upon that exercise it is worthwhile recapping how the relevant provisions of the IR Act inform the manner in which we should exercise our discretion:
  • s 3 - the main purpose of the Act is to provide a framework for cooperative industrial relations;
  • s 4 - to be achieved by -
    •  (h) - promoting collective bargaining;
    •  (n) - encouraging representation of employees and employers by organisations;
  • s 163 - the purpose of chapter 4 is -
    •  (a) to facilitate collective bargaining in good faith and with a view to reaching agreement as the primary basis on which wages and employment conditions are decided;
  • s 184(1) - application for a scope order if a party has concerns the instrument will not cover appropriate employees or will cover inappropriate employees;
  • s 185(1)(c) and (2) - group of employees to be covered by scope order was fairly chosen having regard to whether it is geographically, operationally or organisationally distinct; and
  • s 185(d) - it is reasonable in the circumstances to make the order.
  1. [82]
    Having regard to the above statutory provisions and with the limited assistance of decisions of the FWC, we must now consider whether it is reasonable in the circumstances of this case to make the scope order sought by the unions.  There being no counter application by the Council seeking a scope order retaining the status quo, we need not consider that issue.
  1. [83]
    In this matter the OTE cohort has been subject to the same bargaining regime as the balance of the Council s employees for the past 23 years.  The applicants have singled out that cohort for the making of a scope order to enable separate bargaining for an agreement to only cover the OTE group.  In considering whether it is reasonable in those circumstances to make the scope order it is useful to ascertain whether it would be unfair to the OTE group to leave the whole of the enterprise as the group to be covered.  Conversely, again being mindful of the lengthy history of single agreement making, it would have been useful to have been addressed on the impact, if any, on the remainder of the Council's employees (in a bargaining sense) were we to hive off the OTE cohort.
  1. [84]
    In the circumstances of this case, determining whether the group was fairly chosen requires a consideration of fairness towards that group as well as to the other group from which the subject group is sought to be excised.  The impact of such an excision on the employer is also a matter that goes to reasonableness in these circumstances.  No evidence was led on the impact, if any, the making of the scope order would have on the non-OTE cohort, so we make no findings in relation thereto.
  1. [85]
    The determination to be made about whether it is reasonable in all the circumstances to make the scope order sought involves a consideration of the facts and circumstances relevant to the applications.  These include:
  • the history of enterprise bargaining;
  • whether the current framework gives rise to unfairness and, if so, whether grant of the applications will improve fairness;
  • the minority status of the OTE group and its perceived inability to affect bargaining outcomes;
  • whether a numerically smaller group, such as the OTE group, is disadvantaged in terms of the fulfilment of the objects of enterprise bargaining;
  • whether a requirement to negotiate more than one certified agreement would be likely to increase or diminish industrial harmony;
  • the attitude of employees and their union representatives;
  • the attitude of the employer including whether a requirement for the employer to negotiate more than one enterprise agreement would add unnecessary complexity and cost for the employer, and the extent to which that should be considered; and
  • fairness, efficacy and efficiency considerations associated with the current bargaining framework and the prospective continuation of the current framework.
  1. [86]
    We have regard to these matters in our consideration of the evidence and submissions.
  1. [87]
    Some of the matters with which we are about to deal have been canvassed in our consideration of distinctness and fairly chosen as the evidence and submissions overlap the various issues we must consider.

The Evidence and Submissions of the Unions

  1. [88]
    The evidence of the witnesses called by the applicants focussed on three key propositions which were said to justify a conclusion that it was reasonable to grant the scope order sought:
  • the imbalance in bargaining and voting power:  employees in the OTE group wish to have a fair vote on matters that directly affect them without being outnumbered by other employees;
  • the differences in the nature of the work and the conditions under which work is performed between OTE award employees and the employees covered by the other two awards; and
  • the Council's conduct in ignoring or not placing weight on the claims made by OTE award unions in the bargaining process.
  1. [89]
    The combined effect of not being heard, having their claims disregarded, conditions reduced and having had agreements sent to ballot over their objections were events said to promote a desire among the OTE group for a separate agreement.  Evidence in support of this contention was given by an organiser from each of the applicant unions. Mr Ricky Luke (AMEPKIU) said that his members have directed him to pursue a separate agreement.  Mr Brenton Muller said that ETU members were passionate about a separate agreement.  This was confirmed by the evidence of ETU delegates Mr Geoff Leggat and Mr Corey Rasmussen.  Mr Barry Higgins explained that CFMEU members want a separate agreement that better reflects their conditions without fear of being outvoted.  The evidence of Mr Mark Raguse (AWU) was that his members also support a separate agreement.
  1. [90]
    A separate agreement was said to be necessary to adequately recognise differences in the work performed by the OTE group.  Witnesses from all four applicant unions and the TWU outlined the different conditions experienced by the OTE group compared with the remaining workforce.  The evidence drew attention to the outdoor nature of the work where employees were exposed to the elements.  Work is often performed away from depots where the amenities enjoyed by indoor workers are not available.  The nature of the work was described as being physically exhausting and more dangerous or high risk.  The OTE group employees were also said to have different hours of work to the rest of the workforce.  For example, electricians work a nine-day fortnight as opposed to bus drivers who are rostered to work on all seven days of the week.  Differences were also said to exist between the ordinary hours of truck drivers and administrative employees.  These differences support the need for a separate agreement.
  1. [91]
    In light of these differences the unions contend that their members want to have the capacity to negotiate an agreement that is relevant to their interests.  Although the Council submitted that this is able to be done through separate schedule negotiations, evidence from the unions was that their claims were either ignored or not taken seriously by the Council.  An example cited by several witnesses was the Council dismissing the unions' requests for a separate agreement for the OTE group both in 2013 and in the current round of negotiations.  The view from officials and delegates who participated in the current round was that the Council did not genuinely consider the request.  Mr Leggat was also present at the 2013 enterprise bargaining negotiations when unions asked the Council for a separate agreement for operational and trades staff.  His evidence was that the request was immediately rejected.  Mr Leggat was not cross‑examined and no evidence to the contrary was given by the Council witnesses.
  1. [92]
    The applicants' witnesses expressed discontent over the failure by the Council in both prioritising and properly considering their claims.  For example, Mr Muller said his union had tabled its log of claims at the bargaining meeting of 22 November 2016 but it was not until 7 March 2017 that it was given the opportunity to address it.  The only issue the Council responded to then was the claim for a separate agreement for the operational and trades employees, which was rejected.  The Council did not otherwise respond to its log of claims until 11 April.
  1. [93]
    Mr Scott Reichman, also an organiser with the ETU, gave evidence of his experience in the 2013 enterprise bargaining negotiations where he asserted the claims of the ETU were largely ignored and none of the 17 items included in its log were accepted.  A similar experience was related by the CFMEU in relation to the current round of negotiations. 
  1. [94]
    The applicants also maintained that the OTE group was disadvantaged by an outcome of the 2013 bargaining process when income protection insurance cover was removed.  Although this loss affected all employees covered by the agreement, the OTE group felt especially aggrieved because, as Mr Raguse explained, he believes outdoor workers are more at risk of serious injury than indoor workers.  This argument however can only be taken so far given that workplace injuries are covered by workers' compensation legislation and would not in an ordinary course attract income protection cover.  Further, the loss of the income protection insurance was compensated for by a substantial increase in personal leave entitlements.
  1. [95]
    A further illustration of the OTE group being marginalised was said to be the tabling by the Council in the current bargaining of a claim for the introduction of flexible rostering.  It was stated or implied that this claim was directed at a reduction in benefits for the OTE group.  However, it seems the proposal also concerned indoor staff.  As there was global opposition to this claim, it was withdrawn.
  1. [96]
    Mr Reichman and Mr Higgins said that the 2013 certified agreement went out to ballot over the objections of their unions.  Despite the ETU advising of its preference to have the agreement arbitrated, the Council, relying on the agreement of the Queensland Services, Industrial Union of Employees (QSU) and the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (ARTBU), sent the agreement to ballot where it was accepted by the majority.  It was the unions' submission that the Council relied on the larger cohort to have the agreement approved, overriding the positions of those small unions that had not agreed.  The perpetual position of being the minority in a ballot in a single agreement for all employees, was one of the reasons advanced by the applicants in support of the scope order. 
  1. [97]
    The AMEPKIU submitted that the grant of the application would ensure that a distinct minority of employees (the OTE group) had the ability to collectively bargain.  The motivation to address real and genuine concerns of the OTE group was based on experience derived from 23 years of bargaining from a "significant minority position".  Disadvantage was in part measured by the Council's response to the AMEPKIU log of claims presented during the 2013 bargaining process.  It was submitted that eight of the nineteen items included in the log were rejected by Council.  It was said that this outcome was a product of a permanent and substantial disadvantage suffered by the OTE group arising from the fact that it comprised only 16% of the total employee group.
  1. [98]
    The AMEPKIU argued that the disparity in employee numbers between the OTE group and the other group or groups resulted in "OTE employment conditions being set by the other larger employee groups, irrespective of the views of the OTE".  The larger groups referred to are the salaried staff and the bus drivers.  The effect of the submission that their numerical superiority in a single agreement setting meant that there would be an inevitable focus on outcomes that might be likely to facilitate the approval of an agreement by these two groups.  It was also relevant that these two other groups were covered by their own modern awards, namely the salaried staff award and the bus transport employees' award.
  1. [99]
    The AWU submitted that the concept of multiple agreements in local government was not new.  The AMEPKIU and ETU drew attention to practices prevailing within other Queensland local governments.  It was put that 17 local governments currently have separate agreements in place covering their OTE workforces.  This outcome demonstrates a practicability and efficacy in the bargaining process which was transferable.
  1. [100]
    The ETU said that its concerns about the inappropriate coverage of groups of employees were primarily based on the minority status of the OTE group, which represented a small proportion of the overall workforce proposed to be covered by a single agreement.  The result was that the employees in the OTE group were not given an opportunity to bargain in a way that could genuinely influence the outcome of negotiations, which was unfair and detrimental to the attainment of terms and conditions that would be beneficial to them.  The view put was that enabling the OTE group to bargain for its own separate agreement will mean that the employees can negotiate issues that are relevant only to them and avoid delays in bargaining associated with negotiations around significant matters that do not apply to the OTE group.  The AWU and CFMEU submissions were couched in consistent terms.
  1. [101]
    The CFMEU position was summarised as follows:

"41. Consequently, the blue collar workers can be deemed to be fairly chosen as they form a minority of the Respondent's workforce, and this had led them to suffer prejudice throughout bargaining as they have previously been outvoted by the majority of the Respondent's remaining workforce."

  1. [102]
    The ETU submitted that:

"37. The effect is that OTE employees have lost the ability to genuinely influence negotiations and their employment conditions as larger cohorts have the capacity to approve an agreement, even if all OTE employees vote against a proposed bargaining instrument."

  1. [103]
    It was the submission of the ETU that such an outcome is inconsistent with a purpose of the IR Act (s 3) to provide a framework for co-operative industrial relations that is fair and balanced.
  1. [104]
    While contesting the relevance of the fairness and efficiency considerations, the CFMEU submitted that a separate agreement for the OTE group would promote fair and efficient bargaining, in that a separate agreement would confine the bargaining process to claims or issues that were directly relevant to conditions of employment of the blue collar workforce.  Consequently the negotiations could be progressed more efficiently and the number and scope of bargaining meetings would be reduced.  It was the CFMEU submission that:

"85. Allowing for a separate agreement for the blue collar workers would better enable the Respondent to discuss and understand the issues specific to that particular group during negotiations.

  1. This is of particular importance as the Respondent is seeking to remove the local area agreements from the proposed agreement, which allows the blue collar workers to negotiate around claims specific to that group.
  1. The blue collar workers have expressed their frustration at their limited ability to negotiate for their working conditions and further, that their working conditions can be set by a larger group of employees that have no insight into their day-to-day working conditions.
  1. A separate agreement covering the blue collar workers would address this issue and therefore, promote harmony and better relationships between the Respondent and the blue collar workers."
  1. [105]
    In response to the Council's arguments about the disadvantages of dual bargaining, the applicants submitted in effect that the determinative factor was not the nature, level or incidence of inconvenience to the Council associated with a dual bargaining process but rather the real and genuine concerns of the OTE group that it was disadvantaged in the bargaining process because of its minority status.

The Evidence and Submissions of the Council

  1. [106]
    The Council resisted the applications on multiple grounds.  The Council was concerned at the impact of the proposed scope order on the continued operation of its single agreement which in large part has facilitated the development of a common set of core conditions across its workforce.  Continuing progress toward the establishment of a common set of core conditions would be undone if the scope order sought were granted.  In the Council's view a requirement to duplicate the enterprise bargaining process, particularly if it involved sequential bargaining, would make the overall task of enterprise bargaining more difficult and less efficient.  Further, the Council considered that outcomes from a fragmented approach to bargaining would diminish career progression and employee access to organisational benefits.
  1. [107]
    The Council in effect argued for the status quo.  It submitted that for the last 23 years it had successfully negotiated a single certified agreement for all of its award based employees.  It was opposed to an outcome which would compel it to split its bargaining model and negotiate two agreements with different groups of employees.  The Council said that it was its preference to maintain a single bargaining instrument.  This approach had enabled the Council to achieve a "substantial and increasing degree of commonality and harmonisation as between conditions for all employees."
  1. [108]
    The Council argued that its objective of achieving a standardised set of core conditions was a legitimate aspiration which laid a foundation for industrial harmony and that it would be unreasonable to disrupt its long term efforts in this regard.  The Council believed that the grant of the proposed scope order had the potential to splinter the common arrangements requiring it to manage multiple differing conditions and expectations.  Further, demarcation lines and competition may result where these exigencies do not presently exist.
  1. [109]
    The Council submitted that a fracturing of the single enterprise bargaining approach will establish competitive bargaining between groups making bargaining difficult and less efficient.  It was concerned about the potential for an endless cycle of enterprise bargaining negotiations, with bargaining extending beyond currently experienced time frames with consequential delays and uncertain benefits.
  1. [110]
    The Council said in effect that it acknowledged that the diversity of working arrangements and working conditions required the inclusion of calling or workplace specific provisions in its enterprise agreement.  It argued that it has made considerable efforts to accommodate differences between the various employee groups and to harmonise conditions where differences need not exist.
  1. [111]
    The Council maintained that difficulties perceived to exist by unions or their members in the bargaining process had been identified and had been addressed during the course of enterprise bargaining over the last 23 years.  Over this time it was submitted that the Council had established a track record of having made considerable efforts to accommodate differences or to harmonise conditions. 
  1. [112]
    The effect of the Council's submissions was that steps had been taken to ensure that the bargaining process associated with a single industrial instrument did not disadvantage or disenfranchise individual groups of employees.  It submitted that the Council conducted "separate but associated 'Schedule' discussions with affected unions and employees where their interests" diverged from the larger cohort.  In this regard the Council drew attention to schedules included in the enterprise agreement.  It was submitted that the content of the schedules resulted from focussed negotiations with particular parties and that the schedules disclose where a differentiation from the common conditions had been agreed.
  1. [113]
    The Council did not accept the unions' evidence about particular employee claims being ignored, and provided examples where it had addressed them in the Schedule negotiations.  The Council submitted that although the unions might believe their claims have not been properly considered because they were rejected, the rejection might be because the claims were outside the bounds of what would be accepted by any sensible employer.  Further, the unions were unable to identify where sensible claims advanced by them were rejected whereas like claims advanced by the other unions were accepted. 
  1. [114]
    The Council was critical of the unions' inability to produce concrete examples of unfairness and inequity either in terms of the bargaining process or bargaining outcomes.  It drew attention to the failure of union or employee witnesses to provide specific examples of unfairness from current or past negotiating rounds. 
  1. [115]
    The Council characterised the case for the applicants as one based on a view that, in circumstances where the OTE group was in the minority in terms of total Council employment, this group of employees had lost "the ability to genuinely influence negotiations and their employment conditions as larger cohorts have the capacity to approve an agreement" even if all of the OTE group vote against the proposed bargaining instrument.  In the Council's submission, if this were the basis or a basis for the applications, the argument had not been made out on the evidence.  In this regard the proposition was that after 23 years of single agreement making, the applicants should have been able to produce evidence of substantial inequity or unfairness.
  1. [116]
    The Council also rejected the view of the applicants that the larger employee groups may be motivated to negotiate outcomes that would have the effect of both advantaging them and at the same time disadvantaging the OTE group: 

"It is to be noted that there is a startling absence of evidence from the larger unions to the effect that they would break ranks from their fellow unions and agree, or encourage their members to agree, to terms of a certified agreement that were unfair to others.  If all unions remained combined as a group, as they generally do, no such unfairness would have any prospect of occurring."

Reasoning

  1. [117]
    Having accepted that s 185(1)(c) does not provide a barrier to grant the applications, then the determination to be made is whether the Commission is satisfied that it is reasonable in all the circumstances to make the order or orders sought by the applicants.
  1. [118]
    The applications are made by four unions who are parties to the OTE award.  Two other unions (the TWU and UV), also parties to the OTE award, either entered an appearance and/or made submissions in support of the applications.  The PGEU was the only union party to the OTE award which did not participate in the proceedings.
  1. [119]
    The unions with the largest memberships in the Council, the QSU and the ARTBU, did not appear in these proceedings or provide any notification to the Commission of their respective views.  We have assumed from their non-participation in these proceedings that their attitude to the applications is neutral.  This position says nothing about the impact on industrial harmony between the OTE unions on the one part and the QSU and the ARTBU on the other.  We accept that the granting of the scope order may impact on future enterprise bargaining within the Council, for example, whether it may prompt other applications or whether the two other unions would be content to continue with a single agreement are real considerations.
  1. [120]
    It is a relevant consideration that enterprise bargaining in the Council has been conducted under a single agreement framework for many years.  The single agreement structure covering all employees has operated despite the operation of multiple underpinning awards since 1994.  The underpinning modern award structure (three awards) has only operated for a little over a year.  Immediately prior to that seven awards underpinned bargaining, while when the agreement was first negotiated in 1994, up to twelve awards had application across Council's employment.
  1. [121]
    The single agreement bargaining framework has evolved over time.  As part of the process a number of schedules have been included in the agreement which facilitate local area discussions and agreements about issues or conditions of specific relevance to designated areas of work.  The Council maintained, and with some validity, that this framework was intended to identify and resolve the concerns of individual work groups in circumstances where collective negotiations were largely preoccupied with core conditions.  It is also relevant that the single agreement operates concurrently with the underpinning awards (except in the case of inconsistency where the agreement prevails) and that differences in the nature of work performed across agreement and award classifications are recognised through the prescription of particular provisions in either the modern awards or the enterprise agreement, including its schedules.
  1. [122]
    The applicants challenged the effectiveness of these arrangements on the basis that schedule negotiations in the past had allegedly not been productive and that their claims had often been ignored or not taken seriously by the Council.  These assertions were denied by the Council which emphasised that bona fide negotiations were entered into and all claims were considered.
  1. [123]
    It is a relevant consideration that there is institutionalised in the bargaining framework a mechanism for particular groups of employees to raise their grievances and advance claims for consideration.  The effectiveness of such a process is not reliably measured by the success rate of employee claimants.  Rejection of claims is not synonymous with them being ignored.
  1. [124]
    Although we accept that the OTE group would like a separate agreement and that the OTE unions have expressed dissatisfaction with the manner in which bargaining has been conducted, the evidence on balance does not support a conclusion that the Council has acted in bad faith or capriciously or has failed to give reasonable consideration to claims made.  Further, because a bargaining party does not succeed in having a claim agreed does not, of itself, mean, that the responding party failed to negotiate in good faith and did not give reasonable consideration to the claim.
  1. [125]
    The applicants complained about delays in scheduling meetings and in progressing enterprise bargaining, but these matters do not substantively bear on the decision to be made.  We accept that there are inherently some inefficiencies in bargaining around a single agreement structure.  However, they do not constitute a valid reason for the abandonment of the current bargaining framework.  We are far from convinced that the creation of two bargaining groups would improve the situation in this respect.
  1. [126]
    Some applicants complained that Council conducted negotiations in a manner which favoured the negotiating positions of the administrative and bus driving groups of employees.  To make good this proposition, the applicants should have produced evidence of a pattern of enterprise bargaining outcomes that disclosed concessions by Council to claims made by the administrative and bus driving groups, in circumstances where sustainable claims by the OTE group of unions had been denied.  For example, to demonstrate this the applicants could have listed the outcomes of previous agreement negotiations and provided an analysis showing that bus drivers or administrative staff achieved greater improvements in wages and conditions or more effectively resisted adverse changes proposed by Council, than did the OTE group of employees.  No analysis of this kind was undertaken.
  1. [127]
    We also note that balloting information did not substantiate any widespread dissatisfaction.  The ballot results from the 2013 vote, which were attached to the witness statement of Mr Muller, do not support the assertions made.  First, the majority of employees from the OTE group participating in the ballot supported approval of the 2013 certified agreement.  67% of Schedule 9 employees supported approval of the agreement, while 59% of Schedule 11 employees supported approval.  Secondly, while some of the applicants' witnesses attributed these results to a level of disillusionment with the process and a poor turn-out, the participation rates of 44% (Schedule 9) and 48% (Schedule 11) were not substantially inferior to the non-OTE groups which recorded rates of 54% and 51% respectively.
  1. [128]
    As has been repeatedly said, the applicants relied significantly on the minority status of the OTE group.  They maintained that the OTE group alone cannot, even if all its members vote in a particular way, influence a vote that a majority of the other groups support.  That much is evident from the breakdown of the employee numbers.  This is likely to be the case whenever a minority group of employees seeks a scope order.  However, absent other factors, such as oppression during bargaining, minority status per se is not conclusive on the question of whether it is reasonable in the circumstances to make a scope order.
  1. [129]
    Indeed it might be possible that the largest components in the OTE group could overwhelm the minority during bargaining for an OTE group agreement were we to grant the scope order applications.
  1. [130]
    Underlying the applicants' submission was a presumption that, either at the negotiating stage or at the balloting stage, the OTE group of employees or the OTE unions would conduct themselves as an homogenous group with shared interests and that all employees in the group would more likely than not vote in the same way. This form of thinking is precariously based for a number of reasons.  First, the OTE group of employees is a disparate group made up of many different categories or classifications of employees. The applicants did not, in their submissions or evidence, demonstrate how they would achieve commonality or uniformity of thinking in identifying key claims at the negotiation level or in achieving a uniform balloting position at the ballot level.  Exhibit BCC 7 discloses that the OTE group is made up of fifteen "job families" with a numeric make up ranging from 4 to 432.  The type of jobs are also very diverse and include labourers, car park attendants, horticultural and gardening employees, parks and garden employees, safety and regulations officers, as well as the various trade groupings.  Secondly, where there was evidence of balloting results (2013 ballot), the evidence did not disclose unanimity and showed a significant level of dissention from the majority position.  For Schedule 9 employees, 33% were in disagreement with the majority position, while for Schedule 11 employees, 41% were in disagreement with the majority view. Thirdly, freedom of association provisions and the use of secret ballots to obtain approval for agreements may result in the emergence of independent views.  Fourthly, the group is represented by seven unions and this in itself could hinder the development of common goals or negotiating responses.  To date, the OTE unions have presented separate logs of claims to the employer when bargaining.  .
  1. [131]
    In our view, the applicants have failed to provide significant evidence of disadvantage, inequity or unfairness associated with the single bargaining framework.
  1. [132]
    We accept that the Council's concerns about the fragmentation of a bargaining arrangement that has stood the test of time are legitimate and should be taken into account in the determination of the applications.  On a common sense view, the creation of an additional and separate OTE enterprise agreement could, over time, lead to the development of multiple enterprise agreements.  Such an outcome emerges as a foreseeable risk to the Council in its ambition to achieve a common set of core conditions.  Nothing has been put in this matter to suggest that such a goal is not desirable. 
  1. [133]
    The effect of the Council's evidence was that the creation of an additional enterprise agreement would complicate payroll administration and increase costs.  While we acknowledge that some additional cost is likely, we accept the submissions of the unions that this factor should not be a significant consideration in the determination of the applications.
  1. [134]
    While we accept that Council may have the capacity to fund and manage an enterprise bargaining framework which requires multiple negotiations, this does not mean that such a process would involve the most efficient or reasonable allocation of Council resources.
  1. [135]
    All the applicants relied substantially on the proposition that the single agreement bargaining framework disadvantaged and prejudiced the OTE group.  The consistent theme was that experience in single agreement bargaining over many years demonstrated that the minority status of the OTE group significantly diminished the influence of the group in negotiations and had led to outcomes which were both detrimental and unfair to the members of that group.  It followed that the applicants shared a belief that the deficiencies identified would be remedied by the grant of the applications.  However, in our view the applicants have failed to provide any substantive evidence of disadvantage, inequity or unfairness associated with the single bargaining framework.
  1. [136]
    We are satisfied that the applicant unions have concerns about the appropriateness of the coverage of the OTE group, thereby satisfying the requirements of s 184(1) of the IR Act.  However, the discretion to be exercised by the Commission under s 185 requires the Commission to be satisfied, inter alia, that "it is reasonable in all the circumstances to make the order".  The applicants' case was based predominantly on claims of unfair and inequitable bargaining arrangements.  As we have indicated, the claims about unfairness and inequity have not been made out.  As was the case in Harbour City Ferries, the purported unfairness complained of by the applicants arose largely from a desire for self-determination.  The Applicants in the present matter too have failed to demonstrate that they have suffered, or will suffer, any manifest detriment to the terms and conditions of the employment of their members should the applications be refused.
  1. [137]
    For the foregoing reasons the applications are dismissed.

Footnotes

[1] Queensland, A review of the industrial relations framework in Queensland, A Report of the Industrial Relations Legislative Reform Reference Group, December 2015, pp 67, 68.

[2] Explanatory Notes, Industrial Relations Bill 2016, p 6.

[3] [2012] FWAFB 2206.

[4] Cimeco Pty Ltd v CFMEU and Others [2012] FWAFB 2206.

[5] Ibid.

[6] [2010] FWAFB 3009.

[7] United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board & Anor [2010] FWAFB 3009.

[8] [2014] FWCFB 1476.

[9] The Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476.

[10] [2016] FWCFB 1151.

Close

Editorial Notes

  • Published Case Name:

    Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and Others v Brisbane City Council

  • Shortened Case Name:

    Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Brisbane City Council

  • MNC:

    [2017] QIRC 87

  • Court:

    QIRC

  • Judge(s):

    Kaufman DP, Fisher IC, Black IC

  • Date:

    27 Sep 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Cimeco Pty Ltd v CFMEU and Others [2012] FWAFB 2206
3 citations
Jump To
Cite 1 - [2012] FWAFB 2206
Cite 2 - [2012] FWAFB 2206
Cite 3 - [2012] FWAFB 2206
Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board & Anor [2010] FWAFB 3009
3 citations
Jump To
Cite 1 - [2010] FWAFB 3009
Cite 2 - [2010] FWAFB 3009
Cite 3 - [2010] FWAFB 3009
The Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd [2016] FWCFB 1151
2 citations
Jump To
Cite 1 - [2016] FWCFB 1151
Cite 2 - [2016] FWCFB 1151
The Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476
3 citations
Jump To
Cite 1 - [2014] FWCFB 1476
Cite 2 - [2014] FWCFB 1476
Cite 3 - [2014] FWCFB 1476

Cases Citing

Case NameFull CitationFrequency
Declaration of General Ruling (State Wage Case 2023) (No 3) [2024] QIRC 1113 citations
Electrical Trades Union of Employees Queensland v Brisbane City Council [2017] QIRC 902 citations
The Electrical Trades Union & Ors v Brisbane City Council; The Australian Workers' Union v Brisbane City Council (No. 2) [2018] QIRC 154 citations
Together Queensland, Industrial Union of Employees v Queensland [2020] QIRC 732 citations
Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Police Service) [2023] QIRC 1412 citations
Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Police Service) and Ors [2023] QIRC 2913 citations
1

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