1
Fair Work Act 2009
s.238 - Application for a scope order
United Voice - Northern Territory Branch
v
Commissioner for Public Employment
(B2013/1043)
VICE PRESIDENT CATANZARITI SYDNEY, 21 AUGUST 2013
Application for a scope order - meaning of promotion of fair and efficient conduct of
bargaining - matters relevant to the exercise of discretion - application dismissed.
[1] This application under s 238 of the Fair Work Act 2009 (the Act) was made by United
Voice - Northern Territory Branch (United Voice), which was a bargaining agent in relation
to the proposed Northern Territory public sector enterprise agreement (the Proposed
Agreement). The Proposed Agreement is to replace the Northern Territory Public Sector
2010-2013 Enterprise Agreement, the nominal expiry date of which was 9 August 2013 (the
Current Agreement).
[2] The bargaining representatives in relation to the Proposed Agreement include the
Commissioner of Public Employment (the Employer), United Voice, the Australian
Manufacturing Workers’ Union, the Association of Professional Engineers, Scientists and
Managers Australia, the Australian Education Union, the Australian Nursing Federation, the
Community and Public Sector Union, the Electrical Trades Union, and the Transport
Workers’ Union of Australia.
[3] United Voice sought a scope order to carve out employees covered by the Schedule 4 -
Health Employees (Northern Territory Public Sector) Miscellaneous Workers Union
Provisions of the Current Agreement (Schedule 4), which would enable those employees to
enter into a separate agreement with the Employer.
[4] These Schedule 4 employees fall into the following groups:
Aboriginal Health Practitioners;
Allied Health - Radiographers, Sonographers (Professional Stream);
Health Support - Catering, Housekeeping, Grounds etc. (Physical Stream);
Central Sterilising Technicians (Technical Stream); and
Dental- Dental Assistants and Technicians (Technical Stream).
[5] The application was opposed by the Employer, and although the other bargaining
representatives were notified of the application and the hearing date, they did not want to be
heard on the application.
[2013] FWC 5946
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
[2013] FWC 5946
2
[6] I heard the matter on 8 August 2013, on an urgent basis. At the conclusion of the
hearing, I notified the parties that, due to the urgent nature of the application, if I am not in a
position to issue my decision early the following week, I will issue the relevant order, and
publish my reasons sometime after that. Accordingly, I issued an Order (PR540086) on 12
August 2013 dismissing the application. The reasons for my decision are detailed below.
STATUTORY CONTEXT
[7] Sections 238 and 239 of the Act read as follows:
238 Scope orders
Bargaining representatives may apply for scope orders
(1) A bargaining representative for a proposed single-enterprise agreement may apply
to 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 FWC may make scope order
(4) FWC may make the scope order if FWC is satisfied:
[2013] FWC 5946
3
(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 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, FWC must, in
deciding for the purposes of paragraph (4)(c) whether the group of employees who
will be covered was fairly chosen, take into account whether the group is
geographically, operationally or organisationally distinct.
Scope order must specify employer and employees to be covered
(5) The scope order must specify, in relation to a proposed single-enterprise
agreement:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
Scope order must be in accordance with this section etc.
(6) The scope order:
(a) must be in accordance with this section; and
(b) may relate to more than one proposed single-enterprise agreement.
Orders etc. that FWC may make
(7) If FWC makes the scope order, FWC may also:
(a) amend any existing bargaining orders; and
(b) make or vary such other orders (such as protected action ballot orders),
determinations or other instruments made by FWC, or take such other actions,
as FWC considers appropriate.
239 Operation of a scope order
[2013] FWC 5946
4
A scope order in relation to a proposed single-enterprise agreement:
(a) comes into operation on the day on which it is made; and
(b) ceases to be in operation at the earliest of the following:
(i) if the order is revoked—the time specified in the instrument of
revocation;
(ii) when the agreement is approved by FWC;
(iii) when a workplace determination that covers the employees that
would have been covered by the agreement comes into operation;
(iv) when the bargaining representatives for the agreement agree that
bargaining has ceased.
SUBMISSIONS
[8] United Voice sought a separate enterprise agreement which would cover United Voice
members employed by the Employer in the provision of health services. United Voice
submitted that:
the Act expressly required that the Commission must take into account the objects
within the legislation in the performance of its functions;
the granting of the scope order would promote the purpose or object underlying the
intent of s 3 of the Act;
it was a bargaining representative for the Proposed Agreement;
it had concerns that the bargaining for the Proposed Agreement was not proceeding
efficiently or fairly;
United Voice considered that the Proposed Agreement would cover employees that it
was not appropriate for the agreement to cover;
it has given written notice setting out its concerns to the relevant bargaining
representatives;
it has given the relevant bargaining representatives a reasonable time within which to
respond appropriately;
it is meeting and has met the good faith bargaining requirements;
the scope order would promote fair and efficient conduct of bargaining;
the group of employees to be covered by the scope order was fairly chosen taking
into account that the group is geographically, operationally and organisationally
distinct;
[2013] FWC 5946
5
it was reasonable in all the circumstances to make the scope order;
the making of the scope order would assist in identifying improvements to
productivity and service delivery at the enterprise to which the proposed order
relates;
the bargaining representatives for the Proposed Agreement would not prevent a
manageable collective bargaining process; and
it was the view of the employees who will be covered by the scope order that the
making of the scope order is an important and necessary step to ensure fair terms and
conditions of employment.
[9] In support of its application, United Voice relied on the witness statements and oral
evidence of:
Debbi Lees, Physical Care Assistant, Darwin;
Jacqueline Herriott, Central Sterilisation Technician, Darwin;
Louise Dennis, Aboriginal Health Practitioner, Alice Springs; and
Lisa Ward, Senior Radiographer, Darwin.
[10] In opposing the application, the Employer submitted that:
bargaining for the Current Agreement has and was proceeding in a fair and efficient
manner;
granting a scope order would result in the need to amend the Proposed Agreement to
extract the provisions that apply to Schedule 4 employees, and to make changes to
other areas of the Proposed Agreement that have a relationship with Schedule 4 –
which would result in less efficient bargaining;
the Employer not agreeing to claims, or not making concessions, did not mean
bargaining was not fair, and United Voice could not rely on its own lack of activity
to pursue its claims as an indicator of unfairness;
the submissions and witness evidence showed United Voice had been provided with
the same opportunity as all other employees through their bargaining representatives
to bargain, including the opportunity to set up separate meetings to deal with the very
issues their witnesses claimed were not being addressed in the current bargaining
round;
Schedule 4 employees were not fairly chosen;
there was no basis for United Voice’s argument that Schedule 4 employees were
geographically distinct from other employees in the Current Agreement;
there were many employees employed under other schedules of the Current
Agreement that were also located in regional and remote workplaces across the
Northern Territory and also in the Department of Health. Within Schedule 4 itself
[2013] FWC 5946
6
there were employees who were employed in different geographical locations,
including urban, regional and remote;
United Voice, by its own submission, have shown that all of the occupations under
Schedule 4 were not only distinct from the other occupations in the Current
Agreement, but they have also been shown to be operationally distinct from each
other;
Schedule 4 employees were not organisationally distinct from other employees in the
Current Agreement; and
if a scope order were to be issued that excluded Schedule 4 employees from the
Current Agreement, it would result in a separate agreement for Schedule 4
employees employed in the Department of Health, the Top End HHS and the Central
Australia HHS, and these would be employed side by side with other employees in
the Current Agreement employed in the same classification streams of
“Professional”, “Technical” and possible “Administrative”, but under a different
agreement.
[11] The Employer also submitted that there are other factors that indicate that Schedule 4
employees have not been fairly chosen - namely:
there was a strong history of success (seven previous agreements) over the past 19
years of reaching agreement with employees covered by the Current Agreement;
United Voice had not sought the removal of Schedule 4 employees over this 19 year
period (even though it had pursued this for fire fighters and prison officers 14 and 9
years ago respectively) which indicated satisfaction with the Schedule 4
arrangement;
Schedule 4 employees are employed in the same classification streams as other
employees in the Current Agreement, ie. “Physical”, “Professional”, “Technical” and
“Administrative”;
Schedule 4 employees are closely tied with Schedule 5 employees. Apart from both
being covered by the United Voice, they also share some of the same occupations
(eg. Cook, Gardener, Cleaner); and
the creation of another agreement would cause the Employer , (and the new HHSs
when they come on line) to commit additional resources to bargaining for another
agreement. This would be significant and on-going and would be less efficient than
was currently the case and the outcomes are likely be the same due to the consistent
application of the wages policy.
[12] In support of its opposition to the application, the Employer relied on the witness
statements and oral evidence of:
Mr Damian Robert Doherty, the Principal Consultant Employee Relations in the
Office of the Commissioner for Public Employment; and
[2013] FWC 5946
7
Ms Cheryl Anne Winstanley, the Employee Relations Manager in the Office of the
Commissioner for Public Employment.
CONSIDERATION
[13] There was no contention that United Voice has met the requirements of s 238(3) and
(4)(a), and accordingly, the relevant questions are whether the Commission is satisfied that
the making of the order will promote the fair and efficient conduct of bargaining; that the
group of employees who will be covered by the agreement proposed to be specified in the
scope order was fairly chosen; and that it is reasonable in all the circumstances to make the
order.
[14] In United Firefighters1 the Full Bench said:
“ [55] The relevant consideration under s 238(4)(b) is whether the order will promote the fair
and efficient conduct of bargaining. The implication is that the tribunal should be
satisfied that if an order is made the bargaining will at least be fairer or more
efficient or both than it would be if no order were to be made. The relevant
consideration under s 238(4)(c) is whether the specified group is fairly chosen.”
[15] I have had regard to the evidence of Ms Winstanley and Mr Doherty. It seems clear to
me that the Employer was offering the opportunity to United Voice (and for that matter all
employee bargaining representatives involved) to engage in efficient bargaining. So much is
clear in that the Employer agreed that small negotiation groups could be formed for
occupational specific matters, regional representation was available and that employee
bargaining representatives could raise their specific claims in the general bargaining process.
[16] I am of the view that the evidence indicates that United Voice chose not to play an
active role pursuing their specific claims as it predicated all its actions on achieving a separate
agreement for Schedule 4 employees, either by consent or by way of an order of the
Commission.
[17] In those circumstances, it can hardly be said that bargaining would have been more
efficient by the granting of a scope order when United Voice had not allowed bargaining to
continue as did with all the other employee bargaining representatives in an otherwise
effective manner.
[18] Indeed, the history of negotiations indicates that over many years, successful
agreements have been reached and this was the first occasion on which United Voice had
drawn a line in the sand giving effect to deliberately slowing down the bargaining process.
Therefore, I am not satisfied that the making of the scope order sought would promote fair
and efficient conduct of the bargaining as required under s 238(4)(b).
[19] Although it is clear from the evidence of the four United Voice witnesses that they
saw the scope order as giving them a better chance of a better agreement, it was also freely
acknowledged that each of the four groups the witnesses represented were organisationally
distinct.
1 United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009.
[2013] FWC 5946
8
[20] This leaves an inevitable conclusion that within Schedule 4 there are a myriad of
positions which do not have a common thread, beyond the fact that they all broadly work in
health services and they are all covered by United Voice.
[21] The problem is worsened by the number of occupations which, although not covered
by United Voice, work broadly in health services and are covered by other schedules of the
Current Agreement. In essence, Schedule 4 includes health services employees, but not all
health services employees covered by the Current Agreement – simply the employees who are
members of United Voice. By granting the order sought, it would lead to an absurdity
whereby health services employees, covered by the Current Agreement but not in Schedule 4,
would be excluded from the scope order.
[22] In light of the above, I am of the view that the evidence is inconsistent with the
employees being fairly chosen taking into account the question of whether the group is
geographically, operationally or organisationally distinct as required under s 238(4A).
[23] United Voice has not established under s 238(4)(b), (c) and (d) that:
the scope order will promote fair and efficient conduct of bargaining;
the group of employees have been fairly chosen; and
it is reasonable in all the circumstances to make the order.
[24] Accordingly, in line with the Order2 issued on 12 August 2013, I dismiss the
application.
VICE PRESIDENT
Appearances:
P Tullgren and E Early for United Voice - Northern Territory Branch.
B Mappas and M Hathaway for the Commissioner for Public Employment.
Hearing details:
2013.
Darwin: August 8.
2 PR540086.
OF FAIR RK COMMISSION THE
[2013] FWC 5946
9
Printed by authority of the Commonwealth Government Printer
Price code C, PR540515
