[2013] FWC 9851

[2013] FWC 9851

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Linfox Australia Pty Ltd
(B2013/1556)

COMMISSIONER ROE

MELBOURNE, 16 DECEMBER 2013

Application for a scope order.

Background

[1] This Application for a scope order relates to the bargaining for a replacement agreement(s) to the Linfox Road Transport and Distribution Centres National Agreement 2011 (National Agreement). On 25 October 2013 I issued bargaining orders in respect to this bargaining process. 1 Those orders required that Linfox Australia Pty Ltd (the Respondent or Linfox) provide the National Union of Workers (the Applicant or NUW) with certain documents which had been exchanged between Linfox and the Transport Workers’ Union of Australia (TWU) in the bargaining process.

[2] The National Agreement covers approximately 146 sites and close to 3000 workers. The National Agreement has an expiry date of 31 December 2013. The TWU was the sole bargaining representative for employees in relation to the National Agreement and is covered by that Agreement. It is accepted that a large proportion of the employees covered by the National Agreement are members of the TWU. On 10 September 2013 Linfox issued a notice of representational rights seeking to bargain a new agreement with the same scope as the National Agreement. On 17 and 18 September formal negotiations on the TWU log of claims commenced and Linfox provided the TWU with a written response to the TWU log of claims. However, Mr McCrone gave evidence that the TWU and Linfox had a preliminary meeting concerning the bargaining for the new agreement on 23 July 2013 and a preliminary discussion with Linfox on 19 August 2013 where the TWU log of claims was presented and was responded to in a preliminary manner by Linfox.

[3] One of the largest sites covered by the National Agreement is at Truganina in Victoria. It is a distribution site for Coles Supermarkets and there are approximately 700 employees at the site, approximately 500 of whom are permanent employees covered by the National Agreement. There are approximately 260 day shift employees and the NUW has most of these employees as its members. Mr Toner, a NUW organiser, gave evidence that the NUW has more than 320 members at the Truganina site. The night shift has only about a dozen permanent employees. Mr McCrone, a TWU organiser, gave evidence that the TWU has 198 members who are Linfox employees in the warehouse. Prior to August 2013 the NUW had only a small number of members at the site. Mr Toner, the NUW organiser responsible for the site, gave evidence that the NUW has approximately 15 members at another site in Victoria covered by the National Agreement.

[4] Linfox met with the NUW on 26 September 2013 and the bargaining process was discussed. Linfox allowed the NUW to hold paid meetings of members to consider and endorse a log of claims which was then served on Linfox on 7 October 2013. Linfox and the NUW held a negotiation meeting on 18 October 2013. The NUW undertook to provide responses to certain matters raised and Linfox undertook to respond to those matters prior to a further meeting which was scheduled for 1 November 2013. Linfox also wrote to the NUW on 4 October and 11 October 2013 acknowledging that the NUW has membership at the site and its rights as a representative including as a bargaining representative.

[5] The log of claims and all subsequent meetings have disclosed that one of the key issues which is in contention between the NUW and Linfox is that the NUW is seeking a separate agreement for the warehouse part of the Truganina site bargaining for which would involve the NUW and the TWU whereas it is Linfox’s desire to maintain a single national agreement. Under the NUW scope proposal the drivers employed at the Truganina site would remain covered by the National Agreement. The NUW argue that the warehouse is a geographically and operationally distinct part of Linfox’s operations. There are approximately 20 existing agreements between Linfox and the NUW with similar scope. That is, Agreements which relate to particular warehouse operations and which cover Linfox and the NUW. 2 Linfox accepted that the issue of scope is a matter for negotiation and has responded to the NUW claim for a separate agreement. However, it is clear that Linfox is negotiating for a replacement agreement with the same scope as the National Agreement and is not negotiating for a separate Truganina warehouse site agreement.

[6] A series of bargaining meetings have been held between the TWU and Linfox beginning on 17 September 2013. A series of separate bargaining meetings have been held between the NUW and Linfox beginning on 18 October 2013. The evidence before me established that the bargaining meetings with the TWU have been much more extensive, generally two full days of bargaining on each occasion, than the meetings with the NUW which have generally been for half a day or less on each occasion.

[7] On 4 December 2013 the bargaining process between the TWU and Linfox reached the point where an in principle agreement has been reached between the bargaining representatives. That in principle agreement covers the major matters which were in contention between the TWU and Linfox. The in principle agreement will now be the subject of consultation with TWU delegates and a process of finalising a draft agreement document will be completed. An important part of the process of finalising the draft agreement is a process of documenting some of the local site conditions. If there is a positive outcome from this process and subject to anything which may arise from the process of bargaining with the NUW, it is expected that a proposed agreement will be put to a ballot of employees.

[8] On 10 December 2013 the bargaining process between the NUW and Linfox also progressed. The number of issues of contention between the NUW and Linfox was narrowed and the most significant issue of difference is now the question of the scope of the proposed agreement.

[9] On 10 December 2013 I issued a protected action ballot order in response to an application by the NUW. The order is in respect to the NUW matters at the Truganina site.

[10] In this context I was satisfied that it was important to hear and determine this matter without delay. Delay in making a decision in this matter could potentially deny the NUW the opportunity to effectively bargain for an agreement with the scope it is seeking in the event that I decided to make the order sought. Delay in this matter could also potentially frustrate the ability of the TWU and Linfox to successfully conclude the bargaining process. This decision therefore will not canvass all the material and submissions before me although I have taken all of those matters into account.

Legislative requirements.

[11] The terms of s.238 of the Fair Work Act 2009 (the Act) are as follows:

“238 Scope orders

Bargaining representatives may apply for scope orders

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

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

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

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

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

Bargaining representative must have given notice of concerns

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

(a) has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and

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

When FWA may make scope order

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

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

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

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

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

Matters which FWA must take into account

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

Scope order must specify employer and employees to be covered

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

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

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

Scope order must be in accordance with this section etc.

(6) The scope order:

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

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

Orders etc. that FWA may make

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

(a) amend any existing bargaining orders; and

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

[12] Section 238(4A) applies because the scope proposed by the NUW does not mean that the proposed agreement will cover all employees.

Jurisdiction

[13] I am satisfied that the NUW is a bargaining representative for a proposed single enterprise agreement and hence can make this Application. The NUW outlined in its application and in the Statement of Mr Toner the reasons why it was concerned that the current bargaining for the proposed collective agreement (the replacement for the National Agreement) is not proceeding efficiently or fairly because the agreement will not cover appropriate employees. The NUW also provided such advice to the other bargaining representatives, the TWU and Linfox.

[14] The NUW advised that the bargaining is not proceeding efficiently or fairly because:

● A significant minority of the total number of employees to be covered by the proposed National Agreement are effectively being denied a real voice in the negotiations. The site specific concerns are effectively being ignored.
● Warehouse employees represented by the NUW are not aware of what is being discussed in negotiations between Linfox and the TWU.
● Two negotiations are being held concurrently in circumstances where information about each negotiation is not freely available to all parties.

[15] As the background set out earlier shows the issues in dispute concerning the conduct and scope of bargaining were well known to the TWU and Linfox. All parties were aware of the urgency of resolving this matter. In that context I am satisfied that the NUW provided the bargaining representatives with a reasonable time to respond. I am also satisfied that the NUW has made it clear that it does not consider that the TWU and Linfox have responded appropriately in that from their perspective their concerns about the conduct of bargaining have not been resolved.

[16] Linfox submitted that the evidence of Mr Toner shows that the NUW believed that there should be a separate agreement because it would be of mutual benefit to the NUW (and its members) and Linfox and because it would resolve the biggest outstanding issue between the parties in bargaining. Linfox submits that if these are the reasons then it is clear that the concerns of the NUW are not about the efficiency or fairness of the bargaining.

[17] The legislation does require that the issue of scope be the reason for concerns about the efficiency or fairness of the bargaining. However, this does not mean that there cannot be other motivations for pursuing a particular scope. In fact it is hard to imagine a situation where there will not be other reasons. The issue of scope will often be a matter of bargaining and the positions that the parties take in respect to that will often be motivated by their views about the merits of a particular outcome and how that will affect their particular interests and mutual interests.

[18] I am satisfied that the general scheme of the bargaining provisions of the Act encourages the bargaining parties to resolve the differences between them directly subject to observance of a good faith bargaining process and with the right to access protected industrial action. The Fair Work Commission may assist that process including through conciliation and recommendations under Section 240, majority support determinations, good faith bargaining orders and scope orders. However, the Commission’s role in determining matters in dispute between the bargaining parties is limited to certain specified situations such as where it terminates industrial action. It is trite that the issuing of any scope order will have the tendency to resolve a matter that is in dispute between bargaining parties, that is the dispute over scope. However, determining the scope of bargaining through an order does not determine that an agreement with that scope will eventuate. There have been circumstances where a scope order has been in operation but an agreement with a different scope has been subsequently approved by the Commission. 3 When a scope order is in place the Commission must decide that any agreement reached would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives before approving the agreement (Section 187(2)).

[19] I am therefore satisfied that because the NUW seeks to have a scope order for reasons that include that it would be of mutual benefit to the NUW (and its members) and Linfox and because it would help resolve the biggest outstanding issue between the parties in bargaining does not in itself prevent the conditions in Section 238(1) being satisfied.

[20] The NUW does not have to establish that bargaining is proceeding inefficiently or unfairly only that it holds such concerns and that those concerns arise because of inappropriate scope. I am satisfied that the NUW does have concerns about the efficiency and fairness of the bargaining and the reason for those concerns is the scope of the proposed agreement. The application, the notification to the other bargaining parties and the evidence of Mr Toner at paragraphs 19 and 20 of his statement 4 support such a conclusion.

[21] I am therefore satisfied that the requirements of Sections 238(1) and (3) are met. Section 238(2) does not apply in this case.

[22] Save for one matter which arose during the actual proceedings it is not in contention and I am satisfied that the parties are bargaining in good faith. In the proceedings Linfox raised the matter of an entry which appeared on the NUW Facebook page the day before the hearing. That entry was:

“Will workers at Linfox be forced to take industrial action before Christmas for equality and fair treatment? Check out the latest article from Fairfax Media following on from the fight to reinstate delegates on site after campaigning against bullying. Workers United will never be defeated!” 5

[23] The link was to an article from the Maribyrnong & Hobsons Bay Weekly of 11 December 2013. That article suggested that workers at the Coles warehouse were struggling for higher rates of pay and more breaks and had voted to take industrial action which could disrupt supplies to Coles stores before Christmas. 6

[24] Mr Toner gave evidence that he had provided the NUW person responsible for the Facebook page with the link to the article but Mr Toner had not written the Facebook post. Mr Toner also gave evidence that the article was inaccurate in a number of respects and that he had been misquoted in the article. It is not in dispute that the NUW members at the site have not yet voted on protected industrial action as the protected industrial action ballot order was only issued on 10 December 2013. It will be some time before the AEC conducts the ballot and issues the result of the ballot and then if the ballot is successful the NUW must provide notice in accordance with the Act. Furthermore the nominal expiry date of the National Agreement is 31 December 2013 and so protected industrial action cannot take place until after that date. Linfox suggested that the Facebook page was therefore effectively threatening Linfox with unprotected industrial action and this was a clear breach of good faith bargaining requirements. Mr Toner denied that the NUW was threatening or supporting unprotected industrial action.

[25] It is obvious that the taking of unprotected industrial action or in some cases the threat of such action could potentially be capricious or unfair conduct that undermines collective bargaining. In some circumstances a course of conduct rather than an isolated incident will be necessary to warrant the making of bargaining orders. I consider that the NUW was unwise to post the link to a newspaper article which Mr Toner knew was inaccurate. I accept that the posting on the NUW webpage suggests that the NUW generally approves the contents. However, the nature of the NUW Facebook page is that it does contain many posts from individuals which are not necessarily the views of the NUW and in fact some comments which are clearly not the views of the NUW. Information on a Facebook page cannot be treated like a union bulletin or a union newspaper. Having regard to all of the circumstances I am satisfied that the Facebook page entry is not sufficient to disturb the finding that the NUW is meeting its good faith bargaining requirements.

[26] Therefore, Section 238(4)(b),(c) and (d) are the relevant criteria in this case. Section 238(4)(c) must be read in conjunction with Section 238(4A). I may make the scope order if I am satisfied:

“(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.”

[27] In considering whether the group of employees identified by the NUW in the proposed scope order who will be covered by the proposed agreement was fairly chosen, I must take into account whether the group is geographically, operationally or organisationally distinct. If I consider that negotiations for a single national agreement would result in coverage that is not fairly chosen or is less fair than the scope proposed by the NUW then this may be a relevant consideration in deciding whether or not the conditions in Section 238(4)(b) or Section 238(4)(d) are satisfied.

Full Bench Consideration

[28] In considering the criteria in Section 238(4) I have considered and adopted the approach taken in the decisions of the Full Bench of Fair Work Australia (FWA) in United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board 7 , Cimeco Pty Ltd v AMWU and CEPU8 and Royal District Nursing Service Limited v Health Services Union and Australian Nursing Federation.9

[29] In the MFB case the Full Bench made the following relevant findings:

“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.

In its submissions AiGroup sought to limit the circumstances in which an order might be made. We refer in particular to the submission that a scope order should not be made against the opposition of a bargaining representative unless one of the bargaining representatives is pursuing a scope for negotiations which is unfair. That submission must be rejected. It involves adding an additional requirement to those specified in ss.238(4)(b) and (c). If two parties to an application for a scope order advance alternative positions neither of which is objectively unfair but the tribunal is satisfied of the relevant matters and is disposed to make an order, it would be an error not to do so.

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. It may be that a number of groupings might be fair – what this criterion requires is that the group which is included in the scope order is fairly chosen. This issue is also dealt with in s.238(4A), which we discuss shortly.

We disagree with the UFUA’s suggestion that as a matter of statutory construction preference ought to be given to agreements that cover as much of an enterprise as possible. Section 238 permits a scope order which does not apply to the whole enterprise. In such a case the tribunal, in deciding whether the group is fairly chosen, must take into account whether the group is distinct in one of three specified respects. It may follow that if the group is not distinct in one of those respects it may not have been fairly chosen, but it does not necessarily follow in all circumstances. For present purposes it is not necessary to speculate upon the circumstances in which the conclusion might not follow.” 10

[30] The MFB Full Bench accepted that in considering the views of affected employees the views expressed by particular employees and the relevant union are relevant. In that case there were a significant number of relevant employees who were individual bargaining representatives who did not express a view in the proceedings. The Full Bench decided that:

“While the failure of the bargaining representatives to make any submissions does raise some questions, we have decided to deal with the matter on the basis that there is no significant evidence of opposition to the UFUA application by Commanders”. 11

[31] In Cimeco the Full Bench made the following findings about the approach to determining if the group of employees to be covered has been fairly chosen:

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

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

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

[22] To the extent that it is suggested that the interests of the excluded employees are irrelevant we reject that submission. In evaluating whether the group to be covered by the agreement has been fairly chosen it is entirely appropriate to have regard to the consequences of that choice, that is, which employees have been excluded from the agreement.” 12

[32] Linfox submitted that the legislation prioritised the making of a good faith bargaining order over the making of a scope order. Linfox point to the following observation in the Explanatory Memorandum:

“983. These same preconditions apply for bargaining orders (except that for bargaining orders, FWA has the ability to waive the requirement to give the written notice of concerns). This requirement is included to encourage bargaining representatives to consider resolving issues surrounding the scope of a proposed enterprise agreement through the good faith bargaining process. It also ensures that it is no more expedient to obtain a scope order rather than a bargaining order.”

[33] I am not satisfied that the legislation suggests that a scope order should not be granted where the parties could resolve the matter through a good faith bargaining order. All that the Explanatory Memorandum is identifying is that there is an obligation for bargaining parties to have the opportunity to consider and respond to the concerns of a bargaining party prior to the making of a scope order application and that this is designed to ensure that the parties seek to resolve this through the good faith bargaining process before seeking an order. The good faith bargaining process is a reference to bargaining in compliance with the good faith bargaining requirements. I do not consider that the Explanatory Memorandum is suggesting that this is necessarily through resort to good faith bargaining orders. In fact it will often be desirable to seek scope orders early in the bargaining process.

Views of Employees

[34] The views of employees and bargaining representatives are relevant to the consideration of this matter. I am satisfied in the circumstances of this case that the TWU effectively represents the views and interests of its members and that the NUW effectively represents the views and interests of its members. The petition provided by the NUW in proceedings reinforces this conclusion. I am satisfied that the petition shows that a significant proportion of the employees in the warehouse support the NUW claim for a separate agreement and believe that they are not having adequate say or influence in the bargaining process for a national agreement. Approximately half of the employees of Linfox at the warehouse signed the petition.

[35] Linfox produced evidence of a small number of duplicate names on the petition, a small number of labour hire employees who had signed the petition and two examples where there was some doubt about the signature of the employee. The TWU produced evidence that a small number of employees have changed their mind or say that they did not understand what they had signed. Overall I am not satisfied that these factors seriously undermine the overall validity of the petition as an expression of the views of the employees at the warehouse, particularly those who are members of the NUW.

Is the group to be covered fairly chosen?

[36] I am satisfied that the group who would be covered if the proposed scope order is in place would be a group which is “geographically, operationally or organisationally distinct.” It would be operationally and geographically distinct in that it would be confined to the warehouse operations at the Truganina site. The National Agreement is also geographically and operationally distinct in that it applies to the operations at 146 sites specified in Appendix 5 to the National Agreement. It is accepted that there are a number of sites which are not covered by the National Agreement but which are covered by separate, site or operationally specific agreements. The number of sites and employees covered by the National Agreement exceeds those covered by separate agreements.

[37] I am satisfied that either scope is fair in the sense that its choice is not arbitrary or discriminatory. I am also satisfied that either scope is fair in the sense that the selection would not undermine collective bargaining or other legislative objectives. The existence of approximately 20 site or operationally distinct warehouse agreements covering the NUW and Linfox demonstrates that this is the case.

[38] The interests of the employer and the interests of employees who will be covered and who will not be covered are also relevant considerations.

[39] Given that Linfox already has a number of separate warehouse agreements I do not consider that the existence of a further warehouse agreement would significantly affect productivity or other business interests. However, I do accept that Linfox has an objective to maximise the scope of the national agreement and that there are significant advantages for Linfox in the achievement of this objective. This includes the administrative advantages of consistency of conditions, the increased efficiencies associated with management of consistent conditions, the enhanced ability to transfer employees where conditions are consistent, the efficiencies in the management of workplace disputes where there are consistent conditions, the potential reduction in industrial disputation, and the enhanced capacity to develop consistent strategies to enhance productivity and workplace cooperation. Having one additional site which is not included in the National Agreement would reduce but not fundamentally compromise these advantages. However, I accept that Linfox and the TWU would have legitimate concern that if one site is able to opt out of the National Agreement this could lead to pressure in other sites.

[40] I also accept the submissions and evidence of the TWU that the TWU and the members they represent achieve significant advantages from a national agreement. This includes enhanced bargaining power, capacity to address strategic claims, enhanced capacity for communication between representatives at different sites, and enhanced capacity to influence the strategic direction of the company including productivity, employment security and workplace cooperation. It is possible that the TWU objectives will still be met even if the Truganina site is not part of the National Agreement.

[41] I accept the submission and evidence of the NUW that the particular concerns of warehouse workers at the Truganina site may be more closely addressed in a separate agreement. To some extent this may true of each particular site covered by the National Agreement but this must be balanced against the advantages of a national agreement. The National Agreement contains many site specific provisions and so it is not impossible that these matters can be addressed through a National Agreement.

[42] The interests of Linfox, the employees and the TWU and NUW do not alter my conclusion that either scope meets the fairly chosen condition in Section 238(4)(c). However, some of these considerations may also be relevant to the efficiency, fairness and reasonableness considerations. The circumstances of this case are not such that I could conclude that the NUW proposed scope is more fairly chosen than the current scope of the National Agreement.

[43] The scope proposed by the NUW meets the fairly chosen condition in Section 238(4)(c).

Efficiency and Fairness.

[44] I have carefully considered the evidence. In the main I found Mr Toner, Mr Bailey and Mr Manolitsis to be straightforward and helpful witnesses for the NUW. Ms Neill for Linfox was similarly straightforward and helpful as was Mr McCrone for the TWU. The conflicts in the evidence are not decisive in the circumstances of this case. It would be industrially naive to assume that the only communications between the parties during bargaining for a national agreement of this sort are those which occur formally in negotiating meetings. For this reason it is more important to look at the overall character of the bargaining process than to look at the minutiae of each formal contact.

[45] I am satisfied that Linfox told the NUW on 26 September 2013 that the TWU was unlikely to participate in the negotiations for the National Agreement if the NUW turned up to the negotiations and that therefore the NUW was not welcome to attend. During the proceedings for the good faith bargaining order in late October 2013 the NUW initially sought an Order that it be able to attend the national negotiations but it did not press that aspect of the orders at the hearing.

[46] Mr McCrone provided evidence, which was confirmed by Mr Bailey, that on 17 October 2013 Mr McCrone had in fact provided Mr Bailey with copies of the TWU log of claims, the Linfox response and the summary document. Mr Bailey says that he put the documents in his locker and did not look at them or provide them to the NUW officials. Mr McCrone also gave evidence that on the same day he offered a copy of the TWU log of claims, the Linfox response and the Linfox log of claims to two NUW organisers at the site one of whom was Mr Toner. Mr McCrone says that the offer was refused. Mr Toner says that the document did not appear to be the full log of claims and that the document being circulated on site was not a proper document because it was not signed by the TWU Secretary. I accept the submissions of Linfox and the TWU that this evidence raises some question marks about the sincerity of the NUW concern that lack of access to information was impeding the fair conduct of the bargaining.

[47] The NUW and its members have had access to a considerable amount of information from the TWU/Linfox negotiations. Linfox has, particularly since the making of the good faith bargaining order, made efforts to keep the NUW informed. However, the real dynamic has been that the NUW has had marginal capacity to influence the progress of the negotiations for the national agreement in its separate negotiations with the company. Mr Toner effectively conceded that he understated the extent of the information exchange but this did not undermine the examples he gave concerning the points at which information exchange was inadequate. The NUW has done its best to bargain effectively in these circumstances and the fact that it has done so does not negate the evidence of inadequacies in the process.

[48] The detailed work and hard bargaining has been between the TWU and Linfox and the outcomes have essentially been reported to the NUW and only in general terms. Important detail is contained in the bargaining working document which has been utilised by the TWU and Linfox during the bargaining process. In this respect the inconsistency between the evidence of Ms Neill and Mr McCrone about the nature of this document was relevant. This was the only point where I felt that the evidence of Ms Neill was less than fulsome. It is totally understandable that Ms Neill and Mr McCrone may wish to protect the confidentiality of aspects of the negotiation process. This is often important to its effectiveness. However, it reinforced my conclusion that on the major issues affecting the proposed replacement national agreement the NUW has only been able to have marginal influence and in that sense the provision of information has been more about the form than about the substance of bargaining. In reaching this conclusion I have taken into account the evidence of Ms Neill that at one stage in the process the Linfox wages offer was provided to the NUW in advance of it being provided to the TWU. I accept that this was probably the case in a formal sense however I note the evidence of Mr Manolitsis that the offer was known to Mr Manolitsis through TWU delegates prior to it being raised at the meeting with the NUW.

[49] In my decision in the good faith bargaining matter I made the following observation:

“Collective bargaining is a process. It is not a unilateral act by one party to present a proposal on a take it or leave it basis. The bargain is concluded by a collective decision of the employees who will be covered by the agreement. That decision is informed by the bargaining process. Those involved in that process have right to bargain collectively. That right will often be undermined if bargaining representatives are denied the opportunity to meet with the employer as a composite group and or if information about the proposals made by a bargaining party and or the responses to those proposals is denied to other bargaining representatives.” 13

[50] Of course there may be circumstances where there are parallel bargaining processes for an agreement which are consistent with good faith bargaining. However, it will be difficult for such processes to be fair and efficient. If bargaining was simply a process where documents or positions are exchanged, then there would be no problem so long as everyone involved has access to all the documents exchanged. However, bargaining is generally a dynamic process where parties test views, raise matters in a conditional manner, and listen to others and are influenced by them. Often how something is said is as important as what is said. Report backs on bargaining will be strongly influenced by the interests of the bargaining party making the report. It is very difficult for a bargaining party to have the benefit of and have sufficient information about the process unless they participate in it.

[51] I am satisfied that the parallel negotiation processes have not been particularly inefficient from the perspective of the TWU and Linfox. It has involved Linfox in more meetings than would have been the case if there had been a single negotiating forum but Linfox perceived this as more efficient than having the national negotiations stall in circumstances where they believed that the TWU would not participate in joint negotiations. In saying this I note that I do not know what the TWU would have actually done had Linfox or the NUW insisted upon joint negotiations or if there had been direct discussions with the TWU about this issue.

[52] However, I am satisfied that the parallel negotiation process has been significantly less fair to the NUW and the members it represents than would have been the case if there had been joint negotiations. This is because it has negatively impacted on their capacity to influence the outcome on major aspects of the national agreement. The NUW had access to information about the topics discussed at the TWU/Linfox negotiations. Information about progress at brief report back meetings undoubtedly filtered back to the NUW because some of their members and delegates attended the TWU briefings. However, this does not give information about the real dynamic. The access provided to the NUW and its membership to reports on the progress of bargaining from the TWU and Linfox has improved the fairness and efficiency of the process. However, it is inevitable that these reports reflect the interests of those providing the reports and this creates inefficiency and unfairness in the process from the perspective of the NUW. The absence of access to the working document used by the TWU and Linfox in negotiations significantly reduces the capacity of the NUW to understand the real nuances and dynamic of the negotiations. However, providing access to such a dynamic and conditional document at an early stage would undermine its purpose and may to some extent put the efficiency of the TWU/Linfox bargaining process at risk.

[53] I do not consider that Linfox could have provided much additional information to the NUW without compromising the effectiveness of the TWU/Linfox negotiations. The essential unfairness in the circumstances of this case derives from the parallel negotiation process. Linfox is correct that otherwise a satisfactory negotiation process has proceeded with both the NUW and with the TWU in the sense that claims have been considered and responded to, information has been exchanged and significant compromises have been made by all involved towards making an agreement.

[54] Taking into account the objective facts concerning what has happened in the negotiation process and what information has been exchanged together with my assessment of the affect of that process on the interests of each of the bargaining parties I am satisfied that there has been some unfairness in the process. I am not satisfied that the process has been inefficient.

[55] However, the unfairness in the conduct of bargaining could be overcome through a single negotiation process. A single negotiation process may have been achieved through direct discussions with the TWU or alternatively the NUW could have pursued good faith bargaining orders to require common meetings. A single negotiation process would have improved the efficiency and fairness of the bargaining for the NUW without creating any significant inefficiency or unfairness for the TWU and/or Linfox.

[56] This can be contrasted with the effect on fairness and efficiency of the granting of the scope order. Given that Linfox and the TWU are in the process of finalising an agreement the making of a scope order at this late stage of the bargaining process would create significant unfairness for the TWU and Linfox in that it would compromise and complicate their bargaining objectives. Their bargaining objectives include the maintenance of the scope of the current National Agreement and the early finalisation of such an agreement. The making of the scope order at this late stage of the bargaining process would mean that some of the unfairness of the earlier process would be redressed for the NUW in that Linfox would be required to address the NUW issues more directly. I accept the submission of the NUW that there are already effectively two separate negotiation processes and that there is a real prospect that agreement can be reached in both processes of negotiation. It is likely that although the processes would change in that the TWU would become involved in the finalisation of the separate site warehouse agreement there would not be much change to the efficiency of the bargaining process. I agree with Linfox that the granting of the order at this stage would not make much difference to the exchange of formal information but there would probably be better and more direct exchange of information in the bargaining meetings themselves. There may still be some issues about exchange of information between the TWU and the NUW however joint site negotiations would probably reduce these difficulties.

[57] In summary I accept that there is some unfairness in the current conduct of bargaining for the NUW and the members it represents. However, I must consider if the making of the order sought would promote fairer and/or more efficient conduct of bargaining. I must consider this question in the context of the present state of the conduct of bargaining. There might have been different considerations if the matter had been before me in early October 2013 as opposed to mid December 2013. The differences between the NUW, the TWU and Linfox on an acceptable outcome to the bargaining on the major wages and conditions matters to be included in an agreement are now quite narrow.

[58] In the current situation the granting of the order will not overcome the unfairness produced by the parallel negotiation process. The die has been cast on the major outcomes form the bargaining process. Linfox has agreed to provide the draft agreement document which reflects the outcome of the TWU/Linfox bargaining to the NUW and will meet further with the NUW to address concerns from that process. Any unfairness concerning the process is largely in the past. The issue of significance which will be influenced will be the question of scope and that is a matter of hard bargaining between the parties. I am not satisfied that there will be any overall improvement in fairness when the effect on the overall conduct of bargaining and the effect on the NUW, the TWU and Linfox are considered.

[59] It is commonplace that a particular minority group of employees within the scope of a proposed agreement may feel that they are in danger of being swamped by the interests of the majority. I have no doubt that to some extent this is how the NUW and its members feel in the circumstances of this case and this in part motivates their desire for a separate agreement. However, the weight that this should be given in determining whether or not a scope order will improve the efficiency and fairness of the bargaining and whether or not it will be reasonable to grant the order will depend upon the circumstances. The extent of the special interests and potential disadvantage, the impact on the interests of the other bargaining parties, the history of conduct in bargaining, and the stage of the bargaining are all relevant matters which I have considered.

[60] In the circumstances of this case there are many warehouse employees at a number of other sites who are part of the National Agreement. This includes members of the NUW in another worksite in Victoria who remain covered by the National Agreement. The national agreement is the status quo. The evidence has not established that major problems of fairness have been created by that scope or that fairness will be significantly enhanced by a change in scope. There is no evidence before me that inappropriate, discriminatory or unfair conditions are likely to be imposed upon the workers at the Truganina warehouse. There is some disadvantage to the interests of the other bargaining parties if the scope order was to be granted and this disadvantage is greater because of the late stage of bargaining.

[61] A scope order by necessity will often alter the balance of bargaining power however the fairness of such an intervention in the bargaining process is something which I must carefully consider in the particular circumstances of each case. In this respect I agree with counsel for the TWU that it is relevant to consider that it was open to the NUW to seek a good faith bargaining order to address the key unfairness in the bargaining which related to the separate negotiation process and the NUW abandoned its pursuit of orders to address this question. I also agree with counsel for the TWU that the evidence suggests that the NUW made inadequate attempts to resolve the situation by seeking information from and a resolution of issues concerning the bargaining arrangements directly with the TWU.

[62] The NUW suggest that one of the elements of unfairness is that their capacity to utilise protected industrial action is theoretical rather than real because the TWU and Linfox are likely to finalise an agreement before the NUW and its members have the opportunity to exercise their rights to protected industrial action. I accept that the right to utilise protected industrial action in bargaining is an important consideration. However, where the bargaining parties are acting consistent with their good faith bargaining requirements the Commission should be reluctant to interfere with legitimate bargaining tactics utilised by the bargaining parties. There is nothing inherently unfair in bargaining parties endeavouring to resolve a replacement agreement prior to the nominal expiry date of the existing agreement.

[63] Having weighed up the relevant evidence and considerations I am not satisfied that the conduct of bargaining will be fairer and or more efficient if the scope order is granted.

Is it reasonable to make orders to make the orders?

[64] Given that I am not satisfied that the requirement in Section 238(4)(b) is met I cannot make an order so it is not necessary for me to consider this matter.

Conclusion.

[65] As I am not satisfied that the requirements of the legislation in Section 238(4) are met the application is dismissed.