ENTERPRISE BARGAINING – scope order – s.238 Fair Work Act 2009 – application for scope orders by both Tasmanian Ports Corporation P/L t/a Tasports (Tasports) and The Australian Institute of Marine and Power Engineers (AIMPE) – Tasports operates towage services and employs Engineers (typically represented by AIMPE), Deckhands (typically represented by the MUA) and Tug Masters (typically represented by the AMOU) – in February 2017 Tasports sought a scope order to cover all employees employed in the marine towage operation under one enterprise agreement (the Tasports application) – employees subject of Tasports application currently covered by two separate enterprise agreements: Tasports Towage AMOU and MUA Enterprise Agreement 2013 (2013 AMOU and MUA Agreement) and Tasports Towage Enterprise Agreement 2013 – AIMPE (2013 AIMPE Agreement) (2013 Agreements) – in October 2016 AIMPE sought a scope order with same coverage as 2013 AIMPE agreement, being Tasports employees employed as engineers and covered by Marine Towage Award 2010 (AIMPE Application) – AIMPE application preserved scope of 2013 Agreements as agreement would not cover employees presently covered by 2013 AMOU and MUA Agreement – bargaining history included that in bargaining for the 2013 Agreements, Engineers reached agreement in advance of other unions, but other unions achieved better outcome regarding some allowances – memorandum of understanding then provided Engineers with parity for rates associate with allowances – 2013 Agreements substantially the same in content – three key differences: classifications (Engineers required to have certificate of competency); wages; and allowances – Tasports submitted 2013 Agreements in effect one agreement with history of bargaining showing interdependence – three Notices of Employee Representational Rights (NERR) issued by Tasports did not state intention to reach a single agreement, rather referred to a separate agreement with AIMPE for Engineers – Tasports gave evidence that despite NERRs it made decision to seek one agreement in December 2015 – submitted clauses specific to Engineers could be accommodated within single agreement and that this was Tasports’ intention – in principle agreement (except for scope) between Tasports and AIMPE reached in September 2016 – bargaining then unable to progress because Tasports waiting on information from AMOU and MUA – in October 2016 AIMPE advised of refusal to attend joint bargaining meetings and lodged application – in January 2016 Tasports expressed concerns to unions that bargaining not proceeding efficiently or fairly due to AIMPE position on scope and then lodged application in February 2017 – AIMPE submitted but for scope issue agreement could have been submitted for approval in September 2016 – extensive list of outstanding matters to be negotiated between MUA, AMOU and Tasports – uncontested that bargaining between Tasports and MUA not efficient – Commission satisfied ss.238(1) and (3) of FW Act satisfied in both applications – uncontested that AIMPE met good faith bargaining requirements for purpose of s.238(4)(a) – Commission did not accept AIMPE submission that Tasports not bargaining in good faith – satisfied Tasports created NERRS inconsistent with stated objective of single agreement on legal advice – not capricious or unfair conduct – issuing of NERRs which did not indicate Tasports intent to bargain for a single agreement not relevant to consideration of scope applications but rather application for approval of agreement – group of employees for AIMPE application fairly chosen and not relevant to Tasports application – Commission noted it can only make a scope order when order will promote fairer and more efficient bargaining than currently occurring – different scopes may both allow for fair and efficient bargaining and the relative degree of fairness and efficiently will be relevant to determining which is accepted – necessary to also consider what was the most reasonable scope in the circumstances – desire to protect qualifications of Engineers key reason advance by AIMPE in support of their preferred scope – Commission noted qualifications standards for Engineers regulated by Australian Maritime Safety Authority (AMSA) – commitment by Tasports that proposed single agreement will preserve all existing entitlements – issues concerning only one group able to be addressed in separate bargaining meetings – Commission satisfied qualifications issue could be satisfactorily dealt with under either scope – did not impact on efficiency of bargaining but relevant to fairness – Commission did not consider it unfair to include Engineers in single agreement as no intention by Tasports to change qualifications and regulation by AMSA – also insufficient evidence that shift to one agreement would deal with Tasports’ concern about elitist distinctions and silo effects flowing from separate agreements – Commission held consideration of this factor did not favour either scope – views of employees relevant consideration but little evidence – AIMPE’s evidence that delegates favoured separate agreement supported granting its scope order – consideration of Tasports’ objective to make cultural changes and adopt a ‘one Tasports’ approach favoured its scope order as likely to be easier with one agreement – Commission did not accept Tasports’ submission that history of bargaining suggested likelihood one agreement would be reached sooner than otherwise expected – MUA and AMOU long list of matters to be resolved – Commission found AIMPE’s commitment to not seek flow on of more beneficial entitlements which may achieved by MUA and AMOU in further bargaining a key consideration – decision as to which scope order to grant finely balanced – not satisfied AIMPE’s concerns about qualifications supported proposition AIMPE scope order would necessarily promote fairer and more efficient bargaining – AIMPE’s desire to be masters of own destiny also not a factor in support – increased likelihood of Tasports’ achieving cultural changes if its scope order granted would promote fairer and more efficient bargaining – views of employees in favour of AIMPE application – common ground that AIMPE (and AMOU) efficient bargaining representatives and that bargaining with MUA less than efficient – effect of granting Tasports’ application would be to compel AIMPE back into bargaining arrangement with parties considered by all to be not bargaining efficiently – Commission held that while both scope orders sought would promote fair and efficient conduct of bargaining, on balance, making the scope order sought by AIMPE would better promote fair and efficient conduct of bargaining – reasonable in all the circumstances to grant scope order sought by AIMPE – granting application would break deadlock – not satisfied reasonable in all the circumstances to grant Tasports application – as justification pre-requisites met and satisfied in respect of matters in s.238(4) of FW Act, Commission ordered that there be two agreements – one to cover employees employed at Tasports in Engineering roles on Tasports floating plant as classified in the Tasports Towage Enterprise Agreement 2013 – AIMPE – the other to cover employees employed at Tasports employed in Tug Master and Deckhand roles on Tasports floating plant as classified in the Tasports AMOU and MUA Enterprise Agreement 2013 – order issued. Australian Institute of Marine and Power Engineers, The v Tasmanian Ports Corporation P/L t/a Tasports; Tasmanian Ports Corporation P/L t/a Tasports v Australian Institute of Marine and Power Engineers, The
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