REASONS FOR DECISION

Fair Work Act 2009
s.238—Scope order

Construction, Forestry, Maritime, Mining and Energy Union
v
OS MCAP Pty Ltd T/A Operations Services
(B2021/246)

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union
v
OS ACPM Pty Ltd
(B2021/269)

s.238—Applications for scope orders – Relevant principles – Consideration of competing applications made by two union bargaining representatives – Relevance of employer position in relation to scope where counter application not made by employer – Whether impasse in bargaining caused by scope or structure of agreements proposed by employer – Finding that making the order will not promote the fair and efficient conduct of bargaining – Finding that is not reasonable in all the circumstances to make either order – Circumstances where there are two competing union scope applications relevant to whether reasonable to make order – Applications dismissed.

SUMMARY

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) apply under s. 238 of the Fair Work Act 2009 (FW Act) for scope orders relating to two employers: OS MCAP Pty Ltd and OS ACPM Pty Ltd. Both employers are companies within an asset of BHP known as Operations Services (OS).

[2] OS is a production and maintenance services provider to any BHP Minerals Australia business group (BHP) operations. OS ACPM (OS Maintenance) provides maintenance services and OS MCAP Pty Ltd (OS Production) provides production services. The principal operations in which OS Maintenance and OS Production undertake work are BHP’s black coal mining and iron ore mining operations which I will refer to as metalliferous mining (ie. including metals, minerals, ores, phosphates, gemstones, mineral sands, uranium and other radioactive substances) 1 or as the parties refer to that sector, non – coal mining. Bargaining initiated by OS Maintenance and OS Production has been proceeding for two agreements: an OS Maintenance agreement covering all maintenance employees across the black coal and metalliferous mining industries and an OS Production agreement to cover all production employees across the black coal and metalliferous mining industries.

[3] The CFMMEU scope application, filed on 9 April 2021, proposes an agreement to cover all employees of OS Production and OS Maintenance performing work covered by Schedule A of the Black Coal Mining Industry Award 2010 (Black Coal Award) undertaking production and maintenance activities in the black coal mining industry. The CFMMEU application states that the Union is not a bargaining representative of employees working on “non-coal operations” and that the scope of an enterprise agreement covering those employees is a matter for the relevant bargaining representatives. The CFMMEU also observes that a single enterprise agreement covering non-coal employees undertaking maintenance and production work would seem to be logical.

[4] The AMWU proposes three agreements covering OS Maintenance employees as follows:

•  Queensland employees performing maintenance in the black coal industry;

•  Western Australian employees performing maintenance work in the metalliferous mining industry, excluding rail; and

•  New South Wales employees performing maintenance work in the black coal industry in the unlikely event that OS Maintenance employs persons at the Mt Arthur Mine in that State although this claim was not pressed.

[5] The AMWU does not express a view about the scope of agreements covering production employees of OS Production, in the areas it seeks to establish maintenance agreements. The Australian Workers Union (AWU) supports the CFMMEU’s application. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) supports the AMWU’s application and in the alternative, supports the scope proposed by the CFMMEU.

[6] OS Production and OS Maintenance oppose both applications and each seeks to continue bargaining for separate production and maintenance agreements, with both agreements covering black coal mining and metalliferous mining operations. Neither OS Maintenance nor OS Production made an application for a scope order in response to the CFMMEU or AMWU application.

[7] There is some history to the bargaining. OS Production and OS Maintenance respectively issued notices of employee representational rights in August 2018 and commenced bargaining with employees for an OS Maintenance agreement and an OS Production agreement. Each employer invited employees to vote on a proposed agreement and in October 2018, applications were made to the Commission for approval of the agreements. The applications were determined together and the agreements were approved. 2 In each case, on appeal to a Full Bench of the Commission, the approval decisions were quashed3. On rehearing, the applications for approval of the agreements were refused by the majority of the Full Bench, which found that the agreements were not genuinely agreed4.

[8] Bargaining for those proposed agreements continued and the present applications were made after nine meetings were conducted, five in relation to the proposed production agreement and four in relation to the proposed maintenance agreement. At the time the applications were heard seven meetings had been conducted for the proposed OS Maintenance agreement and six for the proposed OS Production Agreement.

[9] By an Order issued on 29 November 2021, I dismissed both the CFMMEU and the AMWU applications. These are my reasons for deciding to dismiss the applications. I regret that I was not in a position to provide written reasons to the parties at the time the Order was made. I caused my Associate to correspond with the parties to inform them of this and to acknowledge that the reasons would not be provided within the 21 day period for any application to appeal to be made. The parties were further informed that I had no issue with my correspondence being referred to by any party seeking to appeal.

PROCEDURAL HISTORY OF THE SCOPE APPLICATIONS

[10] The scope applications were allocated to me and listed for Mention on 21 April 2021. In addition to Directions for hearing, the Mention dealt with whether the applications should be joined so that evidence in one was considered as evidence in the other or whether the applications should be heard together for convenience, without formally being joined. No formal application for joinder was made and the matters were listed for hearing on the basis that they would be heard together.

[11] Permission for the parties to be legally represented was granted pursuant to s. 596 of the FW Act, on the basis that I was satisfied that it would allow the matters to be dealt with more efficiently taking into account its complexity. I was also satisfied that no issues of fairness arose on the basis that all parties were represented by experienced Advocates or lawyers. The CFMMEU was represented by its National Legal Officer Mr Adam Walkaden. The AMWU was represented by Mr Robert Reed of Counsel instructed by Maurice Blackburn Lawyers. OS Production and OS Maintenance were represented by Mr Michael Coonan of Herbert Smith Freehills. The AWU was represented by its Senior National Legal Officer Mr Stephen Crawford and made submissions. Mr Michael Wright, National Assistant Secretary, appeared for the CEPU at the commencement of the hearing and after indicating the CEPU’s position, did not seek to participate further.

[12] At the commencement of the hearing, the AMWU, CFMMEU and CEPU submitted that the evidence in one matter should be considered as evidence in the other. In this regard, it was submitted that the AMWU and the CFMMEU have competing applications and that the Commission should be informed as to what witnesses for each said about the scope sought by the other. It was also submitted that no issues of fairness arose on the basis that the parties had filed material in both matters in response to Directions and all parties knew what other parties said in relation to both applications. Further, it was submitted that any of the material might be objected to on the grounds of relevance. OS Production and OS Maintenance did not agree that the evidence in one matter would be the evidence in the other matter if inferences were to be made and conclusions drawn to their detriment, and otherwise did not take a position in relation to whether the applications should be joined.

[13] After considering the positions of the parties, I determined that the matters would be joined and that the evidence in one matter would be evidence in the other, to the extent that the evidence was relevant. I took this course on the basis that the CFMMEU and the AMWU had structured their submissions in this way, and that no issues of fairness arose on the basis that the Directions had required material, including outlines of submissions and statements of evidence from witnesses, to be filed with the Commission and served on all other parties, in advance of the hearing. I also indicated to the parties that given that they were represented by lawyers, if any issue of prejudice arose during the hearing in relation to the evidence given in one matter being taken to be evidence in the other, I would expect that the party who took issue would raise it so that concerns could be dealt with. No such objections were raised.

[14] Evidence for the CFMMEU was given by:

•  Mr Peter John Colley, National Research Director of the Mining and Energy Division 5; and

•  Mr Mitch Hughes, Senior Vice President of the Queensland Branch of the Mining and Energy Division 6.

[15] Evidence for the AMWU was given by:

•  Ms Cassandra Baynton, Maintenance Technician OS Maintenance 7;

•  Mr Mitchell Brotherton, Maintenance Worker OS Maintenance 8;

•  Mr Mark Malone, Service Person Maintenance OS Maintenance 9;

•  Mr Joshua John Allen, Maintenance Technician OS Maintenance 10;

•  Mr Renee Jones, Technical Maintenance OS Maintenance 11;

•  Mr Terrence Lee Taylor, Boilermaker OS Maintenance 12;

•  Mr Trevor Charles Hawken, Maintenance Technician OS Maintenance 13;

•  Mr Jacob Boss, Maintenance Technician OS Maintenance 14; and

•  Mr Kegan Wilson Scherf, Industrial Advocate Queensland Branch of the AMWU 15.

[16] Evidence for OS Production was given by Ms Allison Chauncy, Principal Employee Relations, BHP Coal Pty Ltd. Mr David Ruggieri, Manager Maintenance, OS Maintenance and Ms Jessica Morkel, Principal Employee Relations, BHP Coal Pty Ltd gave evidence for OS Maintenance.

[17] It was necessary to interpose the evidence of Ms Chauncy, when Mr Scherf became ill and was unable to give evidence in the three days initially scheduled for the hearing. Initially, Mr Coonan sought that witnesses for OS not give evidence prior to Mr Scherf giving his evidence. When it became clear that Mr Scherf’s incapacity would continue past the three days initially scheduled for the hearing, Ms Chauncy’s evidence was brought forward on the proviso that permission could be sought by the Mr Coonan to recall Ms Chauncy if necessary, after Mr Scherf had given his evidence. Three additional days of hearing were scheduled and Mr Scherf, Ms Morkel and Mr Ruggieri gave their evidence on those days. Mr Coonan did not seek to recall Ms Chauncy.

LEGISLATION

[18] The provisions of the FW Act setting out the powers of the Commission to make a scope order are set out in s. 238 as follows:

“238 Scope orders

Bargaining representatives may apply for scope orders

(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:

(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 to give notice of concerns

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

(a)  has taken all reasonable steps to give a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and

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

(c)  considers that the relevant bargaining representatives have not responded appropriately.

When the FWC may make scope order

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

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

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

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

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

Matters which the FWC must take into account

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

Scope order must specify employer and employees to be covered

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

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

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

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 the FWC may make

(7)  If the FWC makes the scope order, the 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 the FWC, or take such other actions, as the FWC considers appropriate.”

[19] The good faith bargaining requirements referred to in s. 238(4)(a) are established by s.228 of the Act and are as follows:

“228 Bargaining representatives must meet the good faith bargaining requirements

(1)  The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a)  attending, and participating in, meetings at reasonable times;

(b)  disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c)  responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d)  giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;

(e)  refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f)  recognising and bargaining with the other bargaining representatives for the agreement.

Note:          See also section 255A (limitations relating to greenfields agreements).

(2)  The good faith bargaining requirements do not require:

(a)  a bargaining representative to make concessions during bargaining for the agreement; or

(b)  a bargaining representative to reach agreement on the terms that are to be included in the agreement.”

APPROACH TO CONSIDERATION OF SCOPE APPLICATIONS

[20] The cases in relation to the approach to consideration of scope applications were extensively canvassed in the submissions of the parties. Generally, s. 238 of the Act is directed to the fair and efficient conduct of bargaining and is not a generalised power in the Commission to determine the scope of proposed agreements. Fairness and reasonableness are relevant in the exercise of the discretion under s.238 of the Act but it remains the case that the purpose of the order is to promote the fair and efficient conduct of bargaining. 16

[21] The scope of an agreement is a matter that can of itself, be the subject of bargaining. 17 As a Full Bench of the Commission observed in BRB Modular v AMWU18 the scheme of the Act is that enterprise agreements are made by the employer and employees covered by them, and the terms of agreements, including their scope are matters for the parties to address in the bargaining process. the Full Bench in that case went on to observe that the involvement of the Commission in the terms of enterprise agreements is very limited but that one exception is when the test for issuing a scope order is satisfied.19 Later in that decision the Full Bench also observed that the scope of an enterprise agreement is frequently the subject of competing claims, and it will rarely be appropriate to say that one scope proposal is wrong and another correct. There may be justification for preference one way or another and hence it is usually left to the parties to determine in the overall context of the bargaining framework.20

[22] The matters in s. 238(1) – (3) are prerequisites to the making of an application for a scope order. While the test for the purposes of s. 238(1) as to whether a bargaining representative has concerns that bargaining is not proceeding efficiently or fairly might be subjective, the validity of those concerns is also subject to a reasonableness test, such that the concerns must be reasonable and logical 21, and are not fanciful or asserted merely for the purpose of attracting jurisdiction.22 The requirement in s. 238(2) is a question of fact as to whether or not a single interest declaration is in operation in relation to the agreement.

[23] Section 238(3) provides that a bargaining representative may only make an application for a scope order if the bargaining representative has taken all reasonable steps to give written notice setting out its concerns that bargaining is not proceeding efficiently and that the reason is the coverage or scope of the agreement. In AMIEU v Woolworths 23 a Full Bench of the Commission considered whether the AMIEU had met the requirements in s. 283(3)(a) in the terms it was then framed, which simply required a written notice setting out concerns to be given to relevant bargaining representatives. In that case, the AMIEU had copied other bargaining representatives into a notice it provided to Woolworths setting out its concerns and seeking a response. The circumstances in that case were that Woolworths had reached agreements with the Shop Distributive and Allied Employees Association (SDA) and the AMIEU disputed the ability of the SDA to represent certain employees.

[24] The Full Bench accepted the conclusion at first instance that by copying the SDA into the letter to Woolworths, the AMIEU had not satisfied the requirements in s. 283(3)(a) on the basis that the AMIEU letter was a letter to Woolworths raising concerns about Woolworths’ conduct and seeking Woolworths’ response on three matters, two of which were specific to the AMIEU and Woolworths and “could not reasonably be read as a notice given to the SDA setting out the AMIEU’s concerns to which the SDA could respond”. The Full Bench went on to observe:

“[18] Because of the nature of the AMIEU’s letter of 8 September we do not need to address the broad question of whether “copying in” one party on the notice given to another is sufficient compliance with s.238(3)(a). As a general approach, we would be reluctant to adopt a pedantic approach to such matters. Suffice to say that in this case the AMIEU in sending a copy to the SDA of its letter to Woolworths did not meet the requirements of ss.238(3)(a) and (b). It had no basis for the consideration required by s.238(3)(c).”

[25] Section 238(3)(a) was amended in 2012 to by the addition of a reference to a bargaining representative taking “all reasonable steps” to notify relevant bargaining representatives of concerns with respect to the scope of an enterprise agreement. That amendment was directed at the steps taken to identify and notify relevant bargaining representatives rather than the content of the notice. 24

[26] The present case concerns two separate and competing scope applications. In AWU v BP Refinery Kwinana 25 was considering competing applications made by the employer and the AWU. The Full Bench said:

“[23] It is true that the Commission can only make a scope order when such an order will be “necessary to promote fair and efficient conduct of bargaining”. Where, as here, bargaining is at an impasse because of the disagreement over scope of a proposed enterprise agreement and the Commission is confronted with competing applications an order is “necessary” to break that impasse.

[24] When considering two competing applications in a particular case, it may properly be found in the case of each application that “making the order sought will promote the fair and efficient conduct of bargaining” within the meaning of s.238(4)(b). The relative degree of promotion of such fairness and efficiency in the conduct of bargaining will obviously be relevant to a determination of which of the two competing applications should be accepted.” 26

[27] The Full Bench went on to say:

“[43] The Commissioner was considering two separate and competing applications for a scope order. Each had to be considered on its own merits. In circumstances where each of the competing proposed agreements satisfied the requirements in s.238(4)(a) to (c), the resolution of the competing applications is governed by s.238(d). One of the two applications will be a more reasonable exercise of discretion. It would not be reasonable to make the orders sought in the other application.”

[28] The tests which must be satisfied for a scope order to be issued, are essentially set out in s. 283(4). The preamble to s. 283(4) indicates that the power to make a scope order is discretionary and can be exercised only if all criteria in section 284(a) – (d) are satisfied. 27 Section 283(4)(a) requires that the Commission is satisfied that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements. The good faith bargaining requirements are set out in s. 228 of the Act and it is not necessary to discuss them here.

[29] Section 238(4)(b) requires that the Commission is satisfied that making the order will promote the fair and efficient conduct of bargaining. The section directs attention to the efficiency of bargaining, rather than to efficiency generally. Accordingly, while efficiency in the context of the work that is performed by employees to be covered by the agreement or the way that the employer seeks to organise the work or to structure operations, may be relevant to considering whether it is reasonable in all the circumstances to make the order, these matters are relevant for the purposes of s. 238(4) insofar as they impact on the fairness and efficiency of bargaining. The following principles in relation to fairness and efficiency of bargaining and the reasonableness of making a scope order, can be distilled from the cases:

•  Section 238(1), does not require that present bargaining be considered unfair or inefficient, but findings to this effect would clearly be relevant and conducive to a finding that a scope order should be made 28.

•  The Commission should be satisfied that if a scope order is made the bargaining will at least be fairer or more efficient, or both, than it would be if no order was made. 29

•  The Commission should be less inclined to make a scope order where bargaining would be marginally fairer but less efficient, or vice versa. 30

•  The term “promote” in s. 238(4)(b) conveys a notion of advancing or furthering progress and it is not sufficient that there is a nebulous correlation between the scope order and fairness and efficiency.  31 

•  Considerations of fairness and efficiency supporting the grant of a scope order should not be merely speculative or presuppose outcomes of bargaining 32 and nor should they be hypothetical.33

•  The efficiency of bargaining may be affected by the duplication created in bargaining for two agreements when compared with a single agreement 34 but there is no statutory bias in favour of an enterprise agreement that covers as much of the employer’s enterprise as possible.35

•  The scope order provisions are focussed on the bargaining process and not on the fairness of any outcome of bargaining. 36

•  A scope order application is not a proper vehicle to ventilate and address good faith bargaining concerns. 37

•  Issues of mere inconvenience or preference with the bargaining process are not decisive to whether a bargaining process is fairer or more efficient. 38

•  The history of bargaining between the parties including any status quo with respect to earlier agreements, is a relevant consideration as to whether a scope order should or should not be made. 39

•  Seeking leverage by increasing the bargaining power by weight of numbers is not a valid basis to make a scope order. 40

•  The potential power imbalance between a minority and a majority group of employees may be relevant but is not determinative and may be affected by considerations such as the group’s special interests and potential disadvantage, the impact on the interests of other bargaining parties, the history of the conduct in bargaining and the stage of bargaining. 41

[30] In relation to the views of employees, in UFU v MFESB 42 a Full Bench of the Commission held that in deciding whether to make a scope order, the views of employees may be taken into account, but it is necessary to have regard to the overall context. The Full Bench in that case also held 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 make it appropriate to make a scope order contrary to the views of those employees.43 It should be noted that the Full Bench in UFU v MFESB stated that the conclusions in its decision were bound up with the findings on the evidence and were not intended to be expressions of general principle.44 In the later decision in AWU v BP Refinery Kwinana45, a Full Bench of the Commission held that where a group proposed by a union bargaining representative is reasonable and is supported overwhelmingly by employees, it should be preferred unless there is some good reason for to prefer groups proposed by the Company. In finding that there was no proper basis to prefer the groups proposed by the Company, the Full Bench said that:

“…unless there are factors relating to the fairness and efficiency of bargaining and demonstrated prejudice to the employer’s business operations that make it more reasonable to accept the employer’s application notwithstanding the contrary preference of employees, weight should be accorded to the views of employees.”

[31] The Full Bench went on to conclude that:

“There was nothing in the evidence to demonstrate how the Company would be prejudiced if in the fairness and efficiency of bargaining, or in its business operations, through a combined group proposed by the Union rather than separate agreements that had existed for many years.” 46

[32] In relation to the question of whether a group of employees is fairly chosen, a Full Bench of the Commission held in Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd 47 that the Commission is not required to make a positive finding or express satisfaction that a group is geographically, organisationally or operationally distinct, but rather that the Commission take this into account. In Aerocare Flight Support Pty Ltd v Transport Workers’ Union48 a Full Bench of the Commission set out relevant principles in relation to finding whether a group of employees are fairly chosen for the purposes of s. 186(3) – (3A) of the Act. The provisions are virtually identical and it is appropriate to apply these principles for the purpose of considering whether a group of employees is fairly chosen to determine whether a scope application should be made. Relevantly, Aerocare establishes that:

•  Once it has been determined that an agreement does not cover all of the employees of the employer, it is necessary for the Commission to make a finding as to whether the group of employees who are covered is geographically, operationally or organisationally distinct, and then take that matter into account and give it due weight, having regard to all other factors;

•  If the group of employees covered by the agreement is 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;

•  However while the question of whether the group of employees covered is geographically, operationally or organisationally distinct must be evaluated and given due weight having regard to all other relevant considerations, that is not a determinative consideration in that it is not necessary to make a finding that the group is geographically, operationally or organisationally distinct in order to be satisfied that it was fairly chosen;

•  The selection of the group of employees to be covered on some objective basis, as opposed to an arbitrary or subjective basis, is likely to favour a conclusion that the group was fairly chosen;

•  The relevant considerations will vary from case to case, but the word “fairly” suggests that the selection of the group covered was not arbitrary or discriminatory, so that for example selection based upon employee characteristics such as date of employment, age or gender would be likely to be unfair; and

•  It is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreement’s coverage and the employees excluded.” 49

[33] There are a number of references to cases decided by single members of the Commission cited in the final submissions filed on behalf of OS Maintenance and OS Production which it is necessary to comment on. Some of the cases are not authority for the proposition said by OS to have been confirmed in the case. The OS final submissions also cited the Decision of Vice President Watson in Re Svitzer Australia Pty Ltd 50 as authority for the proposition that “the alleged problems must be real and substantive about the efficacy of bargaining.” The proposition is not specifically set out in the Decision cited. That Decision dealt with the interaction between an application for a scope order and an application for approval of an enterprise agreement in relation to the same bargaining. After deciding not to remove an application for a scope order related to the same bargaining from another member of the Commission, Vice President Watson determined the approval of the agreement. In doing so, the Vice President made some passing observations about the purpose of a scope application to the effect that it is premised on bargaining representative having concerns that bargaining is not proceeding efficiently or fairly and the factors to be considered in determining the application are whether a scope order will promote fair and efficient conduct of bargaining and whether it is reasonable in all the circumstances to make a scope order that will determine the employees to be covered by a proposed agreement.

[34] The OS submissions also cite the Decision of Commissioner Hampton in APESMA v Australian Red Cross Blood Services 51 as standing for the proposition that the Commission must reach a level of satisfaction that “there is sufficient evidence of the specific improvements in the bargaining process from the proposed new scope that make it more fair and more efficient”. The Decision of Commissioner Hampton does not contain such a statement but is does state that considerations supporting an application for a scope order cannot be merely speculative.52

[35] OS also cited a decision of Commissioner Roe in HSU v Royal District Nursing Service 53 and the Decision of a Full Bench on appeal from that decision, as authority for the proposition that the Commission must be satisfied that “it would be fairer or more efficient for all”. While the OS submission does not identify what it is that should be fairer or more efficient for all, it is presumably bargaining. This proposition is not found in those terms in either the decision of Commissioner Roe at first instance or the decision of the Full Bench in the appeal affirming that decision. In the first instance decision Commissioner Roe made the following statement (cited by the Full Bench in the appeal):

“There are a number of considerations I have set out earlier which favour a conclusion that making the order will make the bargaining fairer and or more efficiency that [sic] if the order was not made. In addition there are two considerations where no positive finding can be made. However, in respect to those two considerations I am not satisfied that making the order would adversely affect the ability of bargaining to meet the needs of the changing structure and objectives of the business in the Head Office area. I am also satisfied that there will be no significant negative impact on fairness in respect to the bargaining strength of employees or the employer or the prospects of reaching an agreement if the order was made. Taking all of the matters into consideration I am satisfied that the test in Section 238(4) is met in that I am satisfied on balance that bargaining will at least be fairer and more efficient than it would be if no order were to be made. The order would promote fair and efficient conduct of the bargaining.” 54

[36] Commissioner Roe did not specifically find that bargaining must be fairer or more efficient for all, but rather that on balance, bargaining will be fairer and more efficient. This finding is framed in a manner that is consistent with the terms of the statute, as is acknowledged by the Full Bench in the appeal against the Commissioner’s decision. Fairness and efficiency relevant to the making of a scope application, is with respect to the bargaining process and not simply the interests of the parties. While the interests of the parties may be relevant to the overall consideration of whether bargaining will be fairer or more efficient if an order is made, those interests and their advancement are not determinative, but instead, are weighed in the balance to decide whether the discretion to make an order should be exercised. It may be the case that on balance, the Commission is satisfied that making an order will promote the fair and efficient conduct of bargaining so that it will be fairer or more efficient, notwithstanding that the making of such an order is contrary to the interests of one or more parties so that it could not be said to be fair to that party.

[37] I also do not accept that making a scope order is conditioned by the requirement of fairness and efficiency to all. If there was such a requirement, it is doubtful that a scope order would ever be made. Such an approach is also contrary to the authorities. As the Full Bench found in UFU v MFSB while weight should be given to the views of the employees potentially affected, 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 AWU v BP Refinery Kwinana a scope order was made contrary to the views of the employer.

[38] OS also cites the decision of Commissioner Cambridge in APT Management Services Pty Ltd v AMWU & Ors 55 as establishing that “…unions should not impede or frustrate the employer’s legitimate scope, particularly if bargaining is proceeding efficiently or fairly”. In my view, this overstates the finding in that decision, which read in context, is in the following passage:

“In this instance I am most concerned that the impasse reached with the bargaining has been, in no small part, attributable to the apparent mistrust and friction between different Branches of one or more of the Unions. In some respects the historical State based Branch structure of the Unions has operated to impede and frustrate the employer’s legitimate and sensible reconfiguration for industrial instrument coverage.”

[39] Rather than a general statement of principle, Commissioner Cambridge’s point clearly relates to the specific circumstances of that case and in particular, friction between the various branches of a union. It is certainly not a statement to the effect that the wishes of the employer with respect to scope are given precedence on the basis that they are viewed as “legitimate”. To the contrary, as the Full Bench in BRB Modular observed, the scope of an enterprise agreement is frequently the subject of competing claims, and it will rarely be appropriate to say that one scope proposal is wrong and another correct.

[40] Another proposition advanced by OS is that “A scope order is not a tool for removing an impasse. It can give one party an unfair advantage over others.” The source from which this proposition is said to be derived is the following passages in Re SDA 56:

“[105] However the SDA submits that making the scope order will remove the sticking point which is preventing the parties conclude bargaining for the new Distribution Agreement. It is submitted that bargaining currently is not proceeding because the parties are at an impasse on the issue of the new Distribution Agreement’s scope. Whilst this is correct it cannot be ignored that this state of affairs has only come about as a consequence of the SDA putting forward a claim for a different scope which Inghams does not agree to

[106] To reward a party making a claim that the second party rejects with a decision in favour of the first party’s claim simply to remove the rejection of that claim from blocking further negotiations unfairly assists the first party which made the claim to the detriment of the second party and so in my view would offend subsection 238(4)(d) of the Act because this approach in isolation would not be reasonable.”

[41] It is relevant that the passages cited above, are preceded by a finding at [104] that it is not apparent from the evidence that the conduct of bargaining to date had been unfair or inefficient. Clearly, where scope is an impasse between bargaining parties and is causing unfairness or inefficiency in the bargaining process, a scope order is the appropriate mechanism to remove it. In my view this proposition is better framed as: Simply arguing that a scope order will remove the source of an impasse between the parties and allow bargaining to recommence is not of itself, a persuasive reason for the Commission to exercise the discretion to make a scope order.

POSITIONS OF THE PARTIES

Issues not in dispute

[42] It is not in dispute that bargaining has commenced. Nor is it in dispute that the CFMMEU and the AMWU are bargaining representatives for the enterprise agreements proposed by OS Production and OS Maintenance (s. 238(1)) and that the Unions have standing on this basis to make the applications. OS Maintenance and OS Production initially objected to the applications asserting that these entities are not engaged in a common enterprise. It was later conceded that OS Maintenance and OS Production are single interest employers and that the agreement proposed by the CFMMEU is a single enterprise agreement. Based on the evidence before me I am satisfied that this concession is correct, and that OS Maintenance and OS Production are single interest employers as provided in s. 172(5).

[43] It is also not disputed that the AMWU and the CFMMEU are meeting the good faith bargaining requirements as required by s. 238(4)(a) of the FW Act. The CFMMEU accepts that the group of employees specified in the AMWU scope application are fairly chosen.

The relationship between OS Maintenance, OS Production and BHP

[44] Given the concession that OS Maintenance and OS Production are single interest employers, it is not necessary to traverse in detail the evidence about the structure of OS and its relationship with other BHP entities. It is sufficient to note that Mr Colley gave evidence about the relationship between OS and BHP and tendered various documents evidencing that OS employees are told that they are permanent employees of BHP and that the Company proclaims to the world at large that there is no difference between OS and BHP. 57 In particular, Mr Colley gave evidence that there is a dedicated section concerning OS on the BHP website. There is a question near the top of the first webpage in the section concerning OS: “What is OS all about?” with the following text displayed below that question:

“BHP Operations Services (OS) is a Production and Maintenance workforce. We offer permanent roles within BHP with full-time benefits including flexible working arrangements and more.”

[45] Each of the webpages in the dedicated OS section on the BHP website refer to either BHP Operations Service, Operations Services or OS. There is no specific reference to either OS MCAP Pty Ltd or OS ACPM Pty Ltd. Mr Colley also gave evidence about questions and answers included in a section of BHP’s website dedicated to OS containing the following information: OS will offer permanent employment opportunities; there is no difference between BHP and OS; OS is still BHP; OS is a new team within BHP that will provide production and maintenance services; and employees of OS will be permanent BHP employees. 58 Mr Scherf supported the evidence of Mr Colley about the relationship between OS and BHP and referred to similar material to that referred to by Mr Colley.

[46] Mr Ruggieri’s evidence about the OS entities explained that Operational Services (OS) is an asset within the BHP Group which is a production and maintenance services provider to any BHP Minerals Australia business. The OS asset does not have any alliance or joint venture obligations or reporting structures.

[47] OS Maintenance and OS Production are companies within the OS asset. Each company may have different clients with which they may have different and unrelated standing contractual arrangements. Each company provides totally different services. The services of one company do not support that of the other. Nor does one depend on the other. Each also has its own budget and profitability targets. Each pursues its own business plan.

[48] Mr Ruggieri stated that OS Maintenance provides maintenance services to other assets but not to OS Production. It provides maintenance services to any equipment within an asset. This means it provides maintenance services to mobile equipment that OS Production does not use. It also maintains fixed plant such as conveyors, CHPPs, ROMs, Ore Handling Plants and load out facilities. OS Production does not provide production services in these areas.

[49] According to Mr Ruggieri, the mission for the OS Maintenance business is to deliver consistent and improving outcomes in “mech-elec” reliability and performance, and in health and safety. The business is structured nationally to concentrate on a single service and foster commonality of tasks across product groups in that service and provide a consistent, stable approach to the provision of maintenance services in the business. In the case of OS Production, it is in mining production services. It was structured that way to remove silos and to make it easier to design, create and transfer cross asset solutions and innovations. According to Mr Ruggieri, a maintenance agreement supports that objective. In contrast, a product-based agreement is antithetical to that model. Further, the proposed EA will still allow for local solutions to local problems.

Disputed issues

[50] OS Maintenance and OS Production submit in relation to both applications that there is no jurisdiction to make any scope order because:

•  Neither Union could hold genuine concerns that bargaining for either of the Agreements proposed by the OS entities is not proceeding efficiently or fairly, or to the extent that the Commission considers it does, the reason for this is that either agreement will not cover appropriate employees or will cover employees that it is not appropriate for the agreement to cover;

•  There are procedural flaws in the concerns process for at least the CFMMEU application;

•  There is no basis for either the AMWU or the CFMMEU to consider that either OS Maintenance or OS Production have not responded appropriately to the concerns in relation to scope; and

•  The making of that scope order will not promote the fairer and efficient conduct of bargaining.

[51] OS Maintenance and OS Production also submit in relation to both applications that it is not reasonable in all the circumstances to make an order as:

•  Bargaining has not been unfair or inefficient;

•  Making any order will not promote fairer or more efficient conduct of bargaining; and

•  The group of employees who will be covered by the Agreements as proposed in the scope order are not fairly chosen.

[52] The CFMMEU rejects the submissions of OS Maintenance and OS Production and in relation to the AMWU application contends that:

•  The AMWU has not complied with s. 238(3) of the FW Act because its notice of concerns in relation to bargaining sought a response only from OS Maintenance and not from other bargaining representatives;

•  The persons to whom the notice was addressed included some persons who were not bargaining representatives and who were not involved in bargaining for the maintenance agreement; and

•  The question is not whether the AMWU took all reasonable steps to give a written notice to other bargaining representatives, but rather, whether the AMWU notice is a written notice setting out relevant concerns and inviting a response, consistent with the requirements set out in the decision of a Full Bench of the Commission in AMIEU v Woolworths Limited 59;

•  The scope order sought by the AMWU will not promote the fair or efficient conduct of bargaining; and

•  It is not reasonable in the circumstances to make the AMWU order.

[53] The position of the AMWU, summarised in its final submissions is that it:

•  Agrees with OS that there should be a bargaining distinction between maintenance and production;

•  Disagrees with OS over the need to maintain a bargaining distinction between coal and non-coal employees;

•  Agrees with the CFMMEU that there should be a bargaining distinction between coal and non-coal employees; and

•  Disagrees with the CFMMEU over the need to maintain a bargaining distinction between maintenance and production employees.

[54] As previously noted, the AWU supports the application of the CFMMEU and opposes the application of the AMWU. The CEPU supports the application of the AMWU and in the alternative, supports that advanced by the CFMMEU.

[55] Underpinning the competing positions about the scope of the agreements, is a question about whether scope should be occupational in that it is based on the work performed by employees or the industry in which it is to be performed, albeit the AMWU proposal is based on a combination of the work of employees and the industry in which it is performed. In addition to the contentions about whether various prerequisites for the making of the order have been satisfied, other areas of dispute focus on the impact of making or not making the order on efficiency and fairness of bargaining. I turn now to consider the submissions and evidence in relation to each of these matters.

BARGAINING MEETINGS

Background

[56] It is convenient to commence by setting out the evidence about the bargaining meetings. Meetings have been conducted for agreements proposed by OS Maintenance and OS Production. Due to the effects of the COVID – 19 Pandemic, bargaining meetings were held by videoconference.

[57] It is common ground that following the decisions of a Full Bench of the Commission dismissing the applications for approval of OS Maintenance and OS Production Agreements, a second round of bargaining commenced. Mr Hughes gave evidence about a series of correspondence with OS between 27 November and 11 December 2020, not disputed by Ms Chauncy or Ms Morkel, other than to refer to additional correspondence that was not discussed by Mr Hughes, which it is not necessary to consider. The first correspondence in the series was sent by Mr Hughes to Mr Swinnerton, the Vice President of OS on 27 November 2020 and comprised letters to OS Production and OS Maintenance respectively. In those letters Mr Hughes indicated that the CFMMEU sought an enterprise agreement with each of OS Production and OS Maintenance to cover employees performing work covered by Schedule A of the Black Coal Award and seeking meetings to timetable further meetings in respect of each proposed agreement.

[58] Mr Swinnerton responded on 3 December 2020 indicating the view that following the Decision of the Commission on 11 November 2020 dismissing applications for approval of enterprise agreements, OS considered that bargaining was still on foot and would continue to seek agreements with employees of OS Production and OS Maintenance respectively. Mr Hughes responded to that letter on 7 December 2020, disagreeing with the assertion that bargaining remained on foot and repeating his earlier request for bargaining to commence in relation to agreements for OS Production and OS Maintenance respectively.

[59] On 8 December, Ms Morkel copied Mr Hughes into a letter from BHP’s Manager Employee Relations, Ms McLellan, to Mr Maher of the CFMMEU, advising that simple safety net agreements were sought to reduce the complexities under multiple modern awards and that OS would now share proposed OS safety net agreements with its production and maintenance operational workforce and would be engaging with those employees. Copies of the proposed agreements were appended to the letter. On 11 December 2020 Mr Hughes sent correspondence to Ms McLellan taking issue with earlier assertions that bargaining remained on foot and seeking that new notices of employee representative rights (NERRs) be issued to employees.

[60] The letter also stated that the CFMMEU as a bargaining representative for its members, would be putting forward logs of claim and that a meeting was sought. After telephone discussions and exchanges of emails with Ms Chauncey and Ms Morkel, bargaining meetings were scheduled for the maintenance agreement on 17 December and the production agreement on 22 December 2020. Similar correspondence was exchanged between the AMWU and BHP which was tendered by Mr Scherf. 60 Mr Hughes also tendered three documents provided to him by Ms McLellan being a fact sheet entitled Operations Services Making an Agreement and two Q&A documents in relation to the maintenance and production agreements, which are in virtually identical terms. The Q&A document stated that separate agreements are sought for maintenance and production on the basis that they are separate employing entities and have slightly different ways of working. The Q&A document also states that while there are lots of similarities between the proposed production and maintenance agreements, there are also specific provisions such as types of work and classifications, which apply to one group.

[61] Prior to the scope applications being made, seven meetings have been conducted in relation to the proposed OS Maintenance Agreement and six in relation to the proposed OS Production agreement. The evidence about what was discussed at bargaining meetings was largely contained in comprehensive records of Meetings tendered by Mr Hughes, Ms Morkel and Ms Chauncy. Ms Morkel represented OS Maintenance at bargaining meetings for the maintenance agreement and Ms Chauncy represented OS Production at bargaining meeting for the production agreement. The attendees for the meetings have also included employee bargaining representatives and representatives of the Queensland District Branch of the CFMMEU Mining and Energy Division (CFMMEU Queensland), the Northern Mining and New South Wales Energy District Branch of the CFMMEU (CFMMEU New South Wales) (in respect of the OS Production agreement), the AMWU Queensland Branch, the AMWU Western Australian Branch, the AWU and the CEPU.

[62] The records of meetings were prepared by OS bargaining representatives and emailed to all bargaining representatives after each meeting. The records are in a standard from and consist of a summary of discussions at each meeting; documents such as draft agreements exchanged by the parties at or prior to the meeting; and an appendix summarising the topic of each bargaining proposal, a proposal summary and the Company’s response to such proposals. After each meeting the OS bargaining representatives prepared Updates which were posted on an information hub accessible by employees. To the extent that they document what was discussed at bargaining meetings and the positions of the parties, the records of meetings are objective. The update documents represent the subjective views of the OS Bargaining representatives and I have not considered them in any detail.

[63] There was no suggestion of any significant inaccuracies in the meeting records and where issue was taken with their contents by Union or employee bargaining representatives during the bargaining, there is evidence in the form of email exchanges confirming the issue and whether it had been addressed by revision of the relevant record of meeting. The witness evidence about the discussions at the meetings was largely based on the records of meetings and these are summarised below. Mr Hughes accepted in cross-examination that there was one occasion when he asked for clarification in the record of meeting and that every other record was accepted as accurate. 61 Evidence from witnesses of additional comments they made at various meetings or their views about the negotiations is also considered.

Bargaining meetings for proposed OS Maintenance agreement

[64] The first OS Maintenance bargaining meeting was held on 17 December 2020. The record of meeting confirms that OS Maintenance stated its position that a national agreement is important and that proposals tabled will be considered through a lens of simplicity, maximising flexibility and choice for employees and enabling OS to remain cost competitive and continue to grow. It is recorded that the CFMMEU and AMWU advised that scope is a concern and they are seeking a Queensland only agreement. The record of meeting also indicates that no proposals were tabled and Union bargaining representatives indicated that they would not be in a position to present proposals until late January 2021. 62

[65] On 21 January 2021, prior to a meeting on that date, logs of claims were received in respect of a proposed OS Maintenance agreement from the CFMMEU and AMWU. The second OS Maintenance bargaining meeting was held on 21 January 2021. The record of the meeting indicates that OS again explained its position that a national agreement is important and reiterated that proposals tabled will be considered through a lens of simplicity, maximising flexibility and choice for employees and enabling OS to remain cost competitive and continue to grow. The record of meeting also indicates that the CFMMEU Queensland and AMWU Queensland representatives talked to their proposals and that the AWU, CEPU and AMWU Western Australia did not put any proposals. Employee and Union bargaining representatives were informed that feedback had been received from employees on a range of topics including leave entitlements, flights and accommodation, superannuation, arrangements for working on Christmas Day and Boxing Day, allowances, accident pay, salaries/bonus and salary sacrifice options and that this was currently being considered by OS Maintenance.

[66] The CFMMEU log of claims appended to the meeting record, included a full and comprehensive Queensland coal agreement outlining all terms and conditions of employment and the AMWU sought an agreement that is “the supreme governing document for terms and conditions of employment” with separate agreements fitting this description, to cover black coal mining in Queensland, black coal mining in New South Wales and iron or mining in Western Australia. The AWU position is documented with respect to scope as “coal as separate production and maintenance agreements” and “metalliferous and other non-coal mining production and maintenance agreements”. 63 A log of claims was received from the CEPU after the second meeting and a representative of that Union was unable to attend. A log of claims from the AWU was received by OS Maintenance on 11 February 2021 and the CFMMEU Queensland provided a draft OS Maintenance Agreement on 16 February 2021.

[67] The third OS Maintenance bargaining meeting was held on 17 February 2021. The record of the third meeting tendered by Ms Morkel indicates that OS Maintenance repeated its previous statements that a national agreement is important to the Company and that proposals tabled will be considered through a lens of simplicity, maximising flexibility and choice for employees and enabling OS to remain cost competitive and continue to grow. The Appendix to the meeting record setting out the Company’s response to the various proposals indicates that in response to the scope proposals made by the CFMMEU and the AMWU, OS Maintenance indicated that is has a national business model and works across Minerals Australia and wants an agreement that covers its maintenance workforce across Australia to suit that model and to provide consistency and certainty to customers. 64 OS Maintenance agreed to change four of its proposed clauses, described as updating provisions for meal breaks and the minimum break time between shifts and clarifying annual leave and compassionate leave payments being at an employee’s annual salary rate.

[68] On 19 February 2021, Ms Morkel received an email from Mr Hughes in response to the record of meeting, seeking clarification on whether OS acknowledged the CFMMEU’s request for “any policy, procedure, handbook, or whatever it may be, that applies to any worker covered by the agreement, as those policies etc are impacting on [the CFMMEU’s] claims”. On 22 February 2021, Ms Morkel responded to Mr Hughes acknowledging his request and the requested documents were provided on 1 March 2021, comprising documents referred to in the Respondent’s proposed OS Maintenance Agreement or in response to union proposals. The email also attached information about the “Mastery Program” and quick reference guides which explain how the annual salary review process and OS incentive scheme work.

[69] The fourth bargaining meeting for the proposed OS Maintenance agreement was held on 10 March 2021. The record of meeting indicates that OS confirmed that all current OS Maintenance employees who fall under the scope of the Black Coal Award would be benchmarked against the Mineworker Specialised classification of that Award for the purposes of the over award guarantee in the proposed agreement and that future employees (such as those new to the industry) may be classified differently and would be advised of their classification at the time of hire. OS also confirmed that moving forward tooling would be provided to employees and indicated that it would consider a revised proposal on an additional payment for working on Christmas day should one be put forward. Further feedback from employees was shared by OS. OS also responded to previous proposals from employee and Union bargaining representatives in relation to clauses of the proposed Maintenance agreement as follows:

•  Provisions relating to relationship to parent award would not be amended as this was clear from the clause proposed by the Company;

•  A proposed clause relating to deskilling is too broad and OS wanted to retain the right to allocate work as it deems appropriate;

•  Proposed clauses relating to notice and payments for transfer and requiring transfers to be voluntary were rejected on the basis that the OS business model and point of hire approach allows the Company to transfer employees to other deployment sites as directed and the inclusion of further restrictions would limit flexibility and would not benefit employees who enjoy the flexibility to move between deployments;

•  Proposed clauses in relation to training were considered to be too prescriptive;

•  A claim that OS’ policy with respect to parental leave be the substance of the agreement clause and OS did not agree to have a wider BHP Group policy incorporated into the proposed Maintenance agreement.

•  Limitations on matters to be dealt with in the individual flexibility clause were rejected and in line with OS objectives for a simple safety net agreement, the model clause would be adopted;

•  A clause dealing with management of change and consultation proposed by the ETU was rejected on the basis that it was not consistent with the objective to have a simple safety net agreement;

•  Claims for transport for employees commuting, flights to and from work to be paid for by OS, and permanent camp accommodation were rejected on the basis of significant increases in costs which would result placing OS’ competitiveness at risk.

•  Claims relating to statutory health checks including extra payments in certain circumstances and that such checks be undertaken where practicable were rejected by OS on the basis that the matter is dealt with under relevant State safety legislation which is important given that OS works across and the agreement covers, different jurisdictions in Australia;

•  Claims for employees to have the right to be represented in relation to matters arising under the agreement, in the course of their employment and in meetings requiring a particular employee to attend were rejected on the basis that the issue resolution clause proposed by OS Maintenance makes it clear that an employee is entitled to a support person/representative and that for matters outside the issue resolution procedure employees are offered and entitled to have a support person (which may be a union representative) in appropriate circumstances;

•  A claim for income protection insurance to be provided by the Company and for the Company not to seek to remove itself from the jurisdiction of the workers’ compensation system in States where it operated was also refused on the basis of an increase in costs and risk to competitiveness.

•  Bargaining representative concerns regarding travel and accommodation were also discussed and OS Maintenance while acknowledging challenges maintains that the proposals would put its cost base and competitiveness at risk and it did not agree to terms about flights and accommodation being included in the agreement;

•  OS Maintenance agreed to consider a proposal about rental assistance in local communities in light of it not being charged for camp accommodation for employees living locally; and

•  OS advised that the agreement does not specify a higher rate for dual trades and would consider this only if the employee would be classified at a higher level under the award.

[70] The CFMMEU tabled a revised position in relation to scope, proposing a black coal agreement covering production and maintenance employees and a non-coal agreement covering production and maintenance employees. The record of meeting also indicates that the AMWU tabled a more detailed proposal in relation to the issues resolution clause to the effect that any issue may escalated to the Commission for arbitration without the consent of all parties, and that any party may raise an issue under the clause and that issues could be raised in relation to the agreement, the NES and as they arise in the course of employment. OS Maintenance undertook to consider those proposals. The record of meeting also indicates that:

“The parties had a robust discussion regarding the fact we are significantly apart in our objectives for the proposed agreement and the vast number of proposals tabled by the unions and employee bargaining representatives. The union raised that they consider that OS is not bargaining in good faith having rejected a significant number of claims. OS rejects this assertion and maintains that it has approached each bargaining meeting in good faith. OS asked the unions to narrow their proposals to areas of key importance to assist with a meaningful conversation at the next meeting.”

[71] On 18 March 2021, Ms Morkel circulated a copy of the proposed maintenance agreement which had been updated to reflect changes agreed to regarding meal breaks, minimum breaks between shifts and payments of annual leave and compassionate leave at the employee’s salary rate. The fifth bargaining meeting for the proposed OS Maintenance agreement was held on 6 May 2021. The record of meeting indicates that OS explained its position on award classifications for determining minimum rates of pay and answered questions about trades assistants and Future Fit Academy graduates. The AMWU is recorded as pressing concerns about salaries being included in the agreement and the reduction of contractual rates of pay being reduced and OS reiterated that it cannot legally reduce an employee’s contracted salary without their consent.

[72] It is also recorded that OS restated its objective of a simple safety net national agreement to maximise flexibility for employees and enable it to remain cost competitive and to grow. Feedback was also provided in relation to additional proposals received from bargaining representatives as follows:

•  A proposal for increasing salary rates in the agreement was rejected on the basis that the agreement provides for minimum salaries with employees having a contractual salary which may be higher and employees will be remunerated fairly and competitively by guaranteeing a salary that is 5% higher than the relevant modern award;

•  The proposed agreement provides for personal/carers leave in accordance with the NES and OS does not accept a proposal for additional paid leave for travel as this would increase costs and is considering agreeing to a provision for paying out accrued but untaken personal/carers leave entitlements upon termination of employment in limited circumstances such as those in the Black Coal Award;

•  Union proposals in relation to the issues resolution clause dealing with disputes over matters relating to employment generally (rather than just disputes in relation to the terms of the agreement or the NES) would add unnecessary complexity, reduce flexibility and increase costs and the present clause proposed by OS is fair and consistent with its objective to deal with matters at local level to the maximum extent possible;

•  Proposals that any party may escalate for arbitration any issue arising in the course of employment, under the agreement or in relation to the NES were rejected on the basis that OS has other defined process to deal with those matters and OS maintained the position that arbitration of issues under the procedure should be by agreement only;

•  OS is not in a position to liquidate the cost of supplying village accommodation in accordance with employees’ contracts and does not agree to fund accommodation for employees who choose to live in a particular location; and

•  Moving forward all tooling will be provided negating the requirements under awards to pay a tool allowance.

[73] The record of meeting also indicates that discussions were held in relation to specific proposals that had previously been tabled, including:

•  Issue resolution procedure

•  Inclement weather

•  Hours of work

•  Consultation

•  Types of employment

•  Annual leave

•  Stand down

[74] The record of meeting states that the response of OS Maintenance on scope was as follows:

“OS ACPM Pty Ltd has a national business model in maintenance works across Minerals Australia. We employ only maintenance employees. We want an agreement for our workforce that covers our maintenance business across Australia and enables OS to provide consistency and certainty to our customers.

Having multiple agreements would increase complexity and can reduce our flexibility which could hinder our ability to win future work packages and/or keep exiting scopes of work.

Additionally, OS ACPM Pty Ltd and OS MCAP Pty Ltd are different businesses with different workforces and interests. The CFMMEU’s proposed scope requires OS ACPM Pty Ltd to bargain for an agreement which includes classifications it does not employ and does not intend to employ. This significantly increases complexity for OS.

For these reasons, OS does not accept any union proposal.” 65

[75] On 19 May 2021, Ms Morkel sent an updated copy of the proposed Maintenance Agreement to the bargaining representatives. The Agreement was updated to include the minimum award pay level table, which had been discussed during the meeting on 6 May 2021. On 20 May 2021, Ms Morkel received an email response from an AMWU Queensland bargaining representative asking why no monetary amount had been provided against the defined pay levels in the pay level table in the draft Agreement and pointing out that an indicative salary table had been tabled for black coal mining industry award workers. On 26 May 2021, Ms Morkel responded clarifying that the pay level table had been included to give clarity around how OS will calculate the minimum annual salary payable under the proposed Agreement. The indicative salary table was never intended to be included in the proposed Agreement.

[76] The sixth meeting was scheduled for 3 June 2021. Prior to the meeting there was an exchange of correspondence about matters including classifications in the proposed maintenance agreement, how salaries would be reflected in the terms of the agreement and how advancement would be achieved. The record of the sixth bargaining meeting indicates that there was a discussion about qualifications obtained at the Future Fit Academy with the AMWU expressing concerns about whether employees would be trade or non-trade which OS undertook to share with managers of the Academy. Questions from employee bargaining representatives were answered and tooling was discussed. Feedback on additional proposals from bargaining representatives was provided as follows:

•  OS maintained its commitment to permanent jobs and does not currently employ casuals but sought to maintain flexibility to employ casuals in the future should it be appropriate;

•  Offering matched superannuation in accordance with the BHP scheme was refused due to cost and the risk to competitiveness; and

•  OS would not agree to a provision requiring requests to take annual leave to be responded to in a particular time frame on the basis that it would be prescriptive and reduce flexibility.

[77] The meeting record also indicates that some employee bargaining representatives had advised support for the CFMMEU’s proposed issues resolution clause.

[78] Ms Morkel said in her evidence that the meeting on 3 June 2021 lasted just under 2 hours. According to Ms Morkel, at that meeting:

•  The main focus of the discussion was the Issue Resolution Procedure, as well as a number of other proposals on inclement weather, types of employment and annual leave.

•  Mr Scherf made two comments about the scope of the proposed Maintenance Agreement being a concern and issue for the progress of bargaining. On the second occasion, Ms Morkel rejected Mr Scherf’s assertions and advised him that there was a difference between the scope of an agreement and its structure.

[79] Prior to the seventh bargaining meeting scheduled for 30 June 2021, there were exchanges of correspondence in which bargaining representatives sought clarification on a range of matters including rostering and working time. The CFMMEU, via Mr Hughes, provided proposed wording for an annual leave clause.

[80] The record of the seventh bargaining meeting on 30 June 2021 indicates that:

•  OS provided an update on tooling;

•  The CFMMEU tabled a revised annual leave proposal and OS Maintenance representatives asked questions regarding the proposal and undertook to respond at the next meeting;

•  There was some discussion around the dynamic roster and taking of annual leave for employees on that roster; and

•  Employee bargaining representatives tabled a proposal for a leading hand allowance and Ms Morkel undertook to consider this further and respond at the next meeting.

[81] The record also indicates that the parties conducted a clause-by-clause review of the proposed OS Maintenance Agreement, to clarify where they were aligned and where they weree still apart. Ms Morkel stated that the CFMMEU and AWU actively participated in working through the document however the AMWU was less willing to do so. The record also indicates that the CFMMEU Queensland stated that the document did not reflect all proposals to date and the AMWU Queensland noted that the review of the proposed Maintenance agreement did not involve the majority of their claims. The AMWU is recorded as stating a belief that bargaining is not proceeding efficiently or fairly due to the scope of the proposed OS Maintenance agreement. The record indicates that in response, OS Maintenance acknowledged that not all bargaining claims put forward by unions in previous meetings are included in the Appendix setting out proposals and responses because this exercise was to review the wording in OS’ proposed Maintenance agreement and that OS had responded to all proposals.

[82] According to Ms Morkel’s evidence the following issues regarding scope were discussed at the seventh OS Maintenance Bargaining meeting:

•  Currently, OS employees on a dynamic roster are required to book annual leave in weekly blocks. Mr Scherf suggested this is an area where scope is an issue as WA conditions are being imposed on East Coast employees. Ms Morkel stated that she rejected this notion and explained the OS Employee Handbook already requires any commute employee to take leave in blocks that equate to blocks of rostered work. Ms Morkel also advised during the meeting that the dynamic roster is not WA specific and has previously been worked in QLD and may be worked again in QLD.

•  The unions noted they did not agree with the current title and coverage clause of the OS Maintenance Agreement proposed by OS. Mr Scherf mentioned that he did not believe bargaining was proceeding fairly or efficiently at present due to the scope of OS’ proposed Agreement, but other than the comments referred to above, did not elaborate on why he thought this was the case.

•  The unions noted they did not want to table their position on the classifications and salaries in the proposed OS Maintenance Agreement until scope is determined.

•  Mr Jason Lipscombe (AMWU Queensland bargaining representative) made comments that bargaining is being inhibited by the scope of the proposed Agreement.

[83] Ms Morkel also provided details and tendered out of session correspondence she exchanged with bargaining representatives about a range of matters relating to bargaining and OS Maintenance terms and conditions of employment.

[84] Mr Hughes maintained that scope was the main issue discussed at the first OS Maintenance bargaining meeting. Ms Morkel also said that the discussion on scope in this first meeting occupied around 5 to 10 minutes in a meeting that ran for 22 minutes, which was not more time than the discussion on the intention of OS Maintenance to have a simple safety net structure. Mr Hughes also said that at the second Maintenance bargaining meeting, OS did not respond to any claims made by the CFMMEU Queensland or the AMWU. Ms Morkel said in response that the discussion on scope in the second meeting occupied less than 10 minutes in a one hour 21 minute meeting. Ms Morkel also maintained that the discussion on the specific claims for terms and conditions raised by and union or individual bargaining representative, was not in any way affected by the differences on scope. Similarly, Ms Morkel said that the discussion on scope in the third meeting occupied less than 10 minutes in a 3 hour and 21 minute meeting and that the discussion on the specific claims for terms and conditions raised by any union or individual bargaining representative, was not in any way affected by the differences on scope.

[85] Ms Morkel said that at the fourth meeting when the CFMMEU altered its scope proposal, the discussion occupied around 5 minutes in a 2 hour 34 minute meeting. In response to Mr Hughes’s statement that the lack of progress in bargaining can also be attributed to the dispute between the Unions and OS as to structure of the proposed OS Maintenance agreement, Ms Morkel said that different views on scope have not affected:

•  discussion and progress on the claims made by various parties,

•  the clarifications provided by OS Maintenance;

•  the concessions/alternative proposals made by OS Maintenance; specifically:

•  inserting a table in draft clause 7 to show which award classifications will be used for the purposes of minimum salaries;

•  updating provisions for meal breaks and the minimum break time between shifts in draft clause 9;

•  clarifying an Employee’s annual leave paid on termination will be at Annual Salary rate in draft clause 11; and

•  clarifying compassionate leave will be paid at an Employee’s Annual Salary rate in draft clause 13.

[86] Mr Scherf stated that in respect of the conduct of bargaining meetings for the proposed Maintenance agreement, he agreed with the evidence of Mr Hughes, as set out in Mr Hughes witness statement 66 and documents referred to by Mr Hughes. Mr Scherf said that in bargaining meetings and throughout the course of negotiations, OS Maintenance has rejected the AMWU’s proposed scope, reiterated that it desires an agreement with the scope OS proposes and has given no indication that this position may change in the course of further bargaining. According to Mr Scherf, the refusal of OS Maintenance to meaningfully engage on the issue of scope, has meant that bargaining is not proceeding efficiently or fairly. Scope is the biggest stumbling block in progressing negotiations. Mr Scherf also said that without determining the issue of scope, the parties have been unable to make any meaningful progress in negotiations. Mr Scherf recalled in the last bargaining meeting which occurred, prior to issuing OS Maintenance with AMWU’s notice of concerns, Mr Scherf expressly advised Ms Jessica Morkel, Principal Employee Relations and lead negotiator for OS Maintenance words to the effect that: “it seems evident that meaningful progress cannot be made by the parties because we are diametrically opposed to the structure and scope of the EA.” Mr Scherf also recalled that Ms Morkel agreed with that proposition.

[87] At present, Mr Scherf cannot see the parties making any meaningful progress towards reaching any form of agreement, even on discrete issues, given this fundamental dispute about
scope. Because of the position adopted by OS Maintenance, Mr Scherf believes this impasse appears likely to continue. In relation to Ms Morkel’s evidence of OS Maintenance having made concessions or alternative proposals in the course of bargaining, Mr Scherf asserted that those items were not substantive concessions or alternative proposals made by OS Maintenance. Rather, the matters were related to issues which went to whether the proposed Agreement was capable of passing the BOOT or otherwise could meet pre-approval requirements (i.e. they were changes that had to be made for approval to occur). Mr Scherf also said that there have been no concessions or movements from OS Maintenance in respect of scope.

[88] In response to Ms Morkel’s statement to the effect that there is no impasse in bargaining, and that the parties have continued to discuss terms and conditions in every meeting, Mr Scherf said that the AMWU’s attendance at bargaining meetings and its interactions on proposals and issues raised have been in accordance with its good faith bargaining obligations, but that participation has always stressed the AMWU’s position on scope and, lately, the impasse created by the scope position insisted on by BHP.

[89] Under cross-examination by Mr Walkaden for the CFMMEU, Mr Scherf agreed that the AMWU sent a log of claims to OS Maintenance and other bargaining representatives, just before the second bargaining meeting. Mr Scherf accepted that consistent with the Record of that meeting, he spoke to the log of claims at the second meeting and stated that the claims were made on behalf of the AMWU Queensland and Northern Territory. Mr Scherf said that when bargaining commenced he only had authority to speak on behalf of the Queensland and Northern Territory Branch of the Union but as bargaining progressed he was granted authority to also represent the Western Australian Branch. In response to a question as to when authority was given to Mr Scherf to represent the Western Australian Branch, he stated that it was via an internal phone hook-up on a date he could not recall. After initially rejecting the proposition that the AMWU Western Australian Branch had not provided a log of claims in relation to the bargaining for the OS Maintenance Agreement, Mr Scherf conceded that a written log of claims had not been provided but maintained that claims relevant to Western Australian members had been pursued.

[90] Mr Scherf also agreed that the Western Australian Branch of the Union had made four claims after six months of meetings in relation to the proposed OS Maintenance agreement and that notwithstanding this, the AMWU sought a separate agreement for employees of OS Maintenance in Western Australia. Mr Scherf also stated that there were additional Western Australian claims but that four were unique to that State and that additional claims would be pursued in a separate Western Australian Maintenance agreement. Mr Scherf accepted that the AMWU has had the opportunity to put whatever claims it wanted on behalf of the Queensland and Northern Territory and the Western Australian Branches of the Union. In relation to AMWU claims generally, Mr Scherf accepted that these comprised: a claim for the appointment of an electrical health and safety representative; permanent camp rooms for Western Australian employees; a jump up rate for employees acting in higher level positions; income protection insurance; a wages and classification table to be included in the agreement; and the direct election of Health and Safety Representatives for employees in the black coal mining industry. Mr Scherf also accepted that the Unions had not yet put a concrete proposal in relation to wages and that when the AMWU did put such a proposal its position would be that maintenance employees should be paid more than production employees. Further, Mr Scherf agreed that three of the four claims made by the AMWU relate only to maintenance employees and that other claims in relation to housing and travel could equally relate to production employees.

[91] Mr Scherf accepted that the AMWU seeks that scope is divided on an industry, State and occupational basis and that if OS Maintenance employees were working at the Olympic Dam Mine in South Australia, then the AMWU would also be proposing a maintenance specific agreement for that State. Mr Scherf also accepted that it was possible for the four maintenance specific claims made by the AMWU in the bargaining for the proposed OS Maintenance agreement in one agreement covering both maintenance and production employees.

[92] Under cross-examination from Mr Coonan for OS Maintenance, Mr Scherf accepted that each of the eight witnesses who gave evidence for the AMWU expressed concern about salaries and guaranteed pay rises and that a number of witnesses also raised incentives and bonuses, locality allowances and shift allowances. Mr Scherf confirmed that no Union had made a claim in relation to wages. In response to the proposition that Ms Morkel had allowed the Unions an opportunity to put whatever claims they wanted in negotiation, Mr Scherf said that Ms Morkel did not cut the Unions off but instead just stayed silent and does not respond to the point that has been made before moving on to the next point so that the Union representatives need to consider whether they should push Ms Morkel on that point or move on to the things they want to talk about in the alternative.

[93] Mr Scherf accepted that he had not taken issue with Ms Morkel’s evidence about the duration of the discussion of scope at bargaining meetings and that while he did not have a stopwatch on, he accepted that her evidence on this issue was “probably the case”. 67 Mr Scherf accepted that both the AMWU and OS Maintenance had not changed position on scope and that they are diametrically opposed on scope and the safety net versus comprehensive agreement structure. Mr Scherf did not disagree with Ms Morkel’s evidence about the number of times that scope was given as a reason for rejecting union claims and agreed with Mr Hughes’ assumption that OS was not going to change its position on the structure of the proposed OS Maintenance agreement. In response to the proposition that even if there was a change of scope, OS Maintenance would maintain its position, Mr Scherf said:

“…I don’t accept that, because we probably – if the scope of the agreement changed, effectively the people that OS would be bargaining with would change, and therefore the leverage that we might be able to apply might be different and might lead to a change.

…we represent a significant amount of OS employees in Queensland coal who are more likely to be able to pursue their claims for industrial action that under the current scope of the agreement. For example, they might be able to be better organised to pursue some of those claims. The structure of bargaining would obviously have less people involved in it, therefore we would spend more time dealing specifically with claims they felt were important to them rather than the kind of this safety net versus comprehensive versus national versus industry versus – you know, classification.” 68

[94] In response to the proposition that the AMWU scope would increase disputation, Mr Scherf had the following exchange with Mr Coonan for OS Maintenance:

“---I believe it would allow employees to level the playing field out, to be able potentially to win a better deal than that way.

But you said through protected action? ---We are not contemplating protected action, but obviously that would be something available to them, as it is now.” 69

[95] Mr Scherf was taken by Mr Coonan to a number of claims made by the AMWU and agreed that in respect of the claim for transport and accommodation, that Ms Morkel’s Record of the meeting did not identify the scope of the agreement as a basis for refusing the claim but rather that OS does not offer a fly in fly out model in respect of all employees not just those in the coal industry in Queensland. In relation to the accident pay claim advanced by the AMWU, Mr Scherf accepted that the response had been that OS offered a more generous scheme by virtue of its policy than was provided for in the Black Coal Award but maintained that his understanding was this response was limited to black coal employees in Queensland and that it was not clear that the policy applied to all OS employees. Mr Scherf also agreed that the reasons given by Ms Morkel for rejecting claims in relation to employees not being required to work on Christmas day redundancy was not scope, but respectively the need to meet commitments to customers and cost and that the provision of a housing incentive was also rejected on the basis of cost.

[96] In relation to his evidence about the differences between maintenance work on iron ore mines and coal mines, Mr Scherf maintained the two types of mine were operationally very different because they are extracting different commodities and that employees “never see each othere or have anything to do with each other generally”. 70 Mr Scherf later accepted that AMWU members in Western Australia perform some work on trucks and that those in the black coal industry in Queensland work on shutdowns although this is rare. Mr Scherf also accepted that qualifications such auto-electrician, diesel mechanic, diesel fitter, welding or boilermaking are nationally accredited. Further, Mr Scherf accepted that work undertaken in workshops on pulleys and items such as gear boxes and transmissions of trucks was likely to be the same whether performed at a coal mine or an iron ore mine.

[97] Mr Scherf stated that he had no reason to doubt Mr Ruggieri’s evidence that the principles of managing diseases such as black lung, asbestosis and silicosis are the same. Mr Scherf was not aware of explosions or collapses of open cut seams in coal mines but was aware of an incident where a long haul mine had a landslide or slippage. In relation to his evidence about different rosters worked by maintenance workers in coal and iron ore mines, Mr Scherf accepted that there is no three on/one off roster worked and there is a form of even time roster in the iron ore industry as there is in coal. Mr Scherf also agreed that his concerns in paragraphs of his witness statement were about the outcomes of bargaining rather than the bargaining process but observed that the process delivers the outcomes.

[98] In response to questions about the basis of his assertion that coal industry workers were worried about losing conditions because of lower standards applicable to employees in the iron ore industry while employees in the iron ore industry were worried about losing conditions more favourable than coal, Mr Scherf said that there are iron ore agreements that provide superior redundancy provisions but do not apply accident pay. In response to the proposition that Ms Morkel had not suggested that the lower standard would apply, Mr Scherf said that Ms Morkel had taken lower standards in respect of remuneration by taking the relevant award rate and adding 5% to it which is the lowest common denominator. Mr Scherf accepted that this approach applied to OS’ position with respect to both the coal and iron ore industries. In response to the proposition that the AMWU could have engaged with the OS Maintenance wages offer by working out the rate the Union was seeking, converting it to a percentage and making that claim, Mr Scherf said that such a claim was dependent on the entire package and that issues of critical importance needed to be resolved before wage rates were addressed.

[99] In relation to accident pay, Mr Scherf did not accept that OS Maintenance had offered a policy to both iron ore employees and coal employees that was better than the terms of the Black Coal Award. Mr Scherf contended that in any event, the policy was not in the proposed OS Maintenance agreement and could be changed unilaterally at any time by OS. This could be contrasted with other industry-based agreements, including the BMA Agreement, where accident pay is provided for in the Agreement. In response to the proposition that the OS policy was better than the accident pay provisions in the Black Coal Award, Mr Scherf said the AMWU had never seen the policy and later said that it had not been tabled until the last two or three bargaining meetings. Later, Mr Scherf accepted that when copies of the OS policies had been requested, Ms Morkel had provided them. 71

In relation to long service leave entitlements for black coal workers, Mr Scherf maintained that these are provided in legislation which should be incorporated in an agreement for black coal workers. The proposal of OS Maintenance to include a term in the OS Maintenance agreement to the effect that superannuation would be paid in accordance with relevant legislation, did not protect industry conditions in the event that legislation changed. Mr Scherf accepted that a change to black coal industry superannuation legislation would not undermine the entitlements of employees in the iron ore industry. In response to the proposition that the claim to given iron ore workers permanent rooms would be difficult when they work across multiple mine sites, Mr Scherf said that it would not be difficult when “you own the camps”. 72

Bargaining meetings for proposed OS Production agreement

[100] The first OS Production bargaining meeting was held on 22 December 2020. The record of meeting indicates that the OS Production position was to seek a simple safety net agreement with a national scope and that to ensure that OS Production continued working well, all proposals would be viewed through a lens of simplicity, maximising flexibility and choice for employees and enabling OS to remain cost competitive and continue to grow. The Record also indicates that the CFMMEU Queensland sought a single comprehensive agreement covering Queensland based employees only and the CFMMEU New South Wales stated that the proposed production agreement was not suitable for the Mt Arthur Coal deployment. The AWU indicated that it did not have a firm position on scope and was not interested in a base agreement. All bargaining representatives indicated that they would not be in a position to present their proposals until January 2021. 73

[101] On or around 8 – 9 February 2021, logs of claims were received from the AWU, the CFMMEU Queensland and the CFMMEU New South Wales. Also on 9 February 2021, the CFMMEU Queensland provided an updated draft agreement for the bargaining meeting.

[102] The second OS Production bargaining meeting was held on 9 February 2021. The record of meeting indicates that OS Production reconfirmed its position that the proposed Production agreement is a simple safety net agreement with a national scope and that all proposals would be considered through a lens of simplicity, maximising choice for employees and enabling OS to remain cost competitive and continue to grow. On the issue of scope it was noted that the CFMMEU Queensland sought an agreement to cover Queensland employees only; the CFMMEU New South Wales sought an agreement to cover employees at Mt Arthur Coal Mine only; the AWU seeks an agreement to cover all production employees but is supportive of the CFMMEU Queensland position to scope out Queensland coal; and that OS had proposed an agreement covering all production workers in mining operations across Australia.

[103] The record of meeting also indicates that OS Production representatives asked other bargaining representatives to confirm their key claims. 74 The AWU also requested that the record accurately reflect the AWU’s position that they wish to scope out Queensland Coal from the proposed Agreement and later forwarded an amended log of claims that reflected the AWU’s position that Queensland Coal be scoped out of the proposed Agreement.

[104] The third OS Production bargaining meeting was held on 23 February 2021. The record of that meeting indicates that OS Production confirmed its position in relation to seeking a simple safety net agreement to cover its production workforce nationally. The AWU is recorded as indicating its support for the CFMMEU Queensland position in relation to one agreement covering coal production employees and the CFMMEU made clear that it pressed this position. The record of meeting also indicates that employee bargaining representatives raised matters relating to inclement weather, flights and uniforms, which they agreed to put in writing, and that OS committed to providing responses at the next meeting.

[105] On 26 February 2021, Ms Chauncy received an email from Mr Hughes requesting “any policy, procedure, handbook (or whatever it may be referred to) that the Company refers to in the responses to the claims that have been put forward by the bargaining representatives.” Ms Chauncy provided Mr Hughes and the other bargaining representatives with the relevant documents requested.

[106] The fourth bargaining meeting was held on 15 March 2021. The Record of that meeting indicates that the following positions were updated since the last meeting:

•  OS proposed a change to the clause dealing with personal/carers leave to reflect its practice of paying employees for such leave at their annual salary rate and was still considering the remainder of the proposals in relation to the clause;

•  The CFMMEU Queensland tabled a revised position on scope seeking two separate agreements – one for coal and one for non-coal operations covering both maintenance and production employees; and

•  The AWU and the CFMMEU New South Wales confirmed their support for this position.

[107] In response to a question from bargaining representatives about why various OS policies and procedures are not included in the proposed Production agreement, OS responded that it is seeking a simple safety net agreement and incorporating the terms of policies and procedures into the agreement would not meet this objective. OS also responded to issues raised previously as follows:

•  In response to claims for pay levels according to skills and for annual percentage wage increases of 3%, 3% and 4%, OS indicated that all employees would have an annual salary review for their contracted salaries to ensure that salaries remained market competitive and that to include specific annual wage increases within the agreement would limit flexibility and may put competitiveness at risk;

•  In response to claims for fixed rosters and starting and finishing times to be specified in the agreement OS responded by indicating that the clause reflects the size and scale of the OS business and that it works across different locations on many different roster arrangements so that attempting to capture start and finish times would be too complex and may limit flexibility in the future;

•  In response to claims from employee bargaining representatives that personal leave be separate to carers leave as per the BMA Agreement, OS responded that these entitlements would not be separated and would be in accordance with the NES;

•  In response to claims for permanent rooms to be provided for all OS employees (not just FIFO) OS responded by stating that this claim could not be granted as it would place stress on the already high capacity constraints and demand for rooms in Company owned villages; and

•  Claims for higher duties allowance in employee handbook to be included in agreement and to be paid for the entire period in the step up role were rejected on the basis that the inclusion of provisions of the handbook in the agreement would not be consistent with a simple safety net agreement and that to pay higher duties allowances for periods of less than 90 days would significantly increase costs and put the Company’s competitiveness at risk. 75

[108] The record of meeting also indicates that Union bargaining representatives asserted that OS Production was not bargaining in good faith having not accepted a significant number of proposals and that OS Production acknowledged that the parties remain significantly apart in positions and objectives but maintained that it was bargaining in good faith.

[109] The fifth bargaining meeting for the OS Production Agreement was held on 21 April 2021. The record of that meeting confirmed updated positions whereby OS Production confirmed receipt of the CFMMEU’s revised position in relation to scope but noted that its position of bargaining for a simple safety net agreement to cover its national workforce remained. The Record indicates that OS responded to the Union bargaining representatives claim in relation to personal/carers leave and that lengthy discussions were held about areas including: dispute resolution procedure; consultation; types of employment; duties; and paid suspension and that both OS and the CFMMEU Queensland and New South Wales had agreed to consider a number of points in relation to these matters and respond at the next meeting.

[110] The changes in positions recorded in the meeting were that OS Production was prepared to consider a provision in the proposed agreement paying out accrued but untaken leave entitlements to personal/carers leave on termination of employment in limited circumstances, such as those prescribed by the Black Coal Award but had not made a final decision on this. 76

[111] On 31 May 2021, the sixth bargaining meeting for the OS Production Agreement was held. The record of that meeting states that OS provided responses to the outstanding queries and proposals that the CFMMEU had tabled at the last bargaining meeting on 22 April 2021, including those items raised in the email that she received in an email from Mr Endacott of the CFMMEU New South Wales, on 28 May 2021. This included proposals in relation to Issue Resolution, Consultation, Types of Employment, Paid Suspension and Duties. It was confirmed that OS Production would reconsider the wording to its proposed clause 18 in relation to Issue Resolution and committed to responding with its position on this at the next bargaining meeting.

[112] The record of the sixth meeting also indicates that the CFMMEU Queensland took issue with the OS Production position not to amend its proposed meal breaks clause and that OS’ position is that the timing of meal breaks will be in accordance with local site fatigue procedures taking into account safety, operational and production requirements. The CFMMEU is recorded as indicating that it would provide revised wording for the Company’s consideration. Queries from bargaining representatives in relation to jury service, payment for family and domestic violence leave and voluntary redundancy were also discussed and responded to. Finally, it is recorded that there were no new proposals or revised proposals tabled by any union bargaining representative at the meeting. The next meeting was scheduled for 29 June 2021, pending confirmation from Mr Drayton of the CFMMEU New South Wales.

[113] Ms Chauncy’s evidence is that the meeting lasted for two hours and 45 minutes. According to Ms Chauncy, the discussion at that meeting on scope took less than 2 minutes and the discussion on the claims made by all parties was not impacted by any disagreement on scope. Mr Hughes’ evidence in relation to the negotiations for the proposed OS Production agreement is that scope was the main issue at the first production agreement meeting held on 22 December 2020. In relation to the fourth bargaining meeting on 15 March 2021, Mr Hughes said that in response to the request from OS Production that the Union indicate its key claims, he said that all the CFMMEU’s claims were important and that they maintained their position.

[114] Mr Hughes also said that towards the end of the fourth meeting, a number of the union representatives expressed concerns that OS were not bargaining in good faith. Mr Drayton said that the claims being pursued were standard across BHP operations and that BHP like to portray themselves as treating people equally, but that is not what they were doing. Mr Smyth asked whether the company had done a cost analysis of the union claims. Ms Chauncy said that a cost analysis had not been done as some claims related to flexibility instead. Stephen Smyth then said that OS were not genuinely considering the union claims. Ms Chauncy said that was misleading. Mr Smyth said that the union wanted a comprehensive agreement and that the claims were important to CFMMEU members. Towards the end of the meeting, Ms Chauncy asked what “the die in a ditch issues” for the union were. Mr Hughes said that all claims were important because the CFMMEU wanted a full and comprehensive agreement and maintained its position.

[115] Mr Hughes also gave evidence about the draft OS Maintenance and OS Production Agreements sent to the bargaining representatives on 18 March 2021. According to Mr Hughes, the Maintenance Agreement dated 18 March 2021 and the Production Agreement dated 18 March 2021 are in near identical terms. The only differences between the two enterprise agreements are:

•  The OS entity covered by the enterprise agreement (clause 2.1(a) of both enterprise agreements);

•  The employees covered by the enterprise agreement (clause 2.1(b) of both enterprise agreements);

•  The classifications covered by the enterprise agreement (clause 6.4 of both enterprise agreements); and

•  The clause dealing with meal and rest breaks (clause 9.6 of both enterprise agreements).

[116] Mr Hughes sent a letter to Ms Chauncy and Ms Morkel on 19 March 2021, attaching a draft scope clause, which reflected the position put by the CFMMEU Mining & Energy Division at the fourth bargaining meetings held in respect of the Production and Maintenance Agreements. Mr Hughes’ evidence was that to date, little progress has been made during bargaining. This is not solely attributable to the dispute as to the scope of the OS Enterprise Agreements. Mr Hughes stated that the lack of progress can also be attributed to the dispute between the CFMMEU (and the other unions) and OS as to the structure of the OS Enterprise Agreements. Mr Hughes clarified that by structure, he meant that OS are proposing “simple safety net agreements”. Whereas the CFMMEU (and the other unions) are proposing comprehensive enterprise agreements that reflect and regulate the terms and conditions of employment.

[117] Mr Hughes stated that OS has not moved on any issue in any meaningful way during the negotiations. Mr Hughes also stated that the scope of the OS Enterprise Agreements is a significant issue upon which the CFMMEU (and the other unions) and OS are apart. Mr Hughes conceded that this is not the only significant issues on which the CFMMEU Mining & Energy Division (and the other unions) and OS are apart on but said that the scope of the proposed OS agreements has been discussed at each of the 9 bargaining meetings held to date – 5 in respect of the Production Agreement and 4 in respect of the Maintenance Agreement. During these negotiations the CFMMEU Mining & Energy Division modified its position in respect of scope. That was a compromise position.

[118] OS has consistently rejected the CFMMEU Mining & Energy Division’s position on scope – both the initial position and the compromise position. Mr Hughes genuinely believes that the CFMMEU (and the other unions) and OS are at an impasse as to scope. Scope is an issue that the CFMMEU (and the other unions) and OS have been unable to resolve through bargaining to date. Mr Hughes stated that he cannot see that changing in the foreseeable future.

[119] Ms Chauncy referred to Mr Hughes’ statement in relation to the first Production bargaining meeting where he says that the scope and structure of the agreement were the main issues discussed and said that the discussion on scope did not dominate the meeting. Ms Chauncy’s recollection is that the main topic of contention was the proposal by OS Production to have a simple safety net structure whereas the unions wanted a comprehensive agreement.

[120] In relation to Mr Hughes’ statement about the second Production bargaining meeting, and the discussion on scope, Ms Chauncy’s response is that:

•  the discussion on scope took less than five minutes in a meeting that lasted over an hour and a half.

•  Discussion on the claims made by both unions was not impacted by any disagreement on scope.

[121] Ms Chauncy referred to Mr Hughes’ evidence outlining his recollection of the meeting of 15 March 2021 and responded that:

•  the discussion on scope took no more than five minutes in a meeting that lasted nearly two and a half hours.

•  discussion on the claims made by all parties was not impacted by any disagreement on scope.

•  She agrees the unions stated their belief that bargaining was not progressing because OS wanted a safety net EA and the unions wanted a comprehensive agreement.

[122] Ms Chauncy stated that at the meeting on 21 April 2021 (not attended by Mr Hughes)

•  discussion on scope took less than two minutes in a meeting that lasted four hours. Ms Chauncy also said in relation to that meeting that discussion on the claims made by all parties was not impacted by any disagreement on scope and that lengthy discussions were led by Mr Endacott in relation to a number of specific proposals that had previously been tabled by the CFMMEU Queensland and the CFMMEU New South Wales in which he referred to Union’s position of principle on clauses like the disputes procedure, consultation, types of employment, duties and paid suspension.

[123] Ms Chauncy’s view is that OS Production spends by far, more time in bargaining meetings dealing with the unions’ dissatisfaction about OS’ proposal for a safety net agreement, with them insisting on a comprehensive agreement. In relation to Mr Hughes’s statement that lack of progress is not solely attributable to the dispute as to scope and also can be attributed to the dispute about the structure of the agreement, Ms Chauncy said that OS Production has made the following concessions/amended proposals in its draft enterprise agreement:

•  OS agreed to update the drafting of clause 9 to reflect that a minimum break of 10 hours will be provided between shifts

•  OS agreed to update the drafting of clause 11 to include any payment of annual leave on termination will be paid at an Employee’s annual salary rate

•  OS agreed to update the drafting of clause 13 to include that Compassionate Leave will be paid at an Employee’s annual salary rate

[124] Ms Chauncy stated that neither the CFMMEU Queensland the CFMMEU New South Wales or the AWU have made any concessions, withdrawn any claim, or provided amended proposals other than its proposed amendment on scope.

[125] Mr Hughes referred to the estimates provided by Ms Chauncy regarding how much time was taken discussing the scope at the bargaining meetings held for the Production Agreement. Mr Hughes gave evidence that in his experience it doesn't take long during bargaining to gauge the bargaining position of the employer and also to get a sense of how strongly the employer feels about certain issues. Mr Hughes said that it was clear to him from the first bargaining meeting, that OS had a very firm position on scope. Mr Hughes stated that he got the sense that no matter how much time was spent discussing the issue of scope OS negotiators were not going to change their position and there did not seem to be much point spending great amounts of time discussing a fundamental issue in such circumstances.

[126] Mr Hughes also stated that the disagreement between OS and the unions as to scope has impacted upon the discussion of certain claims during bargaining. Mr Hughes provided the example that the CFMMEU Queensland has proposed a clause concerning accident pay, found at clause 20 of the draft enterprise agreements for black coal maintenance and black coal production employees. According to Mr Hughes, that accident pay clause is specific to OS employees in Queensland. Mr Hughes is also aware that the Black Coal Award provides for accident pay and believes that the Mining Industry Award does not contain such a provision. Mr Hughes said that OS have rejected the claim for accident pay and pointed to this as an example where he believed that scope had impacted on the discussion and consideration of the claims advanced by the unions.

[127] Mr Hughes referred to Ms Chauncy’s response to his evidence that a lack of progress during bargaining can also be attributed to the dispute between the CFMMEU and other unions and OS as to the structure of Enterprise Agreements outlining various concessions and amended proposals made by OS Production including agreeing to update the drafting of clause 9 (minimum break of 10 hours provided between shifts), clause 11 to include that any payment of annual leave on termination will be paid at an employee’s annual salary rate, and clause 13 to include that compassionate leave will be paid at an employee’s annual salary rate. Mr Hughes maintained that OS have not moved on any issue in a meaningful way during bargaining. In this regard, Mr Hughes said that the amendment to the OS proposed agreements so that the minimum break between shifts is 10.5 consecutive hours rather than 8, is not a meaningful concession given that fatigue management policies in place at BHP coal mines in Queensland require that workers on its sites are provided with a break of 10 consecutive hours between shifts.

CFMMEU CASE

Submissions

[128] At 1 June 2021, OS employed a total of 2,528 production and maintenance employees.⁷⁷ In respect of the total OS production and maintenance workforce:

•  Approximately 81.5% are engaged in the black coal mining industry;

•  Approximately 59% are production employees; and

•  Approximately 32% of the total OS employees engaged in the black coal mining industry are maintenance employees in Queensland.

[129] The OS production and maintenance workforce are working in BHP’s black coal mines in Queensland and New South Wales, BHP’s iron ore mines in Western Australia and BHP’s Olympic Dam Mine (which mines copper, gold, silver and uranium) in South Australia. OS and the relevant unions (and other bargaining representatives) have been bargaining for over six months. As at the date that Ms Chauncy gave her evidence, there had been six bargaining meetings in respect of the Production Agreement. As at the date that Ms Morkel gave her evidence, there had been seven bargaining meetings in respect of the Maintenance Agreement.

[130] The scope of the proposed agreements has been discussed at each of the bargaining meetings held to date.⁷⁸ After over six months of bargaining, there is a deadlock between OS and the unions as to the scope of the proposed agreements. The CFMMEU submitted that both Ms Chauncy⁷⁹ and Ms Morkel⁸⁰ accepted there was such a deadlock. It was also contended by the CFMMEU that the deadlock was evidenced by the fact that over six months of bargaining, OS had not made a single meaningful concession. In respect of the proposed OS Production agreement, OS has made only three amendments to its initial position,⁸¹ namely:

•  Adjusting the minimum break between shifts from 8 to 10 hours,⁸² with this adjustment being was made in circumstances where the fatigue management policies at BHP’s coal mines in Queensland require a 10 hour break between shifts;⁸³

•  The inclusion of additional wording in the clause dealing with the payment of annual leave on termination of employment which Ms Chauncy (the lead negotiator for the Production Agreement) explained was added to reflect the National Employment Standards (NES);⁸⁴ and

•  The inclusion of a clause specifying that compassionate leave is to be paid at the employee’s annual salary rate which Ms Chauncy was unable to explain and which simply reflects the NES.⁸⁵

[131] It is submitted that none of these amendments are meaningful concessions and that remarkably, Ms Chauncy maintained that any concession – even simply reflecting the NES – is a meaningful concession.⁸⁶ Similarly, it is submitted in respect of the Maintenance Agreement, that OS has made only five amendments to its initial position, namely:

•  The inclusion of a table⁸⁷ which prescribes an “agreement classification” by reference the relevant modern award⁸⁸ and has no utility given that the agreement requires OS to pay employees by reference to their classification in the relevant modern award, a point Ms Morkel refused to accept;⁸⁹

•  Adjusting the minimum break between shifts from 8 to 10 hours,⁹⁰ in circumstances where the fatigue management policies at BHP’s coal mines in Queensland require a 10 hour break between shifts.⁹¹

•  Adjusting the timing of meal and rest breaks.⁹²

•  The inclusion of additional wording in the clause dealing with the payment of annual leave on termination of employment⁹³ which Ms Morkel (correctly) accepted was a clarification, not a concession⁹⁴.

•  The inclusion of a clause specifying that compassionate leave is to be paid at the employee’s annual salary rate,⁹⁵ in circumstances where this reflect OS’ current practice of paying compassionate leave at the annual salary rate⁹⁶ and the Company is simply committing to pay an entitlement in an enterprise agreement in the same way that entitlement is currently paid on a day to day basis.

[132] The CFMMEU submitted that none of the five amendments are meaningful concessions and it is apparent that OS’s lead negotiators – who are both inexperienced when it comes to leading enterprise bargaining⁹⁷ – simply do not understand what a concession – in the context of enterprise bargaining – actually is. Ms Morkel made the same mistake as Ms Chauncy when she maintained that adjusting the minimum break between shifts to simply reflect the fatigue management policies (which all workers must comply with) at BHP’S Queensland coal mines was a concession.⁹⁸ The AMWU has made a series of claims.⁹⁹ To date, the AMWU have not made any concessions at all.¹⁰⁰ By contrast, the CFMMEU has compromised during the bargaining that has occurred to date. Most notably, in respect of scope.

[133] The initial position advanced by the CFMMEU was based upon an occupational, geographic and industry based differentiator – an enterprise agreement covering only OS production employees working in the black coal mining industry in Queensland, an enterprise agreement covering only OS maintenance employees working in the black coal mining industry in Queensland and an enterprise agreement covering the OS (production) employees at the Mt Arthur coal mine in the Hunter Valley of NSW.¹⁰¹ An occupational, geographical and industry based differentiator was – and remains – the position of the AMWU.

[134] In early March 2021 (after the third bargaining meeting in respect of both the Production Agreement and the Maintenance Agreement)¹⁰² the CFMMEU compromised its position on scope. The compromise position put at the subsequent bargaining meetings – and pressed through this application – is an industry based differentiator. As far as it concerns the CFMMEU membership, that is, an enterprise agreement covering only OS production and maintenance employees working in the black coal mining industry.¹⁰³

[135] The CFMMEU submitted that its movement on scope was a genuine compromise. Mr Hughes confirmed as much when cross-examined by Counsel for the AMWU stating that the revised position in relation to scope was the Union’s second choice. 104 Moreover, the explanation given in his evidence – that the change in position was essentially to try to bridge the gap on scope with OS – was unchallenged. Scope is not the only issue upon which the CFMMEU has compromised.¹⁰⁵

[136] Finally, it is submitted that the claims advanced by the CFMMEU are reasonable.¹⁰⁶ There is nothing excessive or outdated or overly restrictive about the CFMMEU claims. This is evident from the clauses identified by Ms Chauncy¹⁰⁷ and Ms Morkel¹⁰⁸ as being inflexible in the draft enterprise agreement proposed by the CFMMEU. That exercise confirmed the reasonableness of the CFMMEU claims.

[137] The CFMMEU submitted that those facts demonstrate that a circuit breaker is needed to break the deadlock between OS and the unions as to scope. As much was accepted by Ms Morkel.¹⁰⁹ Only the granting of the CFMMEU application will promote the fair and efficient conduct of bargaining. Moreover, the simple fact is that the making of the scope order sought by the CFMMEU will send a strong signal to the parties that compromise is necessary to conclude bargaining. This will avoid inefficiency and avoid disputation. This is a matter that the Commission can properly have regard to pursuant to s.238(4)(d) of the FW Act. In doing so, the Commission would not be making a judgment about the specific claims of OS.

[138] An application for a scope order can only be made if the moving party has concerns of a kind prescribed by s.238(1) of the FW Act. OS appears to submit that the CFMMEU either holds no such concerns and/or, if such concerns are held, they are not genuinely held by the CFMMEU.¹¹⁰ OS cannot continue to press that first argument. If that submission were to be advanced, OS were required to put it to Mr Hughes during cross-examination,¹¹¹ and did not do so and must consequently abandon that first argument. In any event, the evidence of Mr Hughes clearly demonstrates that such concerns are held by the CFMMEU.

[139] In respect of the second argument, OS is essentially contending either that the evidence of Mr Hughes should not be accepted or the question of whether such concerns are held is an objective one. That is, OS point to a number of factors in its submissions¹¹² to suggest that the concerns expressed by Mr Hughes cannot be genuinely held. OS must now abandon this argument because the concerns that Mr Hughes expressed about scope were unchallenged during cross-examination. Moreover, OS’s argument is contrary to the approach taken in Application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’’ known as the Australian Manufacturing Workers Union 113 where it was held that the question of whether such concerns are held by the moving party is a subjective question.

[140] OS contend¹¹⁴ that the CFMMEU has failed to comply with the mandatory requirement imposed by s.238(3) concerning the giving of a written notice of concerns. The basis for that contention is the assertion that the CFMMEU failed to give such a written notice to all relevant parties, in particular the AMWU and ETU.¹¹⁵ The CFMMEU submitted this argument seriously mistakes the facts. The steps taken by the CFMMEU to comply with s.238(3) of the FW Act were as follows:

•  A letter being sent by Mr Hughes and Mr Drayton of the CFMMEU, which was dated 26 March 2021, to Ms Chauncy and Ms Morkel of BHP.¹¹⁶ That letter¹¹⁷ expressly sought a response from OS to the concerns raised by the CFMMEU;

•  A letter being sent by Mr Hughes and Mr Drayton of the CFMMEU, which was dated 26 March 2021, to Mr Roulstone of the AWU.¹¹⁸ That letter¹¹⁹ expressly sought a response from the AWU to the concerns raised by the CFMMEU;

•  A letter being sent by Mr Hughes and Mr Drayton of the CFMMEU, which was dated 26 March 2021, to Mr Scherf, Mr Lipscombe, Mr McLaren and Mr Buck of the AMWU¹²⁰ That letter¹²¹ expressly sought a response from the AMWU to the concerns raised by the CFMMEU;

•  A letter being sent by Mr Hughes and Mr Drayton of the CFMMEU, which was dated 26 March 2021, to Mr Wright, Mr Thomas and Mr Ferreira of the ETU¹²² That letter¹²³ expressly sought a response from the ETU to the concerns raised by the CFMMEU; and

•  A letter being sent by Mr Hughes and Mr Drayton of the CFMMEU to all of the OS employees that had been appointed as a bargaining representative¹²⁴This was done, by way of letter dated 26 March 2021¹²⁵ (which was sent to some of these bargaining representatives) and another letter dated 1 April 2021¹²⁶ (which was sent to the remainder of these bargaining representatives). Those letters expressly sought a response from those bargaining representatives to the concerns raised by the CFMMEU.

[141] As such, it is clear that the CFMMEU gave:

•  A written notice of concerns to OS, and each and every bargaining representative by way of letter addressed to OS and each bargaining representative;

•  OS, and each and every bargaining representative seven days to respond to that written notice of concerns; and

•  Then, after only receiving a response from OS and the AMWU, considered that those responses did not respond appropriately to the written notice of concerns.

[142] While the CFMMEU has satisfied s.238(3) of the FW Act, it is submitted that the AMWU has failed to comply with the requirements in that section, because the relevant letter issued by the AMWU sought a response only from OS Maintenance and not “the relevant bargaining representatives”. This was the exact reason for the Full Bench in Australasian Meat Industry Employees Union v Woolworths Limited (AMIEU v Woolworths) 127 finding that the written notice in that case was defective.

[143] That the covering email (from Mr Scherf) was addressed to Ms Morkel and Bargaining Representatives and said “Please find attached correspondence for your attention and action”¹²⁸ and the AMWU Notice began with the words “Dear Bargaining Representatives”¹²⁹ does not demonstrate that the AMWU Notice was inviting a response from all of the bargaining representatives. This is best exemplified by Mr Scherf (the author of the AMWU Notice¹³⁰) copying in four AMWU officials to the AMWU Notice.¹³¹ Mr Scherf’s evidence was that in copying in those four AMWU officials, the AMWU was not inviting a response from any of those officials. 132

[144] The persons that were copied into the AMWU Notice are not distinguished on the basis of their status as a bargaining representative. Rather, the AMWU Notice simply lumps a long list of persons together, which includes those four AMWU officials, all bargaining representatives for the Maintenance Agreement as well as other persons (such as Ms Chauncy¹³³) and other CFMMEU officers/employees that Mr Scherf knew were not involved in bargaining for the Maintenance Agreement.¹³⁴ Mr Scherf explained that those CFMMEU people were copied into the AMWU Notice as a “catch all” or a courtesy.¹³⁵ The lack of any distinction in the AMWU Notice between the persons copied into the AMWU Notice by reference to their status as a bargaining representative (or not) demonstrates – on the back of Mr Scherf’s evidence outlined above – that the AMWU Notice does not invite a response from the bargaining representatives. It cannot be sensibly suggested that the AMWU Notice invited a response from some of the persons that were copied in (i.e. the other bargaining representatives) when other persons that were also copied in (for example, the AMWU officials) were plainly not invited to respond.

[145] The second reason concerns the amendment made in 2012 (through item 6 of Schedule 4 to the Fair Work Amendment Act 2012 (Cth)). The AMWU is right in saying that s.238(3)(a) was amended.¹³⁶ As originally enacted, the requirement was that the applicant “has given a written notice…”. That was amended to the current formulation, namely that the applicant “has taken all reasonable steps to give a written notice…” However, the AMWU is wrong to suggest that the amendment to s.238(3)(a) is a basis upon which the Full Bench decision in AMIEU v Woolworths Limited can be distinguished.¹³⁷

[146] The amendment to s.238(3)(a) was not directed to the ratio in AMIEU v Woolworths Limited – namely, whether the written notice can be properly read as a notice to the relevant bargaining representatives setting out the relevant concerns and inviting a response. Rather, the amendment was enacted to address the issue sometimes faced by an applicant bargaining representative where the identity of all other bargaining representatives is unknown. It is for that reason that the requirement to give the written notice was lowered from the absolute “has given a written notice” to the threshold of “all reasonable steps” as confirmed in the Fair Work Review Panel 2012 Report, which reviewed the operation of the FW Act through the production of a report entitled “Towards more productive and equitable workplaces” (hereafter FW Act Review Panel Report). Recommendation 16 of FW Act Review Panel Report was that s. 238(3) be amended to require an applicant for a scope order to ‘take all reasonable steps’ to notify all other relevant bargaining representatives of the application. Paragraph 143 of the Explanatory Memorandum to the Fair Work Bill Amendment Act 2012 confirms this purpose.

[147] The circumstances that the amendment to s.238(3)(a) was plainly intended to address are not present in respect of the AMWU Notice. Mr Scherf knew the identity of all bargaining representatives for the Maintenance Agreement. The question is not whether the AMWU took all reasonable steps to give a written notice (which, as explained, is what the amendment to s.238(3)(a) of the FW Act was concerned with). The question is whether the AMWU Notice is a written notice to the relevant bargaining representatives setting out the relevant concerns and inviting a response. On application of AMIEU v Woolworths Limited to the facts, that question must be answered in the negative. Consequently, the AMWU application must be dismissed.

[148] In relation to s. 238(4)(a) of the FW Act, OS concede that the CFMMEU has met, and is meeting, the good faith bargaining requirements.¹³⁸ It is evident that the CFMMEU has been meeting, and is meeting, the good faith bargaining requirements. The requirement imposed by s.238(4)(b) requires the Commission to be satisfied that bargaining will at least be fairer or more efficient or both than it would be if no order were to be made. In other words, the scope order can only be made if the Commission is satisfied that such an order will improve fair and/or efficient bargaining. This was explained by a Full Bench of the Fair Work Commission in BRB Modular Pty Ltd v ‘’Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’’ known as the Australian Manufacturing Workers’ Union (AMWU) (BRB Modular)¹³⁹, which endorsed and applied earlier Full Bench authority in United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board¹⁴⁰ that:

“[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.”

[149] The CFMMEU relies upon two grounds¹⁴¹ in support of the contention that the scope order that is sought will promote the fair and efficient conduct of bargaining. The first ground concerns the deadlock as to the scope of the proposed agreements. The Commission can confidently find that further time, energy and resources will be expended during bargaining in circumstances where – absent the making of the scope order – the deadlock will not be broken. In those circumstances, refusing the scope order seems futile. It merely leaves it to the parties to further discuss an issue they seem unable to reach agreement upon.

[150] Making the scope order in the terms sought by the CFMMEU will resolve the dispute as to scope. This will save all parties considerable time, energy and resources, and reduce the chance of disputation and bring the parties one step closer to agreement. Clearly, a scope order in those terms will promote the fair and efficient conduct of bargaining.

[151] The single FWC member decisions relied upon by OS, which were to the effect that an inability to reach agreement on scope is not unusual and does not mean that bargaining is not proceeding fairly or efficiently,¹⁴² were decided on their own facts. Section 238(4)(b) clearly requires the Commission to make an evaluative judgment based upon all relevant circumstances. In light of the evaluative judgment required, it cannot be suggested that those single FWC member decision establish a principle that an impasse as to scope can never be grounds for satisfaction of s.238(4)(b).

[152] The CFMMEU has never sought to pretend that scope is the only issue in dispute. However, the simple fact is that making the scope order sought by the CFMMEU will save all parties time, energy and resources. This is because the parties won’t have to continue bargaining about a fundamental issue that they have not and will not reach agreement on – or continue to bargain about other issues while leaving the “elephant in the room” of scope to one side, which is clearly a significant obstacle to in-principle agreement being reached. For those reasons alone, the scope order sought by the CFMMEU will promote the fair and efficient conduct of bargaining.

[153] The second ground concerns the duplication and inefficiency inherent in the occupational scope proposed by OS. This duplication and inefficiency manifests in a number of ways. By contrast, the industry scope proposed by the CFMMEU eliminates and/or reduces such duplication and inefficiency. Firstly, the occupational scope proposed by OS means that the Black Coal Award (and any other coal mining industry specific legislation that may be relevant to bargaining) and the Mining Industry Award 2020 (hereafter Mining Award) (and any other non-coal mining industry specific legislation or the like that may be relevant to bargaining) must be considered against the terms of the enterprise agreements proposed by OS twice.

[154] That exercise of comparing the terms of the relevant enterprise agreement against the relevant modern awards is fundamental to the bargaining process. The exercise is done to ensure that the relevant enterprise agreement includes the appropriate industrial safety net, and to ensure that an enterprise agreement if made will pass the BOOT. The industry scope proposed by the CFMMEU means that the exercise need only be completed once. That is, the coal mining industry enterprise agreement proposed by the CFMMEU would only need to be compared against the Black Coal Award. Likewise, an enterprise agreement/s covering the rest of the OS workforce which are effectively employees working on non-coal mines and covered by the Mining Award would only need to be compared to the Mining Award. This plainly demonstrates the duplication and inefficiency inherent in the occupational scope proposed by OS. The scope order sought by the CFMMEU will promote the fair and efficient conduct of bargaining by eliminating the duplication and inefficiency discussed above.

[155] Secondly, the position taken by OS in respect of the Production and Maintenance agreements has been largely identical.¹⁴³ This was conceded by Ms Chauncy¹⁴⁴ and extends to not only the claims and responses made by OS during bargaining for those enterprise agreements, but also in respect responses to correspondence and the like. In very simple terms, the near identical position taken by OS basically results, for example, in two bargaining meetings (one for Production and one for Maintenance) being arranged and held for OS to convey the same information and by way of further example, of OS sending the same letter to the CFMMEU, save for the company name. Duplication and inefficiency are evident in this bargaining process.

[156] The Commission should be comfortably satisfied that requiring OS to bargain with the OS coal employees (which is the effect of the scope order sought by the CFMMEU) is also more likely than if no scope order were issued to:

•  Eliminate the duplication and inefficiency created by the scope proposed by OS; and also

•  Bridge the gap on the other unresolved issues in bargaining.

[157] That is because bargaining would be occurring with employees with a commonality of interest – coal miners in Queensland and the Hunter Valley. The Commission should have no difficulty accepting a submission that such a cohort are capable of exerting legitimate industrial pressure upon OS. It is the exerting of such pressure (as well as potentially other reasons) that is more likely than if no scope order were issued, to eliminate the duplication and inefficiency caused by the scope proposed by OS, and also bridge the gap on the other unresolved issues in bargaining.

[158] Finally, OS misstates the effects of the CFMMEU application being granted. OS suggest that the effect is that there will be bargaining for three enterprise agreements.¹⁴⁵ That is not necessarily true. If only the CFMMEU application was granted, the number of enterprise agreements covering the OS Non-Coal Employees would be a matter for the relevant bargaining representatives. The logical decision, which is suggested by the CFMMEU, is the one enterprise agreement covering the OS non-coal employees.

[159] Moreover, in deciding the CFMMEU and AMWU applications, the Commission could issue a scope order in respect of the OS non-coal Employees. It would be reasonable to issue such an order in line with the logical approach suggested above. If that occurred, the effect would be two enterprise agreements divided on an industry basis, which is reflective of the underpinning modern award coverage. That would be the same as the number of enterprise agreements proposed by OS.

[160] For any and/or all of those reasons, the Commission should be satisfied that making the order sought by the CFMMEU will promote the fair and efficient conduct of bargaining. The Commission should also find that the AMWU scope order will not promote the fair and efficient conduct of bargaining. While the AMWU accepts that making the scope order sought by the CFMMEU will promote the fair and efficient conduct of bargaining on the basis that it will break the impasse,¹⁴⁶ the CFMMEU makes no such concession in respect of the AMWU’s application. Breaking the deadlock – by granting either the AMWU application or the OS “de facto scope order” – will not promote the fair and efficient conduct of bargaining. The main reason for that is the number of enterprise agreements that would result from the scope proposed by the AMWU.

[161] Firstly, the AMWU is incorrect to suggest that the maximum number of OS enterprise agreements would be six.¹⁴⁷ If the occupational, geographic and industry based scope proposed by the AMWU were embraced by the Commission, the maximum number of OS enterprise agreements would be close to 8. That is because there are currently OS production employees working at the Olympic Dam Mine in South Australia.¹⁴⁸ Ms Morkel gave evidence that a deployment of OS maintenance employees was likely to commence at the Olympic Dam Mine later this year.¹⁴⁹ Mr Scherf gave evidence that if OS maintenance employees were deployed to the Olympic Dam Mine that the AMWU would be proposing an enterprise agreement confined to South Australian maintenance employees only.¹⁵⁰

[162] The inefficiency and duplication created is evident. As a matter of principle, the AMWU is correct in contending that it does not automatically follow that the negotiation of one agreement will be more efficient than the negotiation of multiple agreements.¹⁵¹ That must, however, be balanced against the observation in an Application by the ‘’Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’’ known as the Australian Manufacturing Workers’ Union (AMWU 2019) 152, where in discussing the principles to be applied in respect of s.238 of the FW Act, it was held that:

“[120] The efficiency of bargaining may be affected by the duplication created in bargaining for two agreements when compared with a single agreement.”

[163] It will, of course, depend on the facts. The facts are that if the AMWU’s application was granted there would be at least three – and maybe four – OS enterprise agreements covering employees in the black coal mining industry. By way of contrast, the CFMMEU application would definitely result in one enterprise agreement covering all of those OS employees.

[164] There are obviously differences in the nature of production and maintenance work. Likewise, it is accepted that there will be some issues of greater concern to particular groups of employees. Finally, it is accepted that there are some differences in the terms of employment that may be expected or more important for coal miners in Queensland than in the Hunter Valley and vice versa. The facts in this case demonstrate that – notwithstanding those differences – the starting points and the respective claims of advanced by OS and also the unions in respect of OS employees working in the black coal mining industry are the same or fairly similar.

[165] In the bargaining conducted to date, OS has adopted a largely identical position in respect of the Maintenance agreement and the Production agreement.¹⁵³ That suggests, if the AMWU application were granted that OS would simply put that near identical position in respect of the four to eight enterprise agreements (covering coal and non-coal) that were being bargained.

[166] There is not such uniformity in respect of the claims made by the unions (or the other bargaining representatives) in respect of OS employees working in the black coal mining industry. However, many of the claims advanced by the respective unions are similar. An example of this is to compare the claims made by the CFMMEU Mining & Energy Division (through the Queensland M&E District) in respect of OS production employees working in the black coal mining industry in Queensland¹⁵⁴ against the claims made by the AMWU in respect of OS maintenance employees working in the black coal mining industry in Queensland¹⁵⁵. Many of the items in the AMWU Queensland Maintenance Log of Claims are also found in identical or similar terms in the Queensland District Production Claims.

[167] The facts demonstrate that bargaining for multiple enterprise agreements in respect of OS employees working in the black coal mining industry will simply lead to significant repetition. If the AMWU application were granted, the facts in this case demonstrate that the same or similar issues – payment rules for various forms of leave, accident pay, dispute settlement procedure etc. – would be discussed in three or four bargaining processes.

[168] If the CFMMEU application were granted, those same or similar issues would be discussed in one bargaining process. The inefficiency and duplication that results from such significant repetition is evident. The only claims made during bargaining by the AMWU¹⁵⁶ and/or the CEPU¹⁵⁷ that are specific to OS maintenance employees working in the black coal mining industry are:

•  A higher rate of pay for maintenance employees;

•  Tool and trade allowance;

•  Appointment of an Electrical Safety Representative; and

•  Provision of training and payment for renewal of statutory licences and/or competencies (which is a CEPU claim).

[169] That is, these are the only claims made by the AMWU and/or the CEPU that reflect the differences between the nature of production and maintenance work in the black coal mining industry or can be taken to be concern only to maintenance employees working in the black coal mining industry. This was accepted by Mr Scherf.¹⁵⁸ It cannot be reasonably held that the pursuit of less than a handful of maintenance specific claims warrants the negotiation of three or four enterprise agreements covering the OS workforce engaged in the black coal mining industry. The Commission cannot be satisfied that making the order sought by the AMWU will promote the fair and efficient conduct of bargaining.

[170] The CFMMEU submitted that on application of the principles in Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers’ Union of Australia¹⁵⁹ it is evident that the Coal Employees are fairly chosen. The enterprise agreement proposed by the CFMMEU will not cover all employees of OS Production and OS Maintenance. It follows that the Commission must take into account whether the coal employees are geographically, operationally or organisationally distinct.

[171] The Coal Employees are geographically distinct. The Coal Employees are located in the Queensland Coal Fields and the Hunter Valley of New South Wales. The Iron Ore Employees are located in the Pilbara of Western Australia (and perhaps in South Australia). The Coal Employees are operationally distinct.¹⁶⁰ The industrial or productive activity that the Coal Employees are engaged in is the coal mining industry. This is distinct from the industrial or productive activity that the iron ore Employees are engaged in, namely metalliferous mining.

[172] Moreover, the scope proposed by the CFMMEU is plainly objective. It is referrable to one industry. There is nothing arbitrary, unfair or subjective about the scope proposed by the CFMMEU. Finally, the scope proposed by the CFMMEU is what can be fairly described as the usual scope in respect of enterprise agreements in the coal mining industry. It is unheard of for a major mining company – such as BHP – to be party to a multi-industry enterprise agreement.¹⁶¹ Likewise, it is very rare for enterprise agreements to be made in the coal industry that only cover production employees but not maintenance employees and vice versa.¹⁶²

[173] Importantly, the scope proposed by the CFMMEU reflects the coverage of the relevant modern awards. It will be impossible for OS to maintain its contention that an enterprise agreement scope reflective of the modern award coverage is arbitrary. Even more so, the CFMMEU scope reflects the coverage of the Black Coal Award, which covers both production and maintenance employees. The CFMMEU accepts that the group of employees specified in the AMWU scope order are fairly chosen.

[174] In relation to whether it is reasonable to make the scope order, as provided in s. 238(4)(d) of the FW Act, the Full Bench in BRB Modular held:

“[19] In our view, the requirement that it is reasonable to make a scope order is an important element of the tests required to be applied by the Commission. An application of the test will necessarily be bound up in the peculiar circumstances of the matter, but it requires a full consideration of those circumstances and a level of satisfaction that the order requiring the parties to adopt a particular scope of an enterprise agreement in continuing their bargaining is objectively justified.”

[175] The CFMMEU submits that it is evident from that passage that there is no obvious limitation on the matters that can be considered pursuant to s.238(4)(d) of the FW Act. This is consistent with the text of s.238(4)(d), which are words of wide import. The provision clearly equips the decision maker with considerable discretion to make the necessary evaluative judgment. One factor that can be considered pursuant to s.238(4)(d) of the FW Act is the course of the bargaining that is the subject of the scope order.

[176] The course of bargaining warrants the scope order in the terms sought by the CFMMEU Mining & Energy Division. In very simple terms, it is submitted that making the scope order sought by the CFMMEU will send a strong signal to the parties that compromise is necessary to conclude bargaining. This is a compelling reason, which can properly be considered pursuant to s.238(4)(d) of the FW Act, to make the scope order sought by the CFMMEU.

[177] There are a number of reasons why it is not reasonable in all the circumstances to make the AMWU order. Firstly, the AMWU has less than a handful of maintenance specific claims. This was accepted by Mr Scherf.¹⁶³ It cannot be accepted that the pursuit of such a small number of maintenance specific claims justifies the multiple enterprise agreements that result from the AMWU position. This is especially the case given it is readily evident that those maintenance specific claims can easily be accommodated by the one enterprise agreement covering both production and maintenance employees.

[178] Indeed, the facts demonstrate that the same industrial parties can clearly bargain for the one enterprise agreement, which provides for a higher wage rate for maintenance employees (if that is the end result of bargaining). Most of the enterprise agreements that apply in respect of the BHP production and maintenance workforce at BHP’s nine coal mines in Queensland provide maintenance employees with a higher rate of pay than production employees.¹⁶⁴

[179] Secondly, the AMWU application proceeds on the misconceived premise that there is uniformity in respect of the issues of concern amongst OS maintenance employees in the black coal mining industry working in Queensland. Moreover, that other OS employees in the black coal mining industry – such as production employees in Queensland or coal miners in the Hunter Valley – do not share those issues of concern.

[180] That proposition is at odds with the facts. The facts demonstrate that many of the claims being pursued are the same or similar in respect of OS employees working in the black coal mining industry. Moreover, the reality of enterprise bargaining is that some employees will be very interested in a particular issue whereas other employees will not be concerned about the same issue. To suggest that any such demarcation of interest falls neatly on an occupational or geographic basis is wrong. Probably the best example of this concern is the claim made by both the CFMMEU and the AMWU for OS to pay for the flights of FIFO coal miners and the claim made by both unions for a housing allowance for local residents of the coal towns in Queensland.

[181] The Commission would well know that claims for employer payment of flights for FIFO coal miners and a housing allowance for local residents, are very important claims. It can be safely found that a fitter employed by OS that lives in Brisbane and a haul truck operator employed by OS that lives in Brisbane are likely to be very interested in the claim made for OS to pay for flights to and from work. Those OS employees probably will not be too interested in the claim made for payment of a housing allowance for local residents. Thirdly, in pressing its application, the AMWU contends that the interests of the maintenance employees will be swamped by the interests of the production employees.¹⁶⁵ In discussing the applicable principles in respect of s.238 of the FW Act in AMWU 2019, it was held that:

“[119] The potential power imbalance between a minority and a majority group of employees may be relevant but is not determinative and may be affected by considerations such as the group’s special interests and potential disadvantage, the impact on the interests of other bargaining parties, the history of the conduct in bargaining and the stage of bargaining.”

[182] In that case, the Commission went on to adopt the 9 point of the applicable principles given by Deputy President Sams in an earlier decision. Point 7 of that summary is extracted below¹⁶⁶:

7. Evidence which is said to support the making of a scope order which is speculative, hypothetical or presupposes outcomes of bargaining, is unhelpful to the task of determining whether a scope order should be made. In APESMA v Red Cross, Hampton C said at para 70:

[70] On balance, I am not persuaded that the granting of the scope order would promote fairer or more efficient negotiations in this matter. The evidence reveals that at this point in time many of the considerations supporting the application are largely speculative, and weighing up all of the considerations it has not been demonstrated that the making of a scope order would meet the requirements in s.238(4)(b) of the Act given all of the circumstances of this matter.

[183] There is no evidence whatsoever to support the AMWU proposition that the interests of the OS maintenance employees will be swamped by the interests of the OS production employees. It is pure speculation that cannot be taken into account. Indeed, if the attitude adopted by the industrial parties at most of BHP’s coal mines is any guide, it would suggest that the higher wages of maintenance employees would be preserved (as well as proper consideration of the maintenance specific claims that have been made).¹⁶⁷

[184] Fourthly, the scope proposed by the AMWU is seriously at odds with the industrial context. That is, it is very rare for enterprise agreements to be made in the coal industry that only cover production employees but not maintenance employees and vice versa.¹⁶⁸ Moreover, all of the enterprise agreements that cover BHP’s directly employed workforce at BHP’s coal mines in Queensland cover both the production and maintenance workforce,¹⁶⁹ as does the Black Coal Award.

[185] It would not be reasonable in all the circumstances to make the AMWU order given it is so at odds with the industrial context. This is even more pronounced given the opportunistic nature of the AMWU position. This was illustrated through Mr Scherf’s cross examination:

“PN548: So in respect of OS maintenance employees in Queensland, is it the case that the AMWU wants to reflect the wages and conditions of those BHP Queensland coal enterprise agreements in terms of wages conditions, but not the scope of those BHP Enterprise Agreements? --- In a manner of speaking, yes.

PN549: You want to benchmark the wages and conditions, but not the scope? --- Yes, that’s right.”

[186] Finally, the AMWU order seeks a separate enterprise agreement for OS maintenance employees working in Western Australia. This is obviously beneficial to the AMWU, and especially its Western Australian Branch (hereafter AMWU WA). The simple fact is that the conduct of the AMWU in bargaining with OS does not make it reasonable in all the circumstances for the AMWU order to be granted. This is evident from Mr Scherf’s cross-examination where it was conceded that after six months of bargaining only four claims have been made by, or on behalf of, the WA Branch of the AMWU. 170 It is not reasonable to grant the AMWU order in circumstances where after 6 months of bargaining the AMWU has failed to explain all of its claims to OS. This is especially because on Mr Scherf’s own admission, the AMWU have had an opportunity to put whatever claims the AMWU would like to put.¹⁷¹ For the reasons explained above, the Commission should make a scope order in the terms sought by the CFMMEU.

[187] In oral submissions, Mr Walkaden for the CFMMEU developed the argument that while the making of the scope order sought by the CFMMEU would not resolve all issues relating to bargaining, and that significant claims would remain, this was not the test. The test is whether bargaining would be fairer or more efficient if the order was made and the answer to that inquiry is “yes” for two reasons. Firstly, it will resolve the impasse about scope and leave the parties with one less significant issue to bargain about. Secondly, it will reduce duplication and inefficiency. It was also submitted that while the making of the scope order may not change the common bargaining position of OS, and that position would likely continue initially, it would change the bargaining dynamic, because OS would be bargaining with mostly, a Queensland Coal based workforce. This workforce has on the whole, won better terms and conditions of employment than non-coal employees and has a demonstrated capacity to achieve very good conditions of work. 172

[188] Mr Walkaden also submitted that a compelling reason for making the order is that the Commission would be signaling to the parties that compromise is necessary. This is significant in circumstances where, in six months of bargaining, there have been no meaningful concessions by OS. The lack of meaningful concessions by the AMWU is also a powerful reason as to why their application should not be granted. 173 While the FW Act permits hard bargaining, the practical reality is that almost invariably, for parties to make an agreement, compromise is required. As the only principal protagonist which has made a compromise after six months of bargaining, the granting of the CFMMEU’s scope application would send a strong signal from the Fair Work Commission that to get a deal the parties will need to compromise.174 The scope order sought by the CFMMEU was also submitted to be consistent with the industry norm given that BHP does not have agreements that cover both coal and metalliferous mining.175

Evidence

Duplication and inefficiency

[189] It is Mr Hughes’ view that the scope proposed by OS has resulted in duplication and inefficiency on the basis that the Production agreement proposed by OS will have to be considered against both the Black Coal Award and the Mining Industry Award. That exercise of comparing the terms of the OS proposed enterprise agreement against the awards will also be required to be undertaken in respect of the Maintenance Agreement. According to Mr Hughes, the scope proposed by the CFMMEU eliminates such duplication and inefficiency because the terms of the relevant enterprise agreement would only need be compared against one modern award – either the Black Coal Award or the Mining Award.

[190] Mr Hughes said that the CFMMEU further proposes an industry scope to better tailor an enterprise agreement to the regulatory regime that operates in the coal industry, including safety, long service leave and the like. The scope proposed by OS means that such coal specific provisions need to be considered twice – in respect of both the Production Agreement and the Maintenance Agreement.

[191] Moreover, the positions taken by OS during bargaining has largely been identical. That extends to not only the claims and responses made by OS during bargaining, but also, for example, in responding to correspondence from the CFMMEU (and the other unions). The near identical position taken by OS in respect of the Production Agreement and the Maintenance Agreement has resulted in duplication and inefficiency. Mr Hughes believes that the scope proposed by the CFMMEU will reduce such duplication and inefficiency because bargaining will be focused only on OS employees with a commonality of interest, namely workers in the coal industry.

[192] Mr Hughes also said that the scope proposed by OS results in:

•  OS bargaining for two enterprise agreements (the Production Agreement and the Maintenance Agreement);

•  The CFMMEU bargaining for two enterprise agreements (the Production Agreement and the Maintenance Agreement);

•  The AWU bargaining for two enterprise agreements (the Production Agreement and the Maintenance Agreement);

•  The AMWU bargaining for one enterprise agreement (the Maintenance Agreement);

•  The ETU bargaining for one enterprise agreement (the Maintenance Agreement); and

•  A number of OS employees that have been appointed as a bargaining representative bargaining for one enterprise agreement (either the Production Agreement or Maintenance Agreement).

[193] The scope proposed by the CFMMEU would likely result in:

•  OS bargaining for two enterprise agreements (one covering the coal mining industry and another covering the non-coal mining industry);

•  The CFMMEU bargaining for one enterprise agreement (coal mining industry only) because the CFMMEU would not be a bargaining representative in respect of a non-coal mining industry enterprise agreement covering the OS workforce;

•  The AWU bargaining for one enterprise agreement (non-coal mining industry). That is because the AWU would not be a bargaining representative in respect of a coal mining industry enterprise agreement covering the OS workforce;

•  The AMWU bargaining for two enterprise agreements (one covering the coal mining industry and another covering the non-coal mining industry);

•  The ETU bargaining for two enterprise agreements (one covering the coal mining industry and another covering the non-coal mining industry); and

•  The OS employees that have been appointed as a bargaining representative bargaining continuing to bargain for only one enterprise agreement (the relevant enterprise agreement that would cover them).

[194] Mr Hughes stated that the scope proposed by the CFMMEU would:

•  Neither increase nor decrease the number of enterprise agreements that OS were bargaining for;

•  Reduce the number of enterprise agreements that the CFMMEU and the AWU were bargaining for;

•  Increase the number of enterprise agreements that the AMWU and ETU were bargaining for, but this would still be less than the number of maintenance only agreements proposed by the AMWU (and supported by the ETU); and

•  Neither increase nor decrease the number of enterprise agreements that OS employees that have been appointed as bargaining representatives were bargaining for.

[195] Mr Hughes submitted that reduction in the number of union bargaining representatives in respect of each enterprise agreement will reduce the resource burden expended by those affected unions in these negotiations, and also reduce duplication and inefficiency.

Scope of other enterprise agreements in the coal industry

[196] Mr Hughes’ evidence, based upon his knowledge and experience as a full-time Union official, is that the overwhelming majority of enterprise agreements applying in the coal mining industry in Queensland cover both production and maintenance employees and estimates that there are less than a handful of enterprise agreements that only cover production employees and not maintenance employees or vice versa. All enterprise agreements that apply to BHP in respect of their Queensland coal operations cover both production and maintenance employees.

[197] It is common for the major coal mining companies, such as BHP, Glencore, Rio Tinto (who no longer operate in the coal industry) to operate in both the coal mining industry and the non-coal mining industry. Mr Hughes does not believe that any of the major coal mining companies have negotiated an enterprise agreement that covers their operations in both the coal mining industry and the non-coal mining industry.

Written notice of concerns: section 238(3)(a) Fair Work Act

[198] On 26 March 2021, Mr Drayton (CFMMEU New South Wales) and Mr Hughes sent a joint letter to Ms Chauncy and Ms Morkel, headed “Notice of Concerns as to the Scope of the OS Enterprise Agreements”. The purpose of the letter was to explain the CFMMEU’s concerns that bargaining was not proceeding efficiently or fairly and the reason for this is that the OS agreements will not cover appropriate employees or will cover employees that it is not appropriate for those enterprise agreements to cover. The concerns as set out in the letter are based on:

•  There has been, and is likely to be, significant disagreement between the CFMMEU and OS as to the scope of the agreements;

•  At each bargaining meeting the CFMMEU has explained that it does not agree with the scope proposed by OS and seeks separate agreements for employees working in the black coal industry to those working in non-coal mining;

•  OS has consistently maintained its position for a single maintenance agreement and a single production agreement;

•  Scope is a significant claim for the CFMMEU and appears to also be a significant issue for OS and a significant amount of time and energy will be spent during the bargaining process discussing an issue that neither the CFMMEU nor OS seems likely to concede;

•  The necessity to consider both the Mining Award and the Black Coal Award against the agreement for the purposes of the better off overall test as well as coal specific legislation is inefficient and an industry based agreement would require that this was only undertaken once;

•  An industry based scope rather than an occupational scope is a more efficient and fairer avenue to address issues of concern for the OS workforce and to provide for appropriate industrial standards; and

•  An industry based, rather than an occupational scope, reflects the views of CFMMEU membership and the OS workforce. 176

[199] The letter concluded by stating that it was a written Notice of concerns for the purposes of s. 238(3)(a) of FW Act and requested a response by 4.00 pm on Thursday 1 April 2021. Also on 26 March 2021, Mr Drayton and Mr Hughes sent a joint letter to Mr Roulstone of the AWU, Mr Scherf, Mr Lipscombe, Mr McLaren and Mr Buck of the AMWU, and Mr Wright, Mr Thomas and Mr Ferreira of the ETU. Appended to that letter was the letter sent to Ms Chauncy and Ms Morkel. The same joint letter was sent to employee bargaining representatives. Mr Drayton and Mr Hughes sent a second joint letter to Ms Morkel and Ms Chauncy on 26 March 2021 seeking to identify all bargaining representatives for the OS Enterprise Agreements for the purposes of providing the Notice of concerns. On 31 March 2021, Mr Hughes (and others) received an email from Ms Morkel, which identified some additional bargaining representatives for the Maintenance Agreement and on 1 April 2021, Mr Drayton and Mr Hughes sent a joint letter to those persons.

[200] At 3:10pm on 1 April 2021, Mr Smyth and Mr Hughes received an email from Mr Scherf of the AMWU. Attached to that email was a letter dated 1 April 2021 from Mr Rohan Webb, State Secretary of the Queensland/Northern Territory Branch of the AMWU, to Mr Smyth, responding to the CFMMEU’s written notice of concerns. The response stated that the AMWU agreed that bargaining was not proceeding efficiently or fairly due to the scope of the proposed Maintenance agreement and advised that the AMWU’s solution is different to that proposed by the CFMMEU. The letter went on to refer to an attached letter to the bargaining representatives in the negotiations for the proposed agreement, expressing the AMWU’s position in relation to scope and concerns about how bargaining was proceeding.

[201] At 3:31pm on 1 April 2021, Mr Hughes (and others) received an email from Ms Morkel, attaching a letter responding to the CFMMEU’s written notice of concerns. At 3:32pm on the same day, Mr Hughes (and others) received an email from Ms Chauncy, which attached a letter responding to the CFMMEU’s written notice of concerns. Mr Hughes stated that the response letters from Ms Morkel and Ms Hughes were in almost identical terms, save for the letter from Ms Morkel referred to OS ACPM Pty Ltd whereas the letter from Ms Chauncy referred to OS MCAP Pty Ltd.

[202] In the response letters, each of the OS entities acknowledged that the other held the same view. In summary the responses were that the CFMEU’s assertions in its notice of concerns were incorrect and that the Union had not pointed to any aspect of bargaining that is not proceeding efficiently or fairly or shown that the proposed agreement would cover any employees that it was not appropriate to cover or where disagreement on scope had prevented or delayed agreement or had caused disagreement on some terms. The letters indicated an acceptance that scope was one of many issues between the parties but maintained that because the parties did not agree on scope did not mean that bargaining was not proceeding efficiently or fairly because of scope. The letters asserted that it was not open to the CFMMEU to simply refuse to concede on the question of scope and then rely on its own conduct in doing so to argue that bargaining is not proceeding efficiently or fairly.

[203] The letters also asserted that the CFMMEU’s only rationale for its proposed scope was to have greater influence over bargaining relative to other bargaining representatives. In relation to the claim for an industry based scope each of the OS entities stated that it would have to engage in at least two bargaining processes and bargain for classifications it did not employ and did not intend to employ. Further, it was asserted that it is not uncommon for an employer to have enterprise agreements covering workforces where more than one modern award covers the work performed by employees. With respect to the reference to the better off overall test it was contended that the concepts of efficiency and fairness attach to the bargaining process not the approval requirements for enterprise agreements. In relation to the views of employees, it was contended that the CFMMEU’s letter contained a bare assertion and that those views may go to the exercise of the Commission’s discretion, they were not determinative and should not be given priority over other considerations.

[204] At 4:02pm on 1 April 2021, Mr Hughes was copied into an email sent by Mr Scherf of the AMWU to Ms Morkel, attaching a letter from Mr Webb. That email was only sent to Ms Morkel and the attached letter was also only addressed to Ms Morkel. The email was copied other union representatives and other bargaining representatives. The letter set out the AMWU’s concerns and was said to be a written Notice for the purposes of s. 238 of the FW Act. Mr Hughes stated that OS and the AMWU are the only bargaining representatives that have responded in writing to the CFMMEU’s written notice of concerns

Interaction between production and maintenance employees

[205] Mr Hughes disagreed with Mr Sherf’s suggestion that production and maintenance employees never work alongside each other. Mr Hughes stated that there are occasions where production and maintenance employees are required to work alongside each other and gave an example of a fitter being required to repair a machine who may need a production employee to test that machine

[206] To the best of Mr Hughes’ recollection, throughout his period of employment with BHP and then during his period of employment with the CFMMEU, the base salary increases provided by successive BMA enterprise agreements have been the same across each mine covered by those enterprise agreements. The base salary increases are currently set out at clause 9 of the BMA Enterprise Agreement 2018. This means that employees at each of these BMA mines have received the same base salary increase, irrespective of the profitability of the individual mine where they work.

[207] Mr Hughes agreed with Mr Scherf that generally rates of pay of production employees of OS Production and maintenance employees of OS Maintenance are different, with maintenance employees typically earning more than production employees. However, the wages paid to OS employees differ from employee to employee. Mr Hughes is aware of OS employees doing the same work in the same crews at the same mine receiving different rates of pay.

[208] Mr Hughes stated that it is not realistic for Mr Scherf to suggest that the one coal industry enterprise agreement in the terms proposed by the CFMMEU, would undermine the pay and conditions of OS employees working in the Queensland coal industry (or Queensland Mineworkers more generally). As a senior official of the CFMMEU Mining & Energy Division, Mr Hughes is elected by and accountable to members working in Queensland. More specifically, Mr Hughes is elected by and accountable to OS employees working in Queensland that are members of the Union. Mr Hughes and the Union would strongly resist any proposal that undermined the pay and conditions of OS employees working in the Queensland coal industry (or Queensland Mineworkers more generally). Mr Hughes gave evidence that he and CFMMEU Mining and Energy Division would not have proposed the scope that they did if they thought that the pay and conditions of OS employees working in the Queensland coal industry (or Queensland mineworkers more generally) would be undermined.

[209] Mr Hughes did not agree with Mr Scherf that it is universally true that maintenance workers in the coal industry always receive superior terms and conditions compared to production workers. The difference in terms and conditions varies from mine to mine. Mr Hughes said that the BMA Enterprise Agreement 2018 covers and applies to BHP production and maintenance employees. Clause 9 of the BMA Enterprise Agreement provides that employees are paid an annualised salary for their roster worked in accordance with the relevant Schedule for the Mine in which they work. Mr Hughes provided an analysis of the BMA Agreement and Schedules and the agreements applying to individual coal mines in Queensland and said in summary:

•  BHP production and maintenance employees receive the same annual salary at the Blackwater, Peak Downs and Broadmeadows Coal Mines;

•  BHP maintenance employees receive a higher annual salary than production employees at the Goonyella Riverside, Daunia and Caval Ridge Coal Mines;

•  At the Saraji Coal Mine, electricians receive a higher annual salary than mechanical employees who in turn receive a higher annual salary than production employees;

•  A trade qualified BHP employee receives a higher annual salary than a non-trade qualified BHP employee at the South Walker Mine; and

•  It is not necessarily the case that a trade qualified BHP employee receives a higher annual salary than a non-trade qualified BHP employee at the Poitrel Mine.

[210] Mr Hughes reiterated that he was a maintenance employee himself and that other elected full-time officials of the CFMMEU Mining and Energy Division were also from a trade background in the coal industry. Many of the lodge executive members and delegates across the coal industry are maintenance employees. The CFMMEU Queensland and the CFMMEU New South Wales represents both production and maintenance employees, but also workers performing other work in or around coal mines, including in Coal Handling Preparation Plants, Stores and Supervisory roles. Mr Hughes said that it is part and parcel of representing workers in the coal industry to be able to effectively advance the industrial interests of numerically smaller work groups or issues that are of concern to a minority of the relevant workforce. Based upon Mr Hughes experience, first as a maintenance employee and now a senior union official, he disagrees with the assertion that the issues of maintenance employees do not get addressed because they are outnumbered by production employees and strongly rejects any suggestion that the interests of maintenance employees would be compromised to advance the interests of production employees.

[211] To the extent that it is suggested by Mr Scherf that boilermakers engaged by a mining company (such as BHP) move from project to project, Mr Hughes disagreed. Mr Hughes stated that that may be the case for boilermakers engaged by a contractor performing shutdown work. However, employees of mining companies, including maintenance employees, usually remain working at the one mine for the long term.

[212] Mr Hughes disagreed with the evidence of Mr Taylor including that work of maintenance employees is much more physically demanding than production employees and said that the physical demands and environment in which production work is undertaken depends on the nature of the task. There are some production employees working in the coal industry who are exposed to the elements and undertake physically demanding work such as employees in blast and pump crews. While generally agreeing with Mr Allen’s evidence about wage rates paid to OS Maintenance employees, Mr Hughes reiterated that wages paid to OS employees differ from employee to employee and that maintenance workers in the coal industry do not always receive superior terms and conditions compared to those received by production workers. Mr Hughes also pointed to the incorrect reference in Ms Baynton’s statement to Caval Ridge being an underground mine and clarified that Caval Ridge is an open cut mine.

[213] Regarding Ms Chauncy’s statement that there is no evidence of alleged duplication and inefficiency resulting from the scope proposed by OS due to Production Agreement and Maintenance Agreement being compared against two awards, Mr Hughes clarified that he wasn’t intending to suggest that he has personally compared the terms of the OS Production Agreement and the OS Maintenance Agreement against the Black Coal Award and the Mining Industry Award. The point that he was making is that exercise has presumably be done by OS and will have to be done others, including the CFMMEU, to ensure that those enterprise agreements pick up the key provisions from those awards and also meet the BOOT.

[214] Mr Hughes said that Ms Chauncy is wrong to suggest that claims in respect of safety, long service leave and the like have not been raised in bargaining. Those and other claims that reflect or relate to the regulatory regime that operates in the coal industry or otherwise reflect the industry standards, such as accident pay, rosters and employer payment for medicals etc, have been raised by the CFMMEU and discussed in bargaining. Mr Hughes referred to the Operations Services Queensland Black Coal Production Agreement 2021 that he sent to Ms Chauncy on 9 February 2021 177 which makes a claim in respect of each of those issues. Mr Hughes clarified that he did not submit that the positions taken by OS Maintenance and Production during bargaining have been identical but rather that the positions have largely been identical. This remains Mr Hughes’ position

[215] Mr Hughes stated that Ms Morkel's response to his evidence is similar to Ms Chauncy’s and noted that such repetition and duplication is typical of the bargaining that has been undertaken with OS. Mr Hughes stated that Ms Morkel gives an estimate as to how much time was spent discussing the issue of scope at the bargaining meetings held for the Maintenance Agreement. Mr Hughes also stated that just as Ms Chauncy did, Ms Morkel suggests that the discussion on the claims made by all parties has not been impacted by the disagreement as to scope. Mr Hughes maintained that the disagreement as to scope has clearly affected the discussion and consideration of the claims advanced by the unions.

[216] Under cross-examination by Mr Reed for the AMWU, Mr Hughes accepted that from November 2020 until March 2021, the CFMMEU had genuinely believed that the most appropriate scope for OS bargaining was for separate maintenance and production agreements in Queensland. Mr Hughes also agreed that the alternative position adopted by the CFMMEU at a bargaining meeting on 10 March 2021, was a compromise position and the Union’s second choice. 178 In relation to his evidence about the number of agreements that would be the subject of bargaining if the CFMMEU’s scope proposal was accepted, Mr Hughes agreed that this would be less than the number of maintenance only agreements proposed by the AMWU but that there would be no point bargaining for an OS Maintenance agreement for Mt Arthur Coal Mine as there were no OS Maintenance employees at that mine.179

[217] In relation to wage rates paid to employees at BMA/BHP Mines in Queensland, Mr Hughes agreed that the structure of the BMA Agreement is that there are some generic terms and discrete schedules dealing with discrete conditions that relate to each of the Mines and that each schedule has a distinctive salary provision. Mr Hughes also agreed that there are standalone agreements for some Mines which also have different wage rates and different conditions. In relation to his evidence that the base wage increases were the same for mines covered by the BMA Agreement, Mr Hughes agreed that there are some matters excluded from the base salary which would not be included in increases to the base salary. 180 In relation to his evidence that there are production employees such as blast and pump crews who are exposed to the elements and who undertake physically demanding work, Mr Hughes was not able to state the percentage of crews across the site might be constituted by blast and pump crews and that this differed across various Mine sites.181

[218] Under cross-examination from Mr Coonan for OS, Mr Hughes agreed that OS Maintenance does not employ production workers and OS Production does not employ maintenance workers. Mr Hughes was not aware of any deployments of OS Production into drill and blast crews or pump crews. Mr Hughes was also not aware of whether the current position whereby there are no maintainers at Mt Arthur would be ongoing and said that he had not seen the evidence of Mr Ruggieri on this point. 182 Mr Hughes agreed that during his apprenticeship and his employment with a contractor in Dysart, he had worked on a variety of mobile equipment comprising a number of brands and that each piece of equipment had an Original Equipment Manufacturers Manual (OEM). Mr Hughes maintained that the set up of machines would be different depending on the type of mine they were operating on but agreed that all machines have diesel engines.183

[219] In response to questions about his statement that the SSE at each Mine ultimately supervise OS employees, Mr Hughes agreed that this was in relation to the Coal Mining Safety and Health Act, which covers everything is done on a Mine, by all contractors, not just OS. Mr Hughes also agreed that the SSE does not control who OS employs or dismisses. 184 Mr Hughes agreed with Mr Scherf’s evidence that OS Production and OS Maintenance had made clear from day one that they sought simple safety net agreements and had not deviated from that position. Mr Hughes also agreed with Mr Scherf’s belief that OS would not deviate from this position.185

[220] Mr Hughes was asked about the Records of bargaining meetings and agreed that at all but one meeting he had accepted that the Record was accurate and had raised issues when he did not agree with a particular Record. Mr Hughes accepted that at the first meeting in relation to the Production agreement it had been stated that OS sought a simple safety net agreement and the CFMMEU sought a comprehensive agreement. Mr Hughes agreed with Ms Chauncy’s evidence that there was a 50/50 split at that meeting between discussing scope and discussing the structure of the agreement and that the Company had indicated it wanted a simple safety net agreement and the CFMMEU that it wanted a comprehensive coal based agreement. Mr Hughes agreed that at the second Production agreement bargaining meeting he had an opportunity to put the AMWU’s position in relation to each aspect of its claims and was allowed time to flesh out any detail that was required. Mr Hughes also accepted that the Record of meeting indicated that the parties were apart in relation to the structure of the proposed Production agreement. Mr Hughes agreed that this was also the case in relation to the second Maintenance agreement meeting and that none of the AMWU’s claims were rebuffed on the grounds of scope.

[221] In relation to the record of the third Maintenance agreement meeting, Mr Hughes agreed that there were 35 different claims that were discussed; 6 were rejected by OS Maintenance on the grounds that they did not meet the objective of a simple safety net agreement; scope was mentioned twice – once in relation to the coverage of the agreement and once in relation to a CEPU claim; and that of the claims only one was rejected on the basis of scope. In relation to the third bargaining meeting for the Production agreement, Mr Hughes agreed that there were 31 claims made and that scope was mentioned three times in relation to: the coverage of the agreement; a claim for a 35 hour week which was also rejected on the grounds of competitiveness; and superannuation with respect to a claim for Mine Superannuation to be named as a default fund which the Company stated was dealt with by legislation. The proposition was put to Mr Hughes that after seven meetings in relation to both agreements, scope had been mentioned twice and that by the eighth meeting (the fourth meeting for the OS Production agreement) there had been 38 claims and other than in relation to the coverage clause of the agreement, scope was only mentioned twice. 186 Mr Hughes also agreed that when the CFMMEU changed its position on scope it did not change its position of seeking a comprehensive agreement.187

[222] Mr Hughes agreed that he did not expect any change to the Company’s position on scope “at this stage”. In response to the propositions that he hoped that if the CFMMEU’s scope order was made that things would change and that the CFMMEU was hoping to get an advantage out of the scope order, Mr Hughes said: “Yes”. 188 In relation to his evidence about the application of the BOOT test causing duplication and inefficiency if the position of OS on scope was maintained, Mr Hughes said that he had no idea of what is involved in undertaking a BOOT test and had not done a boot assessment and his view was based on the fact that two awards would need to be compared.189 Mr Hughes was also taken in cross-examination to various claims made by the CFMMEU and when they had been raised in bargaining meetings, as follows:

•  Safety had been raised in relation to hours of work and OS Maintenance and OS Production had amended proposed agreements to comply with site specific requirements; and

•  Long service leave claims had been dealt with by including reference to relevant legislation in the agreements and the CFMMEU had not raised it after that as it was a waste of time. 190

[223] In relation to the number of agreements resulting from the CFMMEU’s application being granted, Mr Hughes agreed that all other parties would have to bargain for two agreements while the CFMMEU would only be required to bargain for one agreement. In response to the proposition that he did not care about the number of agreements that other unions would be required to bargain for, Mr Hughes said that it was up to those unions to decide whether they wanted to press on for two agreements. 191 Mr Hughes was also taken to the differences in payments made under agreements to production and maintenance employees under various BMA/BHP agreements and agreed that no production employees provided tools and that the bonus under the BMA and Mt Arthur Agreements is guaranteed and that everywhere else, bonus is at risk. Mr Hughes also agreed that maintainers do not work in air- conditioned cabs and that this would be the same for those in the iron ore industry and that the colour of the dust they experience is different – red and not black – and that everything else is the same.192

[224] Mr Hughes was also taken to an update the CFMMEU had issued to members dated 9 February 2021, tendered by Ms Chauncy, and agreed that there was no direct mention of scope and that it had been made clear that the position of OS was a simple safety net agreement. In relation to the survey undertaken by the CFMMEU, Mr Hughes agreed that 85% of respondents were production employees and 15% were maintenance employees. Mr Hughes also agreed that given half of the OS workforce is maintenance, this was a reply rate from production to maintenance of six to one. 193

AMWU CASE

AMWU Submissions

[225] The AMWU’s case in support of its scope application is based on what are said to be significant differences between the black coal industry and the iron ore industry evidenced by: the history of award and union coverage; terms and conditions of employment; the frequency and types of enterprise agreements negotiated in those industries; a maintenance/production divide; a coal/non-coal divide; and geographical differences in terms of the locations of black coal and iron ore mines. In relation to terms and conditions of employment, the AMWU pointed to rates of pay for maintenance workers at coal mines in Queensland being higher than those paid to maintenance workers at coal mines in New South Wales; rates of pay for maintenance workers being higher than those of production workers; and rates of pay for employees of OS Maintenance being less than rates of pay for BHP maintenance employees.

[226] The AMWU also pointed to the fact that there is virtually no intermingling of the coal and non-coal workforces. Further, maintenance work in the black coal mining industry in Queensland is said to be more closely regulated by virtue of the Coal Mining Safety and Health Act 1999 (Qld) than work in iron ore mines. In relation to coal mines in Queensland and New South Wales, the AMWU contended that there is a distinction on the basis that workers in Queensland work on mines that extract metallurgical coal which attracts a higher price than thermal coal which is extracted at mines in New South Wales. These factors are said to support a conclusion that it is neither sensible nor efficient to include coal and non-coal maintenance employees in a single enterprise agreement. The AMWU also contends that to disrupt the coal/non-coal divide is likely to give rise to unease among employees and lead to inefficiency in the bargaining process.

[227] The AMWU referred to a change of position on the part of the CFMMEU in relation to scope. Further, the AMWU asserted that the groups of employees specified in its scope application are fairly chosen evidenced by geographical and operational distinctions and the different market forces applicable to products mined. The AMWU also asserted that the Commission should be satisfied that a significant proportion of maintenance employees support the Union’s scope application. The AMWU points to the fact that there are significantly more production workers than maintenance workers

[228] In relation to the bargaining process, the AMWU contends that progress has not been made in bargaining meetings and the parties are diametrically opposed on the issue of scope. While the parties are a significant distance apart on other matters, until the question of scope is resolved, bargaining cannot progress because the parties cannot agree on the most fundamental issue. The AMWU also contends that the Commission can be satisfied that making one of the proposed orders sought – including the “de facto scope application made by OS Maintenance and OS Production – will result in fairer and more efficient bargaining going forward. The question is said to be which of the three outcomes reflected in these proposals “involves a more substantial relevant degree of promotion of fairness and efficiency”.

[229] The AMWU submits that its proposed scope would involve workers doing the same type of work, in the same geographical area, in the same industry, bargaining together. This can be contrasted with the scope proposed by the OS companies which creates a real and appreciable prospect that bargaining will be bogged down because of discrepancies between pay rates for maintenance workers in iron ore operations versus coal operations and even between coal operations in Queensland and New South Wales. The AMWU’s claim would also avoid the inefficiency caused by groups of workers with different interests based on different work and different terms and conditions, needing to advance claims that are not relevant to other cohorts of workers.

[230] While the AMWU proposal will result in more agreements than would be the case if the CFMMEU or OS proposals were accepted, it does not follow that bargaining will be less efficient, because under the AMWU proposal there will be fewer unions involved in bargaining for each agreement. The AMWU, CEPU and CFMMEU would be involved in bargaining for the coal maintenance agreements and the AMWU, AWU and CEPU would be involved in bargaining for the iron ore maintenance agreement. The AMWU further submits that assuming orders it seeks are made in respect of OS Maintenance, it would be open for the Commission to make determinations in respect of the CFMMEU’s application for scope regarding OS Production so that for coal production agreements there will be one Union – the CFMMEU – and for iron ore production agreements, the AWU.

[231] According to the AMWU, bargaining along an occupational, geographic and industry basis will make the process fairer because the parties will be able to focus on the respective merits of their claims rather that distractions concerning what other non-related workers are receiving and concerns that the views of a particular group of workers may be swamped by those with disparate interests. The AMWU’s groups of workers are fairly chosen and its proposed scope is supported by evidence of employees given in these proceedings, a petition signed by employees and the evidence of Mr Scherf about what he has been told by employees.

[232] In relation to the CFMMEU application, the AMWU opposes the introduction into bargaining interstate workers whose operations are differently regulated and who mine different types of coal and production workers employed by a different entity whose work is materially different to that of production workers. The AMWU also submits that claims for workers in Queensland are materially different than the claims for workers in New South Wales with rates of pay for maintenance workers in New South Wales being materially different than those in Queensland. The nature of production work is materially different to the work performed by maintenance employees and the CFMMEU’s proposed scope introduces the very real prospect that bargaining will be materially tilted towards the substantially larger number of production workers and that maintenance workers run the real risk of having their interests swamped by the interests of the majority of production workers. Further, the CFMMEU’s proposed scope does not deal with the significant number of workers engaged by OS Production and OS Maintenance in Western Australia save for an observation that one agreement for those employees seems logical. This does not comprehensively address the position of those employees as compared to the AMWU’s application which does so for employees of OS Maintenance.

[233] In oral submissions, Counsel for the AMWU emphasised the long industrial history in the coal and iron ore mining sectors and the need to consider that history in assessing competing scope proposals. The concerns held by the AMWU that bargaining is not proceeding efficiently are not fanciful and this was not put to Mr Scherf in cross-examination. In relation to the CFMMEU’s assertion that the AMWU’s written notice of concerns did not meet the requirements in s. 238(3) of the FW Act, it was submitted that the notice of concerns was addressed to Ms Morkel and bargaining representatives and the use of the term “action” in the notice indicates that those persons were invited to take any action they considered appropriate in response to the AMWU’s concerns. There is no requirement in s. 238(3) for a notice of concerns to invite a response but notwithstanding this, the AMWU’s notice did provide a time frame for response. It was also submitted that the fact that persons other than bargaining representatives were included in the email correspondence by which the AMWU sent its notice of concerns does not invalidate the notice, and that Unions rather than individual officials are bargaining representatives.

[234] In relation to the fair and efficient conduct of bargaining, Counsel of the AMWU emphasised key factors. Firstly, OS Maintenance bargaining has stalled and is neither fair nor efficient. BHP has pursued a particular agenda which has resulted in stagnation of the bargaining process and warranting an alternative approach by a change in the scope of bargaining. Secondly, there are different industrial landscapes in coal and iron ore which result in different industrial concerns on the part of production and maintenance employees. The submission that the AMWU concern is really the safety net structure of the proposed agreement should be rejected, and it is necessary for the issue of scope to be settled before the structure of the agreement and the things that hang off the structure can be settled. This is because there are fundamental differences in the Black Coal Award and the Mining Award. Thirdly, enterprise bargaining in the two sectors has also been fundamentally different with Western Australian agreements being aged while Queensland agreements are up to date. The Western Australian agreements are also said to be a bare bones approach to bargaining while Queensland agreements are more comprehensive and have higher wages outcomes and terms and conditions of employment. Unions are also not expressed to be covered by most Western Australian agreements while in Queensland agreements all unions are covered.

[235] It was submitted that the conclusion ought to be drawn that it would be more efficient to separate maintenance employees in the black coal and the metalliferous mining sectors on the basis that employees in Western Australia in the metalliferous mining sector have been prepared to accept a bare bones agreement structure and to forego a range of terms and conditions which are entrenched in agreements in Queensland coal. Other differences which also support separation are geographical and the fact that there is little intermingling between maintenance employees in the two sectors. It is also unlikely that employees will transfer between the two sectors and the evidence of this occurring is negligible so that any suggestion that a national agreement would assist in the transfer of employees between the two sectors runs up against the history and in any event, a change in the underpinning award would be required in the event of a transfer.

[236] The AMWU also submits that, contrary to the CFMMEU position, there is eminent sense in maintaining a bargaining division between maintenance and production employees. Because OS has separated its maintenance and production arms, it makes sense for a maintenance agreement to be negotiated with one employer. The CFMMEU proposal to negotiate with two employers for a single agreement would waste time and resources by the AMWU, the ETU and the OS companies. In relation to fairly chosen, the AMWU submitted that the group of employees to be covered by the agreements proposed in its scope application are geographically and operationally distinct. Further, the views of employees, based on evidence given by AMWU members at the hearing and petitions tendered by the AMWU, should be given weight. It was also pointed out that the CFMMEU had not pressed the ground in its scope application that the CFMMEU’s proposed scope best reflected the views of OS employees. In relation to the submissions of the CFMMEU, it was contended that there are no OS maintenance employees at Olympic Dam and no regard should be had to a possible OS deployment at Olympic Dam.

[237] The CFMMEU’s submission that there are similarities in the claims of the AMWU in relation to a maintenance agreement and the CFMMEU in relation to a production agreement should also be rejected. Wages are a critical issue in bargaining from which a raft of other conditions flow including overtime, penalty payments, leave payments, bonus payments, redundancy payments and any matter related to wages. The AMWU’s position is that it seeks for maintenance employees in Queensland, higher rates than those paid to production employees. At the nine Queensland mines with BHP agreements, maintenance employees receive the same rates as production employees at three mines, in two there is a mixture so that the CFMMEU’s submission that higher rates for maintenance employees have been delivered in most Queensland coal agreements should not be accepted. There is also no basis for the assumption in the CFMMEU’s submission that production and maintenance employees would have common claims and a united bargaining position in relation to those claims. Production and maintenance employees have significantly different approaches as is suggested by the bringing of different scope applications.

AMWU Evidence

History of bargaining

[238] Mr Scherf is a bargaining representative of OS Maintenance employees and has attended each bargaining meeting held to date which includes meetings on 17 December 2020, 21 January 2021, 17 February 2021, 10 March 2021 and 6 May 2021. These negotiations follow unsuccessful attempts by OS Maintenance to seek approval from the Fair Work Commission of a previous iteration of the proposed agreement, which were contested by the AMWU (and other unions) and dealt with in three decisions of a Full Bench of the Fair Work Commission. 194 Mr Scherf appeared for the AMWU in each of these matters. The history of attempts by OS Maintenance to seek approval of agreements are set out in those decisions but, of particular relevance, is that OS ACPM applied for approval of the previous iteration of the proposed agreement in circumstances where:

•  The previous iteration of the proposed agreement purported to cover OS Maintenance and its employees employed in the classifications set out in Schedule 1 of that agreement who undertake maintenance activities on a mining operation, which is taken to include port operations in Western Australia which service mining operations. It provided that any site-specific enterprise agreement that covers and applies to OS Maintenance and any “Employees” (as that term is defined in the proposed agreement) working at the specific site(s) will cover and apply to OS Maintenance and those “Employees” to the exclusion of the proposed agreement.

•  It was not in dispute in the earlier proceedings that those employed in classifications in black coal mining operations were be covered by the Black Coal Award and those employed in BHP’s iron ore mining operations in the Pilbara, were covered by the Mining Award;

•  No employee bargaining representatives were involved in the bargaining process;

•  OS ACPM employed 16 persons at the time who would be covered by the previous iteration of the proposed agreement, of whom 9 voted to approve the agreement; and

•  The employees who voted on the agreement were all employed in BHP’s iron ore mining operations in the Pilbara, Western Australia and were therefore covered by the Mining Award.

[239] Mr Scherf stated that on 28 November 2020, Mr Rohan Webb, State Secretary of the Queensland Branch of the AMWU sent correspondence to OS Maintenance, formally inviting the Company to bargain in respect of an enterprise agreement which would cover employees who perform maintenance and engineering activities in the State of Queensland and in accordance with the Black Coal Mining Industry Award 2020 and/or the Manufacturing and Associated Industries and Occupations Award 2020. Thereafter c orrespondence was exchanged in which BHP asserted that in light of the Commission’s decision no agreement covering OS Maintenance had been made and that that bargaining remained while the AMWU sought that on foot and OS Maintenance would continue bargaining for an enterprise agreement covering employees who undertake maintenance activities on a mining operation, including Port Operations in Western Australia which service mining operations and that, for the avoidance of doubt the scope of the proposed agreement was the same as that previously voted on by employees.  195

Numbers of OS Maintenance and OS Production employees

[240] Mr Scherf provided estimates of numbers of OS Production and OS Maintenance employees derived from information on BHP’s website and in particular, a page titled “Operations Services Enterprise Agreement Information Hub” which also contains links to separate pages for “Proposed Operations Services Production Agreement” and “Proposed Operations Services Maintenance Agreement” which in turn contain a link to a document titled “Operations Services Making an Agreement”. 196 The second page of that document describes as a “fact” that “In less than two years, our team is already made up of approx. 3,500 people.” Mr Scherf believes that number may be low and that, now, OS has greater than that number of employees, a significant majority of whom are production workers employed by OS Production. It is Mr Scherf’s understanding that OS Maintenance now employs approximately 900 to 1000 workers. This is because the AMWU has conducted extensive mapping exercises for the operations of OS Maintenance in Queensland, identifying members and potential members and believes there to be approximately 600 current employees in Queensland. In addition, OS Maintenance trained 150 new “trainees” who are being introduced into its workforce in Queensland.

[241] The AMWU estimates there are approximately 300 workers employed by OS Maintenance in WA, again, based off membership numbers and identifying the numbers of potential members. This suggests that production workers employed by OS Production outnumber employees of OS Maintenance who are maintenance workers, at a rate of greater than approximately 2:1. These rates change depending on the state. For example, in New South Wales, there are no employees of OS Maintenance. In Western Australia, Mr Scherf believes there may be approximately 300 OS Production employees deployed to iron ore mine sites.

Coal mining and metalliferous mining industries

[242] Mr Scherf gave evidence pointing to information in BHP’s Annual Report 2020 which states at page 13 that minerals assets are grouped into geographic regions – Minerals Australia and Minerals Americas. The mining operations Australia’s mining operations include:

•  Olympic Dam, located 560 km northwest of Adelaide, South Australia an underground mine which contains deposits of copper, gold, silver and uranium;

•  Western Australia Iron Ore, which consists of four processing hubs and five mines, and includes four main joint ventures (JVs): Mt Newman, Yandi, Mt Goldsworthy and Jimblebar;

•  New South Wales Energy Coal, which consists of the Mt Arthur Coal open-cut energy coal mine in the Hunter Valley region of New South Wales, Australia;

•  BHP Mitsubishi Alliance (BMA), which is owned 50:50 by BHP and Mitsubishi Development and operates seven Bowen Basin mines (Goonyella Riverside, Broadmeadow, Daunia, Peak Downs, Saraji, Blackwater and Caval Ridge) in Queensland;

•  BHP Mitsui Coal, which is owned 80:20 by BHP and Mitsui and Co and operates two open-cut metallurgical coal mines in the Bowen Basin (South Walker Creek Mine and Poitrel Mine) in Queensland;

•  Nickel West, which includes Mt Keith mine and concentrator, Leinster mine complex and concentrator and Cliffs mine, all located in Kalgoorlie, Western Australia.

Work performed by employees of OS entities

[243] Mr Scherf’s evidence is that in Queensland, OS Maintenance employees are principally employed at BMA mine sites being Saraji, Goonyella Riverside, Peak Downs, Caval Ridge and Blackwater in the Bowen Basin and perform work in workshops, coal handling preparation plant or in mobile maintenance teams which travel across mine sites. Based on inquiries with relevant branches of the AMWU, Mr Scherf said that there are currently no employees of OS Maintenance in New South Wales. Mr Scherf also said that there are some employees of OS Production employed at the Mt Arthur Coal mine in New South Wales and that plans exist to deploy OS Maintenance employees at this site. In Western Australia, after making inquiries with the WA Branch of the AMWU, Mr Scherf ascertained that OS Maintenance employees are principally employed in Newman, Port Hedland, Area C, Whaleback and Jimblebar – which are metalliferous mining sites. These employees mostly perform rolling shutdown work rather than at workshops located at mine sites, and largely transition between mine sites, while they are “shut down” performing work related to the shut down and then move onto the next mine. Employees of OS Maintenance in Queensland working in the coal mining industry very rarely perform shutdown work.

[244] Mr Scherf stated that the work of employees engaged by OS Production is separate and distinct to that performed by OS Maintenance employees. Production employees operate the plant and machinery and are directly responsible for the extraction of a resource. Maintenance employees service and maintain the plant and machinery and do not ever participate in mining activities. The two groups of employees do not perform work alongside each other. Mr Scherf also stated that OS Maintenance employees often work alongside permanent employees directly employed by BHP.

[245] Ms Baynton, Mr Brotherton, Mr Allen, Mr Taylor, Mr Hawken and Mr Boss, work at black coal mines in Queensland. Ms Baynton is employed at Caval Ridge Mine in Central Queensland as a Maintenance Technician and is an auto-electrician by trade. Generally, AMWU witnesses who work in the coal industry have no experience working in the metalliferous mining industry and vice versa. Most voiced concern about being required to “transfer” or otherwise being compelled to move to other States or industry sectors.

[246] The evidence of the AMWU black coal industry witnesses included that the term “Maintenance Technician” is used to describe any person who is responsible for performing maintenance and repairs on plant and equipment on a mine site. Most, if not all maintenance technicians at OS Maintenance are qualified tradesmen. Maintenance technicians work alongside service personnel and trades assistants. Trade assistants and servicepersons typically do not hold a trade qualification.

[247] These witnesses generally described working on teams engaged in servicing and repairing trucks, drills and other mechanical plant and equipment. Vehicles worked on include graders, loaders, wheel dozers, haul trucks, water trucks and dump trucks. Employees also undertake work on drills and some may work on the maintenance of wash plants. The brands of equipment worked on by AMWU witnesses in the coal industry include Caterpillar, Komatsu, Sandvik, Liebherr; Hitachi, Terex and Sandvik drills.

[248] Tasks undertaken included repairing air-conditioning units in trucks, changing components, diagnosing and fault finding, compliance checks, repairing broken down plant and equipment, undertaking change outs of components to keep machines running, inspecting tyres, monitoring the condition of oil, cleaning oil, checking the level of coolant and completing frame and body inspections. Maintenance work may be scheduled or unscheduled. Work is performed on diesel engines, hydraulic systems and electrical and major components. Periodic inspection is also undertaken by some employees which involves inspection at specified times and deciding whether to perform maintenance or whether a vehicle or machine can continue to operate. Some workers are engaged in testing cracks in vehicles using a range of gauges and undertaking repairs where required.

[249] Witnesses held a range of trade qualifications including auto electrician, fitter, boilermaker and mechanic. Servicepersons do not hold trade qualifications. Some gave evidence of holding other qualification relevant to their work including working at heights and tickets to operate forklifts and other machinery.

[250] Witnesses variously said that they do not work with BHP employees or with employees of contractors and described divisions in workshops along lines related to the particular plant and equipment being worked on and whether the work was done by BHP employees or employees of other contractors. Witnesses described “sides” of workshops or departments where specific kinds or work on specific types of vehicles, plant or equipment was undertaken. Witnesses all stated that they do not generally work or interact with production employees.

[251] For example, the evidence of Mr Hawken who works at the Caval Ridge Mine, was that depending on the work, he performs his duties in the workshop or in-field. Mr Hawken’s work predominately consists of PCR’s/change outs and breakdowns, which means he mainly works in-field. Mr Hawken only works on a specific fleet of Caterpillar earthmoving mining equipment. His understanding is that on other mine sites, OS Maintenance employees work on Komatsu and Liebherr mining equipment/machinery. Mr Hawken said that depending on job training, a diesel fitter will often specialise in particular machinery, plant equipment type or engine type. Mr Brotherton who works in the hydraulics team at the Goonyella Riverside Mine, also said that although the hydraulics team he works in is based in a workshop, his work is typically carried out in the field.

[252] Mr Hawken also said that the workshop houses different teams and crews that specialise in the repair and maintenance of different earthmoving equipment, repairs and rebuild including: wash plant team; pitstop service team who are responsible for servicing equipment once it has reached a certain number of hours, Field crew; Medium vehicles crew; and Tyres crew. Mr Hawken does not perform production work. When Mr Hawken is performing repairs and maintenance in-field, he works alongside BMA employees who complete production work, however his interactions with them are limited.

[253] Similarly, Mr Boss stated that the workshop he works in is equipped to carry out maintenance, repairs, overhauls and compliance checks on all types of heavy mining equipment and trucks, including: ultra-class haul trucks; coal trucks; ancillary equipment including pumps, lighting, plant and service vehicles; bulldozers; and excavators. In contrast to other crews, the ultra-class haul truck crews have a high voltage electrician. Almost all crews who perform work on heavy mining equipment at the workshop are employed by OS Maintenance. Mr Boss said that there are no BHP employees and very few contractors who work in the workshop. BHP employees work in production and operate draglines, dump trucks, shovels and excavators or load haul truck. BHP employees will also perform minor plant maintenance on the draglines or whilst the machines are in production. They do not perform these repairs in the workshop.

[254] Mr Taylor also referred to the “BMA side” of the workshop he works in and said that the work of the two sides is totally separate, though it is similar maintenance work. There are different maintenance procedures for the different machines that each side works on, but that is the only difference. The BMA side has a Boilermaker (a contractor, not BMA) who would have the same qualifications and skillset as Mr Taylor. Mr Taylor believes that only a small number of the workers on the other side are employed by BMA, the rest are contractors. If needed, a worker from one side can assist the team on the other side, but it is not common that they work together on a job.

[255] Mr Taylor gave evidence of limited interaction with BHP employees, when they bring their machine to the Workshop for repairs. Mr Taylor said that he will sometimes have a short discussion with production workers about the work that needs to be done, and the issue they are experiencing with the machine. Production workers will sometimes accompany a member of the maintenance team in the truck if the maintenance team needs to complete a brake test outside of the Workshop, because the maintenance team is not permitted to operate the machines on the haul roads.

[256] The AMWU witnesses who gave evidence in respect of the coal industry, generally said that work done by OS Production employees is very different to maintenance work. OS Production employees drive trucks, do the excavating, and haul coal to the wash plant. Workers in production are normally truck or plant operators, whereas workers who work in maintenance perform work maintaining the truck and plant, and many are trade qualified. There is no overlap between the work in maintenance and the work in production. For example, there are no Maintenance Technician roles in production, and there are no truck driver roles in maintenance.

[257] Mr Taylor stated that the work of the production workers is completely different to that of the maintenance workers. He understands that the production workers role requires them to sit in the air-conditioned cab of a machine and operate the machine. The most physical task they complete is walking up the steps to enter and exit the machine when they start and finish and take breaks. In comparison, Mr Taylor believes that his work is much more physically demanding. He estimated that production workers outnumber maintenance workers four to one on site.

[258] Mr Boss said that there are no BHP employees and very few contractors who work in the workshop. BHP employees work in production and operate draglines, dump trucks, shovels and excavators or load haul truck. BHP employees will also perform minor plant maintenance on the draglines or whilst the machines are in production. They do not perform these repairs in the workshop.

[259] Mr Malone and Mr Jones work for OS Maintenance at BHP’s iron ore mines. Mr Malone has been employed by OS Maintenance since 29 October 2019 in the role of Service Person Maintenance. Mr Malone does not have a trade qualification but has been working in the iron ore industry for approximately 10 years. Mr Malone has a range of qualifications, tickets and licenses including rigging, dogging, forklift, elevated platform, working at heights, confined space, atmospheric gas testing, firefighting response, National white card, Maritime Security Identification card, telehandler competency and overhead or gantry crane. It is Mr Malone’s belief that his employment is technically classified as a Trades Assistant. However, when he completed his pre-work medical examination, the paperwork provided to him by OS Maintenance stated that he was a Rigger and Mr Malone believes that his qualifications and the work he performs daily means that this is a more appropriate classification. the classification of Rigger is more appropriate.

[260] Mr Malone is part of a team responsible for changing and maintaining the equipment that powers the conveyor belts for the Sites, being the pullies, gear boxes and motors. Mr Malone’s team is responsible for maintaining all of the belts on the Sites, which Mr Malone has estimated would be approximately 500 belts of varying sizes. He describes the work as very technical and delicate and said that he is often working with millimetre measurements. Mr Malone’s work requires him to work a lot with his hands, and to lie in awkward positions across steel and bolts to access the equipment he is working with. Mr Malone also maintains chutes and screens, undertakes administrative work and performs general mechanical maintenance on site including grounds work.

[261] As a maintenance worker, Mr Malone’s work is separate to that of production workers on the Sites. He has very few interactions with production workers and generally only interacts with them to clean machinery or clear access to equipment so that it can be safely worked on. Mr Malone understands that the production workers on any site are based on site and are not “roaming crews” like his maintenance crew. This means that the production workers go to the same mine site every day and every swing, have permanent rooms where their belongings stay, and lockers they can use to store their bulky items. In contrast, as a Maintenance Worker, Mr Malone goes to a different camp every swing and does not have a permanent room or locker where he can store his belongings, which means he has to take them with him on each swing. Mr Malone cannot speak to whether the work of production workers is similar as he has not performed production work, but Mr Malone understands that the work of the on-site production workers is smaller scale than the work of the maintenance team. Any big maintenance jobs are completed by the maintenance team.

[262] Mr Malone also understands that the way production employees work is different. For example, production workers have work orders that list jobs that they have, and they go through and select and plan the work they do for the day. By comparison, Mr Malone said that that his work is often urgent and unplanned and can change at a moment’s notice. Mr Malone understands that the daily workload of maintenance crews is much larger than that of production crews. Mr Malone also said that the maintenance crew’s work is also usually higher priority work, whereas production workers will tend to perform smaller jobs that do not have to be completed right away. Because of this, it is Mr Malone’s view that his work is more affected by variables such as bad weather conditions.

[263] Mr Malone has limited contact with workers who are not working on his site. The only workers Mr Malone interacts with and who are not on his team are workers of the opposing night or day shift in his deployment, which is D Crew. Occasionally, Mr Malone will interact with OS Maintenance employees who are in a different deployment but on a “dynamic roster”. Mr Malone advised that the number of OS Maintenance employees on each site will differ and can be between 50 to 150 workers. Generally, OS Maintenance workers conduct the maintenance and repairs when a site is shut down. At the start of a shut down, the Production and Processing Team of the host site will hand control of the plant to the Shut Down Coordinator and Area Owner. At the end of the shut down, the Area Owner will assess the site with the Superintendent of the Production and Processing Team. If the Superintendent is happy with the plant, it will be handed back over to the Production and Processing Team.

[264] Mr Malone understands that BHP employees can do the same work as OS ACPM employees, and have the same qualifications, but do that work on a much smaller scale when the sites are not shut down. For example, they will conduct maintenance and repairs during smaller shutdowns which are called a “PMO2”. Mr Malone understood these involve locally isolating and shutting down a smaller area of the site which does not interfere with the production or processing of the iron ore.

[265] BHP employees occasionally assist OS Maintenance employees with some work, like tensioning and de-tensioning conveyor belts. OS Maintenance will also sometimes use Subject Matter Experts to sign off on their work, and those experts are usually BHP employees. Likewise, there have been occasions where the Engineer from Mr Malone’s team has provided expertise to BHP employees. Mr Malone acknowledges that he cannot speak to the exact work that BHP employees undertake on a daily basis because they are rarely present at the shutdowns he works on. However, Mr Malone advised he can tell OS Maintenance employees apart from BHP employees by differences in the way they are treated on the site.

[266] Mr Jones has been employed by OS Maintenance since about September 2019 in the role of technical maintenance personnel and is a qualified boilermaker. Mr Jones works at Newman in Western Australia, across five mines, fully owned and operated by BHP Billiton. In Mr Jones’ role he assists with a variety of shutdown maintenance services across all five mines, specifically, the repair and maintenance of pulleys, gearboxes and motors and ensures that all servicing requirements are carried out to a high standard and in a timely manner.

[267] Mr Jones said that all deployment teams report to the shutdown superintendent, who is responsible for all aspects of planning and executing a shutdown maintenance project. Prior to a mine shut down, each crew’s maintenance coordinator will speak with the shutdown superintendent to identify parts, labour, equipment and resources necessary to define the shutdown scope of work. A detailed shut down plan will typically have hundreds of tasks which are required to be completed within certain timeframes. After the scope of works is determined, the size of additional labour required must be identified and organised for each respective crew. Often this will involve discussions between each crew’s maintenance coordinator and their technical specialist. If additional labour is required, it is sourced from a labour hire provider called Programmed. Employees of Programmed are usually offered permanent employment with OS Maintenance when they have completed a restraint of trade period associated with another former employer.

[268] Mr Jones said that all workers employed within his deployment are OS Maintenance workers. Other deployments have OS Maintenance employees and contractors. The percentage of OS Maintenance employee to contractors is increasing everyday as more contractors are being replaced by OS Maintenance staff. OS Maintenance staff work across the different deployment crews, performing the same work performed by contractors. Given the critical nature of shutdowns, they will often have a second technical resource to double check and verify that work has been completed correctly. This is typically performed by a BHP site mechanical fitter. To ensure nothing is missed, the BHP site mechanical fitter will follow a checklist.

Terms and conditions of employment

[269] AMWU witnesses employed by OS Maintenance in the black coal industry in Queensland gave extensive evidence about the differences in their terms and conditions of employment and those applicable to employees covered by agreements between BHP and its employees. Generally, this evidence highlighted differences in earnings between OS Maintenance employees and BHP Maintenance employees and was to the effect that OS Maintenance employees are paid a lot less than employees of BHP doing the same work and that the conditions in the BMA agreement are better than the conditions provided for OS Maintenance workers.

[270] Other issues raised by various witnesses in the black coal industry in Queensland were terms and conditions relating to workers who do not live locally and who travel to and from coal mine sites to work and then return home. Generally, AMWU witnesses in the Queensland coal industry work 12.5 hours per day on rosters providing for seven days on and seven days off. While at work the employees live in camp accommodation provided by the Company. At the end of their working period, they travel to their homes. The means of travel are fly in/fly out (FIFO), drive in/drive out (DIDO) and bus in/bus out (BIBO). Witnesses stated that BHP employees have the cost of travel met while OS workers must meet the cost of their own travel and are not paid travelling time. For example, Mr Brotherton who is a FIFO worker is required to pay for his own flights but is then transported by bus from Mackay airport to the site and from the site to Mackay airport after working the last shift on his roster. Mr Brotherton also said that there is a FIFO salary sacrificing scheme, which means employees can pay for flights with their pre-tax income, but he does not use this scheme.

[271] Mr Allen who works at the Peak Downs Mine is a DIDO worker and said that he has to get himself to site and is not paid for his time driving to camp to commence his work swing, which Mr Allen advises is about six hours one way. Mr Allen is not reimbursed for his fuel costs, nor does he receive a travel or car allowance. Mr Taylor who works at the Caval Ridge Mine said that about 50% of the workers in their Workshop are FIFO workers. The rest of the workers – and nearly all of the OS workers – are DIDO workers. Mr Taylor drives back to his home after the end of his last shift, which takes approximately 2.5 hours. Mr Taylor also said that FIRO workers at the Caval Ridge Mine do not fly in or out of Moranbah, which is the nearest airport and if an OS Maintenance worker at the Mine is a FIFO worker, they fly in or out of Mackay.

[272] Mr Hawken who works at the Caval Ridge Mine said that BHP provides its employees with a flight budget, which means that their flights to and from work are paid for. OS Maintenance employees are required to organise and pay for their own flights. Mr Hawken said that he is lucky, because he can travel to and from the campsite via bus. OS Maintenance employees who live further out in areas like Townsville, are required to organise and pay for any travel associated expenses. They are not reimbursed their fuel or associated travel expenses. If Mr Hawken drives from home to the worksite, he is not reimbursed his fuel expenses.

[273] OS Maintenance employees are provided with return transport between camp accommodation and the mine site at which they are working. Mr Brotherton said that he is paid travel time of thirty minutes each day. Mr Allen is provided with accommodation at the mine camp at Buffel Park and bus transport from Buffel Park to the mine site every day, which is a 30 – 40 minute bus drive. Mr Allen said that he is not paid for that time. Mr Taylor travels to the mine site from his accommodation at Buffel Park (the same camp as Mr Allen resides at) on a bus provided by OS, which Mr Allen states takes approximately 5 minutes each way.

[274] Evidence about accommodation was that OS Maintenance employees are provided with rooms and meals, but those rooms are not permanent and employees are required to vacate them when they complete their work period and are allocated different rooms when they return after the period where they are rostered off. Mr Allen said that he has a permanent room which he shares with a worker who is on the opposite roster (i.e. finishing day shifts when Mr Taylor starts night shifts). There is a lockable cupboard in the room where Mr Taylor permanently stores his uniforms, so he does not have to take them home with him. Mr Taylor also has a locker on the site where he can store his tools, which are provided by OS.

[275] It was also asserted by AMWU witnesses in the coal industry, that BHP employees enjoy better pay and working conditions as follows:

•  While wages paid to OS Maintenance employees are on par with rates paid by contractors, BHP employees receive higher wages;

•  BHP employees receive their bonuses weekly, whereas OS Maintenance withholds bonuses until the end of the financial year and if employees leave employment before that date, they are not be entitled to their bonus;

•  BHP employees receive overtime and shift loadings;

•  BHP matches any salary sacrifice superannuation contributions employees make;

•  BHP employees who salary sacrifice their super are permitted to enter into a co-contribution scheme with BHP under which BHP matches any personal contributions made by a BHP employee up to a certain value.

•  BHP employees have guaranteed bonuses while bonuses for OS employees are more KPI-focussed and harder to achieve; and

•  BHP employees are guaranteed a percentage pay rise each year whereas. OS Maintenance employees are required to meet certain Key Performance Indicators (KPI’s) before they are eligible for a pay rise.

[276] AMWU coal industry witnesses also said that the BMA Agreement:

•  Provides for a better night shift allowance, and penalty rates;

•  Clearly sets out what each employee should be earning, year after year while it is unclear what OS Maintenance employees are earning, and how their base rates of pay and bonus payments are calculated;

•  Provides for guaranteed annual wage increases while the salaries of OS Maintenance employees are reviewed each year for potential increases but these are not guaranteed;

•  Provides that employees are not required to work Christmas or Boxing Day;

•  Contains clear processes for dispute resolution, whereas OS employees do not know about those procedures.

[277] Evidence was also given that OS Maintenance employees are often required to perform work on the mine site, in the field. This means that they are required to work in harsh conditions including, extreme heat, cold and rain. While there are many workshops at mine sites, some work may be required to be performed in the field because certain machinery cannot pass the height restrictions to enter the workshop.

[278] Ms Baynton and Mr Hawken gave evidence about discounts they enjoy which are also enjoyed by BHP employees. Ms Baynton listed those benefits as healthcare subsidies and discounts through certain provides such as Telstra and car dealerships.

[279] In relation to the iron ore sector, Mr Malone’s evidence is that he works the following roster and shift pattern:

•  A day swing of eight days straight on the day shifts, then taking six days off; and

•  A night swing of seven night shifts straight, then taking seven days off.

[280] Mr Jones works the same roster pattern. Both Mr Malone and Mr Jones work 12.5 hours per shift, with reasonable overtime as required. However, for the previous three swings, Mr Malone and his crew have been working approximately 14 hours per shift. Mr Malone and Mr Jones work at mines when they are “shut down”, meaning that either the whole or some of the mine has ceased to operate while maintenance or repair work is conducted. Mr Malone advised that some shutdowns are planned, while others are caused by unexpected faults that need to be repaired urgently.

[281] Mr Malone generally moves sites every swing. This means that Mr Malone has to take his bag with him to every swing and also take it home with him. At the start of each swing, he flies from his home near Perth to the camp for the particular Site and flies back for his days off. Depending on the site, the travel time from camp to the site can be between 30 minutes to just over an hour. The bus schedules mean that Mr Malone’s team usually arrives at the site after the previous team has already left. The hours of his shift do not include travel time to and from camp in the bus. Mr Malone is not paid for any time he works that is in excess of 12.5 hours per shift. Including travel time, Mr Jones works up to fourteen (14) hours per day. Mr Jones advised that he is not permitted to work in excess of fourteen (14) hours, as working excess would increase the chance of fatigue which can impact on productivity and safety.

[282] Mr Malone also said that he has observed that OS Maintenance employees are generally treated worse by site management and provided examples such as being denied access to certain crib rooms and the way that requests for tooling are dealt with. Mr Malone has read the Western Australia Iron Ore Agreement, which he understands covers the employment of BHP employees on the sites where he works. From reading that Agreement and speaking to both OS Maintenance employees and BHP employees, Mr Malone understands that the BHP employees have better working conditions and entitlements, including:

•  BHP employees receive a “site allowance” due to their being based at a site. Mr Malone understands that this is 20% of their base rate of pay. Mr Malone has been told that his crew is not eligible for this as they are a “roaming crew”;

•  BHP employees receive a “night shift loading” far beyond what OS Maintenance employees receive. Mr Malone receives approximately 3% on his base rate of pay, while he understands that BHP employees receives much higher than that, though Mr Malone acknowledges that he is not sure of the exact amount;

•  BHP employees have their prescription safety glasses paid for by the company, whereas Mr Malone had to purchase his out of pocket. Mr Malone’s glasses cost him approximately $500.00;

•  OS Maintenance employees do not receive a “tooling allowance”, despite having to bring their own tools with them to and from each job. This increases the risk that they are damaged, lost or stolen, and can incur significant cost to them. BHP employees have their tooling supplied; and,

•  BHP employees are eligible to take part in the “Matched Superannuation Scheme”, which significantly increases their superannuation contributions. Mr Malone was offered to be part of that scheme when he was employed but was later informed that he was not eligible because he was not a BHP employee.

[283] Mr Malone believes that because of these allowances, if he was a BHP employee in a similar role, he would be earning substantially more money. He understands that the pay of BHP employees and OS Maintenance employees is affected by the roster, holidays, and other variables, which makes a direct comparison difficult.

[284] Mr Jones’ evidence is that BHP employees who perform plant maintenance during processing get paid more than OS Maintenance employees. They are typically paid more because they work a two/one roster (fourteen days on/seven days off). There is a significant difference in the pay of a crew member who works a one/one roster compared to a person who works a two /one roster. This gap increases the longer the rostered on time is in comparison to the off time and they receive a higher hourly rate.

[285] Mr Jones also said that he receives certain BHP benefits and perks, including:

•  corporate employee offers at Telstra. This includes a discount on Telstra bills or mobile handsets;

•  corporate gym membership at snap fitness. This entitles Mr Jones to a free membership to all snap gyms. Mr Jones understood that OS Maintenance plans to cancel the corporate gym membership for employees; and

•  Gold Velocity membership. This entitles Mr Jones to extra perks when flying, for example choosing his preferred seat on a plane and priority check in, screening and boarding. Mr Jones understood that OS Maintenance plans to cancel employee Gold Velocity membership.

[286] Mr Jones noted that there are some benefits and perks that BHP employees receive that OS Maintenance employees do not:

•  Their own rooms at camps;

•  Their own dedicated crib rooms while OS Maintenance and contractors have a separate area for down time; and,

•  a 20% site allowance which Mr Jones understands is a payment for working in rough or dirty conditions.

[287] Mr Scherf gave evidence detailing the enterprise agreements applying to BHP employees as follows. In Queensland, BHP maintenance workers are covered by the BMA Enterprise Agreement 2018 the BMA Agreement, which provides that it covers and applies to:

(a) BHP Coal Pty Ltd (“the Company”) with respect to the Employees employed at the following mines currently managed by BHP Billiton Mitsubishi Alliance (“BMA”):

(1) Goonyella Riverside Mine;

(2) Peak Downs Mine;

(3) Saraji Mine;

(4) Norwich Park Mine;

(5) Gregory Mine;

(6) Crinum Mine; and

(7) Blackwater Mine

(each, a “Mine” and collectively, the “Mines”);

(b) The Employees employed by the Company who perform work covered by Schedule A of the Black Coal Mining Industry Award 2010 (“BCMI Award”) and who are members or eligible to be members of any of the Unions and who are engaged at the Mines in the classifications prescribed by this Agreement (“the Employees”); and

(c) The Unions, provided each on becomes covered by this Agreement pursuant to section 183 of the Fair Work Act 2009 (Cth).

[288] In New South Wales, maintenance workers employed by BHP are covered by the Mt Arthur Coal Enterprise Agreement 2019 which provides that it covers and applies to:

•  Mt Arthur Coal Pty Limited (“Company”); and

•  Employees employed by the Company who perform work covered by Schedule A of the Black Coal Mining Industry Award 2010; and

•  the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU – Mining and Energy Division). This agreement is binding on all of the above parties.

[289] In Western Australia, BHP maintenance workers are covered in iron ore operations by the following agreements:

•  Mining Area C Operations Agreement 2015;

•  Eastern Ridge Operations Agreement 2014;

•  Whaleback Fly-In Fly-Out Agreement 2013;

•  Yandi Operations Agreement 2013;

•  BHP Billiton Iron Ore Operations Union Collective Agreement 2012; and

•  BHP Billiton Iron Ore Port Operations Agreement 2012.

[290] Mr Scherf referred to an analysis conducted by the AMWU in Queensland, of conditions for BHP employees under the relevant enterprise agreement against existing pay and conditions for OS maintenance workers at Blackwater, Caval Ridge, Goonyella, Saraji and Peak Downs mine sites. The document, headed “Same Job. Same Pay” states that “The AMWU is fighting for fairness for BHP Operations Services Workers” and sets out a comparison between BMA (BHP) conditions with respect to pay, bonus, requirements to work over the Christmas period, tool allowances, wage increases and accident pay. Mr Scherf said that this comparison shows consistently that OS Maintenance employees are worse off than BHP maintenance workers.

[291] Mr Scherf also referred to information he had been provided in emails from Ms Jessica Morkel, Principal Employee Relations, on 4 March and 19 April 2021 setting out salaries for employees under the proposed maintenance agreement based on key rosters worked at sites where OS Maintenance employees were employed under the Black Coal Award and the Mining Industry Award respectively. Mr Scherf said that the terms and conditions that OS Maintenance is proposing for maintenance workers are significantly less than what is paid to employees directly engaged by BHP who perform the same or similar work. Further, Mr Scherf referred to rates paid to employees of OS Production and OS Maintenance and said that they are significantly different, with maintenance employees typically earning up to $20,000 to $30,000 more than production employees.

[292] Evidence was also given by Mr Scherf about differences in terms and conditions of employment between industries and States. In this regard, Mr Scherf said that a significant concern expressed to him by the AWMU membership and related to him by the other branches of the AMWU, is that a single agreement covering all employees of OS Maintenance across Australia, will not lead to fair outcomes in relation to terms and conditions of employment, having regard to relative conditions in each state, and between the coal mining and iron ore mining industries. Mr Scherf said that pay is different between States, in large part because of commodity prices but also because of the different awards that cover the different industries, and which confer different entitlements. Iron ore is more cyclical in terms of its price than black coal, so labour market rates in iron ore can fluctuate more than black coal. Presently, iron ore is at an all-time high, but that has not always been the case. As the price of iron ore has increased of late, maintenance workers in WA attract greater market rates of pay than black coal mine workers in Queensland.

[293] Notwithstanding the current increase in the iron ore commodity price, Mr Scherf said that there is a significant disparity between amounts paid to BHP maintenance workers employed in Queensland and Western Australia. According to Mr Scherf, black coal workers directly employed by BHP have traditionally benefited from being in a heavily unionised workforce, with consecutive enterprise agreements supporting good terms and conditions.

[294] Rostering between iron ore and black coal is different which also has an impact on pay. In the black coal industry in Queensland, more workers live near the mines and in nearby communities and so the roster is more family-friendly, often providing for seven days on, seven days off. By contrast, because of the distance between iron ore mines, a seven day on, seven day off roster is not always practicable, and so workers may work a three week on, one week off roster.

[295] Rates of pay for black coal workers in Queensland are greater than rates of pay for employees performing similar work at Mt Arthur in New South Wales. Mt Arthur’s thermal coal is primarily for domestic demand. The greatest amount a person at Mt Arthur would earn, is $138,000.00 per annum for an advanced mineworker, which includes maintenance employees. Mr Scherf stated that by contrast, a person directly employed by BHP in iron ore work, may earn $140,000.00 to $150,000.00 per annum and in Queensland, BMA salaries across mine sites where employees of the respondent are engaged are higher than the Mt Arthur base.

[296] Mr Scherf asserted that the AMWU membership employed by OS Maintenance in Queensland, have expressed their concerns that historically higher rates of pay for Queensland coal mining workers, will be undermined in the course of the current negotiations, and in the future, by bargaining with workers employed in NSW coal and iron ore operations in Western Australia. Similarly, the AMWU’s members in Western Australia have also expressed concerns that terms and conditions which prevail in Western Australia, which they believe are favourable, may be lost if they are forced to bargain alongside workers in a different industry, on the other side of Australia.

[297] Mr Scherf tendered information from the Hay Australia Annual Salary
Guide FY 2020/21 derived from an annual online survey of salaries in various sectors of the economy which provides a salary range for various roles in each sector covered by the salary guide, in salary tables. The salary guide contains tables for the Resources & Mining sector, for fixed plant maintenance workers and mobile plant maintenance workers. Mr Scherf said that the roles described in those tables broadly correspond with the types of work performed by employees of OS Maintenance in Queensland and Western Australia. Mr Scherf said that these guides suggest that there are significant differences between rates of pay across these roles in Queensland, New South Wales and Western Australia. This is consistent with Mr Scherf’s own understanding of the different rates of pay across states derived from his role organising workers employed by OS Maintenance in Queensland.

[298] In response to Ms Morkel’s rejection of his evidence that different rostering in the black coal industry impacts on pay and the proportion of workers with local postcodes indicating that the majority of OS Maintenance employees in both Queensland and Western Australia are not local and travel by plane, car or bus to site, Mr Scherf explained that many workers in Queensland who work in the Bowen Basin live in the local community or nearby and are able to drive to site from Rockhampton or Mackay. Mr Scherf clarified that his comments were encompassing those workers travelling from Rockhampton or Mackay to Moranbah.

Differences in mining operations between coal mines and between coal and non-coal mines

[299] AMWU coal industry witnesses working in Queensland gave evidence to the effect that every coal mine is different. For example, Mr Allen said that at the Caval Ridge Mine, there is a smaller vehicle fleet so there was only a day shift for maintenance workers such as himself. Although Caval Ridge has a smaller fleet, Mr Allen serviced any vehicles with wheels including graders and loaders. At Caval Ridge, trucks do not carry wheel chocks while at Peak Downs they do. This means that Peak Downs Mine trucks have wheel chock carriers that need maintenance and repair.

[300] In 2000, Mr Allen worked for about 12 months as a contractor at the BHP Newman Iron Ore processing hub but was not employed by OS Maintenance at that time. Mr Allen stated that the Iron Ore mines and processing hubs are different to black coal mines. Black coal mines are generally in softer ground, meaning that the mine benches (levels) must be wide to ensure they do not collapse. Mr Allen explained that because iron ore is mined from harder ground, the benches can be much closer together. Iron ore is more abrasive, so the trucks are designed differently, and with different materials, and there is a lot of more wear and tear on trucks carrying iron ore.

[301] An example given by Mr Allen is that in iron ore mining, the trays of trucks have a lot more wear packages than black coal trucks, which generally only have wear packages on the last two metres of the truck trays. A wear package is a hardened plate that is welded onto a truck tray. Once worn down, they are replaced, meaning that wear package, instead of the truck tray itself, is what sustains the wear and tear. Because of the much greater use of wear packages in iron ore, a lot of the boilermaker work in iron ore mines is focussed on replacing wear packages. By contrast, Mr Allen advised that the work in black coal is much more focused on repairing cracks to truck bodies.

[302] Now that Mr Allen works at Peak Downs Mine, he is occasionally required to travel to Caval Ridge Mine to use the facilities, as that mine have a more sophisticated fabrication workshop. Mr Allen does this approximately twice a year. Beyond that, Mr Allen does not have any contact with OS Maintenance workers at other sites within Queensland, let alone in New South Wales or Western Australia.

[303] Mr Taylor stated that when he worked for previous employers, he worked at other black coal mines in Queensland, including Hail Creek Mine, Blackwater, Goonyella Riverside Mine, and Peak Downs Mine. Mr Taylor has not worked at any other mines during his employment with OS Maintenance. When he commenced employment with OS Maintenance, Mr Taylor was advised that the Company would not move maintenance workers to other mines, because they want to keep them on the particular machines at the site that they are trained on. Mr Taylor would not like to be moved to other mines in Queensland. This is in part because all of Mr Taylor’s family lives near Moranbah and Mackay, which would be harder to visit if he had to relocate.

[304] Mr Taylor is aware of one OS Maintenance employee who was moved from Caval Ridge Mine to the Peak Downs Mine. However, moving between mines is not common. Mr Taylor has never worked at a mine in New South Wales and does not currently plan to. He does not know whether his skills would be transferrable to a coal mine in New South Wales. He states that if he were required to work in New South Wales, that would involve relocating, which Mr Taylor is not prepared to do. Mr Taylor believed that if he was required to relocate, he would likely quit, and he believed that many of his colleagues would as well.

[305] Mr Taylor also stated that he has not worked at a mine in Western Australia. It is Mr Taylor’s understanding that the mines in Western Australia are iron ore mines, which are completely different. He further understood that the mining itself is different, in that they do not have to dig as deep. This would impact the machines they use, for example, not using drag lines or big shovels. Also, the actual material is different. For example, iron ire does not blow up like black coal can, but it can catch fire.

[306] Mr Boss stated that he has never worked interstate or in another location for OS Maintenance. Mr Boss has never worked on any BHP iron ore locations. In the past, he has worked with other OS Maintenance employees from different OS Maintenance sites in Queensland who assisted with various shutdown projects while mines were not in production. To Mr Boss’ knowledge, OS Maintenance no longer allows employees from different sites to perform shut down maintenance at the mine site.

[307] Mr Malone only works at surface mines, so all of his work is performed above ground. Mr Malone has only ever worked in iron ore in Western Australia and confirmed that he has never worked at a black coal mine. In Mr Malone’s experience, it is uncommon for workers in iron ore to have worked on black coal sites. As an employee of OS Maintenance, Mr Jones has never worked at another BHP location in another state, nor has he worked at another BHP coal mine location. Mr Jones has never had contact or worked with another OS Maintenance employee from a BHP location in another state and he does not interact with BHP employees.

[308] From Mr Scherf’s knowledge and experience, developed over his time organising AMWU members in Queensland, the operations of BHP in each state are quite separate to the other. Employees of OS Maintenance in Queensland, are not, to Mr Scherf’s knowledge, transferred to New South Wales to perform work or to Western Australia. While, on occasion, workers in one state may be transferred between mines in one state, they are not transferred interstate unless they specifically request to do so. Similarly, workers in iron ore operations are not transferred to coal mine operations and vice versa unless they specifically request to do so.

[309] Mr Scherf said that the work performed by OS Maintenance employees in Queensland has no relevance, or impact on, the work of OS Maintenance employees in Western Australia and vice versa. Mr Scherf asserted that black coal mining operations and iron ore mining operations are very distinct, including because:

•  the method of mining black coal and iron ore is significantly different.

•  Black coal is principally mined by blasting to the seam and bringing the coal to the surface and then washing it and loading it. It can also be mined underground via a longwall and differs in its usage i.e. thermal versus metallurgical.

•  Iron ore is found in rock and is extracted primarily through crushing and separate treatment.

[310] Mr Scherf further asserted that the main difference for AMWU members is that the type of maintenance work performed on an iron ore mine will be specific to the plant used in that process and vice versa for coal. There are also differences between the coal operations in New South Wales and in Queensland, including that Mt Arthur Coal is a coal mine that exists primarily to satisfy domestic power demand (i.e. thermal coal with little of it being exported). QLD Coal is metallurgical and is almost exclusively exported. The price of metallurgical coal generally has a higher export value, because it is used for other commercial purposes such as steel-making. It is a manufacturing coal, which is the most efficient and cost-effective way to make steel. The only use for thermal coal is for electricity generation and to feed power demand and, while prices are cyclical, generally metallurgical coal attracts a higher price than thermal coal.

Workplace health and safety

[311] Ms Baynton, Mr Brotherton, Mr Allen, Mr Taylor, Mr Hawken and Mr Boss, gave evidence about workplace health and safety matters impacting maintenance employees in the black coal industry said to be relevant to the AMWU’s scope application. In summary, this evidence dealt with requirements to comply with the Coal Mining Safety and Health Act 1999 (Qld) (the CMSH Act) which provides guidelines and standards to carry out mining operations safely in Queensland and the Coal Mining Safety and Health Regulation 2017 (Qld) (the CMSH Regulation). The witnesses for the AMWU also gave evidence about the need to apply Standard Operating Procedures (SOPs) when carrying out repairs or servicing work. The SOPs are very detailed and contain various mandatory requirements about how work is to be completed. Witnesses also gave evidence about the need to follow detailed testing and tagging procedures and procedures isolation of machinery while it is being worked on.

[312] All OS Maintenance and BMA employees have to stay up to date with SOPs and are required to download and them via a training portal called IML. Once the SOP is downloaded the employee must read and sign an acknowledgment confirming that the employee has;

•  read and understood the SOP; and

•  understood that failing to observe the SOP may result in the termination of their employment.

[313] A SOP can be general and apply to all employees (production and maintenance) or it can be specific to particular operations or areas. Mr Taylor also described the process to isolate various machinery by “passing it out”. This involves bringing the machine into the workshop, putting it in neutral until it is stable, shutting it down, and ensuring all energy is discharged. Mr Taylor then isolates the machine by flipping a switch, and test to see if it is isolated (called “testing for dead”). That process allows Mr Taylor and other maintenance workers to commence work on the machine. If a machine is not isolated, work cannot commence on it.

[314] Mr Boss said that he understands that all OS Maintenance technicians are also required to use a software call SAP, which supports mining-specific processes. By using SAP maintenance technicians can upload and receive key information about any maintenance projects to ensure that all processes run effectively.

[315] Mr Malone and Mr Jones gave evidence about health and safety requirements relevant to maintenance workers in the metalliferous mining industry. Those employees are required to comply with various workplace health and safety laws, including the Mines Safety and Inspection Act 1994 (WA), the Mines Safety and Inspection Regulations 1995 and the Occupational Safety and Health Act 1984 (WA). Mr Malone also has to comply with various work health and safety obligations, involving fitness for work, walking each job to physically assess the area and ensure it free form hazards, identifying and reporting hazards and implementing hazard management processes. Mr Malone also described “lock on” protocols by which maintenance employees take responsibility for safety on particular work. Mr Malone also explained that they do not carry out testing and tagging of electrical machinery, as his crew works mostly on maintenance work that involves repairing or replacing equipment. However, they are required to mark-up certain pieces of equipment, such as drawing arrows on motors to indicate which direction they travel in. This information is also recorded in an online program that they use.

[316] Mr Jones described requirements to comply with written work procedures that are designed to manage work processes, plant and equipment in a safe way. For example, prior to carrying out any work, Mr Jones is required to perform a Job Hazard Analysis (JHA) to identify and assess hazards and set up safe work practices. Mr Jones is also required to complete a “take five” safety checklist to identify any safety hazards before starting work on site. The take five procedure requires Mr Jones to look, assess, control and monitor risks or hazards before completing any work. When an activity is performed that requires a JHA, a work system is implemented whereby the person responsible for the authorisation of the JHA (the authoriser) signs the JHA, together with the names and signatures of the work crew who are responsible for completing the work. When a JHA is created specific job hazards are identified together with precautions to be taken to ensure that the work is performed safely. For example, the use of specific tools, isolations of Personal Protective Equipment.

[317] In Mr Jones’ role, he is not required to isolate machinery or plant when carrying out repairs. Machinery and plant are isolated by an “isolation officer” before any repair work is carried out. Once the machine is isolated, Mr Jones is permitted to carry out maintenance work provided he has undertaken steps involving analysing hazards, permitting, checklists and isolation process requiring him to lock on to a hasp (a multi-person padlock) using a personal padlock, which prevents a machine from operating until all padlocks have been removed.

[318] In Mr Jones’ role, he is also required to place clamps on conveyer belts. The clamps are used to pull a conveyer belt and hold it firmly in place. Maintenance work is much simpler and safer when clamps are in place. Mr Jones does not carry out testing and tagging on electrical plant or machinery. This is typically performed by a qualitied electrician. He is also not required to use SAP, which is mining software designed to support mining processes.

[319] Mr Jones does not know the workplace health and safety obligations of technical maintenance personnel working interstate. Mr Jones does know that certain high risk tickets need to be re-issued in a coal mine to be coal competent. Mr Jones knows of this because he has worked in a coal mine for approximately 12 months in Queensland for a company called Complete Contracting services. When Mr Jones applied to work in the coal mine in about 2010, he was advised that his Elevated Working Platform ticket was not recognised. Mr Jones worked in that Queensland coal mine for approximately 10 months. However, he worked in construction, not in the processing or extraction of coal or in the maintenance of mining plant and machinery. Mr Jones’ work in construction at mines involved the construction of workshops, processing plants and wash plants.

[320] Mr Scherf also gave evidence about the different regulatory regimes and health and safety obligations, applicable to mining work in Queensland, and Western Australia. In Queensland, black coal mining work is subject to the Coal Mining Safety and health Act 1999 (Qld) and the Coal Mining Safety and Health Regulation 2017 (Qld) in addition to other Queensland workplace health and safety legislation. There are unique bodies established to regulate and oversee this work, including the Mines Inspectorate, Board of Examiners and the Commissioner for Mine Safety and Health.

[321] In Western Australia, there is a distinct statutory scheme for mining, which includes the Mining Act 1978 (WA) and the Mining Regulations 1981 (WA). Safety standards are different in iron ore mines as compared to black coal mines, because black coal mines are particularly dangerous, including due to the volatile gases generated in the process of mining. Employees are at greater risk of becoming ill through working on a coal mine from conditions unlikely to be experienced on an iron ore mine such as Coal Workers’ Pneumoconiosis (Black Lung), Mixed Dust Pneumoconiosis, Silicosis, Chronic Obstructive Pulmonary Diseases and Asbestosis. Also, due to the manner and processes by which black coal is mined, employees are more likely to suffer an accident such as being crushed or injured from fires and explosions. Coal mines also tend to collapse if the seam is mined in an incorrect way. Collapse can occur on open-cut mines, where there is, in effect, a landslide. According to Mr Scherf, this means that the safety of black coal mines is more tightly regulated.

[322] In response to the evidence of Ms Morkel and Mr Ruggieri rejecting his assertion that black coal mines are particularly dangerous, Mr Scherf said that the dangers and safety hazards associated with working at a coal mine, including the hazards of coal dust, have played and continue to play an important part in the attitude of AMWU members employed in Queensland coal mines to their industrial conditions. An example of those conditions is a form of accident pay provided for in the Black Coal Award.

Views of AMWU members about scope

[323] Ms Baynton prefers the scope proposed by AMWU in these proceedings – a State and industry specific maintenance agreement – for the following reasons. Firstly, Ms Baynton states that the work she performs is separate from other worksites or work location. Ms Baynton is unaware of any OS Maintenance workers at Caval Ridge mine site who have ever worked at other BHP worksites or work locations in any other State as part of their employment with OS Maintenance.

[324] Ms Baynton believes that it would be more appropriate to have State-specific enterprise agreements which take into account particular features or circumstances associated with work in each State such as different rosters worked by employees. Secondly, Ms Baynton is concerned about being covered by an enterprise agreement which also covers iron Ore workers in Western Australia or other black coal workers in other states, as it may mean that she will earn less over time, because the average maintenance technician with Ms Baynton’s trade qualification gets paid more per annum in Queensland compared to other States. Ms Baynton also said that the average pay for coal mine workers is higher compared to iron ore workers, because historically the value of coal has typically been higher than iron ore and because the terms and conditions for workers covered by the Black Coal Award have been better compared to non-coal mining industries.

[325] Thirdly, Ms Bayton prefers a separate enterprise agreement for maintenance employees because maintenance employees do work that is distinct from the production employees. Ms Baynton’s description of the distinction is that production employees break plant and machinery and maintenance employees fix it. Ms Baynton also prefers a separate enterprise agreement for maintenance employees because there are a significantly larger number of production workers compared to maintenance workers who have different interests. The ratio of production workers to maintenance workers is 4:1. As a result, Ms Baynton is concerned that the interests of maintenance workers may be overwhelmed by the views of a larger majority of production employees if they were covered by the same agreement.

[326] It is Mr Allen’s preference that the scope proposed by the AMWU in these proceedings of State specific maintenance enterprise agreements is adopted. Mr Allen stated that the conditions of employment are different in each state and that workers in Western Australia are flown into their mine sites, whereas in Queensland, they would have to make their own way. Workers in Western Australia also work longer rosters. Mr Allen understands that maintenance workers at BHP’s Western Australian iron ore mines often work a two weeks on, one week off roster. Mr Allen stated that he is concerned that rates of pay and other benefits which have developed in response to state-specific circumstances will be undermined.

[327] Mr Brotherton’s preference is for the scope proposed by the AMWU in these proceedings – a State and industry specific enterprise agreement – because different mines have different working conditions. There are also different safety concerns and hazards when working in a coal mine. This is because of the properties of coal that differ from other mined materials. For example, coal dust is one of the core risks associated with undergrounds coal mining. There are processes specific to coal mining to prevent the combustion of coal and coal dust and to reduce overexposure to coal dust which can lead to black lung disease.

[328] Mr Brotherton also gave the following reasons for preferring a separate enterprise agreement for maintenance employees. Firstly, the duties, qualifications and conditions of work are different, which means production workers and maintenance workers have different interests, including related to the environments in which they work. As a maintenance worker, Mr Brotherton is required to work in extreme heat, cold and rain. Production workers predominately work in an airconditioned cab. Secondly, production and maintenance workers hold different qualifications, with most maintenance workers being required to be trade qualified. Mr Brotherton is aware that some production workers only require licences and security and medical clearances to work onsite. Thirdly there are differences in the duties that maintenance and productions workers perform. Production workers operate the machinery and maintenance workers repair and maintain the machinery. Fourthly, there is a significantly larger number of production workers to maintenance workers. The ratio of maintenance workers to production workers is about one to four or five. Mr Brotherton is concerned that, due to that imbalance, the interests of production workers will be advanced over the interests of maintenance workers.

[329] Mr Taylor said that the differences between work done by maintenance and production workers is a reason that he would be concerned about being on the same agreement as the production workers. Maintenance and production workers have very different interests and concerns at work. Mr Taylor believes that if in the bargaining process, production workers were pushing for something, and maintenance workers were pushing for something else, the maintenance workers would lose out. This is because there are far more production workers. For example, Mr Taylor understood that production workers are concerned with having various classifications to match the skill level of the workers, so that a worker who operates a dump truck would be paid less than a person who operates a dump truck and a rigger. Mr Taylor stated that that sort of classification system would not be applicable on the Workshop floor, as they all work together. For these reasons, and because the working conditions for maintenance and production workers on site are so different, Mr Taylor would prefer to be covered by a maintenance-specific agreement.

[330] Mr Taylor would also be concerned about being covered by the same agreement as mine workers in New South Wales and Western Australia because he believes that the Queensland mine workers would be outnumbered. This is because, for example, many iron ore mines in Western Australia have more autonomous machines. This means they have fewer production workers, and more maintenance workers. Mr Taylor understood that it is for these reasons that it is not common for workers to go between iron ore and black coal mines. Mr Taylor he is aware of one worker who transferred from black coal to iron ore but understood that it was for family reasons.

[331] Mr Hawken prefers the scope proposed by the AMWU in these proceedings, that is a state and industry specific enterprise agreement for maintenance employees for reasons including that there are differences in climate between Queensland and Western Australia; and a difference in interests of maintenance workers compared to construction workers including their working conditions. In relation to working conditions, Mr Hawken said that maintenance work is undertaken in extreme weather and is physical, involving carrying heavy tools and lifting heavy machinery and parts and maintaining awkward positions while working in confined spaces, while production workers work in airconditioned cabins. Mr Hawken also pointed to differences in skills and knowledge including that maintenance workers undertake diagnostic work including being constantly required to learn new things about new technologies, techniques and tools. Mr Hawken also said that there is a greater number of production workers to maintenance workers and expressed concern that if production workers were covered by the same agreement, the interests of maintenance workers would be diluted by the interests of production workers. Further, Mr Hawken referred to different safety concerns associated with working in the coal industry such as coal dust and respiratory problems which result in “black lung” disease.

[332] Finally, Mr Hawken referred to different processes for mining coal and iron ore stating that coal is usually deep mined while other mined materials, like lead, are mined in an open pit, or are extracted via surface mining. Mr Hawken knows this because he worked at a hard rock mine when he was completing his apprenticeship in Mt Isa, Queensland. Coal is also softer which means that it is processed and transported differently compared to other mined material.

[333] Mr Boss raised similar issues to those identified by Mr Hawken and also referred to the fact that terms and conditions of employment of coal mining and non-coal mining employees are underpinned by different awards which will make interpreting an agreement difficult. Mr Boss is also concerned to preserve higher rates of pay and different conditions enjoyed by coal mine workers compared to those of workers in the iron ore mining industry. Mr Boss raised the issue of coal mining workers undertaking different and separate work to non-coal mining workers and referred to different extraction and processing methods for coal and iron ore including at wash plants. Mr Boss also raised concerns about different procedures used by trades within the two industries and gave as an example, specific techniques and technologies that are used to analyse if there are gases emitted from the coal which may result in spontaneous combustion (a chemical reaction which can result in fire). Mr Boss said that this information is used to monitor systems in place and ensuring mining staff are safe. There are also different plans and processes on how to respond to coal combustion, for example, the treatment of a heating stockpile of coal, chemical spraying, fire suppression and fire evacuations. There are different work, health and safety laws, regulations and guidelines to be compiled with in the two industries, in part because of the difference in the work involved.

[334] Finally, Mr Boss said that most OS Maintenance employees, including Mr Boss, are not required to travel to different mine sites, so Mr Boss advised that he does not understand why he should be covered by an agreement which covers workers in other states, that he cannot currently be transferred to. Mr Malone who works in the iron ore industry, also prefers the scope proposed by the AMWU in these proceedings and believes that working conditions between the states are very different. In terms of the geographical differences, the climate at WA mines is very abrasive, and employees regularly have to deal with tropical weather and cyclones. These conditions make their work much harder, as they increase the risk of flooding on site, which makes the mud and steel on site very slippery and dangerous. Recently, Mr Malone understood that his team’s opposing night shift got stuck at camp because of the weather and had to sleep outside on the grass for 6 hours. Mr Malone said that this has also happened to him and that when he first started in his deployment, he had to sleep for a night on park benches because the weather meant employees could not get back to their rooms.

[335] Another reason for Mr Malone’s preference commodity prices with Mr Malone’s understanding of demand for iron ore being that it is likely to far exceed that of Black Coal in the future, and that iron ore is generally more profitable. Mr Malone does not think it is appropriate to be tied by an agreement to workers in other States. He understood that the interests of iron ore workers would be different from those of black coal workers in other States and would be concerned about their interests dictating their working terms and conditions. Mr Malone does not and will not ever see workers in other States and has not ever intended to go over there to work.

[336] Mr Malone understands that black coal and iron ore operations are very different. For example, without having worked in Black Coal, Mr Malone understood that mines are mostly underground mines which would be a completely different system of work. The iron ore mines where Mr Malone works are surface mines. Mr Malone does not know whether black coal mines even use the same systems of transporting the material as they do, being huge snake-like conveyor belts. Maintaining those conveyor belts constitutes most of Mr Malone’s work.

[337] Also, Mr Malone understands that a lot of Black Coal mines are located in more residential areas, so the workers are not required to undertake much travel. In comparison, Mr Malone is required to fly in and out of each site each week, which means travel is a large part of his job. Mr Malone also recalls speaking to an OS Maintenance employee who had previously worked at a black coal mine, and he was referring to various instruments and equipment such as “drag lines” that Mr Malone has never heard before.

[338] Because of these potential differences, Mr Malone is concerned that his skills as an iron ore worker would not be transferrable to black coal work. Mr Malone also understands that some of his qualifications and tickets would not be recognised in other States, which also indicates to him that the work is different. For example, Mr Malone recalls that he looked into this issue and spoke with colleagues to confirm that his Working at Heights ticket would not be recognised in other states, whereas it is recognised and mandatory in Western Australia.

[339] Mr Malone advised that on a personal level, he would be significantly impacted by having to move states. All of his friends and family are in Western Australia, and he believed that moving would be detrimental to his mental health. Mr Malone has never considered moving states or working in other states because of these reasons. He believed that moving to other states to work on Black Coal mines would be completely unreasonable. Mr Malone believes that being able to move employees between states may be used by BHP to encourage particular employees to quit. For example, employees that are considered “trouble makers”, or employees with long periods of service who would otherwise be entitled to large redundancy payments.

[340] Mr Malone would also be concerned about being covered by the same Agreement as iron Ore production workers, as the nature of their work is very different. Mr Malone understands they have a very set, planned way of completing work, and their workloads are much smaller. Mr Malone said that iron ore production workers are also permanently based at site, which is different to maintenance workers. For these reasons, Mr Malone thinks that their interests and the interests of maintenance workers would be very different and is concerned about their interests overwhelming that of the maintenance workers. Mr Jones raised similar concerns to those of Mr Malone and referred to different regulatory requirements; different processes to extract and process coal; different modern awards which will complicate the interpretation of an agreement; and the fact that workers generally live and work in their own States.

[341] Mr Scherf stated that as the person with overall responsibility for bargaining at OS Maintenance he has spent considerable time meeting with members, employees of OS Maintenance and bargaining representatives, to gauge their views about the proposed agreement. Mr Scherf has done this by first meeting with employees of OS Maintenance at the on-site at Blackwater, Peak Downs, Saraji, Goonyella Riverside, Caval Ridge and off-site at the Moranbah Workers’ Club and in other locations in Rockhampton and Mackay approximately 25 times over the past 12 months.

[342] Mr Scherf also stated that he receives regular updates from delegates and active union members interested in, or involved in, bargaining on a Facebook messenger group. He also receives on average at least 10 phone calls from employees of OS Maintenance each week. It is these conversations and communications with members that inform the AMWU’s log of claims and the position taken on scope, and all other matters, in the conduct of bargaining as a bargaining representative for employees. Mr Scherf asserted that the consistently expressed views of members of the AMWU in respect of bargaining is that they want state and industry specific enterprise agreements in line with AMWU’s proposal.

[343] The reasons they have expressed to Mr Scherf for this position is that:

•  maintenance employees are “skilled” workers who attract a specific set of terms and conditions in the black coal industry in QLD which has not been reflected in agreements or their contracts of employment;

•  maintenance employees are better off by themselves than bundled in with production as production crews generally outnumber maintenance employees 4:1 and therefore their issues do not get addressed.

•  claims like travel, accommodation, accident pay and safety differ greatly between QLD and WA and differ again between maintenance and production.

[344] Mr Scherf said that this is one of the most commonly raised issues put by members to him and there has been little change in the views expressed to him by members on this stance throughout the course of bargaining. There are also significantly different claims advanced by AMWU members in the different states. The claims of these maintenance employees have little if any relevance to production employees. For example, the second biggest issue, after that of scope, is the issue of travel. In Queensland, the mine sites are in close proximity to many member’s homes. Many employees drive to mine sites (and are able to do so). By contrast, the maintenance workforce in West Australia travels across the state to mines that are significant distances apart. They are almost all fly in, fly out workers.

[345] In West Australia, a very big issue for members there is permanent rooms in campsite accommodation at mines. The AMWU’s Queensland members are not as concerned about this as compared to their members in Western Australia for whom it is critical. Another significant difference between the states are issues of pay. AMWU’s members have different claims around pay based on these different rates. This is because there are different prevailing rates of pay in each state and based on the industry. Claims around pay are different again for maintenance workers then production workers. Production workers in all states, are not as highly-skilled as maintenance employees, most of whom are required to have some form of trade qualification.

[346] Mr Scherf said that skilled, trade-qualified workers attract significantly greater rates of pay on the labour market than production workers. There is a much tighter labour market for skilled, trade-qualified maintenance workers than there is for largely unqualified production workers. This is particularly the case with respect to metal-work. Production workers often perform more simple and repetitive than that performed by the AMWU’s members in maintenance and do that work in the cab of a vehicle, for example, driving a truck. They can be unskilled at the point of commencement and be trained through specific tickets around heavy vehicle operations and mining operations to perform their role. Mr Scherf said that AMWU members are not concerned about rates of pay for production employees. They are concerned however that pay outcomes in bargaining will be worse if the agreements are combined because of the significantly greater number of production employees able to vote on an agreement.

[347] In addition, Mr Scherf stated that there will be different claims around safety in the different states. In Queensland, a claim will be advanced for the appointment of Electrical Safety Representatives, being employees who will liaise with the Electrical Inspector of Coal Mines, which is a role created under Queensland, coal-specific safety legislation. There will be no such claim in WA. Accident pay is a condition of concern to black coal employees, as it is a condition under the Black Coal Mining Industry Award, which recognises the significantly dangerous work performed, whereas the Mining Industry Award provides no such entitlement. Further, the industry standard for accident pay in Black Coal in enterprise agreements is greater than that provided for in the Award. At present, Operations Services does not propose to incorporate accident pay into the proposed maintenance agreement at all on the basis that it is a “Black Coal” only entitlement. Mr Scherf also stated that there will be a number of other state-specific claims including, for example, the payment of housing allowances for workers in Moranbah, Dysart and Blackwater, in Queensland.

[348] Further evidence about the views of AMWU members in relation to the scope of the proposed maintenance agreement was tendered by Mr Scherf in the form of petitions arranged by the AMWU across locations in Queensland and Western Australia 197 following rights of entry being exercised to various Mine sites in Queensland. Mr Scherf stated that the AMWU reasonably believes that all employees who have signed the petition are OS employees, on the basis that such employees wear a different uniform than is worn by BMA employees, so it is immediately apparent to those supervising the petition whether someone is able to sign it or not. Mr Scherf also stated that he is unaware of any reports of anyone attempting to sign the document who is not an employee of OS. At the time Mr Scherf filed his first statement the AMWU had only been able to circulate the petition at Blackwater and was attempting to have the petition circulated at each relevant mine in Queensland and among the workforce in Western Australia.

[349] The process of completing these petitions is complex and ongoing as it requires officials of the AMWU to travel across a number of mine sites in these two states. In Western Australia, the distance between mine sites is very considerable and so this process is taking longer. At the date of Mr Scherf preparing his statement, 73 employees in Blackwater have signed the petition. In Blackwater there are approximately 100 OS Maintenance employees, being 4 crews of approximately 25 employees each. As new employees arrive over time, they will be given an opportunity to sign the petition.

[350] Mr Scherf tendered a supplementary statement at the hearing indicating that 147 additional employees had signed so that a total of 220 OS Maintenance employees at five mine sites had signed the petition. 198 In tendering that statement Mr Scherf noted that there have been various obstacles to completing the task of circulating petitions in both states including difficulties gaining access to OS Maintenance sites. This was particularly the case in Western Australia, where the logistical hurdles in attempting to circulate petitions around a very dispersed workforce have been considerable and the task simply has been unable to be satisfactorily completed there.

[351] Under cross-examination from Mr Coonan, Mr Scherf said he did not attend all of the meetings where the petitions were discussed and circulated but attended meetings at Caval Ridge and Saraji Mines. In response to the proposition that he did not know what was said by organisers at meetings he did not attend, Mr Scherf said that the organisers had a script and he trusted them to follow it. Mr Scherfsaid that explained what a scope order was and the difference between a scope order and bargaining outcomes in broad terms. In response to a question as to what he meant by “broad terms” Mr Scherf said that the conversation was principally concerned around claims and why the AMWU could not progress them claims and get an outcome unless the scope of the agreement was changed. Mr Scherf accepted that the number of signatures on the petition – 227 out of a possible 675 – would not be sufficient for the AMWU to obtain a majority support determination.

Written notice of concerns: s. 238(3)(a) FW Act

[352] Mr Scherf’s evidence about the AMWU’s notice of concerns for the purposes of s. 238(3) of the FW Act, can be summarised as follows. On 1 April 2021, Mr Rohan Webb, State Secretary of the Queensland Branch of the AMWU caused to be issued a notice of concerns to OS Maintenance (and other bargaining representatives) for the purposes of s. 238 of the FW Act in respect of its concerns about scope. The notice of concerns, tendered by Mr Scherf, sets out its proposal for three separate State and industry based agreements, stated that OS had rejected that proposal and asserted that bargaining had not proceeded efficiently or fairly by virtue of a fundamental dispute between the parties because of scope.

[353] The notice of concerns went on to highlight the separate and distinct modern award coverage of workers employed by OS Maintenance in Queensland, New South Wales and Western Australia which is said to complicate comparison of clauses in the proposed agreement for the purposes of the better off overall test (BOOT) and the unique statutory schemes that apply to coal and non-coal operations across different States, which impose different obligations on mine workers (including in respect of safety), consideration of which may be required in the course of negotiations in light of claims already advanced by bargaining representatives.

[354] The AMWU notice of concerns also asserted that the group of employees covered by the agreement proposed by OS Maintenance was not fairly chosen on the basis that it was not geographically distinct; does not reflect the operational and organisational distinctiveness in the work performed by employees in their respective States and/or established conditions for work of a similar type; and is otherwise contrary to the views of employees. 199

[355] Also on 1 April 2021, Mr Webb sent a letter to the CFMMEU in response to a notice of concerns issued by the CFMMEU on 26 March 2021, in which the CFMMEU had proposed a black coal specific agreement covering production and maintenance employees. The AMWU response to the CFMMEU’s notice of concerns stated that the AMWU agreed that negotiations with OS Maintenance were not proceeding efficiently or fairly due to the scope of the proposed agreement but that the AMWU’s solution differed to that of the CFMMEU. The letter enclosed the notice issued that day to the bargaining representatives and invited the CFMMEU to consider that position and provide any response by close of business on Thursday 8 April 2021. 200

[356] On 8 April 2021, the AMWU received a response from OS Maintenance to its notice of concerns foreshadowing that in the event an application for a scope order was made, that it would oppose the making of the order on grounds that while accepting scope was one of many issues between the parties, OS Maintenance did not agree that bargaining was not proceeding efficiently or fairly because of scope. The response also stated that it was not open to the AMWU to simply refuse to concede on the question of scope and then rely on its own conduct in doing so to argue that bargaining is not proceeding efficiently. The response also stated that separate negotiations for three separate agreements would proceed more efficiently than the current bargaining and that the AMWU’s proposed scope would require OS Maintenance to enter into multiple bargaining processes. The response went on to state that it is not uncommon for employers to have enterprise agreements covering workforces where more than one award applies and that this is not unfair or inefficient. The response also rejected the AMWU’s assertion that the group proposed by OS Maintenance was not fairly chosen and asserted that the views of employees as to scope are not determinative and there were no grounds for the AMWU’s alleged concerns. 201

[357] The position of the AMWU is that OS Maintenance has not responded appropriately to the concerns expressed about scope and therefore, on 16 April 2021, the AMWU, via its legal representatives Maurice Blackburn Lawyers, caused its application for a scope order to be filed with the Commission.

[358] Mr Scherf was cross-examined by Mr Walkaden for the CFMMEU in relation to the AMWU Notice of concerns. Mr Scherf agreed that it was copied to a number of persons including some from whom the Union would not have expected a response and Ms Chauncy who is not involved in the bargaining for the proposed OS Maintenance agreement. Mr Scherf said that Mr Walkaden was copied into the letter and that it was also copied to two administrative staff of the CFMMEU Mining and Energy Division. Mr Scherf said that those persons were included as a “catch all” in the event that issue was taken with the notice.

[359] In relation to workplace health and safety legislation, Mr Scherf conceded that he had not read the Work Health and Safety (Mines and Petroleum Sites) Act (NSW) but maintained that he could speak in more general terms about the differences between Queensland and Western Australian legislation relating to workplace health and safety on mine sites. Mr Scherf did not agree with the proposition that he could not have had concerns about unique differences between statutory schemes when he sent the Notice, notwithstanding that he did not understand those differences in relation to New South Wales and Queensland. Nor did Mr Scherf accept the proposition that as the person who authored the letter, his lack of understanding in relation to this matter was not a compelling reason for the order sought by the AMWU to be granted.

[360] Mr Scherf accepted that a fair outcome for the AMWU in the OS Maintenance agreement would be that OS Maintenance employees working in Queensland coal should receive the same wage increases as BHP maintenance employees. Mr Scherf also accepted that maintenance employees directly employed by BHP at Queensland coal mines are covered by the same agreements as production employees and those agreements deal with issues that are equally applicable to production and maintenance employees. Mr Scherf agreed with the proposition that the AMWU was seeking to benchmark the wages and conditions in BHP Queensland coal agreements but not the scope of those agreements. Mr Scherf also agreed that at the majority of Queensland BHP coal mines, maintenance employees receive a higher rate than production employees, but rejected the proposition that it did not appear that maintenance employees had been swamped by production employees. Mr Scherf maintained that AMWU delegates had informed him that they had been outvoted by production workers in previous bargaining in relation to matters that were important to maintenance workers.

[361] Mr Scherf accepted that in the bargaining for the proposed OS Maintenance Agreement, the AMWU has not made any concessions in relation to its claims but contended that the Unions had not been able to get OS to accept that the maintenance agreement should be anything other than a minimum safety net agreement.

AWU SUBMISSIONS

[362] The AWU supports the CFMMEU’s application for a scope order and opposes the AMWU application. The primary rationale for the AWU’s position on the respective applications is a view that a coverage distinction based on the coal mining industry and the metalliferous mining industry for the relevant OS Production and OS Maintenance employees will promote the fair and efficient conduct of bargaining, and is reasonable in all the circumstances, for the following reasons.

[363] The efficiency and fairness of bargaining will be promoted if the scope of the respective enterprise agreements is broadly consistent with the coverage of the Black Coal Award and the Mining Industry Award. A more efficient bargaining process will generally be promoted where the coverage of an enterprise agreement is linked to modern award coverage given the importance of modern awards as reference instruments for the better off overall test (BOOT) which must be satisfied before an enterprise agreement is approved by the Commission.

[364] Ensuring that an enterprise agreement passes the BOOT is a critical and fundamental issue for any bargaining process and this process is inevitably simpler and more efficient if less modern awards have to be taken into account in the assessment. The efficiency and fairness gains that can be achieved via linking the coverage of the proposed agreements to modern award coverage are substantially heightened in this case because of the terms of the agreements that both OS entities are proposing. 202

[365] Whilst the proposed OS Production Agreement and the proposed OS Maintenance Agreement initially present as instruments operating broadly for the full production and maintenance workforces, the reality is much different. The terms of the proposed Production Agreement and the Maintenance Agreement actually operate by reference to the two industry awards in relation to a number of the key conditions including:

•  hours of work 203;

•  minimum salary rates 204;

•  weekend penalty rates 205;

•  shift loadings 206;

•  overtime rates 207; and

•  allowances 208.

[366] Ms Chauncy confirmed the proposed agreements operate in this manner during cross-examination on 9 June 2021. 209 Given the key employment conditions sought by both OS Production and OS Maintenance are determined by the conditions in the respective industry awards, the efficiency and fairness of bargaining will clearly be promoted if the scope of the agreements replicates the coverage of those modern awards.

[367] The scope currently proposed by OS production and OS Maintenance means the hours of work and salary rate clauses in the proposed Production Agreement must be read by reference to an array of different provisions in both the Black Coal Award and the Mining Award and then the same process must occur for the Maintenance Agreement.

[368] The AWU submits that it is much more efficient, simple and fair to refer to the industry award conditions only once via an enterprise agreement that covers the workforce employed in the coal mining industry and then a separate enterprise agreement for the workforce engaged in the metalliferous mining industry.

[369] The AWU also submits that a distinction between the coal and metalliferous mining industries is regularly reflected in safety legislation, long service leave legislation and in relation to union coverage – the CFMMEU has industry coverage of black coal mining and the AWU has industry coverage of metalliferous mining. It is reasonable in all the circumstances for the same industry distinction to be applied in relation to the agreements to cover the OS Production and OWS Maintenance workforces.

[370] It is also common for BHP to negotiate enterprise agreements that cover both production and maintenance workers but only operate in the metalliferous mining industry or the coal industry. For example, the following BHP enterprise agreements cover production and maintenance workers but only operate in the metalliferous mining industry:

•  Yandi Operations Agreement 2013 AE404207: this operates at BHP’s Yandi iron ore mine and includes production and maintenance classifications;

•  Whaleback Fly-In Fly-Out Agreement 2013 AE404683: this operates at BHP’s Whaleback iron ore mine and includes production and maintenance classifications;

•  Mining Area C Operations Agreement 2015 AE415198: this operates at BHP’s Mining Area C iron ore mine and includes production and maintenance classifications;

•  BHP Billiton Iron Ore Operations Union Collective Agreement 2012 AE895094: this operates at BHP’s iron ore mines in the Pilbara and includes production and maintenance classifications;

•  BHP Billiton Nickel West Northern Operations Region Safety Net Agreement 2012 AE898187: this operates at BHP’s nickel mines in the Shires of Leonora and Wiluna in Western Australia and includes production and maintenance classifications; and

•  Olympic Dam Employee Agreement 2012 AE894775: this operates at BHP’s Olympic Dam copper mine in South Australia and includes production and maintenance classifications.

[371] The AWU supports the making of a scope order in the terms sought by the CFMMEU. A coverage distinction based on the coal mining industry and the metalliferous mining industry will promote the efficient and fair conduct of bargaining and is reasonable in all the circumstances.

[372] If the scope order sought by the CFMMEU is made, OS Production, OS Maintenance, the AWU, AMWU and CEPU can bargain about the scope of the enterprise agreement/s to apply in the metalliferous mining industry and particularly whether there should be one consolidated agreement or separate agreements for the production and maintenance workforces. The parties will also retain an ability to seek a scope order from the FWC if the scope cannot be agreed.

OS CASE

Submissions

[373] OS submits that bargaining is proceeding in relation to the OS Maintenance agreement and the OS Production agreement. The evidence is insurmountable, and no evidence exists that any party to bargaining for either agreement has misunderstood the bargaining, which agreement will apply to any individual, what any party is seeking from the bargaining or what claims or responses relate to which employees.

[374] The application by the CFMMEU, seeks orders that the CFMMEU concedes will result in bargaining for:

•  CFMMEU and AMWU and CEPU for coal anywhere in Australia for production and maintenance;

•  AWU for non-coal for production;

•  AMWU and AWU and CFMMEU and CEPU for non-coal for maintenance;

•  Possibly AMWU, and CEPU and AWU for maintenance at Olympic Dam 210; and

•  Possibly AWU for production at Olympic Dam.

[375] OS submits that the Commission should not fall for “the two card trick” in the submission that the CFMMEU application will result in two bargaining processes. The second application by the AMWU, seeks orders that by itself will result in bargaining for:

•  CFMMEU and AWU anywhere in Australia for production;

•  AMWU, AWU, CEPU and CFMMEU for non-coal for maintenance;

•  AMWU, AWU and CFMMEU for Qld coal for maintenance;

•  AMWU, AWU and CFMMEU for NSW coal for maintenance some time in the future; 211

•  AMWU, CEPU and AWU for maintenance at Olympic Dam 212

[376] The CFMMEU states the AMWU application should be dismissed because it will split bargaining into six to eight bargaining processes. 213 The same logic applied to its application – which will result in five new separate negotiation processes – means the CFMMEU application should also be dismissed. OS also points to the fact that the applications are made in the context where the CFMMEU submits that the Commission should reduce duplication and that bargaining will only be efficient if there are two sets of bargaining. OS contends that the only scope before the Commission that results in two bargaining processes, is the bargaining that is currently in place under the current scope for bargaining for an OS Production agreement and an OS Maintenance agreement. Accordingly, on the CFMMEU’s own criteria, that commends the status quo.

[377] The matters that govern the consideration of scope applications, in summary, are:

•  The Commission is to exercise its discretionary powers only if all of the criteria in section 284(a)-(d) are satisfied. 214

•  Section 238 of the FW Act is not a generalised power to determine scope. 215 The exercise does not commence by looking for what is a distinct geographic, organisational or operationally distinct work group.216

•  It cannot be the case that the Commission must make an order to avoid all national agreements introducing common conditions in favour of local agreements. 217 It would be inconsistent with the scheme of the FW Act to divide sections of workers into separate agreements every time bargaining representative cannot reach agreement.

•  The purpose of the order is to promote the fair and efficient conduct of bargaining. 218 The alleged problems must be real and substantive about the efficiency of bargaining.219

•  A simple claim that the scope provides a fairer bargaining process for the party seeking the order is not determinative. The Commission must be satisfied that the order will promote efficiency and fairness beyond its current level. 220 The Commission must balance each of the statutory considerations, and relevant matters, and reach a level of satisfaction that:

•  the order will promote fairer more efficient bargaining; 221

•  there is sufficient evidence of the specific improvements in the bargaining process from the proposed new scope that make it more fair and more efficient; 222

•  it would be fairer or more efficient to all. 223

•  the Commission should be less inclined to make a scope order where bargaining would be marginally fairer but less efficient, or vice versa. 224

•  Whether a person has concerns that bargaining is not proceeding efficiently or fairly might be a subjective test, but the validity of those concerns is also subject to a reasonableness test meaning the concerns 225 must be reasonable and logical, are not fanciful and not asserted merely for the purpose of attracting jurisdiction.²²⁶ Evidence of bargaining (meetings, exchange of claims correspondence etc) is evidence that bargaining is proceeding efficiently.

•  Inability to reach agreement on scope is not unusual and does not mean bargaining is not proceeding fairly or efficiently. 227 The Applicants must provide clear evidence that establishes scope and not something else is the reason for any delay and inefficiency²²⁸ and if removed bargaining will be fairer and more efficient.229 If the practical situation is that bargaining would be unchanged, an order should not issue.

•  Rarely is it possible to say one scope proposal is wrong and another is correct. Usually scope should be left to the bargaining parties to determine in the context of overall bargaining and the reasonableness of orders should be considered against that background 230 and in that context.231

•  Bargaining for one agreement to cover the employer is intuitively more efficient. 232 If there is a clear and logical rationale in the scope proposed by the employer233 the unions should not impede or frustrate the employer’s legitimate scope”, particularly if bargaining is proceeding efficiently or fairly.234

•  Further the scope order provisions are not focussed on determining the fairness of any outcome of bargaining. 235 It is immaterial that one party is not negotiating as successfully as it desires.236

•  A scope order is not a tool for removing an impasse. 237 It can give one party an unfair advantage over others.238 The good faith bargaining obligations don’t require any party to make concessions on the scope of an enterprise agreement.239 Further the scheme in the FW Act provides other processes for removing impasse or good faith bargaining concerns.240

•  The wishes of employees are relevant but should not be given priority over other relevant considerations. It is just as appropriate to have regard to the employer’s interests. 241

[378] OS submits that there is no evidence of the specific improvements in the bargaining process to make it more efficient and/or fair. The only evidence of the change in the bargaining process is that of Mr Hughes, and that evidence was that his division of the union would only need to attend one bargaining meeting 242 and read one award243 the latter of which is incorrect. OS submits Mr Hughes could give no evidence of what would be saved by reading one award244 and had no evidence that the bargaining dynamics (if that was relevant, and it is not) would change, only a hope,245 when every party acknowledges that neither OS Production nor OS Maintenance is going to change its position on structure of the enterprise agreements,246 nor its concerns about cost or competitiveness.

[379] OS also submits that there is extensive evidence of bargaining occurring which details a range of meetings, exchanges, concessions, claims and other matters that demonstrate bargaining is following a common course where all parties are taking hard bargaining stances on fundamental things such as the structure of the enterprise agreements. OS further submits that: regular bargaining meetings were and are still being held; 247 drafts, claims and copious correspondence in each bargaining stream have been exchanged, explained and positions given;248 it was agreed that the unions have been given every opportunity to outline their proposals;249 and it was agreed the Respondents have been responding to each of the unions’ proposals;250

[380] There is also evidence that the issue of scope is not dominating or protracting bargaining meetings. 251 In the OS Production Agreement, scope has been relied on in response to a claim on three occasions (out of 31 claims). In the OS Maintenance Agreement, scope has been relied on in response to a claim on four occasions (out of 38 claims). The evidence is that not one of the AMWU’s claims, other than the scope clause itself, was rejected because of scope.252 There was no evidence that any claims (other than the scope clause itself) have been rebuffed solely because of the scope issue.253

[381] Neither scope proposal makes the bargaining process more efficient for all parties. OS Maintenance and OS Production will have increased bargaining processes and so will the AMWU, CEPU and AWU. OS Production and OS Maintenance are going to have to reference two awards, just in different bargaining meetings, and that is not more efficient. The AMWU, CEPU and AWU are going to have to reference two awards, just in different bargaining meetings, and that is not more efficient. Further the CFMMEU is going to have reference two awards as the OS Maintenance employees at the Future Fit Academy in Mackay and Welshpool are covered by the Manufacturing Award. 254 The same goes for the new entrant to bargaining, the CFMMEU WA division. Alternatively or additionally, it should be fairer for all parties. The evidence from Mr Hughes255 and from Mr Scherf,256 is that they make the applications in the hope of getting some advantage over OS Production and OS Maintenance in bargaining.

[382] OS submits that the expressed concerns are not reasonable or logical, fanciful or are asserted merely for the purpose of attracting jurisdiction. The award and meeting duplication claims are illogical and fanciful and the evidence is that little time is spent in bargaining meetings on scope 257 and that minimal claims were rejected on the basis of scope and for some of those additional reasons were provided.258 In relation to the differences in safety legislation, no witness for any Applicant could explain to the Commission what those differences were (or had any personal knowledge of the different legislation)259 and no witness or union party dealt with Mr Ruggieri’s evidence 260 on that subject. As to long service leave, the evidence is that any differences were dealt with in the clause adopted by OS Production and OS Maintenance, and Mr Scherf said the unions’ claims were not about differences but locking in the existing schemes forever.261 The same applies to accident pay, where in fact the policy that is applicable to employees was better than the existing provisions.262 As Mr Scherf agreed in evidence:

•  Any industry concerns/different claims could be addressed in one agreement; 263 and

•  The unions have never been asked by OS Maintenance and OS Production to forfeit something in Queensland to get something in WA. 264

[383] The Commission is almost compelled to accept that the evidence is that the unions’ concerns are about outcomes, not the bargaining process. As the Commission rightly pointed out on several occasions 265, the evidence might be well and good if this was a good faith bargaining application, but it is not. That is also the evidence of Mr Scherf that process and outcomes are different, and the union is more concerned with outcomes.266

[384] There is a clear and logical rationale in the scope proposed by OS Production and OS Maintenance as explained by Mr Ruggieri. 267 Also as pointed out above, the scope proposed by OS Production and OS Maintenance is the only one that results in just two bargaining processes for all parties.

[385] A scope order is not a mechanism for removing an impasse on the terms and conditions to be included in an EA. More to the point is the evidence that it will not remove the impasse all parties take on the structure of the agreement. That is what the parties spend more time on. 268All parties genuinely hold their positions, hold them firmly269 and are entitled to do so. As reinforced by later evidence, any scope order sought is not going to change that paradigm.

[386] As to the wishes of employees and the appropriate regard to the employer’s interests, in this matter, the evidence of employee preferences is not sufficient to put any weight on that criteria. The AMWU admits that the evidence of support for its position is less than 50% of the cohort in Queensland. There is no similar evidence of WA employees. Further, Mr Scherf admitted he wouldn’t even get a majority support determination 270 on those numbers. Additionally, Mr Scherf was not present at the majority of the meetings and can only give second-hand hearsay of the claims. The CFMMEU does not even give evidence of the wishes of employees. Further Mr Hughes admitted that the member response to the CFMMEU correspondence showed a disproportionate interest between production and maintenance.271

[387] In relation to the procedural prerequisites for making a scope order, OS does not press its earlier submission that the AMWU and the CFMMEU are not bargaining representatives for a proposed single enterprise agreement and accepts that OS Maintenance and OS Production are single interest employers. OS submits that neither the AMWU nor the CFMMEU could hold genuine concerns that bargaining for the maintenance or production agreement is not proceeding efficiently or fairly (s. 238(1)(a) and (b)). In this regard, on the Unions’ own evidence, OS Maintenance and OS Production have attended and participated in meetings; draft agreements and logs of claims have been exchanged; claims have been put, considered and responded to; relevant information has been disclosed in a timely manner; reasons for responses to proposals have been given; there is evidence of concessions on scope being made in bargaining; there is evidence of concessions on other matters being made in negotiations; and all parties have recognised and bargained with other bargaining representatives.

[388] OS also submits that the Commission is entitled to find that the real issue between the parties is the structure of the agreements rather than scope and that scope has taken up a miniscule part of negotiations and has not been the reason for failure to agree on any other terms or conditions.

[389] Based on these facts, OS submits that the Commission should be satisfied that there is no evidence that bargaining is not proceeding efficiently or fairly; bargaining is proceeding efficiently and fairly; and there is no reasonable basis for the Unions’ alleged “concern” about scope. To the extent that the Commission considers that the Unions have concerns that bargaining is not proceeding as the Unions would like, the reason for this is not that either agreement will not cover appropriate employees or cover employees that it is not appropriate to cover.

[390] In relation to s. 238(3), OS submits there is no basis for the Commission to find that there is a reasonable concern that it did not respond appropriately to concerns expressed by the Unions. OS submits that in each case, detailed cogent reasons for the preference of OS Maintenance and OS Production in relation to scope and in each case, for a single, consistent safety net of terms and conditions for work being performed by each entity were provided. In relation to the CFMMEU notice of concerns, OS Production submits that it has not been demonstrated that this was provided to the AMWU or CEPU, which both oppose its scope and have been proposing a different scope and copying in those bargaining representatives to its concerns about the scope of bargaining for either or both agreements, is not sufficient. In relation to the AMWU notice of concerns, OS Maintenance submits that it has not been demonstrated that this was provided to all relevant parties, in particular the CFMMEU and the AWU, which both oppose its scope. Copying in those bargaining representatives to its concerns about the scope of the proposed OS Maintenance agreement is not sufficient.

[391] In response to the grounds in the CFMMEU’s application, OS made the following submissions. With respect to the alleged impasse in negotiations, it is correct that OS Maintenance and OS Production have not moved on scope, just as it is correct there has been no movement on other issues such as the structure of the agreements. The evidence is that OS Maintenance and OS Production have given the reasons why they seek a national agreement 272 and no union has provided evidence to the contrary, or they are not validly held reasons.

[392] It is submitted that it is also correct that there has been no real movement from the CFMMEU from its position of separating out coal from other products, with the only movement being the insignificant proposal to reduce the number of coal agreements from two to one national coal agreement. 273 That makes no concession to the position of OS Maintenance and OS Production for national occupational enterprise agreements.

[393] The CFMMEU claims that resources, time and energy are being wasted on the issue of scope is contrary to the evidence of Ms Chauncey, 274 Ms Morkel,275 Mr Hughes276 and Mr Scherf.277 It is also submitted that the CFMMEU does not address the evidence that cost and competitiveness are not just a key driver for OS Maintenance and OS Production, but: these reasons have been stated multiple times as reflected in the evidence of the meetings, which has not been challenged;278 and it is telling that no Union party cross examined on the evidence of the importance and frequency of cost and competitiveness in responding to various claims. Generally, there is no evidence that time, energy and resources are being wasted because of impasse on scope. On the contrary, the key issue for the CFMMEU in not achieving outcomes it seeks is the position of OS Maintenance and OS Production on the structure of the agreements. There are two elephants in the room - scope is the smallest.

[394] In relation to the submission that impasse on scope invites “disputation” it is contended that the CFMMEU did not define what disputation means and that impasse on anything invites disputation of some kind, as is evident in the parties taking different positions on scope, structure or any other claim. Further, if the “disputation” means something more than that, the FW Act allows multiple ways of addressing an impasse – for example, by making a s.240 application, a good faith bargaining application, a protected action ballot order application, protected industrial action and employer response action. A scope order is not a vehicle for resolving impasse but is rather, a mechanism for making the bargaining process fairer and/or more efficient, or both, and for both parties. A scope order still does not deal with the more critical impasse on the structure of the agreements. In any case the evidence of the AMWU is that a scope based on product, is going/likely to lead to more disputation. 279

[395] By asserting that OS Maintenance and OS Production have not moved in any meaningful way, the CFMMEU concedes that OS Maintenance and OS Production have moved their positions. There is evidence of that movement. 280 Secondly “meaningful” like beauty, is in the eye of the beholder. It is worth noting that on the issue of rest breaks, agreement was reached that recognised the different needs of both OS Maintenance and OS Production.281 Thirdly, the CFMMEU did not produce any evidence or point to one example (other than the New South Wales “concession” by the CFMMEU) where they have made (or intend to make) any movement let alone meaningful movement on scope, structure and the claims that matter. The assertion that the order will remove scope as an issue and bring the parties one step closer to agreement, also ignores the evidence that the structure of the proposed agreements is more critical to reaching agreement.282

[396] There is no evidence at all of any, let alone meaningful, duplication of time or effort in resources in doing the BOOT against two awards. 283 Further the CFMMEU covers employees in both awards, was involved in making both awards, and has Enterprise Agreements which requires a BOOT against one or the other Award. Inherent in the contention that OS Maintenance and OS Production have adopted near identical positions is that the positions are not identical. That is supported by evidence that: the concessions made differ in part;284 the parties in production specifically recognised the need for a difference in rest break;285 and there are different claims for OS Maintenance and OS Production (which have been addressed in full).286 In relation to the CFMMEU’s contention that there is duplication by virtue of sending the same letter save for the company name, a perusal of the evidence and attachments shows that after December 2020, when bargaining began in earnest, the correspondence diverged considerably.287 In relation to the post appeal correspondence, near identical replies could be expected when:

•  The CFMMEU wrote the same letter to both OS Maintenance and OS Production (and in one instance Mr Drayton admits he referred to the wrong entity); 288

•  Other unions wrote in near identical terms; and

•  They all make the same error of law about commencement of bargaining.

[397] As to the notices of concerns, the CFMMEU wrote to both OS Maintenance and OS Production in the one letter. Each replied to the same letter in near identical terms, but that does not derogate from their positions in wanting a separate agreement. In relation to the CFMMEU’s submission that its scope application will result in bargaining for a commonality of interest, it is again submitted that commonality like beauty, is in the eye of the beholder. The CFMMEU say commonality is the product group. But a cohort based on task/occupation is just as much a commonality of interest. On that much OS Maintenance and OS Production agree with the AMWU. Further the evidence is that OS Maintenance and OS Production have business reasons for that differentiation.

[398] OS also submitted that paragraphs [50] – [51] of the CFMMEU reply to the AMWU submissions is a stark and volunteered admission that persons in the same industry do not have a commonality of interest on everything. Those paragraphs contend that a fitter and a haul truck driver employed by OS and living in Brisbane are likely to be interested in a claim for OS to pay for flights to and from Brisbane and to have little interest in a claim for housing allowance for local residents but that a fitter and a haul truck driver living in Moranbah are likely to have no interest in a claim for payment of flights to and from work but very interested in claim for housing allowance.

[399] The submission that the CFMMEU scope results in bargaining in accordance with the industry norm, suggests that a party is bound by what other parties have done before them, irrespective of their interests. In any case the CFMMEU has not demonstrated there is a norm or that its proposed scope is consistent with the norm. Even if there is a norm, the scope proposed by the CFMMEU differs from any norm according to the evidence before the Commission. Mr Hughes’ evidence in his supplementary statement, demonstrates that the norm is not an industry scope and the limited evidence produced shows any norm is site by site. 289 There is an inherent inconsistency for the CFMMEU to criticise OS Maintenance and OS Production for wanting to bargain differently to the norm when it seeks to do so itself. The difference is OS Maintenance and OS Production provide reasons. The CFMMEU does not.

[400] The CFMMEU’s contention that the proposed scope will result in the same number of agreements, is incorrect. All it might do is reduce the number of agreements for which one division of the CFMMEU must bargain and increase the bargaining processes for every other party. 290 Reference was also made to paragraph [36] of the submissions by the CFMMEU in reply to the AMWU. In those submissions the CFMMEU attacks the AMWU position on the basis that OS has adopted a nearly identical position in respect of the Maintenance agreement and the Production agreement and that it will “simply put the near identical position on structure” of agreements with the scope proposed by the AMWU scope. OS submits that the evidence is that this is the exact same position OS Maintenance and OS Production will take in bargaining for the CFMMEU’s proposed scope.

[401] In response to the AMWU’s grounds, reasons and outline of submissions supporting its scope application OS submits that maintainers have nationally accredited qualifications 291 and use the same skills, work on the same machinery, using the same original equipment manufacturer manuals in the same workshop or field environment, whether in iron ore or coal292 and the argument about maintenance being different in iron ore (Western Australia) and Coal (Queensland) can be easily dispensed with.

[402] OS accepts that maintenance is different to production in relation to the activities and environment in which the work is performed. The contention that residential preferences of employees are different is not shown in the evidence. In iron ore, the number of OS maintainers with local postcodes is approximately 7.8% while in coal, it is 8.6%. 293 Both have a preponderance of non-local employment with coal more drive in drive out (including bus in bus out) – 56%) than fly in fly out – 36%:294 No figures are in evidence on fly in fly out for iron ore. Further the evidence is that in both product groups/states employees are concerned about the travel arrangements and accommodation arrangements with both having claims for permanent rooms.

[403] While it is correct that employees rarely transfer between product groups, there is a concession in the statement – that employees do transfer. The evidence is that OS Production and OS Maintenance do so 295 and that OS Production and OS Maintenance want to have that option for business reasons.296 There is no evidence that coal work is more closely regulated. There are unsubstantiated assertions, but they are based on absolutely no knowledge or the source of any information.297 The evidence of Mr Ruggieri who has knowledge and experience of both298 should be preferred to hearsay or uninformed assertion.

[404] If differences in rates of pay between coal and iron ore employees are relevant, that differential is recognised in the proposed agreements for both OS Production and OS Maintenance. The assertion that metallurgical coal is different to thermal coal is correct in only two irrelevant respects – use and price. Neither affect how the coal is produced or how coal infrastructure is maintained. It is incorrect in others in that: both products are black; both are the result of geological pressures on animal/vegetable materials over millennia; the claim was made without any personal knowledge or experience; 299 and most importantly the differences have no impact on the tasks activities and processes. Metallurgical and thermal coal are mined in the same way and the coal infrastructure is maintained the same way.300

[405] The evidence of Mr Ruggieri shows that the contention by the AMWU that iron ore mining is different to coal mining, including the claims that coal is always softer than iron ore, is incorrect. 301 The only contrary evidence is speculative and without knowledge or experience.302 In any case the process for mining and for maintaining mine infrastructure is the same, involving:303 exploration; pre-strip; overburden; mining; processing; rail; and shipping. The process for maintaining mine infrastructure is the same and the claims to the contrary were effectively withdrawn.304 The claims that things like rosters were different was watered down in cross-examination.305

[406] The evidence is that any lack of progress (defined by the AMWU as getting concessions it wants) is not because of scope but rather, because of the disagreement about the structure of the proposed agreements. Scope is not the basis for OS Production and OS Maintenance rejecting or seeking modification of claims based on structure of the agreement, cost, or risk to competitiveness. They are overwhelmingly the reasons for progress in achieving its claims, not scope. The claim that scope is the reason for lack of progress of bargaining is even more perverse when:

•  No full list of claims have been filed by the AMWU for iron ore 306;

•  No union is prepared to even put pen to paper, or words to mouth on the things that matter 307 including salaries, allowances, classifications, and escalations; and

•  When OS Maintenance asked for unions to prioritise claims, they were met with stony silence or more acutely, a response from the CFMMEU that all claims were important. 308

[407] The submission that the parties are diametrically opposed on scope is not quite right and OS Production and OS Maintenance agree with the AMWU on scope but disagree on a State/product differentiation. OS Production and OS Maintenance have provided evidence of the business reasons for their positions. Further it is not a fully accurate account of the evidence. OS refers to Mr Scherf’s statement that the parties are diametrically opposed on structure of the agreements – a safety net structure as against a comprehensive agreement and submit both Mr Scherf and Mr Hughes repeated this in evidence. 309 The evidence is that structure is overwhelmingly more the cause of differences than scope.

[408] The contention that the parties are bogged down on conflicting claims for Western Australia and Queensland is not the evidence, and no Union has tabled its claims on classifications, salaries, and escalations for any product/State or its full claims for Western Australia. With respect to the AWMU assertion that the scope sought by the Union would allow the parties to bargain on what matters to them, it was submitted that two things matter to OS Production and OS Maintenance – scope and structure. Structure goes to cost and competitiveness. The AMWU want to take out one (scope) to improve their position in the other. But the clear evidence is that scope is not going to change the paradigm.

OS evidence

Evidence for OS Maintenance

[409] Mr Ruggieri gave evidence for OS Maintenance although some of Mr Ruggieri’s evidence was also relevant to the OS Production case. Mr Ruggieri’s view is that the case trying to be made is that there is a relevant disparity in multiple factors between maintenance and production work and that this creates a concern that a person’s interest is affected by those differences. Mr Ruggieri contended that even this was the case, the differences alleged are not accurate and there are no reasons that the alleged dissimilarities create a need for “de-segregation” let alone why recognising them would provide more efficient bargaining.

[410] Mr Ruggieri questioned how working on different types of trucks, or in different products (if either is a dissimilarity) provides a basis for desegregation. Mr Ruggieri provided the example of a diesel mechanic and said that there is a single nationally accredited trade which allows a person to work anywhere and OS Maintenance does not have a trade called diesel fitter (coal) or diesel fitter (Komatsu) or diesel fitter (West). Similarly for a rigger, there is one accredited skill and OS Maintenance does not have a Mechanical Fitter (conveyors) and a Mechanical Fitter (non-conveyors). Maintenance workers may be assigned to tracked plant, or to wheeled plant or conveyors or other fixed plant, for convenience or contact limitations, but they are still diesel fitters or mechanical fitters in OS Maintenance.

[411] Mr Ruggieri also referred to similarities in the descriptions of equipment provided by Mr Boss in his discussion of coal trucks and mobile heavy mining equipment that the workshop at Blackwater Mine carries out maintenance work on and said that similar descriptions of equipment are provided by Mr Hawken, Ms Baynton, Mr Allen, Mr Brotherton and Mr Taylor. Mr Ruggieri’s response is that the equipment listed by these witnesses can be found in either coal, iron ore or other metalliferous mines. The only exception might be the Kress coal haulers, which are specific to Blackwater Mine. While the equipment may be different brands (or if the same brand, different models), from site to site they are almost exactly the same types of equipment maintained by OS Maintenance employees anywhere.

[412] In relation to maintenance, Mr Ruggieri said that the same trade and skills are applied to follow the steps contained in the specific manuals of a machine. Even if the machine is different, this happens in any product group. Also, the skills are transferrable. Mr Ruggieri stated that even where specific brands of the trucks, diggers, drills or fixed plant might differ from site to the site, the respective equipment undertakes the same function and is maintained the same way, broadly speaking. Even if the employee has to pick up a different manual to understand the specific workings of a particular item of plant as compared to another, the skills gained from working on the others are directly transferable.

[413] Mr Ruggieri also said that over the past several years, BHP is standardising its fleet of equipment as much as possible to create efficiencies. This decision has reduced and will continue to reduce the occurrences of these differences in equipment between sites. Tasks undertaken to conduct routine inspections on trucks and other equipment, are similarly described in the evidence of the AMWU witnesses and Mr Ruggieri’s response is that while service manuals may vary from plant to plant, the skills used and tasks carried out are the same type carried out on any site within the group and are totally transferable.

[414] Caterpillar equipment is used on all mine sites. All product groups use Komatsu equipment. There is no diesel fitter trade that is specific to a product, or a brand of truck/digger/or other earthmoving plant. While only one site has Liebherr trucks and one has Kress trucks, BHP is gradually standardising its equipment such that these quirks are gradually disappearing. Mr Ruggieri referred to Mr Allen’s statement that iron ore is more abrasive such that there is more wear and tear on trucks carrying iron ore and that iron ore trucks have more wear packages, which must be replaced more frequently than on a coal mine. Mr Ruggieri’s view is that while Mr Allen’s observations about the nature of iron ore is generally but not always correct, this does not materially change the maintenance process, even if it changes the volume of work undertaken. The maintenance work is directly transferable between the two sites. The fact that there are differences at particular mine sites, such as trucks being required to carry wheel chocks, this is a mine specific issue not a product or geographic issue and does not impact the type of maintenance work undertaken or how it is done.

[415] In response to Mr Boss’ evidence about ultra-class haul trucks, Mr Ruggieri states that such trucks are found across a number of the East coast coal mines. However, other trucks like the Caterpillar 793 used on Western Australian iron ore assets are entirely mechanical-hydraulic just like the Caterpillar 793 trucks used on coal assets. The maintenance work is therefore the same. Mr Ruggieri disagreed with Mr Boss’ that: “BMA or BHP employees will also perform minor plant maintenance on the draglines or whilst the machines are in production. They do not perform these repairs in the workshop.” Mr Ruggieri’s response is that this is not correct. According to Mr Ruggieri, BHP employees do potentially all maintenance work on draglines and engage contractors only for specialist shut down work. OS Maintenance employees have done minor maintenance work on draglines in the past.

[416] In relation to the evidence of AMWU witnesses about tag-out and isolation work Mr Ruggieri’s response is that the systems on heavy mobile equipment, for example trucks, are the same for any assets, which means that they all have the same isolator system. In fixed plant, the procedure is a little more complex from mine to mine but again very similar. The plant is run on electricity, but is often also connected to a water, or air source. Nevertheless, the principles of the process are the same on all assets. The plant is isolated from all of the sources feeding it and isolated from all of its outputs according to the plant manual/OEM procedures. Then it is tested for dead. The operations team is sometimes then asked to try and start the isolated plant. The plant is then attempted to be turned on locally. The plant will not turn on either way if it is correctly isolated. Mr Ruggieri explained that the specific step-by-step procedure is obviously different from machine to machine, that is true as you move from mine to mine, whether in any ore or product. However, the overall isolation process is the same.

[417] Mr Ruggieri’s response to evidence about different work and procedures undertaken by coal mining workers and non-coal mining workers including exposure to harmful gases and different production and preparation processes, is that iron ore workers are also exposed to dangerous gases. While the gases they are exposed to are different depending on the metallurgy of the site, eg sulphur, the health risks and the safety process to identify and manage the risk are generally the same. Likewise, iron ore mine sites have a risk of potentially exposing workers to respirable silica and pockets of asbestos which are harmful and therefore need to be managed, in the way coal dust must be managed.

[418] Mr Ruggieri stated that the wash plants at coal and iron ore mines are also substantially similar. At iron ore sites, such as Mt Whaleback, the wash plants take low grade iron ore and extract higher grade ore for beneficiation by floating the lighter lower grade ore and sinking the heavier higher grade ore. At coal mine sites, the process is also a float process only in the reverse, the lighter material is coal and heavier material is rock and other waste. The wash plant is therefore conducting the same process, and the conveyor, screens, floatation and magnetic separators (among other equipment) used are the same. The only difference is that the opposite end of the spectrum is being captured at the end of the process. Mr Ruggieri said in relation to conveyors, that whilst there may be a difference in the number and length of conveyors across sites, the maintenance, repair, servicing and change-out work with respect to conveyors is no different on any site.

[419] In relation to evidence about rosters, Mr Ruggieri said that whether it is coal or iron or any other sector, there are even time rosters, 2/1 rosters, lifestyle rosters and pyjama rosters that apply. As Mr Malone states, iron ore does not operate only on 2/1 rosters. In response to evidence about witnesses working alongside deployment crew during shutdowns, Mr Ruggieri said that every site has conveyors that must be maintained and repaired for breakdowns as well as shutdowns. Mr Ruggieri also stated that BHP has been working on standardising conveyor equipment and suppliers, such that the exact same supplier will supply the rollers and other conveyor parts for coal, nickel, OD and iron ore assets. This has also facilitated the development and adoption of maintenance strategies which are common across the work performed in the Group.

[420] Mr Ruggieri said that whether workers have the same room allocated to them when they are at a mine site is a site-by-site matter, not product related. For example, the team at Saraji works a 7/7 roster and do not get permanent rooms in the camps they work in. Others at Caval Ridge who are on the same roster and do the same work have permanent rooms. It is dictated by availability, cost, and ownership of the rooms.

[421] In relation to evidence about procedures such as Job Hazard Analysis, Standard Operating Procedures, Take 5 or Job Safety Analysis, Mr Ruggieri’s response is that regardless of terminology, these processes are not unique to any one site and the process for identifying and assessing hazards and then a safe work procedure is the same.

[422] In addition, Mr Ruggieri stated that the Group has been working on standardising key SOPs, previously called fatal risk control procedures, or the BHP life-saving rules. This approach of adopting common SOPs was taken from the approach on Western Australian iron ore assets, such that there are many common features between the SOPs across the product groups – for example they now wear the same types of PPE. Further, across all sites, M it is necessary for employees to arrive healthy, not fatigued, not under the influence of anything and to follow standard safety guidelines and operating procedures. Mr Ruggieri also noted that emergency control plans are the same across both East and West Coast sites. Mr Ruggieri referred to Mr Jones’ statement that he is not required to use SAP software and said that SAP is used across all BHP operations across the globe. If Mr Jones is not using it now, he soon will be. There is a specific training program being developed targeted at teaching all remaining OS employees to use SAP as it is required to be used.

[423] Mr Ruggieri also referred to Mr Jones’ statement in which he says that: “Certain high risk tickets need to be re-issued in a coal mine to be coal competent.” Mr Ruggieri understands Mr Jones to be referring to the requirement that employees receive mine specific verification of their qualifications. It is not correct to say the qualification or ticket is not recognised and has to be done again. Each mine must pass-out/verify/clear/recognise (the process has different names but the same outcome), the qualification when an employee starts at the mine. Mr Ruggieri stated that this is not specific to any product and this is a common safety requirement that is needed to ensure that all incoming employees on a mine are competent to use the specific class of machines on the site. This requirement applies even if employees transfer from site to site within a product asset.

[424] In response to concerns about deskilling by moving from product group to product group, Mr Ruggieri stated that the skills picked up as a maintainer in iron ore are transferrable to any other product group as has occurred in Mr Ruggieri’s case. In addition, as the Group moves to the BHP Operating System (BOS), the key aspects of maintainers roles will grow substantially similar globally. Where national recognition of tickets/licenses applies, the ticket is recognised. Despite this, workers will still be required to be passed-out/cleared to site by an individual mine’s Safety and health management system. Mr Ruggieri also said that evidence about differences in the weather at various sites, is a question of degree and preference and that the weather is generally harder for longer on the West Coast, but it can be just as difficult in the Bowen Basin.

[425] In relation to evidence that maintenance crew are not allowed to operate equipment on roads, Mr Ruggieri’s view is that this is a question of terminology. Only maintenance workers who have the full qualifications can operate a machine in the sense of operating under load and almost all maintainers have a test and move qualification. This means they can operate a machine in the sense of driving it on a circuit for testing or move it to a maintenance area, but they cannot use it for production purposes.

[426] In response to evidence about the lack of movement between coal and iron ore, Mr Ruggieri said that one of the best benefits of working for BHP OS is the ability to move between sites. According to Mr Ruggieri OS wants people to be able to move between sites for development and personal opportunities and to bring their skills and experience to a team that may need them.

[427] Under cross-examination by Mr Reed for the AMWU, Mr Ruggieri said that a national maintenance agreement would achieve uniformity of terms and conditions of employment so that teams of employees working in one State on a project could replicate the project in another State. Employees could move between States while maintaining their terms and conditions of employment. Mr Ruggieri did not have current data on whether the absence of an agreement was inhibiting the movement of employees in this way or the transfer of ideas between States. Mr Ruggieri also said that whether or not employees were allocated permanent rooms depended on the particular sites and the availability of rooms.

[428] Ms Morkel gave evidence for OS Maintenance. Ms Morkel’s evidence is that on or about October 2020 she was assigned by her manager, Ms Sally McLellan, to provide advice to OS Maintenance and in the course of that role was nominated, on or about November 2020, to provide enterprise bargaining support. OS Maintenance employs trades persons (including mechanical and electrical tradespersons), mechanical associates and/or skilled trades assistants at:

•  mine sites, including connected port operations (but not rail operations);

•  the Mackay Future Fit Academy;

•  the Perth Future Fit Academy; and

•  The Perth Repair Centre

[429] Bargaining for the OS Maintenance agreement originally commenced in 2018. OS Maintenance believed an agreement was reached in 2018 and sought FWC approval. On 12 November 2020, a majority of the Full Bench of the Fair Work Commission determined not to approve the enterprise agreement. Ms Morkel stated that as a result of the decision, the business decided to continue the bargaining commenced in 2018.

[430] Ms Morkel tendered documents received by OS Maintenance from various bargaining representatives in relation to their status as such. Ms Morkel also tendered correspondence from the Unions in relation to their assertions that bargaining had ceased following the applications for approval of the OS Production and OS Maintenance agreements being dismissed and responses from OS Maintenance disputing this and indicating an intention to continue bargaining. Further correspondence was tendered by Ms Morkel in which there was discussion about a meeting date and a meeting was scheduled for 17 December. Ms Morkels’ evidence about the bargaining process for the OS Maintenance agreement which commenced in December 2020.

[431] In relation to the scope applications made by the AMWU and the CFMMEU, Ms Morkel said that the effect of the CFMMEU claim is for three agreements:

•  One for OS Maintenance and OS Production covering Employees in production and maintenance in the black coal mining industry; and seperately

•  One for OS Production covering production Employees outside the coal mining industry;

•  One for OS Maintenance covering maintenance Employees outside the coal mining industry.

[432] The effect of the AMWU claim is for at least four agreements:-

•  Three agreements with OS Maintenance, one each to cover:

•  Employees in black coal mining in Qld;

•  Employees in black coal mining in NSW;

•  Employees in non-coal mining in WA;

•  One agreement for OS Production covering production employees in mining.

•  An undisclosed number with OS Maintenance, for mining other than Qld and WA and for manufacturing.

[433] The CEPU has intervened in the AMWU application, and the effect of its position is:

•  The CEPU supports the application of the AMWU for 4 agreements.

•  In the alternate, the CEPU supports the application of the CFMMEU for three agreements.

[434] The AWU has intervened in the two applications. The AWU supports the application of the CFMMEU. The effect of the AWU position is for three agreements:

•  One for OS Maintenance and OS Production covering Employees in production and maintenance in the black coal mining industry; and separately

•  One for OS Production covering production Employees outside the coal mining industry;

•  One for OS Maintenance covering maintenance Employees outside the coal mining industry

[435] In response to Mr Hughes’ evidence Ms Morkel said that OS commenced undertaking work in the Queensland Coal Fields a few years ago. Before that, the jobs that the OS employees are currently performing were either done by permanent BHP employees or employees of other labour hire companies. The first deployment of OS Maintenance in the Bowen Basin was in 2018. Since that time there have been a number of deployments in the Bowen Basin to undertake shutdowns, work on fixed plant and work on mobile plant.

[436] Ms Morkel contends that there is no evidence of the alleged duplication and inefficiency asserted by Mr Hughes in relation to conducting the better off overall test against two awards. Ms Morkel also states that there is no evidence about how long it took Mr Hughes to compare the two awards. Ms Morkel has examined the two awards and in her view it only takes a cursory look to see that whatever passes the better off overall test for the Black Coal Award should pass that test for the Mining Industry Award. In any event, Ms Morkel does not see why Mr Hughes needs to compare the mining award as he has no members or interest in the non-coal sector.

[437] In relation to Mr Hughes’ statement that industry scope will enable an agreement to be tailored to the relevant regulatory regime, Ms Morkel contends that none of the regulatory considerations identified by Mr Hughes has impacted on any term or condition being negotiated in the bargaining being conducted by OS Maintenance. Ms Morkel also states that given that the CFMMEU has the exact same claims against OS Maintenance and OS Production, it is hardly surprising that the responses are generally the same. However, the responses have not been identical and the other unions and bargaining representatives are raising and discussing different matters which all parties discuss.

[438] In response to Mr Hughes’ evidence about the result of the CFMMEU’s application, Ms Morkel states that its effect is that:

•  The CFMEU will be bargaining for one agreement;

•  The AMWU, and ETU, will still be bargaining for two agreements;

•  The AWU will still be bargaining for two agreements.

[439] Ms Morkel also referred to Mr Hughes’ response to her statement regarding how much time was spent discussing the issue of scope. Ms Morkel noted that achieving a national agreement is an objective of OS Maintenance. Ms Morkel stated that she advised Mr Hughes of this during the first and subsequent meetings. That does not mean that OS Maintenance is not open to discussions on scope or did not genuinely consider and respond to the parties’ proposals on scope. Ms Morkel’s evidence is that OS Maintenance feels strongly about a safety net agreement but this has not hindered lengthy discussions about any other proposals.

[440] In relation to Mr Hughes’ reply to her position that that scope has not impacted the response of OS Maintenance or discussions regarding claims, including accident pay. Ms Morkel stated that OS Maintenance has a policy that provides for accident pay that covers the whole of the OS workforce. This, together with the objective of a simple, safety net agreement means that OS Maintenance does not agree to including an accident pay clause in the proposed Maintenance agreement. Ms Morkel’s evidence is that not once has it been suggested during bargaining that scope is the reason that OS Maintenance does not accept this proposal and contended that the fact that this entitlement is provided to OS Maintenance’s national workforce means that scope is not an issue.

[441] In response to Mr Scherf’s statement that OS Maintenance has rejected the AMWU’s proposed scope during negotiations, Ms Morkel said that it is also the case that the AMWU has continued to reject the scope proposed by OS Maintenance, but this has not prevented bargaining on any other term and condition raised by any bargaining representative. Ms Morkel also said that where OS Maintenance has accepted/presented a modified proposal to a claim, scope has not been an issue.

[442] Ms Morkel denied that Mr Scherf put a proposition that meaningful progress in the negotiations could not be made because the parties were diametrically opposed to the structure and scope of the agreement or that she agreed with such a proposition. Ms Morkel disputes Mr Scherf’s evidence that there is an impasse and maintains that the parties have continued to discuss terms and conditions in every meeting, notwithstanding the position of either OS Maintenance or the AMWU or any bargaining representative on scope or structure of the agreement.

[443] In response to Mr Scherf’s evidence that the main difference for AMWU members is that the type of maintenance work performed at an iron ore mine is specific to the plant used in that process and vice versa for coal, Ms Morkel said that OS use the same trades and non-trades skills in both sectors. While every mine has “cleared to site/machine” or “pass-out” procedures, that applies to different machines within sites, between sites in the same sector and between sites in different sectors, the safety obligation holders are required to do such pass-outs whenever a person is new to the site or machine, or even a work area, in a mine. Ms Morkel also said that there is no evidence to support Mr Scherf’s assertion that employees in the coal industry are more likely to suffer an accident such as being crushed or injured from fires or explosions, and to the extent this is correct (which is not admitted) Mr Scherf refers to matters almost peculiar to underground mines in circumstances where OS Maintenance does not do any underground work.

[444] In response to evidence from Mr Hughes and Mr Scherf in relation to rostering and its impact on pay, and the related issue of where coal mine workers in Queensland reside, Ms Morkel said only 8.6% of OS Maintenance workers in Queensland and 7.8% in Western Australia, have post codes local to the mining operations. According to Ms Morkel, these figures indicate that the majority of OS maintenance employees in Queensland travel by various means – fly in fly out (FIFO), drive in drive out (DIDO) or bus in bus out (BIBO) – from multiple parts of Queensland and interstate. Ms Morkel also said that Mr Scherf’s evidence that employees in Western Australian iron ore operations are working a 3/1 roster is not correct and the longest roster OS employees work is 2/1.

[445] Ms Morkel also responded to evidence about OS Maintenance Workers being paid less or receiving lesser terms and conditions of employment than BHP employees by stating that these matters are factored into total remuneration paid to OS employees or by giving evidence of benefits received by persons who gave such evidence.

[446] Under cross-examination by Mr Reed for the AMWU, Ms Morkel was asked a series of questions about what OS Maintenance does. Ms Morkel agreed that OS Maintenance provides maintenance services and does not supply plant and equipment. In response to a question that OS Maintenance does not do much other than supply people to do maintenance work, Ms Morkel said that she did not understand the question and then did not agree with the proposition. When asked again, what OS Maintenance does, Ms Morkel said that OS Maintenance supplies maintenance services to BHP assets and when asked what it did other than supply labour to do that work, Ms Morkel repeated that OS Maintenance provides a service be that maintenance of plant, mobile equipment or shutdowns. When asked again, who performs the service, Ms Morkel said: “OS employees perform the work to deliver the service”. When pressed as to what OS Does part from supplying labour to perform the work and provide administrative support necessary for the employment of that labour, Ms Morkel repeated her evidence that OS Maintenance supplies the maintenance services. This exchange went on for some time with no clear acceptance that OS Maintenance principally supplies labour to undertake maintenance services and no clarification of what else it does. My attempts to put propositions to Ms Morkel to the effect that OS Maintenance may employ planners, managers, schedulers and the like, did not elicit any further information. 310

[447] Ms Morkel agreed that BHP is pursuing a national maintenance agreement and a national production agreement and had maintained the same position on scope since November 2021. Ms Morkel also agreed that on behalf of OS Maintenance, she had informed bargaining representatives that proposals “would be considered through a lens of simplicity and maximising flexibility and choice for our employees and enabling OS to remain cost competitive and continue to grow” and that she had repeated this objective throughout negotiations but had also responded to specific proposals put by the Unions.

[448] In response to questions about what flexibility the proposed OS Maintenance agreement offered employees, Ms Morkel said that it allowed them to work nationally across Australia and there were examples of employees who had moved between assets depending on their circumstances and personal choices and OS’ proposal would allow this to continue. In response to a question about why the numbers of agreements or their nature would prevent this movement, Ms Morkel referred to the terms and conditions being “vastly different” and the cost no longer being effective. 311 Ms Morkel was unable to point to a document – either within BHP or OS – that explains to employees who that flexibility may be delivered to them.

[449] In relation to the bargaining agenda, Ms Morkel agreed that OS Maintenance commenced by proposing an agreement which was shared with Union and employee bargaiing representatives but did not agree that meetings had generally been structured around various clauses in the proposed OS Maintenance agreement stating that the vast majority of meetings had been spent discussing Union proposals. Ms Morkel accepted that some of the Union proposals had been revisions of clauses proposed by OS Maintenance but said that others had been additional proposals in relation to topics that OS had not included in its draft agreement. In response to a proposition that there had been no movement in bargaining about wages, Ms Morkel said that there had be a lot of discussion around the proposal of OS Maintenance in relation to the 105% wages offer and a table had been inserted in to the proposed agreement to explain that. Ms Morkel said that the Unions had not put forward anything in terms of what they think the wage rates should be. Ms Morkel accepted that the Unions did not agree to the 105% proposal and maintained that the inclusion of the table was a movement on wages because the clause had been updated.

[450] In response to the proposition that there had been no movement on accident pay, Ms Morkel said that the response of OS Maintenance has always been that there is a policy in relation to this matter and it does not need to be included in the agreement. Ms Morkel accepted that the policy does not bind OS by virtue of a clause in an industrial instrument nor contractually and that it is entirely at the whim of OS as to whether the accident pay benefit is provided to an individual employee. Ms Morkel also agreed that there has been no movement in relation to bonuses or the insertion of a bonus scheme into the agreement and further that there has been no movement on housing allowances, which OS Maintenance does not want to pay. Similarly, the Unions’ claim that employees should not be required to work on Christmas Day or Boxing Day has not been accepted by OS Maintenance. In response to a question as to whether the position of OS Maintenance on this claim was related to flexibility, Ms Morkel said that she had never looked at it in that way but there was a possible relationship with flexibility.

[451] In response to questions about how the proposed OS Maintenance agreement would operate, Ms Morkel said that the agreement would ensure that people were better off overall than the award and that there would be other things set out in contracts of employment. Ms Morkel said she was not aware of any intention to do away altogether with contracts of employment. Ms Morkel was also asked why an agreement is necessary as another safety net layer when there is already a safety net award and employees are engaged under contracts of employment that provides for them to be paid well in excess of the award. Ms Morkel said in response that OS Maintenance sees a benefit in having a consistent set of terms and conditions under the enterprise agreement for its national workforce.

[452] Ms Morkel was shown a contract of employment for Mr Boss tendered by the AMWU 312 which sets out Mr Boss’ salary and states that if he is covered by the Black Coal Award and an enterprise agreement does not apply, his salary is paid in satisfaction of various award provisions so that he will not be paid any special rates or allowances for working at particular times under particular conditions, unless agreed in writing. Ms Morkel said that if the OS Maintenance agreement, as presently proposed by the Company, came into operation, OS Maintenance would be required to top-up Mr Boss’ salary if it was less than what he would be paid for working under the Black Coal Award plus an amount of 5%. Ms Morkel accepted that the incentive scheme referred to in the contract is at the discretion of OS Maintenance and that the contract does not set out what the incentive scheme may entail. Ms Morkel said that there are other documents setting out these matters but accepted that they are policy documents which are not binding. Ms Morkel also accepted that the non-binding nature of policy documents is clearly set out in contracts of employment for OS Maintenance employees which contain a statement that they are not incorporated into the employment agreement and do not create any binding obligations for the Company or enforceable rights for the employee.

[453] Under cross-examination from Mr Walkaden for the CFMMEU Ms Morkel was asked to confirm that scope was discussed at each of the seven bargaining meetings for the proposed OS Maintenance agreement. Ms Morkel responded by stating that scope had been “touched on or referenced” at each meeting but there had not been “discussions or even lengthy discussions”. Ms Morkel then had the following exchange with Mr Walkaden:

“Ms Morkel, I said to you at the outset that I was going to ask you some fairly simple questions in the interests of time. I’ve asked you a number of different questions and I want you to agree with me, or otherwise, as to whether the issue of scope has been spoken about at each of the seven bargaining meetings? --- I’ll reiterate what I said previously. Scope has been referenced at every meeting. The degree to which we have spoken about it has varied meeting on meeting.

Okay, I understand your answer that it has been referenced. I’m asking you a specific question as to whether it has been spoken about? --- I don’t know how to answer this any differently.” 313

[454] Ultimately, Ms Morkel accepted that the subject of scope had been spoken about at each OS Maintenance bargaining meeting. Ms Morkel agreed that OS Maintenance and the CFMMEU have very different positions on scope and the AMWU also has a different position to both the CFMMEU and OS Maintenance. Ms Morkel also agreed that it is unlikely that OS Maintenance will reach in principle agreement with the Unions at the bargaining table in relation to scope. Further, Ms Morkel agreed that the parties are very opposed on the question of scope and but said that while the outcome of the present scope applications may not resolve all positions it would provide some sort of outcome. However, Ms Markle maintained that the issue of scope had not stopped the parties discussing other terms and conditions as they relate to the enterprise agreement. Ms Morkle also maintained that scope has not been a resounding issue about which feedback has been received from the OS Maintenance workforce.

[455] Ms Morkle agreed that it is not uncommon for bargaining parties to have different positions on an important topic and nonetheless reach an agreement and that it is an option for the Company to seek to put its proposed OS Maintenance agreement directly to a ballot of employees at some point in the future where an impasse is reached. Ms Morkle said that this is not the present position. Ms Morkle was also asked about the changes to the Company’s proposed agreement which she described as concessions and accepted that from December 2020 to the present, these were the only concessions or alternative proposals made by OS Maintenance with respect to its proposed agreement.

[456] Ms Morkle did not agree that the classification table at clause 7.3 of the proposed agreement was included for clarity and did not constitute a concession. Ms Markle agreed that at the heart of clause 7, absent the table, was the guarantee to pay employees 105% above the relevant award but maintained that the table was a concession because there could be non-trade employees who meet different levels of the Black Coal Award classifications and were not at the Mineworker level. In relation to the increase in the minimum break from eight to ten hours, the proposition was put to Ms Morkel that this was to reflect the fatigue management policies at BHP’s coal mines in Queensland. Ms Morkel said in response that the Unions put forward proposals and OS Maintenance looked at the proposals and thought this was something it could do. Ms Morkel did not accept that changing this provision, in circumstances where OS Maintenance could not deploy its employees on to Queensland coal mines without giving them a ten hour break between shifts, was not a meaningful concession. Ms Morkel maintained that the change was a change in position.

[457] Ms Morkel said that she characterised agreement to pay for annual leave at the employee’s salary rate as a clarification and agreement to pay for compassionate leave at the employee’s annual salary rate as a concession, because this exceeded the NES position. When asked to explain which of these she would characterise as a meaningful concession, Ms Morkel said that “meaningful” is a subjective word and means different things to different people. In that context, Ms Morkel characterised the insertion of the classification table in the agreement as the most meaningful concession but said that they were all meaningful. Ms Morkel pointed to three claims made by the CFMMEU which OS Maintenance had agreed to, including clarification about payments made to employees while on forms of leave, albeit without the reference to the payments including bonus as had been sought by Mr Hughes.

[458] Ms Morkel was taken to the draft agreement proposed by the CFMMEU and asked to identify clauses which OS Maintenance contend would impede flexibility. Clauses nominated by Ms Morkel included:

•  A provision that the Company will not allocate tasks in a manner which promotes deskilling;

•  A clause providing for employees to present themselves ready to start their rostered shift at the prescribed start time and location (which may limit future flexibility to amend start and finish times);

•  A provision that transport to and from training venues is provided (which although the Company would provide transport, this may not always be possible);

•  Detailed processes which the Company would be required to adhere to before implementing redundancies;

•  Processes for suspending employees with pay while disciplinary investigations are carried out (which do not give flexibility not to pay people and which require notice of suspension to be provided in writing which may not be possible on every occasion, although Ms Morkle acknowledged written notice would be best practice); and

•  The dispute resolution procedure insofar as the clause proposed by OS is more flexible in terms of the appropriate steps or level to deal with a dispute and which provides for arbitration by the Commission only by agreement of all parties).

[459] In relation to the CFMMEU’s claim for accident pay to be included in the proposed OS Maintenance agreement, Ms Morkle maintained that the relevant policy confers a better entitlement in terms of payment than the provisions in the Black Coal Award and said that as OS Maintenance was seeking a simple safety net agreement and has a policy that provides for a top-up of workers compensation payments (accident pay), it does not see the need to replicate that in an enterprise agreement. Ms Morkle accepted that BHP could change the policy and remove the entitlement to accident pay in that policy although Ms Morkle did not believe that this would occur.

Ms Morkel agreed that Mr Scherf had not made a contribution at the seventh meeting and had instead stated that he did not want to verbally provide feedback during the meeting but would do so in writing at a later time. Ms Morkel also agreed that there had been a shift in Mr Scherf’s behaviour at the meeting and that she had attributed comments he made about scope to the fact that a hearing into the scope applications was underway. Ms Morkel confirmed that there would likely be a deployment of OS Maintenance employees to the Olympic Dam Mine in South Australia later in 2021 and that the AMWU had not advised that it would seek a separate maintenance agreement for South Australian employees until Mr Scherf gave his evidence in these proceedings.

Evidence for OS Production

[460] Ms Chauncy gave evidence on behalf of OS Production. As a Principal Employee Relations Ms Chauncy can be required to provide advice to any employing entity within the BHP Group to which she is assigned by her manager. In the course of her current role, she was assigned by her manager Ms McLellan to provide employee relations advice to the Respondent, including routinely enterprise bargaining support.

[461] Ms Chauncy stated that OS Production began bargaining for an Enterprise Agreement (EA) in 2018. It is believed an agreement was made in September 2018 and OS sought approval from the Commission. When a Full Bench of the Commission determined not to approve the Agreement, OS Production began a second round of bargaining. This followed an exchange of correspondence with the Unions about whether bargaining had ceased. Arrangements for new bargaining meetings were subsequently made with the CFMMEU and bargaining commenced.

[462] Ms Chauncy also gave evidence that the Unions participating in enterprise bargaining have at various stages exercised their rights of entry and left materials on site for viewing by employees. On or about 15 October 2020, a right of entry was undertaken by a representative of the CFMMEU at Peak Downs Mine and two types of flyers were left concerning the OS Agreements. One flyer criticised the contents of the OS Agreements and the other raised concerns purportedly held by OS employees and encouraged other OS employees to participate in an online survey. The first flyer tendered by Ms Chauncy is headed: “BHP says no to equal pay for OS workers” and includes a statement that BHP had confirmed that it had no interest in closing the gap in pay and conditions with direct BHP employees. The second flyer, also tendered by Ms Chauncy is headed: “HOW DO CONTENTS OF OPERATIONS SERVICES AGREEMENTS STACK UP AGAINST OTHER NEW BHP OPERATIONS” and contains a comparison based on 4 Panel 7 day/night roster excluding bonus for operators and tradespersons and indicates that OS employees are paid less than BHP employees. 314

[463] On or about 1 March 2021, a right of entry was undertaken by a representative of the CFMMEU at South Walker Creek and four types of flyers were left concerning the OS agreements. Ms Chauncy also tendered those flyers. The first flyer is an OS Production EA Update which refers to the attempts by the CFMMEU to seek fair terms and conditions of employment that reflect industry standards and refers to the need to include specific terms and conditions in an agreement rather than having them in Company policy which can be changed without their knowledge.

[464] The second flyer refers to a survey being undertaken by the CFMMEU and sets out “workers’ thoughts” including a statement from a worker who wants to be treated the same as BMA workers at the same site and to receive the same pay for the same job. Other statements are that employees should all be on the same agreement and refers to Christmas day and conditions for working on that day. The third flyer sets out the results of a bargaining survey including that 88% of respondents want wages more closely aligned to other BHP/BMA employees and that 76% of respondents think that BHP treats OS workers unfairly. The fourth flyer is headed “HOW DO CONTENTS OF OPERATIONS SERVICES AGREEMENTS STACK UP AGAINST OTHER NEW BHP OPERATIONS” and is the same as the flyer left at locations at the Peak Downs Mine and referred to above. 315

[465] Ms Chauncy gave evidence on behalf of OS Production. Ms Chauncy’s evidence about bargaining negotiations for the OS Production agreement is set out above. In response to Mr Hughes’ statement that the bargaining meetings to date have reflected the scope of the agreements proposed by OS, Ms Chauncy stated that the bargaining meetings held with OS Production have included a scope that reflects the 2018 Production Agreement. Ms Chauncy also stated that OS Production has not prevented any bargaining party from raising any claim, has discussed all claims, and has considered all claims and responded to all claims. It has provided significant information to the bargaining parties and engaged in correspondence with all parties out of meeting sessions.

[466] In relation to Mr Hughes’ statement that the scope proposed by OS Production has resulted in the terms of the proposed agreement having to be considered against the Black Coal Award and the Mining Award leading to duplication and inefficiency, Ms Chauncy said:

•  There is no evidence of the alleged duplication and inefficiency;

•  There is no evidence how long it took Mr Hughes to compare the two awards;

•  She does not see why Mr Hughes needs to compare the awards as he has stated he has no members or interest in the non-coal sector; and

•  Following examination of the two awards it is Ms Chauncy’s view that it takes only a cursory look to see, that whatever passes the BOOT for the Black Coal Award is going to pass the BOOT for the Mining Industry Award.

[467] Ms Chauncy also said that no issue has been raised in bargaining for the proposed OS Maintenance agreement about the effect of the need to consider both the proposed Production and Maintenance agreements against the regulatory regime in the coal industry and nor has this impacted on any term and condition being negotiated. In response to Mr Hughes’ assertion that the positions taken by the OS companies in bargaining have been virtually identical, Ms Chauncy said that the responses have not been identical and provided an example of a concession made in relation to meal breaks in the OS Maintenance Agreement which was not adopted in the OS Production Agreement. This was because Production sought to maintain the flexibility for meal breaks to be taken at times prescribed by the Company due to the way Production teams operate differently to maintenance teams, rather than be prescriptive in the timing.

[468] Ms Chauncy stated that it is not surprising that the responses OS Production has provided during bargaining in respect of the CFMMEU’s claims have largely been identical with those of OS Maintenance, given the proposals tabled by the CFMMEU and the AWU have been identical in respect of both agreements. Ms Chauncy also noted that the effect of the CFMMEU claim is that:

•  there will be bargaining for three agreements, not two:

•  One for OS Maintenance and OS Production covering Employees in production and maintenance in the black coal mining industry; and separately

•  One for OS Production covering production Employees outside the coal mining industry;

•  One for OS Maintenance covering maintenance Employees outside the coal mining industry;

•  the CFMMEU will be bargaining for one agreement;

•  the AMWU, and ETU will still be bargaining for two agreements; and

•  the AWU will still be bargaining for two agreements;

[469] Ms Chauncy also maintained that there was never really a discussion on the topic of scope and that at best, the parties would reiterate their position on scope at the beginning of most meetings. The main discussions in the bargaining meetings were always around the structure of the agreement and whether it should be a simple, safety net agreement or a comprehensive agreement. Ms Chauncy stated that there was always an opportunity for Mr Hughes to elaborate on the CFMMEU's position on scope but this was never taken.

[470] In response to Mr Hughes' statement regarding claims during bargaining, including accident pay, Ms Chauncy stated that accident pay is covered by a policy that applies to all OS employees. Ms Chauncy’s position is that there was never any discussion during the bargaining meetings about accident pay beyond the proposal, and the response to that proposal.

[471] In response to Mr Hughes’ statement that Ms Chauncy was incorrect to suggest that claims in respect of safety, long service leave and the like have not been raised during bargaining, Ms Chauncy accepted that the claims have been included in the CFMMEU's draft agreement. However, Ms Chauncy’s position was that these claims had not been raised during the bargaining meetings and substantively discussed.

[472] Under cross-examination by Mr Walkaden for the CFMMEU, Ms Chauncey outlined concessions made by the CFMMEU New South Wales at the sixth bargaining meeting, which related to the dispute settlement procedure. Ms Chauncy accepted that the issue of scope had been discussed at each of the six bargaining meetings for the proposed OS Production agreement but maintained that the discussion had not been substantive and had involved each party simply reiterating its position. Ms Chauncy also accepted that the parties had been unable to agree on scope but did not accept that agreement was unlikely stating that bargaining was continuing. In relation to the position of OS Production on scope, Ms Chauncy had the following exchange with Mr Walkaden:

“--- Well our fundamental principle is to seek to make a simple safety net agreement that covers our national workforce. Every proposal and claim that’s put on the table is viewed through the lens of ensuring that its simplistic, it provides flexibility, and it allows us to continue to grow.

And that mantra, that has been trotted out at each of the six bargaining meetings for a production agreement, hasn’t it? --- It has.

And you have conveyed that message loud and clear to Mr Hughes, Mr Drayton, Mr Ralston and the AWU and others, haven’t you? --- Correct.

So at each meeting your have conveyed that mantra haven’t you? --- Correct.

And that mantra includes an agreement with a national scope? --- Correct.

And we understand, or you understand at least, that the unions namely the CFMMEU and AWU do not agree with OS’s position in that respect? --- Correct.

Now based upon that would you agree with my proposition that agreement between OSMCAP Pty Ltd an the unions as to scope is unlikely? --- It’s – honestly, that’s a difficult question for me to answer because we continue to bargain.” 316

[473] Ms Chauncy accepted that OS Production would like to have an enterprise agreement approved by the Commission and that it would be preferable to achieve this by reaching in principle agreement with the MCFMMEU, AWU and employee bargaining representatives before putting the agreement to a ballot of employees. Ms Chauncey accepted that at some point, if in principle agreement was not achieved, OS Production may put its proposed agreement to a ballot of employees and seek their approval. If that approval was not forthcoming, Ms Chauncy accepted that bargaining would continue unless the bargaining representatives agreed to cease bargaining and that OS Production would be back at the table with the bargaining representatives.

[474] Ms Chauncy responded to the proposition that the CFMMEU had compromised its position on scope by maintaining that the Union had changed its position. Ms Chauncy accepted that the original CFMMEU position was not a national scope. In response to the proposition that in changing its position to seeking a national coal agreement, the CFMMEU had moved its position closer to that of the Company, Ms Chauncy said that she did not see it in this way and that the CFMMEU was still seeking a coal only agreement, including production and maintenance employees.

[475] Ms Chauncy accepted to some extent, that in terms of simplicity, the number of agreements being proposed is an indicator of a simpler framework. Ms Chauncy also accepted that in reducing the number of agreements it was seeking by altering its position on scope, the CFMMEU in that respect, had moved closer to the simplicity being sought by OS Production. Ms Morkel maintained that OS Production had made three concessions during the six month period that the negotiations for the proposed OS Production agreement had been proceeding. In relation to the first proposal to increase the minimum break between shifts from eight to ten hours, Ms Chauncy agreed that the fatigue management policies at BHP’s coal mines in Queensland require a ten hour break between consecutive shifts.

[476] In relation to the payment of annual leave on termination of employment, Ms Chauncy accepted that this inclusion reflects the requirements of the National Employment Standards. In relation to the payment of compassionate leave at an employee’s annual salary rate, Ms Chauncy said that she is not sure whether this amendment was to comply with the National Employment Standards. In response to the proposition that these were not meaningful concessions, Ms Chauncy said that OS Production has made concessions, and whether or not they are meaningful is a personal interpretation. Ms Chauncy also said that in her view, they are proposals that were not included in the earlier version of the proposed agreement and are concessions. Ms Chauncy rejected the proposition that including matters in an enterprise agreement that simply reflect the National Employment Standards is not a meaningful concession. Ms Chauncy agreed that other than in respect of five provisions identified by Mr Walkaden, the proposed OS Production and OS Maintenance agreements are virtually identical.

[477] In response to a question requesting that she identify the three most inflexible or restrictive terms in the CFMMEU’s proposed agreement, Ms Chauncy observed that the dispute resolution procedure is a lot more restrictive than the version of the clause proposed by OS Production, and that it allows for all disputes, rather than those arising under the agreement or in relation to the National Employment Standards, to be referred to the Commission and arbitrated without the agreement of OS Production. Ms Chauncy said that the preferred option for the Company is that disputes about matters other than those arising under the agreement or in relation to the National Employment Standards, are resolved at the site level and not referred to the Commission and that arbitration is by agreement of both parties. In response to a question as to how the other disputes would be resolved, Ms Morkel said that the Company would like to see all disputes resolved but there would be no other avenue with respect to those disputes.

[478] The second term that Ms Chauncy identified as inflexible was the consultation term. Ms Chauncy accepted that this term is required and that the CFMMEU is seeking to include the model term in its proposed agreement. Ms Chauncy also identified wages and bonuses, notwithstanding that the CFMMEU has not advanced a specific position on either, other than to seek the inclusion of provisions dealing with those matters in the agreement. Ms Chauncy accepted that it would not necessarily be the outcome if the CFMMEU’s scope application was granted, that OS would be bargaining for three agreements and that the number of agreements would be the subject of negotiations. Ms Morkel could not point to any specific proposals that OS Production had put to the Unions during bargaining to increase productivity at mines.

[479] In response to questions from Mr Walkaden about how employees covered by the proposed OS Production agreement would work out their rate of pay, Ms Chauncy said that they would go to the relevant industry award to work out their classification and rate of pay and then consider award conditions such as maximum weekly hours of work, allowances and penalty rates before adding 5% to that amount. Ms Chauncy accepted that conditions like rates of pay, penalty rates and allowances are important employment conditions and that under the proposed OS Production agreement those conditions are determined by the respective industry awards – the Black Coal Award or the Mining Award.

CONSIDERATION

Prerequisites for valid application – s. 238(1) – (3)

When bargaining representative may apply for scope application

[480] I first consider whether the applications by the CFMMEU and the AMWU satisfy the prerequisites in s. 238(1) of the FW Act. It is convenient to consider these matters with reference to both applications. In relation to s. 238(1), it is not in dispute that the CFMMEU and the AMWU are bargaining representatives for proposed single enterprise agreements that are not greenfields agreements, and that they may each apply to the Commission for a scope order if the requirements in s. 238(1) – (3) are met. In relation to s. 238(1)(a) I am satisfied that each of the Unions has concerns that bargaining for the agreement is not proceeding efficiently or fairly. In relation to s. 238(1)(b), I am satisfied that the reason for this is that each of the Unions making applications for scope orders consider that the agreements proposed by OS Production and OS Maintenance respectively, will not cover appropriate employees or will cover employees that it is not appropriate for the agreement to cover.

[481] I maintain the view that s. 238(1) does not require that concerns held by a bargaining representative for the purposes of that section, and upon making an application for a scope order, must be objectively reasonable. Section 238(1) of the FW Act is directed at the views of the bargaining representatives, which are necessarily subjective. It is sufficient that those concerns relate to the efficiency and fairness of bargaining and that the reason for the concerns is that the bargaining representative notifying the concerns considers that the agreement will not cover appropriate employees or that it will cover employees that it is not appropriate for the agreement to cover.

[482] To consider the objective reasonableness of the views of an applicant for a scope order at the point the application is made, would be to effectively apply the provisions of s. 238(4) as a prerequisite for the making of the application, rather than for the grant of the order. That the concerns of a bargaining representative in relation to efficiency and fairness are considered subjectively is apparent from the fact that s. 238(4) does not refer to the concerns of the bargaining representatives, but rather, requires the Commission to consider whether making the order sought resulting from the bargaining representative having those concerns, will inter alia promote the fair and efficient conduct of bargaining and is reasonable in all the circumstances. The use of the term “reasonable in all the circumstances” connotes an objective consideration of the matters in s. 238(4). If matters in s. 238(1) were required to be established objectively, it would be expected that there would be a reference to the concerns of the bargaining representative being reasonably held. I am also satisfied as required by s. 238(2) of the FW Act, that a single interest employer authorisation is not in operation in relation to the agreement subject of each scope application.

Bargaining representatives to give notice of concerns

[483] I turn now to consider the CFMMEU’s assertion that the AMWU letter of 1 April 2021, does not meet the requirements of s. 238(3)(a) of the FW Act. That section provides that a bargaining representative may only apply for a scope order if the bargaining representative has taken all reasonable steps to give a written notice setting out the concerns referred to in s. 238(1), to the relevant bargaining representatives. The CFMMEU asserts that the AMWU notice of concerns in relation to bargaining for the OS Maintenance Agreement, was directed to Ms Morkel. A further letter in the same terms was sent to Mr Smythe of the CFMMEU. Both letters invited a response from the addressees. Other bargaining representatives were simply copied into that correspondence by the AMWU listing the names and addresses of the recipients at the bottom of the letter setting out the AMWU concerns.

[484] The CFMMEU contends, on the authority of the Full Bench decision in AMIEU v Woolworths 317 that the letters did not meet the requirements of s. 238(3) of the FW Act for notices, with respect to bargaining representatives other than the CFMMEU. It is contended that the reason for this is the failure of the AMWU to address the letter to each bargaining representative and to make clear that the letter was inviting each bargaining representative to respond to the matters set out therein. It is further submitted that letters addressed to Ms Morkel, Ms Chauncy and Mr Smythe inviting them to respond to concerns in the letter, are not sufficient to meet the requirements in s. 238(3).

[485] I do not accept that submission. Nor do I accept that the Full Bench Decision in AMIEU v Woolworths is authority for the proposition that in all cases, a notice of concerns for the purposes of s. 238(3) must be addressed (in the sense of being directed) to each bargaining representative and that each bargaining representative must specifically be invited to respond to the concerns. In that case, the AMIEU – the notifier of the concerns – had been excluded from the bargaining process and the concerns were specific to the conduct of the employer and the capacity of another union (a bargaining representative for the proposed agreement) to represent the employees covered by the proposed agreement. The Full Bench found that in those circumstances, a letter to the employer notifying it of those concerns and inviting a response, did not comply with s. 238(3) of the FW Act with respect to notifying the other union of the concerns and inviting it to respond. It was significant that the concerns set out in the purported notice, included the question of that other union’s capacity to represent all employees covered by the proposed agreement in circumstances where the AMIEU had been excluded from the bargaining.

[486] The Full Bench also noted that the nature of the AMIEU’s letter to the employer made it unnecessary to address the broader question of whether copying in one party to a notice given to another party, is sufficient compliance with s. 238(3)(a) of the FW Act. The Full Bench made clear that its conclusions were reached in the circumstances of that case and stated that as a general approach, it would be reluctant to adopt a pedantic approach to such matters. 318

[487] In the present case, while it is true that the CFMMEU may have had a different view to the AMWU in relation to the issue of scope raised in the AMWU’s letter, the concern set out in the notice is not related to conduct of the CFMMEU but rather, to the insistence of OS Maintenance on a particular scope for the proposed Maintenance agreement. The AMWU’s letter was sent after the CFMMEU’s notice of was sent to the AMWU. It is also the case that, in contrast to the factual situation in AMIEU v Woolworths, the CFMMEU does not appear to complain of any deficiency in the AMWU notice with respect to its capacity to respond to that notice. There are no other bargaining representatives for the proposed agreement taking issue with form or content of the letter from the AMWU or its validity as a notice of concerns.

[488] Further, while the email address of Ms Morkel appears at the top of the letter, the salutation is “Dear Bargaining Representatives”. The names and email addresses of the bargaining representatives are included at the end of the letter under the signature block and under a heading “Copy to bargaining representatives”. In those circumstances, the facts can be distinguished from those in AMIEU v Woolworths in that the letter can be understood as also being directed to the bargaining representatives and inviting a response from the bargaining representatives and providing them with contact details if they sought clarification about the contents of the letter.

[489] I am also of the view that including persons in the list of those copied into the email, who are not bargaining representatives (such as officers and staff of the CFMMEU) does not result in the notice of concerns being deficient. The requirement is that the notifier of concerns take all reasonable steps to give a written notice of concerns to the relevant bargaining representatives. The fact that the notice included additional persons, does not result in it failing to meet that requirement. There is no bargaining representative claiming to have been denied an opportunity to respond to the notice given by the AMWU or that the notice was lacking sufficient detail to enable a reply to be made.

[490] Further, as Mr Reed for the AMWU pointed out, the CFMMEU, and not its various officers or staff, is the bargaining representative for the proposed OS Maintenance agreement and it not inappropriate that the CFMMEU’s officers and staff be notified of the notice notwithstanding that they may not be directly involved in the bargaining. That reasonable steps are taken to give the written notice of concerns to relevant bargaining representatives, is a minimum requirement and the notice is not invalid because it is given to additional persons who are not bargaining representatives. As previously noted, there is no assertion that the relevant officials of the CFMMEU were not included in the list of recipients of the notice or that they did not receive it. There is no assertion that the CFMMEU did not receive the notice. The CFMMEU had a reasonable time to respond to the notice. Accordingly, I am satisfied and find that the AMWU’s letter of 1 April 2021, was a notification for the purposes of s. 238(3) in relation to bargaining for the proposed OS Maintenance agreement and met the requirements of that section.

[491] Any issue that OS took with the CFMMEU’s notice was not particularised in its closing submission and for the reasons set out above in relation to the AMWU notice, I am satisfied and find that the letters sent by the CFMMEU on 1 April 2021 were notices for the purposes of s. 238(3) of the FW Act and met the requirements of that section. If I am wrong in relation to the notices, for the reasons following, this matter does not change the outcome of the applications for scope orders.

When the Commission may make a scope order – s. 238(4)

[492] As previously discussed, a Full Bench of the Commission in AWU v BP Refinery Kwinana held that when the Commission is considering two competing applications for a scope order, it is necessary to consider each on its own merits and determine whether one or both applications satisfy the requirements in s.238(4)(a) to (c). Where both applications meet those requirements, the resolution of the competing applications is governed by s.238(d). One of the two applications will be a more reasonable exercise of discretion and it would not be reasonable to make the orders sought in the other application.

[493] Also as previously discussed, the competing applications in AWU v BP Refinery Kwinana were made respectively by the employer and the AWU. Neither employer in the present case has made a scope application. Here, the competing applications were made by two Unions and in my view, this is of itself, a circumstance that is relevant to the reasonableness of making a scope order.

[494] I do not accept the proposition in the submissions of the AMWU 319, cited by the CFMMEU in its closing submissions,320 that the position of the OS entities is a de facto scope application. By making a scope application, a bargaining representative is effectively seeking to remove the issue of scope from the negotiating arena and have it determined by the Commission. The Commission has limited power to determine matters that are the subject of bargaining including the scope of an enterprise agreement. Such limitations are consistent with the legislative scheme governing enterprise bargaining which is directed at the parties bargaining in good faith at the enterprise level and the Commission facilitating agreements rather than determining outcomes. The good faith bargaining requirements set out in s. 228 of the FW Act, are essentially procedural and specifically do not require a negotiating party to make concessions or to reach agreement on the terms that are to be included in an agreement, which include its scope or coverage.

[495] Consistent with this framework, scope is primarily a matter for bargaining. The Commission’s power to determine the scope of an enterprise agreement is limited to the matters specified in s. 238 and requires satisfaction in relation to those matters to enliven the discretion to make a scope order, and further, that it is reasonable in all the circumstances to exercise that discretion. It is only scope applications made under s. 238 that are considered against the requirements in that section. The coverage of an enterprise agreement proposed by an employer as part of the bargaining process, is considered in the context of s. 238(4), with respect to whether making the scope order will promote the fair and efficient conduct of bargaining and is reasonable in all the circumstances. Relevant to that consideration will be matters such as the status quo in terms of agreement coverage and the history of bargaining in the enterprise concerned.

[496] Where an employer has initiated bargaining by proposing an agreement to cover a particular group of employees and is opposing a scope application made by another bargaining representative, there is no requirement for the employer to submit the issue of which employees its proposed agreement should cover to the Commission for determination, by making a counter claim in the form of its own scope application. The coverage of a proposed agreement is part of the negotiations for that agreement. To treat the employer’s position as if it is a counter claim to a scope application, would be tantamount to the Commission imposing a bargaining outcome on the employer. While the employer may choose to make a counter claim in the form of its own scope application, where the employer does not take this step, the employer’s position in relation to scope is simply a matter that is considered and weighed in the balance in deciding whether the requirements for satisfaction in relation to the matters in s. 3238(4) are met. The weight given to the employer’s position is a matter for determination in all the circumstances of a particular case. With those parameters in mind, I turn now to consider the competing applications in the light of the criteria in s. 238(4) of the FW Act.

Considerations common to both applications

[497] For the purposes of s. 238(4)(a) it is not in dispute that the AMWU and the CFMMEU are meeting the good faith bargaining requirements as set out in s. 228 of the FW Act. In relation to s. 238(4)(b), it is the case that the agreement proposed by OS Maintenance covers all its employees and is capable of being found to be fairly chosen without the need to consider whether it is geographically, operationally or organisationally distinct. I also accept that the groups proposed by the AMWU are capable of being considered to geographically and operationally distinct notwithstanding that they do not constitute all employees of OS Maintenance, on the basis that the groups comprise maintenance employees in particular locations. Similarly, the group proposed by the CFMMEU is capable of being considered to be operationally distinct on the basis that it covers all employees of two single interest employers who are employed in the black coal industry.

[498] It is indisputable that bargaining is taking place for both the proposed OS Production agreement and the proposed OS Maintenance agreement. There are regular meetings, exchanges, concessions, claims and responses to those claims as would be expected in the ordinary course of bargaining. Logs of claims and draft agreements have been exchanged. Regular bargaining meetings were, and are being held, and at the time these applications were heard there had been at least thirteen negotiation meetings in total. Meetings have been held at least monthly. OS bargaining representatives have produced and circulated detailed meeting records including documents discussed at meetings and have clarified or updated these where Union and employee bargaining representatives have taken issue with their accuracy.

[499] There is evidence that the Unions have been given opportunity to outline their proposals and that OS Maintenance has been responding. I also accept the submission advanced by OS that scope is not dominating or protracting the bargaining process. In the OS Maintenance agreement negotiations, scope has been relied on in response to a claim on 4 occasions (out of 38 claims) and the only proposal rejected by OS Maintenance on the grounds of scope was the AMWU’s scope proposal.

[500] It is also apparent that the structure of the proposed agreements is an issue of greater significance than their scope. It is clear from the evidence, both in the records of meetings and in the hearing of these applications, that the fundamental issue is that the OS entities and BHP, are seeking what they describe as a minimal safety net agreement. In this regard, the overarching concern of OS and BHP is to include only the provisions which are necessary to obtain approval of the proposed agreements and that any clause proposed by the unions impacting on the discretion of the respective employing entities to manage their operations and to deal directly with their employees, will be resisted, no matter how apparently innocuous the clause is.

[501] The debate about including matters in the agreements which are covered by BHP policy is a case in point. As was conceded by Ms Chauncy and Ms Morkel, a policy can be changed at the discretion of the employer and there is protection for employees from such changes if the policy is referenced or otherwise provided for in an enterprise agreement. Another case in point is the proposed agreement terms in relation to consultation. Rather than setting out the model consultation term the agreements proposed by OS refer to the model term and purport to incorporate it only to the extent that the relevant employer makes a definite decision to introduce a major change.

[502] The agreements as currently proposed by OS essentially provide that employees will work in accordance with a roster, with hours of work averaged across the employee’s roster cycle. Rostered hours include ordinary hours and rostered overtime. The employee’s annual salary is determined by calculating the total amount of remuneration that would have been payable to the employee for working his or her roster under the relevant modern award and adding an amount of 5% which is termed the “Above Award Guarantee”. The Agreements provide for redundancy payments that exceed the entitlements in the National Employment Standards. I make no comment on whether the agreements as currently framed would be capable of approval under the provisions of the FW Act. That question may be one for another day. It suffices to say that the phrase “minimal safety net” with respect to both agreements, is an understatement.

[503] Unsurprisingly, all Unions involved in the bargaining for the agreements are opposed to the current drafts and are seeking what they describe as comprehensive agreements based on the BMA Agreement which applies to direct employees of BHP.

[504] As is apparent from the length of this decision, I have set out the evidence in some detail. The following points are in my view, clearly established by that evidence:

1. OS Maintenance and OS Production will maintain their respective positions in relation to seeking minimal safety net agreements, regardless of any scope order the Commission may make;

2. The Union bargaining representatives will maintain their positions in relation to seeking comprehensive agreements, regardless of any scope order the Commission may make;

3. To the extent that there is an impasse in bargaining, it is an impasse about whether the agreements will be minimal or comprehensive – described by the parties as a structural issue;

4. This structural impasse is not caused by scope and would exist regardless of the industry sector in which the agreement will operate or where the relevant employees are working or the award which applies to them; and

5. The primary purpose of the CFMMEU and the AMWU seeking scope orders is to break the impasse in relation to the structure of the agreements rather than to deal with any issue in relation to scope.

[505] These matters weigh against granting either of the competing scope applications and support a finding that neither of the orders sought will promote fairness or efficiency. I turn now to consider each scope application separately. It is convenient to commence with the AMWU’s scope application.

The AMWU scope application

[506] As I have previously noted, the competing scope applications in the present case are made by two unions. The AMWU seeks scope orders based on geographic and occupational grounds. Leaving aside the Mt Arthur Coal Mine in New South Wales (where it is accepted that no work will be performed by OS Maintenance) the AMWU scope order, if granted in its present form, would result in bargaining for two agreements: a Queensland agreement and a Western Australian agreement and would leave open the possibility of a South Australian maintenance agreement given that work will be (or is being) undertaken by OS Maintenance at the Olympic Dam Mine in that State. The CFMMEU will be affected insofar as it will be entitled to participate in bargaining for the Queensland maintenance agreement, on the basis that it has coverage of maintenance employees in that State and members employed in maintenance classifications at Queensland coal mines.

[507] The effect of granting the AMWU application on bargaining for production workers will be that it will be required to be conducted in Queensland (with the CFMMEU and the CEPU), Western Australia (with the AWU, the CEPU and possibly other unions) and South Australia (with the AWU, the CEPU and possibly other unions). Former bargaining arrangements whereby production and maintenance workers were covered by the same agreement will be altered. Any interests of Unions bargaining for production agreements (the CFMMEU and the AWU) in maintaining nexus or relativity with maintenance workers will remain and if those unions are not default bargaining representatives for the maintenance agreements, will be difficult to protect. This situation will likely not promote efficiency or fairness. It is arguable that even for the AMWU, its current arrangement whereby Mr Scherf conducts bargaining for the Western Australian Branch of the Union, will cease to be optimal given the Queensland and Northern Territory Branch of the Union will have no membership involved in bargaining for the West Australian or later, the South Australian agreements.

[508] OS Maintenance will be bargaining with its entire workforce except that it will be bargaining on multiple fronts in respect of that workforce. While OS Maintenance will doubtless adhere to its position of minimal safety net agreements viewed through its lens of simplicity and flexibility, this exercise will hardly be efficient nor fair for OS. I am also of the view that it will likely magnify the current impasse with respect to structure given that the views of OS Maintenance will be promulgated on three fronts rather than one. Against these considerations, the matters relied on by the AMWU as a basis for asserting that its proposed scope will promote efficiency and fairness, are not sufficient to outweigh the unfairness and inefficiency for other bargaining representatives.

[509] I accept that the views of the witnesses for the AMWU about the matters raised in support of the scope application are genuinely held and that the witnesses believe that bargaining is not proceeding efficiently or fairly. However, I do not accept that on any objective analysis, these views relate to whether the proposed OS Maintenance Agreement will cover appropriate employees or employees it is not appropriate for it to cover. In short compass, the views of the witnesses about whether bargaining is proceeding efficiently or fairly, relate to the structure of the proposed agreement and the outcomes of bargaining. I have reached this conclusion for the following reasons.

[510] Firstly, I do not accept the submission of the AMWU that it is necessary for scope to be resolved before the structure of any agreement flowing from the determined scope can be resolved. The issue of structure is not confined to the relationship between the maintenance agreement/s and the awards but is also impacted by issues relating to the incorporation of policy. Both issues will remain regardless of the scope of the proposed maintenance agreements, given the position of OS Maintenance which is effectively that agreements should be minimal and not reference awards or policy other than as necessary to meet the requirements of the FW Act for approval.

[511] I am also of the view that the differences in award regulation relied on by the AMWU are not so significant that they impact on fairness or efficiency of bargaining for an agreement that covers employees to whom both awards would otherwise apply. Both the Black Coal Award and the Mining Award are modern awards and contain many standard terms. I do not accept the AMWU submission that the differences in the terms of those Awards identified in its submissions, are so significant as to impact upon the fairness or efficiency of bargaining.

[512] For example, in terms of hours of work, both awards provide for ordinary working hours to be averaged over a roster cycle in the case of the Black Coal Award and a work cycle in the case of the Mining Award, without specifying the maximum period for the cycle. The only difference with respect to working hours, of any significance in the present case, is that the maximum ordinary hours worked in the roster cycle cannot exceed a maximum of 35 for the Black Coal Award and 38 for the Mining Industry Award. The fact that the Black Coal Award does not make provision for annualised salaries does not mean that such arrangements cannot be entered into using individual flexibility arrangements, enterprise bargaining or common law contracts. The requirement in all three cases is that the employee is not paid less than he or she would earn for working the same roster under the Award.

[513] While the Black Coal Award does not provide for casual employment, there are many enterprise agreements in that industry, underpinned by the Black Coal Award, that do contain such provision. As the AMWU submission makes clear, the differences between the two Awards are such that the terms of the Black Coal Award arguably more beneficial in many respects. It is at least equally arguable that it would be more beneficial for maintenance employees to be bargaining for a single agreement underpinned by both the Mining Award and the Black Coal Award to provide an opportunity to obtain benefits from both Awards. Certainly, if OS wants the flexibility to move employees between the coal and non-coal industries, it will need to have regard to such differences in its negotiating stance.

[514] A similar point can be made in relation to enterprise bargaining differences – a single agreement spanning both sectors with reference to conditions in both Awards is equally likely to result in some benefit for a wider group of maintenance employees than would otherwise be the case. This can be illustrated by the issues related to accident pay. An agreement covering only Western Australian maintenance employees would not be required to include any reference to accident pay to pass the better off overall test given that the Mining Award does not contain accident pay provisions. A national agreement covering all maintenance employees would arguably be required to contain some provision dealing with accident pay for at least those employees who would otherwise be covered by the Black Coal Award, in order to pass the better off overall test for those employees.

[515] There is no basis for asserting that differences in the enterprise bargaining outcomes between agreements applying in BHP’s iron ore operations and black coal operations is a basis for making a scope order. Those differences are related to bargaining outcomes. Further the agreement structure advanced by OS Maintenance will impact on bargaining outcomes regardless of the scope of the agreement which is being negotiated. The current OS proposal is that an employee’s remuneration will be set by reference to the either the Mining Award or the Black Coal Award (depending on where the employee is working) and is calculated by working out the total amount the employee would be paid under the relevant Award for working a roster at the location where the work is performed and adding an amount of 5%. It is likely that OS would pursue the same approach regardless of whether it was bargaining for a coal specific maintenance agreement or a metalliferous mining specific agreement. The geographic location of the work would also not impact this approach given the national operation of the two relevant awards.

[516] If the AMWU wishes to pursue equity in terms and conditions between employees of OS Maintenance and BHP, then it is able to do so within the current negotiations using the full armoury available to the Union and its members under the FW Act. What the AMWU is not permitted to do is to utilise a scope application to supplement that armoury for the purpose of achieving certain bargaining outcomes where it is not established that the reasons bargaining is not proceeding efficiently or fairly is because the agreement will not cover appropriate employees or that it covers employees it is not appropriate for it to cover.

[517] I do not accept that the “maintenance/production divide” is as significant as the AMWU asserts. The traditional approach with respect to the coverage of enterprise agreements for BHP employees in both the coal and metalliferous mining industries has been that both production and maintenance employees are covered by the same agreement. This has not prevented the AMWU from achieving bargaining outcomes in the Queensland coal industry whereby maintenance employees are generally paid higher rates that production employees. While I am not unsympathetic to the conditions in which maintenance employees work – exposed to the elements and in the field rather than in the air-conditioned cabins of mining equipment – a number of points can be made. Firstly, there are also production employees who work in similar conditions. Secondly, the conditions associated with the locations in which the work of maintenance employees is performed are a function of the nature of the work and not of the coverage of the agreement under which it is performed. I also do not accept that differences in weather between locations where an agreement may operate, are a legitimate basis for a scope order to be made. Neither are differences in distances travelled to work locations nor the mode of travel. All of these matters are properly dealt with through the bargaining process not a scope application.

[518] I do not accept the AMWU’s assertions about the distinction between maintenance work performed in the iron ore industry and the coal industry. In this regard, I accept the evidence of Mr Ruggieri about the similarities in the processes of mining and processing coal and iron ore. The equipment, machinery, trucks and mobile plant are similar to the extent that they all operate using the same sources of power – be it diesel, mechanical or electrical – and perform the same functions. A diesel engine operates in the same way regardless of whether it is installed in plant or equipment in the coal mining industry or the metalliferous mining industry or in any other industry. All witnesses for the AMWU accepted under cross-examination, that they hold nationally accredited qualifications. To use Mr Ruggieri’s example, a qualified diesel mechanic employed by OS Maintenance holds a single nationally accredited trade and can work anywhere on diesel equipment. Wear and tear on a truck requires the same response and the distinction between trucks operating in the iron ore industry and those in the coal industry in terms of wear and tear appears to be the frequency of the response rather than its nature.

[519] Nationally consistent qualifications have been in place for decades and the AMWU played a significant role in the achievement of the framework for recognising such qualifications. The submission in the present case, misconceives the distinction between nationally accredited skills held by OS Maintenance employees and the application of those skills at particular work sites. Whether they accept it or not, the AMWU witnesses employed by OS Maintenance have transferrable skills, and if the contracts of employment tendered in evidence are considered, this is one of the reasons for their employment.

[520] Whether OS Maintenance employees wish to transfer between BHP’s coal and iron ore operations is entirely a matter for those employees and one that they are required, by the terms of their employment contracts, to consider upon engagement. It is true that it has not been customary for maintenance employees to transfer or move between the coal industry and the metalliferous mining industry. It is also true that whether employees will do so is speculative. However, it is equally speculative to conclude that some of those employees will not transfer. It may be that the establishment of simplified uniform provisions in an industrial instrument will facilitate the flexibility that OS Maintenance seeks. There are sound business reasons for OS Maintenance seeking that flexibility and I accept that a single OS Maintenance agreement that spans coal and metalliferous mining is consistent with the objectives of OS Maintenance in this regard.

[521] Transfers may be temporary, and project based, as suggested by Mr Ruggieri, and OS Maintenance employees seeking to advance and broaden their skills may be happy to take such opportunities. In this regard, I note that employees in the iron ore industry already move from mine to mine in Western Australia undertaking shutdown work and may have no difficulty in undertaking similar shutdown work at coal mines in Queensland or at the Olympic Dam site in South Australia. It is also the case that employees cannot be forcibly transferred and whether they choose to accept transfers is a matter for each employee. I note that of the eight employee witnesses called by the AMWU, one OS Maintenance employee (Mr Allen) had previously worked at BHP’s iron ore operations, albeit for a different employer. While unusual, this breadth of experience.

[522] I do not consider that different workplace health and safety regimes in various States and between industry sectors, constitute such significant differences that they are relevant to whether a scope order would make bargaining fairer or more efficient. Workplace health and safety legislation is a given and is required to be observed by all parties. Risks to workplace health and safety are required to be managed and mitigated and that the risks differ between industry sectors is not of itself a basis for a scope order to be made. In the present case, other than bare assertion which was not based on any direct knowledge or the comparative requirements, there is no evidence that these matters are having any impact on the conduct of bargaining. Further, I do not accept that the procedures described by witnesses for the AMWU such as isolation procedures, standard operating procedures and the like provide any basis for making a scope order. The objectives sought to be achieved by such procedures are standard in most workplaces and the fact that the procedures may differ in their application is not so significant as to be relevant to the AMWU’s scope application.

[523] Nor do I accept that the change in the position of the CFMMEU in relation to scope is relevant to the fairness and efficiency considerations in relation to the AMWU’s proposed scope. Both applications seek fundamentally different outcomes regardless of how they are framed. While it is true that there is no evidence of the views of the members of the CFMMEU in relation to the change in its position, there is no basis for me to find that the CFMMEU would change its position contrary to the interests of its members and without consideration of their views. It could equally be argued that the evidence of the AMWU witnesses indicates a lack of understanding about the purpose of a scope application. The impression I gained from much of that evidence is that AMWU members are seeking as an outcome from bargaining, the same or similar terms and conditions of employment as employees of BHP. While this may be a legitimate bargaining objective, it is not an objective that can properly be pursued through a scope application.

[524] It is unsurprising that AMWU members have the view that a scope order will facilitate bargaining outcomes of the kind outlined in their evidence when the evidence of Mr Scherf is considered. Mr Scherf accepted that the objective – at least for the Queensland Maintenance agreement proposed by the AMWU – is for OS Maintenance employees and BHP employees to be paid the same rates for the same job, or as close as can reasonably be achieved in bargaining. Mr Scherf also expressly accepted that the purpose of the AMWU seeking the scope order was to leverage the bargaining position of the AMWU and its members by changing the structure of the bargaining to enhance the ability of AMWU members, particularly those employed in the Queensland coal industry, to pursue claims for equity with BHP employees. While a strengthening of the bargaining position of an applicant for a scope order may be the result of the order being made, it cannot be the principal basis for the application. An application for a scope order must be directed at improving the efficiency and fairness of the bargaining process rather than the achievement of outcomes from bargaining.

[525] As I have previously found, the impasse the AMWU seeks to address by the scope order it seeks, is an impasse related to the structure of the proposed agreement. For the reasons set out above, I am also of the view that the AMWU scope application is principally directed at enhancing its bargaining position and that of its members, for the purpose of achieving certain bargaining outcomes. To grant an application for these purposes will not promote the fair or efficient conduct of bargaining but will rather unfairly promote the interests of the AMWU And its members in achieving bargaining outcomes.

[526] I also note that the AMWU has made only four claims which are specific to maintenance employees in the context of the entire course of the negotiations for the proposed OS Maintenance agreement. Those claims are matters that could be addressed within any one of a number of scenarios with respect to the scope of an OS Maintenance agreement. The AMWU has been able to address allowances and other conditions specific to tradespersons in agreements that also cover production employees with no apparent difficulty and has obtained higher wage rates for maintenance employees in the majority of BHP black coal agreements in Queensland. In any event, those matters are bargaining outcomes and are not related to the conduct of bargaining.

[527] Further, the AMWU has not put its desired wages outcome on the table at this point and at the final meeting conducted while its application was part heard, the AMWU did not provide any verbal feedback about proposals and indicated that it would respond in writing. While the AMWU may have subsequently provided this response, there is no evidence before me as to what that response was. It is apparent from the evidence of Mr Scherf that the structure of the proposed OS Maintenance agreement is a critical issue preventing the AMWU from fully articulating its claims and that it is believed that the scope order will address that issue. For the reasons set out above, I am unable to accept that this is the case and nor do I accept that this is an appropriate basis for a scope order to be granted. The structure of the proposed OS Maintenance agreement is properly a subject of bargaining. Further, unless and until the parties lay their cards on the table – or at least more cards than are currently exposed – they will not be bargaining in a manner that is likely to achieve agreement. Making the scope order sought by the AMWU will not result in any further cards being exposed. The timing of claims is entirely a matter for the parties and I do not accept that this is impacted by the structure of bargaining. Rather, it is impacted by the structure of the agreement currently proposed by OS Maintenance – a position that the Company is entitled to maintain.

[528] In the context of the legislative scheme for enterprise bargaining, a finding that bargaining is already proceeding efficiently and fairly, would weigh against a scope order being made, while conversely, a finding of that bargaining is inefficient and unfair, would weigh in favour. In the present case, I do not accept that bargaining for the proposed Maintenance agreement is proceeding in a manner that is inefficient or unfair.

[529] To the extent that there are issues preventing an agreement from being finalised, they are not issues related to the conduct of bargaining but rather to the impasse in terms of outcomes that currently exists between the parties. I am not satisfied that granting the AMWU application will promote the fair and efficient conduct of bargaining. At best, to grant the AMWU application would improve its bargaining strength and capacity to organise industrial action in the Queensland coal mining industry. That result is not an appropriate basis for the grant of a scope order. It would also not guarantee any change in the present impasse given the strongly held positions of both parties and the likelihood that those positions would be maintained regardless of the scope of the agreement being negotiated.

[530] That said, I accept that OS Maintenance and the AMWU (and the CFMMEU) are engaging in hard bargaining. OS Maintenance has an apparently implacable position whereby it seeks a minimal, safety net agreement which operates by prescribing minimum wage rates set by establishing a margin above the relevant award. It is also apparent that OS Maintenance is agreeing to clauses which contain any form of prescription, only to the extent necessary to obtain approval of the agreement under the FW Act.

[531] However, I do not accept these issues are because the proposed agreement will not cover appropriate employees or will cover employees that it is not appropriate to cover. Rather, the issues are caused by the fact that OS Maintenance is seeking a minimal safety net agreement and the AMWU and other Unions are seeking a comprehensive agreement. The divergence in views between OS Maintenance and the AMWU is apparent from the description of the nature of the agreement sought by OS and repeated at most if not all bargaining meetings and Mr Scherf’s description of an agreement that is “the supreme governing document for terms and conditions of employment”.

[532] The evidence also establishes that, on balance, the AWMU is seeking the scope order to advance its bargaining position in pursuit of better outcomes for its members. Overwhelmingly the evidence indicates dissatisfaction with the terms and conditions of OS Maintenance employees relative to those of BHP employees. I have set out that evidence in detail and it is apparent that this is a major issue that the AMWU seeks to address by way of a scope application. As Mr Scherf made clear, the leverage of OS Maintenance employees in the Queensland coal mining industry will be increased if they are bargaining together without the involvement of employees in other sectors. The issues range from wages, bonuses, superannuation, insurance, travel benefits and allowances for employees living locally, to access to crib huts.

[533] Finally, I consider that if the AMWU scope application is not granted, the next best option for the AMWU is the status quo. I base this view on the strongly held views of witnesses for the AMWU that the interests of maintenance workers are fundamentally different to those of production workers and that the work of maintenance workers is distinct from that of production workers. The present position is that the AMWU is bargaining in a group which likely comprises all its membership within the OS Companies and this is consistent with its views that maintenance employees should bargain separately to production employees.

The CFMMEU scope application

[534] The scope application made by the CFMMEU is a different proposition. I do not accept the submission of OS that the CFMMEU application will result in bargaining for more agreements than is presently the case. The direct outcome of granting the CFMMEU application would be that OS Maintenance and OS Production would be bargaining with the CFMMEU, the AMWU and the CEPU for a single agreement to cover production and maintenance work at all of BHP’s coal operations. It would be a matter for OS and Unions other than the CFMMEU as to what the coverage of agreements to cover OS work in BHP’s metalliferous mining operations would be. As the CFMMEU points out, it would be logical if its scope application was granted, for other parties to agree to bargain for a single agreement to cover production and maintenance work in metalliferous mining operations. For the parties to bargain for a multiplicity of agreements in metalliferous mining operations is an inefficiency arising from their own actions rather than the scope proposed by the CFMMEU an agreement to cover only coal mining operations.

[535] While not the preferred approach of OS Maintenance and OS Production, the CFMMEU proposal is not inconsistent with the OS objectives of a single consistent set of terms and conditions of employment to facilitate flexibility for employees to move between coal and metalliferous mining operations. The current proposal for the agreements proposed by OS for its Maintenance and Production workforces is bifurcated within each agreement. The proposed OS Maintenance Agreement covers employees to whom either the Black Coal or the Mining Industry Award would apply but for the agreement. As previously discussed, to calculate the minimum remuneration for an employee under the proposed OS Maintenance agreement, it is necessary to first establish the award which would cover the work and to then calculate what the employee would be paid under the award for working the relevant roster and then add a margin of 5%.

[536] The practical effect, with reference to Mr Ruggieri’s desire to use teams of employees who have worked on a project at a metalliferous mine to take best practice approaches from that project and apply them at a coal mine, would result in the underpinning award for the wages guarantee under the proposed OS Maintenance agreement changing upon the transfer of an employee from a metalliferous mining site to a coal mining site. That change may also result in an increase to the employee’s remuneration for the period of the transfer. Alternatively, it may result in a reduction which could be problematic both in a legal and practical sense. While I accept that these are not insurmountable problems, but I am also of the view that in a practical sense, they are no different from the problems that would be encountered by OS if the CFMMEU scope proposal was accepted. In short, OS could achieve its objectives of simplicity and flexibility if it negotiated two agreements – one to cover OS Production and Maintenance employees in coal operations and one to cover OS Production and Maintenance employees in metalliferous mining operations. Given the relationship between the OS entities, and that they are both supported by BHP employee relations specialists, I do not accept that this would place an unfair or unreasonable imposition on either OS Production or OS Maintenance.

[537] Conversely, the CFMMEU’s proposed scope would involve OS Maintenance and OS Production in negotiations for agreements which cover classifications of employees who are not employed by one or the other of those entities and which they do not intend to employ. It would also be contrary to the legitimate rights of the OS entities to arrange their operations in the manner that they believe promotes the efficiency and flexibility objectives they seek.

[538] However, these considerations are not the proper starting point. Given my earlier findings in relation to the matters in ss. 238(1) – 238(4)(a) of the FW Act, it is necessary to consider whether I am satisfied as to remaining matters in s. 238(4). I commence with s. 238(4)(b). For the reasons I have set out above, including in relation to the AMWU scope application, I am not satisfied that bargaining is proceeding unfairly or inefficiently. While not a necessary finding, this weighs against the making of a scope order. More significantly, I am also not satisfied that the reason bargaining is not proceeding efficiently or fairly is the scope of the proposed OS Maintenance and OS Production agreements. As a result, I am not satisfied that making a scope order will promote efficiency and fairness in the conduct of bargaining.

[539] It is clear from the evidence of Mr Hughes that the fundamental barrier to reaching agreement from the CFMMEU’s perspective, is that the OS entities with which it is bargaining are seeking minimal safety net agreements while the CFMMEU is seeking a comprehensive agreement. I accept that that the CFMMEU approach is aimed at protecting its members from having entitlements which are found only in policies from being removed at the discretion of the employer. It is also arguable that the issue of accident pay raised by the CFMMEU raises a BOOT issue that will need to be addressed in some way in relation to employees to whom the Black Coal Award would otherwise apply.

[540] Accepting that I have not had the benefit of any argument that may be advanced, it is unclear how replacing an entitlement to accident pay enjoyed by employees covered by the Black Coal Award with a discretionary benefit in a Company policy, will not create a BOOT issue. That this is a problematic question was clear from the concessions made by Ms Morkel and Ms Chauncy under cross-examination. However, this issue is related to the structure of the agreements proposed by the OS entities and not to their scope.

[541] I do not accept that inefficiency and duplication will be caused by the CFMMEU being required to review two awards twice, to determine whether the agreements proposed by the OS entities pass the better off overall test. There is no requirement for the CFMMEU to undertake such a comparison, and I accept the evidence of Ms Chauncy that if the proposed agreement passes the better off overall test in respect of the Black Coal Award it will pass in respect of the Mining Award. As a matter of logic, the Black Coal Award provides for a 35 hour week and it is highly improbable that an agreement which passed the test against that Award would fail against the Mining Award. I do not understand why the CFMMEU would seek to undertake a BOOT analysis in respect of an Award it has no apparent interest in with respect to the present proceedings. It is also the case that it is the Commission that is charged with determining whether an agreement passes the better off overall test.

[542] For the reasons set out above, I am also of the view that at a point when the CFMMEU has not fully articulated its claims it cannot be said that the

[543] After weighing the evidence of Mr Hughes, I have concluded that the CFMMEU is also endeavouring to break a bargaining impasse on the substantive claim in relation to the structure of the proposed agreements, by seeking a scope order. That the CFMMEU is also seeking to advance claims for bargaining outcomes is also evidenced by the material the Union has distributed at coal mine sites in Queensland pointing out the advantages enjoyed by BHP employees covered by the BMA Agreement or other BHP coal agreements, compared to the terms and conditions of OS employees.

[544] I accept that the OS entities have made concessions in the bargaining process. While views about the significance of those concessions may reasonably vary, they are nonetheless changes in position, which are directed at addressing matters raised by the Unions in bargaining. In any event, I do not accept the CFMMEU position that it is appropriate to make a scope order to send a strong signal to parties that compromise is necessary to conclude bargaining. One of the key tenets of the statutory regime under which bargaining is conducted, is that the Commission’s powers to impose substantive outcomes on parties engaged in enterprise bargaining is limited. A scope order is an exception. However, the starting point is that scope is properly a matter for negotiation and is the subject of a claim by the OS entities. Contrary to the submission of the CFMMEU, a scope order would impose a substantive outcome on OS and involve making a judgment about its claims.

[545] To make a scope order simply to send a message to parties that they will be required to make concessions to reach agreement, in circumstances where scope is not the issue which has created an impasse, is not an appropriate exercise of the Commission’ power to make such an order.

Whether it is reasonable in all of the circumstances to make a scope order

[546] For the reasons set out above in respect of the AMWU application, I am not satisfied that the discretion to make a scope order is triggered. Even if the discretion was triggered, I would not make the order sought by the AMWU in the circumstances of this case. There is rational basis for the AMWU scope order in terms of fairness and efficiency and my view is that the application is directed at substantive bargaining outcomes rather than the conduct of bargaining.

[547] As I have previously noted, this case involves competing applications made by two Unions. If I was considering applications by both Unions for a scope order consistent with the order the CFMMEU is seeking, the outcome of this case may have been more finely balanced.

[548] There is no established bargaining framework for OS entities. The 2018 agreements were not validly made and in the circumstances described in the evidence of Mr Hughes and Mr Scherf, that bargaining process is not a matter that could be weighed in the balance of considering whether an order such as that sought by the CFMMEU should be made. Conversely there is an established bargaining framework in the black coal and metalliferous mining industries for agreements based on industry coverage.

[549] However, in addition to the issues I have identified in my consideration of matters relevant to s. 238(4)(b) of the FW Act, there is an additional consideration which bears on whether it is reasonable in all the circumstances to grant the CFMMEU’s application. For reasons I have discussed earlier in this decision, the fact that there are two competing scope applications made by unions is of itself, a matter that is relevant to considering whether a scope order will promote the fair and efficient conduct of bargaining and whether it is reasonable in all the circumstances to make an order.

[550] If the CFMMEU’s application is granted, the AMWU will be bargaining in a group which consists of maintenance and production workers and the CFMMEU, which has coverage of both groups. While the CFMMEU has no apparent issue bargaining in a group that includes the AMWU, the same cannot be said with respect to AWMU and its members. Based on the evidence of witnesses for the AMWU, including Mr Scherf, I consider it likely that the AMWU will continue to hold concerns about its membership being swamped by the larger numbers of production workers and those concerns will impact on the efficiency and fairness of bargaining.

[551] By refusing to make the order sought by the CFMMEU, the AMWU (and the CEPU) is in a position which is closer to its preferred position than it would be if the CFMMEU application was granted. OS has maintained its preferred position. The CFMMEU has not achieved its objectives in terms of scope but will continue to represent its members in the coal industry in the bargaining for production and maintenance employees. The involvement of the CFMMEU in bargaining for both proposed agreements, may benefit employees in the metalliferous mining sector to the extent that there conditions are less favourable than those enjoyed by coal industry employees and vice versa. While not an applicant in the proceedings, the AWU’s current position will not be adversely impacted by the scope orders not being granted.

[552] I do not doubt that there are some differences in terms and conditions of OS employees and BHP employees and that this is the cause of dissatisfaction on the part of the CFMMEU the AMWU and their members. However, scope applications are not an appropriate mechanism to address such concerns.

[553] BHP is entitled to establish entities such as OS and to use those entities to perform work in a manner that it believes best suits operational requirements, creates flexibility and reduces costs including by those entities making enterprise agreements which while meeting the requirements for approval, may provide for lesser terms and conditions than are provided for under agreements covering BHP employees. In short, there is no requirement in the legislative framework for enterprise bargaining, that all related entities have the same terms and conditions of employment or the same enterprise agreements.

[554] While I accept that there is a serious impasse in the negotiations, it is an impasse based on substance and not the conduct of bargaining. Even if the impasse is based on the conduct of bargaining, it is not conduct that relates to the bargaining process. In this regard, Mr Walkaden’s criticism of the approach of the OS negotiators has some force. Even allowing for the fact that Ms Morkel and Ms Chauncy were giving evidence in a hearing before the Commission, rather than engaging in a bargaining meeting, some of their responses to questions in cross-examination about the rationale for views about matters canvassed in the negotiations appeared to be formulaic. The meeting records indicate that responses given and statements made in bargaining meetings by Ms Chauncy and Ms Morkel could be similarly criticised – for example, repeating that OS will consider proposals “through a lens of flexibility” without stating what it is about the proposal that is believed to create inflexibility, is problematic in terms of fairness and efficiency as it is difficult for the proposer to modify a proposal absent that information. On occasion, both Ms Morkel and Ms Chauncy gave responses in cross-examination which did not engage with the questions they were asked. Both had difficulty nominating three provisions in the draft agreements provided by the CFMMEU which were said to be inflexible.

[555] Notwithstanding these issues, I would not go so far as to say that either Ms Morkel or Ms Chauncy is employing a mantra to respond to questions. It is apparent that what they are doing is engaging in hard bargaining on behalf of the respective OS entities they represent. I am also of the view that it is probable that the same approach would be taken by OS negotiators regardless of the scope of the agreement subject of the negotiations. Further, it is well established that issues with the conduct of bargaining representatives, as distinct from the conduct of bargaining per se, can be addressed by seeking bargaining orders. It is also well established that scope applications are not a basis for such orders to be made.

CONCLUSION

[556] On balance, and in light of my findings in relation to the matters in s. 238(4), I am not satisfied that it is reasonable in all of the circumstances to make the orders sought by either the CFMMEU or the AMWU and for that reason, I dismissed both applications and issued an order to that effect.

[557] In conclusion, I remind the parties that the Commission is available to assist parties to resolve impasses in bargaining through conciliation.

DEPUTY PRESIDENT

Appearances:

Mr A Walkaden for the CFMMEU.

Mr R Reed of Counsel instructed by Maurice Blackburn for the AMWU.

Mr S Crawford for the AWU.

Mr M Coonan for OS ACPM Pty Ltd and OS MCAP Pty Ltd.

Hearing details:

7 June, 8 June, 9 June, 14 July, 15 July, 16 July & 6 August.

2021.

Brisbane.

Final written submissions:

30 July 2021.

Printed by authority of the Commonwealth Government Printer

<PR737240>

 1   Refer Mining Industry Award 2020 clause 4.2.

 2   [2019] FWCA 8595; [2019] FWCA 8601.

 3   [2020] FWCFB 2434.

 4   [2020] FWCFB 6089.

 5   Exhibit CFMMEU – 1 Witness Statement of Peter John Colley 27/04/21; Exhibit CFMMEU – 2 Witness Statement of Peter John Colley 27 May 2021; Exhibit CFMMEU – 3 Further Reply Statement of Peter John Colley 3 June 2021.

 6   Exhibit CFMMEU – 4 Witness Statement of Mitch Hughes 29/04/21; Exhibit CFMMEU – 5 Witness Statement of Mitch Hughes 27/05/21; Exhibit CFMMEU – 6 Witness Statement of Mitch Hughes (Response to AMWU) 03/06/21.

 7   Exhibit AMWU – 3 Statement of Cassandra Baynton.

 8   Exhibit AMWU – 4 Statement of Mitchell Brotherton.

 9   Exhibit AMWU – 5 Statement of Mark Malone.

 10   Exhibit AMWU – 6 Statement of Joshua John Allen.

 11   Exhibit AMWU – 7 Statement of Renee Jones.

 12   Exhibit AMWU 8 – Statement of Terrence Taylor.

 13   Exhibit AMWU – 10 Statement of Trevor Hawken.

 14   Exhibit AMWU – 11 Statement of Jacob Boss.

 15   Exhibit AMWU – 12 Statement of Kegan Scherf 03/06/21; Exhibit AMWU – 13 Statement of Kegan Scherf 06/05/21.

 16   Australian Manufacturing Workers' Union v Broadspectrum [2019] FWC 4913 at [117]

 17   Stuartholme School and Others; The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane t/as Brisbane Catholic Education Office and Others v Independent Education Union of Australia [2010] FWAFB 1714.

 18   [2015] FWCFB 1440.

 19   Ibid at [10].

 20   Ibid at [53].

 21   Paterson v Police Federation of Australia [2011] FWC 7357 at [39]; ASU & Ors v Unity Water [2016] FWC 6104.

 22   TWU v Chubb Security Services [2012] FWC 2226; AMIEU v Woolworths [2009] FWA 849.

 23   [2010] FWAFB 1625.

 24   The Explanatory Memorandum to the Fair Work Bill Amendment Act 2012 stated that the amendment to s.238(3)(a) was in response to Recommendation 16 of the Fair Work Act Review Panel Report 2012, which noted that the requirement in s. 238(3)(a) as then framed, to notify all relevant bargaining representatives, may be impossible to meet, because the identity of all bargaining representatives might not be known to a party seeking a scope order.

 25   [2014] FWCFB 1476; (2014) 242 IR 238.

 26   Ibid at

 27   AMWU, AWU, CEPU v Qantas Airways Limited t/a Qantas [2017] FWC 1526

 28   Association of Professional Engineers and Scientists and Managers, Australia v Australian Red Cross Blood Service and Others [2011] FWA 2914.

 29   United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board (2010) 913 IR 293 at [54] – [55]; BRB Modular Pty Ltd v AMWU [2015] FWCFB 1440 at [6]-[15].

 30   Australian Manufacturing Workers' Union v Broadspectrum [2019] FWC 4913 at [159].

 31   BRB Modular Pty Ltd v AMWU [2015] FWCFB 1440 at 13.

 32   APESMA v Australian Red Cross Blood Services [2011] FWC 2914 at [70].

 33   Australian Manufacturing Workers' Union v Broadspectrum [2019] FWC 4913 at [163].

 34   Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2015] FWC 1591 at [145]-[148].

 35   United Firefighters’ union of Australia v Metropolitan Fire & Emergency Services Board (2010) 193 IR 293.

 36   Application by Wilson [2015] FWC 7835

 37   BRB Modular v AMWU ibid at [52].

 38   AMWU v Shinagawa Refractories Australasia Pty Ltd [2011] FWA 5935 at [28].

 39   TWU v Chubb [2021] FWA 5935 at [69].

 40   Ibid at [60].

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

 42   [2010] FWAFB 3009; (2018) 193 IR 293.

 43   Ibid at [53]; 309.

 44   Ibid at [71]; 314.

 45   [2014] FWCFB 1476; (2014) 242 IR 238.

 46   Ibid at [44].

 47   [2016] FWCFB 1151 at [31].

 48   (2017) 270 IR 385; [2017] FWCFB 5826.

 49   Ibid at [26].

 50   2016 FWC 794.

 51   [2011] FWA 2914.

 52   Ibid at [70].

 53   [2011] FWA 8033; [2012] FWAFB 1489.

 54   Royal District Nursing Service v HSU (2012) 218 IR 276 at [19].

 55   [2015] FWCC 699 – at [72]

 56   [2016] FWC 8089.

 57   Exhibit CFMMEU – 1 Annexure PC – 15.

 58   Exhibit CFMMEU – 1 Annexure PC 14 – 15.

 59   [2010] FWAFB 1625.

 60   Exhibit AMWU 12 Annexures KS1 – KS5.

 61   Transcript PN382 – 383.

 62   Exhibit OSM 1 Annexure JAM – 20.

 63   Ibid Annexure JAM – 26.

 64   Ibid Annexure JAM – 30.

 65   Ibid Annexure JAM – 41.

 66   Exhibit CFMMEU 4 paragraphs [29], [31], [32], [33] to [35], [38], [43] to [53], [56], [71] to [82], [84], [94] to [98], [103] to [106], [108], [117] and [120]

 67   Transcript PN757.

 68   Transcript PN811 – 812.

 69   Transcript PN813 – 815.

 70   Transcript PN952.

 71   Transcript PN1089 – 1092; 1213 – 1214.

 72   Transcript PN1132.

 73   Exhibit OSP – 2 Annexure AMC – 7.

 74   Ibid – Annexure AMC – 14.

 75   Ibid – Annexure AMC – 28.

 76   Ibid – Annexure AMC – 34.

77 Exhibit OSM – 5.

78 Exhibit CFMMEU4: paragraph 129 of the Witness Statement of Mitch Hughes dated 29 April 2021, PN1579 – PN1590, PN1967 – PN1985.

79 PN1619, PN1624.

80 PN1993, PN1994.

81 PN1711 – PNPN1804.

82 PN1722 – PN1724.

83 PN1725.

84 PN1766.

85 PN1770 – PN1787; FW Act ss.16 and 106.

86 PN1799 – PN1804.

87 See JAM-43 (page 551) of the Witness Statement of Jessica Anne Morkel dated 27 May 2021: Exhibit OSM1

88 PN2093 – PN2111.

89 PN2069 – PN2091.

90 PN1722 – PN1724.

91 PN2097 – PN2099.

92 PN2113 – PN2118.

93 PN2120 – PN2122.

94 PN2123 – PN2125.

95 PN2126 – PN2127.

96 PN2126 – PN2127.

97 PN1694 – PN1703, PN1989 – PN1992.

98 PN2015 – PN2111.

99 PN333 – PN370.

100 PN589 – PN596.

101 PN189, PN205, PN225 – PN231, PN241.

102 Paragraph 101 of the Hughes Statement.

103 PN252 – PN259.

 104   PN258 – 259.

105 PN1512 – PN1527.

106 See, MH-30 (pages 191 – 214) of the Hughes Statement, PN1872 – PN1878, MH-36 (pages 268 – 291) of the Hughes Statement.

107 PN1888 – PN1964.

108 PN2203 – PN2263.

109 PN1988, PN1993 – PN1994.

110 Paragraphs 8.5 – 8.9 & 13 of the OS Submissions.

111 PN309 – PN606

112 Paragraphs 8.5 – 8.7 of the OS Submissions.

 113   [2019] FWC 4913

114 Paragraphs 8.11 & 13.7 of the OS Submissions.

115 Paragraphs 8.11 & 13.7 of the OS Submissions.

116 Paragraph 149 of the Hughes Statement.

117 Annexure MH-52 of the Hughes Statement (page 563).

118 Paragraph 150 of the Hughes Statement.

119 Annexure MH-53 of the Hughes Statement (page 567).

120 Paragraph 151 of the Hughes Statement.

121 Annexure MH-54 of the Hughes Statement (page 573).

122 Paragraph 152 of the Hughes Statement.

123 Annexure MH-55 of the Hughes Statement (page 579).

124 Paragraphs 153 & 156 of the Hughes Statement.

125 Annexure MH-56 of the Hughes Statement (page 585). 69 Annexure MH-59 of the Hughes Statement (page 598). 70 Annexure KS-7 of the Scherf Statement (pages 36 - 40).

126 AMWU non-compliance with s.238(3)

 127   [2010] FWAFB 1625.

128 Paragraph 11(a) – (b) of the AMWU Reply.

129 Paragraph 11(c) of the AMWU Reply.

130 PN408 – PN417.

131 PN419 – PN432.

 132   PN434.

133 PN435 – PN452.

134 PN453 – PN470.

135 PN471 – PN472.

136 Paragraph 13 of the AMWU Reply.

137 Paragraph 14 of the AMWU Reply.

138 Paragraph 9.1 & 14.2 of the OS Outline.

139 [2015] FWCFB 1440 at [6] – [15].

140 [2010] FWAFB 3009.

141 The CFMMEU does not press the third ground that was outlined at paragraph 19 of part 2.1 of the Form F31 – Application for a scope order dated 9 April 2021.

142 Paragraph 6.6 of the OS Outline.

143 PN1806 – PN1859.

144 PN1859.

145 Paragraph 3.5 of the OS Outline.

146 Paragraph 27 of the AMWU’s Outline of Submissions dated 6 May 2021.

147 Paragraph 33 of the AMWU Outline.

148 Exhibit OSM5.

149 PN2330 – PN2336.

150 PN403.

151 Paragraph 21 of the AMWU Outline.

 152   [2019] FWC 4913

153 Paragraph 138 of the Hughes Statement. PN1859.

154 Paragraph 59 of the Hughes Statement.

155 Paragraph 17 of the Scherf Statement adopting paragraphs 45 & 50 of the Hughes Statement.

156 AMWU claims: see paragraphs 45 & 50 & Annexure MH-25 (page 129) of the Hughes Statement, which has been adopted at paragraph 17 of the Scherf Statement, see also paragraph 130 of the Scherf Statement.

157 ETU claims: see paragraphs 73 & 78 & Annexure MH-37 (page 292) of the Hughes Statement, which has been adopted at paragraph 17 of the Scherf Statement, see also paragraph 52 of the Hughes Statement, which has been adopted at paragraph 17 of the Scherf Statement.

158 PN359 – PN381.

159 [2017] FWCFB 5826.

160 QGC Pty Ltd v Australian Workers’ Union [2017] FWCFB 1165 at [44].

161 PN1995, Paragraphs 147 – 148 of the Hughes Statement.

162 Paragraphs 143 – 144 of the Hughes Statement.

163 PN359 – PN381.

164 Exhibit CFMMEU – 5: paragraph 13 of the Witness Statement of Mitch Hughes dated 27 May 2021 (hereafter Hughes Reply Statement).

165 Paragraph 46 of the AMWU Outline.

166 AMWU 2019 at [125] – [126].

167 Paragraphs 13 – 14 of the Hughes Reply Statement.

168 Paragraphs 143 – 144 of the Hughes Statement.

169 PN547.

 170   Transcript PN326 – 328.

171 Transcript PN324.

 172   Transcript PN95 – 98.

 173   Transcript PN128 – 129.

 174   Transcript PN133 – 134.

 175   Transcript PN139 – 140.

 176   Exhibit CFMMEU 4 Annexure MH – 52.

 177   Exhibit CFMMEU 4 Annexure MH – 30.

 178   Transcript PN252 – 257.

 179   Transcript PN260 – 265.

 180   Transcript PN286 – 296.

 181   Transcript PN297 – 303.

 182   Transcript PN312 – 317.

 183   Transcript PN330 – 340.

 184   Transcript PN359 – 367.

 185   Transcript PN368 – 373.

 186   Transcript PN474 – 478.

 187   Transcript PN467 – 471.

 188   Transcript PN478 – 482.

 189   Transcript PN499 – 509.

 190   Transcript PN510 – 519.

 191   Transcript PN528 – 538.

 192   Transcript PN538 – 584.

 193   Transcript PN590 – 605.

 194   The Construction, Forestry, Maritime, Mining and Energy Union; The Australian Workers' Union; The Australian Manufacturing Workers' Union and The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v OS ACPM Pty Ltd and OS MCAP Pty Ltd [2020] FWCFB 2434; The Construction, Forestry, Maritime, Mining and Energy Union; The Australian Workers' Union; The Australian Manufacturing Workers' Union and The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v OS ACPM Pty Ltd and OS MCAP Pty Ltd [2020] FWCFB 3669; and The Construction, Forestry, Maritime, Mining and Energy Union; The Australian Workers' Union; The Australian Manufacturing Workers' Union; and The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v OS ACPM Pty Ltd and OS MCAP Pty Ltd [2020] FWCFB 6089.

 195   Exhibit AMWU 12 Annexure KS – 1 KS – 6.

 196   Exhibit AMWU – 12 Annexure KS – 11.

 197   Exhibit AMWU – 12 Annexure KS – 16; KS – 17 and KS – 18.

 198   Exhibit AMWU – 13 at [14] – [15].

 199   Exhibit AMWU 12 Annexure KS – 7.

 200   Exhibit AMWU 12 Annexure KS – 8.

 201   Exhibit AMWU 12 Annexure KS – 9.

 202   See Attachments MH 6 and MH 7 to the statement of Mitch Hughes dated 29 April 2021.

 203   Clause 5.2 and 5.3 of both proposed agreements.

 204   Clause 7.2 of both agreements.

 205   Clause 7.2 of both agreements.

 206   Clause 7.2 of both agreements.

 207   Clause 7.2 of both agreements.

 208   Clause 7.2 of both agreements.

 209   Transcript at PN2023 to PN2049.

 210   CFMMEU written response to AMWU at [28]

 211   No submission is made on how the Commission can make scope orders for work that is currently not being performed.

 212   CFMMEU written response to AMWU [28]

 213   CFMMEU written response to AMWU [28]

 214   AMWU, AWU, CEPU v Qantas Airways Limited tla Qantas [2017] FWC 1526

 215   Australian Manufacturing Workers' Union v Broadspectrum [2019] FWC 4913 at [17]

 216   CPSU v CSC [2020] FWC 265

 217   ANMF v Bolton Clarke [2019] FWC 4452

 218   Australian Manufacturing Workers' Union v Broadspectrum [2019] FWC 4913.

 219   Re Svitzer Australia Pty Ltd [2016] FWC 794.

 220   United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board [2010] FWCFB 3009 at [55]; Application by Wilson [2015] FWC 7835 at [65]-[66]

 221   AM/EU v Woolworths [2009] FWA 849; APT Management v AMWU & Ors [2015] FWC 699; BRB Modular Pty Ltd v AMWU [2015] FWCFB 144

 222   APESMA v Australia Red Cross Blood Services [2011] FWC 2914

 223   HSU v Royal District Nursing Service [2011] FWA 8033; [2012] FWAFB 1489

 224   Australian Manufacturing Workers' Union v Broadspectrum [2019] FWC 4913

 225   Peterson v Police Federation of Australia [2011] FWC 7357; ASU & Ors v Unity Water [2016] FWC 6104

226 TWU v Chubb Security Services [2012] FWC 2226

 227   ASU v City of Perth [2011] FWA 2897; TWU v Coles Supermarkets Aust Pty Ltd [2015] FWC 1591

228 Re RTBU [2021] FWC 4945; UWU v M&S [2020] FWC 3211; APT Management Services Pty Ltd v AMWU & Ors [2015] FWCC 699

 229   APESMA v Australian Red Cross Blood Services [2011] FWC 2914

 230   BRB Modular v AMWU [2015] FWCFB 1440; AMWU, AWU, CEPU v Qantas Airways Limited tla Qantas [2017] FWC 1526

 231   CPSU v CSC [2020] FWC 265; BRB Modular v AMWU [2015] FWCFB 1440

 232   Applications by TasPorts and AIMPE [2017] FWC 2471 at [70]

 233   APT Management Services Pty Ltd v AMWU & Ors [2015] FWCC 699

 234   APT Management Services Pty Ltd v AMWU & Ors [2015] FWCC 699

 235   Application by Wilson [2015] FWC 7835

 236   ANMF v Bolton Clarke [2019] FWC 4452

 237   Re SDA [2016] FWC 8089

 238   Re SDA [2016] FWC 8089

 239   AMWU v Broadspectrum [2019] FWC 4913

 240   BRB Modular v AMWU [2015] FWCFB 1440 at [52].

 241   United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board [201O] FWAFB 3009; AMWU, AWU, CEPU v Qantas Airways Limited tla Qantas [2017] FWC 1526; RE ANMF [2017] FWC 4100

 242   Statement of Mitch Hughes dated 29 April 2021 at [142].

 243   Statement of Mitch Hughes dated 29 April 2021 at [136].

 244   Hughes [PN492-509].

 245   Hughes [PN478-482].

 246   Hughes [PN386-388]; [PN469-471]; [PN478]; Scherf [PN765].

 247   See Hughes [PN472] for example. More meetings are scheduled, and no party has failed to attend any meeting.

 248   See statements of all witnesses.

 249   See for example Hughes [PN391]

 250   See for example Hughes [PN409 -1O]; Scherf [PN862-883]

 251   Hughes [PN 433]; Statement of David Ruggieri at [21]; Statement of Allison Chauncy ([94], [96], [98], [100], [102], [103], [108], [114], [116], [118] and [119]); Statement of Jessica Morkel ([137], [139], [141], [143], [145], [146], [148], [150], [154], [158], [164], [234] and [235]).

 252   Scherf [PN 862-83]

 253   See for example. Hughes [PN395]; Scherf op cit

 254   Scherf [PN 911-913]

 255   Hughes [PN482]

 256   Scherf [PN 811-814]

 257   Hughes [PN 433]; Statement of Allison Chauncy {[94], [96], [98], [100], [102], [103], [108], [114], [116], [118] and [119]); Statement of Jessica Morkel ([137], [139], [141], [143], [145], [146], [148], [150], [154], [158], [164], [234] and [235]); Scherf [PN757-760]

 258   Hughes [PN 456]; Scherf [PN 782]

 259   See for example Scherf [PN1037], [PN 1046], [PN 1048], [PN 1052-7], [PN 1178].

 260   See for example Statement of David Ruggieri at [48] [60] and [102]

 261   Scherf [PN 1100]; and he conceded that changes in legislation in one state/industry would not undermine the other at [PN 111O]

 262   Scherf [PN1087]

 263   Scherf [PN604] and [PN 628]

 264   Scherf [PN665]

 265   See for example 9 July 2021 [PN918]; 14 July 2021 [PN1169].

 266   Scherf [PN1064 -6]

 267   Statement of David Ruggieri at [16] to [18]; Ruggieri [PN 2558-2565], [PN2603]

 268   See footnote 42.

 269   Hughes [PN 368-73], [PN386-8], [PN468-471]; Statement of Kegan Scherf at [20]; Scherf [PN 719], [PN765], [PN809-81O], [PN839]

 270   Scherf [PN 1202]

 271   Hughes [PN 600-05]

 272   First Statement of Jessica Morkel and First Statement of Allison Chauncy; Markel [PN1474], [PN1597], [PN1630-1641], [PN1772-1773].

 273   Proposing a national agreement effecting a compromise on an insignificant number of employees

 274   First Statement of Allison Chauncy at [94], [96], [98], [100], [102], [103], [108], [114], [116], [118] and [119];

 275   First Statement of Jessica Morkel at [137], [139], [141], [143], [145], [146], [148], [150], [154], [158], [164], [234] and [235].

 276   Hughes [PN392]; [PN443].

 277   Scherf [PN757]-[PN760].

 278   Hughes [PN390]; Scherf [PN711]

 279   Scherf [PN 811-6]

 280   First Statement of Ms Chauncy at [105]; Chauncy at [PN1716]; [PN1789], [PN1798], [PN1800]; First Statement of Ms Morkel at [145(c)]; Markel at [PN2064]-[PN2134]

 281   First Statement of Allison Chauncy at [112]; First Statement of Jessica Markel at [145]. Markel [PN2113]-[PN2119].

 282   Hughes [PN386]-[PN388]; [PN413] to [PN455], [PN471]; [PN599], Scherf at [PN718]; [PN757]; [PN765]; [PN809] to [PN81O]; [PN839]; Chauncy [PN1597]; Scherf [PN1607]; First Statement of Allison Chauncy at [94].

 283   Transcript 7 June 2021 at [PN486]; [PN493], [PN506]-[PN509]; Transcript 14 July 2021 at [PN60] to [PN63]; First Statement of Allison Chauncy at [108]; First Statement of Jessica Markel at [148].

 284   First Statement of Ms Chauncy at [105]; Transcript 9 June 2021 at [PN1716]; [PN1789], [PN1798], [PN1800]; First Statement of Ms Markel at [145(c)] and Transcript 15 July 2021 at [PN2064]­ [PN2134].

 285   First Statement of Ms Chauncy at [112].

 286   First Statement of Ms Markel at [74]; [81]; [99]; [106]-[107]; [115]-[116]; [138]

 287   First Statement of Ms Chauncy at [34] to [73]; First Statement of Ms Markel at [46] to [126].

 288   First Statement of Ms Chauncy at AMC-2 (p 23).

 289   Further Statement of Mitch Hughes Attachments MH1 to MH7.

 290   Hughes [PN520] to [PN529]

 291   Transcript 7 June 2021 [PN321]; [PN648]; [PN800]; [PN922]; [PN1092]; Transcript 8 June 2021 [PN1195]; [PN1253]; [PN1255]; Transcript 14 July 2021 at [PN966]-[PN968].

 292   See for example Transcript 7 June 2021 at [PN336]-]PN340]; [PN750]; Transcript 8 June 2021 at [PN1211]; Transcript 14 July 2021 at [PN974]-[PN1023].

 293   First Statement of Ms Morkel at [10].

 294   Supplementary Statement of Ms Morkel at [34].

 295   Hughes [PN804]; Morkel [PN163-4], [PN1639-40]

 296   Markel [PN1630]; Ruggieri [PN 2559-68]; [PN2573], [PN259-98]; [PN2656]; Statement of David Ruggieri at [18-19] and [91].

 297   See for example Scherf [PN 1037], [PN1046],[PN1048], [PN1052-7], [PN1178]; the CFMMEU could not even take the witness to the full legislation in NSW Scherf [PN1048].

 298   Statement of David Ruggieri at [23] to [102].

 299   Scherf [PN 995], [PN1026-9]

 300   Hughes [874]-[876]; Scherf [PN929]; Statement of David Ruggieri at [22]-[102].

 301   Ibid; Statement of Ruggieri [68]

 302   Scherf [PN 922-3], [PN985]

 303   Even Mr Scherf accepted this in the end Scherf [PN 1021]

 304   Scherf [PN 1021] they were identical but not 100% (sic)

 305   Scherf ]PN1058-1062]

 306   Scherf [PN206]; [PN264]; [PN305]; [PN312]-[PN328].

 307   Scherf [PN 637-59], [PN 1151-67]

 308   Scherf [PN1223]

 309   Hughes [PN386]-[388]; [PN469-471]; [PN478]; Scherf [PN765].

 310   Transcript PN1464 – PN1484.

 311   Transcript PN1630 – 1631.

 312   Exhibit AMWU1.

 313   Transcript PN1976 – 1977.

 314   Exhibit OSP – 2 Annexure AMC – 35.

 315   Ibid Annexure AMC – 36.

 316   Transcript PN1597 – 1603.

 317   [2010] FWAFB 1625.

 318   [2010] FWAFB 1625.

 319   AMWU Outline of Submissions dated 6 May 2021 paragraph 27.

 320   CFMMEU Consolidated Final Outline of Submissions paragraph 68.