FWA 6329
Fair Work Act 2009
s.238 - Application for a scope order
Australian Rail, Tram and Bus Industry Union
Australian Rail Track Corporation (ARTC)
SYDNEY, 27 JULY 2012
Application by the Australian Rail, Tram and Bus Industry Union for a scope order.
 On 22 June 2012 the Australian Rail, Tram and Bus Industry Union (ARTBIU) made an application for a scope order. The application was made pursuant to section 238 of the Fair Work Act 2009 (the Act). The application identified the respondent as Australian Rail Track Corporation (ARTC).
 This matter is connected with an application for a bargaining order which was made by the ARTBIU on 4 July 2012 (B2012/1086). The application for a bargaining order was heard and determined by Fair Work Australia (FWA), as currently constituted, in a Decision issued on 10 July 2012, [PR526051]. The particular terms of the bargaining order made in the related matter has established a degree of urgency for the determination of this application.
 Proceedings in this matter commenced before FWA on 4 July 2012, at which time Mr T Costa with Mr B Edghill appeared for the ARTBIU, and Ms J McAuliffe with Ms J Turner appeared for ARTC.
 The Hearing of this matter was conducted over 2 days, 11 and 20 July 2012, at which time Mr Costa and Mr Edghill continued their appearances for the ARTBIU and ARTC was represented by Mr S Jauncey with Mr S Joseph, solicitors from the firm of Henry Davis York.
 By consent the evidence which had been adduced in the bargaining order matter (B2012/1086) was admitted as evidence in this matter. Both the ARTBIU and ARTC introduced additional evidence. The additional evidence involved the calling of witnesses who had not given evidence in the bargaining order matter, together with evidence from witnesses who were “re-called” to provide further evidence in addition to that which they had provided in the bargaining order matter.
 During the Hearing the ARTBIU adduced evidence from a total of 5 witnesses all of whom had made written statements in support of the application. The ARTBIU also successfully introduced an uncontested witness statement as further evidence. Mr Jauncey on behalf of ARTC, adduced evidence from a total of 3 witnesses all of whom provided oral testimony in addition to written statements that each had made in opposition to the application.
 The ARTBIU has sought a scope order which if granted would remove a particular classification of employees of ARTC called Network Controllers from coverage of a proposed enterprise agreement. The proposed enterprise agreement has been the subject of bargaining aimed at establishing a replacement for an expired instrument, the Australian Rail Track Corporation (NSW) Enterprise Agreement 2009, which was approved by FWA on 3 February 2010 [PR993119], (the 2009 NSW Agreement).
 The 2009 NSW Agreement has a nominal expiry date of 22 May 2012 and it covers;
● ARTC employees who work in New South Wales other than non-supervisory Infrastructure Maintenance employees;
● The ARTBIU;
● The Association of Professional Engineers, Scientists and Managers, Australia (APESMA);
● The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied services Union of Australia, NSW Divisional Branch (CEPU); and
● The Australian Services Union (ASU).
 The 2009 NSW Agreement is one of three major enterprise agreements which regulate the employment terms and conditions of ARTC employees. (There is apparently a fourth enterprise agreement which applies to some transferring employees and for present purposes it is neither relevant nor identified.) There is another enterprise agreement which applies to ARTC employees working in New South Wales in non-supervisory Infrastructure Maintenance roles. It is called the Australian Rail Track Corporation (NSW) Infrastructure Maintenance Enterprise Agreement 2011 and it was approved by FWA on 6 May 2011 [PR508960], (the 2011 NSW Infrastructure Agreement). The third primary enterprise agreement applying at ARTC covers all employees working outside of New South Wales. This agreement operates, at least potentially, in all States of Australia other than New South Wales and it is called the Australian Rail Track Corporation Enterprise Agreement 2010. It was approved by FWA on 23 September 2010 [PR502021], (the 2010 all States Agreement).
 In early 2012 the parties covered by the 2009 NSW Agreement commenced negotiations for a replacement agreement. The ARTBIU, APESMA, CEPU and ASU, referred to collectively as “the Unions”, prepared a Combined Unions Log of Claims 1 and served it on ARTC. Point 3 of the Combined Unions Log of Claims was entitled “Scope of Enterprise Agreement Coverage” and contained claims in the following terms:
● Network Controllers to be covered by a separate Enterprise Agreement.
● Work Group Leaders, Team Leaders and Signal Electricians to be covered by a separate Enterprise Agreement.
● The above groups of members have raised concerns about the bona fides of ARTC to address their respective classification issues in the context of one (1) agreement covering all employees.
 ARTC advised the Unions in writing that it rejected any separate agreement or agreements for any of the classifications that had been identified in the Unions’ log of claims. The enterprise bargaining negotiations continued with the Unions endeavouring to address the issues of concern to Network Controllers, inter alia, within the pre-existing scope of the 2009 NSW Agreement.
 At least a further six enterprise bargaining meetings were held between March and June 2012. The provisions of the proposed agreement which would apply to Network Controllers occupied a considerable amount of time during the discussions at the various bargaining meetings. Many of the concerns raised on behalf of Network Controllers involved issues regarding roster arrangements for continuous shift work. Network Controllers work on a continuous rotating shift roster basis as do most other employees who work in operational control and coordination functions of ARTC. However the substantial majority of employees covered by the 2009 NSW Agreement work in areas other than operational control and coordination. Therefore the majority of employees to be covered by the proposed agreement do not work on a continuous rotating shift roster basis.
 At one stage of the bargaining process ARTC and the Unions attempted to address the issues connected with continuous rotating shift roster arrangements by way of a Memorandum of Understanding. The proposed Memorandum of Understanding would have operated as something of an adjunct to the proposed enterprise agreement and involved an anticipated review of roster arrangements.
 The parties could not agree on the terms to be included in the proposed Memorandum of Understanding. The issues regarding continuous rotating shift roster arrangements which had been primarily advanced as concerns of the Network Controllers were returned to the “mainstream” enterprise bargaining negotiations. However the Unions reiterated their claim “...to have a separate EA for Network Controllers...” 2
 At an enterprise bargaining meeting held on 21 June 2012, ARTC provided draft number 2 of the proposed enterprise agreement. During this meeting an impasse was reached which primarily related to issues raised on behalf of Network Controllers and which in large part concerned continuous rotating shift roster arrangements. ARTC proposed that the shift rostering issues would be dealt with by way of a separate review process and this was not acceptable to the Union representatives who were present at the meeting. In these circumstances ARTC advised the other bargaining representatives that it would commence the enterprise agreement ballot process and make arrangements to put the proposed agreement to a vote of employees.
 On the next day, 22 June, the ARTIBU made the application for a scope order and subsequently it also made the related application for a bargaining order. In essence, the bargaining order which has been granted has halted the enterprise agreement ballot processes pending the outcome of this matter.
The Case Advanced by the ARTBIU
 The ARTBIU has sought a scope order which would specify that an enterprise agreement should cover persons who work as Network Controllers to the exclusion of all other employees of ARTC. By implication it seemed that such a proposed enterprise agreement would be confined in its operation to New South Wales.
 The ARTBIU filed an outline of written submissions which was elaborated upon verbally during the Hearing on 20 July 2012. The ARTBIU submitted that it had satisfied the various legislative prerequisites and notification requirements which apply for a scope order.
 The ARTBIU submitted that the making of the scope order as sought would promote the fair and efficient conduct of bargaining. The ARTBIU asserted that the evidence of the bargaining for the 2009 NSW Agreement demonstrated that it had not proceeded fairly in respect to a considerable number of Network Controller specific claims. The ARTBIU said that ARTC had attempted to negotiate the Network Controller issues separate to the enterprise bargaining negotiations and that in doing so had attempted to place these matters outside of the good faith bargaining requirements.
 The ARTBIU asserted that the bargaining would be fairer and more efficient for Network Controllers if they were able to negotiate a separate enterprise agreement for themselves while there would be no change in respect of fairness or efficiency for the other employees of ARTC. There was an implied unfairness which was said to arise because the proposed agreement would force a minority group of employees who are operationally, organisationally and geographically distinct to be covered by an agreement which did not adequately address concerns that were specific to their employment.
 The ARTBIU contended that the group proposed in the scope order, namely Network Controllers, was a group which had been fairly chosen. It was argued by the ARTBIU that it was irrelevant to suggest that some other group, perhaps a group encompassing Network Controllers and other employees involved in operational control and coordination might be said to represent a “fairer” group. According to the submissions made by the ARTBIU it was not the Tribunal's task to consider whether one group or another might be a fairer group. Instead, according to the ARTIBU’s submissions, FWA should conclude that the group that had been chosen was a distinct group and that enabling this distinct group to bargain for their own agreement was fair, or would promote the fair and efficient conduct of bargaining.
 The ARTBIU further submitted that the group chosen, Network Controllers, was geographically, operationally or organisationally distinct. According to the submissions made by the ARTBIU, it was necessary for FWA to take into account whether the group chosen was distinct in any one of the three specified areas of distinction.
 In the application document Network Controllers were said to be the only permanent shift workers covered by the proposed agreement and they were, according to the ARTBIU, the only employees who work a 24 hour/7day roster. Further, the ARTBIU submitted that Network Controllers were the only employees who have their shift penalties and public holiday penalties incorporated into their Total Remuneration Package (TRP) and they worked at two distinct locations, Broadmeadow and Junee. However the submissions made by the ARTBIU during the Hearing concentrated on the alleged operational and organisational basis upon which to establish that Network Controllers were a distinct group.
 According to the submissions made by the ARTBIU there was evidence in the form of various organisational charts which demonstrated that the Network Controller classification structure as identified in clause 10.2 of the proposed agreement was a distinct group. The ARTBIU said that it was clear that Network Controllers were a distinct group at least operationally and organisationally, and largely geographically. The ARTBIU asserted that ARTC recognised the Network Controllers as a distinct group and therefore it was clear that the scope order as sought would, if granted, not result in any operational confusion.
 In summary, the ARTBIU submitted that in all the circumstances it was reasonable to make the scope order. The ARTBIU said that the group was fairly chosen because Network Controllers were operationally and organisationally distinct. Further, Network Controllers were a group that wished to negotiate their own agreement and that it would be fairer and more efficient if they were allowed to do so. The ARTBIU also submitted that there was no prejudice or disadvantage to the other employees not comprehended by the scope order, or to ARTC.
 In addition, it was asserted that as ARTC was a large employer that dealt with a number of enterprise agreements nationally and already had two separate enterprise agreements in operation within New South Wales it would be reasonable to require ARTC to negotiate separately with Network Controllers.
The Case Advanced by ARTC
 ARTC opposed the application and submitted that FWA should not make the scope order sought by the ARTBIU.
 Mr Jauncey who appeared for ARTC, made lengthy verbal submissions which commenced with an analysis of the word “the”. Mr Jauncey provided dictionary definitions of the word “the” as part of an examination of particular terms of the Act, which he said established an important contrast between the words “a bargaining order” contained in s. 230 when compared with the words “the scope order” used in sub-section 238 (4).
 According to the submissions made by Mr Jauncey, the use of the word “the” rather than the word “a” in respect to the making of a scope order was an intentional limitation made by Parliament upon the nature of any scope order that could be made by FWA. Mr Jauncey said that FWA could only make a scope order in the specific terms sought by an applicant and it was not at liberty to make an order in some other terms, perhaps by way of some discretionary amendment to the specific terms sought. According to Mr Jauncey this limitation upon the nature of any scope order made by FWA was in contrast to the broader capacity for FWA to make bargaining orders in terms amended at the discretion of FWA.
 Consequently, Mr Jauncey submitted that in any application for a scope order FWA could only either make the order as sought by the applicant or refuse the order and dismiss the application. According to Mr Jauncey there was no legislative capacity for FWA to make an order amended at the discretion of FWA and perhaps reflecting an alternative which was more amenable to the consideration of FWA. Mr Jauncey said that the ARTBIU had not made any attempt to amend the order sought at any time and it was clear that the order sought was confined to the specific classification of Network Controller as identified in sub-clause 10.2 of the proposed agreement.
 Mr Jauncey made further submissions which were based upon a broad contention that in almost all respects the evidence simply did not support the factual assertions upon which the application had been made by the ARTBIU.
 According to the submissions made by Mr Jauncey the group chosen as the subject of the proposed scope order could not be considered to have been fairly chosen. In this regard Mr Jauncey was critical of the process that had been adopted by the ARTBIU as the means by which Network Controllers were selected as a group for which it was appropriate to pursue a separate enterprise agreement to the extent that a scope order application was made on their behalf.
 Mr Jauncey said that the ARTBIU had conducted insufficient exploration of the views of all Network Controllers and of other employees of ARTC, particularly those employees who were engaged in activities closely associated with the work of Network Controllers. Mr Jauncey also asserted that there was no evidence upon which it could be established that a majority of Network Controllers actually supported the pursuit of a separate enterprise agreement.
 In addition, Mr Jauncey said that there was no evidence upon which to establish what views were held by other employees of ARTC and importantly the views of other employees who worked in or in connection with operational control and coordination. Mr Jauncey mentioned that there were various identified classifications who worked either in conjunction with Network Controllers or in similar roles which involved operational control and coordination. These employees, who are classified or described as Terminal Coordinators, Train Transit Managers, Programmers, Coal Logistics Coordinators and Day of Operations staff at HVCCC (the other operations staff), were not part of the ARTBIU application and would be left out of any separate agreement that would be created for Network Controllers. Mr Jauncey said that there was simply no evidence about what views the other operations staff held about their exclusion from a separate agreement created specifically for the classification of Network Controller.
 Mr Jauncey further submitted that the evidence did not support the assertion that Network Controllers were geographically, operationally or organisationally distinct. Mr Jauncey said that the evidence clearly established that various other employees, particularly the other operations staff, worked in the same control room as the Network Controllers at both Broadmeadow and Junee.
 The Network Controllers were not operationally distinct according to Mr Jauncey. Mr Jauncey asserted that the evidence established that there was significant interaction between Network Controller’s work and the work performed by a number of the other operations staff. Further, Mr Jauncey submitted that the evidence of the organisational structure of ARTC revealed that within two configurations respectively named, Network Control South and Network Control Hunter Valley, there were employees classified as Network Controllers and also employees classified as the other operations staff. Mr Jauncey said that this revealed that Network Controllers were not treated as a distinct organisational group.
 Mr Jauncey made further submissions which asserted that the making of the scope order would not promote the fair and efficient conduct of bargaining. Mr Jauncey said that it was important to recognise that the application for a scope order had been made many months after the enterprise bargaining negotiations had commenced. Further, several months had passed since ARTC had firmly rejected any proposition for Network Controllers or others, to have separate enterprise agreements. According to Mr Jauncey it would be plainly contrary to the promotion of efficiency if the enterprise bargaining had to restart upon a different scope which would require ARTC to conduct two concurrent bargaining processes, one for Network Controllers and one for all other employees.
 Mr Jauncey also submitted that there were serious fairness and efficiency concerns which would arise if the Network Controllers were able to negotiate separately and secure additional benefits which had a cost impact upon ARTC. Mr Jauncey said that if such additional costs were incurred there was every possibility that the previously proposed general wage increases may have to be reduced in order to meet any additional costs associated with benefits provided to the Network Controllers. Mr Jauncey submitted that such an outcome would be, in all likelihood, unfair, certainly not efficient, and in all the circumstances unreasonable.
 Mr Jauncey made further submissions which challenged the pre-requisite and notification requirements for the application. Mr Jauncey asserted that the enterprise bargaining had reached an impasse on 21 June and had ceased at that time. According to the submissions of Mr Jauncey, subsection 238(1) of the Act operated only in circumstances where bargaining was ongoing and therefore a scope order application could not be properly made after bargaining had ceased.
 Mr Jauncey also submitted that the written notification requirements established by subsection 238(3) of the Act had not been met. Consequently Mr Jauncey said that the scope order application had not been made in accordance with the requirements of the Act and should be dismissed accordingly.
 The making of scope orders is governed by the provisions of sections 238 and 239 of the Act which are contained within Subdivision C of Division 8 of Part 2-4.
 Sections 238 and 239 of the Act are in the following terms:
Bargaining representatives may apply for scope orders
(1) A bargaining representative for a proposed single-enterprise agreement may apply to FWA for an order (a scope order) under this section if:
(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and
(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.
No scope order if a single interest employer authorisation is in operation
(2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement.
Bargaining representative must have given notice of concerns
(3) The bargaining representative may only apply for the scope order if the bargaining representative:
(a) has given a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and
(b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and
(c) considers that the relevant bargaining representatives have not responded appropriately.
When FWA may make scope order
(4) FWA may make the scope order if FWA is satisfied:
(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and
(b) that making the order will promote the fair and efficient conduct of bargaining; and
(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and
(d) it is reasonable in all the circumstances to make the order.
Matters which FWA must take into account
(4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Scope order must specify employer and employees to be covered
(5) The scope order must specify, in relation to a proposed single-enterprise agreement:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
Scope order must be in accordance with this section etc.
(6) The scope order:
(a) must be in accordance with this section; and
(b) may relate to more than one proposed single-enterprise agreement.
Orders etc. that FWA may make
(7) If FWA makes the scope order, FWA may also:
(a) amend any existing bargaining orders; and
(b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by FWA, or take such other actions, as FWA considers appropriate.
A scope order in relation to a proposed single-enterprise agreement:
(a) comes into operation on the day on which it is made; and
(b) ceases to be in operation at the earliest of the following:
(i) if the order is revoked—the time specified in the instrument of revocation;
(ii) when the agreement is approved by FWA;
(iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;
(iv) when the bargaining representatives for the agreement agree that bargaining has ceased.”
 It seems to me that sub-sections (4) and (4A) of s.238 are the primary operative provisions in respect to the making of a scope order. Putting the good faith bargaining requirements to one side, there are essentially three elements which can be extracted from these provisions and which must be satisfied in any scope order.
 These three elements are that a scope order must:
(1) promote fair and efficient bargaining, and
(2) specify a group of employees who were fairly chosen, and
(3) be reasonable.
 In respect to that element regarding whether a group is fairly chosen, subsection 238 (4A) of the Act introduces some specific requirements that must be considered in order to establish that a group, other than a group comprising all employees, has been fairly chosen. It appears that in any assessment as to whether or not a group has been fairly chosen consideration is directed at whether the group is geographically, operationally or organisationally distinct.
 The use of the disjunctive conjunction “or” means that there is no requirement that in order to be fairly chosen the group needs to satisfy all three areas of specified potential distinction. Indeed, it is quite conceivable that a group could be fairly chosen if it was established to be only one of either geographically, operationally or organisationally distinct. Further, there is clear potential that a group could be held to have been fairly chosen even if it did not satisfy any one of the areas of specified distinction.
 In the context of enterprise bargaining, the issue of whether a group of employees has been fairly chosen can be a matter of great significance. The relative bargaining strengths of the parties can be significantly adjusted by any determination of the constituent group of participants. There are also practical issues often relating to business needs, costs and efficiency which may arise. The permutations that exist in respect of the dynamics, nature and extent of the bargaining arena are so varied and diverse that there is little, if any, capacity for the establishment of any general rules of engagement.
 However, in three separate subsections of the Act, 186(3A), 237(3A) and 238(4A), attention is directed toward any geographical, operational or organisational distinction of a group in any assessment as to whether that group was fairly chosen. The approach to this particular assessment was considered recently by a Full Bench of FWA in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union; The Australian Workers’ Union; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Cimeco) 3.
 The following extract from the Full Bench Decision in Cimeco is directly relevant:
“ Given the context and the legislative history it can reasonably be assumed that if the group of employees covered by the agreement are 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.
 It is important to appreciate that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations.
 It is not appropriate to seek to exhaustively identify what might be the other relevant considerations. They will vary from case to case and will need to be demonstrated to the satisfaction of the tribunal. The word ‘fairly’ suggests that the selection of the group was not arbitrary or discriminatory. For example, selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, selection based on criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair. It is also appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of employees in determining whether the group of employees was fairly chosen. In this regard, it is not only the interests of the employees covered by the agreement that are relevant; the interests of those employees who are excluded from the coverage of the agreement are also relevant.” [Emphasis added]
 Any finding as to whether a group of employees is distinct from other employees because of either, where they work (geographically), what work they perform (operationally), or because of the structure of the organisation in which they work (organisationally), is a matter of factual determination based upon the evidence presented.
 In this instance the nature of the scope order which has been sought manifests some obvious difficulties in respect to findings of geographical, operational or organisational separation from other employees. The application specified the group of employees by virtue of their classification as Network Controller. The use of a specific classification as opposed to some more generic term would seem to create greater prospect for evidence to emerge that persons of another classification either worked in the same location or performed similar work, or were organised into the same structure as Network Controllers.
 The evidence presented in this matter plainly established that employees who were classified as some of the other operations staff worked in the same control room alongside Network Controllers. It appeared that during the Hearing the ARTBIU, to a large extent, conceded that it could not establish that the work of Network Controllers was geographically distinct from other employees.
 The ARTBIU maintained that the work of Network Controllers was operationally distinct from the work of other employees. However, the evidence given by the only witness called by the ARTBIU who was an employee of ARTC, Mr Michael Milburn, disclosed that he was classified as a “Senior Network Controller” which was a classification not specifically comprehended by the scope order. In fact, neither the 2009 NSW Agreement nor the proposed replacement agreement contains any mention of the classification of “Senior Network Controller”. Further, the evidence from Mr Milburn revealed that he worked as, or was anticipating working in the role of a Day of Operation staff at HVCCC.
 Consequently and somewhat remarkably, the only ARTC employee witness who was called by the ARTBIU in support of the scope order application was not strictly classified as a Network Controller, and therefore he would, in all likelihood, not be covered by the proposed scope order. I apprehend that an outcome of this nature would have been unintended by the ARTBIU and contrary to the expressed desires of the witness, Mr Milburn. However this unusual outcome demonstrates the difficulty associated with the classification specific nature of the scope order sought, and further, it reflects that the work of Network Controllers is not operationally distinct from the work of other classifications, particularly some of those classifications that I have referred to as the other operations staff.
 There were numerous aspects of the evidence which demonstrated that the work of Network Controllers was operationally and organisationally integrated with the work of other operations staff. The ARTC organisational charts used categorisations of the Network Control at a particular location and which, upon analysis, included both Network Controllers and other operations staff within that particular category.
 In addition, the draft number 2 agreement document included at clause 10 a section entitled “Network Control” which specifically covered “Network Control Employees”. The definition of “Network Control Employee” found at clause 1.1.3 of the document states: “‘Network Control Employee’ means an employee engaged as a Network Controller, Terminal Coordinator, Programmer, Train Transit Manager or Coal Logistics Coordinator.”
 The totality of the evidence has demonstrated that the specific classification of Network Controller is one of a number of classifications which, to varying degrees, worked in an integrated fashion with one another within what was frequently described as the Operations Team. The work of Network Controllers is a function which is integrated with a number of other functions which, in combination, provide for the operational control and coordination of the safe movement of trains, in short, Network Control.
 Consequently, the evidence has not established that the group specified in the scope order, Network Controllers, is a group that is geographically, operationally or organisationally distinct from other employees who work in various functions broadly comprehended by the term Network Control. Although this factual determination may not be fatal to the determination as to whether the group specified in the scope order was fairly chosen, it is obviously a telling factor against such a finding.
Promote Fair and Efficient Bargaining
 I turn now to consideration of that primary legislative element for a scope order which was earlier identified as a requirement to promote fair and efficient bargaining.
 The evidence provided by all witnesses called by the ARTBIU displayed a genuinely held belief that the claims that have been advanced on behalf of Network Controllers had not been adequately addressed during the enterprise bargaining negotiations. In particular there was significant dissatisfaction with the proposition that issues of concern relating to continuous rotating shift rostering would be separated into a review process rather than dealt with by way of prescriptions contained in an agreement document.
 There was evidence that some progress had been made regarding the issues raised on behalf of Network Controllers. This progress was reflected by the proposed inclusion of a new section entitled “Network Control” which was introduced as clause 10 of the draft number 2 agreement document. This new clause proposed various Network Control specific prescriptions some of which exist within clause 9 of the 2010 all States Agreement. Indeed, there are some obvious similarities between the terms of clause 10 of the proposed agreement and clause 9 of the 2010 all States Agreement. Importantly however clause 9 of the 2010 all States Agreement includes various prescriptions which deal with rostering principles, annual leave and overtime and it is issues of this nature which represent some of the major outstanding concerns which were raised on behalf of Network Controllers.
 Consequently there would be an understandable level of dissatisfaction based upon perceived or actual unfairness arising from Network Control staff working under the terms of the 2010 all States Agreement being provided with particular prescriptions relating to continuous rotating shifts rostering issues as terms of that Agreement, while such matters were excluded from the proposed agreement to replace the 2009 NSW Agreement. In simple terms, it would seem to be fundamentally unfair to have rostering related issues prescribed in an enterprise agreement for Network Control staff working outside of New South Wales, while refusing to have such matters included as prescriptions in the enterprise agreement that would apply to Network Control staff working within New South Wales.
 The scope order was advanced as a means to provide a remedy to redress this unfairness. It was perceived that if Network Controllers negotiated their own separate agreement they would avoid the prospect of being outvoted by other employees who represented a majority but who had no particular concern for issues related to continuous rotating shift rostering. Therefore it would seem to follow that there was some basis to support the proposition that the scope order would promote fair bargaining in that it would avoid the prospect that Network Controllers would be forced to accept the terms of an agreement which did not properly address their specific concerns.
 However, although the scope order may promote fair or fairer bargaining for Network Controllers it would perpetrate unfairness on the other operations staff. Because the scope order was confined to the classification of Network Controller rather than expressed to apply to all persons classified or engaged in functions involving operational control and coordination, the other operations staff would become a very small minority in the bargaining negotiations which would continue for all others except Network Controllers.
 Further, enterprise bargaining often involves identifiable groups who may represent a minority with sectional interests. There are often dissatisfied minorities, indeed sometimes individuals, who have to reluctantly accept the outcome determined by a majority vote in support of an enterprise agreement.
 There are an enormous variety of configurations upon which enterprise bargaining is pursued and in many circumstances mechanisms are established to ensure that minority issues are not unreasonably or unfairly overlooked during the enterprise agreement negotiations. Particularly in circumstances where bargaining representatives may involve a number of Unions, an approach is sometimes adopted whereby a single bargaining unit, comprising the various Unions, determines that it will act with a degree of solidarity to ensure that the reasonable claims of minorities are properly addressed before any endorsement is provided for a proposed agreement. Of course the level of realised solidarity may fluctuate and depend upon the broader perception of the reasonableness or otherwise of particular minority issues.
 Consequently, although the scope order may represent a means to redress unfairness visited upon Network Controllers, there may be other more suitable mechanisms which could be utilised so as to achieve a fairer outcome, not only for Network Controllers but also for all other employees involved in network control and coordination activities and, also perhaps for any other minorities encompassed in the enterprise bargaining negotiations for a replacement to the 2009 NSW Agreement.
 I now turn briefly to the question of whether the scope order would promote the efficient conduct of bargaining.
 There appears to be an inescapable inefficiency attached to the pursuit of a scope order at a point in time after the enterprise bargaining negotiations have progressed. Logically, in order to ensure that enterprise bargaining is undertaken with efficiency any issue regarding the scope of the proposed agreement needs to be resolved before time, money and energy is spent in negotiation of the particular terms of a proposed agreement. Consequently there is a very strong prospect that any scope order which is not made at or shortly after the commencement of the bargaining process will fail to satisfy the requirement that it would promote the efficient conduct of bargaining.
Reasonable in the Circumstances
 The final element of the essential requirements of a scope order identified earlier is that it be reasonable in all the circumstances. In my view, this requirement is directed towards an overall evaluation of the various aspects which have been identified as part of the examination of the other primary elements namely, whether the scope order identifies a group that was fairly chosen and whether or not it would promote fair and efficient bargaining. In addition, this element provides for consideration of any other factor or particular circumstance which might be relevant and which should be given due consideration before any scope order is made or rejected.
 Importantly, each of sub-paragraphs (a) to (d) of sub-section 238(4) of the Act are separated by the word “and”, thereby making the constituent elements cumulative requirements for the making of any scope order. Consequently, even if I was to consider that some factor might establish that the scope order would be reasonable in all the circumstances, the order could not be made unless all the other elements were satisfied.
 In this instance I am most concerned that legitimate, important employment issues particularly relating to continuous rotating shift rostering for Network Control staff, have been unfairly excluded from the bargaining process. If the other requirements for the making of a scope order had been satisfied there would have been little difficulty in establishing that it would have been reasonable in all the circumstances to have made the order.
 This application for a scope order has been considered and determined by reference to three key elements which I have extracted from the primary operative provisions of the Act, subsections 238(4) and 238(4A). These three elements require that a scope order must; (1) promote fair and efficient bargaining, (2) specify a group that was fairly chosen and (3) be reasonable.
 In addition to good faith bargaining requirements, a scope order must satisfy all three of the identified elements. It is not sufficient that just one or another of the elements be positively established.
 In this instance I have been unable to establish that the group specified in the scope order namely, Network Controllers is a group that was fairly chosen. In particular the evidence does not establish that this group is geographically or operationally or organisationally distinct. In addition, I am unable to conclude that the scope order sought would promote both fair and efficient bargaining. Although I have considerable sympathy in respect to the underlying issues of legitimate concern to Network Control staff these issues cannot be remedied by way of the scope application made in this matter.
 Consequently, the legislative requirements for the making of the scope order have not been met and the application must be dismissed accordingly. It consequently follows that the related bargaining Orders made in matter B2012/1086 [PR526052] now cease to have any further effect or operation.
B. Edghill with T. Costa for Rail, Tram & Bus Union (NSW Branch)
S. Jauncey solicitor with S. Joseph for Australian Rail Track Corporation (ARTC)
July 9, 10.
1 Exhibit 1 - Annexure “DK4”.
2 Exhibit 1 - Annexure “DK9” @ page 4 of the Combined Unions Response document.
3 Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union; The Australian Workers’ Union; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia  FWAFB 2206.
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