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[2025] FWC 2334
General information, not legal advice.
Fair Work Commission
2025-08-26
Original judgment source is linked above.
s.238 - Application for a scope order
Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division - Tasmanian Divisional Branch
Application for a scope order-not satisfied that making the order will promote the fair and efficient conduct of bargaining-application dismissed
"The Respondent runs a ferry service between the mainland of Tasmania and Bruny Island. This service operates 365 days of the year and facilitates both foot and vehicle passage.
On the vessels there is a minimum crewing requirement of a Master, MED 1, 2, or 3, and a Deckhand.
In order to board the vessel, passengers first need to purchase a ticket from a Customer
Service Officer (CSO) at a ticket booth. Once in possession of a ticket, they are directed
to a loading bay and then on to the vessel itself, this work being done by a Traffic Marshall.
Passenger numbers fluctuate throughout the year dependent upon the season. As a result of this the number of employees required will ebb and flow through peak and off-peak periods.
The work done by the CSO and Traffic Marshall employees is integral to the operation
of the vessel. Simply put, without these functions the vessel could not leave port.
The workers that I represent are covered by the Sealink Tasmania Ferry Crew Enterprise Agreement 2021 - 2025, which has a nominal expiry date of 20 July 2025. We are currently bargaining for a replacement agreement, and I am acting as a bargaining representative.
The parties to the bargaining have exchanged a log of claims and responses and had several bargaining meetings. The parties have been and continue to bargain in good faith.
From the outset of bargaining I have had concerns that the scope of the agreement is unfair as it excludes a small group of workers. I have doubts that the bargaining process can reach an outcome as long as these workers continue to be excluded.
I expressed my concerns to the Respondent early in the bargaining process and notified
them by email on 18 March 2025 that we would seek to lodge a scope order application
with the Fair Work Commission. I have not received any response indicating that the Respondent is willing to change the scope of the replacement agreement.
The CSO and Traffic Marshall workers that have been excluded from the scope of the replacement agreement work from the same location, on the same service, work with the same customers and are part of the same organisational structure as those workers that are included in the replacement agreement.
To exclude these workers means they will not enjoy the same conditions and benefits as those workers they work alongside every shift. They are a small group and if isolated
have no industrial and collective strength to negotiate independently.
I am of the opinion that the exclusion of CSO and Traffic Marshalls from the scope of the replacement agreement is unfair and hampering my ability as bargaining representative to progress efficiently the bargaining process."[2]
"SeaLink have operated the Bruny Island service since September 2018. In this time the Sealink Tasmania Ferry Crew Enterprise Agreement 2021-2025 (EA) has historically applied only to marine-based ferry crew.
The current customer service officer (CSO) team report to the Operations Coordinator Cassandra Smith and are entirely land based. This group have always been covered under the Clerks Award, not the EA including when under the previous operator.
The EA currently covers employees who have a contract under the existing 2021-2025 agreement, which does not include standalone Traffic Marshalls or CSOs.
The EA specifically describes the duties of a Deckhand but does not define Traffic Marshall as a separate role. If the intention had been to establish Traffic Marshall as a distinct classification, the EA would have explicitly listed it alongside other roles and included a corresponding pay rate underpinned by the Miscellaneous Award 2020.
From the beginning of bargaining for a new EA, the only discussion about coverage included the employees that are currently covered by the EA.
The Deckhand/Marshall role has been the subject of some confusion. At the first bargaining meeting on 25 November 2024, I stated to the bargaining representatives, including the union representative present, that the Deckhand/Marshall position named in the EA was a dual role and not two separate positions.
The union disagreed stating their belief that the forward slash dividing the two roles indicated two separate positions. Our P&C Manager provided the union with further clarification via email on 17 December 2024 stating that the Deckhand/Marshall position named in the EA was a dual role and that stand-alone Traffic Marshalls had been excluded from the EA.
On 28 March 2025, I wrote to the union and all bargaining representatives that the EA has never had a standalone Traffic Marshall classification as they are employed casually as required.
The Deckhand/Traffic Marshall role is very different to a standalone Traffic Marshall. The dual role is marine-based and requires a formal qualification in Elements of Shipboard Safety (ESS), whereas a standalone Traffic Marshall is land-based and does not require any qualifications. This further reinforces that the EA does not contemplate a separate Traffic Marshall position.
At the bargaining meeting held on 1 May 2025, the MUA requested that all employees, including CSO's be added to the scope of the agreement. This was first time the union raised this - over six months after bargaining commenced in November 2024.
There has been no formal representation of CSOs during this process, and the current log of claims does not contain anything specific to them.
SeaLink has consulted directly with the four permanent part-time CSOs, all of whom confirmed they do not wish to be included in the EA. Of the two casual CSOs, one is already captured under the EA by virtue of their dual casual Deckhand/Marshall contract. The other remains a casual backup only and has not raised a position on inclusion.
I cannot see any reason to include CSOs in the EA as they are land-based and work
If CSOs were to be included in the EA because they provide a crucial service for the operations, the same could be said for the following land-based positions that are not included in the scope order but provide an equally important role to operations:
(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.
(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.
"[78] For s.238(4)(b), the Full Bench in United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009 (UFUA v MFESB) stated at [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."
[79] In AMWU & Ors v Shinagawa Refractories Australasia Pty Ltd [2011] FWA 5935, Sams DP stated to similar effect that it was necessary to consider "the current state of the negotiations and the reasons why the proposed order would promote fair and efficient bargaining." In that matter, the state of bargaining was described as a "stalemate": at [26].
[80] The AWU stated that where a minority of employees might have their terms and conditions "overwhelmed" by those employees in the majority, that tends against being fair or efficient. Reliance was made on Stadium Australia Operations Pty Ltd t/a ANZ Stadium re ANZ Stadium Casual Employees Enterprise Agreement 2009 [2010] FWAA 3758 at [35]:
"The real remedy for a subgroup of employees, such as the customer service employees in this case, who perceive themselves to be unfairly disadvantaged by a proposed agreement, is for one or more of their bargaining representatives to seek a scope order under s.238. Such an order can be sought if bargaining is "proceeding... unfairly" because "the agreement... will cover employees that it is not appropriate for the agreement to cover"."
[81] The AWU drew attention to similar observations made in Australian Salaried Medical Officers Federation v Commonwealth of Australia as represented by the Department of Human Services [2011] FWA 5920 at [24].
[82] Reliance was placed by the AWU on The Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476 (AWU v Kwinana) at [31], that "prima facie" weight might be given to the views of employees unless there is good reason otherwise. The passage in that decision was located under the heading "Overall exercise of discretion under s.238", having followed the preceding headings respectively addressing s.238(4)(b) and s.238(4)(c). It appears from the structure of the decision that the discretion referred to was the Commission's satisfaction of the matters in s.238(4)(d), being whether it is reasonable in all the circumstances to make the order.[4]
[83] That particular passage in AWU v Kwinana was recently considered by the Full Bench in CEPU & ors v Utilities Management Pty Ltd [2022] FWCFB 42 (CEPU v Utilities Management). In that latter decision, the majority (Hatcher VP and Bissett C) observed[5] - with whom Colman DP generally agreed on this aspect[6] - that there "are (at least potentially) two decision-making steps required under s 238(4)." The first is being "satisfied" of the matters in s.238(4)(a) - (d). The second, which is dependent on the first step, is the overall discretion signified by the word "may" in the chapeau to s.238(4).
[84] In relation to AWU v Kwinana, the majority in CEPU v Utilities Management observed it "arguably went somewhat further" by the statement "the preferences of employees as to the appropriate collective should be respected unless there is some good reason under the legislation to decide otherwise", when compared to what was stated by the Full Bench in UFUA v MFESB at [53]. At UFUA v MFESB at [53], the Full Bench stated:
"The legislative scheme supports collective bargaining principles and the Fair Work Act encourages freedom of association and collective bargaining. It may be implied from the legislative scheme that the collective choice of employees is significant. It must be said, however, that while weight should be given to the views of the employees potentially affected, it may be that a proper consideration of the matters specified in s.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."
[85] The majority concluded that it was "sufficient to say for present purposes that the required consideration under s 238 of the need to facilitate good faith collective bargaining will necessitate giving significant weight to the collective views of employees as to their preferred coverage scope". Colman DP considered that the Commission is required to afford the collective views of employees "appropriate" weight, rather than "always" significant weight. I do not consider there is necessarily a practical difference between the stated positions, as I do not read UFUA v MFESB or s.238(4) as standing for the proposition that there is a general rule that the views of employees will always be given "significant" weight. The particular weight that ought to be given to those views in a particular case will necessarily turn on the circumstances of that case upon a proper consideration of the matters specified in s.238(4) and (4A): UFUA v MFESB at [53], above. In circumstances, that may well be significant.
[86] However, in relation to the satisfaction of the specific criteria in s.238(4)(b), I do not consider that the views of employees, without more, determines consideration of the criterion in s.238(4)(b) as submitted and I do not understand the Full Bench in AWU v Kwinana to have said otherwise. While the preferences or views of employees may inform, in appropriate cases, the assessment of whether bargaining might become more "efficient" or "fairer" if the proposed scope order is made, the assessment of whether either of those outcomes will be promoted is necessarily a matter for the Commission to be satisfied about taking into account any matters relevant to the case at hand. The Full Bench in AWU v Kwinana gave examples[7] of an impasse in bargaining because of scope or demarcation issues where it considered that the views of employees are likely to inform the question of whether an order might promote more efficient bargaining. The views of the employer might similarly inform that inquiry. (To be clear, the views of employees are separately capable of being relevant in s.238(4)(c), s.238(4)(d) or even for the overall exercise of discretion required by the word "may" in the chapeau of s.238(4) and I also consider them in that context below.)
[87] Dealing next with the criterion in s.238(4)(c) that the proposed group is "fairly chosen", the Full Bench in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union & Ors [2012] FWAFB 2206 (Cimeco) stated it is relevant that the selection of an identifiable group of employees has a degree of objectivity - it is not arbitrary or subjective or discriminatory.[8] While Cimeco concerned s.186(3) & (3A), I consider the same relevant considerations apply to s.238(4)(c) & (4A). The interests of employees to be included in the proposed scope are relevant, as are the interests of the excluded employees and the employer.[9] The interests of the respective parties are likely to be informed by the views of the parties.
[88] In assessing whether the group proposed to be specified in the scope order is "fairly chosen", the Commission is required to "take into account" of the factors set out in s.238(4A) where the proposed group does not cover all employees. Those factors are whether the group is "geographically, operationally or organisationally distinct". In Cimeco at [19], the Full Bench stated:
"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." (original emphasis).
[89] The construction of the statute does not give preference to agreements that cover as much of an enterprise as possible[10] and, correlatively, I consider there is no statutory presumption for the reverse.
[90] The parties drew attention to various cases in the matter before me. It appears the principles in them were largely uncontroversial between the parties (although the application of those principles was in dispute). Suffice to say, the inquiry is necessarily informed by the particular circumstances of the case at hand.
[91] Geographical distinctness is concerned with the geographical separateness of the employer's various worksites or work locations, rather than a separation of workplaces within the same worksite.[11]
[92] The term "operational" signifies an "industrial or productive activity".[12] The fact that some employees perform a different role, task or function to that performed by other employees is not of itself a sufficient basis upon which a finding of operational distinctness can be made,[13] although this will be guided by the circumstances of the case.
[93] In determining organisational distinctness, the following propositions stated in Aerocare Flight Support v TWU & ASU [2017] FWCFB 5826 at paragraph [27] are applicable (citations omitted):
[94] The requirement to "take into account" the factors stated in s.238(4A) does not dictate a conclusion from those factors that the proposed group is or is not "fairly chosen". As stated in QGC v AWU at [43] "where the group is not geographically, operationally or organisationally distinct, it is necessary to identify what, if any, factors outweigh the absence of such characteristics" such that the group might be fairly chosen. While those observations were made in the context of an application for a majority support determination under s.237, I consider them applicable here. The weight ascribed to particular factors will necessarily be informed by the case at hand - in QGC v AWU, the absence of geographical, operational or organisational distinctness was significant.
[95] As the Full Bench in UFUA v MFESB stated at [55], more than one group may be "fairly chosen". In this respect, the majority in CEPU v Utilities Management noted that while competing coverage proposals have been considered "in a number of cases" as a relevant matter, the consideration of competing coverage proposals is not a matter to be given "determinative" weight[14].
[96] Where the group proposed in a scope order application is found to be fairly chosen, this suggests some comparison might be appropriate with the group that would exist if the application was refused. The Full Bench in UFUA v MFESB noted that s.238(4)(b) invites consideration of whether the proposed grouping "at least be fairer or more efficient or both than it would be if no order were to be made". So much necessarily follows from the requirement that the proposed order would "promote" the fair and efficient conduct of bargaining.
[97] I similarly consider that the consideration of the proposed group's "distinctness" required by s.238(4A) would ordinarily be assessed against the group that would exist if no order were made. It does not follow, however, that the proposed group is not fairly chosen because the group that would exist if no order were made is better chosen. As stated in UFUA v MFESB, more than one group might be fairly chosen.
[98] In this sense, the grouping that is more fairly chosen would be a relevant factor to be given appropriate weight in the circumstances. If that comparison is not directly required - or permitted - by the terms of s.238(4)(c) and (4A), it would appear relevant to the assessment of reasonableness in s.238(4)(d) or to the overall discretion contemplated in the chapeau to s.238.
[99] In CEPU v Utiltities Management at [69], it is stated that "No part of s 238(4)(c) requires consideration of whether any proposal for coverage of an agreement other than that contained in the scope order sought by the applicant is "fairly chosen"." I do not disagree, although I do not consider that statement is intended to convey that competing coverage scopes cannot be considered. In many cases, it may be appropriate to do so. If, contrary to my understanding of s.238(4)(c), competing coverage scopes are not permitted to be considered under s.238(4)(c), they may be relevant under s.238(4)(d).
[100] As to the requirements of s.238(4)(d), the Commission must be satisfied that "it is reasonable in all the circumstances to make the order". What those circumstances are will necessarily be dictated by the case at hand. As the majority in CEPU v Utilities Management observed, it requires the exercise of a broad discretion, subject only to taking into account all the relevant circumstances. The discretion should not be conflated with the overall discretion at the second step of the decision-making process. [15]
[101] A relevant circumstance for the inquiry under s.238(4)(d) is likely to be the views of employees. As noted above, those views might be afforded significant weight in appropriate cases. As noted above, I would also consider the inquiry required by s.238(4)(d) might require consideration of competing scopes. An example where this might be relevant is where two alternative coverage scopes are primarily in issue - one being the subject of the proposed order, the other being the scope proposed by the other party under the current bargaining that might remain if there were no order. Where, for example, it was found that both proposed scopes were fairly chosen, it might be the case that one of the scopes only faintly passed that standard but the other clearly did so, possibly on basis that one grouping was far more distinct (geographically, operationally or organisationally) than the other."[16]
Well, I think I'm making it very clear that if you are seeking to include CSOs, then they should have been mentioned prior to 1 May, when bargaining commenced in November. We reliably can say through the minutes of meetings that there was no mention of including CSOs until that meeting on 1 May?---I tend to disagree.
Why are you now wanting to include CSOs when you were silent on the subject for five or six months?---To represent our members at the work site.[19]
[2] Digital Hearing Book (DHB), pages 14-15.
[24] PN149-150; Woodside Energy Ltd v The Australian Workers' Union [2023] FWCFB 44.
[25] The Australian Workers' Union v BP Refinery Pty Ltd (Kwinana) [2014] FWCFB 1476 at [12].
Printed by authority of the Commonwealth Government Printer
Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division - Tasmanian Divisional Branch
SeaLink Tasmania Pty Ltd [2025] FWC 2334