Fair Work Act 2009

s.238 - Application for a scope order

[1] United Voice (UV) applies to the Fair Work Commission (the Commission) for a scope order in relation to a proposed single-enterprise agreement with MSS Security Pty Ltd T/A MSS Security (MSS). The proposed single-enterprise agreement is a replacement agreement to the MSS Security Qld Enterprise Agreement 2011-2014 (the 2014 Agreement).

[2] On 11 November 2019, an amalgamation took effect between UV and the National Union of Workers, creating the United Workers' Union (the UWU).[1] The UWU has had carriage of this application since this time.

[3] MSS is a national security company providing security services across all market segments. The negotiation of the replacement for the 2014 Agreement has some history. The approval of a replacement agreement in 2015 was subsequently quashed on appeal.[2] An application for a majority support determination in relation to employees working in the Metro South Health Services made in December 2017 by United Voice was dismissed.

[4] Negotiations have proceeded on the basis that the replacement agreement is proposed to cover all employees of MSS in the State of Queensland who perform work in the classifications in the proposed agreement, which effectively replicate the Security Industry Award 2010. By the present application, UWU seeks a scope order for a proposed agreement to cover only employees who perform work at defence sites in the State of Queensland described as locations where MSS is contracted by the Australian Government Department of Defence to provide security services.

[5] The application is opposed by MSS which seeks to maintain the coverage of the 2014 Agreement which covers all of its employees in the State of Queensland who are employed in classifications provided for in the 2014 Agreement and its Schedules.

[6] A hearing was conducted. Evidence in support of the Application was given by:

• Mr Carl Ratana, Organiser for the UWU;[3] and

• Mr Joshua Roney employed by MSS as a Team Leader at the RAAF Amberley Base.[4] and

[7] Evidence for MSS was given by:

• Mr Michael Matthews, General Manager - Defence; [5] and

• Mr Michael Badger, Operations Manager.[6] and

[8] After considering the evidence and submissions I have determined to refuse the scope order and to dismiss the application on the basis that I am not satisfied that the making of the order will promote the fair and efficient conduct of bargaining. My reasons for doing so are set out below.

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

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.

(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.

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.

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

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

(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."

[10] Section 238 of the Act is directed to the fair and efficient conduct of bargaining and 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.

[11] The precondition to the exercise of the discretion requires that the Commission is satisfied that the making of the order will promote the fair and efficient conduct of bargaining.[7] It is not necessary that a finding be made that the bargaining is inefficient or unfair. However, 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.[8]

[12] 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.[9]

[13] The efficiency of bargaining may be affected by the duplication created in bargaining for two agreements when compared with a single agreement[10] and there is no statutory bias in favour of an enterprise agreement that covers as much of the employer's enterprise as possible.[11]

[14] The views of employees are a significant factor when considering reasonableness and the views of employees carry greater significance than the subjective views of the employer although an alternate conclusion may be appropriate in particular circumstances.[12]

[15] 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."

[16] The Commission must also be satisfied that the group of employees specified in the proposed scope order was fairly chosen. In this regard, s. 238(4)(c) must be read in conjunction with s.238(4A), which is similarly worded to ss.186(3) and (3A), in relation to the approval of enterprise agreements. The Explanatory Memorandum to the Fair Work Bill 2009 states in relation to the question of whether a group of employees is "fairly chosen" for the purposes of considering whether an enterprise agreement should be approved that:

"It is intended that in assessing whether a group of employees is fairly chosen, FWC might have regard to matters such as:

• the way in which an employer has chosen to organise its enterprise; and

• whether it is reasonable for the excluded employees to be covered by the agreement having regard to the nature of the work they perform and the organisational and operational relationship between them and the employees who will be covered by the Agreement."[13]

[17] In relation to these provisions a Full Bench of the Commission held in Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd[14] that the Commission is not required to make a positive finding or express satisfaction that a group is geographically, organizationally or operationally distinct, but rather that the Commission take this into account. In Aerocare Flight Support Pty Ltd v Transport Workers' Union[15] a Full Bench of the Commission set out relevant principles in relation to finding whether a group of employees are fairly chosen as follows:

"[26] The following principles may be gleaned from earlier decisions concerning s 186(3)-(3A):

• the expression "the group of employees covered by the agreement" in s 186(3) refers to the whole class of employees to whom the agreement might in future apply, not the group of employees who actually voted on whether to make the agreement;

• the references in s 186(3) and (3A) to whether "the group of employees covered by the agreement was fairly chosen" are, in the case of a non-greenfields agreement made with a group of employees, particularly a small group, references to a choice made by the employer;

• a Member's decision as to whether or not they are satisfied that the group of employees covered by an agreement was "fairly chosen" involves a degree of subjectivity and the exercise of a very broad judgment or value judgment, and in a broad sense can be characterised as a discretionary decision;

• in an appeal from a decision of that nature, it will be necessary for the appellant to demonstrate error in the decision-making process of the type identified in the House v The King in order for the Full Bench to set aside the decision;

• once it has been determined that an agreement does not cover all of the employees of the employment, 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.

[27] Additionally, guidance may be obtained as to how to interpret and apply the expression "organisationally distinct" in s 186(3A) from decisions concerning the use of the same expression in ss 237(3A) and 238(4A). The following propositions are relevant:

• the term "organisation" refers to the manner in which the employer has organised its enterprise in order to conduct its operations;

• the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct;

• however the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function; and

• most businesses have organisation structures which will allow organisationally distinct groups to be identified."[16]

[18] The case law dealing with the approach to considering an application for a scope order was comprehensively summarised by Deputy President Sams in "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union; Australian Workers' Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited t/a Qantas as follows:

"[165] Perhaps a useful starting point is the general approach framed by the Full Bench in BRB Modular v AMWU in the following passage found at paras 53-54:

[53] The scope of an agreement is an open question in many enterprise bargaining exercises. It is frequently a topic of competing claims, discussion and negotiation. Rarely will it be possible to say that one scope proposal is wrong and another correct. There may be justifications for a preference one way or another. Hence it is usually the case that the scope is left to the bargaining parties to determine in the context of the overall enterprise bargaining framework. The reasonableness of making a scope order should be considered against that background.

[54] As we have said above, a consideration of reasonableness requires a full consideration of all of the circumstances and a level of satisfaction that the order requiring the parties to adopt a particular scope of an enterprise agreement in their ongoing bargaining is objectively justified. We are not satisfied that the applicant has established that it is reasonable in all the circumstances to make the scope order. We are satisfied that bargaining can continue and it remains open to the parties to continue to consider the scope of the agreement in the overall context.

[166] A number of other general principles have been developed in the body of jurisprudence dealing with scope order applications. These include the following:

1. By the inclusion of the word 'may' in the heading to s 238(4) of the Act, the Commission is to exercise its discretionary powers after determining whether all of the criteria in ss (a)-(d) are satisfied. As all of the criteria must be satisfied (by use of the disjunctive word 'and' separating each criterion), it must follow that if one of the criterion is not met, then a scope order cannot be made. The converse is true; that is, if all of the ss (4) criteria are met, the Commission may make a scope order.

2. The scope of a proposed enterprise agreement is a matter that can itself be the subject of bargaining by the parties for their agreement. In 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, a Full Bench of Fair Work Australia (as the Commission was then styled) said at para 21-22:

[21] The second difficulty is that there is Full Bench authority, not referred to by the majority in Ford, which strongly suggests the scope of a proposed agreement can be a proper subject for bargaining under the Fair Work Act. In Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd (Coca-Cola) a Full Bench considered an appeal against the refusal of a member of Fair Work Australia to make a scope order. In the course of its decision the Full Bench noted that there was disagreement between the negotiating parties as to the scope of any agreement or agreements to be made. The situation is concisely set out in this paragraph:

"[32] Against this background, we turn to consider the competing interpretations of a s.237(2)(b) majority support determination, which arise because the LHMU and Coca-Cola have different bargaining positions as to the number and scope of agreements which should be made in relation to the relevant employees. The LHMU seeks a single agreement covering all employees, while Coca-Cola seeks three agreements covering various specified groups of employees. None of the agreements cover one small group of employees. There is a dispute as to the scope of the agreement or agreements to be made."

[22] Despite the disagreement as to scope, there is no indication in the decision that because of that disagreement bargaining had not commenced. To the contrary, the Full Bench approached the appeal on the basis that a scope order might be applied for after bargaining had commenced.

3. Consideration of the views of employees may be taken into account. However, this does not mean that such views are given any greater weight than the other factors to be considered by the Commission under the other subsections. In UFU v MFESB, the Full Bench of Fair Work Australia said at para 53:

[53] As recorded above, it was submitted by the UFUA and the ACTU that particular weight should be given to the views of employees because of, for example, legislative policy imperatives concerning freedom of association. While we generally agree with that submission it requires some qualification. The power to make a scope order is predicated on disagreement between bargaining representatives. The discretion to resolve that disagreement is to be exercised as provided for in ss.238(4) and (4A). While those provisions do not assign priority to the views of employees, in applying the provisions it is necessary to have regard to the overall context. The legislative scheme supports collective bargaining principles and the Fair Work Act encourages freedom of association and collective bargaining. It may be implied from the legislative scheme that the collective choice of employees is significant. It must be said, however, that while weight should be given to the views of the employees potentially affected, it may be that a proper consideration of the matters specified in ss.238(4) and (4A) in a particular case may make it appropriate to make a scope order contrary to the views of the employees potentially affected. (My emphasis)

4. It is improper to use a scope order application to address a bargaining representative/s' good faith bargaining concerns, which are more properly considered under s 228 of the Act. In BRB Modular v AMWU a Full Bench of the Commissions said at para 52:

[52] We have made the observation above that the major complaints raised by the AMWU go to the conduct of the Respondent in the negotiations and that they are, in essence, allegations that the Respondent was not engaging in good faith bargaining. It is apparent, therefore, that the Appellant was attempting to use the vehicle of a scope order application to address good faith bargaining concerns. It was an improper vehicle to ventilate those concerns.

5. The onus rests on the moving party to demonstrate that the making of a scope order will encourage and facilitate bargaining which is fairer and more efficient than if no order is made. In UFU v MFESB, the Full Bench said at para 55:

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

6. Issues of mere inconvenience or preference with the bargaining process are not decisive to whether a bargaining process is fairer or more efficient. In Shinagawa I said at para 28:

[28] Mr Stewart deposed, and it was not disputed, that the negotiations for the 2008 agreements were conventional, without any disputation or angst over the outcome of two separate agreements. Moreover, the respondent's management in 2005 had made no complaint when the two agreements concept was proposed. In my view, this history relevantly demonstrates that any perceived difficulties arising from two agreements on site, is largely speculative and is probably little more than an inconvenience, rather than a real impediment to securing appropriate and fair industrial outcomes.

See also: Royal District Nursing v HSU at para 53 and Tasmanian Water at paras 115-120.

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.

8. The history of bargaining between the parties is a relevant consideration to whether a scope order should or should not be made (status quo). In TWU v Chubb, Asbury DP said at para 69:

[69] I have also given consideration to the following circumstances, which in my view, weigh against the making of a scope order in this case. The status quo is that there are separate agreements to cover each of Chubb's Queensland Depots. The TWU is seeking to alter the status quo. I do not accept the argument that because Chubb has not filed a competing application for a scope order, that less weight should be placed on the maintenance of the status quo. This is not a case where the issue of the scope of the proposed agreement is causing disputation and has stalled the negotiations. On the case advanced by the TWU, the granting of a scope order will increase disputation by strengthening the capacity of Nerang AVOs to take protected industrial action, presumably with the involvement of Moorooka AVOs.

See also: Shinagawa; TWU v Chubb at 26, NUW v Linfox at 60, FSU v BWA at 101-104 and Tasmanian Water at 157-158.

9. Seeking leverage by increasing the bargaining power by weight of numbers is not a valid basis to make a scope order. In TWU v Chubb, Asbury DP at 60:

[60] In relation to s.238(4)(b), I am unable to be satisfied in the circumstances of this case that making a scope order will promote the fair and efficient conduct of bargaining. It is apparent from the evidence that the TWU is seeking a scope order principally for the purpose of strengthening the bargaining position of Nerang AVOs by reducing the capacity of Chubb to use AVOs from Moorooka to cover any periods of protected industrial action taken by Nerang AVOs. The view of the TWU and its members that this will increase the fairness of bargaining is subjective and I do not accept that enhancing the bargaining strength of Nerang AVOs to assist them to take more effective protected industrial action against Chubb, is a valid basis upon which I could find that bargaining would be fairer or more efficient if a scope order was made.

[19] I turn now to the application of the legislation and the principles established in relevant cases, to the present case.

[20] The UWU submits that it is a bargaining representative for the proposed agreement and is entitled to represent the industrial interests of employees engaged in the contract security industry. A single-interest employer authorisation is not in operation in relation to the proposed agreement.

[21] In its position as a bargaining representative, the UWU has concerns that bargaining is not proceeding efficiently or fairly and this, the UWU believes, is because the scope of the proposed agreement is not appropriate. The UWU provided a notice of concerns to MSS and has provided a reasonable time for MSS to respond to those concern. UWU submits that MSS has not responded to that notice of concerns appropriately.

[22] UWU submits that it is, and has been, meeting the good faith bargaining requirements during the course of bargaining.

[23] In relation to the fair and efficient conduct of bargaining, the UWU submits that it is not necessary that the Commission make a finding that bargaining is in fact proceeding unfairly or inefficiently. It is enough if the Commission is satisfied that the making of the scope order will make bargaining at least fairer or more efficient than it would if no order were made.

[24] One of the difficulties faced by the UWU in bargaining for the proposed agreement has been the inability to clearly identify the workers who will be covered by the agreement. The UWU does not have access to the list of contracts held by MSS and the sites it services that would fall within the coverage of the proposed agreement.

[25] The UWU submits that the order will assist in ensuring that a discrete and identifiable work group is covered by the proposed agreement. Having a clear and discrete work group will enable the UWU to appropriately communicate with "all relevant workers". This creates fairness and efficiency and, specifically, make bargaining more fair or more efficient than without the order.

[26] In closing submissions, the UWU submitted that the issue of aggregated rates of pay is, in practice, unique to Defence employees. Aggregate rates of pay have been a sticking point throughout bargaining creating inefficiency. Because aggregate rates of pay are, in practice, unique to Defence employees, the inefficiency created in bargaining can therefore be linked to the scope of the agreement.[17]

[27] The group specified in the scope order sought by the UWU does not extend to all employees of the Respondent. The UWU accepts that the Commission must have regard to whether that group is fairly chosen. The UWU submits that the group it proposes to be covered by the proposed agreement is fairly chosen in that the group is geographically, organisationally and operationally distinct.

[28] In terms of geographically distinct, the employees conduct work on Defence bases within the state of Queensland. Further, the group is organisationally distinct. Employees that perform work on Defence contracts are required to have baseline security clearance, meaning that they are not immediately interchangeable with other employees of MSS. The group also performs tasks that make them operationally distinct from the remainder of the work group.

[29] UWU submits that there is evidence of the group of employees identified being supportive of the scope order being issued and that negative implications for those employees outside the group should be minimal. The history of industrial arrangements with MSS shows that site and industry specific agreements are not foreign to it as it has bargained with other "fairly chosen" groups of employees in the past.

[30] Mr Roney is employed by MSS as a Team Leader. At the time of making his statement in these proceedings Mr Roney worked at the RAAF Amberley base and has done so since April 2017. Mr Roney has not previously worked at any other site at which MSS provides security services and has not previously been employed by a security services company.[18] Mr Roney is a member of the UWU and is part of the bargaining team in relation to the proposed agreement. This is the first bargaining process that Mr Roney has been involved in[19] and, after hospital employees ceased bargaining, Mr Roney is the only employee bargaining representative[20].

[31] In mid-2018, separate logs of claims were developed by UV in respect of its members engaged in hospitals and Defence sites. Mr Roney was involved in developing the log of claims related to Defence sites. From Mr Roney's perspective, the only site involved in formulating the log of claims was the Defence site at which Mr Roney works.[21]

[32] Mr Roney attended bargaining meetings either in person or via teleconference on 8 November 2018, 15 February, 27 March, 22 May, 5 June and 18 July 2019. Throughout bargaining Mr Roney has not had contact with any members of UWU outside of hospitals or Defence.[22]

[33] Throughout bargaining and particularly since the beginning of 2019, UV has "encouraged"[23] the adoption of a separate enterprise agreement to cover employees of MSS engaged at Defence sites in Queensland. MSS has refused to negotiate based on a stand-alone agreement, preferring an agreement to cover all Queensland based employees. The encouragement of the separate agreements has been on behalf of UWU members.[24] Mr Roney conceded that this is members engaged at the RAAF Amberley base with the addition of one delegate at the RAAF Townsville base.[25]

[34] It is Mr Roney's view that bargaining has been limited because of the "ongoing dispute" concerning the scope of the agreement. Since early 2019, all employee bargaining representatives engaged in the bargaining have been engaged at Defence sites. Employees at Defence sites make up a "large portion"[26] of the MSS Queensland workforce. There are approximately 34 members of UWU at RAAF Amberley base.[27] Mr Roney considers that the current circumstances limit the ability to negotiate conditions suited to the particular requirements of employees engaged at Defence sites. The following exchange occurred with the Commission:

"What I am wondering is what are - is your issue that MSS is sitting there with your log of claims and saying, 'No, no, no' or is your issue that when you want to talk about something defence-specific, there's some other issue that's general?---Well, one particular thing, your Honour, is around the log of claims, around the aggregate rates. Obviously MSS have got to take into account the broader impact on the business for other non-defence guards because their thoughts are separate to that again, so the way I look at it, I find it very difficult to try to take into account everybody else when I've never worked outside of a defence guarding duty and - - -

But aggregate rates will depend on rosters, wouldn't they?---Yes, your Honour.

So, for all you know, there are other sites working the same kinds of rosters as are worked on defence sites?---There could be, I'm not sure, your Honour"[28]

[35] Mr Roney's evidence was that the work of MSS employees engaged at Defence sites is "distinct"[29] from the work performed by MSS employees at different client sites. Mr Roney clarified during cross-examination that the distinction he refers to relates to the importance placed upon the duties at defence establishments.[30]

[36] Those "distinct" duties have involved unwanted interactions with military working dogs and security exercises in which Defence personnel have engaged in a live exercise without the knowledge of MSS staff. The high-risk context of Defence contracts differentiates, in Mr Roney's view, the work done by MSS staff at these sites from other client sites. Mr Roney originally accepted during cross-examination that none of these potential risks has occurred whilst Mr Roney has been on-site.[31] However, Mr Roney's went on to state that interaction with military working dogs occurs nearly every week.[32] Mr Roney also gives evidence that he has had personal experience on site where a "motivated group" (perhaps activist or issues group) has arisen.[33]

[37] A further distinguishing feature of work on Defence sites is the potential consequences of mistakes. Consequences for a mistake can include termination of employment and a significant "abatement" to MSS of up to $60,000 by Defence.[34] Under cross-examination Mr Roney accepted that he does not have any other reference point upon which to base the assertion of distinctiveness.[35]

[38] In response to questions as to what it was about the scope of the agreement that was leading to bargaining being inefficient or unfair, Mr Roney said that MSS has simply gone through the Union's log of claims and "crossed them off" until there is one item left. Mr Roney had the following exchange with Ms Lock for MSS in cross-examination:

MS LOCK: I suppose. What part of the scope of agreement, the current scope that's being negotiated, is not allowing the bargaining process, in your words, to be efficiently bargained?---I just feel that the time frame of all of this is quite extraordinary, unless this is normal. You know, to be carrying on for the last 12 months at least just to go through some logs of claims and things like that, in my view, is a very inefficient method of bargaining.

Sure?---That's just from a first time person looking in. I just find this whole process extraordinary, to be fair.

I will go back to the question: what part of the scope or what part of the agreement is causing the inefficiency, the length of time, would you say?---Well, I believe - I haven't got the log of claims on me, so I apologise - but it's all discussions around the aggregate rate and things like that. I suppose it's technical information that needs to be, you know, ascertained.

But there are conversations, there are regular conversations around the elements of the log of claims?---To me, no. Perhaps between the union and yourselves, perhaps there is, but, to me personally, no.

But you're sitting at a bargaining table when the conversations are being had and you've seen the emails that have been going backwards and forwards in relation to the questions that have been raised?---Some, not all.

You do verify that there's been bargaining?---There's no doubt that there's been bargaining. If you're talking about the efficiency of it, I don't think it's been very efficient at all.

What elements have not been efficient, I suppose is what I'm trying to clarify?---The time frame, I feel that MSS are not getting back to the union and to me personally - perhaps from the union's perspective - about, you know, about different calculations and things like that and I just find it could have been a lot more streamlined. It just takes time and perhaps it's just my personality that I think it's just not taking enough - it's not being - yes, it hasn't gone through very quickly at all."[36]

[39] Mr Ratana has been an Organiser with United Voice (and now UWU) since September 2009. Mr Ratana is the Organiser responsible for MSS in South East Queensland. Mr Ratana has been involved in negotiations for the proposed single-enterprise agreement since 2014.

[40] In early 2018, representatives of UV and MSS met to recommence discussions for a replacement agreement. Despite some initial reluctance, bargaining did commence with meetings held on 9 October, 8 November and 18 December 2018.

[41] Mr Ratana states that in early 2019, MSS lost its contract to provide security services to Metro South Hospital and Health Service, being the main contract held by MSS for hospital sites. The practical effect of this decision is that bargaining for hospital sites had no utility, at least from the perspective of United Voice. Since this time United Voice, and now UWU, has focussed its attention on bargaining for Defence sites. Parties have met for bargaining on 15 February, 27 March, 22 May, 5 June and 18 July 2019. Mr Ratana has attended each of these bargaining meetings.

[42] Mr Ratana understands from his discussions with members at Defence sites that MSS employees undertaking this work are required to hold particular clearances, and that it is the employees' view that they face risks not faced by other MSS employees.[37]

[43] It is Mr Ratana's view that bargaining has not proceeded efficiently and the main reason for this is the scope of the agreement. Mr Ratana accepts that there has been discussions concerning all items on the Defence log of claims, although that discussion may have been an outright 'no' in relation to some claims.[38]

[44] The principal issue on which the parties are at an impasse is "aggregated rates" of pay. Aggregated rates are only pursued in relation to employees engaged at Defence sites, working an even time roster. Discussions concerning this issue have, in Mr Ratana's view, been misinterpreted by the representatives of MSS meaning that the claim has not been properly considered by MSS. Mr Ratana accepts, however, that calculations he described as "misleading" have been rectified this has since been rectified.[39] Another issue relates to the application of hours to overtime. Mr Ratana accepted that there is now case law which agrees with the manner in which MSS deals with this matter. Mr Ratana also accepted that proposed agreement subject of negotiations includes a reference to aggregate rates of pay.

[45] On 3 June 2019, UV corresponded with MSS concerning this issue as follows:

"United Voice refers to the above matter and the most recent bargaining meeting between the parties on 22 May 2019.

In the course of the meeting, a proposal was tabled by MSS Security for an increase to wages of 2.88% per annum, or the "Fair Work increase", whichever is the greater.

United Voice is prepared to consider this wage offer, but only as part of a package which sees the retention of aggregate rate arrangements.

Should such a package be acceptable, United Voice believes the parties will be close to achieving in principle agreement."[40]

[46] Mr Ratana does not say whether MSS responded to this correspondence. Mr Ratana concedes that MSS has not indicated that it will remove aggregate rates in relation to existing staff members in receipt of an aggregate rate.[41]

[47] According to Mr Ratana, the Commission granting the order and removing Defence employees from the scope of the proposed single-enterprise agreement will remove "roadblocks" and the replacement agreement could "proceed without further delay"[42].

[48] Mr Ratana is not able to say how many employees would be covered by an agreement with scope proposed by UWU but stated that there are approximately 60 members of UWU engaged at Defence sites by MSS in Queensland.

[49] The issue of scope has been raised "regularly" by United Voice during bargaining. Mr Ratana is aware that on 14 August 2018, United Voice wrote to MSS seeking a response concerning a separate agreement for hospital sites. The letter also foreshadowed that United Voice may seek a stand-alone Defence agreement. The letter was sent by Mr Gary Bullock, Branch Secretary, addressed to Mr Nick Samios, Executive General Manager - Qld, MSS Security, and stated, in part, as follows:

"United Voice has proposed a separate agreement to cover workers engaged at Hospital sites in Queensland.

I seek your response, in writing, to this proposal.

It is the view of the Union that the limited scope of the "Hospitals" agreement would facilitate the efficient conduct of bargaining. Based on our discussions with workers, those covered by the proposed agreement would have different interests and claims than the broader workforce. An agreement with a limited scope would by its nature limit the log of claims and the number of employee bargaining representatives required to attend bargaining meetings. Communications to the relevant workforce, by all interested parties, would also be more easily facilitated under an agreement with a more limited scope.

I also foreshadow that United Voice may additionally seek a stand-alone agreement for workers engaged at "Defence" sites for similar reasons. We do not seek your response to the Defence proposal at this time."[43]

[50] Mr Samios responded to Mr Bullock by letter dated 20 August 2018 and stated:

"It is MSS Security (sic) desire to have one agreement for the state of Queensland which will include hospitals and all other sites.

We are happy to discuss this further in the proposed meetings moving forward concerning the Enterprise Agreement for Queensland.

No doubt we will have further discussions in the upcoming meeting proposed on Tuesday the 4th of September 2018."[44]

[51] On 11 July 2019, United Voice again wrote to MSS setting out its concerns about bargaining. That letter, sent by Mr Bullock and addressed to Mr Samios, stated:

"United Voice continues to hold concerns about the bargaining process for an agreement between our union and MSS.

Some of these concerns have been raised with you throughout negotiations, but as yet have not been resolved satisfactorily. We are summarising these concerns in formal correspondence, in an endeavour to resolve them with you.

United Voice raised this matter with you in correspondence dated 14 August 2018. The matter was not resolved.

Since that correspondence, the identifiable work that was anticipated to be performed in 'hospitals' is now not expected to be covered by the proposed agreement under consideration.

Further, the foreshadowed proposal for a stand-alone agreement for 'Defence' sites has been raised throughout negotiations and has not been resolved.

Throughout negotiations, the parties have to date been unable to agree on matters pertaining specifically to employees engaged on defence contracts.

It is our view that the bargaining process is not proceeding efficiently because the agreement proposed by MSS is to cover employees at Defence sites as well as all other sites throughout the state of Queensland.

Further, negotiations are not proceeding fairly because issues of direct relevance to employees engaged on defence sites are not receiving sufficient consideration.

Moreover, there is expected to be a disproportionate number of employees not working on defence sites, voting on the agreement.

To date, United Voice believes that MSS has not given genuine consideration to United Voice proposals regarding defence site working arrangements, including the proposal for a separate agreement.

We request that you now give genuine consideration to our proposal for a separate agreement to apply at defence sites, in order that negotiations can proceed and be concluded efficiently and fairly.

United Voice has sought information from you regarding the composition of the proposed aggregate rate subject of the negotiations to date.

This information has been sought by way of written correspondence dated 6 March 2019 and throughout negotiation meetings.

To date, we are not satisfied that MSS has provided accurate details of the composition of the proposed aggregate rate. This information is critical for bargaining, not least because it is relevant for the "BOOT".

We request that you provide accurate and comprehensive details of the composition of the proposed aggregate rate and its relationship to the 'BOOT'."[45]

[52] In response to questions from the Commission, seeking to clarify the "impasse" Mr Ratana refers to, Mr Ratana said that UWU and MSS have reached agreement on how the aggregate rate is calculated but remain in dispute about the employees to whom the aggregate rate should apply.[46]

[53] The concerns expressed in United Voice's letter of 11 July 2019 were discussed at a bargaining meeting on 18 July 2019. The parties' positions concerning the matter of scope remained unchanged. Mr Ratana accepts that MSS has endeavoured to continue holding bargaining meetings during the course of these proceedings and that some bargaining meetings have occurred.[47]

[54] Mr Ratana gave the following evidence during cross-examination:

"United Workers Union currently don't know where MSS have all their employees and, in the past, when it has come to Form 18s being lodged in previous enterprise agreement applications, it's always deemed to be that there's been an influx of numbers who have had the opportunity to vote on this without prior - without United Voice's knowledge of these actual numbers and whereabouts they work."[48]

[55] Mr Ratana clarified this statement[49] and any inference that might be drawn from such a statement and said that:

"...MSS has never been very - or have never forth come with actual sites where employees are working, so it makes it very hard for us to have the application of - to bargain on behalf of all, as the default bargaining agent, on behalf of all security officers employed by MSS."[50]

[56] Mr Ratana conceded that the instances in which MSS has not been forthcoming was in previous negotiations, not in the present negotiations.[51] Mr Ratana confirmed that UWU has been negotiating on behalf of its members in relation to the proposed agreement.[52] Mr Ratana also confirmed that UWU has members that are not engaged in Defence work, with approximately 65% of UWU's members being engaged in Defence work.[53] UWU has not sought their views about this scope application.[54]

[57] MSS is a national security company providing contract security services that requires its employees to perform general guarding to highly specialised security. MSS is a substantial employer, employing approximately 6,500 employees at the time of submissions in this matter, with 1,200 employees working in Queensland. Later in its submissions MSS stated that it employs 818 employees throughout Queensland with the majority (564) employed under the 2014 Agreement. Of those 564 employees, 191 are employees engaged at a Defence site.

[58] MSS holds a number of government contracts, including a contract with the Department of Defence to provide security services throughout Queensland, the Australian Capital Territory and New South Wales.

[59] MSS does not dispute that UWU is a bargaining representative and may make an application for a scope order[55] or that a single-interest employer authorisation is not in operation[56]. MSS does dispute that bargaining is not proceeding efficiently or fairly and believes that the scope of the proposed agreement is appropriate. MSS also disputes that UWU has given a written notice setting out the concerns that bargaining is not proceeding efficiently or fairly.

[60] In relation to the notice requirements, MSS submits that it responded to the Union's correspondence and has otherwise been forthcoming in responding to requests for information. MSS has not made submissions as to why, specifically, the UWU has not complied with the notice requirements of the Act.

[61] MSS submits that the UWU has not met the good faith bargaining requirements. MSS appears to make this submission on the basis that the UWU has twice sought to bargain in respect of an agreement with limited scope and that it has not had a "consistent bargaining team attend bargaining meetings"[57]. MSS submits that UWU have not been bargaining to conclude an agreement. This is said to be evidenced by the approach of the Union outlined above. MSS maintains that it has been bargaining in good faith.

[62] MSS considers that the scope order will not promote the fair and efficient conduct of bargaining. MSS does not accept that bargaining specifically in relation to Defence employees is affected by scope and points to the evidence that the log of claims in relation to Defence employees have been considered, most of which are not unique to Defence employees. The order is sought not to promote efficient and fair bargaining but to enable efficiency within the USU's members.

[63] Aggregate rates and even time rosters have applied to Defence employees since the commencement of the contract. The UWU has not demonstrated how the making of a scope order will resolve bargaining in relation to this issue or make it more efficient. MSS maintains that the order will not mean that MSS will subsequently agree to the claim in relation to aggregate rates.

[64] When considered in the present state of the conduct of bargaining, bargaining is well progressed and to a stage where only one matter remains in contention; that is aggregate rates of pay.

[65] MSS disputes that the proposed group of employees is geographically, operationally or organisationally distinct. The log of claims purporting to be in respect of Defence employees is, in MSS' view, applicable to all employees (except for the Site Defence Allowance). Similarly, the base line clearance referred to by the UWU is a requirement that also applies to more sites than just Defence sites.

[66] Mr Badger has broad oversight over the MSS Queensland operations. Mr Badger does not have responsibility for the Defence contract for MSS. Mr Badger has worked in the security industry for his entire career.

[67] Mr Badger became involved in bargaining for the proposed agreement in September 2018. Subsequently, Mr Badger has attended bargaining meetings with Mr Samios, Mr Michael Matthews, General Manager Defence and Ms Sara Lock, then HR/IR Manager for Queensland. Mr Badger attended 8 such meetings between 9 October 2018 and 23 September 2019.

[68] In relation to Defence employees, the UWU relied upon a log of claims including 16 claims as follows:

"This log of claims is served on a "without prejudice" basis. United Voice is committed to ensuring through these negotiations that Security officers where MSS hold contracts at Defence Bases in Qld receive pay and conditions that are fair and reasonable.

Security officers working for MSS at Defence Bases protect vital community infrastructure, ensure public safety and are the first line of defence at high level threat areas. As such, they deserve pay and conditions that reflects this responsibility. United Voice is willing to work with MSS to educate clients as to why they need to properly fund existing contracts.

2. No conditions to be less than the Security Services Industry Award 2020

3. Site Defence Allowance (for Safe Base, Issuing Visitor Passes, Noise Level (RAAF),

4. Maintenance Allowance, (MSS making Staff wash Vehicles)

10. First Aid Allowance, Re-training paid for by MSS

11. Monitoring Allowance, (Paragon, CCTV, Cold Storage)

14. Classifications and progression levels to be negotiated

15. Technical redrafting to ensure legislative compliance

16. Any other matters that may arise during bargaining"

[69] Of those claims, only one item is Defence specific and is a claim for an allowance payable on Defence sites.[58] The remainder of the items, in Mr Badger's view, could relate to the tasks and pay conditions of employees on other client sites within Queensland.

[70] The position taken by MSS in relation to aggregate rates of pay has been consistent throughout bargaining. MSS has explained the financial impacts on the business of an increase in aggregate rates and has sought that the UWU provide evidence to it of its claims about use in the industry. Aggregate rates of pay are not utilised in any other part of the MSS business.[59]

[71] Mr Badger states that the bargaining team representing MSS has generally been consistent throughout bargaining meetings whereas, in Mr Badger's opinion, the bargaining team for the UWU has not been consistent.

[72] Mr Badger states that a baseline security clearance is not a requirement that is unique to Defence sites. MSS currently requires a baseline or higher clearance in relation to work done for the Department of Home Affairs (Customs and Immigration), the Australian Federal Police and Department of Criminal Intelligence. Similarly, the duties identified by Mr Roney are duties that are not unique to Defence sites and are undertaken on many client sites. Mr Badger does not agree that Defence sites represent a greater or unique risk when compared to other client sites.

[73] Mr Badger maintained his position in relation to these matters during cross-examination.[60] However, Mr Badger accepted that patrol of armouries and explosives ordinance facilities is unique to Defence sites.[61] Mr Badger maintained that there are risks associated with security work on all sites and, specifically, that Defence sites do not represent a higher risk of terrorism.[62] Mr Badger was shown two documents outlining the Commonwealth Government position in relation to the risk of terrorism but maintained his position that Defence sites do not represent a greater risk than other sites on which employees of MSS provide security services.[63]

[74] Mr Badger's view is that the provision of security services in the aviation industry requires greater flexibility of hours and shift patterns.[64] By comparison, Defence is "relatively stable".[65] Mr Badger did not accept that the rosters used on Defence sites "lend themselves" to use of an aggregate rate.[66] While Mr Badger is aware, roughly, of the industrial arrangements used by MSS within Queensland, Mr Badger is not aware of industrial arrangements used in other states and is not aware if MSS has entered into client-specific enterprise agreements.[67]

[75] Prior to holding the position of General Manager, Mr Matthews was the Queensland Operations Manager - Defence. Mr Matthews said that MSS has been providing security services to Defence bases in Queensland since 2004. The security services provided to Defence include access control, perimeter patrols and pass office control. At the time of making his statement in these proceedings, Mr Matthews states that MSS provides security services to 18 Defence sites in Queensland, with an approximate number of MSS employees employed to provide these services of 200.

[76] Mr Matthews has attended bargaining meetings on 9 October and 8 November 2018, 15 February, 27 March, 22 May, 17 June, 18 July and 9 September 2019. According to Mr Matthews, all items listed on the Defence log of claims, except for "Site Defence Allowance" are relevant to employees of MSS engaged at non-Defence sites.

[77] Mr Matthews also considers that the security services provided at Defence sites is consistent with security services provided at non-Defence sites.[68] Mr Matthews accepts that employees at other sites would not be required to patrol armouries and explosives ordinance facilities.[69] The baseline security vetting is required at more than just Defence sites although one Defence site requires a clearance of "top secret, positive vet".[70]

[78] The risk present at Defence sites is no higher than with security work generally. Mr Matthews accepts that the Commonwealth Government has placed the likelihood of an act of terrorism as probable[71] and that the heightened threat level has been in place since September 2014.[72] Mr Matthews also accepts Defence bases represent a higher likelihood of being targeted by terrorists.[73]

[79] In relation to "abatements", Mr Matthews states that abatements can be issued on the basis of a contract breach but do not contribution to "outcomes of employment" of MSS employees and are not specific to Defence contracts.[74] In cross-examination, Mr Matthews stated that he has never seen an abatement as high as $60,000 and does not consider Mr Roney's statement to this effect to be accurate.[75] Mr Matthews conceded that while abatements do not of themselves lead to performance management outcomes in relation to MSS employees, the underlying issue leading to the abatement (eg behaviour or conduct) might lead to performance management of the employee.[76]

[80] From Mr Matthews' view, bargaining has been progressing positively, with several claims on the Defence log being "actioned and closed out" during bargaining. As questions have arisen, MSS has responded with calculations and costings related to aggregated and non-aggregated rates of pay. MSS has not misinterpreted the employee position as it relates to aggregated rates of pay, as stated by Mr Ratana.

[81] MSS has agreed to continue its support of aggregated rates, confirming that it will "grandfather" the clause into the new agreement.[77] The grandfathering will only be in respect of current employees and will not apply to new employees.[78] The aggregate rates of pay would increase yearly in line with the general increases in the proposed agreement.[79]

[82] The bargaining meeting of 18 July 2019 did not address items on the log of claims, rather, the meeting discussed the Union's 11 July letter to Mr Samios (extracted above). Mr Matthews states that the items raised by the Union's correspondence were discussed, with United Voice being given a further opportunity to send questions, if required. Prior to and after the letter of 11 July, UWU have not raised concerns around bargaining.[80]

[83] Mr Matthews' view is that confining the scope of an agreement to Defence employees only would prolong bargaining for the current proposed State-wide agreement, as well as the new Defence agreement. No further efficiency or fairness would be gained from splitting the coverage of the proposed agreement. Separating the scope would not change the underlying financial implications that inform the Respondent's position as related to aggregate rates of pay.

[84] A separate agreement would also reduce the ability of MSS to move employees within the Queensland business, resulting in a detrimental lack of flexibility.[81] A separate agreement would also impact the Respondent's operations and would be a "huge task" to establish.

[85] Mr Matthews accepts that Defence employees represent a "big proportion" of the number of MSS employees that would be covered by the proposed agreement.[82] Of employees performing work on the Defence contract, the working majority are engaged at the Townsville Lavarack, RAAF Townsville, RAAF Amberly and Enoggera bases.[83]

[86] Mr Matthews accepts that there is a separate agreement in relation to MSS employees undertaking work on aviation sites and that in some states MSS has client-specific enterprise agreements.[84]

s.238(1)

[87] It is not in dispute, and I am satisfied, that the UWU is a bargaining representative for the proposed single-enterprise agreement and may apply for a scope order. I proceed on the basis that the UWU does have concerns that bargaining for the agreement is not proceeding efficiently or fairly and that the reason for this is that the UWU considers that the scope is not appropriate for the agreement. This is notwithstanding that Mr Roney's evidence suggests that the issues are more about his perceptions of process than they are about the scope of the proposed agreement.[85]

s.238(2)

[88] It is also not in dispute, and I am satisfied, that a single interest employer authorisation is not in operation in relation to the agreement, in conformity with s.238(2) of the Act.

s.238(3)

[89] I am also prepared to proceed on the basis that the UWU has taken all reasonable steps to give a written notice setting out its concerns to the relevant bargaining representatives. As stated above, MSS has not made submissions as to why, specifically, it is said that the correspondence of 11 July 2019 does not satisfy the notice requirement in s.283(3) of the Act and I am satisfied that the correspondence contains sufficient information to meet the notice requirements.

[90] The evidence discloses that the UWU and MSS are the only bargaining representatives engaged in bargaining. I find that a reasonable time was provided for MSS to respond to the concerns and that MSS did so at the bargaining meeting on 18 July 2019. I accept that UWU considers that MSS has not responded appropriately to the concerns. I also accept that MSS considers that it has responded appropriately but the point of reference is the subjective view of the bargaining representative that has applied for the scope order.

s.238(4)(a)

[91] I find that the UWU has met, and is meeting, the good faith bargaining requirements. The issues raised by MSS in this respect are do not provide a basis for any view to the contrary. That the UWU has not been represented by a consistent bargaining team in a bargaining process that has stretched over years is not surprising and there is nothing unreasonable or unusual about this. Further, Mr Ratana's evidence establishes that he was a regular attendee and this was not disputed.

s.238(4)(b)

[92] I am not satisfied that making the order sought will promote the fair and efficient conduct of bargaining. The UWU has not demonstrated that the making of a scope order will encourage and facilitate bargaining which is fairer and more efficient than if no order is made. I reach this conclusion for several reasons.

[93] The evidence discloses that the remaining issue in dispute for the purposes of the bargaining is the aggregate rates. In relation to this issue I had the following exchange with Mr Ong during closing submissions:

"THE DEPUTY PRESIDENT: But what I'm not understanding is, where's the evidence that if - let's say the scope order was granted, in terms of the scope that you've sought, if the company's position on the aggregate rate is the company's position on the aggregate rate, why would it change just because you're now bargaining with a smaller group of employees?

MR ONG: Sorry to cut you off there, if I did, your Honour, but, tellingly, I think Mr Badger acknowledge, in his evidence-in-chief, indeed the aggregate rate are not a feature beyond Defence employees. So Mr Badger, who does not deal, specifically, with Defence employees and has been the representative of the employer for non-Defence employees, as it were, did suggest that aggregate rates were not seen outside of Defence employees, your Honour. So we would suggest that it's a matter which is corralled, perhaps, to Defence, and by removing that - - -

THE DEPUTY PRESIDENT: Wasn't it even time rosters, outside Defence, rather than aggregate rates?

MR ONG: That may be my mishearing of the evidence, your Honour.

THE DEPUTY PRESIDENT: I guess I'll need to look at the transcript, but my understanding of the evidence was that aggregate rates are throughout MSS's workforce and it's agreeing to grandfather them but it's not agreeing to spread them further than it already does. Even if they are currently only in Defence, why would it change that position just because the scope of the agreement changes, if that's it's firm position?

MR ONG: I think the effects of a scope order and impacting upon the scope would have some other effects I think as well, your Honour, on the bargaining dynamic and may lead to some other options being available, perhaps in terms of how bargaining could proceed, should agreement not be reached, should there be limited progress, with respect to the aggregated rate issue, or other issues which may be unique to each respective agreement.

THE DEPUTY PRESIDENT: Well, what would that be? I don't understand the submission. What would that be?

MR ONG: So the submission could potentially be, and this is me acting beyond instruction, perhaps, your Honour, but it may well be the case that if there's a scope order to be made, which would see a separate Defence agreement, it may make it the prospect of industrial action into the equation. It may assist in limiting matters which could be brought, perhaps in a bargaining dispute as well, your Honour. But I think the point being is that the aggregated rate issue does remain a live issue, does remain the most significant issue in bargaining, and the evidence, as I understood it to be, your Honour, and we may have to revert to the transcript, was that Mr Badger indicated that aggregated rates were not a feature beyond the Defence employees. But that may be me mishearing the evidence, your Honour.

THE DEPUTY PRESIDENT: I thought he said, 'Other than Defence allowance, nothing in the log of claims is different to other MSS sites'. Anyway, I thought he said that the issue was the - the distinctive issue was the even time rosters and not the aggregate rates and that - regardless of the roster, aggregate rates can be developed if it's not an even time roster, they don't need to be limited.

MR ONG: It's certainly our desire, and I don't wish to get cetera into the bargaining, of course, before you, but my understanding, based on what Mr Ratana heard was that, and has just whispered in my ear, was that even time rosters are a common feature across the business but aggregated rates don't tend to be.

THE DEPUTY PRESIDENT: All right. Well, I guess I'll need to look at the evidence." [86]

[94] It is well-established that seeking leverage by increasing the bargaining power by weight of numbers is not a valid basis to make a scope order.

[95] In my view, the evidence does not support a finding that issuing a scope order in relation to Defence employees only would make bargaining more efficient or fairer. The only issue remaining before the parties reach agreement is the issue of aggregate rates. The evidence is that MSS' position in relation to this issue is firmly held. It has agreed to grandfather the provision for employees who presently receive aggregate rates but has consistently disagreed to extending it beyond that. That is a position that MSS is entitled to take.

[96] To the extent that UWU submits that the current scope has impeded its ability to communicate with those that will be covered by the proposed agreement, I do not accept the proposition. There is no evidence of any failed attempts, or any attempts at all, by the UWU to attempt to engage in discussions with non-Defence employees of MSS. To the contrary, the evidence is that only Defence employees have been consulted in respect of the log of claims and this application. The evidence is that UWU does have non-Defence members and that it has no difficulty engaging with its members.

[97] I also consider it relevant that no attempts have been taken to assess the views of non-Defence employees. I raised the issue of the impact that such an order would have concerning non-Defence employees and members of the UWU with Mr Ong during the course of closing submissions. The following exchange occurred:

"THE DEPUTY PRESIDENT: Well, what would it do to your other members who you're representing in these negotiations? It would just shunt them off, wouldn't it, into the never-never, with a whole group of people you say you don't know where they are, because they're not your members.

MR ONG: If I'm to be entirely frank with you, your Honour, that's a strategic decision for the union.

THE DEPUTY PRESIDENT: But it's one - it's a matter I'm entitled to have regard to.

THE DEPUTY PRESIDENT: It's not just fairness for the one group, it's fairness for everybody. And, on your own evidence, there are other members of your union that you're currently bargaining for and there's no evidence there's been any discussion with them about the fact that you're going to hive them off.

MR ONG: And I'm not able to lead evidence to contradict that, necessarily, as a proposition, your Honour. But what the submission would be is that that's a strategic decision for the unions to make."[87]

[98] Mr Ong may very well be right that it is a decision for the union to make but I must satisfied that the order will promote the fair and efficient conduct of bargaining. The views of employees are plainly relevant to that issue and the relevant employees include those who are part of the group within the group sought to be covered and those who will be excluded or left to be covered by some other arrangement. The fact that there is no evidence before me as to the views of a large number of employees that will be affected by the order is relevant.

[99] I also consider that the evidence discloses that to date only Defence employees have been involved in bargaining. In practice, Defence employees have had ability to guide and steer bargaining from the employee perspective. This would continue to be the case should the order be made. Consequently, I am not satisfied that the order would make bargaining more efficient or fairer. The practical situation of this bargaining would remain unchanged.

[100] Because of this it is not necessary to consider ss.238(4)(c) or (d).

[101] For these reasons, I refuse the scope order and dismiss the application. An Order to that effect will issue with this Decision.

[1] [2019] FWC 6756; see also PN6.

[2] [2017] FWCFB 651.

[3] Exhibit UWU1 Statement of Carl Ratana.

[4] Exhibit UWU2 Statement of Joshua Roney.

[7] Fair Work Act 2009 s.238(4)(b).

[8] 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].

[9] National Union of Workers v Linfox Australia Pty Ltd [2013] FWC 9851 at [59].

[10] Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2015] FWC 1591 at [145]- [148].

[11] United Firefighters' union of Australia v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009; (2010) 193 IR 293.

[12] The Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476; (2014) 242 IR 238.

[13] Explanatory Memorandum to the Fair Work Bill 2009 at [777].

[14] [2016] FWCFB 1151 at [31].

[15] (2017) 270 IR 385; [2017] FWCFB 5826.

[34] Exhibit UWU2 at paragraphs 26 to 27.

[38] PN50; PN53; PN58 to PN60; PN79 to PN81.

[55] Respondent's Outline of Submissions at paragraph 3.2.

[74] Exhibit MSS1 at paragraph 47; PN439.

[77] Exhibit MSS1 at paragraph 37; PN374 to PN380.

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