"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 Limite [2017] FWC 1526

[2017] FWC 1526 The attached document replaces the document previously issued with the above code on 4 April 2017. The document is amended to correct a typographical error in paragraph 185. In particular, the text in what was previously sub-paragraph 185(d) (sentence beginning with ‘Whilst this is an outcome’) has been inserted into sub-paragraph 185(c). Sub-paragraph 185(d) now correctly commences with ‘this application is decidedly.’ Peter Willink Associate to Deputy President Sams. 6 April 2017. -- 1 of 62 -- -- 2 of 62 -- 1 Fair Work Act 2009 s 238 - Application for a scope order "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 (B2016/1237) DEPUTY PRESIDENT SAMS SYDNEY, 4 APRIL 2017 Application for a scope order – two expired enterprise agreements – aircraft maintenance industry – distinction between line maintenance and base (heavy) maintenance – different geographic locations – application seeks one agreement rather than two – whether good faith bargaining requirements met – whether application premature – whether scope order will promote fair and efficient conduct of bargaining – whether reasonable in all the circumstances to make the scope order – long history of separate negotiations for the two agreements – inconvenience and duplication – objectively considered – relevant principles – good faith bargaining requirements met – scope order would not promote fair or efficient bargaining – not reasonable in all the circumstances to make the scope order – s 238(4) of the Act not satisfied – application dismissed. [1] Three Unions, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (‘AMWU’), the Australian Workers' Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (‘CEPU’) (hereinafter referred to as the ‘Alliance Unions’) have made an application for a scope order, pursuant to Part 2-4 of the Fair Work Act 2009, (the ‘Act’) in respect to bargaining with Qantas Airways Ltd (‘Qantas’) for an enterprise agreement/s to replace the Qantas Airways Ltd Enterprise Agreement No 9 (the ‘Mainline Agreement’) and the Qantas Airways Limited (AWU, AMWU, CEPU) Brisbane Base Maintenance Enterprise Agreement No 4 (the ‘Brisbane Agreement’). It is not disputed that there are approximately 328 employees covered by the Brisbane [2017] FWC 1526 DECISION -- 3 of 62 -- [2017] FWC 1526 2 Agreement and 466 employees covered by the Mainline Agreement, mostly in Sydney and Melbourne. Both agreements have passed their nominal expiry dates (31 December 2016) and the parties have commenced negotiations for their replacement, albeit that the negotiations have not advanced beyond the Alliance Unions tabling a ‘log of claims’ (‘list of issues’) at two meetings with Qantas management on 8 December 2016. [2] A major preliminary stumbling block to negotiations progressing has been the Alliance Unions’ claim that there should only be one agreement and consequently, one set of negotiations to replace the two expired Agreements. Qantas is opposed to that course and outcome and seeks to retain two Agreements – hence, this scope order application. [3] The application was filed on 24 November 2016 and initially listed for conference on 1 December 2016. Under the auspices of the Fair Work Commission (the ‘Commission’), an interim agreement was reached to activate the negotiations (8 December), without the parties resiling from their opposing positions on the scope order application. A further conference with the Commission was convened on 22 December 2016, but no ongoing agreement as to scope or the conduct of future negotiations, could be reached. Accordingly, the Commission issued directions for the filing and service of evidence and outlines of submissions with a shortened time period to allow the application to be listed for hearing on 22 and 23 February 2017. In the meantime, the Commission dealt with an objection by the Alliance Unions to Qantas being represented by a lawyer for the purposes of preparing submissions, communicating with the Commission (Rule 12) and appearing at the hearing (s 596). The Alliance Unions objection was dismissed; see: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Australian Workers' Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited t/a Qantas [2017] FWC 805. [4] At the hearing of the substantive application, Mr M Nguyen appeared for the AMWU, Ms J Gherjestani for the AWU, Mr G Noble for the CEPU and Mr M Follett of Counsel appeared for Qantas, with permission having been granted, pursuant to s 596 of the Act. -- 4 of 62 -- [2017] FWC 1526 3 [5] In setting out the background to this application it is useful, at this juncture, to set out the provisions of the Act and the powers of the Commission to make a scope order. Section 238 reads as follows: Section 238 Scope orders Bargaining representatives may apply for scope orders (1) A bargaining representative for a proposed single-enterprise agreement (other than a greenfields agreement) may apply to the FWC for an order (a scope order) under this section if: (a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and (b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover. No scope order if a single interest employer authorisation is in operation (2) Despite subsection (1), the bargaining representative must not apply for the scope order if a single interest employer authorisation is in operation in relation to the agreement. Bargaining representative to give notice of concerns (3) The bargaining representative may only apply for the scope order if the bargaining representative: (a) has taken all reasonable steps to give a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and (b) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and (c) considers that the relevant bargaining representatives have not responded appropriately. When the FWC may make scope order (4) The FWC may make the scope order if the FWC is satisfied: (a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and -- 5 of 62 -- [2017] FWC 1526 4 (b) that making the order will promote the fair and efficient conduct of bargaining; and (c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and (d) it is reasonable in all the circumstances to make the order. Matters which the FWC must take into account (4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct. Scope order must specify employer and employees to be covered (5) The scope order must specify, in relation to a proposed single-enterprise agreement: (a) the employer, or employers, that will be covered by the agreement; and (b) the employees who will be covered by the agreement. Scope order must be in accordance with this section etc. (6) The scope order: (a) must be in accordance with this section; and (b) may relate to more than one proposed single-enterprise agreement. Orders etc. that the FWC may make (7) If the FWC makes the scope order, the FWC may also: (a) amend any existing bargaining orders; and (b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by the FWC, or take such other actions, as the FWC considers appropriate. [6] At this point, I note that Qantas has accepted the procedural prerequisites set out in ss 1, 2 and 3 of s 238 before the Commission considers the matters under ss 4 and 4A. As a matter of practicality, I also accept that the group of employees proposed to be specified in the -- 6 of 62 -- [2017] FWC 1526 5 scope order will cover all of the employees covered by the agreement/s and therefore the group of employees was ‘fairly chosen’ for the purposes of ss 4(c) of s 238. [7] Thus, the focus of the parties’ submissions dealt with whether the Commission could be satisfied that: 1. that the bargaining representatives who made the application have met, or are meeting, the good faith bargaining requirements; and 2. that making the order will promote the fair and efficient conduct of bargaining; and 3. it is reasonable in all the circumstances to make the order. THE EVIDENCE [8] The following persons provided statement and/or oral evidence in the proceeding:  Mr Glen Wilcox, Aircraft Maintenance Engineer and AMWU Convenor, Sydney Line Maintenance Operations;  Mr Glenn Thompson, Assistant National Secretary, AMWU;  Mr Samuel Francis John Corrie, Planning Clerk, Qantas;  Mr Nicolas Saunders, Senior Manager, Workplace Relations, Qantas; and  Mr Paul Crawford, Manager of Base Maintenance, Qantas. For the Alliance Unions Mr Glen Thompson [9] Mr Thompson was involved in the negotiations for the first Brisbane Agreement in 2003/04. These negotiations also involved Sydney members and delegates who intended to transfer to the new heavy maintenance facility being set up in Brisbane. At that time, heavy maintenance was also carried out in Melbourne and Sydney. However, the ‘baseline’ for the new Brisbane Agreement was predominantly the same as applied in the other two locations, with ‘the exception of some matters.’ These were: a) an increase in the quota minimum percentage to 30 per cent; b) an overtime bank; and c) a Flexi-leave bank. -- 7 of 62 -- [2017] FWC 1526 6 It was Mr Thompson’s evidence that Qantas’ objective at the time was to operate the Brisbane facility with different flexibility arrangements, including reducing idle man hours. He said the differences between the two Agreements have remained the same ever since. [10] Mr Thompson deposed that: a) the Alliance Unions had always developed a consistent log of claims with the national delegates for the renewal of both Agreements; b) there have been three occasions where negotiations for both Agreements were negotiated simultaneously; c) National delegate meetings are supported by Qantas; d) in the fourth Brisbane Agreement there were specific issues in Brisbane around rosters and shift patterns and a licence issue; and e) the history of simultaneous negotiations resulted in the same outcomes for the majority of issues. [11] Mr Thompson set out the history of negotiations which disclosed that: a) Qantas used to have one Agreement for the bulk of its operations; the last being the Mainline Agreement 4 (12 November 1998) b) The first separate maintenance agreement was the Mainline Agreement 5 (16 May 2002); c) The Mainline Agreement has always applied to Brisbane line maintenance; d) The heavy maintenance facilities in Sydney and Melbourne closed in 2006 and 2012 respectively, although the Mainline Agreement covered those facilities; and e) Two Mainline Agreements (6 and 6B) were negotiated and certified in 2004 due to complaints by the Australian Licensed Aircraft Engineers Association (ALAEA) that its members had not been consulted at the time. [12] Mr Thompson claimed that a single planning process had been previously supported by Qantas. He cited examples such as when:  claims related to planners and technical officers resulted in the same agreed outcome;  Qantas enterprise awards were converted to agreements, with the same outcome for both the Brisbane and Mainline Agreements; and  the wages, classification tables and the quota levels are the same for both Agreements. -- 8 of 62 -- [2017] FWC 1526 7 Mr Thompson also cited examples of former area specific clauses in the Mainline Agreement, such as the A380 roster only applying to Sydney; Melbourne only based positions; separate Sydney and Melbourne component maintenance and Sydney Engine maintenance; and a flexibility clause in Melbourne to deal with heavy maintenance on Boeing 737s. This last matter was successfully negotiated locally, but was included in the Mainline Agreement. This is the approach which the Alliance Unions have, and will take to ensure area specific issues are not outvoted by the majority (in Sydney and Melbourne). [13] Mr Thompson observed that in the past Qantas would generally send out a letter with a summary of agreed outcomes from the negotiations. These summaries were predominantly the same, ‘with some differences to reflect specific work outcomes.’ The agreed outcomes would also be sent out again, with generally consistent outcomes for the two Agreements. He said that the general pattern was for the Mainline negotiations to conclude before the Brisbane negotiations, noting that the outcomes for Brisbane Agreement 2 and Mainline Agreement 7 were exactly the same (save for a reference to a new clause applying to Melbourne heavy maintenance). [14] Mr Thompson said the outcomes for Brisbane Agreement 3 and Mainline Agreement 8 were predominantly the same, including for: - classification "level jumps"; - technical and supervisory increments; - "special" grades for levels 1-5; - wage increase outcomes; - allowance increases; - cashing out of annual leave on compassionate grounds; - level 3 first aid allowance; - increase to fuel tank allowance; - allowance for Certificate IV trainers; and - changes to the dispute settlement procedure. [15] Minor differences related to: - delaying the timing for a clause dealing with new employees in the Brisbane Agreement: - Flexibank increase from 86-172 hours in the Brisbane Agreement; - a clause for the A380 team in the Mainline Agreement in Sydney; - a side letter including Production Examiner Allowances, not applicable to Brisbane; - a carpenter allowance for a single carpenter engaged at Melbourne; - 5% difference in percentages for the quota minimum outcomes for the two Agreements; -- 9 of 62 -- [2017] FWC 1526 8 - A330 approved licencing for 12 Aircraft Maintenance Engineers (AMEs) at Brisbane only; - commitment that all A330 heavy maintenance would be performed in Brisbane; - different A330 rostering and RDO’s in Brisbane; - different outcomes for personal grievances in Brisbane; - Team Leaders’ allowance in Brisbane; - team based issues for the Mainline Agreement; - jury service issue related to Melbourne. It was Mr Thompson’s evidence that these local issues were either uncontroversial and/or agreed. He could not recall any negotiations about some of them. In his view, they did not result in any inefficiency in the bargaining process. [16] Mr Thompson said that the negotiations for Brisbane Agreement 4 and Mainline Agreement 9 resulted in the same outcomes, except for one item – the introduction in the Mainline Agreement of the ‘A’ category Company Authorisation Allowance, which is not applicable to heavy maintenance. [17] Mr Thompson outlined the preliminary processes for the current round of negotiations. In June 2016, he had requested one set of negotiations, which Qantas did not agree to. Qantas was open to other ways of facilitating efficient bargaining and agreed to paid meetings and travel for delegates. The parties’ different positions as to scope were reaffirmed in August and September 2016. [18] Mr Thompson described the initial meeting on 27 October 2016 as an overview of how the business was operating and what challenges it faced. Various managers provided reports on the particular business units. The issue of scope was raised and debated. He expressed concern that the Union members in Brisbane were prejudiced and were being disadvantaged. Members in Brisbane felt like ‘second class citizens’ because more negotiations were happening under the Mainline Agreement than in Brisbane. Accordingly, National delegates had agreed to one set of negotiations. He noted that Qantas had agreed in the past to support the Unions’ national planning process, involving joint claims and outcomes. [19] Mr Thompson said Qantas maintained its position and further meetings were agreed for 24 November, 8 and 14 December 2016. The first meeting was to receive a report on the -- 10 of 62 -- [2017] FWC 1526 9 Company’s financial position. It was agreed to be a joint meeting on a ‘without prejudice’ basis with the scope issue still in dispute. Further correspondence was exchanged between the parties throughout November, until the Alliance Unions lodged this application for a scope order on 24 November 2016. [20] Mr Thompson described the meetings on 8 December 2016, in which: a) he had said that scope was still a matter for bargaining; b) the Alliance Unions presented some of their claims verbally, but others required further information from Qantas and could not be ‘put on the table’ (he meant orally put on the table, as no log of claims document had ever been served on Qantas); c) the further information included details of the new Boeing 787 aircraft and further actual particulars on the Boeing 787 and A380 ongoing maintenance requirements, not what the manufacturers’ had ‘pitched for’; and d) the further information sought also included: - demographics of the entire engineering workforce, how many new apprentices were required, the number of retirees and training requirements for the existing and the new fleet; and - extent of the use of third party contractors. [21] Mr Thompson said that during these meetings, the delegates and officials spoke to a number of claims such as: a) a new training module to replace the CASA basics with the diploma course - its costs and increased reimbursement for the new training requirements; b) a competency based classification structure; c) abolishing quota based position levels 15 and 16; d) an allowance for residual poisoning; e) a review of EBA clauses; f) additional leave through salary sacrificing; g) superannuation; h) NCLS payment and family and domestic violence leave provisions; i) review of numerous allowances, including meal allowance receipting; j) payment for third party work on other aircraft; k) sheet metal specialised maintenance certification payments; l) the classification structure for production planners; m) duration of Agreement; and -- 11 of 62 -- [2017] FWC 1526 10 n) 4% p/a wage increases. [22] Qantas offered to provide what information it could in the meetings scheduled for 14 December 2016 (the meetings did not take place). The Unions again sought a joint meeting, but Qantas insisted on two meetings with Mr Saunders saying there will be two presentations and separate content for different locations and heavy maintenance, as the outcomes are different, particularly in respect to different timings of decisions reflecting line and heavy maintenance differences. Mr Saunders had added that 789 aircraft and apprentices are not relevant to Brisbane. [23] Mr Thompson claimed that the second meeting with Brisbane delegates largely reflected what had been said earlier at the Mainline meeting. Qantas proposed that the 14 December meeting was for the Mainline Agreement, including the Boeing 787 aircraft and apprentice issues and the 15 December meeting would be for the Brisbane Agreement, dealing with third party and contractor information. [24] Mr Thompson said that after further discussion with the Alliance Unions, the Unions said they would be pressing the scope issue as a threshold issue and Qantas (Mr Smith) replied that it was pointless to engage in further discussions until the matter is heard. [25] Mr Thompson had attended a number of mass meetings of members in July 2016, involving approximately 280 members in Sydney and 250-300 in Brisbane and 90 in Melbourne. All the meetings supported pursuing one set of negotiations for one Agreement. Mr Thompson also stated that senior delegates across all sites had reported to him of the overwhelming support they had received from one-on-one discussions with members for a single set of negotiations. [26] Mr Thompson described the examples of common work conducted between Brisbane and the other sites: a) Brisbane develops the skills of AMEs across Qantas’ national engineering operations; b) some Mainline Agreement employees are required to work in Brisbane, such as apprentices required to complete competencies and eligible A Licence employees who need to complete their logbook to gain the skills to attain the licence. (a Melbourne -- 12 of 62 -- [2017] FWC 1526 11 based delegate had recently told him he was required to go to Brisbane for that purpose); c) Brisbane heavy maintenance employees perform line maintenance, usually covered by the Mainline Agreement. [27] In a reply statement, Mr Thompson said that Qantas’ concerns with the flexibilities specific to Brisbane were unfounded, as none of the Alliance Unions’ claims related to those matters. Further, the issue of the use of contractors was a common position of both Mainline and Brisbane employees. [28] Mr Thompson said there is no link, as asserted by Mr Crawford, between the location of work and CASA’s requirements for maintenance work to be approved. The Alliance Unions have consistently sought to ensure onshore heavy maintenance of all Qantas’ maintenance requirements. This requires a competency based career path in order to prepare for new technologies on the A380, Boeing 787 and A330 aircraft. CASA approvals are not dependent on location in Australia. [29] Mr Thompson rejected Mr Crawford’s assertion of historic industrial difficulties having resulted in third party perceptions of risk in relation to the performance of work. He noted that since the making of the first Brisbane Agreement, there had been no industrial action of any kind. While the ALAEA had once taken national action, this did not appear to have adversely impacted on third party views. [30] Attached to Mr Thompson’s statement were a number of petitions signed by employees under both Agreements which disclose that 59.4% of Mainline employees and 76% of Brisbane employees support a single Agreement. Mr Thompson emphasised that both groups of employees have common interests of ensuring heavy maintenance remains in Australia, as line maintenance employees would be affected if their necessary skills were lost. Job security is therefore a common issue. [31] Mr Thompson rejected Mr Saunders’ view that he was not aware of any difficulties for Brisbane employees in negotiating their Agreement. However, Mr Saunders had not been involved in any Brisbane or Mainline negotiations until this current round. The past history reveals that the Mainline Agreement is finalised first and simply applied to Brisbane as the -- 13 of 62 -- [2017] FWC 1526 12 ‘forgotten cousin.’ Members in Brisbane have always believed that once the Mainline Agreement is endorsed, the position of Qantas in respect to Brisbane, does not change. He believed that having Brisbane at the table from the beginning would ensure their interests are heard and recognised. [32] Mr Thompson rejected Mr Saunders’ assertion that Brisbane delegates would be outnumbered and their voice diluted if there was one agreement. The practice has been that each Union has two delegates from each of the Unions from each site (except West Australia with one delegate from each Union). In any event, the Alliance Unions Bargaining Committee has a consensus position on all the Unions’ claims. [33] Mr Thompson raised issues about the nature and format of meetings proposed by Mr Saunders, which he disagreed with, or could not recall. Mr Thompson insisted that on 8 December 2016, the Alliance Unions had presented a log of claims to Qantas and not just a ‘list of issues.’ Mr Glen Wilcox [34] Mr Wilcox has been an Aircraft Engineer employed by Qantas for 21 years and is the AMWU convenor in Sydney. He has been involved in the last four negotiations for the Mainline Agreement. Mr Wilcox said that he had spoken to many Union and non-Union members in Sydney who understood the concerns of their Brisbane ‘brothers’ of not having a ‘seat at the table.’ Some of them had expressed concerns about duplication of time, processes, resources and costs. [35] Mr Wilcox’s description of the usual bargaining process generally accorded with Mr Thompson’s evidence. He added that where specific area matters are raised, a smaller sub- group relevant to the issue would be formed to report back to the wider group. Mr Wilcox believed there was duplication with the current process. He understood why Brisbane delegates felt the process was irrelevant to them, as outcomes had already been agreed to, in principle, in the Mainline Agreement. [36] Mr Wilcox described the process of apprentices completing their training in a heavy maintenance environment, from when Sydney closed and apprentices completed training in -- 14 of 62 -- [2017] FWC 1526 13 Avalon and when Avalon closed they rotated to Brisbane. This practice continues today with relocation expenses negotiated for them from time to time. Mr Wilcox also identified examples of when line maintenance employees have transferred to Brisbane as additional support during busy times and vice versa. [37] Mr Wilcox claimed that there used to be eight positions in line maintenance which were filled by Brisbane heavy maintenance employees. With the announcement of redundancies in Sydney and Melbourne in 2014, the Unions pressed for four of these positions to be made available to employees who, would otherwise be made redundant. This resulted in four of the positions being filled by displaced Sydney/Melbourne AMEs and the remaining four were filled by heavy maintenance employees. Mr Wilcox believed the question of whether Sydney continued to perform heavy maintenance work was a ‘grey area.’ He said that work taking some weeks, which could be considered heavy maintenance, was performed in Sydney, such as the recent reconfiguration of the Boeing 747 aircraft. He understood 40 of these aircraft were reconfigured in Sydney and 25 in Brisbane. [38] In addition, Mr Wilcox said that Sydney will also be doing a WIFI modification to some aircraft in conjunction with Brisbane. This involves work on the aircraft’s exterior. Mr Wilcox also understood that there is to be a trial of line maintenance checks on Boeing 787 aircraft in Brisbane. Mr Wilcox believed the interests of the employees covered by the two Agreements has not and did not conflict. [39] In a reply statement, Mr Wilcox said that Mr Crawford’s statement, in which he identified certain base maintenance work, was not correct, as some of his examples were also performed in line maintenance, such as:  rebuild of aircraft i.e. (737 vertical stabiliser removal from aircraft, repaired a damaged forward spar and web and frames and replacement of stabiliser skin;  test flights and engine runs;  removal of flight controls (Trailing edge Flaps, Ailerons, Spoilers, Leading Edges);  ad hoc fuel tank openings;  x-ray, Boroscope and NDI of aircraft and components;  structural inspections; and  removal of significant parts. -- 15 of 62 -- [2017] FWC 1526 14 [40] Mr Wilcox rejected Mr Crawford’s claim that the training for base and line maintenance is different. In his experience the skills and competencies are exactly the same. When he had moved from base to line maintenance, he still undertook complex rectification and repair to aircraft and aircraft components, without the need for any retraining. When he undertook his trades apprenticeship, it included modules which encompassed both base and line maintenance. Without the training, you cannot achieve the position of an AME. Mr Wilcox agreed that disassembly is not the same, but it is similar. He described the recent Boeing 737 reconfiguration, as superficial and not significant. The work involved removing all seats, tracks, toilets, lockers and floor structure and splicing new sections and replacing them. To demonstrate this work was superficial, Mr Wilcox set out the various tasks and skills involved. [41] Mr Wilcox said that in his 20 years of working at Qantas, he and his colleagues have never heard or come across the term ‘intermediate maintenance.’ It is either heavy/base maintenance or line maintenance. The latter is characterised by tasks undertaken in short time frames, usually conducted between flights. When Mr Crawford refers to ‘intermediate maintenance’ an aircraft could be out of service for up to seven days. [42] Mr Wilcox rejected other parts of Mr Crawford’s and Mr Saunders’ statements, including: - the Unions are not seeking any changes to existing flexibilities; - the ALAEA has one national agreement; - Brisbane is not the only site which uses contractors; - the Alliance Unions do not oppose the use of contractors, but only for short term peaks or troughs; - Qantas did not suggest a meeting with the Alliance Unions and Brisbane employees; - Mr Smith did not say there was a way forward, without involving the Commission; - there are six Brisbane delegates, not three as stated by Mr Saunders; and - one delegate had not expressed a different point of view (as to one agreement). He was a substitute delegate and unaware of the Alliance Unions’ position. [43] Mr Wilcox said that the Alliance Unions and employees have had an interest in Brisbane’s ongoing viability, because it is necessary for training. Many of his friends and -- 16 of 62 -- [2017] FWC 1526 15 colleagues who had transferred from Sydney and Melbourne have a joint sense of pride working for the one organisation - an Australian icon. Mr Samuel Corrie [44] Mr Corrie is employed by Qantas as a Planning Clerk. He previously held the position of AME Mechanical and has worked for Qantas for 13 years. As a Union delegate, he has been involved in the bargaining team for the last two Brisbane Agreements. [45] It was Mr Corrie’s evidence that apart from one person, everyone he had spoken to was supportive of one agreement. He believes that the Brisbane employees have less power in their negotiations and generally feel they are the ‘poor cousins’ who do not have a voice in matters affecting them. This is because decisions are made at the Mainline negotiations which are then presented to the Brisbane negotiators as Qantas’ final position. As a result, his members felt disconnected from engineering, because all the decisions affecting their business are made in Sydney. Information is not shared across the business, even though it may affect Brisbane. Mr Corrie did not accept that:  Brisbane employees will be outvoted by Mainline Employees;  one agreement would negatively impact on Brisbane; or  Brisbane attracts work because there is less likelihood of industrial action. [46] Mr Corrie believed that separate clauses can still apply to Brisbane in a single agreement and Brisbane employees will make their own decisions about industrial action. Mr Corrie also gave examples of where work was interchangeable or rotated between heavy maintenance and line maintenance employees in Sydney and Adelaide, including a current proposal to perform Boeing 787 line maintenance in Brisbane. He believed all employees have a common interest in job security, keeping work onshore, training skills and improved entitlements. [47] In a reply statement, Mr Corrie said he had never heard of the terms ‘General Maintenance Agreement’ or ‘intermediate maintenance.’ -- 17 of 62 -- [2017] FWC 1526 16 [48] Mr Corrie said that all AMEs share a common apprenticeship during which they are rotated through heavy maintenance and line maintenance. This means an AME can easily assimilate in either environment. While specific training for specific areas is required, it does not take as long as Mr Crawford had claimed. It is more akin to an induction (taking about a week) as to the location of particular equipment. Mr Corrie noted that contractors, from outside the airline industry take a longer period to understand the work. [49] Mr Corrie rejected Mr Crawford’s claim of differences in certification for confined spaces. Certification only takes about a day and does not reflect different types of work. It is not a special qualification. Mr Corrie noted that all AMEs work under the direction of licensed aircraft maintenance engineers (‘LAMEs’), who have a single agreement across Qantas. [50] Mr Corrie said that the Brisbane workforce is capable of doing any type of maintenance work, because it involves the same skill sets. He cited his own experience as an apprentice, in which the skills he used in line or base maintenance, were the same. Crane tickets are not a major qualification. Mr Corrie believed there is nothing in the Mainline Agreement which would prevent Qantas doing base maintenance. In any event, Brisbane specific terms can still apply to a single agreement. [51] Mr Corrie said that much of the work Mr Crawford described as ‘intermediate’ can be performed in a base maintenance environment, such as one day checks on aircraft. Mr Corrie said it was incorrect to say that the Qantas Part 145 Approved Maintenance Organisation MOE (the ‘Qantas MOE’) is a fixed document. If a particular type of work is not comprehended by the current Qantas MOE, an application can be made to the Civil Aviation Safety Authority (‘CASA’) to ensure the necessary requirements are met. He cited an example of the Hawaiian Airlines aircraft which came to Brisbane for heavy maintenance. Qantas was required to be approved by the US Federal Aviation Authority. [52] Mr Corrie said it was not ‘entirely correct,’ as Mr Crawford asserted, that Brisbane employees support the use of ‘top up’ contractors. There is always capacity to negotiate the need for using contractors on a wider basis than just ‘peaks and troughs.’ Mr Corrie claimed that in his experience, the rostering flexibility clause has never been used and Qantas has never changed rosters in Brisbane. Even so, there is no move to change the rostering -- 18 of 62 -- [2017] FWC 1526 17 flexibility in the Brisbane Agreement. Nor is there any proposal to change or remove the Flexibank arrangement in Brisbane. In addition, reporting arrangements would not change with one agreement. He believed that different work areas could still retain their local conditions and would only be dealt with by the people who work at the location. [53] Mr Corrie agreed with Mr Thompson that on 8 December 2016, the Alliance Unions had presented Qantas with a log of claims, with some claims requiring further information before refinement. Mr Corrie claimed that Qantas’ decision not to provide information to Brisbane delegates was a clear example of why they feel segregated. The Brisbane delegates wanted to know the ‘full picture’ as this impacts on job security, and what they might be missing out on in terms of other work across the business. Mr Corrie believed it would be fairer to have one negotiation and not have a weaker, segregated voice. This is particularly important in respect to training and further work opportunities, should maintenance locations change in the future. FOR QANTAS Mr Nicolas Saunders [54] Mr Saunders is employed by Qantas as Senior Manager, Industrial Relations and has been in this role since June 2015. He is involved in bargaining as Qantas’ lead representative for both the Mainline Agreement and the Brisbane Agreement. [55] Mr Saunders provided some contextual background to Qantas’ engineering operations. He said there are four types of aircraft maintenance performed by Qantas in Australia, being: (a) base maintenance; (b) intermediate maintenance; (c) line maintenance; and (d) component maintenance services (‘CMS’). [56] Mr Saunders said that base maintenance work is the most significant and onerous maintenance that is undertaken by Qantas. It can require the complete or substantial disassembly of an aircraft, or part of an aircraft. He described intermediate and line maintenance as more general maintenance activities. He said line maintenance is performed -- 19 of 62 -- [2017] FWC 1526 18 on an aircraft each time it arrives at a Qantas port and intermediate maintenance is performed less regularly, but still more often than base maintenance. It includes safety checks, unplanned repairs and the monitoring and replacement of components intended to be perishable and replaceable (such as tyres, filters and hoses). [57] Mr Saunders described how both the Mainline Agreement and the Brisbane Agreement contain four classifications of employees: (a) Tradespeople in aircraft trades (avionic and mechanical/structures) and non-aircraft trades, collectively referred to as Aircraft Maintenance Engineers; (b) Other Non-Trades (Aircraft Workers/Trade Assistants); (c) Technical and Supervisory; and (d) Apprentices. [58] Mr Saunders said that historically, Qantas performed base maintenance work on all of its aircraft for the life of those aircraft. In 2001, Qantas operated three base maintenance facilities located in: (a) Sydney, New South Wales; (b) Tullamarine, Victoria; and (c) Avalon, Victoria. [59] Mr Saunders described how in 2001, Qantas invested in the construction of a new purpose-built base maintenance facility, incorporating multiple aircraft hangars and associated infrastructure in Brisbane (with some investment from the Queensland Government in relation to the infrastructure). He said that the facility’s construction was eventually completed in July 2005. However, base maintenance work had already started on 1 November 2004. [60] By 2005, Sydney’s base maintenance facilities were outdated, in need of repair and were struggling to keep up with the increasingly complex and burdensome requirements of base maintenance work on newer aircraft. Accordingly, a decision was made to cease base maintenance in Sydney, which took effect in 2006. Affected employees were either retrenched or redeployed to other roles within Qantas, including to the new Brisbane facility. [61] Mr Saunders said that in 2005, when the Brisbane facility was entirely new and purpose-built, Qantas determined that the new operation warranted an equally customised and -- 20 of 62 -- [2017] FWC 1526 19 specific set of employment terms and conditions. He believed separate enterprise agreements were desirable to ensure that the terms and conditions applicable to base maintenance employees were representative of the flexibility required to undertake their work. This would help enable the facility to remain profitable and sustainable. [62] In February 2005, the AMWU and the AWU had agreed to Qantas’ proposal for a separate enterprise agreement and entered into the Qantas Airways Limited (AWU, AMWU) Brisbane Heavy Maintenance Enterprise Agreement [2005] (‘2005 AWU/AMWU Brisbane Agreement’) with Qantas. In October 2005, the CEPU had also agreed to Qantas’ proposal for a separate enterprise agreement and entered into the Qantas Airways Limited (CEPU) Brisbane Heavy Maintenance Enterprise Agreement (‘2005 CEPU Brisbane Agreement’). [63] Mr Saunders said that since these initial agreements, Qantas and the Alliance Unions have entered into the following enterprise agreements in relation to the base maintenance facility in Brisbane: (a) Qantas Airways Limited (AWU, AMWU) Brisbane Heavy Maintenance Agreement II, 2006; (b) Qantas Airways Limited (CEPU) Brisbane Heavy Maintenance Agreement 2 (1(a) and 1(b) being the ‘2006 Base Maintenance Agreements’); (c) Qantas Airways Limited (AWU, AMWU) Brisbane Heavy Maintenance Agreement III, 2009; (d) Qantas Airways Limited (CEPU) Brisbane Heavy Maintenance Agreement 3 , 2009 (1(c) and 1(d) being the ‘2009 Base Maintenance Agreements’); and (e) the current agreement, the Qantas Airways Limited (AWU, AMWU, CEPU) Brisbane Base Maintenance Agreement 4. [64] Mr Saunders believed that the pressures and timing requirements of base maintenance are unique and require its own set of terms and conditions. It involves the removal of a plane from service for a significant period of time. It effectively means foregoing the earning potential of that plane. It is therefore critical that base maintenance is completed within its scheduled time and for an aircraft to return to service on time to ensure that the costs are not higher than expected. This is particularly problematic if base maintenance work is undertaken for a third party airline. Mr Saunders said that a short and reliable turnaround time is a key commercial and competitive advantage in Brisbane, which allows it to secure and retain -- 21 of 62 -- [2017] FWC 1526 20 customer work. To meet these deadlines, it is sometimes necessary to roster additional employees or additional shifts. Conversely, there are sometimes occasions where it is necessary to temporarily reduce the number of employees working in base maintenance. Gaps in base maintenance work may extend for days, weeks or months. He described these periods as the regular ‘peaks and troughs.’ [65] In contrast, line maintenance, intermediate maintenance and CMS are not as vulnerable to the peaks and troughs in work demand. These categories of maintenance are subject to a more constant flow of work, because of the 24/7 arrival of aircraft at Qantas’ major airports. Mr Saunders described how delays in line maintenance and intermediate maintenance (and the associated unavailability of an aircraft) have less severe consequences than the same delays in base maintenance and are therefore not seen as being as significant. Equivalent delays in base maintenance would significantly erode Qantas’ and base maintenance’s competitive advantage. [66] Mr Saunders further expanded on these contentions. The global market for base maintenance work is highly competitive, with a relatively large number of Maintenance Repair Organisations (‘MROs’) competing for work. The nature of base maintenance work is that it is predictable, scheduled and involves the removal of an aircraft from service for an extended period of time. These factors make the work conducive to outsourcing to third parties (including offshore) with relative ease. Conversely, he said line maintenance and intermediate maintenance involve short turnaround times and tight timeframes that are not conducive to international outsourcing. It was not possible for Qantas to compete with offshore providers on cost alone. Rather, base maintenance must ensure that it is able to complete its work quickly, reliably, to the highest quality and as scheduled, in order to justify its higher cost. [67] Mr Saunders said that there are several differences between the Mainline Agreement and the Brisbane Agreement which are intended to tailor the Brisbane Agreement to the operational requirements and pressures of the Brisbane base maintenance facility. Of those differences, the primary two are the Flexibank system and the ability to transition employees between rosters, without the requirement of a majority vote. -- 22 of 62 -- [2017] FWC 1526 21 [68] The Flexibank system allows employees to accrue a ‘bank’ of overtime hours (up to 172 hours). Under this provision, employees either: (a) receive payment for overtime worked at the employee’s standard hourly rate and overtime penalties are separately accrued as equivalent hours in the Flexibank; or (b) all overtime hours worked are accrued in the Flexibank in lieu of payment. In contrast, employees under the Mainline Agreement may only: (a) be paid for all overtime worked (inclusive of penalties); or (b) take time in lieu of payment for overtime worked within four weeks of the day on which the overtime was worked. [69] The Flexibank system also allows Qantas to stand down base maintenance employees using hours accrued in the Flexibank (up to 38 hours per calendar year). When time is stored in the Flexibank, an employee may elect to have the accrued time paid out. If Mainline employees had the ability to accrue overtime in a Flexibank and take it on a discretionary basis, it would reduce the ability of the business to ensure that a consistent supply of labour was available for the performance of line maintenance, intermediate maintenance and CMS and represent too great a liability for Qantas to maintain on an ongoing basis. [70] Mr Saunders described how the Brisbane Agreement includes three separate rosters that base maintenance employees can be transitioned between. The Agreement enabled Qantas to implement alternate shifts and rostering, without the need for a majority vote of affected employees. He referred to cl 25.18.4 of the Brisbane Agreement, which allows for proposed rostering changes to be implemented on the completion of consultation, a call for volunteers and a seven day notice period. These flexibilities allow Qantas to meet the demands of the ‘peaks and troughs’ in work flow described above. On the other hand, the Mainline Agreement requires a majority vote of affected day workers or shift workers to introduce a change of rostering (beyond a change to the day on which ordinary hours are to be worked or the spread of daily hours). [71] Mr Saunders said that the relatively consistent flow of work to intermediate maintenance, line maintenance and CMS means that Qantas has not found it necessary to -- 23 of 62 -- [2017] FWC 1526 22 require the same rostering flexibilities of Mainline employees as those that apply to Brisbane employees. [72] Mr Saunders said that he was unaware of any previous difficulties that had arisen in relation to the fairness or efficiency of bargaining for the predecessor agreements to the two current Agreements. In particular, he said there has not been: (a) an unsuccessful vote (i.e. a ‘no’ vote); or (b) any industrial action; or (c) any good faith bargaining order made pursuant to s 228 of the Act (or a related ‘concerns’ notice pursuant to s 229(4)(b));or (d) any scope order made pursuant to s 238 of the Act (or a related ‘concerns’ notice pursuant to section 238(3)(a) – other than the notice relevant to the current application); or (e) any bargaining dispute lodged pursuant to s 240 of the Act. [73] Mr Saunders described the chronology of the current round of bargaining. On 29 April 2016, Mr Thompson sent him letter requesting the release of delegates to attend a training and bargaining preparation session. On 14 June 2016, Mr Saunders telephoned Mr Thompson to respond to his letter of 29 April. During these discussions, Mr Thompson requested that Qantas provide a position in relation to: (a) the provision of paid meetings for delegates to prepare for bargaining; (b) the date the company intended to commence bargaining; and (c) holding joint negotiations (i.e. combined meetings) for the renegotiation of the two agreements. [74] On 17 June 2016, Mr Saunders telephoned and emailed Mr Thompson to advise that: (a) Qantas was not in a position to commence bargaining on the dates suggested in August 2016; (b) Qantas did not consider it appropriate to combine negotiations for the two Agreements into a single bargaining unit; and (c) Qantas was willing to consider other ways to facilitate efficient bargaining (such as running bargaining meetings sequentially, e.g. different morning and afternoon sessions, or sessions on subsequent days). -- 24 of 62 -- [2017] FWC 1526 23 [75] On 13 October 2016, Mr Saunders wrote to the Alliance Unions, requesting their attendance at a meeting in Sydney on 27 October 2016 to commence bargaining by initially holding a ‘meet and greet.’ On 13 and 14 October 2016, Qantas distributed the Notice of Employee Representational Rights to relevant employees for the proposed: (a) Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 10; and (b) Qantas Airways Limited (AWU, AMWU, CEPU) Brisbane Base Maintenance Agreement 5. [76] During the ‘meet and greet’ on 27 October 2016, a manager from each section of maintenance (base, intermediate, line and CMS) gave a brief presentation in relation to the work their section performs and the current issues facing that section. The purpose of these presentations was to: (a) provide general context for each area (including recent achievements and future challenges); (b) to satisfy any ‘curiosity’ of the Alliance Union representatives; and (c) to put names with faces. They also discussed general housekeeping matters and ground rules. He said that no bargaining positions or claims were discussed by any party at this meeting. [77] On 2 November 2016, the Alliance Unions wrote to Qantas to advise that they did not consider that bargaining was proceeding efficiently or fairly and that a single agreement would result in more efficient and fair bargaining. Mr Saunders described the letter as ‘somewhat surprising, given that at that time no bargaining had commenced and no discussions or exchanges of position regarding bargaining or the terms of any replacement agreements had taken place.’ [78] Mr Saunders explained that another joint meeting was held on 24 November 2016 with Mr La Spina, Qantas Group Chief Financial Officer, the Qantas bargaining team and bargaining representatives from the Alliance Unions (both in relation to the Mainline Agreement and the Brisbane Agreements). The sole purpose of the meeting was to hear from Mr La Spina, who Mr Saunders believed was the best person to provide the additional information that Qantas wanted to give the Unions as context to the upcoming rounds of -- 25 of 62 -- [2017] FWC 1526 24 bargaining. As no negotiations were required, he agreed that this should be a combined meeting, as it was also necessary due to Mr La Spina’s schedule. Mr Saunders said that during the meeting, he proposed dates in December 2016 when Qantas was able to meet in relation to each Agreement. In response, Mr Thompson said that the Alliance Unions would not agree to further separate meetings; rather, the Alliance Unions would insist on combined meetings and that they had lodged a scope order application with the Commission. [79] Mr Saunders described his recollection of the meetings on 8 December 2016, following the conference with the Commission, involving the Qantas bargaining team and bargaining representatives from the Alliance Unions. The day comprised the following meetings: (a) a joint pre-meeting of Union officials and delegates (which the Qantas bargaining team did not attend); (b) a meeting between the Qantas bargaining team and Union representatives in relation to the Mainline Agreement; (c) a joint lunch between the Qantas bargaining team and all bargaining representatives; and (d) a meeting between the Qantas bargaining team and Union representatives in relation to the Brisbane Agreement. [80] Mr Saunders had understood that the purpose of the meetings was for the Alliance Unions to present their log of claims and that this understanding was based on his interpretation of the directions from the Commission at the conclusion of the conference on 24 November 2016. During the meetings of 8 December 2016, Mr Thompson stated that the Alliance Unions: (a) would not be presenting a log of claims at those meetings; (b) would instead be presenting a ‘list of issues’ in relation to which they required further information; and (c) the further information requested from Qantas would form the basis of an eventual log of claims being prepared by the Alliance Unions to Qantas at a later date. [81] Mr Saunders claimed that with the exception of a small number of obvious ‘issues’ (such as a 4% wage increase), the information put to Qantas was not sufficiently detailed to -- 26 of 62 -- [2017] FWC 1526 25 allow Qantas to ascertain or understand the Alliance Unions’ bargaining position or claims. For example, the extent of the information provided on these ‘issues’ was no more than: (a) the use of contractors and third party labour suppliers; (b) fleet plans; and (c) planning for workforce skill and capability development to meet the needs of the future fleet. [82] Mr Saunders said that once Mr Thompson had finished reading the ‘list of issues,’ he again restated that the list was not a log of claims and that the Alliance Unions would not be in a position to formulate or provide a log of claims until such time as Qantas provided the requested information. The Alliance Unions requested further information in regard to Qantas’: (a) plans for its fleet in the future; (b) labour demographics; (c) future use of apprentices; (d) future use of labour hire; and (e) plans for the introduction into service of the Boeing 787. [83] Qantas insisted the information in relation to the two Agreements would be presented in separate meetings. The information in relation to each group would be different because of the distinct nature of each group and certain information would only be relevant to one or other of the groups, and some of the information would be easier to obtain in relation particular maintenance groups than others. Mr Saunders believed it would be significantly more burdensome to hold these meetings jointly. This view was explained by Mr Smith. [84] Mr Saunders rejected Mr Thompson’s evidence that he had said ‘the skills and tasks are the same in heavy maintenance and line maintenance.’ He said this was a mischaracterisation of the point he made on 8 December 2016 which reaffirmed that base maintenance requirements are unique. [85] Mr Saunders said that Qantas offered to hold separate meetings on 14 and 15 December 2016, but the Alliance Unions declined the offer and instead proposed a combined meeting on 14 December 2016. Notwithstanding agreement could not be reached as to when they would meet again, he started to collate the requested information. -- 27 of 62 -- [2017] FWC 1526 26 [86] On 9 December 2016, Mr Saunders sent an email to the Alliance Unions confirming that Qantas was able to meet again and was able to start providing the requested information on 14 December (for the Mainline Agreement) and 15 December (for the Brisbane Agreement). He received no response. [87] Mr Saunders added that a Sydney based AME (Vlado Maric), had notified Qantas that he is as an individual bargaining representative (representing himself) in relation to the Mainline Agreement. Qantas had met with him separately. [88] Having spoken with managers from each maintenance area, Mr Saunders understood that Qantas is generally happy with the way that the Brisbane Agreement regulates the performance of work in base maintenance. Qantas’ key claims for the Brisbane Agreement would likely focus on further tailored, nuanced changes to provide the necessary rostering and resourcing flexibility to deal with variable work demands and to assist in pursuing third party base maintenance work. [89] In regards to numbers of attendees at meetings, Mr Saunders believed approximately twenty people (including National Union officials and employee representatives) attended the joint meetings on behalf of employees and the Alliance Unions. Only three of those twenty attendees are employee representatives for the Brisbane Agreement. [90] Mr Saunders described how prior to the Alliance Unions’ correspondence of 16 September 2016 and the application made to the Commission on 24 November 2016, the Alliance Unions had not advised Qantas that they wanted to change the scope of the Agreements; rather, correspondence was confined to meeting logistics only. Further, prior to the lodgement of the scope application, not one employee, participating in bargaining (including Union delegates), had mentioned that scope was an issue. [91] Based on his experience, Mr Saunders believed that scope is an issue that can be discussed and bargained over (i.e. traded for other conditions or compromised). Alternatively, scope is an issue that can be ‘carved out and put aside’ while the balance of the issues are considered and negotiated. To this point, Mr Saunders did not accept that bargaining had been -- 28 of 62 -- [2017] FWC 1526 27 inefficient; rather he said that the parties are yet to commence bargaining, so the efficiency of it, or otherwise, remains to be seen. [92] To the extent that the Alliance Unions are concerned about duplication of process or limitations on the bargaining representatives’ ability to attend meetings arising from two agreements, these concerns, in his opinion, are overstated. In any event, there are a number of measures that have and can be undertaken to address these concerns, including the ability for delegates to dial into meetings via telephone. [93] Mr Saunders believed that a scope order would not address the inefficiencies referred to by the Alliance Unions and that it would actually have the opposite effect. Delegates would be attending meetings to discuss topics about which they have no knowledge. This will require explanation, thereby prolonging the meetings unnecessarily. In addition, there would be a dilution of relevant employees’ views by the views of employees not affected by particular issues. There would be a single vote on all conditions, rather than two votes on the conditions that are specific to the respective groups. [94] In relation to Mr Thompson’s evidence, in which he suggested that the Alliance Unions would ensure that minority members’ views are not ‘steamrolled,’ Mr Saunders said that this assurance did nothing to appease Qantas’ industrial requirements for base maintenance. In circumstances in which Qantas might require flexibility or unique terms for base maintenance, the Alliance Unions would only need to convince the National body of employees (or a portion of them) to veto the necessary change, or result in a potential scenario where a majority of employees opposed the change, despite the Alliance Unions’ preferred views. [95] Mr Saunders also proffered a view that joint bargaining discussions in relation to the obligations or benefits under either Agreement may create tension between groups of representatives from different areas of maintenance. Tensions and discussions about the equality of obligations and benefits across different areas of maintenance is neither helpful, nor efficient in the bargaining process. [96] Mr Saunders reaffirmed that Qantas’ operational needs, particularly in relation to flexibility in base maintenance, will not change. Accordingly, Qantas’ bargaining position in -- 29 of 62 -- [2017] FWC 1526 28 relation to those needs is unlikely to change. In this context, a forced joinder of bargaining meetings will not result in a change to Qantas’ approach to bargaining (i.e. Qantas will still have claims specific to base maintenance as against non-base maintenance). However, it will draw negotiations out or become unnecessarily lengthy when those needs are required to be discussed and negotiated with a group of National maintenance delegates who are not familiar with base maintenance. [97] Mr Saunders set out some of the difficulties joint bargaining would have in relation to two key issues for base maintenance: the use of contractors to manage ‘peaks and troughs’ and rostering flexibility. Employees in intermediate maintenance, line maintenance and CMS would likely consider the prospect of a Flexibank to be an attractive option. However, Qantas could not offer the same entitlements and flexibilities to employees outside of base maintenance. If Qantas was unable to reach an agreement that included the flexibilities necessary for base maintenance to remain competitive, it would jeopardise the viability of the operation and the security of the Brisbane employees’ employment. He expected there would be strong resistance from National Mainline delegates to the use of contractors in general maintenance. The concern over ‘creep’ and how these arrangements could be effectively ‘siloed’ would become significant ‘blockers’ to agreement. [98] Mr Saunders said that he had been informed by the Qantas management responsible for the particular areas of maintenance (Chris Tobin, John Walker, Paul Crawford and Cameron Hoey) that Qantas maintenance employees are not particularly concerned with the scope of the agreement. In addition, he also said he had been informed that employees are frustrated by the scope dispute and would rather progress to discussions about their future terms and conditions. [99] In relation to the Alliance Unions’ evidence that employees ‘move between the two areas as the need arises,’ Mr Saunders said this is not accurate. In fact, this is limited to discreet occasions in which these transitions occur. Examples are where employees do so in order to satisfy the specific training needs of a general maintenance employee; to allow a base maintenance employee to expand their maintenance experience; or to allow an apprentice to gain experience completing work in another area of maintenance. This program is entirely discretionary and is intended to expand the maintenance knowledge and experience of base maintenance employees. It is not required operationally and could be terminated at any time. -- 30 of 62 -- [2017] FWC 1526 29 The use of apprentices out of base maintenance is not required operationally and could be discontinued by Qantas if deemed necessary. [100] In cross-examination, Mr Saunders agreed that theoretically all of the content of the two Agreements could be incorporated into one agreement, but the Company’s concerns have been about the bargaining process, not necessarily the end form of that process. [101] Mr Saunders was closely questioned as to the format of the meetings of 8 December 2016. However, he believed a process whereby all the delegates ‘caucused’ in the morning, then with two meetings sequentially, meant that participants in the second meeting would need to be released four to five hours earlier to attend the caucus and then be unproductive until the second meeting. [102] Mr Saunders agreed that in the Qantas letter of 13 October 2016, it was proposed to have a meeting on 27 October to ‘commence bargaining for new enterprise agreements.’ He agreed the 27 October meeting was the first formal bargaining meeting, but believed it was merely a ‘meet and greet’ session. [103] Mr Saunders specifically recalled that in the meetings of 8 December, Mr Thompson had expressly said that the Alliance Unions were presenting a list of issues (numbering 32) that required further information from Qantas before the log of claims could be formalised. Each meeting lasted one and a half hours to two hours. [104] In answer to questions from me, Mr Saunders said that Qantas was in the process of proposing its own log of claims, some of which will be already known to the Unions. However, the document had not been finalised to this point. He believed that out of 10, he rated Qantas’ awareness of what the Alliance Unions are seeking as a three and the same rating for Qantas’ ability to properly respond to those matters. Mr Paul Crawford [105] Mr Crawford is employed as the Manager of Qantas’ Base Maintenance in Brisbane and has been in the role since November 2012. He described his duties as including: -- 31 of 62 -- [2017] FWC 1526 30 (a) supervision of employees; (b) monitoring Qantas aircraft which are the subject of base maintenance works; (c) monitoring third party aircraft that are the subject of base maintenance works; (d) the financial performance of Base Maintenance; and (e) the operational and safety performance of Base Maintenance. [106] Mr Crawford’s evidence was largely consistent with that of Mr Saunders’. However, he provided more context around the differences between the work performed by base maintenance compared with general maintenance employees, which he categorised into the following areas: (a) the nature of the work; (b) duration; (c) location; (d) training; (e) rostering; (f) qualifications; and (g) aircraft. [107] Mr Crawford provided a breakdown chart of how many employees work in each area as follows: Brisbane Sydney Melbourne Adelaide Perth Total Base Employees 245 0 0 0 0 245 General Maintenance Employees Intermediate Maintenance 0 324 0 0 0 324 Line Maintenance 8 42 60 5 29 144 -- 32 of 62 -- [2017] FWC 1526 31 CMS 0 0 100 0 0 100 Apprentices (being covered by the Base Maintenance Agreement or the General Maintenance Agreement subject to ‘base’ work area) 75 6 0 0 0 81 Total 328 372 160 5 29 894 [108] Mr Crawford described the gradual closing of Qantas’ base maintenance facilities and relocation to Brisbane. In May 2012, Qantas announced that, for operational reasons, it would close its Tullamarine base maintenance facility. In September 2012, eligible employees previously employed at Tullamarine were redeployed to Brisbane. To the best of his knowledge, all employees who expressed a willingness to relocate to Brisbane were offered the opportunity to do so. In November 2013, Qantas announced that, again for operational reasons, it would close its Avalon base maintenance facility. In April 2014, eligible employees, previously employed at Avalon, were redeployed to Brisbane. From this time, Brisbane became the only location for Qantas’ base maintenance work. The reasons for the closures included the following: (a) the inefficiency of operating three separate base maintenance facilities, each of which had a significant amount of ‘downtime’ within them; (b) the inefficiency of operating and maintaining duplicates of particular tooling, facility overheads and maintenance resources; (c) the shrinking size of Qantas’ Boeing 747 fleet (meaning that there was less maintenance to be performed by base maintenance employees at Avalon); and (d) the existence of an available hangar in Brisbane which was suitable for base maintenance work. [109] Mr Crawford detailed some of the regulatory requirements which surround maintenance work performed by Qantas. Qantas’ internal compliance is set out in the Qantas MOE. Adherence to the Qantas MOE ensures compliance with the strict industry regulations -- 33 of 62 -- [2017] FWC 1526 32 enforced by CASA. In particular, such work is subject to the Civil Aviation Safety Regulations (1998) (‘CASA Regulations’). The Qantas MOE, contains the technical definition of the work which is approved by CASA to be performed by Qantas’ base maintenance operations. This means that should base maintenance work be performed by any of Qantas’ other maintenance operations or areas, it would breach CASA Regulations and would expose Qantas to fines and other penalties imposed by CASA. The only location Qantas holds an approval from CASA for the conduct of base maintenance work is the Brisbane International Airport. Therefore, if Qantas conducted base maintenance work outside of this area, it would be in breach of CASA regulations. [110] Mr Crawford rejected the evidence of the Alliance Unions that there is uncertainty in the delineation between base maintenance work and other maintenance work performed by Qantas. While there is a core element of work which is common to all areas, it does not mean the operations are comparable. He reaffirmed there are additional duties and skills specific to base maintenance. In the rare circumstances that Mainline employees perform work in conjunction with base maintenance employees, that work is comprised of the core set of skills shared between each group. Mainline employees do not perform base maintenance work. [111] It was Mr Crawford’s evidence that all base maintenance work is undertaken in Brisbane. Some line maintenance is also undertaken in Brisbane, however this work is undertaken at a distinct location that is approximately 20 – 30 minutes (by car) from the base maintenance facility. Base maintenance employees in Brisbane rarely have any interaction with the line maintenance employees. This is because their work is unrelated to the work performed by line maintenance employees. Interaction would only occur in circumstances such as: (a) the relocation of line maintenance work that is required to be performed in a location that has additional environmental controls (i.e. out of the wind and the elements); or (b) during an ad-hoc reconfiguration project (such as the reconfiguration of an entire aircraft); or (c) if overnight work has been planned on a line maintenance aircraft and it requires cover from the weather. -- 34 of 62 -- [2017] FWC 1526 33 [112] Mr Crawford stated that the performance of base maintenance work requires specific facilities. Primarily, the work requires the hangar to be fitted with specific ‘docking’ that allows the employees easy access to all parts of the aircraft to perform their duties. The ‘docking’ resembles scaffolding which surrounds the aircraft. The performance of line maintenance and intermediate maintenance does not require the same infrastructure (‘docking’) as base maintenance. Some intermediate maintenance is performed with ‘docking’ in Sydney. However, this is merely because the original ‘docking’ remains from a previous era when base maintenance was performed in Sydney. [113] Mr Crawford said that the nature of base maintenance work, requires employees to hold a greater number of qualifications. For example, 52% of base maintenance employees hold additional certification to perform work in confined spaces, as opposed to 23% of Mainline employees. Base maintenance employees are regularly required to perform work in a confined space, such as the opening of a fuel tank to perform inspection and repairs, which is planned work within base maintenance. In contrast, such a requirement would be rare for a Mainline employee and would not constitute planned work. [114] Mr Crawford estimated that for an AME trained in line maintenance, an addition of six to twelve months of additional ‘on the job training’ would be necessary to achieve full competency as a base maintenance employee. Similarly, he estimated that for an AME trained to competency in base maintenance, two to three months of additional training would be required to achieve full competency in line maintenance. He reasoned that the difference is because base maintenance employees usually have more in-depth knowledge of maintenance checks, and the nature of the skills and duties are still very different between the two different types of maintenance. [115] Mr Crawford also described how base maintenance work is only carried out by Qantas on three of its aircraft - the Boeing 737, 767 and the Airbus A330. Base maintenance is carried out overseas on its Boeing 747s and Airbus A380s, for economic reasons. [116] Mr Crawford described the duties involved with intermediate maintenance. It involves the regular, intermediate level of checks and repairs required to be performed on an aircraft. This work requires the monitoring of an aircraft’s condition and maintenance repairs to particular parts of the aircraft. Intermediate maintenance is less significant than base -- 35 of 62 -- [2017] FWC 1526 34 maintenance, but more significant than line maintenance. Examples of tasks undertaken in intermediate maintenance are: (a) checking and, if necessary, changing filters; (b) lubrication of key systems, such as hydraulics; (c) inspection of emergency equipment, such as evacuation life rafts; (d) minor repairs and inspections; (e) testing and repair of in-flight entertainment systems; (f) general cabin maintenance; and (g) maintenance check events up to ‘A’ Check level, being a level below the ‘lowest’ check performed by base maintenance. [117] The average duration of a single task undertaken by intermediate maintenance is two to three days. It is all performed in Sydney. He described how it operates on an ‘extended hours’ basis, meaning it runs on a 24 hour, seven days a week basis. Mr Crawford also said that intermediate maintenance requires work of a wider range than base maintenance (the Airbus A380 and A330, and Boeing 747 and 737s fleet). [118] Mr Crawford said line maintenance is the most common maintenance undertaken by Qantas. It is primarily comprised of two elements: (a) performing mandatory checks on all Qantas aircraft, which arrive at airports in Australia; and (b) repairing minor defects reported by Qantas crew when they arrive at airports in Australia. [119] The Qantas MOE provides the following details of the scope of maintenance services performed by line maintenance: -- 36 of 62 -- [2017] FWC 1526 35 (a) trouble shooting and defect rectification; (b) component replacement; (c) scheduled maintenance and/or checks, including visual inspections which detect obvious unsatisfactory conditions/discrepancies, but do not require extensive in depth inspection; and (d) minor repairs and modifications which do not require extensive disassembly and can be accomplished by simple means. Line maintenance is the least onerous aircraft maintenance that is undertaken by any of the Qantas maintenance areas and is focused on minimising turnaround time for aircraft at each airport. Mr Crawford said that it does not take an extended period of time to do these duties. It is intended to be completed in the scheduled turnaround time of an aircraft at each airport, as well as overnight before an aircraft’s first flight the next day. Line maintenance is performed by Qantas at each of its major domestic and international terminals in Australia. [120] In regard to qualifications, Mr Crawford said that employees employed in line maintenance are able to obtain a ‘Category A Licence’ which is additional to their qualifications as an AME. This qualification allows a line maintenance employee to certify particular maintenance work that would otherwise require certification from a LAME. However, the additional qualification provided by a ‘Category A Licence’ is expressly limited to line maintenance and is not applicable to base maintenance work. Given the more complex and technical nature of base maintenance, the CASA Regulations do not allow for the certification of base maintenance work by a Category A Licence holder. [121] Mr Crawford described CMS as maintenance carried out on independent parts of an aircraft that have been detached from the aircraft and transported to a separate maintenance workshop for repair. The duration of work is determined on a case by case basis. Time restrictions do not apply as they do in other areas of maintenance. CMS work is only performed in Melbourne, with some exceptions, in which case a temporary workshop can be set up at a different port. [122] Mr Crawford described how apprentices ‘rotate’ through the different areas of maintenance. He agreed that a rotation through base maintenance is necessary in order for them to complete their apprenticeship. -- 37 of 62 -- [2017] FWC 1526 36 [123] Mr Crawford responded to the evidence of Mr Wilcox and Mr Corrie regarding reconfiguration projects being performed by base maintenance, intermediate maintenance and line maintenance. While base maintenance does perform reconfiguration projects, it is not correct to suggest that this means base maintenance work is performed by intermediate maintenance employees or line maintenance employees. Reconfiguration projects are, essentially superficial or minor work that is required to change the appearance, layout or passenger features of an aircraft. This work is not base maintenance work. [124] Mr Crawford’s evidence was that the rostering flexibility (which is described by Mr Saunders above) is required by Qantas’ base maintenance facilities and these flexibilities are not required to the same extent in other Qantas maintenance facilities. His reasons for this are largely consistent with those of Mr Saunders and I do not repeat them. [125] In regards to the Flexibank system (also described by Mr Saunders above) Mr Crawford deposed that it is critical to the future efficient operations of base maintenance in Brisbane. Again, his reasons were largely consistent with Mr Saunders’ evidence. [126] Mr Crawford described the market competition which applies uniquely to base maintenance. Due to its labour intensive requirements, competitor Maintenance Repair Organisations with lower labour costs can offer significantly lower prices for the performance of base maintenance work. The fact that Qantas performs its own base maintenance work is entirely unique to Qantas. All of its competitors have contracted the performance of their base maintenance work offshore. In order to justify its viability and sustainability, Qantas needs to ensure it is superior in regards to factors other than costs, such as efficiency, reliability and turnaround times. This requires maximum flexibility. It is necessary for base maintenance to: a) pursue non-financial competitive advantages over international MROs, including flexibility and timeliness of work; b) in some circumstances, incorporate the use of contractors to manage ‘peaks and troughs’ in demand for base maintenance work; and c) pursue additional, third party base maintenance work from other airlines. [127] In respect to the use of contractors, Mr Crawford said base maintenance is the only maintenance area within Qantas that has the ability to successfully implement and utilise a contractor workforce in order to manage ‘peaks and troughs’ in workflow. It would be far -- 38 of 62 -- [2017] FWC 1526 37 more difficult to reach and maintain an agreeable solution in this regard if base maintenance employees were engaged under the Mainline Agreement. [128] In regard to third party maintenance, Mr Crawford said that while Qantas has not undertaken any base maintenance work for a third party in many years, it had recently entered into an agreement with Hawaiian Airlines to do some of its base maintenance. During these negotiations, Qantas was able to successfully show that base maintenance employees could achieve the flexibility and independence sought by Hawaiian Airlines because of their own unique enterprise agreement. [129] In oral evidence, Mr Crawford responded to Mr Corrie’s evidence that base maintenance employees are engaged in ‘one-day checks.’ He conceded they were, but said that it represented a fraction of their annual work of around 0.5 per cent and occurs when the aircraft is on the ground ‘naturally’ for the day. [130] Mr Crawford described the additional licensing requirements (C-Licence) for LAMEs which is specific to base maintenance due to complexities relating to checking of the aircraft before its release to service. He agreed that a single national Agreement for LAMEs is not a hindrance to obtaining the C Licence. [131] Mr Crawford agreed that the MOE is not a fixed document, but to change it is an ‘extremely complex task,’ involving an application to CASA and thorough auditing by the Regulator. It involves the people, their qualifications, the facilities, the training and the procedures and process. The exercise can take six months and can cost millions of dollars. [132] Mr Crawford confirmed that approximately 99% of the Brisbane based maintenance work is on the 737 and the A330 aircraft, involving around 15,000 pieces of tooling to support the ‘deep’ level of maintenance, compared to around 10,000 pieces of tooling in other line maintenance locations servicing the entire fleet. [133] Mr Crawford emphasised that having a local agreement with its employees exhibiting significant flexibilities is a very strong selling point in broadening Brisbane’s base maintenance operations. -- 39 of 62 -- [2017] FWC 1526 38 [134] In cross-examination, Mr Crawford was taken to the Qantas MOE, which included amendments since May 2013 reflecting the Regulator’s requirements when new aircraft are introduced or changes to maintenance are necessary. Mr Crawford agreed the document defined line maintenance and base maintenance, but did not refer to ‘intermediate maintenance.’ Mr Crawford acknowledged that while he had not heard LAMEs use the expression, it is an industry term used to describe the level of maintenance that sits between line and base maintenance. He relied on the second and third dot points in the third box of the chart below at page 47 of the MOE which reads in full: Details of the Scope of Maintenance Services under the A1 Rating Base Maintenance (B) CASR MOS Part 145.A.1  Base Maintenance ‘C’ Check and above including modifications, airworthiness directives and service bulletin inspections, cabin reconfigurations, structural repairs, overhaul, rigging, testing and painting.  Support shop activities including, NDT, welding, machining, sheet and composite repair, maintenance of removed aircraft assemblies such as seat, galley, toilet modules other monuments and flying control surfaces for re-fitment to the same aircraft the items were removed from. Line Maintenance (L) CASR MOS Part 145.A.75 (c)  Trouble shooting and defect rectification;  Component replacement with use of external test equipment if required.  Scheduled maintenance and/or checks including visual inspections that will detect obvious unsatisfactory conditions/discrepancies but do not require extensive in depth inspection.  Minor repairs and modifications which do not require extensive disassembly and can be accomplished by simple means.  The provision of maintenance services in accordance with progressive type programs including ‘A’ Checks and packaged ‘C’ Checks and airworthiness directives and service bulletin inspections when able to be accomplished in a Line Maintenance environment. Additional Scope  Quality & Safety – AMS may grant approval for certification by a QE – AMS engineer at a location not listed above in accordance with section 1.7.7 of this MOE. (CASR MOS Part 145.A.75-2) -- 40 of 62 -- [2017] FWC 1526 39  Sydney Aircraft Maintenance (SAM) has the Competency, Tooling, Facilities to undertake a greater level of maintenance for aircraft approved under the A1 Rating and additionally includes the capability for; full back-shop support (Composites/ Sheet Metal/Paint/Aircraft Furnishings/Tubes), complex repairs, cabin maintenance, FITCOM, NDT, major repairs, avionic system maintenance including IFE systems, aircraft shoring, jacking, weighing, modifications, and reconfigurations.  This excludes the performance of Aircraft Check Packages designed for “BM” level completion. (My emphasis) SUBMISSIONS For the Alliance Unions [135] In opening, Mr Nguyen noted the statutory requirements, set out in s 238(4) of the Act which Qantas had agreed to. He then identified the matters which remain in dispute being:  whether the Alliance Unions are meeting good faith bargaining requirements;  whether the proposed scope order will promote fairer and more efficient bargaining; and  whether it is reasonable in all the circumstances for the Commission to make the order. [136] Before addressing these matters, Mr Nguyen submitted that in deciding this application the Commission must take into account the most current information which is available. This must include what happened in the meetings which took place on 8 December 2016; see: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24 and Kantfield Pty Ltd v Australian Workers’ Union, the [2016] FWCFB 8372. It was argued that these decisions establish that in consideration of the scope order, the Commission must take account of all the circumstances relevant at that point of time. The issue on 8 December 2016 was not a refusal of the Alliance Unions to meet, but a rejection of the format of the meetings. This does not demonstrate that the Alliance Unions were acting in bad faith. He referred to the evidence that it was Mr Smith who had said on 8 December that ‘it’s (scope) obviously a threshold issue’ -- 41 of 62 -- [2017] FWC 1526 40 and it was ‘pointless to hold any further meetings until the scope order application was heard and determined.’ [137] Mr Nguyen relied on MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWAFB 6519 (‘MSS Security v LHMU’) as authority for the proposition that scope does not necessarily have to be resolved at the outset. It may continue to be a matter of disagreement after the NOERR have been issued to a wider cohort of employees and bargaining continues. Mr Nguyen submitted that Qantas is refusing to meet according to the broader scope, without seeking a scope order itself and is demanding the Alliance Unions meet according to a narrower scope. The position advanced by Mr Thompson, in correspondence of 16 September 2016 to Qantas, was for the broader group of employees to bargain from the commencement of bargaining, until the scope was either negotiated or subject to an order of the Commission. He put that Qantas had agreed to commence bargaining in relation to the broader scope, but refused to negotiate any further. In fact, it was Qantas which was not meeting good faith bargaining requirements. [138] Mr Nguyen also rejected the submission that the Alliance Unions were not meeting good faith bargaining requirements because they had not considered Qantas’ proposed scope. This was contrary to the evidence, which disclosed that the Alliance Unions had actually put why they opposed Qantas’ proposed scope. These reasons were that the Alliance Unions’ claims were identical; Brisbane employees felt like ‘second class citizens’ because information was being denied to them, all employees have shared interests in future maintenance requirements; and the rotation of employees between line and heavy maintenance, particularly apprentices. [139] Mr Nguyen said that the Alliance Unions: (a) are attending and participating in meetings at reasonable times; (b) are disclosing relevant information in a timely manner; (c) are responding to Qantas’ proposals in a timely manner. He noted that Qantas has not formalised its bargaining position or its attitude to the Alliance Unions’ claims; (d) have given genuine consideration to the proposal of the other party as to scope. The concerns of the Unions are clear from the history of bargaining and the recent communications between the parties; see: the uncontested evidence of Mr Thompson; -- 42 of 62 -- [2017] FWC 1526 41 (e) there was no evidence of the Alliance Unions engaging in capricious or unfair conduct, undermining freedom of association or collective bargaining. By requiring one meeting in the morning and one in the afternoon, this demonstrated Qantas’ own capricious conduct; (f) are recognising other bargaining representatives. [140] Mr Nguyen put that if Qantas is of a mind of seeking its own scope order, then the Alliance Unions would seek to put further submissions in opposition to such an application. Mr Nguyen added that the Alliance Unions put no submissions as to whether or not Qantas is meeting good faith bargaining requirements; see: United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board; Metropolitan Fire & Emergency Services Board v United Firefighters' Union of Australia [2010] FWAFB 3009 (‘UFU v MFESB’). [141] As to s 238(4)(b) of the Act, Mr Nguyen referred to the objects of the Act (s 3) which underpins a requirement for employees to have access to collective bargaining to equalise the bargaining power imbalance that exists between an employee and employer. The views of the employees who wish to bargain together with the employer was a relevant consideration going to fair bargaining. He put that the Brisbane employees feel that once agreement has been first reached for the Mainline Agreement, it is impossible for them to move Qantas on the decisions which Qantas has already made (the ‘poor cousins’; see: Mr Corrie’s evidence). Mr Nguyen claimed that Qantas have withheld information from groups of employees, although such decisions affect the long term job security of all employees. [142] Mr Nguyen submitted that there was no history of conflict between the two groups of employees, as was evidenced in the UFU v MFESB case. There was evidence that the parties have always been able to discuss and agree on area specific matters which were rarely in contest. [143] Mr Nguyen relied on the decision in Royal District Nursing v Health Services Union and another [2012] 218 IR 276 (Royal District Nursing v HSU), which considered a similar set of facts as here, although in reverse. In that case, the Unions wanted two agreements and the employer one. Similarly, the Commission should reject arguments that a larger cohort of employees would overwhelm the smaller cohort, who it was claimed would lose their voice. Mr Nguyen rejected Qantas’ submission that the evidence of historical bargaining does not -- 43 of 62 -- [2017] FWC 1526 42 point to any unfairness. He said the evidence of unfairness was that a significant number of items end up exactly the same in both agreements. In any event, there is a history of a National process for formulating logs of claims and National delegates’ meetings. In addition, the pattern of the Mainline Agreement being imposed on Brisbane employees demonstrates a legitimate concern that they are excluded from the forum where real decisions are being made. [144] Mr Nguyen identified a number of inefficiencies in the historical approach to bargaining, such as a significant number of items that are exactly the same, duplication of resources and time and costs devoted to two meetings about the same matters. Mr Nguyen said that there is clear evidence of the employee preference for a single agreement, as disclosed by petitions signed by a majority of employees at all locations. [145] Mr Nguyen further submitted that Qantas had not demonstrated that a single agreement would be a hindrance to any particular commercial and/or operational peculiarities relevant to Brisbane. Nor is there any barrier to Qantas having separate financial reporting units in having a single agreement. He pointed out the two Agreements have the same wage rates and classification structure and there is no issue if Qantas seeks to amend its existing MOE. He said that Qantas’ submission that future base maintenance requirements are likely to be different in terms of entitlements and conditions, is simply speculation, not evidence. In any event, any differences can, and have been negotiated with one set of negotiators. [146] Mr Nguyen submitted that the history of the two Agreements is not necessarily decisive. The evidence of duplication, inefficiency and unfairness has emerged over time. Mr Nguyen addressed Qantas’ emphasis on the ‘status quo’ by reliance on Transport Workers' Union of Australia v Chubb Security Services Limited [2012] FWA 2226 (‘TWU v Chubb’), Finance Sector Union of Australia v BWA Group Services Pty Ltd [2014] FWC 919 (‘FSU v BWA’) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Electrical, Energy and Services Division - Tasmanian Divisional Branch v Tasmanian Water and Sewerage Corporation (Southern Region) Pty Ltd T/A Southern Water [2015] FWC 4233 (‘Tasmanian Water’). -- 44 of 62 -- [2017] FWC 1526 43 [147] Mr Nguyen put that unlike the facts in FSU v BWA, there was no evidence here that the industrial practice would be disturbed and an employee petition in the FSU v BWA case was only 34% (as opposed to the petitions here). The later Tasmanian Water case, does not stand for a proposition that ‘status quo’ should be given some special priority. For Qantas [148] Mr Follett opened his oral submissions by putting that the Alliance Union’s application: (a) was fundamentally premature; (b) was entirely speculative; (c) lacked persuasive force; (d) provided no clear, obvious or compelling reason why the Commission should interfere in a matter which is classically the province of bargaining; (e) raised nothing more than a preference of the Union officials and delegates to avoid a trifling inconvenience; and (f) provided no reason to depart from long established, logical and reasonable status quo arrangements in respect to bargaining. [149] Mr Follett developed these propositions by putting that none of the four matters set out in s 238(4) of the Act had been satisfied by the Alliance Unions. Mr Follett noted the context of the application, in which to date, there had been only one meeting, where no bargaining positions were exchanged and only three concerns were raised. These were: 1. multiple meetings; 2. the existence of two documents; and 3. an assertion that Brisbane based employees cannot meaningful bargain. These matters became the focus of the application and the Alliance Unions’ case. Mr Follett submitted that the first two matters would never justify a scope order and the third was wrong in fact, and in principle. The fact is, so Mr Follett contended, there has been no material bargaining. Although the imperative is on scope being part of bargaining, scope order applications usually arise when bargaining has taken place over some time and where bargaining has broken down or has become inefficient or unfair; see: BRB Modular Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as -- 45 of 62 -- [2017] FWC 1526 44 the Australian Manufacturing Workers' Union (AMWU) [2015] FWCFB 1440 (‘BRB Modular v AMWU’) and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU) and others v Shinagawa Refractories Australasia Pty Ltd [2011] FWA 5935 (‘Shinagawa’). In this case, nothing has happened. [150] In respect to the first criterion in s 238(4), Mr Follett put that the Commission would not be satisfied that the Alliance Unions have met the good faith bargaining requirements for two reasons. Firstly, there has been no substantive bargaining. Neither party has exchanged a ‘log of claims.’ The 8 December 2016 meetings involved information sessions concerning Qantas’ business imperatives and financial position. The Alliance Unions had raised some issues, but required further information. Mr Follett said that while it was not suggested that this was bad faith bargaining – it was just no bargaining. Secondly, the good faith bargaining requirements are connected to the proposed notification times for enterprise agreements for which two NOERRs had been issued in respect to the two existing Agreements. Mr Follett submitted that the applicants here must bargain in good faith for the proposed agreements for which there has been a notification time and that can only relate to the two current Agreements. The Alliance Union’s position is that they would not bargain at all under the structure proposed, until the scope order is determined. He said the Alliance Unions can pursue scope, either through bargaining or this order, but they cannot refuse to meet or provide information in a process which is attached to two Agreements which remain in force. [151] As to issues of fairness and efficiency, Mr Follett submitted the Alliance Unions had failed to demonstrate how the scope order would promote efficiency or fairness. At best, the only evidence as to alleged inefficiencies and views about unfairness to the Brisbane employees, is entirely speculative; see: FSU v BWA. Just because there were two meetings in which the Alliance Unions presented the same issues says nothing about what was fair, unfair or inefficient. There was no evidence to support the proposition that simply having two meetings means it is inefficient. The cases the Alliance Unions relied on were clearly distinguishable in that the parties in the FSU v BWA and the Tasmanian Water cases could demonstrate a series of meetings in which inefficiencies and unfairness were identified. Not so here, he added. -- 46 of 62 -- [2017] FWC 1526 45 [152] Mr Follett put that moreover, the history of bargaining disclosed no evidence of:  concerns being raised by employees;  disagreements between groups of employees;  different claims or outcomes;  any failed employee votes for approval; or  any industrial action. [153] Mr Follett said that if it was true that the Brisbane employees now felt like ‘poor cousins,’ the Alliance Unions ‘have clearly not done a damn thing about it,’ in 12 years and four rounds of bargaining under the status quo. Mr Follett referred to Mr Thompson’s evidence in which he had insisted on separate bargaining on two separate logs of claims. Mr Follett asked rhetorically ‘so what has changed?’ Mr Follett added that the Commission does not know:  to what extent common issues are to be discussed, or how long such issues may take to discuss with different groups;  what Qantas’ log of claims is, or whether it will duplicate matters;  whether separate sub-groups of employees is going to work;  whether video conferencing or other information sharing technology will work; or  whether the difference in operational issues will arise or not. [154] In summary, Mr Follett put that all the Alliance Unions say is that there may be problems, but offer no evidence to justify their assertions. The onus is not on Qantas to prove the case to the contrary. [155] Mr Follett relied on FSU v BWU to demonstrate the differences between line maintenance, intermediate maintenance and base maintenance was a relevant factor in this case. Mr Follett relied on The Association of Professional Engineers, Scientists and Managers, Australia v Australian Red Cross Blood Service and others [2011] FWA 2914 (‘APESMA v Red Cross’) as raising similar submissions which Qantas make in respect to different groups of employees concerns being able to be met in a parallel process, with a proper focus on their concerns. -- 47 of 62 -- [2017] FWC 1526 46 [156] In respect to inconvenience and resourcing, Mr Follett rejected the claim that one meeting will be more efficient and less time consuming; see: Tasmanian Water. Mr Follett pointed to the inconsistency in the Alliance Union’s arguments when their answer to the logistical issue is to have separate sub-group meetings and separate caucuses on either site specific or operationally specific matters. This is exactly what has occurred in the past as the evidence of Mr Wilcox and Mr Corrie demonstrated. Mr Follett noted the slightly different positions in the evidence of the three Union witnesses as to the use of contractors and said there is nothing consistent about their message (on that issue). [157] As to issues of fairness, Mr Follett submitted that there ‘was not a jot of evidence’ to support the proposition that Brisbane employees do not get an opportunity to bargain, because by the time their turn comes, Qantas’ position is set. He pointed out that Brisbane employees have never raised this issue and in fact, Mr Thompson’s evidence is to the contrary, in that Brisbane employees make a ‘judgement call’ as to whether or not they expect to be able to get anything more from Qantas or just leave it. The truth is that the Brisbane employees have never tested the proposition. Moreover, Mr Follett put that such a proposition is entirely inconsistent with the Alliance Unions’ own submissions as having a consensus of a single log of claims. The Alliance Unions’ own submissions indicate they are not going to ask for anything different. He said, ‘yet there is unfairness because Qantas wasn’t giving us something we’ve never asked for.’ [158] Mr Follett added that it was an inescapable conclusion that whatever is negotiated and supported by the majority at all locations can only result in there being a prospect of the Brisbane employees being outvoted. As it presently stands, the Brisbane employees cannot have terms and conditions imposed on them by the majority. That is, the current position cannot be unfair, whereas if they could be outvoted, they might well claim unfairness. He observed it is usually the case that specific groups of employees seek to be ‘scoped out’, rather that ‘scoped in’ for these very reasons (of being outvoted by the majority). [159] Mr Follett said there was no evidence that Qantas had not provided all relevant information to the Brisbane employees. In any event, such a complaint was a classic good faith bargaining complaint which should be dealt with under those provisions, and not through a scope order application; see: BRB Modular v AMWU at [39] and 52 and National Union of Workers v Linfox Australia Pty Ltd [2013] FWC 9851 (‘NUW v Linfox’) at 61. -- 48 of 62 -- [2017] FWC 1526 47 [160] In dealing with ss 4 of s 238 in respect to reasonableness, Mr Follett submitted that the Alliance Unions need to establish ‘good’ reasons why the Commission should inject itself into the bargaining process where the scope of an agreement is ordinarily determined by the parties themselves in bargaining. These reasons must be ‘objectively justified’; see: BRB Modular v AMWU. Mr Follett added that scope orders are usually made where there are serious problems with bargaining, such as evidence on a historical basis of a process which had not, or is not working. There needs to be a real and significant reason for disturbing the status quo and not a reason which is speculative, hypothetical or argumentative. A scope order in this case is not objectively justified, where after 12 years and multiple bargaining rounds, no problems in bargaining had been disclosed; see: NUW v Linfox, Tasmanian Water and Shinagawa. [161] Mr Follett highlighted the following differences justifying the two agreements: a) there was (and still are) good commercial and operational reasons for the maintenance of two separate agreements as between General Maintenance and Base Maintenance, including having regard to the different needs regarding contractors, rostering and overtime flexibilities. b) the Alliance Unions seek to change the status quo which has existed for almost 12 years and four entirely efficient, fair and successful prior bargaining rounds, without any, or any adequate, justification. Mr Thompson’s evidence disclosed that nothing has changed since the Alliance Unions understood and accepted these differences and agreed to them. Qantas also relied on Mr Saunders’ statement at paras 32-57. [162] Mr Follett engaged in his own speculation in that reaching a common agreement on every issue, across each maintenance area, with every Union and group of employees, is likely to be more difficult and less efficient than negotiating for two agreements. Mr Follett submitted that the petitions of employees’ preference for a single agreement were unreliable. He queried why employees would have a particular concern about whether their terms and conditions are in one agreement or two. In any event, it is apparent that employees signed the petition simply because they were asked to. What the Alliance Unions did not properly disclose was the false propaganda material attached to the petitions, with questions such as -- 49 of 62 -- [2017] FWC 1526 48 ‘do you support fair bargaining?’ and advising employees that Qantas had walked away from agreed processes in the Commission. It is plain that employees did not understand what is actually being proposed and why. In any event, it is evident that the Alliance Unions are simply seeking to increase their bargaining leverage by weight of numbers, as Mr Corrie’s evidence disclosed. This is not a valid reason to seek a scope order; see: TWU v Chubb. [163] In reply, Mr Nguyen referred to Mr Thompson’s evidence concerning a Qantas proposal to include an RDO flexibility provision for Melbourne in which the Melbourne employees were consulted and the change subsequently became part of the Mainline Agreement. This was to ensure that the Melbourne employees were not outvoted and all the Mainline employees understood and were comfortable with the change, even though it did not directly affect them. CONSIDERATION Relevant principles and authorities [164] Both parties provided me with a comprehensive portfolio of Commission Full Bench and single member decisions (including relying on the same decisions to support their respective arguments), which are relevant to the considerations which the Commission is to take into account when determining whether to grant a scope order application. [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 -- 50 of 62 -- [2017] FWC 1526 49 parties to continue to consider the scope of the agreement in the overall context. (My emphasis) [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 -- 51 of 62 -- [2017] FWC 1526 50 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. (My emphasis) See also MSS Security v LHMU at paras 17-19. 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) See also: TWU v Chubb. 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 aid at para 52: -- 52 of 62 -- [2017] FWC 1526 51 [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. (My emphasis) 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. See also: Tasmanian Water at 158. 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 -- 53 of 62 -- [2017] FWC 1526 52 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. See also: FSU v BWA at 54. 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 -- 54 of 62 -- [2017] FWC 1526 53 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. I turn now to the specifics of this case. Is the scope order application premature? [167] While there is some force to Mr Follett’s submission that scope is a matter for bargaining and bargaining has not materially commenced, this application is premature, I am satisfied that there is a fundamental stalemate which is hampering the progression of the negotiations and will remain the ‘elephant in the room’ until some clarity is given about scope by the Commission; see: Shinagawa at 26. Indeed, Mr Thompson’s evidence was that Mr Smith said at the 8 December meetings, words to the effect of: ‘It’s (scope) is obviously a threshold issue… It’s pointless having any further discussions until the matter is heard. So it's pointless meeting on the 14th.’ I do not apprehend there to be any challenge to Mr Thompson’s evidence as to this conversation. I am also mindful of and adopt the practical comments of Cambridge C, in Australian Rail, Tram and Bus Industry Union v Australian Rail Track Corporation (ARTC) [2012] FWA 6329, where at para 69 the Commissioner said: [59] There appears to be an inescapable inefficiency attached to the pursuit of a scope order at a point in time after the enterprise bargaining negotiations have progressed. Logically, in order to ensure that enterprise bargaining is undertaken with efficiency any issue regarding the scope of the proposed agreement needs to be resolved before time, money and energy is spent in negotiation of the particular terms of a proposed agreement. Consequently there is a very strong prospect that any scope order which is not made at or shortly after the commencement of the bargaining process will fail to satisfy the requirement that it would promote the efficient conduct of bargaining. [168] It would be rather amusing, if it was not so significant to the employees who are looking to improve their wages and conditions in a new agreement, that the parties cannot even agree on whether the 8 December meetings were simply ‘meet and greets’ or the commencement of bargaining. Moreover, the parties cannot even agree whether the matters raised by the Alliance Unions on 8 December were a ‘log of claims’ or, as Qantas submits, a ‘list of issues.’ -- 55 of 62 -- [2017] FWC 1526 54 [169] The imperative on the Commission, as set out in the objects of the Act, is to promote the effective and efficient conduct of bargaining. In my view, it was what the legislature had in mind when it enacted the bargaining provisions in Part 2-4 of the Act and, in particular, set out the criteria for the Commission’s consideration in s 238(4), to achieve the fair and efficient conduct of bargaining. In my assessment, these sideline skirmishes and semantic ‘argy bargie’ has to end. The parties should simply ‘get on with the main game’ – bargaining for new industrial instruments. To the extent that a determination of the stalemate as to scope will focus the parties on the ‘main game’ then that should be resolved now, one way or another. I intend to do so. Have the bargaining representatives (the Alliance Unions) met and are meeting the good faith bargaining requirements? (Section 238(4)(a) of the Act) [170] In my experience, bargaining with a major employer such as Qantas, invariably begins with a preliminary meeting in which the employer sets out its financial and business results and forecasts, outlines its strategies and future operational requirements, identifies threats and opportunities for the business and details (where possible) workforce numbers, training requirements, apprentice numbers, etc. The Unions would table or outline their log of claims, identify principles and priorities for a new agreement and seek further information from the employer. While I do not know the exact details, this would seem to be precisely what took place in the 8 December 2016 meetings. It was conventional and unremarkable. Moreover, it is what I envisaged when I encouraged the parties on 1 December 2016 during a conference between the parties, to kick start their negotiations as they have traditionally commenced them, but on a ‘without prejudice’ basis as to their disagreement concerning scope. [171] Moreover, I am satisfied that Qantas accepts that bargaining was to commence, in the usual way, when Mr Saunders said in a letter to Mr Thompson dated 13 October 2016: ‘Qantas Airways limited proposes to commence bargaining for new enterprise agreements and intends to provide employees with a notice of representational rights over the coming weeks. Please advise the availability of the Alliance Unions to attend a meeting from 12:00pm on Thursday 27th October 2016 to commence bargaining for the proposed Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 10, and the Qantas Airways Limited (AWU, AMWU, CEPU) Brisbane Base Maintenance Agreement 5.’ -- 56 of 62 -- [2017] FWC 1526 55 That meeting occurred. In addition, I note that two earlier meetings on 31 May and 1 June were described as ‘training and bargaining preparation sessions.’ [172] In light of the correspondence between the parties and the meetings held in the lead up to 8 December 2016, I do not accept that bargaining has not commenced, or that there has been no bargaining and therefore this application is premature. If you accept (as one must) that scope is a matter for bargaining, then the discussion of scope in the meetings of 27 October and 8 December 2016, then logically these meetings were bargaining meetings. On any objective analysis, the Alliance Unions had considered the scope of the agreement/s, responded to Qantas with their views and simply do not agree with them. Thus, there is very little more to bargain about, in respect to that limited, but significant issue. [173] In my view, this disagreement tends to distract from the proper focus of whether bargaining will proceed more efficiently, effectively and fairly if the scope order is made in the wider context of all the criteria set out at s 238(4) of the Act. Of course, in the 8 December meetings, there was not the ‘sleeves rolled up,’ robust bargaining over specific terms and conditions for a new agreement/s. But, in my view, that does not lead to a conclusion that bargaining had not commenced. I am satisfied, that it has already commenced, some time earlier. Given this finding and Qantas’ concession that it makes no allegations of ‘bad faith’ bargaining by the Alliance Unions, I am further satisfied that s 238(4)(a) has been met. Will the making of the scope order promote the fair and efficient conduct of bargaining? (Section 238(4)(b) of the Act) [174] The Alliance Unions submit the proposition of unfairness on grounds that as Brisbane employees do not get an opportunity to bargain because the Mainline Agreement is already negotiated, they feel like the ‘poor cousins’ or ‘second class citizens.’ In my opinion, this proposition is dripping with a heavy pall of inconsistency and counterintuity. This is so for the following reasons: (a) The Brisbane based employees have never raised these concerns in 12 years and four rounds of bargaining; (b) The Alliance Union’s own evidence is that the Brisbane based employees make a ‘judgement call’ to accept the Mainline Agreement outcomes; -- 57 of 62 -- [2017] FWC 1526 56 (c) The Alliance Unions have never sought to test the proposition that they seek different terms and conditions. I do not understand Mr Nguyen’s submission that the evidence of unfairness was that significant items in the two agreements end up exactly the same. This is an odd statement of deductive reasoning. How is such an outcome possibly unfair between the two groups of employees? How can it be logically said that Brisbane employees are the ‘poor cousins’ if they are no poorer than their Mainline colleagues? Where is the actual evidence of unfairness? (d) One of the Alliance Unions’ central grounds in support of a single agreement is a proposition of a general consensus of employees as to the same log of claims. This is hardly consistent with a claim of unfairness because Brisbane employees do not have their concerns considered, with the presumable consequence of achieving something different, or indeed better than what the Mainline employees have agreed on; and (e) Under the status quo, Brisbane employees can never be outvoted by the overwhelming majority of employees under the Mainline Agreement. In other words, the status quo ensures that the Brisbane employees can never have terms and conditions imposed on them which they do not support as a separate group, in a separate ballot. There would be a real practical possibility that they could be outvoted on matters with which they do not agree. It is difficult to comprehend how this possibility is an indicia of unfairness compared to the current status quo arrangements. [175] The Alliance Unions submitted that the recent decision of Qantas to deny information to the Brisbane employees which Qantas believed was only relevant to the Mainline employees, was an obvious example of unfairness occasioned upon the Brisbane employees. This submission has no substance for the following reasons: 1. The refusal to provide information to the relevant employees and their representatives is predicated on the assumption that the information is relevantly connected to bargaining. As I do not have any details of the information sought, I am unable to make an assessment of its relevance to the Brisbane employees. 2. More importantly however, is that such a complaint is entirely a matter of good faith bargaining. If the complaint is believed to be valid, it should be pursued through an application under s 228(1)(b) of the Act. This scope order application should not be used for that purpose; see: para 166(4) above. 3. As the information (which I understand not to be confidential) was provided to the Mainline Union officials who are the same officials for both Agreements, it is -- 58 of 62 -- [2017] FWC 1526 57 nonsense to submit unfairness to the Brisbane employees in circumstances where these same officials can simply give it to them. Views of employees [176] It is incumbent on the Commission to consider the views of the employees as expressed in any evidence as to their views concerning the scope application. However, it must steadily be borne in mind that these views attract no greater weight, or more significance, than any other of the factors to be considered in s 238(4) of the Act; see para 166(3) above. [177] The Alliance Unions relied on the petitions of employees and the evidence of Mr Corrie, particularly, as demonstrating the overwhelming support from both Brisbane and Mainline employees for a single agreement and joint negotiations. [178] While the wording of the petitions is relatively neutral, the accompanying material was most assuredly not objective. Relying on loaded, emotive statements and propaganda material such as ‘the Alliance Unions are seeking to ensure a fair go and bargaining process,’ seems to me was designed to ensure a predetermined outcome. The petitions are therefore not only misleading, but the antithesis of the concept of objective justification. Essentially asking employees if they support ‘a fair go and bargaining process’ has the same, limited probative value as conducting a survey on the relationship between a parent and their children, by asking ‘do you love your children?’ Secondly, as to Mr Corrie’s evidence of his conversations with his members, there was no evidence of the number of persons he spoke to, what he said or what questions were asked. While I attribute no mala fide intent with Mr Corrie’s consultative exercise, it is not an objectively reliable guide, particularly given the contextual framework circulated by the Unions as just described. [179] More troubling perhaps is Mr Corrie’s evidence that everyone he spoke to - bar one - supported a single agreement and the majority were also very annoyed about the position taken by the one person who opposed it. This evidence says to me that by not supporting a majority view, and being criticised by your comrades for simply holding that view, that persons understandably not bother to take the risk of alienating your workmates. -- 59 of 62 -- [2017] FWC 1526 58 [180] Thirdly, if the Union’s evidence, (such as it was), that the overwhelming majority of employees support a single agreement, and that Brisbane employees felt like the ‘poor cousins,’ the ultimate democratic test is whether they support the agreement’s approval, in a secret ballot. If scope is such an important issue for them, the employees can make their views known firmly and decisively in that process. Whether a no vote means a delay in the bargaining, is not the point. If it is such a critical concern, then they will overwhelmingly vote no to approve the Agreement. Simply arguing that the Brisbane employees make a ‘judgement call’ that they will not do any better after the Mainline negotiations are concluded, does not ‘cut it.’ The Alliance Unions have never before tested Qantas’ resolve, or even asked for different terms and conditions; let alone voted against approval of the Brisbane Agreement because they wanted a different outcome. [181] Having considered the views of the employees, I am of the opinion that even accepting a reasonable majority of the employees may genuinely support a single agreement, this factor does not tip the balance, either way, as to whether the scope order should be made. [182] For the above reasons, I am not satisfied that the making of the scope order will promote more efficient, effective or fairer bargaining. That finding is sufficient to dismiss the application, but to do justice to the comprehensive opposing arguments put by both Mr Nguyen and Mr Follett, I intend to make finding on the remaining subsection of (4)(d) of s 238 of the Act, (noting that Qantas conceded that s (4)(c) had been satisfied). Is it reasonable in all the circumstances to make the scope order? (Section 238(4)(d) of the Act) [183] Of course, the notion of ‘reasonable’ is a broad, not easily definable concept, not least of all where the wide statutory discretion given to the Commission refers to reasonably being in ‘all of the circumstances.’ In my view, many of the matters I have already commented on, touch on questions of reasonableness. They are issues plainly encompassed by the phrase ‘in all the circumstances.’ One particular matter though, is notably apposite in this context; that is, the notion coined by the well known phrase ‘if it ain’t broke, don’t fix it.’ Put another, more elegant way, for a scope order application to succeed which changes a long standing history of untroubled scope framework, then the objective justification for doing so will need to be compelling. -- 60 of 62 -- [2017] FWC 1526 59 [184] In my view, the Alliance Unions have not made out a case to disturb the ‘status quo’ unarguably reflected in 12 years of history with four rounds of bargaining, without any complaint, let alone pressure over the scope of the Agreements. The highest the evidence gets was little more than aspirational speculation, preferred beliefs or trivial inconvenience. Such matters are not a proper or sound basis to ground the making of a scope order; see: para 166(7) above. [185] Qantas also identified multiple reasons why it was unreasonable to make the scope order. These were: a) there was (and still are) good commercial and operational reasons for the maintenance of two separate agreements as between general maintenance and base maintenance, including having regard to the different needs regarding contractors, rostering and overtime flexibilities; b) the future of base maintenance and the industrial requirements for that future, are likely to be significantly different from that of general maintenance; c) the highly likely significant increase in the prospect of agreement being difficult to reach. Whilst this is an outcome from bargaining, it is also part of the process or conduct of bargaining, especially where the manifestation of the inability to agree will be aspects of the bargaining dynamic created by a single agreement; d) the application is decidedly premature. The Alliance Unions have demonstrated no inefficiency or unfairness, have made only cursory attempts to bargain about or around scope and have not treated scope as a matter properly the subject of bargaining; and e) the Alliance Unions seek to change the status quo which has existed for almost 12 years and four entirely efficient, fair and successful prior bargaining rounds, without any, or any adequate, justification. [186] Apart from (d) above, these reasons provide a compelling basis for rejecting the scope order application. In doing so, I accept the evidence of Mr Crawford as to the importance of Brisbane’s specific flexibilities and independent different agreement as positive factors going to Brisbane’s base maintenance opportunities for further internal and external work in the future. An order dismissing this application will accompany the publication of this decision. For completeness, it is unnecessary to make the alternative scope order in Qantas’ preferred terms. -- 61 of 62 -- [2017] FWC 1526 60 DEPUTY PRESIDENT Appearances: Mr M Nguyen for the AMWU; Ms J Gherjestani for the AWU, Mr G Noble for the CEPU; and Mr M Follett of Counsel appeared for Qantas. Hearing details: Sydney 2017 February 22. Printed by authority of the Commonwealth Government Printer <Price code J, PR591063> -- 62 of 62 --