Scope orders

See Fair Work Act 2009 ss.238–239

If a bargaining representative for a proposed single-enterprise agreement (other than a greenfields agreement):

has concerns that bargaining for the agreement is not proceeding efficiently or fairly, and

• the reason for these concerns 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;
• the bargaining representative may apply to the Fair Work Commission for a scope order.

If the Commission grants the scope order, the order will specify the employer (or employers), and the employees who will be covered by the proposed agreement.

A bargaining representative for a proposed single-enterprise agreement may apply to the Commission for a scope order.

A bargaining representative may only apply for the scope order if the representative:

• has taken all reasonable steps to give a written notice setting out the concerns regarding the scope of the proposed agreement to the relevant bargaining representatives for the agreement
• has given the relevant bargaining representatives a reasonable time within which to respond to those concerns, and
• considers that the relevant bargaining representatives have not responded appropriately to those concerns.

A bargaining representative must not apply for a scope order if a single interest employer authorisation is in operation in relation to the proposed enterprise agreement.

The Commission may make a scope order if it is satisfied in relation to each of the following matters:

• that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements
• that making the order will promote the fair and efficient conduct of bargaining
• that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen, and
• it is reasonable in all the circumstances to make the order.

If the proposed agreement will not cover all of the employees of the employer (or employers), the Commission must, when deciding whether the group of employees who will be covered by the agreement was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

A scope order must specify the employer (or employers) and the employees who will be covered by the agreement.

A scope order may relate to more than one proposed single-enterprise agreement.

If the Commission makes a scope order, it may also:

• amend any existing bargaining orders, and
• make or vary other orders (such as protected action ballot orders), determinations or other instruments, or take such other action as the Commission considers appropriate.

A scope order in relation to a proposed single-enterprise agreement comes into operation on the day on which it is made.

A scope order ceases to operate at the earliest of the following:

• if the order is revoked – the time specified in the instrument of revocation
• when the agreement is approved by the Commission
• when a workplace determination that covers the employees that would have been covered by the agreement comes into operation, or
• when the bargaining representatives for the agreement agree that bargaining has ceased.

The date that a scope order comes into operation becomes the notification time for issuing a notice of employee representational rights.

However, an employer is not required to give a new notice of employee representational rights to an employee if:

• the employer previously issued the employee with a notice when the employer agreed to bargain, and

• the notice was issued within a reasonable period before the scope order came into operation.[1]

Related information

• Good faith bargaining requirements
• Meaning of 'fairly chosen'
• Single interest employer authorisations

Scope order made

UFUA v MFESB; MFESB v UFUA, Mr W. Crossley, Mr P. Swain and Mr P. Holmes

United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board; Metropolitan Fire & Emergency Services Board v United Firefighters' Union of Australia, Mr W. Crossley, Mr P. Swain and Mr P. Holmes [2010] FWAFB 3009 (Giudice J, Lawler VP, Gay C, 14 April 2010).

The Commission was required to deal with 2 applications for scope orders. The first, made by the UFUA, sought a scope order requiring the proposed enterprise agreement to include the classifications of Commander and Assistant Chief Fire Officer. The second, made by the employer, sought a scope order requiring the proposed enterprise agreement to not cover those 2 classifications.

As the relevant terms of the Fair Work Act had not previously been considered by a Full Bench, the applications were heard by a Full Bench.

The Full Bench did not accept the UFUA's submissions that, as a matter of statutory construction, preference ought to be given to agreements that cover as much of an enterprise as possible.

In deciding to make the scope order requested by the employer, the Full Bench noted that the Fair Work Act requires the Commission to consider the views of employees. While it does not assign priority to the views of employees, in applying the relevant provisions it is necessary to have regard to the overall context. The Full Bench considered that a proper consideration of the matters specified in the Fair Work Act may make it appropriate to make a scope order contrary to the views of the potentially affected employees.

The Full Bench determined that the two classifications constituted a distinct organisational group and commented that their negotiating interests as management employees would on occasion be very difficult to reconcile with those of operational employees generally. They considered that significant weight should be attached to the fact that the relevant classifications were senior management positions, with interests distinct from the positions below them.

The Full Bench concluded that a scope order in the form requested by the employer would promote the fair and efficient conduct of bargaining and include a group of fairly chosen employees. Accordingly a scope order in that form was made.

The Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd

The Australian Workers' Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476 (Catanzariti VP, Lawler VP, Lewin C, 3 April 2014).

The Commission was required to deal with 2 applications for scope orders. The first application, made by the employer, sought to retain 2 separate enterprise agreements for operators and technicians. The second, made by the AWU, sought 1 agreement to cover both operators and technicians.

The technicians worked in a laboratory building within the refinery site some 200m distant from where the operators worked.

At first instance, the Commission granted the scope order sought by the employer and refused the application of the AWU on the basis that the 2 groups of employees were both organisationally and geographically distinct. The AWU appealed the decision.

In considering whether the employees for the relevant proposed enterprise agreements had been fairly chosen, the Full Bench concluded that depending on the circumstances of the particular case, there may be more than one way of fairly choosing the group of employees to be covered by a proposed enterprise agreement.

The Full Bench agreed with the Commission's characterisation of the 2 groups as organisationally distinct. However, the Full Bench determined that the Commission erred in finding that the groups were geographically distinct. The Full Bench determined that geographical distinctness is concerned with the geographical separateness of the employer's various worksites or work locations, not a separation of a few hundred metres within the same work site.

On the evidence, the Full Bench found the group to be covered by the AWU's proposed single agreement was fairly chosen. The decision and orders of the Commission were quashed.

On a re-hearing of the original applications, the Full Bench granted the application of the AWU for a scope order in favour of an enterprise agreement covering both operators and technicians and dismissed the application of the employer.

Scope order NOT made

Efficiency and fairness – parallel negotiation process

National Union of Workers v Linfox Australia Pty Ltd [2013] FWC 9851 (Roe C, 16 December 2013).

The NUW made an application for a scope order in relation to a proposed agreement to replace the Linfox Road Transport and Distribution Centres National Agreement 2011. That agreement covered approximately 3,000 employees at 146 sites. A large proportion of employees were members of the Transport Workers Union (TWU).

The NUW sought a separate agreement for the warehouse portion of Linfox's Truganina site. Bargaining for such an agreement would involve both the AWU and the TWU. Linfox opposed the scope order, seeking to retain a single national enterprise agreement.

Nevertheless, Linfox engaged in separate bargaining processes with the TWU and the AWU and prior to the scope order application, in principle agreement for a proposed enterprise agreement was reached with the TWU.

At the hearing of the scope order application, the NUW contended that bargaining was not proceeding efficiently or fairly because:

• a significant minority of the total number of employees to be covered by the proposed national agreement were effectively being denied a 'real voice' in the negotiations
• the site specific concerns were effectively being ignored
• warehouse employees represented by the NUW were not aware of what was being discussed in negotiations between Linfox and the TWU, and
• two negotiations were being held concurrently in circumstances where information about each negotiation was not freely available to all parties.

The Commission was satisfied that there had been some unfairness in the negotiation process, and that the group of employees proposed by the NUW was fairly chosen. However, given the circumstances of bargaining with the NUW and the TWU, the Commission could not be satisfied that granting the scope order would make the conduct of bargaining fairer or more efficient. Accordingly, the Commission declined to make a scope order.

Specific classification – Network Controllers

Australian Rail, Tram and Bus Industry Union v Australian Rail Track Corporation (ARTC) [2012] FWA 6329 (Cambridge C, 27 July 2012).

The ARTBIU made an application for a scope order which would remove a particular classification of employees of ARTC called Network Controllers from coverage of a proposed enterprise agreement. The proposed enterprise agreement has been the subject of bargaining aimed at establishing a replacement for an expired instrument, the Australian Rail Track Corporation (NSW) Enterprise Agreement 2009. The ARTC advised the union that it rejected any separate agreement or agreements for any of the classifications that had been identified in the log of claims.

Many of the concerns raised on behalf of Network Controllers involved issues regarding roster arrangements for continuous shift work. Network Controllers worked on a continuous rotating shift roster basis as did most other employees who worked in operational control and coordination functions of the ARTC. However the substantial majority of employees covered by the 2009 NSW Agreement worked in areas other than operational control and coordination. Therefore the majority of employees to be covered by the proposed agreement did not work on a continuous rotating shift roster basis.

The specific classification of Network Controller was one of a number of classifications which, to varying degrees, worked in an integrated fashion with one another within what was frequently described as the Operations Team.

The Commission was unable to establish that the group specified in the scope order, namely Network Controllers, was a group that was fairly chosen. In particular the evidence did not establish that this group was geographically or operationally or organisationally distinct. In addition, the Commission was unable to conclude that the scope order sought would promote both fair and efficient bargaining. Although there was considerable sympathy in respect to the underlying issues of legitimate concern to Network Control staff these issues cannot be remedied by way of the scope application made in this matter.