​United we stand, but scope orders divide us

Cases

​United we stand, but scope orders divide us

The Australian Workers’ Union (AWU) eventually succeeded in gaining a scope order to bargain with a Queensland water supplier after competing with the Australian Services Union (ASU).

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The Australian Workers’ Union (AWU) eventually succeeded in gaining a scope order to bargain with a Queensland water supplier after competing with the Australian Services Union (ASU).

Both unions applied to the Fair Work Commission. The ASU application sought a single agreement with the supplier but the AWU sought three agreements to cover different groups of employees, and had the employer’s support. The ASU application was supported by three other unions.

The AWU’s proposed separate agreements were for indoor and outdoor employees, and outdoor non-trade and maintenance employees.

The FWC held that the employer’s application failed to meet the good faith bargaining requirements, because it declined to recognise eligible bargaining representatives and its scope application therefore could not be granted, however both the AWU and ASU applications did meet the requirements.

Organising bargaining meetings was the employer’s responsibility, not the unions’, and the latter were not responsible for, or complicit in, errors such as not inviting the “correct” representatives.

Both union groups had made accusations about each other’s conduct, and the AWU claimed the employer engaged in coercive and threatening conduct by circulating a “who to vote for” letter prior to an employees’ ballot.

The FWC criticised the employer, but said that this had not affected the overall vote.

Separate agreements are best option


The FWC agreed on balance with the AWU’s argument that three separate agreements would enable each of the three groups of employees to focus on the bargaining issues that most affected each one.

It commented that this approach was more efficient and likely to be less acrimonious. Therefore, it granted a scope order for three agreements to the AWU and dismissed the other applications.

The FWC conducted a survey of the affected employees before making its decision, which found 55 per cent in favour of three separate agreements.

Application by The Australian Workers' Union [2016] FWC 6104 (29 August 2016)
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