First FWA scope order — promotes fair and efficient bargaining

Cases

First FWA scope order — promotes fair and efficient bargaining

FWA has made its first scope order to require a contractor to bargain with the AMWU for separate deals covering the contractor’s employees at airbases in Victoria and Western Australia.

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FWA has made its first scope order to require a contractor to bargain with the AMWU for separate deals covering the contractor’s employees at airbases in Victoria and Western Australia.
 
The contractor, Airflite Pty Ltd, sought to negotiate a single agreement covering 186 maintenance employees working at the RAAF's base in Perth and a base in the Gippsland region of Victoria.
 
The AMWU in December 2009 presented a petition signed by 132 of the 138 WA employees seeking their own agreement. The union informed the employer that it was adding the claim for separate deals to its log of claims. The employer rejected the claim and sought a ballot of all employees. However, before the ballot could go ahead, the union applied to FWA for a scope order requiring the employer to negotiate two separate deals.
 
The employer initially argued that the union had failed to meet its obligation under s238(3) of the Fair Work Act 2009 to give written notice of its concerns to the ‘relevant bargaining representatives’, including four individual workers who had appointed themselves bargaining representatives.
 
Decision
 
Commissioner Cloghan rejected the employer’s argument in relation to the bargaining agents — noting that relevant bargaining agents had been notified. The commissioner continued — supporting his decision in favour of two separate agreements:
‘Simply put, I have to be satisfied that the group of employees chosen by the Applicant was fairly chosen, taking into account whether the group is geographically, operationally or organisationally distinct. It should be noted that this provision in the Act is in the separate and alternative, and not in the connective.
 
It goes without saying that geographically, the group of employees is distinct. Further, it is not uncommon for organisations that cross state boundaries to separate out employees on the basis of regions. Similarly, organisations also seek not to differentiate on the grounds of state boundaries.
 
The provision of two separate agreements for Western Australian and Victorian employees cannot be said to be fatal or dysfunctional to the employer’s operations by having separate agreements for Western Australian and Victorian employees as it currently has a variety of industrial instruments in place.
 
Operationally and organisationally both sites operate independently and, as one would expect, administratively they are brought together through head office functions.
 
From evidence, there appears to be no mobility between the sites and, to all intent and purposes, are as separate as their geographical location, except to say that they have a common employer and Commonwealth contract to service …’
 
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