Promote efficient bargaining — key to scope order

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Promote efficient bargaining — key to scope order

A Full Bench of Fair Work Australia has ruled on the Fair Work Act’s new scope order provisions and has stated that the key consideration to be taken into account in relation to a proposed scope order was whether the result would be fair and efficient bargaining.

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A Full Bench of Fair Work Australia has ruled on the Fair Work Act’s new scope order provisions and stated that the key consideration to be taken into account in relation to a proposed scope order was whether the result would be fair and efficient bargaining.

The FWA rules that Melbourne’s firefighters should be covered by three separate agreements, despite employees (including senior officers) supporting the union push for a single agreement.
 
The union argued that all firefighters — up to and including assistant chief fire officers (ACFO) — should be covered by a single comprehensive enterprise agreement.
 
The Metropolitan Fire & Emergency Services Board sought scope orders dividing the operational workforce into three, with assistant chief fire officers (ACFOs) and the next rank down, commanders, each covered by their own agreements and a third agreement covering the remainder of the workforce.
 
The employer argued that the ACFOs and commanders were senior employees with managerial responsibilities and were therefore organisationally distinct from other firefighters.
 
Workforce opinion not paramount
 
The Full Bench commented on the argument that the workforce wanted a single agreement:
‘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 …’
Key considerations
 
The Full Bench said that the appropriate approach to these contested scope matters was as follows:
‘The key considerations in this case were whether the proposed scope orders would promote the fair and efficient bargaining (s238(4(b)) and whether the employees proposed to be covered were fairly chosen (s238(4)(c)), taking into account whether they were geographically, operationally or organisationally distinct (s238(4A)) …’
Responsibilities of employees — an issue
 
The Full Bench accepted the MFB’s argument that senior officers’ managerial responsibilities meant they were organisationally distinct from other firefighters:
‘In our view these duties are qualitatively different from the duties of Senior Station Officers and the ranks below them which are primarily operational …What separates the groups is the extent of their operational responsibilities in one case and the level of their managerial responsibility in the other …
 
To some extent the workplace relations system is based on the potential for conflict between employers and employees. In a world of corporations the employee manager stands in the shoes of the employer for many purposes including dispute prevention and resolution and the negotiation of terms and conditions of employment …
 
Given the troubled history surrounding the negotiation of conditions for Commanders and ACFOs and the negative effect that it is having on attempts to negotiate a new agreement, it is desirable that Fair Work Australia exercise its powers under s.238 … [but] to that extent the conclusions expressed in this decision are bound up with our findings on the evidence before us, they are not intended to be expressions of general principle.’
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