Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 238

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.

  (2)   Despite subsection   (1), a bargaining representative may not apply to the FWC for a scope order in relation to a proposed single - enterprise agreement if:

  (a)   a single interest employer agreement or a supported bargaining agreement applies to one or more employees who will be covered by the proposed single - enterprise agreement; and

  (b)   the single interest employer agreement or supported bargaining agreement has not passed its nominal expiry date.

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

  (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.