Introduction
A scope order states which employers and employees are ‘in scope’ for an agreement. A bargaining representative may apply for a scope order.
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Content
Reasons to apply for a scope order
A representative may be worried that the bargaining process is not efficient or fair. They may apply for a scope order when they think:
- the agreement will not cover the right employees
- the agreement will cover employees that it should not cover.
They must not apply if:
- a single-interest employer authorisation is in operation
- the agreement is a greenfields or multi-enterprise agreement.
See sections 238 and 239 of the Fair Work Act.
Content and effect of a scope order
A scope order says which employer(s) and employees the agreement will cover.
The Commission may make a scope order and also:
- change any existing bargaining orders
- make or vary other orders, such as protected action ballot orders, determinations or other instruments
- take other necessary action.
A scope order may be for more than one proposed single-enterprise agreement.
How we assess applications
We have the authority to make a scope order if we are satisfied that:
- the representative who applied meets or met the good faith bargaining requirements
- the order will make bargaining fair and efficient
- the employees the agreement will cover and who are in the scope order were ‘fairly chosen’
- it is reasonable in all the circumstances to make the order.
The proposed agreement may not cover all the employees of the employer (or employers). In this situation, we still look at whether the employees were ‘fairly chosen’.
When a scope order is in operation
A scope order for a proposed single-enterprise agreement is in operation from the day on which it is made.
It stops operating at the earliest of the following:
- the time in the instrument of revocation if we revoke the order
- when we approve the agreement
- when a workplace determination starts and covers the same employees
- when the representatives agree that bargaining has ended.
How the order affects the notification time
The date a scope order starts is the notification time. The employer must issue a Notice of Employee Representational rights (NERR) within 14 days of the notification time. The employer does not have to give employees a new NERR if:
- they already gave employees a notice when they agreed to bargain
- they issued the NERR reasonably close to when we made the scope order.