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Workplace Relations: Australian Manufacturing Workers’ Union (AMWU) – WesternAustralian Branch v Airflite Pty Ltd [2010] FWA 1723

Fair Work Act ScopeThe employer, Airflite Pty Ltd, sought a single agreement to cover its aircraft maintenance employees . The AMWU on 9 Dec 2009 presented a petition of nearly all WA employees seeking their own agreement and informing them in writing that they wanted to have separate agreements. Airflite Pty Ltd rejected the claim and scheduled the ballot on its proposed agreement for late January. The union then applied to FWA for a scope order requiring Airflite to negotiate two separate deals and a bargaining order to delay the vote.

The employer argued:

  • that AMWU had not bargained in good faith because of a delay of one month between presenting the petition and seeking a further meeting with the employer and that it didn’t raise the scope issue in its initial log of claims
  • that AMWU had not complied with s238(3) of the Fair Work Act and given notice of its concerns to  all “relevant bargaining representatives” – namely four self appointed individual employees.

Commissioner Cloghan found that delays and lack of feedback by the union did not necessarily reflect bad faith.

“The fact that one party does not set out ’up front’ all the issues for negotiations does not preclude matters being raised at a later date – the genuineness of such actions, will be determined on a case by case basis, and it does not mean ‘anything goes’, he said.”

He also followed an earlier ruling (AMIEU v Woolworths [2009] FWA 849)  that the word ”relevant” in terms of notification of bargaining representatives in s238(3) does not mean “all” , but rather those bargaining representatives who are pertinent to the concerns of the applicant (seeking the scope order).

On making the scope order he was satisfied that the requirement that it promote fair and efficient bargaining in sec 238(4) of the Fair Work Act had been met, taking into the account the higher cost of living in Western Australia and the fact that the employee groups were fairly chosen and clearly geographically distinct and organisationally independent.