However, depending on the circumstances of this case, there may be more than one opportunity to fairly choose the group of workers that will be subject to a proposed enterprise agreement.  Different scope rules can also be characterized as fair, as their application does not result in apparent injustice.  It can be said that it was both unnecessary and undesirable for the legislation to provide that the negotiator making the application must have the particular state of mind defined in paragraph 238, paragraph 1, before he can request a decision of scope. It implies that possession of this subjective state of mind is an issue within the jurisdiction of the motion and/or constitutes a judicial fact that must be demonstrated by evidence that FWA must in any event assuring that case and that any finding in this matter is punishable by compensatory measures. It certainly opens the door to an assertion that the representative of the negotiations did not make the request to that effect. Thus.B. it cannot be far-fetched, in some cases, to say that the application is not so much for reasons of concern of the type referred to in Section 238 (1) as for the sake of promoting the industrial interests of a bargaining representative, which are quite different from those of the effectiveness or fairness of the negotiations or the adequacy of the coverage. Many of the concerns expressed on behalf of network managers related to the organization of working tables for continuous shift work. Network controllers operated on a continuous shift basis, as did most other employees working in the ARTC`s operational control and coordination functions. However, the vast majority of workers covered by the 2009 NSW agreement worked in areas other than operational control and coordination. As a result, the majority of workers who should be covered by the proposed agreement did not operate on a continuous shift work basis. Mr.
Holland submitted that the Vice-President, in considering whether the workers` group was “fairly selected” and whether the group was “geographically, operational or organizationally different,” had expressly stated that the “Construction in Western Australia” agreement was concluded in the absence of a project-specific agreement. In the event of a dispute over scope, a notice of representation rights must be issued to the broadest group of workers proposed an employer`s ability to determine the scope of its enterprise agreement was significantly limited in a recent full-bench decision of the FWA, explains AMMA`s lawyer Alice Lui. The full bank then confirmed that the employer is required to apply for representation rights to all workers proposed by a negotiator to the widest extent possible, when an employer has agreed to negotiate with a group of workers as part of a bargaining agreement proposed by another negotiator. The group of workers covered by a proposed agreement (i.e. the scope of the agreement) is usually chosen on the day or shortly after the start of negotiations. If there are differences between the negotiators on the scope of the agreement, the scope itself becomes a matter of negotiation.  In a short time, Full Bench overturned DP McCarthy`s decision to approve the agreement at trial by ruling that a group of workers could not be “chosen fairly” if the agreement excluded from its scope all staff members who had entered into project-specific agreements. Third, full bench also found that the three-employee agreement has the potential to be widespread for many other workers – and exclude them from the opportunity to participate in negotiations.