ENTERPRISE BARGAINING – scope order – s.238 Fair Work Act 2009 – application for scope order to determine whether employees to be involved in bargaining were fairly chosen – employer issued a notice of employee representational rights (NOERR) to employees indicating an intention to commence bargaining for an agreement – NOERR excluded 12 employee positions from coverage – Commission considered whether employees geographically, operationally or organisationally distinct – employer claimed excluded positions are senior managers and leaders which are operationally and organisationally distinct from positions proposed to be covered by agreement – Commission found insufficient evidence about extent of managerial authority of excluded positions – not satisfied that excluded group are operationally or organisationally distinct – Commission further considered whether reasonable in all the circumstances to grant the scope order – employer claimed that it was the preference of the individual employees themselves to be excluded from coverage – Commission found little evidence to support employer’s claim and considered employee preference a matter to be taken into account, but not determinative in deciding whether making of scope order is reasonable in all the circumstances – found reasonable to make order that scope of employee classifications to be covered by proposed agreement as expressed in NOERR amended to include excluded positions. Australian Nursing and Midwifery Federation-Northern Territory Branch
