TheFull Court did not need to address this issue in the case before it.
EENIE MEENIE MINEY MO HOW MANY FULL
The Full Court also noted that it could not exclude the possibility that a small group may not be fairly chosen where it maynot be fair for an enterprise agreement to be made with three existing employees but to cover a widerange of other classifications and jobs in which those employees may have no conceivable interest. The Full Court commented that inthis case, there was no suggestion of manipulation of agreement making procedures. Be aware that there may be some limitations in taking this approach.Consider using enterprise agreements with a small number of employees as an alternative to greenfieldsagreements to give certainty of terms and conditions when recruiting employees, and for protectionagainst protected industrial action early on during new projects.Focus on the nature of the work, rather than how many employees are covered, when deciding whoshould be covered by an agreement.
Employers should consider the application of this decision to their agreement making strategies.In the latter case, the group is a wider group(corresponding to potential coverage) than the group of present employees who wish to bargain or whoseimmediate interests are being represented. The test for when a group of employees is "fairly chosen" for the purposes of approving an application foran enterprise agreement is not the same as the test for "fairly chosen" in the context of an application fora majority support determination or a scope order.the Full Bench appeared to have an unexpressed preference for union involvement and greenfieldagreements, which is not reflected in the FW Act scheme and is not a relevant consideration.Rather, any deprivation of that opportunity would arise in the case of any newemployee engaged during the term of the agreement and it is not correct to say that the agreement made with three employees deprived future employees ofthe chance to bargain.while the FW Act requires bargaining to be conducted in "good faith", it is not relevant to considerwhether the agreement undermined collective bargaining.considering who would be covered by an agreement involves an appreciation of the nature of the workrather than how many employees may carry out the work.This argument wouldmean that any agreement made in advance of a project or with a very small number of employeeswhere possible coverage was much greater could not be approved it is not relevant if you cannot tell how many employees would or might in the future be covered bysite specific agreements and therefore be excluded by enterprise agreements.an agreement made with three employees and intended to have state wide application did notcontravene the FW Act.A Full Court of the Federal Court of Australia has recently clarified when a group of employees is "fairlychosen".When approving an application for an enterprise agreement, the Fair Work Commission must be satisfiedunder section 186(3) of the Fair Work Act 2009 that the group of employees covered by the agreementwas fairly chosen.
Restructuring, Special Situations and InsolvencyĬonstruction, Forestry, Mining and Energy Union v John Holland Pty Ltd FCAFC 16 (24 February 2015) WHAT YOU NEED TO KNOW.