Bargaining about a proposed enterprise agreement's scope? Lessons for employers from MSS Security

Key Points:
Where bargaining representatives disagree about the scope of an enterprise agreement, employers have bargaining obligations in respect of all employees who fall within the widest proposed scope, even if the employer has not agreed to bargain in respect of some of those employees.

It is clear that employers will not be able to restrict the scope of a proposed enterprise agreement by simply failing to issue a notice of representational rights to certain employees, following the recent Fair Work Australia Full Bench decision in MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWAFB 6519.

The case involved an appeal from a decision of Commissioner Cloghan in June 2010, who granted a protected action ballot order application in respect of employees of MSS who worked as ticket inspectors on Perth's public transport network.