A Full Bench of FWA has held that good faith bargaining is a requirement of enterprise agreement approval only where a scope order operates, overturning a decision at first instance which refused approval of an agreement.

The employees rejected the enterprise agreement in an initial vote. Some bargaining representatives were later invited to provide feedback on their concerns about the agreement. A majority of employees subsequently voted in favour of a revised agreement. FWA refused approval because the employer had breached the good faith bargaining requirements.

On appeal, a Full Bench overturned this decision. The tribunal held the requirement that approval not be inconsistent with good faith bargaining only applies where a scope order is in operation. No such order applied. However, the tribunal noted that good faith bargaining may be relevant to agreement approval in determining if there has been genuine agreement. The parties agreed to withdraw the approval application and re-submit the agreement to a further employee vote.

Philmac Pty Ltd [2011] FWAFB 2668