1 Fair Work Act 2009 s.238—Scope order “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v BHP WAIO Pty Ltd (B2025/1052) DEPUTY PRESIDENT O’KEEFFE PERTH, 28 OCTOBER 2025 Application for a scope order – proposed scope order would remove production employees – proposed scope order would not promote efficiency or fairness - scope order not granted. [1] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (the AMWU) has made an application to the Fair Work Commission (FWC) under s.238 of the Fair Work Act 2009 (Cth) (the Act) for a scope order in relation to bargaining for an agreement to replace the Mining Industry Area C Operations Agreement 2015 (the 2015 Agreement). BHP WAIO Pty Ltd (BHP) opposes the making of the scope order sought by the AMWU. Background [2] The 2015 Agreement nominally expired on 12 August 2019. On 2 July 2024, the AMWU wrote to BHP making a request pursuant to s.173(2A) of the Act for BHP to commence bargaining for an agreement to replace the 2015 Agreement. In the 2 July correspondence the AMWU stated that: “(i)t is intended that the proposed new enterprise agreement will cover the same group of employees as the Mining Area C Operations Agreement 2015.”1 [3] On 3 July 2024 the Australian Workers’ Union (AWU) also wrote to BHP2 asking that it commence bargaining for a replacement agreement but did not rely on s.173(2A) of the Act. On 10 July 2024 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Electrical Division, Western Australia) (CEPU) wrote to BHP requesting that bargaining commence for a replacement agreement and in that communication the CEPU relied upon the provisions of s.173(2A) of the Act. [4] On 16 July 2024 BHP issued a Notice of Employee Representational Rights (NERR) and on 20 August 2024 BHP met with the AMWU, the CEPU, the AWU (collectively “the Unions”) and the majority of appointed individual bargaining representatives to commence the bargaining process. In terms of the initial scope of the proposed agreement, I should note that there are two sites that are relevant, which are Mining Area C and a nearby operation known as [2025] FWC 3242 DECISION [2025] FWC 3242 2 South Flank. It was BHP’s evidence that it viewed the South Flank operation as covered by the 2015 Agreement even though the South Flank operations had not commenced at the time the 2015 Agreement was made. As such, it entered negotiations on the basis that the parties were bargaining for a new agreement to cover both sites. [5] This scope of bargaining did not seem to be at odds with the intention of the Unions who were also seeking to include the South Flank employees in the replacement agreement. However, the parties were in dispute over two scope issues. The first was the inclusion of the employees in the Infrastructure and Services Teams, who were included in the 2015 Agreement, but BHP was seeking to remove them from coverage of the replacement agreement. The second was the bargaining claim from the AMWU and the CEPU that there should be a separate agreement for maintenance employees distinct from the agreement for production employees. [6] The other scope-related issue which arose during bargaining came about with respect to the Mining Employees’ Union (MEU). The AWU and the MEU have formed a partnership known as the Western Mining Alliance (WMA). The majority of correspondence and material disseminated by the AWU with respect to bargaining was under the WMA banner, which includes the logos of both the AWU and the MEU. Although carriage of the negotiations for the WMA was primarily handled by the AWU, it appears that after a time the MEU sought to be physically present in the bargaining meetings. [7] However, BHP took the view that the MEU did not have coverage of any employees in its operations and therefore should not be present – in any form - during bargaining. The MEU objected and began a process of seeking good faith bargaining orders against BHP. This resulted in an application to the FWC – B2025/250 – which was subsequently allocated to and heard by a Full Bench. As at the time of publishing this decision, the Full Bench has not handed down a decision in that matter. [8] Nevertheless, the AMWU, which is supported in its claim by the CEPU, lodged its application for a scope order that would see an agreement made to cover maintenance employees only – and therefore not production employees - at both Mining Area C and South Flank. As per the proposed scope order, such agreement would also include employees in the Infrastructure and Services Teams. The AWU objects to this position and says that the scope should include Mining Area C and South Flank, the Infrastructure and Service Teams and include all employees being both maintenance and production. BHP has a different view again. It says the scope should include all employees – both maintenance and production – and Mining Area C and South Flank but not include the Infrastructure Teams. [9] In terms of the rationale for its scope order application, the AMWU says that the inclusion of the operations employees creates unfairness and inefficiency in bargaining. In the first instance, the AMWU says this is so because the cohort of operations employees is larger – and thus able to wield greater bargaining power and out-vote – than the cohort of maintenance employees. The AMWU says that the unfairness comes from the reality that: “…the AMWU…has to work to convince a sufficiently large number of Operational Employees whom it does not represent and cannot easily communicate with, and whose interests may not necessarily align with those of the maintenance workers, to refrain from making an enterprise agreement with BHP until such time as the [2025] FWC 3242 3 maintenance employees’ claims have been settled with BHP.”3 [10] The second proposition from the AMWU related to the ongoing dispute between BHP and the MEU over the MEU’s coverage, and what it refers to as “skirmishes” between the AWU and BHP over good faith bargaining. I note in this regard that BHP has an application – B2025/874 – in progress at the FWC where it is seeking bargaining orders against the AWU for various actions undertaken during the bargaining process. That matter is currently adjourned awaiting the outcome of the Full Bench decision in B2025/250. [11] In any case, the AMWU says that these matters are of no concern to members of the AMWU and are proving to be a distraction that is creating inefficiency in the bargaining process. The AMWU says: “The AMWU and its members want to get on with bargaining with BHP for an enterprise agreement for the maintenance workforce. It does not want to be dragged into, or delayed by, or caught up in, the industrial disputes between BHP and the union(s) representing the Operational Employees. By carving the Operational Employees from the scope of the enterprise agreement: a. BHP and the AMWU can focus on actual negotiations for an enterprise agreement for maintenance workers, and potentially secure that more quickly than if the Operational Employees are involved. b. BHP, the AWU, and the MEU can continue on with their industrial skirmishes in the Commission, and get around to properly bargaining once they have concluded their industrial disputes.”4 The Legislative Framework [12] The presently relevant parts of s.238 of the Act are as follows: “238 Scope orders Bargaining representatives may apply for scope orders (1) A bargaining representative for a proposed single-enterprise agreement (other than a greenfields agreement) may apply to the FWC for an order (a scope order) under this section if: a. the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and b. the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover. … Bargaining representative to give notice of concerns (3) The bargaining representative may only apply for the scope order if the bargaining representative: [2025] FWC 3242 4 a. has taken all reasonable steps to give a written notice setting out the concerns referred to in subsection (1) to the relevant bargaining representatives for the agreement; and b. has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and c. considers that the relevant bargaining representatives have not responded appropriately. When the FWC may make scope order (4) The FWC may make the scope order if the FWC is satisfied: a. that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and b. that making the order will promote the fair and efficient conduct of bargaining; and c. that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and d. it is reasonable in all the circumstances to make the order. Matters which the FWC must take into account (4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct…” [13] In this matter there is no dispute that the AMWU is a bargaining agent and thus has standing to make an application. In its submissions the AMWU notes the witness evidence provided by Mr Jade Rowlands to the effect that the AMWU had concerns about the efficiency and fairness of bargaining and had written to BHP and the other bargaining representatives to highlight this concern and providing them fourteen days to make a response.5 The evidence of Mr Rowlands and the correspondence from the AMWU is clear that the AMWU’s concerns were based on the proposed scope of the agreement – specifically that the scope included the production employees and was not limited to maintenance employees. [14] Mr Rowlands also provides evidence that BHP responded to the AMWU correspondence and expressed the view that it did not agree that bargaining was proceeding in an unfair or inefficient manner.6 Mr Rowland’s further evidence7 is that despite the AMWU having raised its concerns and received a response, there was no improvement in the process from the AMWU’s perspective. [15] I note that in its submissions, BHP did not seek to take issue with the requirements of ss.238(1) and (3) but focused its concerns on s.238(4). However, I accept the evidence of Mr Rowlands referred to above, I am satisfied that the requirements of ss.238(1) and (3) have been met by the AMWU. In particular, I note that I am satisfied that the concerns of the AMWU are genuinely held and not merely a contrivance designed to invoke the FWC’s jurisdiction. The task for the FWC is to now examine the requirements of s.238(4) and determine if they have been met. However, before doing so it is important to clarify the parameters in which the FWC is operating. [2025] FWC 3242 5 [16] In this matter bargaining is proceeding on the basis that all employees at Mining Area C and South Flank are covered, with BHP making a bargaining claim that employees in the Infrastructure and Services teams be removed from the proposed agreement’s scope. The AWU wants all employees at Mining Area C and South Flank, including the Infrastructure and Services teams, to be included in the scope. The AMWU and CEPU are seeking – via this order – that the scope include maintenance employees at Mining Area C, South Flank and in the Infrastructure Services teams. As such, it would appear on the face of things that there are three distinct versions of scope under consideration. [17] However, from the perspective of this application this is not correct. The application before the FWC is to create the scope arrangements contended for by the AMWU and CEPU. If the FWC is not inclined to make this scope order, then the status quo will prevail. That would mean all employees at Mining Area C and South Flank will be included in scope subject to BHP’s success in negotiating its preferred scope. To put things another way, the AWU’s preferred scope is not an order that can be made. [18] This issue was raised by BHP at hearing, citing the decision of Commissioner Lee in The Australian Workers’ Union v Inghams Enterprises Pty Ltd. In that matter, the Commissioner was not satisfied he could make a scope order in the terms sought but noted that he may have made the order if the scope sought had been different. The Commissioner said (with my emphasis): “Taking into account all of the factors, I am not satisfied that the group of employees is fairly chosen. Had the application been restricted to the maintenance employees I would likely have a different view. However, I can only consider the application that is before me.”8 [19] BHP contended that this view was consistent with the wording of the Act itself at s.238(4) where it states that the FWC may “make the scope order” (emphasis added). As a consequence of this wording, BHP submits that the FWC is restricted to making the scope order, being the scope order sought in the application and is not empowered to make any other scope application. I have considered the decision of Commissioner Lee and the wording of the Act and I have formed the view that the FWC is restricted to making scope orders in the terms sought by the applicant and does not have the ability to impose some other scope of its own making. It seems to me that a bargaining representative, having identified a problem based on scope and made its application accordingly, may find that a scope of the FWC’s own making is such that it does not resolve the bargaining concerns or indeed creates other concerns. [20] Given this, I am satisfied that the FWC must confine itself to the issue of whether to grant the scope order sought by the AMWU. If that scope order is not granted then the FWC should not make an alternative scope and parties must continue to bargain based on the scope that has applied thus far, noting BHP’s bargaining claim to amend the scope. Section 238(4)(a) – meeting the good faith bargaining requirements [21] The requirement in s.238(4)(a) is that the bargaining representative who is seeking the scope order has met, or is meeting, the good faith bargaining requirements. In the initial [2025] FWC 3242 6 instance, BHP had taken issue with this requirement, on the basis that it claimed that the AMWU had mis-used s.173(2A). The concern from BHP was that the AMWU had used that section to compel it to the bargaining table in circumstances where – contrary to the requirement of s.173(2A)(d) – the AMWU had in fact intended to pursue a completely different scope from the 2015 Agreement. [22] The AMWU refuted any suggestion that it had in any way been in breach of the good faith bargaining requirements. In any case, at hearing counsel for BHP indicated that it was not going to press its submissions that the AMWU had engaged in capricious conduct in breach of the good faith bargaining requirements. I note that this use of s.173(2A) was the only element of non-compliance with good faith bargaining requirements that had been raised. With respect to the other elements of s.228(1) of the Act, I can see no evidence that the AMWU has been anything but compliant. [23] As to whether the AMWU’s actions with respect to s.173(2A) could be said to be capricious conduct undermining collective bargaining, I must confess to some level of skepticism. However, BHP has not pressed the issue, and the AMWU refutes any suggestion that its actions were a breach of s.228. In summary, given the positions of the parties and my own skepticism I am not satisfied that there is any case to be made that the AMWU has not met or is not meeting the good faith bargaining requirements. As such, s.238(4)(a) is satisfied. Section 238(4)(b) – fair and efficient conduct of bargaining [24] Before making a scope order, the FWC must be satisfied that the order will promote the fair and efficient conduct of bargaining. All parties made submissions on how the order would impact on the fairness and efficiency of bargaining but not unexpectedly came to different conclusions. The AMWU submitted that the order would address what it perceived to be an imbalance in voting power and in time dedicated to its concerns during negotiation meetings. In essence, the AMWU submits that because it cannot enrol the production workers, it cannot exercise right of entry powers to engage with those workers about the proposed agreement. It submits that: “In circumstances where the Production / Drill Blast, and Processing workers make up a majority of the voting cohort in relation to BHP’s proposed scope, this has had serious implications on the conduct of the negotiations from the perspective of the AMWU and the CEPU.”9 [25] The AMWU submits that the current imbalance in numbers allows BHP to dedicate a significant amount of bargaining time to the AWU’s claims while spending little time on the claims of the AMWU and CEPU. The AMWU submits that this unfairness and inefficiency would be likely to dissipate if BHP were bargaining with the CEPU and the AMWU for a separate maintenance agreement. [26] The AMWU submits that a second limb of unfairness arises because: “…the AMWU’s and CEPU’s ability to find out what industrial matters are of importance to the workers under BHP’s scope is limited to the maintenance workers. This creates an unfairness in the bargaining as the Unions have no way of working out [2025] FWC 3242 7 what is important and what is not to the majority of the potential voting cohort of employees under the BHP’s proposed scope. The only meaningful and effective way to cure this unfairness is to provide for a separate maintenance agreement.”10 [27] The third issue that arises in the AMWU’s submission is the dispute between the MEU and BHP over the coverage of the production workers, which is still before the FWC. The AMWU describes this dispute as a “cloud hanging over negotiations” that has nothing to do with the maintenance workers covered by itself and the CEPU. It further claims that by removing the production workers from scope the inefficiency and unfairness created by this dispute will be removed. [28] The AMWU also addresses the issue of the Infrastructure and Service Teams. It submits that BHP’s attempts to remove these workers – who fall within the coverage of the 2015 Agreement – has also created unfairness and inefficiency. The AMWU further submits that there is nothing distinct – in the operational, organisational or geographic sense – about the workers in these teams when assessed against the other maintenance workers. However, it submits that they are distinct from the production employees and that if they are excluded, it will require two sets of negotiations for the two sets of maintenance employees, which would be an inefficient duplication of process. [29] Evidence in support of the AMWU’s application was provided by Mr Jade Rowlands (AMWU Organiser) and Mr Brant Softley (CEPU Organiser). With respect to the issue of fairness and efficiency in bargaining, Mr Rowlands gave evidence that he had been involved in each of the bargaining meetings held with BHP. He gives evidence that at the third such meeting on 26 February 2025 a representative of BHP canvassed the views of the bargaining representatives with respect to the MEU application to the FWC. Mr Rowlands’ states that all participants indicated that they were happy to continue negotiations while the MEU application progressed. [30] Mr Rowlands also gave evidence about the conduct of bargaining meetings more broadly. He states as follows: “The AMWU has continued to bargain with BHP and the other bargaining representatives after receiving BHP’s and the AWU’s responses. However, nothing has changed. At each bargaining meeting, most of the time is spent focusing on BHP’s and the AWU’s logs of claims. In relation to this: (a) The bargaining meetings usually start at 10:00 am and are scheduled for 4 hours, but usually only go for around 2 to 2.5 hours. (b) On most occasions, the first 2 hours have been spent on either BHP’s or the AWU’s logs of claims. Because of this, the AMWU’s and ETU’s logs of claims are consistently pushed to the final moments of the meeting, when everyone is exhausted and frustrated after around 2 hours of negotiations, and then rescheduled for discussion at the next meeting.”11 [31] It was Mr Rowlands’ view that a separate agreement for maintenance would mean that BHP was more willing to prioritise discussing the AMWU and CEPU claims. He gave evidence that bargaining often involved dealing solely with the claims of the AWU and BHP and that the AMWU was thus placed in a situation where it was forced to sit and listen in meetings without [2025] FWC 3242 8 an opportunity to discuss its claims. Notwithstanding this, Mr Rowlands conceded in cross examination that at a meeting held after he had sworn his statement – being the meeting held on 14 August 2025 – the discussion had been about the AMWU and CEPU claims only. He also conceded in cross examination that since BHP had adopted the “traffic light” system to classifying claims there had been an improvement in the bargaining process. [32] Mr Softley also gave evidence of his experiences in bargaining meetings. He described feeling frustrated by the amount of time dedicated to dealing with claims from the AWU. It was his estimate that 60-70% of bargaining time was taken up with those claims. He stated that dealing with the AMWU and CEPU claims was usually left to the last hour of bargaining and typically nothing was agreed but rather left to be dealt with at the next meeting. [33] Mr Softley gives evidence that he believes the AMWU and CEPU could have reached an “in principle” position on an agreement by this time and states that: “…I feel confident in stating this because I know we would not have to deal with the long-winded log of claims of the AWU and its persistent debates with BHP which bog everything down.”12 [34] I also note that the evidence of Mr Softley supports that of Mr Rowlands with respect to the issue of the MEU application being discussed and the bargaining representatives agreeing to continue bargaining despite that application. During cross examination Mr Softley was asked about certain of the bargaining meetings. With respect to the meeting held on 15 October 2024 he conceded that the meeting had engaged with and considered the claims of the AMWU and CEPU and that those two unions had been given tasks to undertake – colloquially referred to as “homework” – and then present at a later time. [35] Mr Softley was taken through a number of the meeting minutes and generally confirmed the contents of those minutes. With respect to the meeting held on 22 May 2025 he conceded that an action item agreed was that the CEPU and AMWU would compile a list of their shared claims and that this would be used by BHP to compile a consolidated list of all bargaining representative claims. He further conceded that the AMWU subsequently wrote to BHP saying it could not undertake this task as the AWMU and CEPU wanted a separate maintenance agreement. [36] With respect to the meeting on 3 July 2025, Mr Softley conceded that the AMWU and CEPU – having refused to provide a consolidated list of claims – had sent through a proposed agreement for maintenance workers only but had only done so one day prior to the meeting. Mr Softley also conceded that when the AMWU and CEPU had been asked if they wanted to draw anything in particular to the attention of BHP and the other bargaining representatives and Mr Rushworth (AMWU Lead organiser) on behalf of the AMWU and CEPU had declined to do so. Mr Softley also agreed that the meeting on that date had called out four priority union claims, which included claims contended for by the AMWU and CEPU. [37] Mr Softley was also asked about an email sent by Mr Rushworth on 10 July 202513 wherein he advised that the proposed agreement provided to parties by the AMWU and CEPU was incorrect and provided a revised version. Mr Softley confirmed that there had indeed been a revised version provided and that it differed from the previous version which had contained a [2025] FWC 3242 9 number of errors. With respect to the meeting held on 14 August 2025, Mr Softley was directed to the meeting minutes which of themselves suggested that the meeting had been all about AMWU and CEPU claims. Mr Softley conceded that those claims had been discussed but prevaricated on the issue of whether the entire meeting had been spent doing so. [38] Mr Softley also agreed that he believed that bargaining for a maintenance-only agreement would be more focused and therefore more efficient, and it would remove the fear that CEPU members would be outvoted by the production worker cohort. It was put to Mr Softley that his views were simply speculative as he did not know what the AWU would do. Mr Softley conceded that he did not know what the AWU would do but remained of the view that efficiency would be found if the parties were negotiating a maintenance-only agreement. Mr Softley was then asked about a scenario where the FWC did not make the scope order, and he conceded that the CEPU would continue to negotiate and advocate on behalf of its members and would continue to attend all meetings [39] BHP made numerous appeals to the established case law in its submissions. It noted that in assessing the effect of the scope order, the focus must be on the conduct of bargaining, as opposed to outcomes of the bargaining process.14 Further, BHP submitted that the FWC must also consider whether there will be any disadvantage to the other bargaining representatives if the scope order is granted15 and that it has also been found that an existing enterprise agreement with a fairly chosen scope can also be a relevant consideration.16 With respect to the effect on other bargaining representatives BHP notes that the scope order sought may have the effect of forcing production employees to begin the bargaining process again and in circumstances where they would need to establish majority support as their access to s.173(2A) would have been lost. [40] In further submissions, BHP noted that the FWC has also found that it is important that scope orders be made early in the bargaining process to meet the requirement in s.238(4)(b) as inefficiency may arise if bargaining needs to recommence based on the granting of the scope order.17 BHP also noted the finding that further considerations for the FWC include the identical or similar nature of the work performed by workers in the competing scopes, the overlap between the two groups being bargained for, and the inefficiency associated with the separate bargaining processes for two agreements.18 [41] With respect to the actual scope sought by the AMWU, BHP submits that granting the order would create a need to bargain for two separate agreements and that such situations have been previously considered by the FWC. It particularly notes the findings in AWU v BP Refinery (Kwinana) Pty Ltd (BP) where the Full Bench stated as follows: “Intuitively, bargaining for two agreements for a group of employees will involve a degree of duplication of process and negotiation and thus be less efficient than bargaining for a single agreement to cover the same group. That is demonstrated in the present case by the identical programmes specified by the Company for the first bargaining meeting of each of the two groups. The lesser efficiency in such an approach is manifest. That is to say, in the particular circumstances of an individual case, it will not be open to decide that bargaining for two agreements will be more efficient than bargaining for one.”19 [2025] FWC 3242 10 [42] BHP submits that there is nothing to suggest that splitting the bargaining would be more efficient and suggests that such an outcome would force both itself and the AWU – who represent a number of maintenance employees – to engage in bargaining on two fronts. It further submits that such a scenario would not achieve the AMWU’s contended outcome of spending more time engaging with AMWU and CEPU claims as: “…the AWU would remain a bargaining representative in any separate negotiations for a maintenance only agreement, putting the parties in the same position as with current negotiations – but, indeed, duplicating those efforts across two agreements.”20 [43] BHP also made submissions regarding the composition of its workforce at the relevant sites to address the issue of the imbalance between the maintenance worker cohort and the larger production worker cohort. It noted the findings of Deputy President (as she then was) Asbury in TWU v Chubb [2012] FWA 2226 at [60] as cited in AMWU v AWU and anor as follows: “Seeking leverage by increasing the bargaining power by weight of numbers is not a valid basis to make a scope order. In TWU v Chubb, Asbury DP at 60: In relation to s.238(4)(b), I am unable to be satisfied in the circumstances of this case that making a scope order will promote the fair and efficient conduct of bargaining. It is apparent from the evidence that the TWU is seeking a scope order principally for the purpose of strengthening the bargaining position of Nerang AVOs by reducing the capacity of Chubb to use AVOs from Moorooka to cover any periods of protected industrial action taken by Nerang AVOs. The view of the TWU and its members that this will increase the fairness of bargaining is subjective and I do not accept that enhancing the bargaining strength of Nerang AVOs to assist them to take more effective protected industrial action against Chubb, is a valid basis upon which I could find that bargaining would be fairer or more efficient if a scope order was made.”21 [44] BHP submits that the AMWU’s concerns about its influence in bargaining is not relevant in considering whether bargaining is proceeding efficiently or fairly, particularly in light of the fact that the AWU – which it identifies as receiving excessive attention – will inevitably be involved in any bargaining for a “maintenance-only” agreement. [45] BHP’s submissions also challenged the concerns regarding the actions it had taken against the AWU and the action taken against it by the MEU. It noted that its action against the AWU was adjourned pending the outcome of the MEU decision, and that the MEU case had not interrupted bargaining other than for a very short and immaterial period of time. [46] Finally, BHP rejected the notion that “very little” time had been spent on AMWU and CEPU claims. It claimed that the bargaining meeting minutes and indeed evidence from the AMWU’s own witness demonstrated that the AMWU and CEPU have been given reasonable opportunities to bargain and have done so. It suggested that such lack of opportunity as may be alleged was in many cases due to the actions of the AMWU and CEPU bargaining representatives themselves, for example by leaving meetings early. [47] Evidence for BHP was provided by Mr Daniel Scully (Processing Manager) and Mr Benjamin O’Brien (Employee Relations Manager). Mr Scully does not appear to be part of the [2025] FWC 3242 11 BHP bargaining team and his evidence went primarily to describing BHP’s operations and structures at Mining Area C and South Flank. His evidence in that sense dealt mainly with the issue of whether the group of employees was fairly chosen and perhaps the issue of whether it is reasonable in all of the circumstances to make a scope order. [48] Mr O’Brien is the lead negotiator for BHP in this round of bargaining. He gave evidence with respect to the processes leading up to the commencement of bargaining and the bargaining meetings themselves. With respect to the meeting held on 15 October 2024 Mr O’Brien gives evidence that bargaining representatives sought clarification regarding certain AMWU and CEPU claims with respect to such issues as shift, nightshift, higher duties and a range of other matters. With respect to that meeting, Mr O’Brien states: “I do not recall significantly more time being spent on the AWU’s log of claims compared to the ETU/AMWU’s log of claims in this meeting, however I do recall that the AWU appeared to be more prepared to speak to and prosecute their arguments than the ETU/AMWU. I also recall that very early in the bargaining process during the 9 July 2024 pre-bargaining meeting, I asked the AMWU whether they wanted to meet together with all of the other bargaining representatives, or if they wanted to meet separately, and Mr McCartney expressed their preference to hold meetings as one group. The AMWU had not raised with me that they felt as though they did not have enough time to speak to their claims in meetings.”22 [49] Mr O’Brien gives evidence that the meeting held on 14 August 2025 primarily involved discussion of the AMWU and CEPU claims, with some discussion of how this scope order application might impact bargaining. Mr O’Brien says that he was concerned as to how bargaining would work if the outcome of the scope application would not be known until October. His evidence is that the AMWU proposed continuing the bargaining over the relevant issues and then the agreement could be split – or not – at a later time based on the scope outcome. [50] Under cross examination, Mr O’Brien was asked about the progress of bargaining. In re-examination he was asked particularly about the impact the MEU application to the FWC had been having on bargaining. It was his response that at the start of each meeting he gave a two-minute update to the bargaining representatives as to the status of the application but apart from that it was having no impact. [51] The submissions from the AWU were reasonably brief. It took the view that separating the maintenance employees would not improve efficiency of bargaining. The AWU drew my attention to the decision of Deputy President (as she then was) Asbury in CFMEU v OS MCAP Pty Ltd (OS MCAP) where the Deputy President summarised the principles for scope orders as follows (citations omitted): “The following principles in relation to fairness and efficiency of bargaining and the reasonableness of making a scope order, can be distilled from the cases: • Section 238(1) does not require that present bargaining be considered unfair or inefficient, but findings to this effect would clearly be relevant and conducive to a finding that a scope order should be made. [2025] FWC 3242 12 • The Commission should be satisfied that if a scope order is made the bargaining will at least be fairer or more efficient, or both, than it would be if no order was made. • The Commission should be less inclined to make a scope order where bargaining would be marginally fairer but less efficient, or vice versa. • The term “promote” in s.238(4)(b) conveys a notion of advancing or furthering progress and it is not sufficient that there is a nebulous correlation between the scope order and fairness and efficiency. • Considerations of fairness and efficiency supporting the grant of a scope order should not be merely speculative or presuppose outcomes of bargaining and nor should they be hypothetical. • The efficiency of bargaining may be affected by the duplication created in bargaining for two agreements when compared with a single agreement but there is no statutory bias in favour of an enterprise agreement that covers as much of the employer’s enterprise as possible. • The scope order provisions are focussed on the bargaining process and not on the fairness of any outcome of bargaining. • A scope order application is not a proper vehicle to ventilate and address good faith bargaining concerns. • Issues of mere inconvenience or preference with the bargaining process are not decisive to whether a bargaining process is fairer or more efficient. • The history of bargaining between the parties including any status quo with respect to earlier agreements, is a relevant consideration as to whether a scope order should or should not be made. • Seeking leverage by increasing the bargaining power by weight of numbers is not a valid basis to make a scope order. • The potential power imbalance between a minority and a majority group of employees may be relevant but is not determinative and may be affected by considerations such as the group’s special interests and potential disadvantage, the impact on the interests of other bargaining parties, the history of the conduct in bargaining and the stage of bargaining.”23 [52] With respect to the application presently before the FWC, the AWU submits that the focus should be on the bargaining process and not on the fairness or otherwise of the outcomes of bargaining. The AWU further submits that the AMWU notion of being outnumbered at the ballot box is an irrelevant and inappropriate consideration when contemplating a scope order. It further submits that the FWC should not be swayed by speculative statements from the Applicant as to how bargaining may proceed under the proposed scope. It suggested – for example – that the matrix of classifications could be addressed just as readily under the current scope and there was no indication that this issue could only resolve under the proposed scope. [53] The AWU also noted the findings of Deputy President Asbury as above with respect to the issue of preference or mere inconvenience and submitted that the FWC should not give any weight to the submissions of the AMWU inasmuch as those submissions could be regarded as expressing preference or inconvenience. Drawing once again on Deputy President Asbury’s findings, the AWU noted that it would not be proper to make an order such that bargaining was somewhat more fair but consequently less efficient or vice versa. The AWU further submitted that the AMWU’s argument that it could not gain a proper understanding of what – for example [2025] FWC 3242 13 – members of the AWU wanted was a red herring. The AWU’s view was that unions should confine themselves to the interests of their members and as such this line of argument from the AMWU should be rejected. [54] In terms of efficiency and fairness, the AWU submits that both will be negatively impacted if the scope order is made. It takes the view that creating two separate but parallel bargaining processes will create a scenario where the AWU will be the majority union in both negotiations and will force it to attend separate meetings to advance essentially the same claims. In support of this notion the AWU noting the finding in BP - see [31] above - with regard to the inefficiency caused by duplication in two sets of negotiations as opposed to one single negotiation. [55] With respect to fairness, the AWU submits that the duplication of bargaining would force it – and BHP – to commit extra resources to the process. With respect to its own situation, the AWU proposes that the resources required may effectively double, given that bargaining meetings would possibly to be scheduled at different times on different days, with different issues being considered at different times. The AWU submits that this is unfair to it and again noted the – unchallenged – claim that it would continue to be a major player in both sets of negotiations. In summary, the AWU submits that the FWC cannot be satisfied that fairness or efficiency would be improved and that making the order would create both unfairness and inefficiency for itself as the majority union involved in bargaining. [56] Evidence for the AWU was given by Mr Shane Roulstone (AWU Organiser). He confirmed that the AWU has around 487 members covered by the proposed agreement. He confirmed that if the proposed scope order was made the AWU would continue to bargain on behalf of its members in maintenance. He further confirmed that the AWU’s log for the combined bargain had taken into account the maintenance worker claims and thus was unlikely to change if the scope order was made. [57] In its reply submissions, the AMWU rejected BHP’s assertions that bargaining would not be more efficient if the scope order was granted. It submits that: “(i)t is not the AWU’s mere presence at bargaining that is causing inefficiency. It is that BHP is giving preference to the AWU in the bargaining through the greater allocation of time and attention. The inescapable inference about why this has occurred is that the AWU can influence a larger cohort of workers under BHP’s proposed scope due to the roping in of non-maintenance workers across two mine sites.”24 [58] The AMWU reiterated its concerns regarding the various matters before the FWC which it maintains remain distractions from bargaining that would be removed if the scope order were granted. It also rejected the BHP submission that making the scope order would create a situation where the production employees were essentially removed completely and would have to commence the bargaining process from the very start. It claims the Act – construed correctly – would require BHP to continue to bargain with the production employees albeit separately from the maintenance employees. Consideration [2025] FWC 3242 14 [59] I am mindful of the case law to which the parties have directed me and in particular that in this exercise I need to be satisfied that – as per the finding in OS MCAP (see [51] above) - if a scope order is made the bargaining will at least be fairer or more efficient, or both, than it would be if no order was made. I also need to avoid a situation where there is a trade-off between the two concepts such that the bargaining is – for example – more efficient but less fair. I am also mindful that I do not need to find that bargaining is unfair and/or inefficient but that such a finding would point towards the desirability of a scope order. [60] In this matter, the AMWU and CEPU agitate on two main bases. Firstly, that bargaining is unfair and inefficient because the AWU - being the majority union – has dominated the bargaining process with the Company such that the AMWU and CEPU are unable to properly prosecute their claims. They claim that this inefficiency is compounded by what they have described as a “cloud hanging over the bargaining process” being the MEU application in the FWC. As this dispute is unlikely to impact on them – and they have no part in it – the AMWU and CEPU are of the view that it should not in any way hamper their bargaining. They contend that if the proposed scope order was made this problem would be removed – at least from the perspective of the maintenance agreement negotiations. [61] Secondly, the AMWU and CEPU also note their inability to discern the wishes of the production workers who make up the majority voting cohort. This inability to discern what is and what is not important to this group in their view creates unfairness that can only be resolved by creating a separate bargaining process for maintenance employees only. [62] I will address these concerns in reverse order. Firstly, the case law appears to me to be quite clear that making scope orders to increase the bargaining power of a particular group is generally to be avoided. I note the findings of Deputy President (as she then was) Asbury as cited in AMWU v AWU and anor (see [43] above) which clearly touch upon this point. I am mindful that the last of the dot points from OS MCAP as set out at [51] above does provide some suggestion that the principle of not providing scope orders to address a potential power imbalance is not graven in stone. However, that point does suggest that the FWC should be mindful of other considerations in any given bargaining situation. [63] In the present matter I think a relevant consideration is the reality of the AWU coverage and membership. While the production workers are the majority of the voting cohort, the AWU also has membership amongst the maintenance workers. It has clearly constructed its log of claims to take into account concerns from the maintenance workers who are its members and the meeting minutes are such that it seems to me there could be no suggestion that the AWU has in any way failed to prosecute those claims. The AWU has given evidence – which I accept – that it will continue to bargain assiduously for its maintenance members whatever scope applies. Further, the harsh reality of inter-union membership rivalry suggests to me that the AWU would be loath to find itself faced with the charge of being anything other than diligent in representing maintenance workers in bargaining. To do so would be a recruiting bonanza for the AMWU and CEPU. As such, I am satisfied that this reduces significantly any risk of the maintenance workers being overpowered by the production workers. [64] Given the general reluctance of the FWC to make scope orders to increase the bargaining power of one group and given the reality of industrial coverage and interests of the AWU, I am not persuaded that the AMWU and CEPU’s argument about their relative strength in the overall [2025] FWC 3242 15 bargain provides a reason to make the proposed scope order. Nor, for the reasons outlined below, am I inclined to the view that bargaining would be made fairer or more efficient by the making of the scope order. [65] The AMWU and CEPU complain about the bargaining process. However, drawing upon the case law I note as follows. Firstly, I need to be concerned about process rather than outcomes. In examining the process used to date – drawn from the evidence of the witnesses and the meeting minutes – two major issues occur to me. Firstly, the parties are not meeting often enough. At the time of hearing, they appear to have managed just nine meetings in thirteen months. This appears to me to be woefully inadequate. Secondly, their meetings are not of sufficient duration – indeed in some case they lasted less than an hour. As such, I am firmly of the view that the bargaining process is inefficient, but I cannot find that this is due to the scope. [66] I am also satisfied that while the AWU have perhaps had a larger share of time, the AMWU and CEPU have not been ignored. They have been invited to make their claims, they have had one of the nine meetings – bearing in mind the first meeting appears to have been little more than a “meet and greet” – essentially dedicated to their claims alone. I am also satisfied that there has been some improvement in process since the claims have been consolidated – noting this was done by BHP – and the traffic light system has been adopted. Further, I accept the evidence of Mr O’Brien that the MEU dispute at the FWC is not having any material impact on the bargaining process other than a very brief update at the start of each meeting. Given this, I do not accept the characterisation of that dispute as a “dark cloud”. [67] I have also considered the issue of fairness from the perspective of the AWU and BHP – both of whom would be forced to deal with concurrent negotiations if the scope order was made. I note the findings of the Full Bench in BP set out at [41] above regarding the inefficiency created by duplication when bargaining for two agreements versus bargaining for one. I am satisfied that if a scope order were made, it would indeed create duplication and create a need for both the AWU and BHP to devote at the very least some additional resources to the exercise. As such, I find that in this instance the proposed scope order would not only create inefficiency but would also create unfairness to both BHP and the AWU. In doing so it would clearly fail the test of increasing one facet or the other without detracting from either. [68] Noting the finding from OS MCAP at [51] above that the use of “promote” in s.238(4)(b) should be taken to mean advancing or furthering progress, I cannot find that the making of the scope order would promote the fair and efficient conduct of bargaining in the present matter. Given that the making of a scope order requires that FWC must find that all of the four conditions in s.238(4) are met, the failure to meet this condition means that the FWC is not in a position to make the proposed scope order. Notwithstanding this, I propose to briefly comment on the other two conditions found at s.238(4)(c) and (d) Section 238(4)(c) - was the group of employees who will be covered by the agreement proposed to be specified in the scope order fairly chosen? [69] I should note at the outset that there was some argument between the parties over whether the scope includes South Flank. This argument was not so much based on any party’s desire not to have South Flank covered but rather based around the submission from BHP that South Flank was covered by the 2015 Agreement and thus its inclusion in the current bargaining [2025] FWC 3242 16 did not represent a departure from the previous scope. However, this argument had its genesis in the original dispute about the proper – or otherwise – use of s.173(2A). As that matter was not pressed by BHP and given that all parties were happy for South Flank to be covered, I have not delved into that dispute at any length. [70] On the issue of fairly chosen scope, the parties were again at odds. In summary, the AMWU and CEPU submitted that the workers at Mining Area C and South Flank can be regarded as geographically distinct. As such, the issue for the FWC was whether it was appropriate to separate maintenance workers. The AMWU and CEPU submitted that BHP itself separated its workers into three distinct groups, being maintenance, production / drill blast and processing. [71] Further, it was submitted that the groups had distinct and different duties and reporting structures. In the AMWU and CEPU’s submission, this clearly identifiable delineation supported the ability of the FWC to separate maintenance workers from production and processing and make the proposed scope order. I note that the AMWU and CEPU submissions did not go into great detail regarding the Infrastructure and Service Teams albeit they did seek their inclusion as part of a maintenance agreement. [72] BHP submitted that the maintenance employees were not operationally distinct from production employees given the way in which BHP actual operated its mining processes. It submits that the maintenance and production and processing employees’ duties were heavily integrated and co-dependent and focused on a shared KPI of moving 146 million tonne of ore per annum. Further, they were not organisationally distinct given that they sit within the same organisational structure. With respect to the Infrastructure and Service Teams, BHP submitted that these workers were distinct in that they were part of a different organisational division – not being mining operations - and performed work at locations other than Mining Area C and South Flank. [73] The AWU noted that the scope for which it contended was essentially the status quo – being all employees – including Infrastructure and Service Teams – at Mining Area C and South Flank. Having noted that the scope was essentially that of the existing agreement – which was based on an acceptance of BHP’s claim that South Flank was previously covered – the AWU then provided submissions on how that scope met the tests of organisational, operational and geographically distinctiveness. [74] It is not necessary for me to undertake a significant analysis of this issue of fairly chosen given that the requirement in s.238(4)(b) has not been met. I am also not required in the circumstances to assess BHP’s position that South Flank was covered by the 2015 Agreement. That issue does not impinge on the proposed scope order sought because all parties agree it should be included – the issue is whether maintenance should split from production and processing. I would however note that each of these cases will be assessed on its own merits and while I make no findings about scope, I can see no general barrier to a situation where maintenance employees may sit in an agreement of their own in a mining operation such as the one in this matter. Section 238(4)(d) – Is it is reasonable in all the circumstances to make the order? [2025] FWC 3242 17 [75] I do not intend to canvass the submissions of the parties with respect to this limb as the circumstances are unique to this particular dispute and there is little to be gained by examining the submissions. Suffice to say given the failure to meet the condition in s.238(4)(b) it would not be reasonable to make the order. Conclusion [76] I have found that making the proposed scope order would not promote the fair and efficient conduct of bargaining inasmuch as neither the fairness nor the efficiency of the bargaining process would be enhanced by the order. As such, the application for a scope order is dismissed. [77] As a final note, I would reiterate to the parties my earlier stated view that the negotiation process is inefficient due to the brevity of the meetings held and the paucity of same. It appears to me that the process could be improved significantly with more regular meetings held for a longer duration. In that environment claims can be discussed in detail such that each party can be confident it has put its complete position and all of its arguments for the claim and has received a considered response – which may of course simply be “no”. DEPUTY PRESIDENT Appearances Mr Thomas Lettenmaier of Counsel for the AMWU and CEPU Mr Cory Fogliani, instructing Solicitor for the AMWU and CEPU Ms Vanja Bulut of Counsel for BHP Ms Pheobe Curnick, of Herbert Smith Freehills, instructing Solicitor for BHP Mr Zach Duncalfe for the AWU Ms Eunice Ong for the AWU Hearing Details Heard at Perth 23 and 24 September 2025. [2025] FWC 3242 18 Printed by authority of the Commonwealth Government Printer <PR793123> 1 See Court Book at page 579 paragraph 3. 2 See Court Book at page 580. 3 See Court Book page 20 paragraph 15(b). 4 Ibid at page 21 paragraph 19. 5 See Witness Statement of Jade Rowlands at [61]-[62] and Court Book at pages 306 and 308. 6 See Witness Statement of Jade Rowlands at [63] and Court Book at page 313. 7 See Witness Statement of Rade Rowlands at [64]-[65]. 8 The Australian Workers’ Union v Inghams Enterprises Pty Ltd t/a Inghams 2024 FWC 2517 at [67]. 9 AMWU Submissions page 7 at [27]. 10 Ibid at [29]. 11 See Witness Statement of Jade Rowlands page 10 at [64]. 12 See Witness Statement of Brant Softley page 8 at [58]. 13 See Court Book at page 866. 14 See Application by the AMWU (188V) [2021] FWC 5921 at [174]. 15 See National Union of Workers v Linfox [2013] FWC 9851 at [59]. 16 See Australian Workers' Union v Boral Ltd [2022] FWC 181 at [99]-[100]. 17 See AWU v Boral [2022] FWC 181 at [68] and MUA v Qube Logistics [2018] FWC 1688 at [70]. 18 See CEPU v Utilities Management [2022] FWCFB 42 at [98]. 19 AWU v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476 at [26]. 20 See BHP Submissions page 10 at [38]. 21 AMWU v AWU and anor [2017] FWC 1526 at [166(9)]. 22 See Witness Statement of Benjamin O’Brien page 10 at [43]. 23 CFMEU v OS MCAP Pty Ltd [2021] FWC 6706 at [29]. 24 See AMWU Reply Submissions page 3 at [15].