Agreement approvals thwarted by dissent

Cases

Agreement approvals thwarted by dissent

Employers often encounter obstacles on the road to agreement approval. In these four cases, disputes arose relating to the eligibility of casuals to vote, proper notification, the employment relationship and misleading information.

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Employers often encounter obstacles on the road to agreement approval. In these four cases, disputes arose relating to the eligibility of casuals to vote, proper notification, the employment relationship and misleading information.

Counting casuals for agreement purposes


A full Federal Court has ruled that casuals engaged at the time an agreement is being made can vote on it. Casuals not currently working were excluded.

The full court said that if a purely grammatical justification was needed for that view, it could be found by treating the words “employed at the time” in s181(1) as limiting apropos “employees”. Not only was that a satisfying grammatical reading of the whole phrase, it accorded strongly with the purpose of this provision, and those associated with it.

National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 (17 July 2015)  

Employees not properly notified


A Fair Work commission full bench ruled that a commissioner was in error in concluding that the employers had complied with the pre-approval steps in s180(3) of the Act.

The legislation requires the employer to take all reasonable steps to notify relevant employees about the time and place at which the vote will occur, and the voting method that will be used. 

The decision to approve the agreement was set aside.

Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc. [2015] FWCFB 3545 (17 July 2015) 

Dispute about employment relationship, not agreement


This was an application to deal with a dispute under the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2014 regarding payment of allowance.

The union submitted that the employer required drivers of prime movers to carry a copy of  the 'over dimension permit'.

The commission ruled the dispute was about the employment relationship and that it did not have the power to determine past rights and liabilities.

Transport Workers' Union of Australia v Linfox Australia P/L [2015] FWC 3418 - Roberts C - 6 July 2015

Misleading information about employees’ rights halts ballot


Under Fair Work legislation a person must not knowingly or recklessly make a false or misleading representation about: (a) the workplace rights of another person; or (b) the exercise, or the effect of the exercise, of a workplace right by another person.

The CFMEU contended that within the meaning of s345(1), the representations made were misleading and were “about” the “workplace rights” of the employees to whom they were made – particularly about future agreement coverage.

Justice Bromberg consequently temporarily stopped the employer from accessing the results of the agreement ballot.

Construction, Forestry, Mining and Energy Union v CUB Pty Ltd [2015] FCA 692 (2 July 2015)

 See also: Agreements and bargaining 

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