Agreement making — case notes

Cases

Agreement making — case notes

Road making — FWA wrong to accept undertakings; Construction — CFMEU officials right of entry suspended; Police — no employer obligation to pay bargaining agents for time spent bargaining.

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Road making — FWA wrong to accept undertakings; Construction — CFMEU officials right of entry suspended; Police — no employer obligation to pay bargaining agents for time spent bargaining.

Road making — FWA wrong to accept undertakings
 
A Full Bench of FWA has upheld the appeal by the Australian Workers’ Union (AWU) that focused on the acceptance of certain undertakings by an employer in order to meet the BOOT.

Senior Deputy President Cartwright approved the original enterprise agreement — the Roadworx Surfacing Pty Ltd Traffic Controllers Agreement 2010–13.

The Full Bench considered that the decision to accept the undertakings was not appropriate:
‘It is not surprising that the matters raised in the hearing before his Honour gave rise to concerns about the Agreement and in particular whether it met the better off overall test.

We can only assume from his Honour’s reasons for decision his concerns related to the three areas about which undertakings were given in the hearing. There are several difficulties with the undertakings his Honour annexed to his decision.

Firstly as we have earlier indicated they are in terms significantly different to those the Civil Contractors Federation advocate had submitted Roadworx would be prepared to give.

Next they were not the undertakings which Roadworx did in fact give in its letter of 16 November …

Another consideration is that it is unclear how they could have been accepted by his Honour as sufficient to meet concerns about the Agreement passing the better off overall test.

The numerous clauses of the Agreement identified by the AWU which were inferior to those in the Award provided, at the very least, a strongly arguable case and some reasons needed to be given by his Honour as to why the undertakings he accepted were adequate …

The decision to approve the Agreement is quashed.’
 
 
Construction — CFMEU officials’ right of entry suspended
 
Justice Boulton in FWA suspended the right-of-entry permits of three CFMEU officials, finding that the initial decision to suspend was not harsh or unreasonable.

Evidence was accepted that one of the officials failed to leave scaffolding when requested and had driven at a gate at a worksite; and that the two other officials had failed to complete the safety induction.
 
 
Police — no employer obligation to pay bargaining agents for time spent bargaining
 
Commissioner Smith of FWA ruled that where an employee is acting as a bargaining representative it is essentially a voluntary act and an employer is not failing to bargain in good faith by the simple act of declining to pay a person who volunteers to act as a bargaining representative with all the rights and responsibilities that such a function entails.

The commissioner continued:
‘Whilst there is clear statutory encouragement for enterprise bargaining between employers and employees I do not see that the requirement to bargain in good faith carries with it, in the circumstances of this case, a duty to provide paid leave to the bargaining representative …’
This matter involved an application by Sergeant R Bowers pursuant to s229 of the Fair Work Act 2009.
 
Sgt Bowers is a member of the prosecutions division of Victorian Police (Vicpol) and had appointed himself as a bargaining representative. He has also been appointed as the bargaining representative for 132 other police officers working in the same area.

There was no evidence that the employer, Vicpol, was seeking to prevent Sgt Bowers from attending the bargaining meetings with it and the PFA by not providing him with leave at the relevant time. There is no suggestion that Vicpol was demanding a working pattern for Sgt Bowers which would prevent him from joining the current negotiations. 
 
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