Agreements can include union disputes, consultation clauses, says Full Bench

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Agreements can include union disputes, consultation clauses, says Full Bench

A Full Bench of FWA has confirmed that enterprise agreements can contain a dispute resolution clause that covers ‘matters pertaining’ to the employment relationship, and a clause that means unions must be informed of proposed major changes at the workplace.

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A Full Bench of FWA has confirmed that enterprise agreements can contain a dispute resolution clause that covers ‘matters pertaining’ to the employment relationship, and a clause that means unions must be informed of proposed major changes at the workplace.
 
 
The Full Bench was being asked to allow an appeal by Boral against the outcome of a consent arbitration conducted by Commissioner Greg Harrison.
 
In its ruling, the Full Bench themselves raised the issue of whether it had the jurisdiction to hear an appeal against a consent arbitration, but said that since the parties had not raised it they would not express a view.
 
Not obliged
 
However, they noted that Boral was not obliged to agree to the arbitration, but had done so.
 
Vice President Michael Lawler, Deputy President Peter Sams and Commissioner Bruce Williams heard that Boral’s appeal was on the argument that the Fair Work Act 2009 did not permit the two clauses to be included in the agreement.
 
Boral claimed that s186(6) only allowed for dispute resolution clauses in agreements that related to matters arising under the agreement or relating to the NES.
 
In refusing the appeal, the Full Bench said s738(b) would allow for an agreement to contain a dispute resolution clause that went beyond the requirements of s186(6).
 
‘It is a matter of common experience that disputes can arise between an employer and employees bound by an enterprise agreement that manifestly pertain to the employment relationship but are about matters that are not dealt with, or otherwise regulated in the enterprise agreement, typically because the circumstances giving rise to the dispute were not contemplated at the time the agreement was made,’ the Full Bench said.
 
No mechanism to resolve disputes
 
‘The construction advanced by Boral would leave such disputes without any mechanism by which they could be addressed by denying parties to a proposed agreement the option of including a term in their agreement that allows Fair Work Australia to resolve such disputes by whatever means therein agreed.’
 
On the matter of Boral notifying the union (in this case the TWU), Cmr Harrison had ruled in his arbitration:
‘The differences between [the parties] are essentially whether Boral should notify the TWU of a decision to introduce major workplace change. Boral’s proposal is to notify “the relevant drivers of the decision to introduce the major change. If Boral knows that any of the relevant drivers are members of the Union, then Boral will also notify the Union of the decision to introduce the major change.” The TWU proposal is that “Boral will notify the relevant drivers and the TWU of the decision to introduce the major change.”’
Boral submitted its concern is to ensure compliance with the principles of freedom of association and in the event that a major change does not have a significant effect on any known union members then it should not be obliged to notify the TWU.
 
The flaw in Boral’s position is that it cannot be entirely sure which of its employees are members of the TWU.
 
In my opinion, notifying the TWU does not create an inconsistency with an employee’s right to freedom of association nor with the Objects set out in s.336 of the Act.
 
The Full Bench said there was no contest that Boral employed TWU members.
 
‘Notification to an employee organisation that will be covered by an enterprise agreement of major changes that may affect members of that employee organisation is manifestly a “matter pertaining to the relationship between the employer and an employee organisation that will be covered by an agreement” and therefore within the class of “permitted matters” specified in s.172(1)(b),’ the Full Bench ruled.
 
No basis to interfere
 
They said they were not persuaded there is any basis to interfere with Cmr Harrison’s determination ‘which we consider was well open on the material before him’.
 
Permission to appeal was refused and Boral remained bound by the original determination.
 
 
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