Agreements - case notes 2/6/05

Cases

Agreements - case notes 2/6/05

Six cases here note: a union could legitimately cover part of a business under its rules; employees have to be properly informed about the contents of a proposed agreement; noticeboard provisions in an agreement have to allow employment matters only to be posted; unregistered agreements need to follow rules to be registered; the old employer cannot continue to be subject to an agreement that is transmitted to a new employer; and workplace change provisions are not necessarily subject to appeal.

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Six cases here note: a union could legitimately cover part of a business under its rules; employees have to be properly informed about the contents of a proposed agreement; noticeboard provisions in an agreement have to allow employment matters only to be posted; unregistered agreements need to follow rules to be registered; the old employer cannot continue to be subject to an agreement that is transmitted to a new employer; and workplace change provisions are not necessarily subject to appeal.

Union could cover part of a business

A Full Court of the Federal Court has ruled that a major telecommunications union could legitimately cover part of a business under its rules. The ruling enabled the union to cover outsourced work that was previously done by Telstra employees.

The Full Court noted:

' … [the outside contractor] has failed to establish that it was not possible to identify, within its structure, applications and development teams working solely on Telstra applications…'

IBM Global Services Australia Limited in the matter of an Application for Writs of Certiorari and Prohibition, against the Australian Industrial Relations Commission - 27/04/05 
 
Employees have to be adequately informed of proposed agreements

Alleged acceptance by employees of a proposed enterprise agreement by conduct is insufficient and proper evidence that the relevant employees were appropriately informed as required by legislation has to be presented.

Commissioner Hoffman of the AIRC stated:

'… the requirements of the Act just simply have not been met. I can't be satisfied as to when these people were supplied with the agreement …I certainly am not satisfied that there was a valid majority of people who voted based on what has been said by these three employees on site.'

O'Leary Constructions Pty Ltd Australian Workers Union Kogan Creek Site Specific Agreement 2005 - 21/03/05
 
Noticeboard - confine contents to employment matters only

If a noticeboard can be used for other than work-related matters under the provisions of an agreement then the provision fails to satisfy the required 'employment-related' test.

The AIRC noted:

'... the agreement specifies that the "main use" for the notice board is for parties of this agreement to display work related notices. By necessary implication, this must mean that the notice board could also be used to post notices that were not work related. Accordingly I do not consider that this clause either pertains to the requisite relationship, nor is it incidental or ancillary to matters that pertain to that relationship.'

TC1 Pty Ltd - Airportlink Mascot v Australian Rail, Tram and Bus Industry Union. PR957554 - 26/04/05

Unregistered agreements need to meet legislative requirements to be registered

The incorporation of so-called 'shed agreements' into federal certified agreements has to satisfy the rules contained in the Workplace Relations Act 1996 (Cth).

Deputy President Hamilton of the AIRC drew the distinction between enforceable provisions and 'letters of comfort':

'… I dismiss the four applications for certification of agreement….

Not all clauses of certified agreements which refer to other instruments incorporate those instruments into the agreement, or create binding obligations. It is by no means uncommon for certified agreements to contain statements of reassurance or intention which do not amount to binding and legally enforceable clauses …

They are often made for similar reasons to the various commitments and assurances given as `letters of comfort' in the commercial world, which are not enforceable as common law contracts

However, the natural and ordinary meaning of the language used in Clause 16 Additional Shed Agreements is an unequivocal statement that shed agreements have the same legal status as clauses of the Agreement. They "form part of the agreement". They "will carry the same weight as any part of this signed EBA" ..'

Australasian Meat Industry Employees Union, The Victorian Branch v G.A. GATHERCOLE PTY LTD AND THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION VICTORIAN MEAT PROCESSING AGREEMENT 2005 - 18/05/05
 
'Previous employer' cannot stay a party

The AIRC concluded that that an agreement where the relevant franchise was sold could only have the new employer as the employer party and the previous employer was no longer party to the agreement.

This flowed from the fact that the legislation did not contemplate that the consequence of termination of the agreement would allow the 'previous employer' to remain an employer bound by the agreement along with 'new employer'.

J D & N P Anderson Pty Ltd re J D & N P ANDERSON PTY LTD CERTIFIED AGREEMENT 2001 - AIRC - 20/05/05
 
Workplace change not subject to appeal

The Federal Court ruled that the issues involved the creation of new rights and so were properly matters for the AIRC's arbitral powers and not subject to judicial review.

Justice Ryan noted:

'A facility to obtain judicial review of a decision by a judicial or administrative decision-maker is not to be equated with "access to appeal" within the meaning … of the Certified Agreement. …'

Metropolitan Fire and Emergency Services Board v United Firefighters* Union of Australia [2005] FCA 621 - 17/05/05
 
 

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