Agreements cases round-up 5/11/03


Agreements cases round-up 5/11/03

Four cases on different aspects of enterprise agreements are noted here:


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Four cases on different aspects of enterprise agreements are noted here:

  • Failure by an employer to meet changes recommended by an independent third party to satisfy the no-disadvantage test;
  • Rejection of the certification of an agreement covering work that may never be part of proposed agreement;
  • Renewal of a multi-business agreement in the market research industry;
  • Termination of an agreement on the application of an employer in the coal industry.

Independent recommendations on 'no-disadvantage' test not met

The AIRC held that as recommendations made by a university researcher into the advantages and disadvantages for employees under a proposed agreement were not met, the agreement should not be certified.

Dr Doughney of the Victoria University Workplace Studies Centre was commissioned to conduct a 'better or worse off' analysis of the agreement at the request of the AIRC.

Certain undertakings were to be made by the employer but not met; and the work rosters were to be changed in an appropriate way but not implemented. In addition, the employees were each to be provided with written advice of the undertakings and be provided with copies of the report. This did not happen.

It was clear from the results of the ballot that a number of employees did not receive appropriate information regarding the terms of the agreement or the variations to those terms proposed by the applicant to enable the agreement to be certified.

Further, the AIRC was not satisfied that the terms of the agreement or variations were adequately explained to the employees whose terms and conditions of employment were to be governed by it.

See: Statewide Security Australia re Statewide Security (Australia) Agreement, PR939332 (10 October 2003), AIRC – Lewin C – 10 October 2003.

Work not part of business not subject to agreement

The AIRC ruled that without having been awarded, under contract, a particular segment of work, the applicant business could not succeed in its application for a certified agreement to cover that work.

The Commission was asked to certify an agreement for work which may never become part of the business of the applicant. The agreement therefore may never have any application. The AIRC was satisfied that the decision in the Full Federal Court (Mine Management case) is applicable to this case and that there could not be a valid application for certification before the Commission.

See: McConnell Dowell Constructors (Aust) Pty Ltd re McConnell Dowell Australia Post Tullamarine Gateway Facility Project Site Specific Construction Agreement 2003 re Certification of Division 2 agreement with employees, (PR939452) 15 October 2003 – AIRC – Whelan C.

Multi-business agreement stands

The AIRC has renewed the multi-business agreement that covers over 50 businesses in the market research industry.

Casuals constitute a large part of these businesses.Those casuals who have been in regular and systematic employment for two years and have worked at least 456 hours in the previous year now have the option of converting to permanent employment.

The Full Bench of the AIRC was satisfied that it was in the public interest to certify the agreement as a multiple-business agreement, having regard to the history of industrial regulation, common certified standards of quality, ethics and professional conduct, mobility of employees within the industry, and the transaction costs of negotiation and certification of separate agreements.

See: National Union of Workers v Association of Market Research Organisations Inc re NUW and AMRO Market Research Industry Agreement 2003-2005 – FB of AIRC – PR939594 (20 October 2003).

Agreement terminated despite union protests 

Commissioner Bacon of the AIRC found that the public interest was not compromised by the termination of a coal industry agreement that had generous redundancy provisions included.The Commissioner noted that the redundancy provisions had not been called upon and were not likely to be in the foreseeable future.

Commissioner Bacon stated:

'The Commission could conceive a set of circumstances where an employer facing the need to effect redundancies could "manufacture" or "manipulate" the bargaining and s.170MH with the sole purpose of reducing redundancy payments to employees who were about to have their employment terminated.

'In such circumstances it may be contrary to the public interest to terminate the agreement. In the circumstances before the Commission the current application is not directed toward such a purpose. Rather, it is part of the cut and thrust of bargaining. As such the loss of the relocation payment does not excite the public interest.

'Having considered the material, particularly the submissions of the CFMEU and the CEPU, the Commission has formed the view that it would not be contrary to the public interest to terminate the agreement.’

See: Application by Anglo Coal (Capcoal Management) Pty Ltd re Capricorn Coal Management Pty Ltd and CFMEU and CEPU certified agreement 2001 – AIRC – Bacon C ( 22 October 2003).

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