Agreements round-up 6/6/03

Cases

Agreements round-up 6/6/03

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The cases summarised below highlight different issues with certified agreements - including jurisdictional issues and formal requirements.

Certification of road transport owner-drivers agreement overturned

A Full Bench of the AIRC found that a Commissioner had made an error in jurisdiction so the Full Bench overturned the certification of an agreement involving owner-drivers in the road transport industry.

The Transport Workers Union (TWU) had objected on appeal to the certification of the agreement.

The Full Bench stated that the important ingredient that the agreement pertain to the employer-employee relationship was absent. 

Note that the Full Bench went on to add that references to independent contractors may, with careful drafting, be contained in agreements that are certified.

Background

This decision concerned an appeal against the approval by a Commissioner of a variation to a certified agreement. The appellant was the TWU and the relevant agreement was the National Transport Operations Pty Ltd Certified Agreement.

The original agreement was one made between one employee and National Transport. A statutory declaration lodged in support of certification recorded that one employee was covered by the agreement. The agreement was to apply to the 'Australia-wide' business of National Transport and was certified by Commissioner Hoffman in early 2002.

In or about March 2002 National Transport sought to vary the agreement. The effect of the variation was that National Transport would no longer be the sole employer party and both it, and related corporations, were to be bound. 

A new schedule was added to the agreement listing some 18 related corporations. There was to be no variation to any substantive provisions of the agreement. Subsequently votes about the variation to the agreement were held at the work sites of each of the corporations. Both owner-drivers as well as employees at those work sites participated in the vote.

That agreement was made pursuant to the provisions of s170LK of the Workplace Relations Act 1996 (a non-union agreement) and was certified by Commissioner Hoffman in January 2002. The variation to the agreement had the effect of adding eighteen new corporations to the parties bound by the agreement.

The agreement provided that the provisions of the agreement apply to contract carriers as if that term contract carrier was substituted for the term employee.

Decision

The Full Bench stated:

‘We have considered the judgments referred to by the Commissioner. We do not doubt that...contractor provisions have been inserted into awards, relying at least in part, on the authority of Moore's Case.

'We are unable to agree, however, that it may be called in aid as authority to justify, in terms of s170LI, the contract carrier provisions in the agreement.

'Neither, with respect to the Commissioner, does Atlas Steels support the contract carrier provisions being inserted into the Agreement. Nothing was said in that case about such clauses being "industrially desirable" or "incidental to matters within the requisite relationship."'

'Are the provisions incidental or ancillary to any other clause or clauses in the Agreement that do pertain to the relevant relationship? We are not persuaded they are. They are discrete and substantive terms. They are contained in a specific part of the Agreement devoted solely to the terms upon which carriers may be engaged by National Transport and undertake parcel, taxi truck or courier work.

'Finally are the provisions machinery or administrative? For the same reasons given in the preceding paragraph they clearly are not.

'For the reasons we have given we are persuaded that the Commissioner was in error in approving the variations to the Agreement, as it was not one which, had it been a new agreement presented for certification, could be certified.

'The error is jurisdictional and encompassed by the terms of s45(1)(g) of the Act. In deciding he had jurisdiction to approve the variations to the Agreement, the Commissioner was in error or alternatively his decision reflects a failure to properly exercise jurisdiction.

'Our decision in this matter, consistent with Atlas Steels, has been made upon the form of the clauses in question, their content and effect and, additionally the significance of the provisions in the overall structure of the Agreement. References to independent contractors may, with careful drafting, be contained in agreements that are certified. We should not be taken to have decided otherwise.’

The Full Bench allowed the appeal.

See: Appeal against decision (PR921970) issued by Commissioner Hoffman on 30 August 2002 by Transport Workers Union of Australia - FB of AIRC - PR932348 - Harrison and Duncan SDPP and Richards C - 2 June 2003.

Bargaining fees clauses again rejected in federal agreements

The AIRC has refused to certify agreements containing clauses on bargaining fees.

Deputy President Ives noted that the agreements contained clauses that are referred to as union notification clauses. The clauses were found not to relate to the employer-employee relationship.

The clause

The clause in issue was similar in both cases:

‘Information to be supplied by the employer:

The employer will upon written request supply to the Union a list of the names, addresses and classifications of the employees whose employment is covered by this Agreement. The employer is not required to supply this list more frequently than once every three months, and will only release it with the written authority of the employee.’

Reasoning

The Deputy President rejected both agreements for the same reason:

‘… despite what was put to us by the appellants Atlas Steels was correctly decided with the consequence that if a provision does not relevantly pertain to the relationship between employers and employees as such and is not otherwise incidental or ancillary to a clause which does then the agreement cannot be certified.

...As confirmed in 'Health Minders', where a Union Notification clause provides merely a general duty on the part of the employer to notify the Union of the names, addresses and classifications of employees, it is not considered to pertain to the employee/employer relationship as required by s170LI. ‘

The Commission found the inclusion of the clause prohibitive to the certification of the proposed agreements.

See: Agfa-Gevaert Limited agreement 2003. PR931655 - AIRC - Ives DP (2 June 2003).

See: Red Gem Growers & Packers Pty Ltd agreement 2003. PR931523 - AIRC - Ives DP (2 June 2003).

Appeal against federal agreement certification dismissed

A Full Bench of the AIRC dismissed an appeal by an employer against the certification of an agreement involving the CFMEU.

The attack on the jurisdiction to certify the agreement was based on fraud but was not made out by the evidence presented. The appeal was dismissed and the decision of Commissioner Cargill to refuse the application to revoke and set aside the decision to certify was confirmed.

Background

This matter was an appeal lodged by National Labour & Engineering Pty Ltd on 11 November, 2002. The appeal is made against a decision by Commissioner Cargill on 22 October, 2002. In that decision the Commissioner refused an application to revoke her decision on 22 January, 2002 to certify an agreement known as the 'National Labour & Engineering Pty Ltd/CFMEU Enterprise Agreement 2001-2002'.

The Certified Agreement was made between the Company and the respondent, the Construction, Forestry, Mining and Energy Union (Construction and General Division) (CFMEU).

The application to revoke certification was brought on grounds that included an assertion that the employer party had been misled by fraud; that a cover-page had been added to the Certified Agreement after it was made, but prior to certification with a statement: 'This agreement has no application in the Sydney Metropolitan area', that appeared under a heading: 'Regional NSW Collective Bargaining Agreement'.

The grounds of appeal asserted that the Commissioner refused or failed to exercise jurisdiction under the Act.

Decision

The Full Bench found that the appellant failed to produce sufficient evidence:

‘We have found it necessary to do what we can to construct findings of fact from a very inadequately prepared body of evidential material. [Mr M] asserted fraudulent or misleading conduct associated with the finalisation of the agreement and the certification of it.

'The key assertion was that [Mr K] was mislead. Neither that assertion, or any of the more general versions of it, is reasonably founded in cogent evidence, or even in a careful presentation of the facts and circumstances relied upon. That is not to say that no allegation of culpable conduct by one or more persons associated with the CFMEU, not excluding [Mr K], might be extracted from a full disclosure of all transactions between 1999 and 2002. 

'However, to the extent that any allegation is coherently expressed at all, insufficient detail has been supplied to make it a consideration of any weight to the determination of this appeal.

'We do not consider that the Commission was materially misled or falsely advised by any party to the certification process.

'… Observance of requirements for attestation of statutory declarations may have been defective.

'Any such defects do not establish a ground for holding that the agreement was made without jurisdiction. Nor in the circumstances of this case would any such defect persuade us that the decision to certify the agreement should be revoked. [Mr K] acquiesced in any such defect by neglecting it until he elected to make the application to revoke the certification.’

The appeal was dismissed.

Appeal against decision PR922675 issued by Commissioner Cargill on 22 October, 2002

See: National Labour & Engineering Pty Ltd - FB of AIRC (Munro J, Drake SDP, Raffaelli C) - 4 June 2003.

Agreement (Qld) with expired date not certified

The Qld IRC refused to certify an agreement that carried a past date stating that the legislation commands the Commission to refuse to certify if the nominal expiry date is after the date the Agreement will come into operation.

The parties then amended the date after a vote by the employees to make it a prospective date. 

However, the Commission again rejected the application as the document presented was considered not to be a certified agreement:

‘What I am now being asked to do is to amend the nominal expiry date in the Agreement sought to be certified and to treat the defect as purely administrative.

'I do not believe the defect is purely administrative. It is jurisdictional. The Act specifically prohibits the certification in the circumstances as existed in that Agreement. It is not a technical or non-consequential amendment that is sought to be made. There is no authority in the Act for the amendment, certainly none to be found in s169 because the document sought to be amended is not a certified agreement.’

The Commission considered that the application before the Commission should be withdrawn. The document should be sent out to the employees with the nominal expiry date changed, a vote taken and a new application made in respect to that document after it has been re-signed.

See: Bundaberg Sugar Ltd (Moreton Mill) Enterprise Bargaining - Certified Agreement No. 5 CA11 - IRC (Qld) - Blades C - (14 May 2003).

Award may be negotiated while expired agreement continues: WA appeal

The WA Industrial Appeal Court confirmed that a party may seek a new award in the period after an agreement has strictly expired but continues in force.

The Court found by 2:1 that the effect of the coming into operation of the award was to cancel the 2001 Agreement from the date of the operation of the award. That in turn meant that the employees governed by the new award would move from the agreement to the new award from the date of coming into operation of that award.

See: Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian branch [2003] WASCA 102 - 13 May 2003.

 

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