AIRC directs secret ballot to decide collective agreement  or AWAs

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AIRC directs secret ballot to decide collective agreement or AWAs

Against the employer’s wishes, the AIRC has directed that a secret ballot be held to determine the employees’ attitudes to their preferred form of agreement – i.e. whether a collective agreement or AWAs should apply.

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Against the employer’s wishes, the AIRC has directed that a secret ballot be held to determine the employees’ attitudes to their preferred form of agreement – i.e. whether a collective agreement or AWAs should apply.

In addition, the Commissioner directed that conciliation conferences be held pending the declaration of the secret ballot and that the current AWAs remain in place until the matter is resolved.

Background

Tenix Solutions provides traffic enforcement services to the Victorian Government and a number of local governments in Victoria.

In 1998, when it took over those activities for the Victorian Government, a number of former public servants were offered employment under the terms of Australian Workplace Agreements (AWA).

In 2001 those AWAs were replaced with new AWAs which currently cover all Tenix Solutions customer service and administrative employees.

The CPSU had now reached agreement with the ASU concerning coverage and did not contest the ASU's right to seek a certified agreement covering approximately 120 employees of Tenix who work at 120 Spencer Street and are engaged in clerical and administrative work.

Tenix indicated that the existing AWAs were due to expire in November 2004 but that their preference was to replace those with new AWAs. Tenix suggested that if staff wished the ASU to negotiate on their behalf they could appoint the ASU as a bargaining agent.

The ASU had also been appointed by 63 employees as their bargaining agent.

Employees were told by Tenix that if they sign and return their AWAs before close of business on 20 December they would receive a wage increase backdated to 1 November 2004. If the AWA is signed after that date it will apply from the date of signing.

Tenix maintained its position that it will not negotiate an enterprise agreement with the ASU, even if such an agreement did not exclude the operation of AWAs.

Commission ruling

Commissioner Whelan ruled in favour of a secret ballot to decide the preferred option of the employees:

‘The ASU has coverage of those employees. That is not in dispute. The employees are entitled to express a view as to their preferred form of agreement and to attempt through the processes of the Act to pursue that option. The company suffers no prejudice by allowing this process to occur.

… [the employer] referred to the decision of the Full Bench in Sensis. He submitted that there was a matter at issue between the parties being the type of agreement which should apply to the relevant employees.

Consistent with the decision in Sensis the Commission has power to issue directions to support fair and effective agreement-making by the parties involved. `Fair' agreement-making cannot occur where one party refuses to have any regard to the wishes of the others.

The directions are aimed at ensuring that a fair process is adopted and that the right of the ASU to seek a certified agreement is preserved.

… Further, the ASU had produced a petition which indicates the views of those who have signed it.

The Commission is therefore aware that a number of employees have a preference for a certified agreement.

The employees have a right to express a view and a right to pursue that preference. Equally the Company has the right to exercise its choice. The direction would prevent the Company from doing so and arguably would cut across its right to take AWA industrial action if it chose to do so.

There is nothing in the Act to enable the Commission to force the hand of either party. If the impasse leads to an intractable dispute then that is the case. The Act contemplates this.

… The Commission cannot force Tenix to make a certified agreement with the ASU. The directions would therefore have no utility.

The employees are free to reject the AWAs if they so choose. If the employees reject the AWAs then Tenix will need to reconsider its position.’

ASU v Tenix Solutions Pty Ltd. - AIRC - Whelan C - 17 December 2004
 
Directions issued by Commissioner Whelan - PR954452 (17 December 2004)

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