Airc displaces certified agreements

Cases

Airc displaces certified agreements

In a recent decision the Full Bench of the Australian Industrial Relations Commission made an award under s170MXof the Workplace Relations Act 1996, following the termination of a bargaining period, which displaces current certified agreements.

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In a recent decision the Full Bench of the Australian Industrial Relations Commission made an award under s170MXof the Workplace Relations Act 1996, following the termination of a bargaining period, which displaces current certified agreements.

(CPSU v The Crown in Right of the State of Victoria, Print S4568, [2000] 351 IRCommA, FB of AIRC (Boulton J; Polites SDP; Holmes C), 31 March 2000).

Background

In September 1996 the Commission made an interim paid rates award covering non-executive Victorian public servants. In October 1997 the CPSU initiated a bargaining period for a certified agreement to cover its members (s170LS). After lengthy negotiations the CPSU applied to have the bargaining period terminated because it was unable to reach agreement over the terms of a certified agreement. This was successfully opposed. The CPSU subsequently tried again and in February 1999 the bargaining period was terminated.

In the meantime a number of departments had made certified agreements with employees (s170LK).

Legislation

Section 170MWof the Actprovides the Commission with the power to terminate bargaining periods in specified circumstances, including where employees were previously covered by a paid rates award. In such circumstances the Commission must first be satisfied that there is no reasonable prospect of the parties making a certified agreement.

Where a bargaining period is terminated in this way s170MXprovides that the Commission must exercise its conciliation powers, and if it is satisfied that a matter is unlikely to be settled within a reasonable time, the Commission must, if it feels it appropriate, arbitrate to make an award. An award made under s170MX, which covers an employee who is also subject to a certified agreement, has the effect of ceasing the operation of the certified agreement while the award operates [s170LY(2)].

However, the effect of a s170MXaward on existing certified agreements depends on both the terms of the award and its coverage. In this way s170LYoperates to give the Commission discretion concerning the relationship between an award made under s170MXand any existing certified agreements.

Decision

In this matter the Commonwealth intervened to oppose the making of an award. Both Victoria (now under a new government) and the CPSU submitted in favour of making an award. The Commission found in favour of making an award. The fact that both negotiating parties jointly supported an award did not, according to the Commission, of itself constitute appropriate reason to make the award, but was a factor taken into account in the Commission's consideration.

The CPSU proposed that the award apply to people under certified agreements, only to the extent of any inconsistency between the award and the agreements. That is, the existing certified agreements would continue to apply except where they were inconsistent with the award. Victoria on the other hand, proposed that the award should not apply to employees under existing certified agreements.

The Commission said

...that in general circumstances we would be most reluctant to act such that in making a s170MXaward it would be applicable to employees who are the subject of certified agreements.

However, it decided that in the particular circumstances of this case that the s170MXaward should apply to employees under certified agreements despite Victoria's submission that applying the award to employees under certified agreements would send the wrong message to people about enterprise bargaining. The Commission's conclusion in this regard involved canvassing a range of matters that included changes to superannuation, tenure and productivity improvements. The Commission was also persuaded in part because there existed grounds '...for concluding that the circumstances involved in the approval of [some of] these agreements were unusual.'

The exact terms of the new award are not clear. The Full Bench directed the parties to confer and submit draft awards, and delegated settlement of the award, with recourse if necessary to other members of the Bench, to Commissioner Holmes.

 

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