Approvals process dogged by obstacles

Cases

Approvals process dogged by obstacles

Obtaining approval of enterprise agreements can be a difficult and lengthy process, as these cases illustrate.

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The enterprise agreement approval process is often fraught with problems, as these cases illustrate.

Illegible voters partipated in ballot

A Full Federal Court has ruled the Fair Work Commission rightly refused to approve a meat industry agreement as illegible voters had participated in the ballot.

The court said the employer, Teys, had resorted to the language of judicial review but this was a chimera. Teys was unable to identify any misunderstanding on the part of the majority as to the jurisdiction of the full bench, or the nature of the opinions they had to form, to any misconception they had of their duty, or to any failure to apply themselves to the relevant statutory questions.

Teys also not able to show the majority had made any other error of law causing them to fall into jurisdictional error. As the grounds of review recognised, their decisions were based on their construction of the agreement and their analysis of the evidence. If the majority did err in these respects, their errors were within jurisdiction.

The application was dismissed.

This proceeding was the latest stage of a long-running dispute over the approval of an enterprise agreement.

Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCAFC 105 (31 July 2015)

Restructure can continue, but concerns for employee welfare


The Federal Court (Buchanan J) has allowed a restructure by Resmed to continue, but warned there needed to be a careful watch on the process to ensure employees were not disadvantaged.

ResMed’s position was that none of the relevant employees (or any others for that matter) would be transferred against their wishes.

The award provision, which the AMWU relied on, did not incorporate an embargo on the introduction of redundancy measures. The court also noted the employees or their representative could not exercise any power of veto.

The court was not persuaded the union had made out a case on the balance of convenience for it to grant interim injunctive relief restraining ResMed from introducing the workplace changes notified.

Australian Manufacturing Workers' Union v ResMed Limited [2015] FCA 788 (3 August 2015) 

Can’t commit non-party to agreement terms

The WA Supreme Court (Beech J) has found the WA industrial commission wrongly registered an agreement that committed a business that was not party to the agreement to meet certain car-park rates for employees working under the agreement.

The court noted: “it is one thing to order inclusion of a provision governing the position regarding payment of or for parking fees as between employer and employee. It is a quite different thing, of a fundamentally different character, to dictate or purport to dictate how those charged with responsibility for fixing parking fees near a place of employment must discharge that responsibility".

Re Harrison; Ex Parte Hames [2015] WASC 247 (21 July 2015) 

Full bench refuses to outlaw industrial action


A Fair Work Commission full bench has ruled that outlawing industrial action for three months was inappropriate in the context of enterprise bargaining. The decision of a single member of the FWC was overturned.

The full bench did not consider that industrial action was imminent. Also, the union had been denied procedural fairness in respect of insufficient time to counter the employer’s argument about upcoming industrial action.

Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch (CFMEU) and others v Bechtel Construction (Australia) Pty Ltd and another [2015] FWCFB 5297 (3 August 2015)

Consent required to alter agreement


The Fair Work Commission (Williams C) noted that the employer, Griffin, decided to introduce a major change to shift rosters. If  implemented, it would have significant effects on emplyees'  hours of work.

The agreement required the employer to notify employees of its decision and to consult with them. The commission would need to issue an order to alter the agreement to facilitate implementation of the new roster, and to resolve the conflicts with particular terms of the agreement.

If the employer's position was adopted, changes to the agreement would need to be made to allow the roster to operate. This would be a decision of the commission that was inconsistent with the terms of the agreement.

The commission was not in a position to alter the agreement at the request of the employer. The agreement required the consent of the union to effect a change.

Griffin Coal Mining Company Pty Ltd v Construction, Forestry, Mining and Energy Union and Construction, Forestry, Mining and Energy Union v Griffin Coal Mining Company Pty Ltd [2015] FWC 4899 (27 July 2015)

Pre-approval process should be carefully managed

A Fair Work Commission full bench was critical of supporting evidence provided by an employer and quashed the agreement made at first instance.

The full bench said that, based on the material provided, there wasn't a proper basis upon which the deputy president could have been satisfied the employer had complied with the pre-approval steps set out in the Act. Moreover, there was no explanation in any of the materials before the deputy president for the different and inconsistent statutory declarations. This fact alone necessitated further enquiry.

The full bench was satisfied it was in the public interest to grant permission to appeal, and upheld the union’s appeal.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Mirait Technologies Australia Pty Ltd [2015] FWCFB 5078 (27 July 2015) 

See also: Agreements and bargaining 

 

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