Bargaining fee provision stalls SA agreement's progress

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Bargaining fee provision stalls SA agreement's progress

An attempt to make a salary deduction to cover a union's bargaining services a term of an enterprise agreement has sent the parties back to the negotiating table.

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An attempt to make a salary deduction to cover a union's bargaining services a term of an enterprise agreement has sent the parties back to the negotiating table.

The problematic clause would have forced a SA security business to deduct a bargaining fee equal to one per cent from the salaries of all non-union employees. Deputy President Hampton said he could see why the union would feel that non-union employees as well as union members should contribute for a service that had bought them benefits. However, he said it was arguable that the differential treatment of non-union employees might still fall within the prohibited discrimination provisions of the Act.

The deputy president said that given the problems with the clause, the agreement should be referred to the Full Commission. However, as this would delay an otherwise beneficial agreement, he offered the parties an opportunity to consider other options and come up with a satisfactory alternative.

Background

The agreement before the SA IR Commission was drawn up between Australian Transit Security (SA) Pty Ltd and the Australian Liquor Hospitality and Miscellaneous Workers Union. The employer conducted a security business and the parties entered into a comprehensive agreement dealing with wages, hours of work and other conditions of employment.

In addition, the agreement provided for the deduction of union dues and the payment of an enterprise bargaining fee by non-union members. Clause 17.3 stipulated: 'Employees who are not union members and who agree to work for Australian Transit Security under this agreement will be required to pay a bargaining fee paid monthly equal to 1 per cent of their salary.' The clause went on to say that the employer would remit to the ALHMWU the 1 per cent of salary or union membership fee, which ever was applicable, on a monthly basis.

Findings

Deputy President Hampton found that the union dues provision was not a significant hurdle to approval of the agreement, however, the bargaining fee provision could be more problematic. The deputy president said the payment did not require any authorised deduction form or individual employee consent. The obligation for non-union members to pay the fee, and the employer to remit the fee to the union, was 'beyond the bounds of the authorised deduction provisions and may test the extent of the commission's jurisdiction to approve an agreement'.

A substantial problem arising from the proposed bargaining fee provision was that it would, on face value, provide a different condition of employment, and require the employer to treat certain employees differently, based upon their union membership status. Deputy President Hampton said the union would justify this discrimination based on the fact that it provided bargaining services to all employees under the agreement. Union members had already paid (or would pay) for the services through membership dues, but that the package achieved was of significant benefit to all employees. The deputy president said it was arguable that the differential treatment might still fall within the prohibited discrimination provisions of the Act.

Deputy President Hampton also noted that, although not necessarily a factor in this case, there were a number of potential complications arising from the issue of jurisdiction. For example, there might be a combination of employees represented by a majority union and a minority represented by other unions, the ombudsman or who were directly involved in agreement negotiations in their own right. In this case, a bargaining fee paid to the majority union might fail to recognise the representational rights guaranteed by the Act. The deputy president added that 'there does appear to be some tension within the Act between certain provisions and these may have some bearing upon the ultimate conclusions to be reached on these issues'.

In conclusion, Deputy President Hampton found the proposed agreement had merit, but the inclusion of the bargaining fee provision raised significant issues that might prevent its approval. Given these serious doubts, the deputy president said he should be obliged to refer the matter to the Full Commission. However, as this would delay an agreement otherwise 'commendable and mutually beneficial that should be applied as soon as possible' he offered the parties an opportunity to consider alternatives. If no satisfactory alternatives were raised, the deputy president said he would formally make the referral to the Full Commission.

See: Australian Transit Security (SA) Enterprise Agreement 2002 - 2004 [2002] SAIRComm51, (September 13, 2002).


 

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