Cases round-up - agreements


Cases round-up - agreements

This latest round-up of cases is concerned principally with the certification of agreements


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This latest round-up of cases is concerned principally with the certification of agreements.
Disability differences result in failure to certify agreement
The approach of treating everybody as if they had the same level of disability was inconsistent with the Business Enterprises Award and inconsistent with the Supported Wage decision according to the AIRC.
The key difference was that under the Business Enterprises Award the assessment was made by the enterprise whereas under the Supported Wage test case clause there was either a shared responsibility for assessment or it was undertaken by a person who was independent of the enterprise.
The Commission considered the no disadvantage test and found that the agreement provided a common wage rate of $1.71 per hour for all employees. During the inspections it was clear that the capacities of persons varied.
The issue identified about the fixation of a common wage rate for persons of different capacities gave rise to a serious disadvantage compared with the Business Enterprises Award, which does allow the employer to fix different rates depending on assessment of skill.
The Commission refused to certify the agreement. However, the parties would be given an opportunity to take action that may be necessary to make the agreement certifiable.
See: Application by Vantage Inc. for certification of Vantage(Supported Employment Agreement 2002 - AIRC (Smith) - 27 March 2002 - PR926951
Undertakings allow agreement to be certified
The AIRC has approved the making of a certified agreement because it was agreed to by a vast majority of employees. The agreement passed the no disadvantage tests as required by the Act when certain undertakings were given to the AIRC.
The Commission found that the first no disadvantage test of a statutory test was passed on the basis that the Commission designated the GIO Award as appropriate for the purposes of the no disadvantage test.
The second test was relevant to the submission that s 170LK(7) was not complied with in that it said that the employer did not take reasonable steps to ensure that the terms of the agreement were explained to the persons employed. This was on the basis that there were more losses than were revealed by the applicants.
The Commission determined that the purpose of the agreement was within the contemplation of s 170LI as it was an agreement about matters pertaining to the relationship between employers and employees. The Commission found there had been compliance with the sections of the Act.
Suncorp/GIOA offered an undertaking to ensure that the applicant's interpretation of the minimum conditions referred to in Schedule A and clause 6 of the Agreement were indeed seen to be the basis of any employment offer and not subject to reduction by agreement during the period the Agreement is in force.
The Commission approved several other undertakings.
See: Suncorp Metway Staff Pty Ltd and GIO Australia Ltdre Suncorp/GIO General Insurance Business Integration Agreement 2002 - AIRC (Duncan SDP) - 25 March 2003 - PR926951.
Some Ansett employees entitled to more beneficial provisions than agreement
Justice Gyles of the Federal Court rejected the Ansett administrator's argument that the redundancy provisions under the agreement should apply, providing a cap on payments of 104 weeks.
The judge stated:
'The Award provides for more than four weeks in relation to completed years of service greater than four. In such a case, the Award provision would operate. It is clear enough from the context, particularly the "no disadvantage" provisions, that the Award would operate by incorporation into the BRP [redundancy policy] where it makes provision additional to that of the BRP. That operation, however, would be subject to the other provisions of the BRP.'
The judge concluded that the applicants were entitled to the substance of the relief sought.
AIRC refuses to certify agreement as 'no disadvantage' failure
Commissioner Richards of the AIRC refused to certify the s170LK deal for a particular Hungry Jacks franchise, because it failed the no disadvantage test. However, he gave the parties 28 days to provide undertakings or corrective measures to render it certifiable.
See: Capesun Pty Ltd t/as Hungry Jacks re Capesun Pty LtdCertified Agreement (27 March 2003).
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