Cases wrap — agreements; right of entry

Cases

Cases wrap — agreements; right of entry

Protected action can follow genuinely trying to reach agreement; Weekend penalties coming soon for hospitality industry casuals; Activities not ‘transport’, so no right of entry for TWU.

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Protected action can follow genuinely trying to reach agreement; Weekend penalties coming soon for hospitality industry casuals; Activities not ‘transport’, so no right of entry for TWU.
 
Protected action can follow genuinely trying to reach agreement
 
A Full Bench of Fair Work Australia has confirmed that the test as to whether a party is genuinely trying to negotiate an enterprise agreement calls for the application of a relatively broad discretionary standard.
 
The bench endorsed the JJ Richards majority’s view on interpreting the ‘genuinely trying’ test when the tribunal ruled for the union in relation to applications for protected action ballots.
 
Vice President Michael Lawler, Deputy President Ken Ives and Commissioner Paula Spencer, in reasons awaited since they refused shipping company Farstad Shipping (Indian Pacific) Pty Ltd permission to appeal 17 months ago, upheld a September 2009 ruling by Commissioner Annette Larkin granting the MUA’s request to ballot members employed as cooks, caterers, integrated ratings and seafarers in the company’s offshore oil and gas operations.
 
In this case, the full bench said commissioner at first instance was correct in accepting that the union was genuinely trying to reach an agreement, after a series of meetings with the company individually, as well as industry level negotiations in which both the union and employer took part.
 
 
 
Weekend penalties coming soon for hospitality industry casuals
 
A Full Bench of Fair Work Australia has varied a transitional award to clarify that casuals do not receive weekend penalties under the Hospitality Industry — Restaurant, Catering and Allied Establishments Award — South Eastern Division, but noted that this would change as transition to the modern award took place.
 
On the penalty, it said the evidence demonstrated that casual employees covered by the award had not previously been paid weekend penalty rates during normal hours.
 
 
 
Activities not ‘transport’, so no right of entry for TWU
 
The FWA rejected TWU submissions that a distribution centre’s activities were within the transport industry — it was clear from the evidence that the activities did not involve carrying or conveying any people/goods/wares/merchandise to or from the site.
 
In addition, the centre did not employ any of the drivers operating the prime movers used to deliver goods to the centre nor own their own prime movers.
 
Deputy President Hamberger said the Woolworths’ subsidiary operated its own warehouse, with transport to it largely run by the suppliers themselves or their contractors, and onward transport contracted out to a major transport company.
 
Under s484 of the Fair Work Act 2009, entry for discussion purposes has to be linked to unions’ coverage rules.
 
 
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