Enterprise agreements round-up


Enterprise agreements round-up

Four matters relating to enterprise agreements are noted below, including back-dating pay increases, binding parties to federal agreements, valid undertakings and preferences clauses.


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Four matters relating to enterprise agreements are noted below, including back-dating pay increases, binding parties to federal agreements, valid undertakings and preferences clauses.
No backdating allowed
The Australian Industrial Relations Commission (AIRC) disagreed with the union that exceptional circumstances applied and so the claim for a retrospective commencement date for pay increases under an agreement was refused.
The Commission certified the agreement between Civil Air and Airservices Australia in October 2002, but the operative date of the deal remained in dispute.
The Commissioner could not discern blatant obstructionism - as referred to in the cases when retrospective increases had been granted.
See: Civil Air Operations v Airservices Australia. PR930351 (11 April 2003) - Gay C.
Federal agreement in writing sufficient to bind parties
The AIRC held that the legislation required that an agreement be in writing and if the other pre-requisites had been met then there was no need for the agreement to be actually signed to bind the parties.
This being the case, the union was prevented from withdrawing from the agreement even though the certification process had not been completed.
Deputy President Hamilton certified a sec 170LS agreement despite an attempt by the CEPU to pull out.
The union had refused to sign the agreement presented at the hearing.
The deputy president said it may seem strange a party could be bound by an agreement it had not signed, but the Workplace Relations Act did not require a signature. The Act simply requires the agreement to be 'in writing'. The Commission rules did require a signature, but this was not a strict requirement of the legislation.
The deputy president noted that a party could not withdraw from an agreement once it was submitted for certification and added that a party 'probably' could not do so after an agreement was approved by a valid majority of workers.
See: Pampas Pastry v NUW and othersre Pampas (Victoria) Enterprise Bargaining Agreement 2002 - AIRC - PR929936 - Hamilton DP - 8 April 2003.
Agreement refused as undertakings too difficult to enforce
The AIRC refused to certify an agreement made under section 170LK of the Workplace Relations Act as the Commission agreed with the SDAEA that undertakings to make the agreement meet the 'no-disadvantage ' test were too hard to enforce.
The Commissioner found very persuasive the arguments put forward by the SDAEA concerning the nature of undertakings capable of acceptance by the Commission under the terms of s170LV(1)(a) and those concerning the difficulty of enforcement of undertakings in the terms offered by Magnet Mart.
See: Re Magnet Mart Pty Ltd- AIRC (Deegan C) - 3 March 2003.
Preference clauses quashed
The AIRC quashed a clause sought by the CFMEU in two agreements providing for employees to be exclusively represented by a nominated union. The Commission found that the clauses offended the freedom of association principles.
The clause in question was:
'The company will not challenge the right or ability of the CFMEU to constitutionally cover any employee covered by this agreement.
'The employer will encourage all employees to be members of the CFMEU'.
Clauses encouraging union membership and committing the employer to refrain from challenging the union's constitutional coverage were not objectionable.
The Commission also found non-objectionable a clause requiring an employer to contact qualified unemployed AMWU or CFMEU members when hiring workers. The Commission noted:
'With respect to the MMS Agreement, the relevant clause in the MMS Agreement imposes a duty on the employer to, wherever possible, contact suitably qualified unemployed AMWU or CFMEU members first. It only requires the employer to contact them first. It does not require the employer to employ those unemployed AMWU or CFMEU members.'
See: Office of the Employment Advocate re Mechanical Maintenance Solutions(MMS) Maintenance, Fabrication Workshop and Site Certified Agreement 2000/2003 - AIRC - Acton SDP - PR929799 (3 April 2003).
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