No termination of agreement without replacement agreement?

Cases

No termination of agreement without replacement agreement?

A new Federal agreement provision that permits the termination of an agreement only if it is replaced by another agreement could possibly be a permissible provision under WorkChoices - but this is still unclear.

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A new Federal agreement provision that permits the termination of an agreement only if it is replaced by another agreement could possibly be a permissible provision under WorkChoices - but this is still unclear.

The contrary view is that it is a claim that deals with renegotiation of a workplace agreement because it refers to a new agreement - and so is in breach of WorkChoices legislation. The union here argued that it was a term relating to termination of an agreement - a category allowed by the Act.

Senior Deputy President Cartwright did not have to decide the matter as a right of entry provision sought by the union offended the legislation. Regulation 2.8.5(1)(g) prohibited the provision as it dealt with union officials' rights to enter the site of the employer bound by the agreement.

New agreement provision

The employer argued that the clause requiring a new agreement be put in place before termination of the old agreement was prohibited by Regulation 2.8.5(1)(a), which bars content on 'renegotiation of a workplace agreement'.

The clause sought

The union's log of claims included the following proposed clauses:

'AMWU representatives upon arrival to the site must register and sign-off at reception and at all times be accompanied by the site union delegate;' and

'This agreement will continue in force after its nominal expiry date pursuant to the Act and will not be terminated except when replaced by a new agreement.'

Consideration

Senior Deputy President Cartwright said the characterisation of the second clause noted above was finely balanced. He said he favoured the view that it dealt with renegotiation of a workplace agreement because it contemplates a new agreement.

However, he did not need to decide the matter. He did add in conclusion:

'… it illustrates the risks attached to attempting to negotiate just short of the boundary on prohibited content. Any crossing of the boundary may deny employees access to protected industrial action.'

AMWU v EDI Rail Pty Ltd. - AIRC - PR973839 - 31 August 2006.

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