No termination of preserved state agreement

Cases

No termination of preserved state agreement

The AIRC has refused to terminate a preserved state agreement as the result would have been to leave the employees on the WorkChoices Standard and no more.

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The AIRC has refused to terminate a preserved state agreement as the result would have been to leave the employees on the WorkChoices Standard and no more.

The agreement in issue expired in March 2006 - before WorkChoices became law. Senior Deputy President Marsh said that terminating the state agreement was against the public interest. The former state award would not apply to the now federally covered employees and the enforceable minima would be the Australian Fair Pay and Conditions Standard.

The Commission stated:

'… [it is] difficult to accept that this was the intention of the legislature, which made express provision to preserve State agreements. ...
… the potential impact across preserved collective State agreements has very wide reaching consequences for employees who would lose wages and conditions provisions contained in previously enforceable collective agreements but who would not be protected by an underpinning safety net award.

… Whilst I do not accept the NUW submission that the process of transition to WorkChoices for State employees in itself attracts a public interest consideration, I have formed the view that the legislative effect of the transition does attract public interest consideration such that it would be contrary to the public interest to terminate the agreement.'

Redundancy and other conditions not guaranteed

The company provided the AIRC with extensive undertakings. However, the Commission was not satisfied that the employees would be protected. The company's undertaking did not cover all existing conditions (including redundancy entitlements).

There was no deed or exchange of letters and there was no recourse for alternative dispute resolution.

Public interest

Under WorkChoices, the same rules that applied under the pre-reform laws for terminating expired federal deals under the legislation apply to applications to terminate preserved state agreements. Consequently a public interest test has to be met.

FIP Ltd re termination of a certified agreement - AIRC - PR973746 - 31/08/06
 
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