Non-union certified agreement - procedure

Cases

Non-union certified agreement - procedure

A formal final offer to employees during negotiations for an enterprise agreement was found not to constitute a variation to the proposed agreement.

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A formal final offer to employees during negotiations for an enterprise agreement was found not to constitute a variation to the proposed agreement. The employer was therefore not required to re-explain the agreement’s effects to comply with the Workplace Relations Act 1996(Cth).

Background

P & O Catering and Services Pty Limited (the employer) applied to the Australian Industrial Relations Commission (AIRC) for certification of an agreement made with employees under Division 2 of Part VIB of the Workplace Relations Act 1996(Cth) (the Act) (Application by P & O Catering and Services Pty Limited re P & O Catering and Services (Woodside Offshore Platform Operations) Employment Agreement; (Print Q4916, [1998] 1030 IRCommA).

The Australian Workers’ Union (AWU) submitted that the AIRC should not certify the agreement because the employer had not conformed with s170LK(8) of the Act. Section 170LK(8) provides that if a proposed agreement is varied for any reason after the 14 days’ notice is given to employees of the intention to make the agreement, the steps in subsections (2), (3), (5) and (7) must be taken again.

These subsections specify that:

  • an employer must give employees at least 14 days’ notice in writing of the intention to make the agreement;
  • the employer must take reasonable steps to ensure that every employee has a copy or ready access to the agreement;
  • the employer must give the employee’s representative a reasonable opportunity to meet and confer with the employer before the agreement is made; and
  • the employer must take reasonable steps to ensure that the agreement is explained to all affected employees.

The AWU argued that since the employer had not gone through this process again doubt existed as to whether the employees who voted for the agreement did so in full knowledge of the costs and benefits of their decision. The new offer included changes to overtime entitlements and provisions relating to transfer between the employer’s various sites.

Commission’s decision

Laing C found that the changes to the proposed agreement did not constitute a variation but rather a new offer to the employees. The employer therefore did not have to go through the process of informing and conferring with employees again pursuant to s170LK(8).

The potential disadvantages raised by the Union were also found to be not enough to warrant the Commission’s rejection of the agreement. The employees were given their entitlement to exercise their rights and did so. The employer met the formal legislative requirements under s170LKwith a letter accompanying the offer which explained the differences between the new offer and earlier offers; informed employees that they could request a union to represent them; and provided the employees with the opportunity to raise any queries with management representatives.

Laing C held that where the legislation has been met it is not for the Commission to decide that an agreement is or is not acceptable, even where there may be continuing concerns as to disadvantage. Providing employers meet the legislative requirements the Commission must be satisfied that overall there is no disadvantage to employees within the context of the Act.

 

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