Prerequisites in agreement making

Cases

Prerequisites in agreement making

In order for the AIRC to certify an agreement, those involved must meet mandatory procedural obligations set out in s170LK of the federal Workplace Relations Act.

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Key point: In order for the AIRC to certify an agreement, those involved must meet mandatory procedural obligations set out in s170LK of the federal Workplace Relations Act.

Details: An application was made to the AIRC to certify an agreement between a nursing home provider and its employees. This was the second time the employer had applied, having previously not satisfied the requirements of s170LK.

The application was again denied on the grounds that the procedures set out in the Act were again not met.

Of particular concern to the commission was the failure to advise employees of their right to seek representation by their union if they were members of such a group. This prompted the commissioner to explain the requirements in full.

These requirements include:

  • That the employer takes steps to ensure that every employee has access to the planned agreement, in writing;

  • A minimum of fourteen days notice of the intention to make the agreement is given to employees and the agreement must not be made until the end of this period;

  • The notice must include the notification of a right to union representation;

  • The employer must not pressure an employee to remain unrepresented for the purposes of the agreement or give up representation once sought;

  • The employer must give the union a reasonable amount of time to discuss the agreement with their member;

  • The employer must ensure that all sections and aspects are discussed and understood by the employees;

If seeking a variation, the above procedures must be followed again.In addition to theprocedural processes, the commission is also obligated to consider:

  • The length of the agreement;

  • Whether the agreement meets the requirements of the Workplace Relations Act;

  • The inclusion of dispute settlement and prevention measures;

  • Whether the agreement was made under appropriate circumstances - ie without duress and discrimination in any form;

  • The application of the no-disadvantage test.

See: Etnor Pty Ltd and Anor AIRC (O’Callaghan SDP) PR946146, 28 April 2004.

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