‘Unlawful’ log of claims can’t stop bargaining, says FWA

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‘Unlawful’ log of claims can’t stop bargaining, says FWA

FWA has ruled that just because a log of claims contains unlawful content it doesn’t mean that bargaining for an enterprise agreement cannot begin.

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FWA has ruled that just because a log of claims contains unlawful content it doesn’t mean that bargaining for an enterprise agreement cannot begin.
 
It has also ruled that the fact that some employees have not seen the log of claims does not mean that they could not be said to want the union to bargain the agreement for them.
 
SDP Les Kaufman made the ruling in a case where the NUW sought a majority support determination so enterprise bargaining could begin with CMC Coil Steels.
 
The company was unwilling to bargain and opposed the order.
 
On 6 October 2009 the union served a log of claims on CMC that it sought to have included in an enterprise agreement.
 
Unlawful matters
 
In the case, CMC told SDP Kaufman that the log of claims included unlawful matters that were not pertaining to the employer–employee relationship. These referred to restrictions or qualifications on the use of independent contractors.
 
CMC said FWA had to be satisfied the agreement does not include any unlawful terms before it could be approved.
 
However, SDP Kaufman said it was his view that it is not necessary to decide whether or not the items included in the log of claims are capable of being included in an enterprise agreement as defined by s172 of the Act.
 
‘The making of a majority support determination is one of the ways in which bargaining for an enterprise agreement commences,’ he said.
 
‘It is not necessary that there be a log of claims at that stage. Section 236(1) merely specifies that a majority of employees who will be covered by a proposed single-enterprise agreement want to bargain for the making of it.’
 
‘A proposed agreement can be an idea, or it can be a series of claims on behalf of a group of employees whose bargaining representatives seek to negotiate with the employer with a view to it becoming an agreement that is ultimately approved by Fair Work Australia.’
 
Union might delete offending items
 
‘That a log of claims intended to commence the bargaining process might contain non-pertaining or unlawful items does not demonstrate that the union is seeking something that could not be approved under the Act. Such a conclusion would be premature. It might well be that upon being apprised of the situation the union would delete the offending items.’
 
‘In my view, some sort of persistence with a claim for offending items need be demonstrated before it could be said that a union is seeking an agreement that is incapable of being made under the Act.’
 
‘It would be antithetical to the objects of Part 2-4 of the Act to require a bargaining agent for a proposed agreement to have defined an agreement capable of approval from the outset.’
 
‘It might be otherwise where an application is made for a protected action ballot where there has been bargaining and such items still form part of the demand.’
 
On the matter of some employees not seeing the log of claims, CMC argued that they therefore could not be said to want to bargain for the proposed agreement.
 
Faith in union sufficient
 
‘I do not accept this conclusion,’ said SDP Kaufman.
 
‘The fact that the employees had not seen the log of claims does not mean that they do not want their union to bargain on their behalf in respect of it. It is enough that they put their faith in the union.’
 
‘I am satisfied that each of the petitioners was told that its purpose was to demonstrate that they were members of the NUW and that they wished to bargain for an agreement with CMC.’
 
He determined that a majority of the relevant employees wanted to bargain, that CMC was ‘resolutely’ resisting bargaining, and made the order sought by the union.
 
 
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