Certifying a greenfields agreement - step by step

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Certifying a greenfields agreement - step by step

The necessary steps to certify a federal agreement at a "greenfields" site have been considered by the Australian Industrial Relations Commission.

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The necessary steps to certify a federal agreement at a "greenfields" site have been considered by the Australian Industrial Relations Commission.

A greenfields agreement can be made "between an employer that is a constitutional corporation and one or more organisations of employees which are entitled to represent the industrial interests of one or more person whose employment is likely to be subject to the agreement in relation to work that will be subject to the agreement".

Vice President Ross certified the Darwin Central Enterprise Agreement 1997, a greenfields agreement according to s170LLof the Workplace Relations Act 1996(ALHMWU and Darwin Central Nominees t/a All Seasons Premier Darwin Central Hotel & Anor re Darwin Central Enterprise Agreement 1997; Print P0367 [1997] 385 IRCommA).

To be certified, a greenfields agreement must meet certain statutory tests.

  • Application for certification must be made no more than 21 days from the date the agreement was made and in the appropriate form in accordance with the Rules of the Australian Industrial Relations Commission.
  • The agreement must be between a constitutional corporation and any persons employed in the single business whose employment is subject to the agreement.
  • The next test is whether or not the agreement applies to a single business or part of a single business. Section 170LBof the Workplace Relations Act 1996defines the term single business as a "business, project or undertaking carried on by an employer" or the activities carried on by the Commonwealth, a State or a Territory.
  • Requirements under s170LLof the Act, relating to greenfields agreements, must be met. To qualify for a greenfields agreement, the single business must be a new business and the agreement is to be made prior to the employment of any persons whose employment will be subject to the agreement.
  • The no-disadvantage test must be passed. For the purposes of the test, the agreement must be compared to a relevant award, or in cases where a relevant award does not exist, then it must be compared to a designated award. The designated award is determined by the Commission.
  • The agreement must contain a dispute settlement clause to settle and prevent disputes that may arise out of matters covered by the agreement.
  • A nominal expiry date must be specified. The date must not be more than three years from the date the agreement commenced operation.
  • The agreement must not be inconsistent with provisions in Div 3 of Pt VIA of the Actrelating to termination of employment or any orders or injunctions made by the Commission under that Division.
  • The Commission may refuse to certify an agreement if the employer’s conduct in negotiating the agreement was discriminatory against unionists or non-unionists or in contravention of s70NB or Pt XA, dealing with freedom of association.
  • The agreement must not contain provisions that discriminate against an employee on the basis of race, sex, age etc (s170LU(5)).

Vice President Ross was satisfied, in regard to the Darwin Central Enterprise Agreement, the statutory tests for certification had all been met and there was nothing in the agreement that would lead to a refusal to certify.

 

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