Notes to employers - cases on awards and agreements

Cases

Notes to employers - cases on awards and agreements

Some points for employers to note when dealing with awards and agreements are set-out below.

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Some points for employers to note when dealing with awards and agreements are set-out below.

Stick by demarcation orders and AIRC will enforce

The AIRC has found that a union did what it could to construct or bring about a failure in the demarcation situation at a particular site. 

Consequently, when the union applied for a reconsideration of the order, the AIRC found this to be an important factor in its decision to continue the order.

See: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Forstaff Pty Ltd and another - PR934157 (30 January 2004).

Follow formal procedures re agreements

The Qld IRC has heard arguments on the refusal of an organisation of employees to sign an agreement after there had been a ballot for approval. The Commission concluded that the union had been treated reasonably.

The Commission found that a reasonable opportunity to be a party to the agreement was given to the organisation: ‘the ETU was given a reasonable opportunity to be a party to the Agreement and did not want to be a party’.

...

'Further, I am of the view that the ETU has not been denied natural justice or a right to be heard on the application for certification of the Agreement in this case...'

See: Amcor Cartonboard Certified Agreement 2003 - IRC (Qld) - Ashbury C - 28 January 2004.

Part-time employment is permanent employment and entitled to relevant benefits

A clause noting that bereavement leave was available to part-time workers was inserted in an award:

‘An employee other than a casual is entitled to use up to two days bereavement leave on any occasion on which a member of the employee's immediate family or household in Australia dies. ...

'For a regular part time employee, a "day" for the purposes of this paragraph will be reckoned by dividing the total number of hours worked by the employee in the four week period immediately prior to the employee taking bereavement leave by the number of days worked by the employee in the four week period."…’

See: Motels, Accommodation and  Resorts Award 1998 - McCarthy DP - 21 January 2004.

Calculation of safety net adjustments open to debate

A motor vehicle allowance in a federal award was calculated in a different manner by employers from advocated by the union. The AIRC supported the employer’s argument.

The employers argued that the rates currently in the awards were a direct reflection of the rates in the Public Service Award 1992 No. PSAA 4 of 1989, an award of the Western Australian Industrial Relations Commission. Those rates were adjusted annually by the WAIRC after an examination of a variety of factors that were considered as to motor vehicle expenses.

The union argued for an adjustment based on the CPI.

See: Application by Australian Liquor, Hospitality and Miscellaneous Workers' Union re various awards - McCarthy DP - 21 January 2004.

Two awards can apply to same work

In the particular circumstances of this case, the AIRC decided that roping-in the employer was a decision that would not affect the legal obligations of the company.

The general issue of whether it was appropriate or desirable to have more than one Federal award applying in a workplace or to a particular type of work was not relevant in the context of this specific situation.

The Commission concluded that the company would continue to be bound by the Textile Award because of its membership of AIG, its legal obligations were not affected.

See: Textile, Clothing and Footwear Union of Australia - Cargill C - 21 January 2004 v National Coating Company Pty Ltd.

Single employee not roped-in

The AIRC has found that roping in one employee to an award would be counter-productive in terms of moving that employee to an agreement. Consequently the Commission declined to rope-in the employee.

See: Australian Municipal, Administrative, Clerical and Services Union v HPA Incorporated - McCarthy DP - 22 January 2004.

Spell-out in writing right to union representation

The AIRC has concluded that telling workers they have a right to union representation when negotiating non-union agreements was not enough.

The legislation clearly intended workers be advised of their right to request union representation in writing.

See: Pickering Transport Group and Another v Pickering Transport Group and Another - Mansfield C - 10 February 2004.

Evidence needed before certification

Two cases emphasise that the evidence that employees are not disadvantaged should be cogent and accurate.

In the first case, undertakings pursuant to s170LV did not constitute variations to the agreement of the type envisaged by the legislation.

See: Knightwatch Security Pty Ltd - FB of AIRC - 6 February 2004.

In the second case, the AIRC has refused to certify a s170LK agreement for a security company, after finding it failed the no disadvantage test.

See: Bodyguard Security Services re Bodyguard Security Services - Certified Agreement - With Employees 2003. PR943577 (12 February 2003).

 

 





   

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