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Certified agreement fails to prevent industrial action

THE Federal Court has recently analysed and decided on arguments of when industrial action can be taken where there is a certified agreement in place.

As a general rule, industrial action cannot be engaged in where it is covered by a term or condition of a certified agreement.

The employer in that case applied for an interlocutory injunction to restrain a union’s threatened stoppage of work at an employment site.

Several of the reasons for threatening this industrial action became matters in dispute between the parties, especially regarding the change of full-time employment positions to part-time positions.

The court looked closely at two agreements the employer had in place.

The first was an agreement regarding redundancy, redeployment and retraining (RRR agreement), which was certified but had expired.

The RRR agreement was still in operation but no longer certified.

It had no specific provisions for redeployment of workers no longer required in their existing positions.

There was also a second certified agreement, which had not expired (certified agreement) which dealt with various other issues.

The employer firstly argued that the certified agreement had provisions for the assumption that the terms and conditions of the RRR agreement were incorporated into the certified agreement.

Accordingly, the union was prevented from engaging in industrial action on matters specifically dealt with in the RRR agreement, including redeployment issues.

The court accepted that the RRR agreement remained in operation, by virtue of the Workplace Relations Act, although not as a certified agreement.

It found, however, that the provision in the certified agreement relied on by the employer as applying the RRR agreement’s terms to the certified agreement, was only a ‘statement of attitudes’ by the employer and did not go so far as to expressly provide for the terms and conditions of the RRR agreement to form part of the terms of the certified agreement.

The union was therefore not prevented from engaging in industrial action.

The second argument for the employer was that the threatened industrial action on the basis of matters relating to part-time employees in the certified agreement was precluded.

In this respect, the court found that the certified agreement contained ‘no agreement’ as to matters relating to part-time employees, it contained only ‘statements of objectives and principles’ in this respect.

The union was therefore again not prevented from engaging in industrial action.

The point to be taken from this case is simply that a certified agreement must be thoroughly considered and carefully drafted to limit the scope for industrial action to be engaged in during the life of the certified agreement.

Carla Paratore, solicitor

9228 6940

Joshua Preston, senior associate

9288 6949

 

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