Transmission of business bill passes in Federal Parliament
FEDERAL Parliament has passed a bill this month allowing the Australian Industrial Relations Commission to order than an existing certified agreement will not bind a new business when a business changes ownership.
The bill, which is yet to be assented to, is called The Workplace Relations (Transmission of Business) Bill 2002.
It allows incoming and outgoing employers to apply to the AIRC to forgo existing certified agreements.
Under the provisions of the bill, the AIRC has the power to order that an award that bound the former employer of a business does not bind an incoming employer.
However, no similar provision applies in relation to certified agreements.
Under the provisions of the bill, the AIRC can only allow an employer to not be bound by the existing certified agreement if that employer and other parties agree to forgo the existing agreement.
In situations where the majority of employees want to remain under the existing certified agreement but the new employer does not, the AIRC can still prevent the new employer being bound but it will need to be satisfied that any variation to the employees’ circumstances does not disadvantage the employees or that the variation is part of a reasonable strategy to manage a short-term crisis and to assist in the revival of the business.
A variation will be found to disadvantage employees if it reduces the overall terms and conditions under the existing certified agreement.
The new changes aim to give more discretion to the AIRC to increase business flexibility to incoming employers and to simplify some of the complexities of transferring a business, or part of a business, when new owners are faced with competing and incompatible agreements.
Carla Paratore, solicitor - 9288 6940
Ian Curlewis, partner - 9288 6756
A trickle in the drought
A PORT Hedland hotel’s application for an ongoing extended trading permit to allow trading from 12 midnight until 1am the following morning on Fridays and Saturdays was recently granted by the Director of Liquor Licensing, notwithstanding prevailing liquor restrictions controlling the sale and consumption of liquor in Port Hedland.
The licensee had previously applied for, and been granted, a number of extended trading permits on a one-off basis to trade on Fridays and Saturdays from 12 midnight until 1am the following morning.
However, the licensee argued that the extended hours sought were required on an ongoing basis, particularly because the hotel regularly engaged live bands on Saturday and Sunday nights and that there was substantial demand from local residents for entertainment after midnight.
In exercising his discretion to grant the permit, the director weighed the evidence of alcohol-related harm against the commercial benefits arising from the licensed premises being able to trade extra hours.
The merits of the application also won over concerns held by the Department of Health and the local police in relation to problems with alcohol-related harm and crime in the Port Hedland area.
However, in granting the application, the director imposed stringent conditions on the extended trading permit, including requiring the licensee to:
Ø Employ licensed crowd controllers at a ratio of two crowd controllers for the first 100 patrons and one for each additional 100 patrons (or part thereof), who are to monitor the licensed premises from 8pm until one hour after trading finishes;
Ø Install an appropriate video surveillance system;
Ø Install appropriate security lighting to the satisfaction of the local council;
Ø Ensure that food is available at all times during the permit operation; and
Ø Develop various documents detailing the harm minimisation measures that the licensee will implement in relation to the licensed premises.
The licensee was also during the operation of the permit prohibited from:
Ø Discounting liquor or advertising cheap liquor; and
Ø Selling packaged liquor for consumption off the licensed premises.
This decision illustrates that in appropriate circumstances the director will still grant extended trading permits to service the needs of regional or remote communities, even if there are community liquor restrictions in place.
However, such grants are likely to be tempered by strict measures to ensure that such permits are managed responsibly and with minimal impact on existing social problems in the community.
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