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T11502

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

The Archbishop of Tasmania
(T11502 of 2004)

and

Centacare Employment Services
New Apprentices Centre
Wilson Training (Centacare)

 

PRESIDENT P L LEARY

HOBART, 19 July 2004

Industrial dispute - enterprise agreement negotiations

REASONS FOR DECISION

[1] The Archbishop of Hobart has lodged dispute notifications in both the Tasmanian Industrial Commission (TIC) [T11502 of 2004] and the Australian Industrial Relations Commission (AIRC) [C2004/4312].

[2] Centacare Employment Services, New Apprentices Centre and Wilson Training (Centacare) is a named respondent to the Community, Training and Support Services Award 1996 (the CETSS award) and party to an agreement certified pursuant to s.170LT of the Workplace Relations Act, 1996 (the Federal Act) known as the Centacare Employment Tasmania Certified Agreement 2000 (the EBA). The EBA has a nominal expiry date of 9 March, 2003.

[3] It was submitted that there is no legal entity known as Centacare and that the employer of the employees at Centacare is the Archbishop of Hobart (the Archbishop).

[4] The parties have held discussions and wish to negotiate an agreement to include conditions such as time off in lieu (TOIL), paid maternity leave, increased redundancy, earlier access to long service leave and salary sacrifice.

[5] The dispute notifications relate to a concern that any agreement reached with employees will not be capable of certification/registration in either jurisdiction.

[6] The Archbishop submitted that as Centacare is not a constitutional corporation it is not able to have an agreement certified pursuant to the Federal Act.

[7] There is no such restriction in the Industrial Relations Act 1984, (the State Act) which provides a comprehensive process for the making of an Enterprise Agreement and requires, where relevant, for the registration of such agreement in the following terms:

"61J (1) The Commissioner must approve an enterprise agreement unless satisfied that:

    (a) the conditions of employment specified in the agreement do not comply with the minimum conditions of employment specified in section 61F; or

    (c) the matters referred to in section 61E are not contained in the agreement; or

    (ca) the bargaining process adopted by the parties to the agreement was not appropriate and fair; or

    (d) the agreement was made under duress; or

    (e) any matter raised during a hearing convened under section 61I by the Minister, or by an organization intervening under section 27, justifies refusal of the approval of the agreement; or

    (f) the agreement is not fair in all the circumstances; or

    (g) the requirements referred to in section 61I(2), (2A) and (2B) have not been met.

      (2) If the Commissioner approves an enterprise agreement, the Commissioner must:

    (a) by notice in writing advise the parties to the agreement and the Minister of the approval and their right to withdraw from the agreement under section 61K; and

    (b) forward a copy of the agreement to the Minister.

      (3) If the Commissioner refuses to approve an enterprise agreement, the Commissioner, by notice in writing, must advise the parties to the agreement and the Minister of the reasons for the refusal."

[8] The employees have elected a committee in accordance with the provisions of the State Act and the committee is represented by the Australian Mines & Metals Association Inc (AMMA).

[9] As indicated at the conference in Hobart I am of the view that any agreement reached between the parties can be registered in the State Commission, provided it satisfies the requirements of the State Act.

[10] Section 152(3) of the Federal Act provides:

"If, at a particular time, a State employment agreement that is made after the commencement of this subsection would regulate wages and conditions of employment of an employee but for the fact that an award is binding on an employer in respect of the employee, then:

(a) the award does not prevent the agreement from coming into force and regulating the wages and conditions of employment of the employee; and

(b) while the agreement continues to regulate those wages and conditions, the award is not binding on any person in respect of the employee."

[11] Section 152(5) provides:

"Subsections (2) and (3) do not apply to a State employment agreement unless the agreement is one that was approved by a State industrial authority under a State Act that required the authority, before approving the agreement, to be satisfied:

(a) that the employees covered by the agreement are not disadvantaged in comparison to their entitlements under the relevant award; and

(b) that the agreement was genuinely made, or that the agreement was not made under duress or that the agreement was made without coercion; and

(c) that the agreement covers all the employees whom it would be reasonable for the agreement to cover, having regard to matters (if any) specified in the State Act (such as the nature of the work performed under the agreement and the relationship between the employees in the part of the business covered by the agreement and the remainder of the employees in the business)."

[12] Principle 3 of the Wage Fixing Principles of the State Commission (the Principles), Role Of The Commission In Workplace Bargaining, provides:

"The Commission will continue to play an active role in encouraging and facilitating workplace bargaining. In that regard, in the exercise of its statutory responsibilities pursuant to Section 36 of the Industrial Relations Act 1984, the Commission will act to ensure that the proposed award or agreement does not result in a reduction in ordinary time earnings, or departure from parental leave standards or hours of work or annual leave with pay, and the agreement or award, taken as a whole, will not disadvantage the employees concerned unless the Commission is satisfied that circumstances justify otherwise.

For the above purpose, "disadvantage the employees concerned" means by reference to the safety net of wages and conditions of employment as detailed in Principle 4-The Award Safety Net." [my emphasis].

[13] Principle 4 of the Principles, The Award Safety Net, provides:

"Existing wages and conditions in the relevant award or awards of the Commission shall constitute the safety net underpinning workplace bargaining.

The award safety net may, on application be reviewed and adjusted from time to time to ensure its relevance. Generally the detailed nature and timing of any adjustments will be determined in the context of specific applications and in the light of prevailing economic, social and industrial circumstances."

[14] Accordingly, if an agreement filed in the State Commission satisfies the requirements of the State Act it will not cause a disadvantage to the employees subject to its terms (unless circumstances justify otherwise).

[15] It is arguable whether the EBA certified in the Federal Commission is binding on the parties. Nevertheless it is presumed that it was entered into in good faith and has been honoured. It would seem appropriate therefore that the parties continue to honour its terms and make the necessary application to set the EBA aside at the time of an agreement being registered pursuant to s.61A of the State Act.

[16] Once approval for any agreement is provided by the State Commission pursuant to the relevant provisions of the State Act, section 152(3) of the Federal Act would come into effect which provides:

"(a) the award does not prevent the agreement from coming into force and regulating the wages and conditions of employment of the employee; and

(b) while the agreement continues to regulate those wages and conditions, the award is not binding on any person in respect of the employee."

[17] The CETSS award, to which the employer is a respondent, is a minimum rates and conditions award and would be the Safety Net award in respect to certification by the Federal Commission. Accordingly if the proposed agreement would satisfy the no disadvantage test of the Federal Commission it should also satisfy the fairness test of the State Commission which relies on a no disadvantage test by reference to the Wage Fixing Principles.

[18] In my view the registration of an agreement in the State Commission will satisfy the requirements of s.152(3) of the Federal Act.

[19] The parties should seek to make application pursuant to s.170MG of The Federal Act, [Terminating a certified agreement where valid majority approve at any time]. On the advice of the parties the hearing of that application can be on the same day as the hearing of the application for registration of the proposed State Enterprise Agreement.

 

P L Leary
PRESIDENT

Appearances:
Mr B McTaggart, solicitor with Ms A Murfet for the Archbishop of Tasmania
Mr R Rogers of the Australian Mines and Metals Association (Incorporated) with Mr B De Boer for the respondents

Date and place of hearing:
2004
July 9
Hobart