T11502
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Archbishop of Tasmania and Centacare Employment Services
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:
(2) If the Commissioner approves an enterprise agreement, the Commissioner must:
(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:
[11] Section 152(5) provides:
[12] Principle 3 of the Wage Fixing Principles of the State Commission (the Principles), Role Of The Commission In Workplace Bargaining, provides:
[13] Principle 4 of the Principles, The Award Safety Net, provides:
[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:
[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 Appearances: Date and place of hearing: |