2. Certified Agreements as De Facto Demarcation Instruments

Introduction
2.1 Section 43(2)

Introduction

On one view of it, section 170LJ permits an organisation with constitutional coverage of one employee to enter into an agreement covering an unlimited number of employees in respect of which that same organisation has no coverage.

The same can be said of the provisions relating to “greenfield agreements” (see s.170LL(2)). This permits an employer to enter into an agreement with any organisation which is prepared to be a party to that agreement (to the exclusion of other unions) where that union has no capacity to cover the overwhelming majority of employees who eventually become subject to the agreement when the project is underway.

Because such an agreement is entered into before a project commences, the mechanism of majority support amongst the workforce is missing. Where a workforce has not voted to accept the terms of an agreement, it is important that the agreement meets acceptable standards so that it has some legitimacy amongst that workforce and is not viewed as something that has been imposed upon them.

The Suns Metal dispute in Queensland in early 1999 was a clear example of a situation where disputation arose because an agreement had been negotiated which excluded the union of which large numbers of workers were members and wished to remain as members. The workers also believed that the agreement was sub-standard.

The Queensland Government has since moved to disallow such a practice under State legislation.

In March 1998 the ILO’s Committee of Experts in finding aspects of the Workplace Relations Act in breach of Convention 87, expressed concerns about provisions in the Act which allowed employers to select a bargaining partner on behalf of potential employees regardless of whether that union would ultimately be representative of the workers concerned.

The insertion of a new s170LJ(5) will compound the problem.

2.1Section 43(2)

This section specifically denies those unions who are not proposed to be a party to the agreement the right to intervene in certification proceedings even where they have members who will be covered by the agreement and notwithstanding the legitimate interest which they have in respect of an agreement which covers employees within their eligibility rule.

(see TWU v. DHL International (Australia) Pty Ltd 1996 73 IR 356

CFMEU v. Fluor Daniel 1996 75 IR 79

K & S Freighters 1998 Print P8417)

The proposed new s42A seeks to further limit the rights of unions to represent parties in certification proceedings by linking that right to the extremely limited right to intervene in s43(2) ie to those organisations who are proposed to be bound by the agreement. Such provisions raise serious questions relating to a denial of natural justice to those organisations whose interests are affected by such proceedings.

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United we bargain - Divided we beg.
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