From Transport Workers Union
Fair Work Australia hands down landmark ruling in Boral case
Posted in:
ENEWS
By Oshie Fagir
8 Sep, 2010
8 Sep, 2010
Last week Boral Head Delegate Greg ‘Grumpy’ Masters and TWU Legal
Officer Oshie Fagir were at Fair Work Australia to hear Commissioner
Harrison hand down two rulings in our favour. “The decision went down
very, very well with the drivers — but I don’t think it went down well
with the company!” Grumpy said. “I spoke to management to arrange a
meeting, and they said they hadn’t even read the decision yet. It was
great to see everyone stand together on this.” Grumpy thanked the
members, the Member Committee, Organiser Grahame Hastings, Negotiator
Glenn Nightingale, and Oshie for making the victory possible.
Enews asked Oshie to break the case down for us.
Why was the dispute lodged in Fair Work Australia?
Boral lodged the dispute in FWA following industrial action by Boral members. The action was taken in relation to the disputes and consultation clauses. Following a conference before FWA, the parties agreed to submit the outstanding matter (dispute procedure and consultation clause) to FWA for determination.
What did the Commissioner rule?
The outstanding matters between the parties were the disputes procedure and the consultation clause. The members sought a disputes procedure which would allow any workplace dispute to be submitted to FWA for determination. Boral sought a procedure which would only allow disputes directly connected to a clause of the agreement to be submitted to FWA. It argued that our proposed clauses was illegal and even if it were not illegal, it was inappropriate and should not be included.
Commissioner Harrison found that our clause was permitted and consistent with the intent of the Fair Work Act, and that it should form part of the agreement.
In relation to the agreement’s consultation clause, we sought a requirement that Boral notify the union of any major change (that is, restructures and the like which could affect members’ jobs). Boral sought a clause which would require them to notify the union only if they decided that the change would affect someone who they somehow knew was a union member. Again they argued that our proposed clause was both illegal and inappropriate.
Again Commissioner Harrison determined that our clause was lawful and appropriate and should form part of the agreement.
This is nationally significant. Why?
The decision confirms that a Fair Work agreement may include a disputes procedure which allows all workplace disputes to be submitted to the independent umpire. It also suggests that such a comprehensive disputes procedure promotes industrial harmony and should be included in agreements (although it is not mandatory). If Boral’s case were accepted, only disputes specifically connected to a clause in an agreement could be submitted to FWA. All other disputes would presumably be dealt with at management’s discretion.
The decision also confirms that a consultation clauses requiring notification of unions of any major change is legal and appropriate. On Boral’s case, it would be up to the company to determine who would be affected by a restructure or other change, and then only notify the union if it happened to know that one of those affected persons were a union member.
The decision above applies to all enterprise agreements and therefore all employees and unions, confirming that collective agreements can and probably should include the protection of comprehensive disputes procedures and consultation clauses requiring early notification of unions on any major change.
Tell us about Grumpy’s role in the case.
Grumpy convinced the members that a proper disputes procedure and consultation clause were worth fighting for — even after all pay issues had been resolved. He gave evidence in the case explaining why the clauses were sought were important to the members. His evidence in relation to the need for a comprehensive disputes procedure was specifically quoted by the Commissioner in his decision.
Grumpy and the other delegates were totally committed to achieving a result for the members throughout the process. Without that commitment it is unlikely that we would have been able to resist Boral’s attempts to limit the agreement’s protections and achieve this favourable decision.
What happens next?
There is some prospect that Boral will appeal within the 21-day period. If there is no appeal, our proposed clauses will be part of the Boral metro drivers’ agreement.
Why was the dispute lodged in Fair Work Australia?
Boral lodged the dispute in FWA following industrial action by Boral members. The action was taken in relation to the disputes and consultation clauses. Following a conference before FWA, the parties agreed to submit the outstanding matter (dispute procedure and consultation clause) to FWA for determination.
What did the Commissioner rule?
The outstanding matters between the parties were the disputes procedure and the consultation clause. The members sought a disputes procedure which would allow any workplace dispute to be submitted to FWA for determination. Boral sought a procedure which would only allow disputes directly connected to a clause of the agreement to be submitted to FWA. It argued that our proposed clauses was illegal and even if it were not illegal, it was inappropriate and should not be included.
Commissioner Harrison found that our clause was permitted and consistent with the intent of the Fair Work Act, and that it should form part of the agreement.
In relation to the agreement’s consultation clause, we sought a requirement that Boral notify the union of any major change (that is, restructures and the like which could affect members’ jobs). Boral sought a clause which would require them to notify the union only if they decided that the change would affect someone who they somehow knew was a union member. Again they argued that our proposed clause was both illegal and inappropriate.
Again Commissioner Harrison determined that our clause was lawful and appropriate and should form part of the agreement.
This is nationally significant. Why?
The decision confirms that a Fair Work agreement may include a disputes procedure which allows all workplace disputes to be submitted to the independent umpire. It also suggests that such a comprehensive disputes procedure promotes industrial harmony and should be included in agreements (although it is not mandatory). If Boral’s case were accepted, only disputes specifically connected to a clause in an agreement could be submitted to FWA. All other disputes would presumably be dealt with at management’s discretion.
The decision also confirms that a consultation clauses requiring notification of unions of any major change is legal and appropriate. On Boral’s case, it would be up to the company to determine who would be affected by a restructure or other change, and then only notify the union if it happened to know that one of those affected persons were a union member.
The decision above applies to all enterprise agreements and therefore all employees and unions, confirming that collective agreements can and probably should include the protection of comprehensive disputes procedures and consultation clauses requiring early notification of unions on any major change.
Tell us about Grumpy’s role in the case.
Grumpy convinced the members that a proper disputes procedure and consultation clause were worth fighting for — even after all pay issues had been resolved. He gave evidence in the case explaining why the clauses were sought were important to the members. His evidence in relation to the need for a comprehensive disputes procedure was specifically quoted by the Commissioner in his decision.
Grumpy and the other delegates were totally committed to achieving a result for the members throughout the process. Without that commitment it is unlikely that we would have been able to resist Boral’s attempts to limit the agreement’s protections and achieve this favourable decision.
What happens next?
There is some prospect that Boral will appeal within the 21-day period. If there is no appeal, our proposed clauses will be part of the Boral metro drivers’ agreement.
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