Hi lowerlobe.
The commission must grant a termination upon application of either party to an EBA unless there are public interest reasons not to grant it.To grant a termination an EBA must have nominally expired, as has the LAME EBA. Also, there is no 90 day notice period required before termination can be granted upon application of a party(as is the case for post reform agreements), as the LAME EBA is a pre-reform agreement.
So, the Company doesn't have to prove that a termination is in the public interest, rather a union would have to demonstrate it's not in the public interest to grant a termination. In other words the onus would be on the union.
Please note that the legislation says the AIRC ( federal Commission) MUST grant a termination, not may.
lowerlobe read the FAAA advice attached to the latest newsletter on its website, it's clearly explained.
By the way merry xmas.
Here is an example :
EBA Expiry Date Upheld Author: Dr Kirk Lovric of
Allens Arthur Robinson A Full Bench of the Australian Industrial Relations Commission (AIRC) has restricted the discretion of the AIRC when considering termination of expired certified agreements. This article examines the decision and its impact on the AIRC's role when reviewing the public interest.
Background
On 13 January 2005, the AIRC heard an appeal by Esso contractors KBR and Worley against a commissioner's decision to refuse to terminate an expired certified agreement because this was not in the public interest. In the original application, KBR and Worley applied under s170MH(3) of the
Workplace Relations Act 1996 (Cth) to terminate their certified agreements.[1] Under s170MH(3), the AIRC must terminate a certified agreement after its expiry date, unless that would be contrary to the public interest. The application was made following union opposition to proposed work changes which, in the contractors' view, are necessary for cost and efficiency reasons.
The application failed as the AIRC was concerned about
:
- the position of Esso to influence negotiations; and
- the impact on employees' families of a change to a 14-day roster under alternative industrial arrangements.
The public interest test
From the earliest times, the AIRC and its predecessors approached the issue of public interest from the perspective of the community as a whole, not of the parties involved. In some recent cases, such as
Geelong Wool Combing ,[2] the AIRC has adopted a much broader view of the public interest test, considering the interests of the parties and the public. In that case, the AIRC refused to terminate a certified agreement due to concerns over the negative impact on employees if the agreement ceased to apply.
The Esso appeal
KBR and Worley appealed to the Full Bench and argued that Commissioner Whelan's refusal to terminate was incorrect. The Full Bench agreed with KBR and Worley and noted:
The public interest test and enterprise bargaining
In overturning Commissioner Whelan's decision, the Full Bench stated that the public interest does not include the interests of the parties unless the legislation specifically requires this. This narrows the AIRC's application of the test to something more akin to the traditional interpretation.
The significance of the narrow interpretation is that termination of an expired certified agreement becomes a legitimate bargaining strategy during negotiations. Faced with an impasse, employers now know that a successful application to terminate an expired certified agreement will result in terms of employment reverting to the parent award, usually on less beneficial rates of pay and other entitlements. In particular negotiations, this may bring matters to a head and assist resolution of outstanding matters.
[1]Kellogg Brown and Root Pty Ltd; Worley ABB Joint Venture; Corke Instrument Engineering Pty Ltd , PR951725, 7 September 2004.
[2]Geelong Wool Combing Ltd re: Geelong Wool Combing Ltd Enterprise Agreement 1993 and Others , PR937499, 5 September 2003.
[3]Kellogg Brown and Root Pty Ltd and Others v Esso Australia , PR955357, 31 January 2005.
April, 2005
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