BSUA’s Right To Take Action Against East Bank For Breaching The Fair Work Act 2009 And Adverse Action Against Serena

Section 172 of the Act

Whether BSUA holds any right to take action against the East bank for breaching the provisions of the Fair work Act 2009?

Section 172 of the Act states that any employer that fall under the definition of the single interest employers has right to execute enterprise agreement and such agreement is known as the single-enterprise agreement with those employees who are covered under the enterprise agreement and employed at that time.

Section 253 of the Act defines the provisions related to those terms of the enterprise agreement which does not have any effect (Void terms). As per this section any term related to the enterprise agreement does not have any effect in case that term is not permitted by the relevant authority. In other words, that term is an unlawful term or it is the term which is designated to the outworker term.

Any term which contravenes section 56 of the Act also considered as the unlawful term. Section 55 states that if any term excludes the national employment standards of the Act then such term has no effect.

However, in case enterprise agreement includes any term which is unlawful in nature because it falls under clause 1 of the section 253 or section 56, then inclusion of such terms does not make the complete agreement void.

In the present case, East bank enters into the single enterprise agreement under section 172 of the Act with the BSUA, and such agreement includes the term “that employees of the organization work at the existing pay rates and there is no increase in the pay”. It must be noted that this terms is not permitted by the BSUA.

In this BSUA holds the right to take action against the bank in context of section 253 of the Act because as per this section any term related to the enterprise agreement does not have any effect if such term is not permitted by the relevant authority, such term is an unlawful term or it is the term which is designated to the outworker term. Any term which contravenes the section 55 of the act also considered as the unlawful term. In this case term related to the existing pay rates is not valid because this term is not permitted by the BSUA, and it also contravenes the national employment standards because of which it falls under section 56 also.

Therefore, this term of not increasing the existing pay of the employees does not have any effect but because of this term it is not possible to make complete agreement void.

Section 253 of the Act

Section 340 of the fair Work Act 2009 states the provisions related to the adverse action taken by employer. As per this section if employer dismisses the employee or alters the position of the employee, then it is considered that the employer take adverse action against the employee.

Clause 2 of this section states that an adverse action includes the threat made by the employer to take action which is stated in clause 1 or organizing any such action.

Section 347 of the Act states that employer cannot take adverse action against the employees on the ground that employee does or does not become involved in establishing the industrial association; or engage in any legal activity which is organized and promoted by the industrial association; or organize and promote any lawful activity in context of industrial association; or represent the industrial association. This can be understood through case law Tafe v Barclay (2012) 220 IR 445.

In the present case, Serena is dismissed by the East bank for the purpose of involving in establishing the industrial association or engages in the legal activity which is organized and promoted by the industrial association. Serena also involves in organizing and promoting the lawful activity in context of industrial association or represent the industrial association. Therefore, this dismissal cannot be considered as the reasonable dismissal and it is an adverse action. In this East bank is liable for breaching the section 340 and 347 of the Act.

Therefore, this dismissal cannot be considered as the reasonable dismissal because there is an adverse. In this East bank is liable for breaching section 340 and 347 of the Act.

For the purpose of writing this paper, I represent the position of the National Australia workers Union (NAWU), a big institution which includes almost 210,000 members across the Australia. Arguments in support of this bill are stated under this paper.

Enterprise bargaining is the process in which negotiation take place between the employer and the employees for the purpose of concluding an agreement related to the regulation of the working conditions. Generally, trade unions are considered as the institution from which employee belongs and reflect the interest of their members. Enterprise agreement is the conclusion which concluded by the meetings of the parties, and matters covered by this agreement are scales related to the wages, working hours, training, health and safety, etc.

Those unions which are representing the employees might hold the negotiations with the single employer or sometimes with the group of different businesses, and this is based on the industries.

Section 56 of the Act

After considering these facts, it can be said that enterprise bargaining is the good approach which helped the employees in raising their voice, but in actual things are little different because enterprise bargaining’s failed to produce the fair outcomes for the workers in context of number of new enterprise agreements, because these new agreements implements lower wages and worst conditions on part of the employees. One more issue is also there that trend of the enterprise agreement is reducing, and because of this there are number of new workers who forcefully depend on the statutory and award safety net, and this net is inadequate in nature. There are number of experts and authorities who make arguments against the enterprise bargaining and some of the valuable arguments in support of this bill are stated below:

Person who supports this bill argued that, enterprise bargaining result in the unbalanced results, because there are number of employees who get less of what they deserve. In other words, presentation on part of the employees is weak and because of this there are more chances that employer take undue advantage of this and mold the terms of the agreement in his favor. In other words, employees of the company fail to enjoy those benefits of which they are entitled. This can be understood through example, if issue in the enterprise agreement is of the salaries and benefits (equality in wages), then those employees who are been working with the company for long period of time are getting the same benefits as taken by their junior and new colleagues will considered themselves in the loss. This situation also includes the incidents when because of the enterprise bargaining similar benefits are provided to the non-trade union member. Therefore, it can be said that this is not fairly for the members who are   working for long and show loyalty towards the organization.

Because of this enterprise bargaining, many employers adopt the national and statutory standards in lieu of employees and almost all the provisions related to the workplace such as working hours, salaries, wages, etc. are determined through those standards. However this statutory and award safety net is not beneficial for those employees who deserve more than that and because of this employees are bound to rely on this inadequate safety net, which cause damage to the employees.

Even in case, person is not the union worker then also such person is bound by the provisions stated in the contract. Managers and administrators of the organization are also bound by these contracts, even though they do not get any personal benefits from the provisions of their contract. This approach creates difficulty for the number of employees and also for those who are not the members of the union, and they find their advantages in danger because of the fact that members of the union based on the local laws and regulations.

Dismissal of Serena Under Sections 340 and 347 of the Act

In Australia, there is growing trend to treat the unionized and non-unionized the workers in equal manner, and in this context member of the union pay dues for receiving the representation but non-union member get all these benefits without paying any due, they also get the advantages of the deals which are conducted between the union and their employee without making any efforts.

This is the situation in which minority gets all the resources which are available for the majority, and this creates internal conflicts. This can be understood through case law Re Alcan Australia Limited; Ex Parte Federation of Industrial Manufacturing & Engineering Employees [1994] HCA 34; (1994) 181 CLR 96; (1994) 68 ALJR 626; (1994) 123 ALR 193, in which court determine the issue related to the dues paid the union members in context of the representations. In this case, Court held that wages paid by the company to each and every employee who chose to become the part of the union must be increased by the amount which is equal to the pro-rata union dues of that employee.

After considering the above facts, it can be said that there are number of stories in context of the union members which mainly highlight the conduct of the poor employee and also the inability on part of the employers for the purpose of removing the problematic workers. Some stories are also there in which ability of the union members is restricted for the purpose of fighting for the better wages. If any one group does not have any strong support then it becomes possible for another group to create the agreement which is one sided and fails to ensure balance.

There are different advantages and disadvantages of the enterprise bargaining which reflect the good approach with number of bad elements, and generally it resulted in the bad deal for one party and good for other.

Therefore, it can be said that employees of the company get disadvantage in number of ways such as by way of alteration or removal of non-pecuniary conditions and benefits. For employers, employees, and other representatives also this approach becomes the minefield and creates number of issues. The basic reason behind this issues occurred with the drafting of the Fair Work Act and also because of the over technical manner in which actions are conducted by the FWC for the purpose of evaluating the enterprise agreements which are lodged for the approvals. This can be understood through Uniline case, in which issues mainly considered the common sense approach. In this case, Court stated that legislation of the country encourage the enterprise bargaining and also the making of the agreement. It is intended that it provides simple, flexible and fair framework for creating an agreement and it also facilitates the enterprise agreement. The reposition in this context states that notice issued by the employer for the period of more than 14 days after the beginning of the bargaining give advice to the employees in lieu of their representation rights for concluding an agreement, otherwise it was agreed by the employees on genuine basis. Such agreement was not capable for the approval and also   inconsistent with the statutory scheme. It must be noted that employees of the company were aware about their representation rights and also made decisions as per their rights. They must have spent more time and resources for the purpose of agreeing on the content of the agreement, and approach related to common sense provide the gives importance to such considerations.

References:

AIG group, Australia’s bargaining system is crying out for some common sense, < https://www.aigroup.com.au/policy-and-research/mediacentre/releases/bargaining-Uniline-Aug26/>, Accessed on 16^th June 2018.

Austlii, Re Alcan Australia Limited; Ex Parte Federation of Industrial Manufacturing & Engineering Employees [1994] HCA 34, < https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1994/34.html?stem=0&synonyms=0&query=alcan%20ex%20parte>, accessed on 16^th June 2018.

Briggs and J. Buchanan (2000), Australian Labour Market Deregulation: A Critical Assessment, Research Paper 1999-2000, Information and Research Services Division, Commonwealth Parliamentary Library.

Chamberlains, (2014), Why enterprise bargaining provides little benefit, < https://www.chamberlains.com.au/enterprise-bargaining-provides-little-benefit/>, Accessed on 16^th June 2018.

Future of Working, 10 Advantages and Disadvantages of Collective Bargaining, < https://futureofworking.com/10-advantages-and-disadvantages-of-collective-bargaining/>, accessed on 16^th June 2018.

Bennett (1995), ‘Bargaining Away the Rights of the Weak: Non-Union Agreements in the Federal Jurisdiction’, in P. Ronfeldt and R. McCallum (eds.) Enterprise Bargaining: Trade Unions and the Law, Federation Press, Sydney 129.

Navazo Code, (2015), 10 Most Valid Advantages and Disadvantages of Collective Bargaining, < https://navajocodetalkers.org/10-most-valid-advantages-and-disadvantages-of-collective-bargaining/>, accessed on 16^th June 2018.

Re Alcan Australia Limited; Ex Parte Federation of Industrial Manufacturing & Engineering Employees [1994] HCA 34; (1994) 181 CLR 96; (1994) 68 ALJR 626; (1994) 123 ALR 193.

Tafe v Barclay (2012) 220 IR 445.

Vittana, 16 Advantages and Disadvantages of Collective Bargaining, < https://vittana.org/16-advantages-and-disadvantages-of-collective-bargaining>, Accessed on 16^th June 2018.