kamal_farouque_mbc3

Deeds Pitfall – No Protected Industrial Action  Protected industrial action may only be taken in respect of claims during a bargaining period “for the purpose of supporting or advancing claims made in respect of a proposed collective agreement.” – s 435(1)(e)

Deed Pitfalls – Negotiation of Deeds and Collective Agreements LHMU v Wattyl (PR965273, 17 Nov 05, Full Bench) Appeal from s127 order Facts  Union tabled a document said to be “final offer”  Document included claims to be included in a certified agreement and claims (eg PRD and non-pertaining matters) to be included in a deed  FB observed there was no evidence that the Union had withdrawn its claim for the PRD and other non-pertaining matters in the deed Held  FB said par 19 The claim for a Deed had not been withdrawn and was part of the LHMU’s final offer at the time the industrial action was threatened. The inference is irresistible that the foreshadowed industrial action would be to support or advance all of the claims including the claim for a deed to deal with matters which did not pertain. … The action would not therefore be protected.

CEPU v Cadbury (PR973290, SDP Acton, 11 July 2006) Unions seeking ballot order Facts  Unions seeking to simultaneously negotiate deed (to include prohibited content) and a union collective agreement  Employer had made counter proposal to claims to be included in the union collective agreement but refused to negotiate a deed containing prohibited content  During negotiations for union work choices agreement, union official passed deed to employer and said “sign this and it will go away.”  Cadbury claimed that the AIRC must not grant “ballot order applications” because it could not be satisfied that the unions were “genuinely trying to reach agreement” Held  SDP adopted established case law that “genuinely trying to reach agreement” did not require willingness to make concessions, moderation or not taking a hard line but did mean preparedness to consider seriously offers and proposals made by the otherside and to take account of arguments – but having done this, a bargaining party may still be bargaining in good faith  SDP found that the: o unions had made agreement to the collective agreement contingent on the parties reaching agreement on the deed o therefore union had put Cabdury’s offer in response to the Union collective agreements to a side o In the dcircumstances where the AMWU and CEUP have not been prepared and are not prepared to seriously consider the Cadbury Schweppes’ offers in response to the claims made by those unions in respect of the proposed collective agreement, I canno be satisfied that … the AMWU and the CEPU genuinely tried to reach agreement … or are genuinely trying to reach agreement

Duress: Case Examples Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366ITWF threatened to black ban a ship unless the owner paid a large sum of money, partly to the union welfare fund. o ship owners faced financial disaster and paid the money instituted proceedings to recover the m oney House of Lords – Held o Money was paid because of duress and could be recoveredThe Evia Luck [1991] 4 All ER 871   

the plaintiff's ship was in harbour in Sweden Panamanian registered ship with crew from Phillipines & Greece International Transport Workers' Federation informed the plaintiff that the ship would be black banned unless plaintiff met certain demands: o entered into certain agreements with ITWF, including back pay to the crew, o new contracts of employment at higher wages (as per ITWF approved standard) and guarantees for future payments. o Contribution to ITWF welfare fund  Plaintiffs agreed to the demands  The plaintiffs then sought to avoid the agreement on the grounds of duress and claimed restitution of all sums paid. Held – House of Lords Blackbanning or threatened blackbanning was illegimate economic pressure