18 September : no.07-12 ( pdf version)
New TAFE enterprise bargaining agreement to be certified in Commission
The department's ballot of all TAFE teachers and tutors has returned a majority in support of certification of the proposed replacement certified agreement. In light of this, the department has advised that it intends to proceed to have the agreement certified in the Queensland Industrial Relations Commission (QIRC).
Voting in the departmental ballot closely approximated that of the QTU ballot, with an 86 per cent vote in favour of the new wages and conditions deal (the agreement was approved by 91 per cent majority of those who participated in the QTU ballot).
In light of such strong support for the new agreement from TAFE teachers and tutors, the TAFE Council of the QTU has authorised the Union to sign off on the draft agreement and to support its certification in the Commission.
While the TAFE Council noted that significant legislative changes nullifying employment security and contracting out provisions in the current agreement had been enacted in the Parliament during the conduct of the departmental ballot, it determined that, on balance, it was not in members’ interests to withhold support for certification.
This is because the new legislation has retrospective effect, which means that both the current certified agreement and its proposed replacement contain security of employment and contracting out clauses which are now rendered inoperative. Consequently, even if the proposed replacement certified agreement were to be rejected, the status quo (an existing certified agreement with these clauses rendered null and void) would prevail and any future certified agreement would see these clauses removed as they are in conflict with the legislation.
TAFE Council therefore determined to support the offer that is currently on the table, given that the rejection of the current offer from government does not provide an avenue for the Union to re-enliven these provsions in any future agreement.
This position is consistent with advice received when the QTU raised the legislative changes in a dispute hearing in the QIRC. In the course of the hearing, the Commissioner advised that on the technical matter of whether or not the department had fulfilled its obligation to “roll over” all existing conditions, this undertaking would appear to have been met, given that the new agreement (without the security of employment and contracting out provisions) mirrors the current agreement in which the relevant provisions are null and void.
The TAFE Council also gave careful consideration to the risks inherent in opposing certification of the new agreement, such as the potential for the loss of the 1 August operative date for the wage increase or, in a worst case scenario, for the current offer to be withdrawn altogether.
In this latter event, the matter would most likely go to arbitration, with a time-line of some nine – 12 months for an outcome.
The department has 21 days from the conclusion of its ballot of employees to apply to the Commission for the new agreement to be certified.
The Union will advise as to the operative date for the new certified agreement in due course.
The union movement has mounted a legal challenge to the legislation nullifying employment security and contracting out provisions in industrial instruments. While there is never any guarantee of success in such proceedings, in the event that this challenge is successful then the relevant provisions will be re-enlivened.)
Authorised by Graham Moloney, General Secretary,
Queensland Teachers' Union, 21 Graham St, Milton,Q.4064
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