Some members will be aware of the various rumours circulating as to what the employer may attempt on or after 1 January 2012 when the Collective Agreement formally expires. These rumours appear to be the work of one or two disaffected Area Managers/CFOs.
The Union has directly (face to face) asked the employer as to the truth of these rumours and the employer emphatically denied any truth that the employer plans some unadvised “big hit” early in the New Year. Nonetheless, the Union has sought and obtained specific legal advice on the matter and a copy is attached.
Members may be aware of the specific clause in the Employment Relations Act 2000 (ERA) that each Collective Agreement must contain an expiry date. Our Collective Agreement specifies an expiry date of 31 December 2010.
Although the Collective Agreement is specified to expire on that date, provisions of the ERA can effectively nullify an expiry date in some circumstances. Section 53 provides that if bargaining was initiated by the Union before the Collective Agreement expired, for the purpose of replacing it, the Collective Agreement continues in force for a period not exceeding 12 months providing bargaining continues during that period.
These requirements have been met by the Union and the consequence is that the Collective Agreement now expires on the 31 December 2011, not 31 December 2010. It therefore follows that the current Collective Agreement expires on the 31 December 2011.
While a Collective remains in force, new employees are required to be offered the terms of the Collective for the first 30 days of employment. Further, any Union member performing work covered by a Collective is required to be employed on those same terms.
Finally it is unlawful to engage Union members on terms inconsistent with the Collective.
None of those requirements will apply after the 31 December 2011.
In practical terms however, nothing should change. The position of members after expiry is that they will continue to be bound by the terms of the Collective, these will now be individual terms.
Some employers adopt draconian approaches to this by seeking to employ new staff on inferior conditions or by seeking to entice individual Union members away from existing terms. The Union has recently, at mediated negotiations, asked the employer if they intend to do anything to disrupt the working conditions of members and they responded that they did not, particularly considering that negotiations are still proceeding.
If such steps were taken by the employer there would likely be grounds for a legal challenge.