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Excerpt from this article first published in Human Resources Magazine, Issue 166 - 25 November 2008
In the recent decision of Australian Education Union v Department of Education and Training, Northern Territory Government, the Commission has had to decide on whether the Department of Education and Training of the Northern Territory (the Department) is a third party for the purposes of a suspension of a bargaining period. A bargaining period is the formal period during which parties negotiating a Workplace Agreement may (after following prescribed steps) lawfully take industrial action (such as a strike).
Third parties, that is, organisations, persons or bodies that are not parties to the negotiation of a Workplace Agreement, may apply to the Commission for a suspension of a bargaining period if industrial action is being taken that, amongst other things, threatens to cause significant harm to person other than the bargaining parties.
In this case, the parties to the Northern Territory Public Sector 2005-2007 Teachers and Eductors Certified Agreement were the Australian Education Union (the Union) and the Office of the Commission for Public Employment (OCPE).
The Commission had earlier suspended the bargaining because the Department, as a third party, had successfully argued that proposed strike action threatened to cause harm to year 11 and 12 students who were due to sit exams.
On appeal the Union argued that the Department and the OCPE together constituted the negotiating party, and as a result the Department was not a third party.
The majority of the appeal bench of the Commission agreed with the Union, finding that: “the Department is literally a person bound by the agreement. The signatory on behalf of the Department is the Commissioner…exercising a representative role on behalf of the Department, and another department”.
It was the majority of the full bench of the Commission’s view that attempting to differentiate between the OCEP and the Department would be “highly artificial”. Vice-President Watson disagreed. He took the view that the Union had only commenced the bargaining period with the OCPE and the Department was not a negotiating party.
Employers should have a plan for managing industrial action during enterprise agreement negotiations.
Special Counsel
