Posted on: Feb 23, 2015

The Employment Court agreed with the Authority in penalising the misleading and deceptive actions of a charitable trust that misled the unions it was bargaining with so that they believed government funding constrained it from agreeing to a greater increase in wages. It also agreed that the trust had conferred an unlawful preference upon non-union employees by giving them an increase backdated beyond that given to union members.

Where the Court went further was in making a compliance order to compensate union members for the difference between what they had been paid for the relevant period and what they would have been paid if they had been non-union employees. The trust had argued that the only remedy for the conferment of an unlawful preference was s 10 of the Act (meaning that the contractual arrangement bringing it about had no force). The unions had not pursued this because it would mean depriving the non-union employees of pay rather than addressing the wrong accorded to their members.

The collective agreement covering the union members prohibited the employer from “automatically” passing on the same terms and conditions to non-union employees. The Employment Court disagreed with the Authority on whether this had been breached, saying that the passing on had not been automatic. The trust appeared to have made the process of giving negotiated increases to non-union employees (long observed in this workplace) as detached from the bargaining process as it could possibly be by, for example, inviting them to enter into new individual agreements.


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