(a) a new collective agreement is concluded; (b) the bargaining partner`s right to represent workers is terminated or c) a strike or lockout begins under Division 13. A court will consider the actions and communications of the parties to decide what a reasonable person would have understood the intentions of the parties, not what they intended to subjectively. Due to the lack of Australian jurisprudence, Australian courts have sought to guide U.S., Canadian and English courts. In a recent case, in English, it was found that a telephone conversation between the parties and a follow-up email were sufficient to establish that the terms of the original agreement (expired) were applicable to continuous service, although the follow-up email did not elicit any comment or refusal from the other party, demonstrating the relative ease with which an expired contract could be implied and confirmed by conduct. The principle that the status quo must be maintained after the termination of a collective agreement was established by the National Labor Relations Board and the Supreme Court of nlrb/. Katz, 369 U.S. 736 (1962). There, the court held that “freezing the status quo ante after the expiry of a collective agreement promotes peace at work by fostering a non-compulsive atmosphere conducive to serious negotiations for a new contract. Therefore, failure to comply with the terms of a collective agreement that expired by an employer until a new contract is negotiated constitutes a bargaining in bad faith in violation of the National Labor Relations Act.” Until recently, there was a more compelling reason for unions to extend their collective agreement. Until 2012, the NRLB had decided for more than 50 years that an employer should not comply with the provisions for controlling the expiry of a expired collective agreement. The result of this decision was that in the absence of an extension agreement, a union could be financially paralyzed by an employer who simply decided not to pay taxes to the union. The union would be reduced to looking for direct payments. During an employment or lockout operation, failure to obtain fees can be fatal.
Fortunately, the NLRB repealed this rule in WKYC-TV, Inc. and NABET, Local 42, 359 NLRB No. 30 (2012). It is no longer permissible for an employer to comply with deductions made under an expired collective agreement.