Ambiguous Law

The Right to Bargain for Job Security in Collective Agreements

Abstract

This article argues that the current provisions which govern job security clauses in collective agreements are ambiguous and problematic. Specifically, the ‘permitted matters’ law is unclear and inconsistently interpreted. Cases which concern almost identical job security clauses have received different treatments. The requirement to consider ‘the interests of employees and employers’ when arbitrating workplace determinations is also ambiguous. It is unclear whether employees’ job security is an interest that should be taken into account, and if so, how much weight should be placed on this consideration. This article argues that the law should be amended to address these ambiguities and to ensure more predictable and fairer outcomes. In contrast with the current provisions, the abolished rules ‘prohibited content’ were clearer and less ambiguous.