Chris Latham
The September 2 High Court's Electrolux decision
has signalled a serious assault on the right of workers to
organize and strike.
In a six-to-one decision, the High Court ruled that
bargaining-agent fees could not be included in an enterprise
agreement as this “does not pertain to the
employer-employee relationship” and is thus in violation
of Section 170LI of the Workplace Relations Act (WRA).
Bargaining-agent fees are levies paid to the union by
non-union members to recognise gains the union has won for all
workers in the industry.
The immediate effect of the High Court's ruling is that
industrial action undertaken against Electrolux by unions
seeking enterprise agreements that included bargaining fees is
now deemed not to have been “protected action”,
leaving the unions and their members open to be sued for legal
damages by Electrolux.
However, as bargaining agent fees had already been banned
by the Coalition government's June 2002 amendments to the WRA,
the significance of the decision broke the previous
interpretation of the WRA by both the Federal Court and the
Australian Industrial Relations Commission (AIRC).
The previous interpretation had been that enterprise
agreements could contain some “non-pertaining” items
as long as the whole agreement could be characterised as
pertaining to the relationship between employer and employees.
The September 2 ruling calls into question the inclusion of a
wide range of provisions in enterprise agreements, including
automatic deduction of union dues from workers' pay,
entitlements of union delegates and trade union to training
leave, encouragement/facilitation of union membership and the
right of union officials to enter workplaces.
The court's decision means that industrial action taken to
support a claim that includes non-pertaining issues cannot be
considered protected action.
The decision has caused considerable confusion and
uncertainty as it calls into doubt the certification of
thousands of EAS, including those already certified by the
AIRC. Adding to this confusion and uncertainty has been the
threat by companies such as Wesfarmers in Western Australia to
seek legal damages for past industrial action that they argue
was not protected action in the light of the High Court's
ruling.
The uncertainty over allowable clauses in enterprise
agreements has been partially allayed with the first test case
of the Electrolux decision in the AIRC, on the agreement
between Victorian butter manufacturer K.L. Ballantyne and the
National Union of Workers. On October 25, AIRC deputy
president Iain Ross refused to certify the agreement, arguing
that payroll deductions of union fees did not pertain to the
employer-employee relationship.
However, Ross's ruling allows clauses relating to
prohibitions on the use of Australian Workplace Agreements,
trade union training leave, right of workplace entry for union
officials and paid union meeting provisions, union picnic
days, union access to time and wages records and limitations
on the use of contractors and casuals to be included in
agreements.
While the K.L Ballantyne decision signals that many
agreements can now be certified, unions continue to face
challenges. How to protect those clauses that are viewed as
not-pertaining is still an issue.
The re-elected federal Coalition government's next wave of
industrial relations legislation is likely to include measures
reinforcing the High Court's Electrolux decision. Any union
strategy that delays challenging attacks on workers' rights
can only undermine the capacity of unions to fight back and
increase the Coalition's confidence to attack workers.
From Green Left Weekly, November 3, 2004.
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