- Electrolux v AWU
Infobox Court Case
name=Electrolux v The Australian Workers' Union
court=High Court of Australia
date_decided=2 September 2004
full_name=Electrolux Home Products Pty Ltd v The Australian Workers' Union
citations=, [ [http://www.austlii.edu.au//cgi-bin/disp.pl/au/cases/cth/high_ct/2004/40.html?query=electrolux%20awu Electrolux Home Products Pty Ltd v Australian Workers' Union [2004 HCA 40; 221 CLR 309; 209 ALR 116; 78 ALJR 1231 (2 September 2004) ] ] [2004] HCA 40
judges=Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
prior_actions="The AMWU v Electrolux" [2002] FCAFC 199 (21 June 2002 )
subsequent_actions= none
opinions=(4:3) Appeal Upheld. Only matters which "pertain to the relationship between employer and employee" can be included into an enterprise agreement. Bargaining agent's fee do not "pertain." Therefore bargaining agent's fees cannot be included into an enterprise agreement.The case of "Electrolux v The Australian Workers' Union" was a
High Court of Australia decision of 2004.The Background to the Case
The case dealt with whether
bargaining agent's fees were able to be placed within anenterprise bargaining agreement as created by the "Workplace Relations Act (Cth) 1996".Bargaining agent's fees were politically contentious as they were seen as a form of compulsoryunion dues . They were expressly prohibited by Federal Parliament by the "Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 No. 20, 2003". (and then subsequently by theWorkChoices legislation.)The Decision
The
High Court of Australia decided 6 judges to 1 (Kirby J dissenting) that only matters which "pertained to the relationship between employer and employee" could be placed in anenterprise bargaining agreement .Bargaining agent's fees did not "pertain" and could not be placed into anenterprise agreement .The Aftermath of the Decision
The case is probably more famous for the aftershock it created than the actual decision itself. It was feared that on the logic of the
High Court of Australia many existingenterprise bargaining agreement s had been certified invalidly. (and therefore could not be enforced) This forced Federal Parliament to pass the "Workplace Relations Amendment (Agreement Validation) Act 2004 No. 155, 2004".Further, uncertaintly existed around what could be placed in
enterprise bargaining agreement s in the future. Also as unions could only undertake protectedindustrial action or strikes in pursuit ofenterprise bargaining agreement s a serious question surrounded what in fact unions could undertake strikes in pursuit of. This led to around 6 months of industrial confusion in which time, almost noenterprise bargaining agreement s were certified nor anyindustrial action occurred.The industrial confusion specifically surrounded a raft of clauses, which until the decision of "Electrolux v AWU" had been commonly placed in
enterprise bargaining agreement s. Most of these clauses were union friendly provisions, they included: trade union training leave,right of entry , recognition of union delegates orshop stewards . (However there was also some concern regarding provisions against the use ofcontract labour or setting the terms and conditions ofcontract labour andsalary sacrifice intosuperannuation .) Many argued that these types of clauses did not "pertain" and accordingly could not be included into futureenterprise agreement s. This created considerable concern in the union movement as if these union friendly provisions could not be included into futureenterprise bargaining agreement s it would considerably limit union influence in the Australian worksite. The problem was comprehensively resolved by theAustralian Industrial Relations Commission 's landmark decision on the21 March 2005 "the Schefenacker, the Murray Bridge and the La Trobe University" certified agreements (‘the three certified agreements case’ ). [ [http://www.airc.gov.au/fullbench/PR956575.htm PR956575 ] ] The decision determined what provisions theAustralian Industrial Relations Commission would allow to be certified inenterprise agreement s. The decision was generally considered as a union victory as it endorsed a whole raft of union friendly clauses.One final consequence of the case of "Electrolux v AWU" is that it upheld several previous decisions of the
High Court of Australia which had decided that provisions allowing forpayroll deductions ofunion dues did not "pertain to the relationship between employer and employee."Payroll deductions were consequently prohibited from being placed intoenterprise agreement s and cannot be placed into workplace agreements created under theworkchoices reforms.Interestingly, the relevance of "Electrolux v AWU" itself as an authority in
Australian industrial relations in many ways ceased with the introduction of theWorkChoices legislation reform package. However, consistent with the litigation itself, it was the consequent events which remained relevant. The decision of (‘the three certified agreements case’ ). [ [http://www.airc.gov.au/fullbench/PR956575.htm PR956575 ] ] is still an applicable authority in determining what can and cannot be placed in aworkchoices reform workplace agreement.References
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