Electrolux v AWU
Encyclopedia
The case of Electrolux v The Australian Workers' Union was a High Court of Australia
decision of 2004.
as created by the Workplace Relations Act (Cth) 1996.
Bargaining agent's fees were politically contentious as they were seen as a form of compulsory union 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 the WorkChoices
legislation.)
decided 6 judges to 1 (Kirby J dissenting) that only matters which "pertained to the relationship between employer and employee" could be placed in an enterprise bargaining agreement
. Bargaining agent's fees did not "pertain" and could not be placed into an enterprise agreement.
many existing enterprise 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 protected industrial action
or strikes
in pursuit of enterprise 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 no enterprise bargaining agreement
s were certified nor any industrial 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 or shop stewards. (However there was also some concern regarding provisions against the use of contract labour or setting the terms and conditions of contract labour and salary sacrifice into superannuation.) Many argued that these types of clauses did not "pertain" and accordingly could not be included into future enterprise agreements. This created considerable concern in the union movement as if these union friendly provisions could not be included into future enterprise bargaining agreement
s it would considerably limit union influence in the Australian worksite. The problem was comprehensively resolved by the Australian Industrial Relations Commission
's landmark decision on the 21 March 2005 the Schefenacker, the Murray Bridge and the La Trobe University certified agreements (‘the three certified agreements case’). The decision determined what provisions the Australian Industrial Relations Commission
would allow to be certified in enterprise agreements. 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 for payroll deductions of union dues
did not "pertain to the relationship between employer and employee." Payroll deductions were consequently prohibited from being placed into enterprise agreements and cannot be placed into workplace agreements created under the workchoices
reforms.
Interestingly, the relevance of Electrolux v AWU itself as an authority in Australian industrial relations in many ways ceased with the introduction of the WorkChoices
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’). is still an applicable authority in determining what can and cannot be placed in a workchoices
reform workplace agreement.
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
decision of 2004.
The Background to the Case
The case dealt with whether bargaining agent's fees were able to be placed within an enterprise bargaining agreementEnterprise bargaining agreement
Enterprise bargaining is wage and working conditions being negotiated at the level of the individual organisations. Once established, they are legally binding on employers and employees....
as created by the Workplace Relations Act (Cth) 1996.
Bargaining agent's fees were politically contentious as they were seen as a form of compulsory union dues
Union dues
Union dues are a regular payment of money made by members of unions. Dues are the cost of membership; they are used to fund the various activities which the union engages in...
. They were expressly prohibited by Federal Parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
by the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 No. 20, 2003. (and then subsequently by the WorkChoices
WorkChoices
The Workplace Relations Act 1996, as amended by the Workplace Relations Amendment Act 2005, popularly known as Work Choices, was a Legislative Act of the Australian Parliament that came into effect in March 2006 which involved many controversial amendments to the Workplace Relations Act 1996, the...
legislation.)
The Decision
The High Court of AustraliaHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
decided 6 judges to 1 (Kirby J dissenting) that only matters which "pertained to the relationship between employer and employee" could be placed in an enterprise bargaining agreement
Enterprise bargaining agreement
Enterprise bargaining is wage and working conditions being negotiated at the level of the individual organisations. Once established, they are legally binding on employers and employees....
. Bargaining agent's fees did not "pertain" and could not be placed into an enterprise 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 AustraliaHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
many existing enterprise bargaining agreement
Enterprise bargaining agreement
Enterprise bargaining is wage and working conditions being negotiated at the level of the individual organisations. Once established, they are legally binding on employers and employees....
s had been certified invalidly. (and therefore could not be enforced) This forced Federal Parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
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
Enterprise bargaining agreement
Enterprise bargaining is wage and working conditions being negotiated at the level of the individual organisations. Once established, they are legally binding on employers and employees....
s in the future. Also as unions
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
could only undertake protected industrial action
Industrial action
Industrial action or job action refers collectively to any measure taken by trade unions or other organised labour meant to reduce productivity in a workplace. Quite often it is used and interpreted as a euphemism for strike, but the scope is much wider...
or strikes
Strike action
Strike action, also called labour strike, on strike, greve , or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became...
in pursuit of enterprise bargaining agreement
Enterprise bargaining agreement
Enterprise bargaining is wage and working conditions being negotiated at the level of the individual organisations. Once established, they are legally binding on employers and employees....
s a serious question surrounded what in fact unions
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
could undertake strikes
Strike action
Strike action, also called labour strike, on strike, greve , or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became...
in pursuit of. This led to around 6 months of industrial confusion in which time, almost no enterprise bargaining agreement
Enterprise bargaining agreement
Enterprise bargaining is wage and working conditions being negotiated at the level of the individual organisations. Once established, they are legally binding on employers and employees....
s were certified nor any industrial action
Industrial action
Industrial action or job action refers collectively to any measure taken by trade unions or other organised labour meant to reduce productivity in a workplace. Quite often it is used and interpreted as a euphemism for strike, but the scope is much wider...
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
Enterprise bargaining agreement
Enterprise bargaining is wage and working conditions being negotiated at the level of the individual organisations. Once established, they are legally binding on employers and employees....
s. Most of these clauses were union
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
friendly provisions, they included: trade union training leave, right of entry
Right of entry
Right of entry refers to one's right to take or resume possession of land, or the right of a person to go onto another's real property without committing trespass. It also refers to a grantor's power to retake real estate from a grantee in the case of a fee simple subject to condition subsequent....
, recognition of union delegates or shop stewards. (However there was also some concern regarding provisions against the use of contract labour or setting the terms and conditions of contract labour and salary sacrifice into superannuation.) Many argued that these types of clauses did not "pertain" and accordingly could not be included into future enterprise agreements. This created considerable concern in the union movement as if these union friendly provisions could not be included into future enterprise bargaining agreement
Enterprise bargaining agreement
Enterprise bargaining is wage and working conditions being negotiated at the level of the individual organisations. Once established, they are legally binding on employers and employees....
s it would considerably limit union influence in the Australian worksite. The problem was comprehensively resolved by the Australian Industrial Relations Commission
Australian Industrial Relations Commission
The Australian Industrial Relations Commission, or AIRC , was a tribunal with powers under the Workplace Relations Act 1996. It was the central institution of Australian labour law...
's landmark decision on the 21 March 2005 the Schefenacker, the Murray Bridge and the La Trobe University certified agreements (‘the three certified agreements case’). The decision determined what provisions the Australian Industrial Relations Commission
Australian Industrial Relations Commission
The Australian Industrial Relations Commission, or AIRC , was a tribunal with powers under the Workplace Relations Act 1996. It was the central institution of Australian labour law...
would allow to be certified in enterprise agreements. 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
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
which had decided that provisions allowing for payroll deductions of union dues
Union dues
Union dues are a regular payment of money made by members of unions. Dues are the cost of membership; they are used to fund the various activities which the union engages in...
did not "pertain to the relationship between employer and employee." Payroll deductions were consequently prohibited from being placed into enterprise agreements and cannot be placed into workplace agreements created under the workchoices
WorkChoices
The Workplace Relations Act 1996, as amended by the Workplace Relations Amendment Act 2005, popularly known as Work Choices, was a Legislative Act of the Australian Parliament that came into effect in March 2006 which involved many controversial amendments to the Workplace Relations Act 1996, the...
reforms.
Interestingly, the relevance of Electrolux v AWU itself as an authority in Australian industrial relations in many ways ceased with the introduction of the WorkChoices
WorkChoices
The Workplace Relations Act 1996, as amended by the Workplace Relations Amendment Act 2005, popularly known as Work Choices, was a Legislative Act of the Australian Parliament that came into effect in March 2006 which involved many controversial amendments to the Workplace Relations Act 1996, the...
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’). is still an applicable authority in determining what can and cannot be placed in a workchoices
WorkChoices
The Workplace Relations Act 1996, as amended by the Workplace Relations Amendment Act 2005, popularly known as Work Choices, was a Legislative Act of the Australian Parliament that came into effect in March 2006 which involved many controversial amendments to the Workplace Relations Act 1996, the...
reform workplace agreement.