Federal enterprise bargaining dispute issues limited by High  Court

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Federal enterprise bargaining dispute issues limited by High Court

The High Court has found that the federal Workplace Relations Act 1996 restricts the legitimate subject matters covered by 'protected action' ( i.e.legitimate industrial action) to those matters relating to the employment relationship.

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The High Court has found that the federal Workplace Relations Act 1996 restricts the legitimate subject matters covered by 'protected action' ( i.e.legitimate industrial action) to those matters relating to the employment relationship. This means that issues that do not directly involve the employer-employee relationship are not legitimate matters for inclusion in federal enterprise agreements.

WorkplaceInfo initially noted this case in the article 'High Court finds federal protected action confined by employment relationship'

Issues that fall outside the employer-employee relationship include: union bargaining fees, political and social issues and possibly union membership itself.

The High Court's decision applies to the federal jurisdiction. State systems are not automatically affected by this decision. For example, NSW has allowed union bargaining fees in certain respects.

The background to this case is, in essence, a dispute over whether union bargaining fees could legally be the subject of a federal enterprise agreement.

The High Court split 6:1 with Justice Kirby dissenting. The views of some of the judges are noted below.

Gleeson CJ

'The words "with respect to" are no narrower than the word "about". The use of the preposition "about" does not widen the scope of the expression "matters pertaining to the [employment] relationship" beyond that identified ... And the introduction into industrial legislation of the concept of certified agreements does not create a new context in which it can be said, with any degree of conviction, that the expression takes on a new and different meaning.'

'The decision of Merkel J was correct. The appeals should be allowed. The orders of the Full Court of the Federal Court should be set aside, and it should be ordered that the appeals to that Court be dismissed'

Gummow, Hayne and Heydon JJ.

'In the present case, "the proposed agreement" identified in s170ML(2) is not simply that which the unions wished to negotiate. There must be an agreement which would, as indicated in s 170LH, satisfy the requirements for the making of an application to the AIRC for certification. Those requirements, to attract the jurisdiction or authority of the AIRC, include the nature of the agreement mandated by s 170LI(1). Hence the critical nature for this case of the phrase "about matters pertaining to the relationship" between Electrolux and its employees whose employment is subject to the proffered agreement.'

Kirby J (dissent)

'… as in the interpretation of any legislation, including federal legislation, it is important to give meaning to the contested provision so as to give effect to the implied purpose of the Parliament derived from the language in which it has expressed that purpose.'

'Applying, therefore, the ordinary meaning of the English language to the words used in s170LI(1), I have no doubt that the claim for the "Bargaining Agents Fee", made in the context, was about a matter pertaining to the relationship of Electrolux as a "constitutional corporation" and its future employees to whom the Fee was to apply.'

Electrolux Home Products Pty Ltd v Australian Workers\' Union [2004] HCA 40 (2 September 2004) - Gleeson CJ,McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.

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