Member-only awards

Cases

Member-only awards

A Full Bench of Australian Industrial Relations Commission has held that union member only awards are not necessarily rendered void because of the operation of the Part XA freedom of association provisions of the Workplace Relations Act 1996.

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A Full Bench of Australian Industrial Relations Commission has held that union member only awards are not necessarily rendered void because of the operation of the Part XA freedom of association provisions of the Workplace Relations Act 1996.

Utilised as a means of setting industrial disputes, federal awards bind the named parties to these disputes. This has ultimately resulted in member only awards, where unions have pursued claims on behalf of members only. Suggesting that the changes introduced s298Yand s298Zrender such awards void, would mean that the Commission has no power to make awards in the settlement of disputes unless the disputes involved claims on behalf of union and non-union members. The Full Bench has held such a suggestions to be not within the intended scope of the legislation. (Section 45 Appeals by Western Australia Government Railways Commission, Print S1192, [1999] 1395 IRCommA).

Background

These proceedings arose from two appeals. The first being in relation to Merriman C's decision in Item 51 Review of the Railways Salaried Officers Award 1960. In that instance, the Commission rejected the Westrail submission that the 1960 award was void, and ordered that the award be varied so as to reflect that it was no longer a members only award. The second appeal related to a Laing C decision in Section 113 application by the ASU to vary the Railways Salaried Officers Interim Award 1995. The Commission likewise rejected the Westrail submission that the interim award was void. In relation to both matters Westrail submitted that the relevant award was void because of the operation of the freedom of association provisions of Part XA of the Workplace Relations Act 1996. That is that an award which binds an employer in relation to employees who are union members, but does not bind the employer in relation to non-union employees, is and must be rendered void by the operation of PtXA.

Terms of the Awards

It was generally agreed that there is no relevant difference between cl 2 of the interim award and the equivalent provision in the 1960 award. Both rendered the award in question binding upon the relevant employer only in relation to union members. To this end, it was convenient for the Full Bench to focus upon the interim award provision. Clauses 2 (b) and (c) of the interim award provide that:

(b) This Award shall be applicable to members of the Australian Transport Officers Federation employed by the Western Australian Government Railways Commission; in grades or occupations for which rates salary are herein prescribed and upon members of the Australian Railways Union employed by in grades or occupations for which rates of salary are herein prescribed.

(c) This Award shall be binding upon the respondents named in subclause (b) hereof and upon the Australian Transport Officers Federation, its Divisions, its officers and those of its members to whom this award is applicable; upon the Australian Railways Union, its Branches, its officers and those of its members to whom this ward is applicable.

As mentioned above, the first instance decision of Laing C found that these paragraphs rendered the interim award binding upon Westrail only in relation to members of the union.

Legislation

The relevant provisions of PT XA of the Workplace Relations Act 1996are s298Yand s298Z. Section 298Yprovides that:

"A provision of an industrial instrument... is void to the extent that it requires or permits, or has the effect of requiring or permitting, any conduct that would contravene this part."

Section 298Zprovides that where an award contains a provision that would in any case be void because of s298Y, the Commission must vary the award so as to remove the provision.

Westrail Submission

Westrail submitted that because cl 2 requires that the award be observed only in relation to employees who are members of registered organisations, who in turn are respondents to the award, the clause is an objectionable provision for the purpose of s298Zand therefore void pursuant to s298Y. The second point submitted by Westrail was that in light of the claim that the provision rendering the award binding on the employer is void, then the award as a whole must also be void.

Decision

The task before the Full Bench was to determine whether s298Yrendered cl 2(b) of the interim award void. The Full Bench commenced by noting that the provision in question deals with the binding nature of the award, specifying a class of employees to whom employers are bound to afford the relevant conditions of employment contained in the award.

The Full Bench rejected the appeal, and did so on the basis of constitutional considerations. Pursuant to the High Court's interpretation of s51(xxxv) in Australian Boot Trade Employees' Federation v Whybrow & Cp. (1910) 11 CLR 311, an award may only be made binding on parties to an industrial dispute. That is to say, that an employer is unable to initiate or create a dispute with a registered organisation as to the terms which the employer makes a demand upon a registered organisation of employees and that demand gives rise to an industrial dispute, if the dispute is to be settled through the making of an award, that award must be a members only award.

If the construction of s298Zput forward by Westrail were to be adopted, then the Commission, according to the Full Bench, would have no power to make an award in settlement of industrial disputes unless the dispute involved a claim by a union on behalf of members and non-members. The Full Bench wasunable to accept that the legislature intended to change the Commission's jurisdiction to such an extent when it enacted Part XA. Changes of that significance and leave to appeal granted, the appeals were held to have failed.

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