AWU moves on fees after Electrolux decision


AWU moves on fees after Electrolux decision

While employers and the Federal Government have met with anger a decision by a full bench of the Federal Court to reverse a ruling disallowing union bargaining fees, one union has already made moves to progress the issue.


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While employers and the Federal Government have met with anger a decision by a full bench of the Federal Court to reverse a ruling disallowing union bargaining fees, one union has already made moves to progress the issue.

The bench on Friday overturned Justice Ron Merkel's decision last year in the Electrolux case, in which he said bargaining fees had nothing to do with the employment contract and as such any action taken over that issue was not protected (see 120/2001). In the same decision, he gave the green light to protected action over another contentious issue - employee entitlements.

The bench - Justices Murray Wilcox, Catherine Branson and Shane Marshall - said Justice Merkel had looked at the wrong issue when deciding the case, and what mattered was that the action was being taken over a claim, not the ultimate likely success of that claim. WorkplaceInfo will carry a further full report on the case.

The decision clarifies further a confused state of affairs about whether unions can charge non-union members who they consider 'freeloaders' a fee - which could be more than annual union dues - to compensate for the bargaining which takes place in union-negotiated enterprise agreements to keep wages and conditions up to scratch.

The confusion comes from differing decisions emanating from the Australian Industrial Relations Commission to the Federal Court. In the ASU v Knox City case, AIRC Senior Deputy President Les Kaufman said he agreed with Justice Merkel's Electrolux decision. He then added, however, that he felt AIRC Deputy President Ken Ives had taken that decision a step too far in the Atlas Steel case and also in Cadbury Schweppes v NUW (see 22/2002), by not approving an EA because it contained union fees clauses.

And another AIRC SDP, Justice Paul Munro, also differed from Merkel and Ives in the Webforge decision (see 2). He said the deduction of union fees from employees' wages by employers on behalf of unions was lawful and the test of what was legitimately an 'employment matter' should be expanded to include the deduction of union fees.

Reaction to the ruling

The Australian Industry Group said compulsory bargaining fees were 'anathema' to the concept of freedom of association and 'the freedoms we enjoy in a democratic society'. AiG chief executive Bob Herbert called on all political parties to support the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Bill 2002, stalled in the Senate, which aims to outlaw the fees.

The Australian Chamber of Commerce and Industry's Peter Anderson said union fee clauses were 'back door unionism'. And Federal Workplace Relations Minister Tony Abbott also jumped on the decision, saying he supported a High Court appeal on the ruling, and that unions could now potentially take industrial action over a demand for a donation to the Australian Labor Party.

But Australian Council of Trade Unions secretary Greg Combet was quick to point out that decisions on whether or not to charge the fee would be taken democratically at the workplace. Workplaces with a majority of employees who were union members would take a vote on whether to insert a clause in their agreement imposing a bargaining fee on their non-union colleagues.

The Australian Workers' Union, one of the unions at the centre of the Electrolux case, has signalled its intention to push on with agreements containing bargaining agents' clauses. AWU federal president Bull Ludwig has said his union would be putting a case before the Queensland Industrial Relations Commission in the near future.

And in NSW electrical trades unions are pushing through agreements containing clauses allowing union bargaining fees, while the National Electrical Contractors Association is trying to challenge them in the NSW IRC in advance of the upcoming round of bargaining in the state's construction industry.

Strike action

Meanwhile, unions are today protesting what they say is an attack on their democratic freedoms, as Parliament prepares to debate legislation restricting the right to strike.

ACTU president Sharan Burrow said if passed the laws would remove the freedom of employees to withdraw their labour 'in almost all conceivable circumstances'.

'Banning industrial action by employees, but not employers, would remove any responsibility from employers to bargain in good faith and provide new powers for action against workers pursuing legitimate claims,' she said.

'The possibility of massive fines or even jail terms for individual employees would in effect abolish a basic legal right developed in civilised societies over the last 300 years and enshrined in international law.'

Burrow also said the legislation could harm attempts to minimise industrial disputation in key industries, which depended on dialogue, cooperation and partnership, and were unnecessary given historic low levels of industrial disputation.


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