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Federal Collective Bargaining after Electrolux

Published online by Cambridge University Press:  24 January 2025

Jason Harris
Jason Harris*
Affiliation:
School of Business Law and Taxation, UNSW
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Extract

The Workplace Relations Act 1996 (Cth) (‘the Act’) pt VIB establishes a framework for the registration and enforcement of certified agreements, which are collective industrial instruments that regulate the employment relationship for a significant proportion of the workforce. The Act provides for agreements between unions of employees and employers and agreements between employers and employees directly. A certified agreement comes into effect only after it is approved by the employer and a ‘valid majority’ of its employees and is registered by the Australian Industrial Relations Commission (‘the Commission’). The significance of registration of a certified agreement lies in the imposition of legally enforceable rights and obligations upon the parties bound by the agreement. One of the most significant obligations imposed on the parties bound by a registered certified agreement is the obligation not to engage in industrial action for the duration of the agreement, which is ordinarily no longer than three years.

Type
Research Article
Information
Federal Law Review , Volume 34 , Issue 1 , March 2006 , pp. 45 - 73
Copyright
Copyright © 2006 The Australian National University

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Footnotes

The writer would like to thank Professor Phillipa Weeks and Mr John Trew QC, as well as the two anonymous referees for their helpful comments. An earlier version of this article was presented at the ALTA 2005 Annual Conference and the writer would also like to thank the participants of the conference for their helpful comments. All errors remain the sole responsibility of the writer. Lastly, the writer would like to thank the editors of the Federal Law Review for their patience and support during the revisions of this article at a time of great upheaval in industrial law in Australia.

References

1 Recent Australian Bureau of Statistics figures indicate that collective industrial agreements, such as certified agreements, regulate terms and conditions of approximately 41 per cent of the Australian workforce: Australian Bureau of Statistics, ‘Methods of Setting Pay’ (2003) 6105.0 Australian Labour Market Statistics 26Google Scholar.

2 Workplace Relations Act 1996 (Cth) ss 170LJ, 170LK. The Act also provides for certified agreements between employers and unions in settlement of an industrial dispute: Workplace Relations Act 1996 (Cth) pt IVB, div 3. There are also greenfields agreements where employees have not yet been engaged on a new worksite: Workplace Relations Act 1996 (Cth) s 170LL. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) will retain these agreements: see ss 96A (employee/employer collective agreements), 96B (employer/union collective agreements), 96C (union greenfields agreements). There is also a new non-union greenfields agreement: s 96D.

3 Workplace Relations Act 1996 (Cth) ss 170LE, 170LJ(2), 170LK(1). The Act defines a ‘valid majority’ as a majority of persons employed at a particular time whose employment is or will be subject to the agreement: Workplace Relations Act 1996 (Cth) s 170LE.

4 Workplace Relations Act 1996 (Cth) ss 170LT(5), 170LX. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) provides for agreements to take effect once they are lodged with the Office of Employment Advocate, rather than requiring the parties to register the agreement with the Commission, which the current law requires: see new pt VB, div 5, s 100.

5 Workplace Relations Act 1996 (Cth) ss 170MC, 170MN. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) allows certified agreements to last for no more than five years, although greenfields agreements will only be permitted to last for one year: s 101.

6 Workplace Relations Act 1996 (Cth) s 170MN. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) contains the same prohibition: ss 108E, 110.

7 Workplace Relations Act 1996 (Cth) ss 170LX(2), 170MN, 170ML. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) contains a similar provision: s 108.

8 Either party to the agreement may initiate a bargaining period by giving notice to the other party: Workplace Relations Act 1996 (Cth) ss 170MI–170MK. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) contains a similar provision: s 107.

9 Workplace Relations Act 1996 (Cth) s 170ML(2). For a detailed discussion of the procedures involved in taking protected industrial action see Greg, McCarry, ‘Industrial Action Under the Workplace Relations Act 1996 (Cth)’ (1997) 10 Australian Journal of Labour Law 133Google Scholar; Victor, Di Felice, ‘Stopping or Preventing Industrial Action in Australia’ (2000) 24 Melbourne University Law Review 310Google Scholar; Breen, Creighton and Andrew, Stewart, Labour Law (4th ed, 2005) ch 18Google Scholar. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) maintains this position: s 108(2), 108(3).

10 See further Creighton and Stewart, above n 9, ch 4. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) represents a change in the constitutional basis of the Workplace Relations Act 1996 (Cth), from the conciliation and arbitration power (s 51(xxxv) of the Constitution) to the corporations power (s 51(xx) of the Constitution). There is therefore no similar requirement that agreement be about matters pertaining to the employment relationship, as this phrase was a requirement of the regulation of industrial disputes that was necessary to bring the law within the conciliation and arbitration power. The new use of the corporations power means that the requirement of interstate labour disputes is no longer needed. However, the limitations imposed by the current s 170LI appear to be repeated under the new concept of ‘prohibited content’, which is dealt with in more detail in the Postscript below.

11 The Industrial Relations Act 1988 (Cth) s 4(1) defined an industrial dispute by reference to matters pertaining to the relationship between employers and employees, while its predecessor the Conciliation and Arbitration Act 1904 (Cth) s 4(1) defined an industrial dispute by reference to industrial matters, which were themselves defined by reference to ‘all matters pertaining to the relations of employers and employees’.

12 Creighton and Stewart, above n 9, [4.26]–[4.32].

13 R v Kelly; Ex parte Victoria (1950) 81 CLR 64, 84.

14 Re Manufacturing Grocers Employees Federation of Australia (1986) 160 CLR 341.

15 R v Coldham; Ex parte Fitzsimmons (1976) 137 CLR 153, 163 (Stephen J).

16 Compare Re Atlas Steels Metals Distribution Certified Agreement 2001–2003 (2002) 114 IR 62 (‘Re Atlas Steels’) and Electrolux Home Products Pty Ltd v Australian Workers Union [2001] FCA 1600 (‘Electrolux (FCA Merkel J)’) with Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Electrolux Home Products Pty Ltd (2002) 118 FCR 177 (‘Electrolux (FCFC)’) and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Unilever Australia Ltd (2003) 132 IR 34 (‘Unilever’). See also Leigh, Johns, ‘To Certify or Not to Certify? – That is (Still) the Question’ (2003) 16 Australian Journal of Labour Law 108Google Scholar.

17 (2004) 209 ALR 116 (‘Electrolux’).

18 One of the features of the recent Workplace Relations Amendment (Work Choices) Act 2005 (Cth) has been to increase attention on alternative dispute resolution between employers and employees/unions: see the newly inserted Workplace Relations Act 1996 (Cth) pt VIIA.

19 Workplace Relations Act 1996 (Cth) ss 3(b), 3(c). The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) replaces these provisions with similarly worded goals: ss 3(d), 3(e).

20 The Commission is generally prohibited from exercising its arbitration powers during a bargaining period: Workplace Relations Act 1996 (Cth), s 170N. Under the amendments brought in by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), the Commission will primarily have a conciliatory role in relation to industrial disputes.

21 Industrial action is defined broadly in the Workplace Relations Act 1996 (Cth) s 4, to include work bans or limitations, or the performance of work in a manner different from that in which it is customarily performed. This definition also appears in the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) s 106A.

22 Paul, Davies and Mark, Freedland, Kahn-Freund’s Labour and the Law (3rd ed, 1983) 291–3Google Scholar.

23 Steven, Anderman, Labour Law: Management Decisions and Workers’ Rights (2nd ed, 1993) 73Google Scholar.

24 Creighton and Stewart, above n 9, [18.59]–[18.61].

25 Ibid [18.66]–[18.83].

26 See Workplace Relations Act 1996 (Cth) ss 127, 170NC; Creighton and Stewart, above n 9, ch 18; McCarry, above n 9; Di Felice, above n 9. Similar powers have been introduced by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth): ss 104, 111, 111A.

27 Workplace Relations Act 1996 (Cth) ss 170ML, 170MU. See further McCarry, above n 9. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) provides similar protection: ss 108, 108L, 108M.

28 Workplace Relations Act 1996 (Cth) s 170MO. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) has reproduced this requirement in s 108F.

29 Workplace Relations Act 1996 (Cth) s 170MN. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) contains a similar provision in s 108E.

30 It is recognised that unlawful strikes have been a feature of industrial relations long before the creation of protected industrial action in 1993. However, these ‘wildcat strikes’ may be dealt with by obtaining an order from the Commission under the Workplace Relations Act 1996 (Cth) s 127. See further McCarry, above n 9; Di Felice, above n 9. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) has moved the Commission’s powers against industrial action into pt VC, div 6.

31 See above n 16.

32 This summary of the facts is based on an earlier article by the writer: see Jason, Harris, ‘The High Court Limits Protected Industrial Action’ (2005) 57 Keeping Good Companies 42Google Scholar.

33 It should be noted that prior to the High Court’s decision the federal Parliament passed the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 (Cth), which inserted s 298SA prohibiting unions from demanding a bargaining services fee outside of bargaining services contracts, and amended ss 170LU(2A) and 298Z(5)(b) to prevent the Commission from certifying an agreement that contains a bargaining services fee. These provisions have been retained in the freedom of association provisions under the renumbering done by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth): see s 271(1)(e). Presumably the provision of a bargaining services fee will be prescribed as ‘prohibited content’ under the new ss 101D–101F.

34 Electrolux (FCA Merkel J) [2001] FCA 1600, [40]–[48].

35 Ibid [49]–[54].

36 Ibid [52]–[55].

37 Electrolux (FCFC) (2002) 118 FCR 177.

38 Electrolux (2004) 209 ALR 116.

39 As to the broad/narrow approaches to interpretation taken by the Federal Court in relation to outsourcing and transmission of business provisions, see Jason, Harris, ‘More Uncertainty for Outsourcing Arrangements’ (2004) 56 Keeping Good Companies 36Google Scholar.

40 Workplace Relations Act 1996 (Cth) s 3.

41 (2003) 132 IR 34 (‘Unilever’).

42 Unilever (2003) 132 IR 34, 95 [161].

43 (2002) 118 FCR 177 (‘Electrolux (FCFC)’).

44 Electrolux (FCFC) (2002) 118 FCR 177, 196 [99].

45 Cf Electrolux (2004) 209 ALR 116, 122 [17] (Gleeson CJ).

46 Electrolux (FCFC) (2002) 118 FCR 177, 196 [99]–[100].

47 Ibid 196 [101].

48 Electrolux (FCA Merkel J) [2001] FCA 1600.

49 Ibid [41].

50 See R v Portus; Ex parte Australia & New Zealand Banking Group (1972) 127 CLR 353; Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 (‘Re Alcan Australia’).

51 This is because bargaining fees are now prohibited by statute: see above n 33.

52 Electrolux (FCA Merkel J) [2001] FCA 1600, [50].

53 Ibid [51].

54 The Full Bench in Unilever (2003) 132 IR 34 is the notable exception.

55 See Re Atlas Steels (2002) 114 IR 62; Transport Workers’ Union of Australia v National Transport Operations Pty Ltd (2003) 121 IR 339; Re National Union of Workers (2003) 120 IR 438.

56 (2002) 114 IR 62.

57 Re Atlas Steels (2002) 114 IR 62; Transport Workers’ Union of Australia v National Transport Operations Pty Ltd (2003) 121 IR 339, 343–4 [23]–[28]; Workplace Relations Act 1996 (Cth) ss 4(1) (definition of industrial dispute), 89A.

58 (unreported, AIRC, Ross VP, PR952656, 22 October 2004) (‘Ballantyne’).

59 Re Rural City of Murray Bridge Nursing Employees, ANF (Aged Care)-Enterprise Agreement 2004 (2005) 142 IR 289 (‘Schefenacker’), 307 [49].

60 This conclusion was based on previous High Court decisions such as Re Alcan Australia (1994) 181 CLR 96, in which it was decided that the deduction of union dues by the employer was not a matter pertaining to the relationship between employers and employers, but rather between employers and unions.

61 Electrolux (2004) 209 ALR 116, 120–6 [8]–[25] (Gleeson CJ), 141–8 [95]–[122] (McHugh J), 154–9 [149]–[166] (Gummow, Hayne and Heydon JJ), 177–180 [239]–[253] (Callinan J).

62 Callinan J must be taken to have also accepted this point because his Honour stated that he preferred the approach of Merkel J to that of the Full Federal Court: Electrolux (2004) 209 ALR 116, 177–8 [239]. The decision of Gummow, Hayne and Heydon JJ dealt primarily with the construction of s 170ML.

63 Ibid 122 [16] (Gleeson CJ), 142–3 [101] (McHugh J).

64 Ibid 122 [17] (Gleeson CJ), 146 [110] (McHugh J). See also the reasons of Callinan J: ibid 181 [253].

65 Ibid 122 [17] (Gleeson CJ).

66 Ibid 124–5 [25] (Gleeson CJ).

67 Ibid 124–5 [25] (Gleeson CJ). See similar comments at 146–8 [112]–[122] (McHugh J), 155–6 [151]–[166] (Gummow, Hayne and Heydon JJ), 178 [240] (Callinan J).

68 Ibid 143–4 [102]–[105].

69 Ibid 143–4 [105] (McHugh J).

70 Ibid 162 [182] (Kirby J). This is given statutory force by the Acts Interpretation Act 1901 (Cth) s 15AA.

71 Ibid 162 [187].

72 Ibid 163 [187]–[188].

73 Ibid 163–4 [190].

74 Ibid 164–5 [192]–[193].

75 Ibid 143 [102].

76 Australian Paper Ltd v Communications, Electrical, Electronic, Energy and Allied Services Union of Australia (1998) 81 IR 15, 18 (North J); cited with approval in the dissenting opinion of Kirby J in Electrolux (2004) 209 ALR 116, 162 [185].

77 It is submitted that the changes brought about by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) will not remove this difficulty because the new provisions will still require a clause by clause analysis to determine whether any of the clauses falls within the boundaries of ‘prohibited content’, although it is hoped that the definition of prohibited content under the (as yet unpublished) Workplace Relations Regulations may be more easily applied than the meaning of a ‘matter pertaining to the employment relationship’.

78 Electrolux (FCFC) (2002) 118 FCR 177, 195 [93]; Bluescope Steel Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2005) 137 IR 115 (‘Bluescope Steel’), 119–120 [22]; Pacific National (ACT) Pty Limited v Australian Rail, Tram & Bus Industry Union [2005] FCA 1383, [13].

79 Australian Bureau of Statistics figures indicate that the number of industrial disputes and the number of days lost to industrial disputes has been in decline for the last several years: Industrial Disputes Australia, 17 March 2005, 6321.0.55.001.

80 Workplace Relations Act 1996 (Cth) s 170MW. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) also contains numerous grounds to suspend or terminate a bargaining period: ss 107G–107J.

81 It should be noted that the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) has introduced the power to suspend or terminate a bargaining period if the industrial action taken during the bargaining period threatens to cause significant harm to a third person: s 107J.

82 Workplace Relations Act 1996 (Cth) s 170MO.

83 David’s Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463.

84 Creighton and Stewart, above n 9, [18.86].

85 Ibid [18.81]. See, eg, John Holland Pty Ltd v Construction, Forestry, Mining & Energy Union (2005) 144 IR 418.

86 Ballantyne (unreported, AIRC, Ross VP, PR952656, 22 October 2004) [9]; Schefenacker (2005) 142 IR 289, 306–8 [45]–[50].

87 It should be noted that this last point has the potential to be used very broadly, which is why the Full Bench of the Commission in Schefenacker (2005) 142 IR 289, 299–300 [19], said that care should be used when applying the descriptions of incidental and ancillary to particular clauses.

88 Schefenacker (2005) 142 IR 289, 307–8 [50], citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 614–5 [51] (Gleeson CJ), which in turn cites numerous authorities for the proposition that decisions made under a jurisdictional error have no legal effect.

89 Workplace Relations Act 1996 (Cth) ss 170LT(8), 170LW. As to the nature of the Commission’s private arbitration function see Carolyn, Sutherland, ‘By Invitation Only: The Role of the AIRC in Private Arbitration’ (2005) 18 Australian Journal of Labour Law 53Google Scholar; Andrew, Stewart, ‘The AIRC’s Evolving Role in Policing Bargaining’ (2004) 17 Australian Journal of Labour Law 245Google Scholar.

90 It should be noted that Heerey J recently refused an application for an interlocutory injunction based on the argument that the notice initiating the bargaining period was void because it referred to a matter that did not pertain to the employment relationship: Bluescope Steel (2005) 137 IR 115, 118–120 [15]–[23]. However, in Finance Sector Union of Australia v Commonwealth Bank of Australia [2005] FCA 796, Merkel J found that an agreement that had been certified by the Commission was invalid under the Act because the agreement allowed for operational terms external to the agreement. His Honour found that the Commission’s certification was void and that the agreement therefore operated as a common law contract (which his Honour found to be in breach of the freedom of association provisions in Workplace Relations Act 1996 (Cth) pt XA).

91 Judiciary Act 1903 (Cth) s 39B(1A)(c), which speaks of any matters arising under federal law. The High Court has found that the same phrase used in s 76(ii) of the Constitution applies if the rights or duties in question owe their existence to federal law, or depend upon federal law for their enforcement: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, 154 (Latham CJ). Thus, as the function of the Commission in private arbitration depends upon s 170LW for its enforcement, the jurisdiction of the Federal Court under the Judiciary Act 1903 (Cth) s 39B(1A)(c) should be enlivened.

92 Schefenacker (2005) 142 IR 289, 307–8 [50].

93 The Senate Employment, Workplace Relations and Education Committee, Parliament of Australia, Inquiry into Workplace Relations Amendment (Agreement Validation) Bill (2004) did not address this issue. See further Marilyn, Pittard, ‘Agreements Straying Beyond Employment Matters: The Impact of the Agreement Validation Matters Legislation’ (2005) 18 Australian Journal of Labour Law 71Google Scholar.

94 For a detailed discussion of the validation legislation see Pittard, ibid.

95 Workplace Relations Act 1996 (Cth) ss 170NHA–170NHC. The agreements are validated to the extent that they do not contain matters that do not pertain to the employment relationship.

96 Electrolux (FCA Merkel J) [2001] FCA 1600, [50] (affirmed (2004) 209 ALR 116, 122 [17] (Gleeson CJ), 141 [95]–[96], 143 [103] (McHugh J); not considered by other members of the court); Re Atlas Steels (2002) 114 IR 62, 68 [23]; Unilever (2003) 132 IR 34, 85 [126]; Ballantyne (unreported, AIRC, Ross VP, PR952656, 22 October 2004) [33]–[47]; Schefenacker (2005) 142 IR 289, 307 [47]. See also Victoria v Commonwealth (1996) 187 CLR 416 (‘Industrial Relations Act Case’), which took a similar position in relation to award matters.

97 Electrolux (2004) 209 ALR 116, 122 [17] (Gleeson CJ); Ballantyne (unreported, AIRC, Ross VP, PR952656, 22 October 2004), [48]; Schefenacker (2005) 142 IR 289, 299–300 [19].

98 Schefenacker (2005) 142 IR 289, 307 [49]; cf Ballantyne (unreported, AIRC, Ross VP, PR952656, 22 October 2004).

99 Ballantyne (unreported, AIRC, Ross VP, PR952656, 22 October 2004) [58].

100 If this were to occur, the issue would then focus on whether the term included fits within the scope of the prohibited term. In which case the difficulties discussed below concerning the overly technical nature of the legal requirements relating to agreement would still apply.

101 Workplace Relations Act 1996 (Cth), pt IX. See further William, Ford, ‘Being There: Changing Union Rights of Entry under Federal Industrial Law’ (2000) 13 Australian Journal of Labour Law 1Google Scholar.

102 (2004) 138 IR 362 (‘Wesfarmers’).

103 Wesfarmers (2004) 138 IR 362, 390 [110]–[112]. Cf Country Fire Authority v United Firefighters’ Union of Australia (unreported, AIRC, Acton SDP, PR957580, 26 April 2005) where the right of entry provision was drafted as conferring on the Union the right to enter in accordance with the provisions of pt IX, but also added the phrase ‘or at times as approved by the CFA for the purposes of conducting legitimate union business’. Acton SDP found that the quoted phrase was substantive in nature and did not pertain to the employment relationship.

104 (2005) 142 IR 289.

105 Schefenacker (2005) 142 IR 289, 330 [116].

106 Ballantyne (unreported, AIRC, Ross VP, PR952656, 22 October 2004) [179]–[214].

107 Schefenacker (2005) 142 IR 289, 331 [119].

108 Re South Pacific Tyres Retreading (Windsor Gardens) Enterprise Agreement 2004 (unreported, AIRC, O’Callaghan SDP, PR957737, 3 May 2005). See also Re CSR Ltd Mawson Lakes South Australia Enterprise Agreement 2004 (unreported, AIRC, O’Callaghan SDP, PR957484, 19 April 2005) where the clause prevented the agreement from being certified because it did not specifically limit the right of entry to enforcing the agreement’s grievance procedures.

109 Metropolitan Fire and Emergency Services Board v United Firefighters’ Union of Australia (AIRC, Ross VP, Hamilton DP and Gay C, PR957547, 22 April 2005, unreported) [26].

110 R v Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313; Transport Workers’ Union of Australia v National Transport Operations Pty Ltd (2003) 121 IR 339; Construction, Forestry, Mining & Energy Union v Mount Thorley Operations Pty Ltd (1997) 79 FCR 96; Wesfarmers (2004) 138 IR 362.

111 R v Moore; Ex parte Federated Miscellaneous Workers Union of Australia (1978) 140 CLR 470, 472–3 (Gibbs J); Ballantyne (unreported, AIRC, Ross VP, PR952656, 22 October 2004) [113]; Schefenacker (2005) 142 IR 289, 320–1 [83].

112 Schefenacker (2005) 142 IR 289, 320–1 [83]. This decision was applied by the subsequent Full Bench in Re Transport Workers’ Union of Australia and Australian Air Express (2005) 142 IR 409.

113 Re Inghams Enterprises (Mile End Feedmill) Certified Agreement 2002 (unreported, AIRC, O’Callaghan SDP, PR956998, 5 April 2005).

114 This follows the authority in R v Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313. The most recent Full Bench decision which supports this point is Re National Union of Workers (unreported, AIRC, Giudice P, McCarthy DP and Mansfield C, PR962259, 9 September 2005), which has been applied by O’Callaghan SDP in several subsequent decisions (see, eg, Australian Workers’ Union v Australian Municipal, Administrative, Clerical and Services Union (unreported, AIRC, O’Callaghan SDP, PR964439, 31 October 2005)).

115 Kelly, Godfrey, ‘To Pertain or not to Pertain to the Employment Relationship: that is the Question’ (2005) 33 Australian Business Law Review 55, 55Google Scholar.

116 The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) will exacerbate this problem because the Commission will no longer vet agreements, with agreements taking effect once they are lodged with the Office of the Employment Advocate. However, the uncertainty surrounding the agreements as discussed in this article will continue because of the possibility of the agreements containing ‘prohibited content’. This is discussed in the Postscript below.

117 Godfrey, above n 115, 61.

118 Re National Standards Commission Certified Agreement 2003–2004 (2003) 125 IR 350, 353–4 [13]. See also NSW Teachers Credit Union Ltd v FSU (unreported, AIRC, Richards C, PR936565, 22 August 2003) (‘NSW Teachers Credit Union’).

119 NSW Teachers Credit Union (unreported, AIRC, Richards C, PR936565, 22 August 2003); Wesfarmers (2004) 138 IR 362, 390 [109].

120 Ballantyne (unreported, AIRC, Ross VP, PR952656, 22 October 2004) [47].

121 Ibid [70]–[74].

122 Schefenacker (2005) 142 IR 289, 299–300 [19]; Wesfarmers (2004) 138 IR 362, 390 [109].

123 One counter argument to this, although outside the scope of this article, is that it is perfectly appropriate that the workplace relationship not be wholly regulated by laws, but rather by a mixture of laws and non-legal mechanisms: Davies and Freedland, above n 22, 161.

124 Electrolux (2004) 209 ALR 116, 143 [103] (McHugh J); 155–6 [154] (Gummow, Hayne and Heydon JJ); Electrolux (FCA Merkel J) [2001] FCA 1600, [50]; Construction, Forestry, Mining and Energy Union v AIRC (2001) 203 CLR 645, 658 [34].

125 Gregory v Philip Morris Ltd (1987) 77 ALR 79, 93; ACTEW Corporation Ltd v Pangallo (2002) 127 FCR 1, 17–8 [33] (Whitlam and Gyles JJ); James, Macken et al, The Law of Employment (5th ed, 2002) 586–8Google Scholar; Creighton and Stewart, above n 9, ch 7.

126 Workplace Relations Act 1996 (Cth) ss 170LE, 170M.

127 Workplace Relations Act 1996 (Cth) Sch 1B s 27.

128 R v Bowen; Ex parte Amalgamated Metal Workers & Shipwrights’ Union (1979) 144 CLR 462.

129 See Breen, Creighton, William, Ford and Richard, Mitchell, Labour Law: Text and Materials (2nd ed, 1993)Google Scholar [25.27]–[25.37].

130 Ryan v Textile Clothing & Footwear Union of Australia [1996] 2 VR 235, 248–9 (Brooking JA) (‘Ryan’).

131 Indeed, there may even be problems with treating a union as an agent of its members in some cases: see Ryan [1996] 2 VR 235, 238–9 (Brooking JA).

132 Byrne v Australian Airlines Ltd (1995) 185 CLR 410.

133 See Creighton, Ford and Mitchell, above n 129, [25.39]–[25.45]; Ryan [1996] 2 VR 235; Ford Motor Co Ltd v Amalgamated Union of Engineering & Foundry Workers [1969] 2 QB 303.

134 Ryan [1996] 2 VR 235, 238–9 (Brooking JA); United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466, 484–8 [64]–[80] (where the agreement was not a contract because of uncertainty regarding who would be bound in the future).

135 See Creighton, Ford and Mitchell, above n 129, [25.33]–[25.35]; Dyson, Heydon, The Restraint of Trade Doctrine (2nd ed, 1999) 208Google Scholar.

136 See Creighton, Ford and Mitchell, above n 129 [25.39]; Davies and Freedland, above n 22, 160.

137 Electrolux (2004) 209 ALR 116, 122 [17] (Gleeson CJ); Ballantyne (unreported, AIRC, Ross VP, PR952656, 22 October 2004) [48]; Schefenacker (2005) 142 IR 289, 299–300 [19].

138 Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588 (affirmed Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2003) 130 FCR 524).

139 See for example, National Fleet Network Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2005) 143 IR 45.

140 Peter, Punch, ‘Electrolux – the Implications’, Industrial Law News (Issue 9, 2004) 3Google Scholar.

141 It should be noted that the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) inserts a new s 110 which provides that industrial action may not be taken before the nominal expiry date of the agreement ‘whether or not that industrial action relates to a matter dealt with in the agreement’. The Work Choices amendments also make a similar provision for AWAs: s 110A.

142 (2005) 139 IR 209.

143 Workplace Relations Act 1996 (Cth) ss 170LZ, 170VR.

144 McLennan v Surveillance Australia Pty Ltd (2005) 139 IR 209 (‘McLennan’), 228 [47]–[48] (Black CJ and Moore J).

145 [2005] FCA 796.

146 It should be noted that in Finance Sector Union v Commonwealth Bank of Australia [2005] FCA 796, Merkel J did find that the void certified agreement operated as a common law contract. However, it is submitted that this does not detract from the writer’s contention that matters which could not be included in a certified agreement could easily form an enforceable common law contract. Difficulties of uncertainty and intention may be reduced when viewing the agreement as a whole and, thus, the entire agreement may well be more easily enforced as a contract than specific elements of that agreement in isolation.

147 Ryan [1996] 2 VR 235, 243–249 (Brooking JA).

148 Andrew, Stewart, ‘Electrolux in the High Court: Strict Interpretation, Uncertain Results’, Industrial Law News (Issue 9, 2004) 1Google Scholar.

149 Punch, above n 140.

150 Anderman, above n 23, 73.

151 As cited in Godfrey, above n 115, 55.

152 See the new Workplace Relations Act 1996 (Cth) s 108A.