Court hits union rights

Anna Pha

On September 2, the High Court handed down a decision which 
further restricts the already limited legal rights of trade 
unions to take industrial action and undermines the scope of 
enterprise agreements. It could render unenforceable many 
important provisions of existing enterprise agreements, or even 
render invalid the agreements themselves. The decision sounds a 
warning to unions. It tightens an already extremely restrictive 
and oppressive piece of legislation which has forced individual 
unions to hold back on struggle and manoeuvre their way around 
its most objectionable features.

The decision outlaws industrial action on social, political, 
environmental and broader economic issues.

Future court challenges may determine the full implications of 
the High Court's interpretation of the Workplace Relations Act, 
unless the Act itself can be rendered inoperable or by trade 
union actions.

Not surprisingly major employer bodies and the Howard Government 
are jubilant and the legal profession also has good reason to 
celebrate.

The case dates back to the negotiation of a new enterprise 
agreement with Electrolux in 2001. One of the union claims was 
for a compulsory "bargaining agent fee" to be paid by all future 
employees who did not become union members but who would be 
beneficiaries of the union's negotiations. The claim also 
involved payroll deduction of that fee by the employer, 
Electrolux.

During negotiations the unions took industrial action — which 
they believed to be legally "protected action" — in support of 
their claims. Electrolux took the unions to the Federal Court 
claiming the action was not "protected" because the proposed 
agreement contained a clause that was not "pertaining to the 
relationship between an employer and employees". The allegedly 
offending clause was the one on bargaining agent fees.

"Protected action", which gives those involved a certain degree 
of legal immunity, is limited to action by workers "supporting or 
advancing claims" in respect of an enterprise agreement at the 
time when it is being negotiated. (Section 170ML) (It does not, 
for example, cover action to enforce the provisions of an 
agreement or solidarity action with other workers.)

The Act specifies that the contents of an agreement must "be 
about matters pertaining to the relationship between an employer 
and employees". (S 11700LI)

Over the years the Australian Industrial Relations Commission 
(AIRC) and the courts have in the main adopted a fairly realistic 
interpretation of what constitutes "matters pertaining to the 
relationship between an employer and employees".

A Full Court of the Federal Court had previously found in favour 
of the unions at Electrolux. The Howard Government has since, 
with the help of the Australian Democrats, passed legislation 
prohibiting the inclusion of bargaining agent's fees in certified 
agreements and permitting the removal of such clauses in existing 
agreements.

But that did not stop Electrolux, with the assistance of the 
Australian Industry Group (AIG), appealing to the High Court. In 
its September 2 decision, the High Court upheld the employer 
appeal by a six to one majority. It found that the action taken 
by Electrolux workers was not "protected" because of the 
inclusion of the bargaining agent's fees. The court found that:

* The AIRC could not certify (make legally enforceable) 
agreements containing clauses that go beyond the employment 
relationship (enterprise agreements must be certified by the AIRC 
to be legally enforceable)

* "Protected action" can only be taken in support of claims 
pertaining to the employment relationship

* Bargaining agent fees do not pertain to the employment 
relationship.

In other words, the action taken by Electrolux workers in 2001 in 
support of a new enterprise agreement was not "protected action". 
This leaves the unions, officials and workers exposed to damages.

Justice Michael Kirby, the loan rational voice, rejected the 
claim saying that "it was not about the matters pertaining to the 
employment relationship. Anyone who thinks otherwise, in my 
respectful opinion, must have paid no attention to employment 
controversies in Australia over the past two decades."

The Court appears to have adopted an extremely narrow 
interpretation of what constitutes an employment relationship. It 
certainly does not reflect the reality of the workplace or 
employer-employee relations in practice. It is very much along 
the lines of right-wing employer and Howard Government treatment 
of trade unions as "third parties" who have no rights to 
"intervene" in workplaces.

Certified enterprise agreements, like federal awards before them, 
were stripped back to "20 allowable matters" by former Workplace 
Relations Minister Peter Reith. The enterprise agreements that 
followed took up many of the provisions removed from awards.

Now we are faced with a possible scenario of enterprise 
agreement-stripping if employers decide to pursue this decision 
to its limits. A great deal will depend on whether the Howard 
Government is returned, and by the response of the trade union 
movement.

When former Reith stripped awards back to "20 allowable matters", 
he removed all but the most basic provisions relating to wages 
and working conditions. The only avenue left to unions to gain 
more comprehensive, legally enforceable, rights and conditions 
such as those previously found in the centralised award system, 
was through (certified) enterprise agreements.

This decision, by no means the first by the Court restricting 
trade union rights, is based on a very narrow interpretation of 
the Workplace Relations Act — very much in line with Reith's 
ambitions.

Legal sources and employer organisations are raising questions 
about the validity of clauses such as those on the use of 
contractors, trade union training leave, right of entry, the 
requirement of employers to pay into certain external funds (such 
as union sponsored super schemes).

There are even suggestions that agreements with invalid clauses 
are themselves invalid.

There are many uncertainties. At this stage no one knows how 
employers will respond to this decision and how it would be 
interpreted by the courts and Commission.

Unions have found it extremely difficult to function under the 
Act. Now the trade union movement will need to do much more than 
find ways around particular laws.

Regardless of who wins the elections on October 9, it is time to 
mount a massive struggle to defeat the Act itself.

Any encroachment on the ability of trade unions to take 
industrial action undermines the strength of the union movement. 
The unity of action by trade unions is the source of workers' 
power, the principle means that workers have of standing up to 
bosses and defending their own interests.

The right to strike — and the choice or when and over what — is 
a basic trade union right. Governments and employers who attempt 
to place restrictions on, or outlaw the right to strike must be 
confronted by the full might of the trade union movement.