"Chilling" decision hits union rights

Corporate Australia is seeking massive fines against the 
Australian Manufacturing Workers' Union (AMWU) in Western 
Australia and four rank-and-file delegates. Employers are 
expected to argue that months of on-again, off-again industrial 
action at Westfarmers Coal was "unprotected", exposing the union, 
its officials and delegates to damages that could run into 
millions of dollars.

Westfarmers Coal has issued writs for unspecified damages against 
WA AMWU officials Jock Ferguson, Colin Saunders, four workplace 
delegates, and their union in Collie.

The case is based on the recent Electrolux ruling where the High 
Court found that industrial action taken in support of claims 
that were "not pertaining" to the employer-employee relationship 
was not protected. (See Guardian September 15, 2004)

A proposal in WA to grant Collie tradesmen local government 
representation leave is one of half a dozen clauses Westfarmers 
Coal is seeking to have ruled "not pertaining" to the employer-
employee relationship.

Westfarmers has also taken exception to clauses that seek to 
control contracting and deliver trade unions right of entry, 
delegate education and leave provisions.

Corporate lawyers, Clayton Utz, are representing Westfarmers Coal 
in the action.

Jock Ferguson says it will be a "lawyers' picnic". "Lawyers will 
be the big winners in this and everyone else will pay through the 
nose", he said. "It's not hard to guess what John Howard did 
before he went into Parliament [a lawyer].

"This situation will settle down eventually but, in the meantime, 
there will be a lot of pain, suffering and expense.

"The High Court has opened up a difficult situation because 
nobody knows what the rules of engagement are any more. All 
protected action over the last six years appears to be up for 
grabs as a result of its Electrolux ruling.

"Workers who genuinely believed they were acting within the law, 
can be sued retrospectively for millions of dollars over actions 
that employers also believed were lawful at the time.

"This case is a classic example. Westfarmers Coal is going to the 
Federal Court to have clauses ruled unlawful that it has already 
agreed to in negotiations."

There will be intense interest in the Westfarmers case from 
workers, employers, lawyers and politicians.

Senior Sydney-based industrial lawyer, Lachlan Riches, said 
recently that the High Court had left industrial relations 
operatives high and dry with its Electrolux ruling.

"They have left it ambiguous as to what the ground rules are and, 
as a result, fundamental rights that go back 80 years will be 
challenged and re-examined", he warned.

Immediately after the ruling, a string of employers, including 
Dandenong-based truck manufacturer, Iveco, tried to have clauses 
in enterprise agreements rubbed out and industrial actions 
declared illegal.

Industrial law firms began circulating employers with advice that 
long-agreed provisions might now be illegal and render entire 
documents, including wages, unenforceable.

Justice Michael Kirby warned fellow judges in a dissenting 
opinion on Electrolux that their decision would have a "chilling 
effect" on collective bargaining.

He called the majority view "impractical" and "narrow", 
suggesting it was divorced from workplace reality.

"To expose an industrial organisation of employees to grave, even 
critical, civil liability for industrial action, determined years 
later to have been unprotected, is to introduce a serious 
chilling effect into negotiations that such organisations can 
undertake on behalf of their members", Justice Kirby wrote.

The case is set down for hearing in Perth on November 4 and 5 
before Justice French in the Federal Court.