Bosses trip on Electrolux

Anti-union employers have failed in a bid to knock more than 
10 clauses out of a workplace agreement in the first major test 
of last month's Electrolux ruling. Australian Industrial 
Relations Commission senior vice president, Iain Ross, gave the 
green-light to controls on contract labour, prohibitions on non-
union AWA contracts and guarantees on union entry rights in a 
National Union of Workers (NUW) agreement covering employees at 
LK Ballantyne's Laverton site in Victoria.

The decision de-bunked the insistence of some industrial law 
firms that they could roll dozens of negotiated agreements 
because key clauses failed to "pertain" to the strict 
interpretation of the employer-employee relationship contained in 
the Workplace Relations Act.

Vice-President Ross rejected the employers' contention that 
anything designed to strengthen the position of unions, or their 
members, was illegal.

"The submissions of the AI Group and ACCI [employer groups] 
almost seem to proceed on the assumption that clauses which give 
unions, or their representatives, rights are, almost by 
definition, not clauses which pertain to the employment 
relationship and hence cannot be included in a certified 
agreement.

"This is a false premise. The task to be undertaken is one of 
characterisation", Mr Ross said.

He did, however, roll a clause providing for union fee 
deductions, along with another allowing union delegates access to 
new workers to discuss union matters.

Mr Ross said certified agreements could contain clauses that were 
"machinery in nature, ancillary or incidental" to a matter that 
pertained to the employer-employee relationship.

He okayed the following clauses which employers had sought to 
have ruled illegal:

* An agreement to commence negotiations three months before the 
current deal expires;

* Indemnities for employees against damages claims;

* Casual employees, including those employed by a third party, to 
receive no less than terms contained in the agreement; 

* Substitution of publicholidays;

* Trade union training leave

* A commitment not to introduce AWAs during the life of the 
agreement;

* Union notice board obligation on employer;

* Paid time off for union delegates;

* Time off for paid union meetings; 

* Right of entry;

* Requirement on employer to keep time and wages records.

NUW Victorian Secretary, Martin Pakula, called the decision a 
"fantastic result" that meant, with some "minor changes", unions 
could negotiate as normal.

Attention will now turn to WA where Westfarmers Coal is seeking 
unspecified damages from Australian Manufacturing Workers' Union 
state officials and four Collie delegates on the grounds that 
"protected" action was, in fact, "unprotected" because, under 
Electrolux principles, some claims did not pertain to the 
employer-employee relationship (see last week's Guardian).

This case takes the Electrolux argument one step further, testing 
the ability of employers to curb strike action and financially 
cripple unions if claims are subsequently found not to pertain.

Westfarmers, represented by lawyers Clayton Utz, has taken 
exception to half a dozen claims, including right of entry, 
controls on contracting, delegate education and local government 
representation leave.

Its arguments are now before Justice French, in the Federal 
Court.