THE AUSTRALIAN Industrial Relations Commission (AIRC) recently clarified the High Court’s Electrolux decision and its impact upon certification of agreements after ruling that a number of clauses relating to union right of entry, time off for union delegates, trade union training leave and prohibitions on Australian Workplace Agreements (AWAs) pertain to the employment relationship
THE AUSTRALIAN Industrial Relations Commission (AIRC) recently clarified the High Court’s Electrolux decision and its impact upon certification of agreements after ruling that a number of clauses relating to union right of entry, time off for union delegates, trade union training leave and prohibitions on Australian Workplace Agreements (AWAs) pertain to the employment relationship.
However the decision wasn’t a complete victory for unions, as Vice President Ross ruled that clauses such as those relating to the opportunity to recruit new union members and deduction of union membership fees were not permissible.
In his decision, Vice President Ross adopted an approach that gives wide scope to ancillary and incidental clauses, and if this approach is followed in subsequent decisions, many agreement clauses that were seen to be problematic in light of Electrolux will be permissible, according to national law firm Corrs Chambers Westgarth.
Ruling on the certification of the K.L. Ballatyne enterprise agreement, Vice President Ross declined to adopt the narrow approaches to ‘matters pertaining’and ancillary and incidental clauses that were urged by the Australian Chamber of Commerce and Industry and the Australian Industry Group.
In particular, he rejected submissions that machinery, ancillary and incidental clauses must support the operation of particular substantive clauses of an agreement, and that a clause in part directed to strengthening the position of trade unions or union members, cannot also pertain to the employment relationship, according to Corrs Chambers Westgarth workplace relations partner Val Gostencnik.
However when it came to impermissible clauses, the approach taken by Vice President Ross departs in some respects from a number of pre-Electrolux decisions of the Commission.
“While the decisions in Ballantyne and Transfield will be highly influential, they need not be followed by other members of the Commission or by the courts. However, two senior members of the Commission seem to have adopted a consistent approach in their application of Electrolux,” Gostencnik said.
“It is to be hoped that a consistent body of case law will now begin to emerge from the Commission and courts to give certainty as to the validity of current agreements.”
