Federal Collective Bargaining after Electrolux

Date01 March 2006
Published date01 March 2006
DOI10.22145/FLR.34.1.2
Subject MatterArticle
FEDERAL COLLECTIVE BARGAINING AFTER ELECTROLUX
Jason Harris*
I INTRODUCTION
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.1 The Act provides for agreements between unions of employees and
employers and agreements between employers and employees directly.2 A certified
agreement comes into effect only after it is approved by the employer and a 'valid
majority' of its employees3 and is registered by the Australian Industrial Relations
Commission ('the Commission').4 The significance of registration of a certified
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* Jason Harris, BA LLB (UWS), Lecturer, School of Business Law and Taxation, UNSW. 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.
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 26.
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.
46 Federal Law Review Volume 34
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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.5
While industrial action may not be lawfully undertaken by the parties during the
term of the certified agreement,6 the Act does allow industrial action to be taken after
the nominal expiry of the certified agreement,7 provided that the parties are
negotiating a new agreement during a bargaining period.8 Industrial action will only
be permitted if it is taken for the purpose of 'supporting or advancing claims made in
respect of the proposed agreement'.9 Until recently, it was commonly thought that the
reference to the 'proposed agreement' in this context was simply to the proposed
certified agreement that the parties were negotiating. The proposed agreement must be
precisely identified because it is only industrial action taken in support of that
agreement that gains the protection of the Act.
It is important to note that not all agreements negotiated between the parties are
capable of being certified by the Commission. Section 170LI of the Act provides that an
agreement may only be submitted for certification by the Commission if it is 'about
matters pertaining to the relationship between' employers and their employees.10 The
issue concerning whether or not a particular matter pertains to the employment
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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 133; Victor
Di Felice, 'Stopping or Preventing Industrial Action in Australia' (2000) 24 Melbourne
University Law Review 310; Breen Creighton and Andrew Stewart, Labour Law (4th ed, 2005)
ch 18. 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.

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