ASU Enterprise Agreements strike Electrolux trouble

In September 2004 the High Court handed down a decision, Electrolux Home Products Pty Limited v The Australian Workers’ Union & Ors (Electrolux) that has had ramifications for existing Federal enterprise agreements, but even more significantly, for certifying future agreements. The matter was taken on appeal to the High Court by employers because it included a provision for a Bargaining Agents Fee.

The High Court found that Federal enterprise agreements cannot be certified if they include any clauses that do not "pertain to the relationship between the employer and employees". Whilst the decision specifically cited only bargaining agents fees and payroll deductions as provisions that did not pertain to the requisite relationship, it raised the question about many other matters.

Since the Electrolux decision, the Australian Industrial Relations Commission has been rigorously testing all the clauses of agreements to see whether they meet this test.

It appears that virtually all agreements that have been presented for certification include at least one clause that does not relate to the employer/employee relationship and that means that the whole Agreement cannot be certified. What has to occur then, is that the agreement has to be amended, be put back to employees for 15 days before another vote is taken, then a new application for certification is made and another hearing in the Commission.

The Electrolux decision has set the scene for an overly restrictive interpretation of what matters can and cannot be included in an Enterprise Agreement. It has created an environment of considerable uncertainty where we have members of the Commission interpreting clauses differently so at the current time it is unclear as to what can and cannot be included in an Agreement.

This situation is likely to continue for some months until further appeals make their way up to the Full Bench of the Commission or, possibly, again to the High Court.

In the meantime, Unions, employers and employer associations are trying to second-guess outcomes; agreements are being held up while they go back and forth from employees voting to the Commission, only to be rejected, and then back to the drawing board.

It is a most unsatisfactory situation but the ASU is attempting to manage this the best way we can to ensure the least disadvantage to our members. Where possible, we are ensuring that pay rises that flow from the agreements are taking effect from the time the agreement was signed rather than wait until the agreement is certified by the Commission, because this may take months due to the uncertainties flowing from the Electrolux decision.

If you are currently negotiating an agreement, it is important that you are aware of It is an ongoing saga and talk with your Organiser about:

• what clauses can be included
• what is the most appropriate wording for clauses that might be questionable
• ensuring that your pay increases are not delayed because of technical difficulties.

Contact Details
ASU-SANT
Ph:  08 83631322
Fax: 08 83632225
union@asu-sant.asn.au


News
current stories | archive by date | archive by category