THE AUSTRALIAN Industrial Relations Commission (AIRC) is struggling to adopt a uniform approach to certifying agreements in the wake of the recent landmark decision by the High Court in Electrolux Home Products Pty Ltd v AWU and Ors
THE AUSTRALIAN Industrial Relations Commission (AIRC) is struggling to adopt a uniform approach to certifying agreements in the wake of the recent landmark decision by the High Court in Electrolux Home Products Pty Ltd v AWU and Ors.
The decision, which overturned a Federal Court decision giving unions the right to take industrial action over matters that extend beyond the employment relationship, related to a union claim for non-union members at Electrolux to pay a bargaining fee to the unions involved in the enterprise agreement negotiations.
But the case had much wider implications, and the AIRC has adopted a variety of different approaches to certifying agreements in the wake of the High Court decision.
“They will be looking at the matter in more detail internally, which might lead to more uniformity in their approach, but certainly at the moment there’s not uniformity,” said Freehills partner Graeme Watson.
“Whether that will continue or not is a moot point. These things are capable of being addressed, and I think there’s no reason why they shouldn’t be addressed now.”
At least one member has continued to certify agreements, without mention of the Electrolux decision, and Freehills noted that certain parts of the agreements that have been certified contain clauses that appear not to pertain to the relationship required by section 170LI.
Another member of the AIRC indicated that unless parties raised the decision, he would continue to certify the agreements as normal given that the process and endorsement of the agreements had occurred prior to the High Court’s decision.
Despite the current inconsistency in decisions, employers should be proactive rather than sitting back and wondering what the Commission’s going to do, according to Watson.
“This isn’t a realistic option, because the Commission is very much going to be influenced by what’s put to them and how it’s put to them. So employers are much better off getting it clear and pressing ahead and resolving it in the way they want,” he said.
When agreement were knocked back or the parties were sent away for a couple of weeks, Watson said this was more due to the Commission being unsure of where it stands on some clauses and was inclined to put the obligation back on the parties.
“That’s fair enough and that means that the parties have to accept that obligation and make sure there’s a way through,” Watson said.
While some employers such as Franklins have already dropped union-friendly provisions from a new enterprise agreement, employers such as BlueScope Steel, the Commonwealth Bank and Qantas, who are currently in enterprise bargaining rounds, are carefully watching the AIRC’s response to the Electrolux decision.
Watson said there was a level of uncertainty among employers who are looking to put an agreement up for certification, and acknowledged that it would take time for the “dust to settle”.
“It will be clear as to what can and can’t be in agreements and parties will adjust their practices accordingly by not delving into areas like bargaining fees, simply because you can’t put them in agreements and be guaranteed of having them certified,” Watson said.
The High Court decision would test the boundaries of agreements because unions thought “they were onto something” being able to put such clauses into a certified agreement, said Watson.
He predicted some would simply leave it in a signed agreement, which doesn’t form part of the certified agreement, while others would look to water down clauses in order to retain their original concept, and that would be a subject for the parties to deal with in the bargaining area.
He also cautioned against the possibility of unions trying to commence a bargaining period again and trying to renegotiate to build on existing clauses if agreements were invalid.
