''Electrolux v The Australian Workers' Union'' was a 2004 decision by the

High Court of Australia The High Court of Australia is Australia's apex court. It exercises original and appellate jurisdiction on matters specified within Australia's Constitution. The High Court was established following passage of the '' Judiciary Act 1903''. ...

that held that a bargaining agent fee did not pertain to the relationship between employer and employee and so could not be included in an

enterprise bargaining agreement Enterprise bargaining is an Australian term for a form of collective bargaining, in which wages and working conditions are negotiated at the level of the individual organisations, as distinct from sectoral collective bargaining across whole indust ...

Background

The case dealt with whether bargaining agent's fees could be in an enterprise bargaining agreement as created by the ''Workplace Relations Act (Cth) 1996''. Bargaining agent's fees were politically contentious as they were seen as a form of compulsory

union dues Union dues are a regular payment of money made by members of unions. Dues are the cost of membership; they are used to fund the various activities which the union engages in. Nearly all unions require their members to pay dues. Variation Many ...

. They were expressly prohibited by the

Parliament of Australia The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislative branch of the government of Australia. It consists of three elements: the monarch (represented by the governor- ...

by the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 No. 20, 2003 and then subsequently by the

WorkChoices WorkChoices was the name given to changes made to the federal industrial relations laws in Australia by the Howard Government in 2005, being amendments to the ''Workplace Relations Act 1996'' by the ''Workplace Relations Amendment (Work Choice ...

legislation.

Decision

The High Court decided 6 judges to 1 (Kirby J dissenting) that only matters that "pertained to the relationship between employer and employee" could be placed in an enterprise bargaining agreement. Bargaining agent's fees did not could not be in the agreement.

Aftermath

It was feared that on the logic of the High Court, many existing enterprise bargaining agreements had been certified invalidly and therefore could not be enforced, which forced the Parliament of Australia to pass the ''Workplace Relations Amendment (Agreement Validation) Act 2004 No. 155, 2004''. Furthermore, uncertainty existed around what could be placed in enterprise bargaining agreements in the future. Also, as unions could undertake protected

industrial action Industrial action (British English) or job action (American English) is a temporary show of dissatisfaction by employees—especially a strike or slowdown or working to rule—to protest against bad working conditions or low pay and to increa ...

or strikes only in pursuit of enterprise bargaining agreements, a serious question surrounded what unions could undertake strikes. That led to around 6 months of industrial confusion in which time, almost no enterprise bargaining agreements were certified and no industrial action occurred. The industrial confusion specifically surrounded a raft of clauses, which, until the decision of ''Electrolux v AWU'', had been commonly placed in enterprise bargaining agreements. Most of these clauses were union-friendly provisions: trade union training leave,

right of entry Right of entry refers to one's right to take or resume possession of land, or the right of a person to go onto another's real property without committing trespass. It also refers to a grantor's power to retake real estate from a grantee A grant ...

, recognition of union delegates or

shop stewards A union representative, union steward, or shop steward is an employee of an organization or company who represents and defends the interests of their fellow employees as a labor union member and official. Rank-and-file members of the union hold ...

. (However, there was also some concern regarding provisions against the use of

contract labour Employment is a relationship between two parties regulating the provision of paid labour services. Usually based on a contract, one party, the employer, which might be a corporation, a not-for-profit organization, a co-operative, or any ...

or setting the terms and conditions of contract labour and salary sacrifice into

superannuation A pension (, from Latin ''pensiō'', "payment") is a fund into which a sum of money is added during an employee's employment years and from which payments are drawn to support the person's retirement from work in the form of periodic payment ...

.) Many argued that these types of clauses did not "pertain" and so could not be included into future enterprise agreements. That created considerable concern in the union movement as if the union-friendly provisions could not be included into future enterprise bargaining agreements, that would considerably limit union influence in the Australian worksite. The problem was comprehensively resolved by the

Australian Industrial Relations Commission The Australian Industrial Relations Commission (AIRC), known from 1956 to 1973 as the Commonwealth Conciliation and Arbitration Commission and from 1973 to 1988 as the Australian Conciliation and Arbitration Commission, was a tribunal with powers ...

's landmark decision on 21 March 2005: the Schefenacker, the Murray Bridge and the La Trobe University certified agreements (the three certified agreements case).PR956575
/ref> The decision determined what provisions the Commission would allow to be certified in enterprise agreements. The decision was generally considered as a union victory, as it endorsed a whole raft of union friendly clauses. One final consequence of the case of ''Electrolux v AWU'' is that it upheld several previous decisions of the High Court, which had decided that provisions allowing for payroll deductions of union dues did not "pertain to the relationship between employer and employee." Payroll deductions were consequently prohibited from being placed into enterprise agreements and so cannot be placed into enterprise agreements created under the WorkChoices reforms. The relevance of ''Electrolux v AWU'' as an authority in Australian

industrial relations Industrial relations or employment relations is the multidisciplinary academic field that studies the employment relationship; that is, the complex interrelations between employers and employees, labor/trade unions, employer organizations, ...

in many ways ceased, with the introduction of the WorkChoices legislation reform package. However, consistent with the litigation itself, it was the consequent events that remained relevant. The decision of the three certified agreements case is still an applicable authority in determining what can and cannot be placed in an enterprise agreement.

References

{{Electrolux High Court of Australia cases 2004 in Australian law Electrolux 2004 in case law Australian labour case law