PR956575

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.45 appeal against decision

issued by Senior Deputy President O'Callaghan on 29 October 2004

PR952449

Australian Nursing Federation

(C2004/5774)

RURAL CITY OF MURRAY BRIDGE NURSING EMPLOYEES, ANF (AGED CARE) - ENTERPRISE AGREEMENT 2004

s.170LS application for certification of agreement

Australian Nursing Federation

and

Rural City of Murray Bridge

(AG2004/5635)

Rural City Of Murray Bridge Nursing Employees, ANF (Aged Care) -

Enterprise Agreement 2004

s.45 appeal against decision

issued by Senior Deputy President O'Callaghan on 28 October 2004

PR952801

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

(C2004/6679)

SCHEFENACKER VISION SYSTEMS AUSTRALIA PTY LTD, AWU, AMWU CERTIFIED AGREEMENT 2004

s.170LJ application for certification of agreement

Schefenacker Vision Systems Pty Ltd and Others

(AG2004/4610)

Schefenacker Vision Systems Australia Pty Ltd, AWU, AMWU Certified Agreement 2004

s.45 appeal against decision

issued by Commissioner Whelan on 24 November 2004

PR953628

La Trobe University

(C2004/6790)

LA TROBE UNIVERSITY CHILDREN'S CENTRE ENTERPRISE BARGAINING AGREEMENT 2004

s.170LK application for certification of agreement

La Trobe University

(AG2004/7953)

La Trobe University Children's Centre Enterprise Bargaining Agreement 2004

   

JUSTICE GIUDICE, PRESIDENT

  

VICE PRESIDENT LAWLER

  

COMMISSIONER SIMMONDS

MELBOURNE, 18 MARCH 2005

Appeals - certification of agreements - matters pertaining to the relationship of employers and employees - salary packaging - payroll deductions - employees of labour hire agencies - trade union training leave - union right of entry - union officials and shop stewards - Workplace Relations Act 1996 ss.45, 170LI(1), 170LJ, 170LK, 170LN-170LP

DECISION

Introduction

[1] There are three appeals before the Commission. Each appeal is against a decision of a member of the Commission dismissing an application to certify an agreement pursuant to Part VIB of the Workplace Relations Act 1996 (the Act). The first decision, made by Senior Deputy President O'Callaghan in Re Schefenacker Vision Systems Australia Pty Ltd, AWU, AMWU Certified Agreement 20041 (Schefenacker), concerned an agreement purportedly made pursuant to s.170LJ of the Act. The second decision, made by Commissioner Whelan in Re La Trobe University Children's Centre Enterprise Bargaining Agreement 20042 (La Trobe), concerned an agreement purportedly made pursuant to s.170LK of the Act. Sections 170LJ and 170LK are in Division 2 of Part VIB of the Act. The third decision, made by Senior Deputy President O'Callagahan in Re Rural City of Murray Bridge Nursing Employees, ANF (Aged Care) - Enterprise Agreement 20043 (Murray Bridge), concerned an agreement purportedly made pursuant to Division 3 of Part VIB of the Act.

[2] In each decision the member of the Commission refused to grant the application on the basis that one or more terms of the agreement did not pertain to the relationship between employers and employees and that the application was accordingly invalid. The clauses in question dealt with the following matters:

[3] The appellants challenged all of these findings. They submitted that each clause, properly characterised, pertains to the relationship between employers and employees as that expression has been interpreted by the High Court and that the agreements should have been certified. We were asked to quash the decision in each case and to certify the agreements.

Leave to Appeal

[4] In the first two appeals, Schefenacker and La Trobe, certification was sought pursuant to Division 2 of Part VIB of the Act. The principal question which arises is whether the agreements were of the kind described in s.170LI(1) of the Act. Section 170LI(1) provides:

[5] In the third appeal, Murray Bridge, certification was sought pursuant to Division 3 of Part VIB of the Act. The question which arises in that appeal is whether the agreement is an agreement of the kind described in s.170LO. Section 170LO reads:

[6] In our opinion the matters are of such importance that in the public interest leave should be granted to appeal in each case. Each of the decisions under appeal raises for consideration the application of the decision of the High Court in Electrolux Home Products Pty Ltd v Australian Workers Union4 (Electrolux). The question before the Court in Electrolux was whether an agreement that contained provision for a bargaining agent's fee was an agreement coming within the description in s.170LI and thus the subject of a valid application for certification under Part VIB of the Act. Since the decision was handed down in September 2004 widespread concern has arisen as to the validity of a large number of existing certified agreements. Legislation has been enacted to ensure the validity of agreements certified by the Commission before Electrolux was decided.5 Considerable doubt remains as to whether a range of matters can be included in a certified agreement. Collectively the appeals deal with a number of matters commonly sought to be included in certified agreements. Given the central importance of certified agreements in contemporary workplace relations and the uncertainty surrounding what may validly be included in a certified agreement it is in the public interest that a Full Bench of the Commission give consideration to the issues raised in the appeals. Pursuant to s.45(2) we grant leave to appeal in each case.

The decision in Electrolux Home Products Pty Ltd v Australian Workers Union

[7] This litigation concerned industrial action taken by unions in support of claims made in connection with negotiations for a certified agreement with Electrolux Home Products Pty Ltd (Electrolux). It was envisaged that the agreement would be one pursuant to Division 2 of Part VIB and would be the subject of an application pursuant to s.170LI(1). The critical claim was for a $500 "bargaining agent's fee" to be deducted by Electrolux from the wages of employees who were not union members and to pay the fee to the relevant union. The claim required Electrolux to advise new employees that a bargaining agent's fee would be payable by the employee if he or she was not a union member and to require them to provide a direct debit facility to enable payment of the fee. The claim was rejected by Electrolux. The unions took industrial action claiming that it was protected action within the meaning of s.170ML of the Act.

[8] Section 170ML authorises industrial action for the purpose of supporting or advancing claims in respect of a proposed agreement. The proposed agreement is identified in s.170MI(1) as that which the initiating party wants to negotiate being an agreement under Division 2 or 3 of Part VIB of the Act. Electrolux commenced proceedings in the Federal Court of Australia in relation to the industrial action. Merkel J held that the bargaining agent's fee claim was not about a matter that pertained to the relationship between Electrolux and its employees and that an agreement containing provision for a bargaining agent's fee would not be an agreement for the purpose of s.170LI6. Accordingly he made a declaration that the industrial action was not protected action. On appeal, a Full Court of the Federal Court overturned the decision. The High Court (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ; Kirby J dissenting) upheld a further appeal and restored the orders of Merkel J. A central issue before the High Court was whether an agreement providing for a bargaining agent's fee could be an agreement of the kind described in s.170LI(1). The Court decided that question in the negative by a majority of six to one.

[9] Electrolux can be said to be authority for at least two propositions relevant to this case. The first is that earlier cases dealing with the construction of the term "pertaining to the relationship of employers and employees" apply to the construction of s.170LI(1). The Chief Justice put it this way:

[10] Justice McHugh reached the same conclusion, as the following passage from his judgment makes clear:

[11] In their joint judgment Gummow, Hayne and Heydon JJ also reached the same conclusion9 and Callinan J's decision is to the same effect. 10

[12] It follows from this proposition that authorities concerning the meaning of the term "pertaining to the relationship of employers and employees" are to be applied in considering the construction of s.170LI(1) and that the decisions in Re v Portus; Ex parte ANZ Banking Group Ltd11 (Portus) and Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees12 (Alcan) are directly applicable. As the Chief Justice put it: "There is no occasion to depart from those authorities, and every reason to follow them."13

[13] The second important proposition to emerge from the case is that an agreement which contains a matter which does not pertain to the relationship of employers and employees, subject to a qualification which we shall come to, cannot be the subject of a valid application for certification pursuant to s.170LI. The Chief Justice expressed his conclusion in the following terms:

[14] Justice McHugh agreed. His view is encapsulated in the following extract from his judgment:

[15] Justices Gummow, Hayne and Heydon dealt with the issue in these terms:

[16] Before leaving this issue it is necessary to deal with the exception we referred to earlier. It is clear that an agreement may contain some matters which do not pertain to the relevant relationship and yet still be the subject of a valid application under s.170LI. What is the nature and breadth of that exception? In order to answer this question it is necessary to start with the decision of Merkel J in Electrolux. His Honour there held:

[17] It can be seen that His Honour approached the issue from two different perspectives. First, he decided that an agreement containing a term which is ancillary or incidental to, or a machinery provision relating to, a matter pertaining to the employment relationship might still be capable of certification. Secondly, he decided that an agreement containing a term which deals with a substantive, discrete, and significant matter that does not pertain to the employment relationship would not be capable of certification. Although it might be said that these formulations received implied approval from the High Court, in fact they were the subject of direct comment only by Justice McHugh. His Honour, after expressing the view that Merkel J's formulations were consistent with earlier decisions of the High Court18, later said:

[18] The Chief Justice dealt with the issue on the basis that if an agreement contains a term about a matter extraneous to the relevant relationship, unless the matter is "so trivial that it should be disregarded as insignificant," the agreement is not capable of certification.21 No other member of the majority expressed a view on the formulations.

[19] We think that while Merkel J's formulations are a source of guidance, the terms of the section are the overriding consideration. They require that an agreement must be about matters that pertain to the requisite relationship. No doubt machinery and administrative provisions may be included, as well as matters which do not pertain but which are trivial. While ancillary and incidental matters may be included, in our view care should be taken in applying those descriptions.

[20] Justice McHugh made some additional observations about the construction of s.170LI(1) which should be mentioned. His Honour observed:

[21] McHugh J was the only member of the Court who referred to the distinction between the relationship of employers and employees generally and the relationship of a particular employer and its employees and the fact that s.170LI(1) refers to the latter.23 It should be noted, however, that this passage contains no suggestion that a relevant distinction can be made between a disputed claim on a particular subject and an agreed provision on the same subject - a distinction adopted by a Full Bench of the Commission in Re Atlas Steels Metals Distribution Certified Agreement 2001-2003 (Atlas Steels)24. Such an approach would allow that while a particular claim does not pertain to the relevant relationship, an agreement on the same subject might so pertain. In our view the approach in Atlas Steels is inconsistent with the conclusion that the cases dealing with the construction of the term "pertaining to the relationship of employers and employees" apply to (and govern) the construction of s.170LI(1). The decision in Electrolux has in any event exposed a fatal flaw in the distinction. If adopted it might lead to a situation in which a particular matter could not be the subject of a claim in relation to which protected action could be taken but the same matter could be the subject of an agreement in relation to which certification could be sought. It is unlikely that the legislature intended such a result. For these reasons the distinction in Atlas Steels should not be followed.

[22] Two members of the Court in Electrolux indicated that demands of a managerial or other nature do not create a dispute about matters pertaining to the relationship between employer and employee. McHugh J stated:

[23] Callinan J said:

[24] We do not think that by these references their Honours intended to disturb the accepted construction of the statutory definition of an industrial dispute. In this connection we note that in Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd 27 (Cram) a Full Court rejected the suggestion that because a demand touches upon an area of management decision-making it cannot be a matter which pertains to the relevant relationship. The following passage is sufficient to indicate the Court's approach:

[25] In our view, our task is to characterise each of the provisions in question in these proceedings by reference to the cases concerning the definition of an industrial dispute. The cases show that the question to be asked is whether the provision is one which pertains to the relationship of employers and employees. If the provision cannot be so characterised, but rather is of an academic, political, social, managerial or any other nature, the agreement cannot be the subject of a valid application for certification.

[26] Before leaving Electrolux we should also note that McHugh J expressed the view that s.170LV undertakings may be available to cure an agreement that contained "non-compliant" terms. His Honour said:

[27] McHugh J was the only member of the Court to advert to this possibility. A majority of the Court clearly regarded the existence of an agreement meeting the description in s.170LI as a jurisdictional prerequisite to a valid application. Accordingly, the better view is that unless there is an agreement that meets the description in s.170LI the Commission has no jurisdiction to entertain an application for certification of the agreement and the occasion for the taking of an undertaking pursuant to s.170LV cannot arise.30

Division 3 Agreements

[28] Electrolux was primarily concerned with the provisions of Division 2 of Part VIB of the Act and in particular the proper construction of s.170LI. The reasoning is therefore directly relevant to the first two appeals before us. The third appeal, Murray Bridge, concerns the provisions of Division 3 of Part VIB. Section 170LN describes what Division 3 covers. It reads:

"170LN What this Division covers

[29] Division 3 agreements, as is clear from s.170LN are concerned with agreements made in relation to industrial disputes or industrial situations. This is confirmed by ss.170LO and 170LP which are as follows:

[30] The definition of the term "industrial situation" in s.4 of the Act is relevantly as follows:

[31] It can be seen that the definition of "industrial situation" refers back to the definition of "industrial dispute". Whether an agreement is of the kind referred to in s.170LO or the kind referred to in s.170LP, the touchstone is the definition of industrial dispute. It follows that authorities such as Alcan and Portus are directly relevant when considering whether an agreement is of the kind provided for in either of those sections. This conclusion is reinforced, if reinforcement is needed, by the following passage from the joint judgment in Electrolux:

[32] The question remaining is whether the second proposition in Electrolux also applies to Division 3 agreements. In other words, must each of the terms of a Division 3 agreement pertain to the relationship between employers and employees. Senior Deputy President O'Callaghan answered this question in the affirmative. That conclusion was controverted by the Australian Nursing Federation in the appeal.

[33] It might be said that as a matter of logic the terms of ss.170LO and 170LP do not exclude the possibility that an agreement might contain terms that do not pertain to the relevant relationship provided those terms are in settlement, etc of a claim in an industrial dispute or for preventing an industrial situation from giving rise to an industrial dispute. A problem with this approach is that it might result in s.170LN being deprived of any substantive restriction upon the matters to be included in an agreement. It would allow, for example, that an agreement could be made requiring an employer to make ongoing contributions to a political party in exchange for withdrawal of a claim for time off for employees to attend political rallies or, indeed, for withdrawal of a claim or claims which were completely unrelated in subject matter to the question of political contributions. We think that this is unlikely to reflect the intention of the legislature.

[34] The approach would also sit uncomfortably with the scope of the Commission's power to make an award in settlement of an industrial dispute. The Commission has power, now subject to s.89A, to include in an award made in settlement of an industrial dispute anything which the Commission considers necessary or expedient for the purpose of preventing or settling the industrial dispute or preventing further industrial disputes. This power is now found in s.120 of the Act. It has never been held, however, that the Commission has power to include in an award a matter which does not pertain to the relevant relationship. In R v Galvin; Ex parte Amalgamated Engineering Union, Australian Section32 the High Court considered the limits of the Commission's award-making power. The Court was required to decide whether a particular award provision was within the ambit of a claim in the relevant industrial dispute. In doing so four members of the Court applied the following principle:

[35] The significance of this passage in the current context is that each term of an award made in settlement of an industrial dispute must be related in subject matter to a claim in the dispute. If it were otherwise there would be no limits upon what might be included in an award. It might be thought inconsistent if a different situation applied in relation to an agreement in settlement of an industrial dispute or an agreement for preventing further industrial disputes.

[36] Furthermore, if a provision about a matter which did not pertain were permissible in Division 3 agreements, it is likely that protected industrial action could be taken in support of the inclusion of such a provision in a proposed agreement pursuant to s.170ML. This would create a substantial inconsistency between Division 2 and Division 3 agreements. We think the better view is that all of the terms of a Division 3 agreement must pertain and that if there is a provision which does not pertain the application for certification is itself invalid.

Matters Pertaining to the Relationship Between Employers and Employees

[37] Before turning to the disputed matters in these appeals, it is important to refer to the authorities governing the construction of the expression "matters pertaining to the relationship between employers and employees". For present purposes we shall refer to three authorities only. The first two cases seem to us to provide an accurate and comprehensive statement of the correct legal approach. Both cases were concerned with a slightly different definition of the term "industrial dispute", but the differences are not relevant.34 The third case concerns the jurisdiction of a state industrial authority.

[38] We refer first to what was said by the High Court in its unanimous judgment in Re Manufacturing Grocers' Employees Federation of Australia; Ex Parte Australian Chamber of Manufacturers (Manufacturing Grocers):

[39] Next we refer to a passage from another unanimous judgment of the Court, that in Cram:

[40] The last sentence of this passage indicates that the concept of matters falling within the relevant relationship is not to be artificially limited by reference to the contract of service, its incidents and the work performed pursuant to the contract. This point can be illustrated by reference to The Federated Clerks' Union of Australia and Another v The Victorian Employers' Federation and Others37. The subject of the proceedings was a clause in an award made by the Industrial Relations Commission of Victoria. The effect of the clause was described by Mason J as follows:

[41] Although that case did not concern the jurisdiction of the Federal Commission, the conclusions of the majority are instructive. Mason J held, relevantly, that the provisions were specifically authorised by paragraph (e) of s.34(1) of the Industrial Relations Act 1979 (Vic). That paragraph reads:

[42] Murphy J's judgment is to the same effect.39 Wilson J said:

[43] Deane J's judgment includes a similar finding.41

[44] It is to be noted that of the four judges in the majority all accepted without question the role of the union in the obtaining of the information and in participating in negotiations about technological and other material change along with the employees affected.

Summary

[45] Following Electrolux it is clear that cases dealing with the construction of the term "pertaining to the relationship of employers and employees" apply to the construction of s.170LI(1). The High Court did not alter the developed law in relation to the meaning of that expression and the majority gave effect to decisions on the meaning of the expression in connection with the deduction of union dues, namely Portus and Alcan.

[46] In deciding whether a provision in an agreement pertains to the relevant relationship there is no distinction to be made between a disputed claim on a particular subject and an agreed provision on the same subject. While such a distinction was drawn by the Full Bench in Atlas Steels, the distinction was implicitly rejected by a majority of the Court in Electrolux.

[47] When dealing with applications to certify agreements pursuant to Division 2 of Part VIB of the Act, the following considerations are relevant:

[48] When dealing with applications to certify agreements pursuant to Division 3 of Part VIB the same considerations apply, with one exception. Whether a provision pertains to the relevant relationship is to be decided in the context of the relations between employers and employees generally, rather than the relations between a particular employer and its employees covered by the agreement. Whether this distinction has any significant practical implications remains to be seen.

[49] In having regard to these considerations reference will often be necessary to cases dealing with the same or similar issues. It is worth noting that the fact that a given matter has been held to be capable of giving rise to an industrial dispute or a matter the Commission could make an award about is not necessarily the end of the inquiry. Some older decisions may be incompatible with subsequent authority. In the same way, the fact that a clause about a particular matter can be found in an award is not necessarily a reliable guide to whether a provision about that matter may properly be included in an agreement.

[50] It is clear that the Commission's decisions on these issues are very important ones. It follows from Electrolux that if an agreement contains a provision which does not pertain to the relationship the application for certification is invalid. It would seem to follow that if the Commission purports to certify an agreement containing a provision of that kind the agreement will have no legal effect under the Act.42 Given the difficulties in characterisation which have arisen, and the likelihood that similar difficulties will arise in the future, the Parliament may think it appropriate to give consideration to a legislative amendment which might give a greater degree of certainty to the legal operation of an agreement once it has been certified.

The Provisions in Dispute

[51] Since we take the view that the relevant test is almost the same whether certification is sought pursuant to Division 2 or Division 3 of Part VIB we shall group the disputed matters by subject for the purpose of dealing with each of them.

Salary Packaging

[52] The agreement in Schefenacker contains the following clause:

[53] The agreement in La Trobe contains two clauses, cl.19 and cl. 64, which are identical in terms and which deal with salary packaging. Clause 19 provides:

[54] The agreement in Murray Bridge contains a clause providing for salary packaging as follows:

[55] In each of Schefenacker, Murray Bridge and La Trobe the member at first instance held that Portus, endorsed in Electrolux, precluded a finding that the salary packaging clause at issue was about a matter that pertained to the requisite relationship.

[56] In Schenefacker Senior Deputy President O'Callaghan set out his understanding of the operation of the salary packaging arrangement in these terms:

[57] The Senior Deputy President went on to find that while salary sacrifice arrangements relating to contributions to a superannuation fund are permissible, as found in Manufacturing Grocers, salary sacrifice arrangements relating to other items were not relevantly distinguishable in subject matter from a demand for deduction by the employer and payment to a union of union subscriptions. It followed that the situation was governed by Portus and Alcan and the clause did not pertain to the relevant relationship.

[58] In Murray Bridge the Senior Deputy President, after referring to Manufacturing Grocers44, said:

[59] In La Trobe Commissioner Whelan observed that the salary packaging provision in question envisaged payments by the employer to third parties out of pre-tax income rather than post-tax income, but went on to find that this was not a valid basis for distinguishing Portus and Alcan. The Commissioner also considered whether the fact that the obligation on the employer to pay the relevant monies to the third parties concerned arose in advance of the wages being payable altered the situation. She found that it did not. The Commissioner also found that payments made by the employer for the lease of a private motor vehicle or to discharge an employee's obligation to a childcare centre were not of the same character as payments to a superannuation fund and therefore the decision in Manufacturing Grocers did not apply. She concluded that the salary sacrifice arrangements envisaged by the provision were not relevantly distinguishable from the payments considered in Portus, Alcan and Electrolux.

[60] With respect, in our opinion each of the salary packaging provisions pertains to the relationship between an employer, in its capacity as employer, and its employees, in their capacity as employees. Salary packaging, which, because of its beneficial tax effects, is a ubiquitous feature of modern employment relationships, is concerned with the mode of remuneration of an employee. Leaving aside any questions arising from Truck Act legislation, an employer and employee are free to agree that the employee's remuneration will consist of both cash and non-cash benefits.

[61] Portus concerned a claim by a union against a number of banks that the banks deduct union dues from the salary of their employees and remit those dues to the union, provided the employees had authorised such deduction. The High Court held that this was not a claim that pertained to the relationship between the banks in their capacity as employers and the banks' employees in their capacity as employees. For present purposes, the decision in Portus is properly distinguished on the basis that the claim in that case was for the deduction and payment of union dues out of earned wages, that is, wages to which the employee had become presently entitled. It was this feature that rendered the capacity in which an employer would make such payments that of debtor or financial agent of the employee.

[62] Barwick CJ agreed with the judgment of Menzies J but made additional observations, including the following:

[63] The position is even clearer in the judgment of Walsh J:

[64] Menzies J (with whom Barwick CJ and McTiernan J agreed) observed:

[65] Furthermore Portus provides some support for the proposition that where a payment by an employer to a third party for the benefit of an employee forms part of the actual remuneration of that employee, the arrangement will be a matter that pertains to the relationship between the employer, in its capacity as employer, and the employee, in his or her capacity as employee. Thus, implicitly, Walsh J would have regarded the claim in Portus as pertaining to the requisite relationship if the payments could have been viewed "as being part of the remuneration which [the employee] receives for his services". More generally, however, Portus is to be distinguished on the basis that it concerned payments out of earned wages whereas the salary packaging provisions we are concerned with govern the nature of the remuneration employees are to receive. This is sufficient to dispose of the objection to the salary sacrifice provisions based on the decision in Portus.

[66] An additional question arose in the Murray Bridge appeal as to whether the provision in question had a sufficient connection with a relevant industrial dispute in the terms required by s.170LO of the Act. We are satisfied that the salary sacrifice provision is reasonably incidental or appropriate to the settlement of, or has a natural or rational tendency to settle, a particular question in dispute.49 The claim as to the manner of payment of salaries (cl.27) and the salaries claim itself (cl.28) in the log of claims relied upon provide sufficient ambit for the agreed provision. These clauses read:

[67] For these reasons in none of the appeals is the salary sacrifice provision an obstacle to the application for certification.

Payroll Deductions

[68] The agreement in Schefenacker contains the following clause:

[69] On one view this provision may not create a binding legal obligation. Nevertheless we have dealt with the clause on the basis that the parties intended that Schefenacker would be bound to continue to make payroll deductions of union dues and remit them to the union.

[70] Senior Deputy President O'Callaghan correctly held that this clause was not about a matter that pertained to the requisite relationship. That outcome is required by the decisions in Portus and Alcan. In these appeals some reliance was placed on the decision of the Full Bench in Atlas Steels.50 As we have already noted, in that case the Full Bench, relying upon a distinction between a claim and a matter which had been agreed, held that an agreement containing a union payroll deduction provision was capable of certification pursuant to s.170LI.51 We have already indicated that in our view this reasoning has not survived Electrolux. Accordingly the position is governed by Portus and Alcan and the submission based on Atlas Steels must be rejected.

Employees of Labour Hire Agencies

[71] This question arose in Schefenacker only. The relevant provision is as follows:

[72] The Senior Deputy President analysed the clause as follows:

[73] It can be seen that the Senior Deputy President took the view that while the first five sub-clauses pertained to the requisite relationship the last was in a different category. He went on to discuss relevant authority and concluded that the sub-clause was not about the relationship of the company and its employees because its effect on the employees was indirect and in fact the sub-clause went to a contractual relationship between the company and its contractors which was outside the scope of s.170LI. In the course of his reasons he said :

[74] He found in addition that the sub-clause was not ancillary to the first five sub-clauses. On the hearing of the appeal the Senior Deputy President's conclusions on all six sub-clauses were in issue.

[75] In characterising these provisions it is necessary to have regard to two High Court decisions. The first is R v The Judges of the Commonwealth Industrial Court and Others; Ex parte Cocks and Others54 (Cocks). The second is R v Moore and Others; Ex parte Federated Miscellaneous Workers' Union of Australia55 (Moore). In Cocks the Court considered whether the Commonwealth Conciliation and Arbitration Commission had power to make an award prohibiting employers from having work done by independent contractors outside their factory or workshop. The Court answered that question in the negative. It did so on the basis that a dispute about such a matter was not an industrial dispute as defined in the Conciliation and Arbitration Act 1904. In Moore the Court considered whether a claim that no employer should permit any of the relevant work to be done by a contractor except in accordance with the terms of the award, and that no employer should enter into the contract for the doing of any work unless the contract contained a clause binding the contractor to observe the award, gave rise to an industrial dispute. Two members of the court, Gibbs and Jacobs JJ, took the view that the claim was capable of giving rise to a dispute. Gibbs J said:

[76] Jacobs J, with whom Stephen J agreed, said:

[77] The provision in question evidences a detailed agreement with the company requiring consultation about the usage of labour hire employees, a specific limitation on the proportion of total weekly paid employees made up by labour hire employees, a requirement that labour hire employees be offered permanent employment in certain circumstances, subject to a probationary period, and a requirement that the company instruct labour hire agencies to pass the increases in the agreement on to their own employees.

[78] We admit to some difficulty in characterising this provision, comprised as it is of a series of sub-clauses with a number of legal effects. On the one hand, it may be accepted that Schefenacker's employees have a legitimate interest in the engagement of labour hire employees because of the effect of such engagement on their own employment. For that reason it may be that the engagement of labour hire employees is a matter pertaining to the relationship between Schefenacker and its own employees. On the other hand, the extent to which the agreement can regulate the contractual relationship between Schefenacker and labour hire agencies, yet still pertain to the relevant relationship, is obviously a question of degree.

[79] We agree with the Senior Deputy President, for the reasons he gave, that the first four sub-clauses pertain to the relationship between Schefenacker and its employees. The number of labour hire employees engaged, it is to be inferred, is likely to have a direct effect upon the amount of work available to Schefenacker's employees and, ultimately, upon the number of employees Schefenacker engages directly. While it is true that cl.17.2 and cl.17.4 may be construed as a partial prohibition on the use of labour hire employees, they are also designed to increase permanent employment by placing obligations upon the employer to engage more permanent employees in the circumstances specified.

[80] Clause 17.5 imposes obligations on Schefenacker in relation to its own employees and clearly pertains to the relevant relationship.

[81] This leaves for consideration cl.17.6. The effect of the clause is to oblige the employer to instruct the labour hire agencies with whom it contracts to increase the wages they pay to their employees working at Schefenacker by the same percentage listed in the agreement.

[82] In Re National Transport Operations Pty Ltd Certified Agreement 200258 a Full Bench decided that a term in an agreement expressing the agreement to be binding on "all contract carriers engaged by the company whose engagement is subject to this agreement at any time during the period of operation" did not pertain to the relevant relationship. The following passage explains the Full Bench's reasons:

[83] It can be seen from this passage that the situation before the Full Bench was very different to that here. The intent of cl.17.6 is that employees of labour hire agencies working at Schefenacker should receive the same increase as the Schefenacker employees will receive under the agreement. This is sought to be achieved by obliging Schenefacker to give that directive to the agencies. Whether that means will be effective or not, the intent is that the relationship between the cost of labour supplied by the agencies and the cost of the labour of Schefenacker's employees will be relevantly the same after the agreement as it was before. For that reason we think that the sub-clause pertains to the relationship between Schefenacker and its employees. It directly concerns the security of employment of the employees covered by the agreement.

Trade Union Training Leave

[84] The agreement in Schefenacker contains the following clause:

[85] The Senior Deputy President referred to a decision of a Full Bench of the Commission, cited before him in support of the proposition that leave is a matter which pertains to the relevant relationship regardless of the purpose of the leave:

[86] It is clear that in the Municipal Officers' Queensland Case the Full Bench took the view that any demand for leave is a demand as to an industrial matter, regardless of the purpose for which the leave is sought. The Senior Deputy President went on to hold in this case, however, that leave itself is not of such a character that all leave claims must pertain to the relevant relationship. He relied in this respect on National Union of Workers v Le Cornu Furniture Centre and Others (Le Cornu).61 In that case a majority of the Full Bench decided that two demands in a log of claims were not matters pertaining to the relationship between employers and employees. The first demand was for the creation of the position of paid union delegate. The relevant passage is as follows:

[87] The second demand was that the employer pay an employee during absence from duty by the employee for any cause for which the employee could not reasonably be held responsible. The passage is:

[88] We think it can fairly be said that in relation to the first demand, the one for a paid union delegate, the members of the Commission concluded that the demand was in substance not about leave at all. In relation to the second demand the Commission seems to have been concerned more about the complete lack of a purpose for the absence, what it referred to as "the nebulousness of the circumstances causing the absence", rather than any particular purpose. Nevertheless it must be said that the passages in Le Cornu are less categoric on the question of leave always being a matter that pertains to the relevant relationship than the passages in the Municipal Officers' Queensland Case. The Senior Deputy President went on to find, relying upon Le Cornu, that the purpose of the leave sought, attendance at trade union training courses, was unrelated to the relevant relationship and so the provision could not be characterised as pertaining to the relevant relationship either.

[89] In our view the provision does pertain to the relevant relationship. It provides for paid leave of absence for a specified purpose. There is no basis for a distinction between a provision for paid leave of absence for that purpose and any other of the many purposes for which paid leave may be provided. One need look no further than the forms of leave referred to in s.89A(2)(e), (f), (g) and (h) of the Act. We note that a similar view was adopted in Le Cornu.64 Trade union training leave has for many years been regarded as a matter which pertains to the relevant relationship.65 We agree, with respect, with the reasons for decision on a similar provision in Re K L Ballantyne & National Union of Workers (Laverton Site) Agreement 2004.66

[90] We note that recently in Wesfarmers Premier Coal Limited v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No. 2)67 French J adopted a similar view in considering whether certain claims pressed in negotiations for an agreement to be certified under the Act pertained to the relevant relationship. We respectfully agree with the following passage from his Honour's decision:

[91] His Honour went on to deal with an aspect of the claim in that case which provided for payment to employees to attend union meetings during a period when they were not rostered for work. Since that part of the claim did not concern leave as such it is not necessary that we deal with that part of the decision. In our view it does not detract in any respect from the conclusions His Honour expressed on the question of leave.

[92] For these reasons we have concluded that the provision for shop steward training leave in Schenefacker pertains to the relevant relationship.

Right of Entry

[93] The clause before the Commission in Schefenacker is in these terms:

[94] The clause before the Commission in Murray Bridge is as follows:

[95] So far as can be ascertained the first occasion for judicial consideration of whether a claim for right of entry for union officials was capable of giving rise to an industrial dispute was The Australian Workers' Union v The Pastoralists' Federal Council of Australia and Others69 (Pastoralists Case). In that case the first President of the Commonwealth Court of Conciliation and Arbitration, O'Connor J, considered whether a claim "the effect of which would be to entitle a duly accredited agent of the claimant Union with or without the permission of the pastoralists to visit the shearers' and labourers' huts immediately prior to or during shearing for the purpose of enrolling members and collecting their subscriptions" was an "industrial matter" within the meaning of s.4 of the Commonwealth Conciliation and Arbitration Act 1904.70 His Honour decided that the claim did not give rise to an industrial dispute. The relevant passage is as follows:

[96] It should be reiterated that the claim in question demanded entry for the purpose of enrolling workers and collecting subscriptions, not for purposes related to the observance of the award.

[97] In the Union Badge Case72 two members of the High Court referred to O'Connor J's decision in the Pastoralists Case. The Union Badge Case was not concerned with right of entry but with a claim that employees be permitted to wear and display a union membership badge. In a dissenting judgment Barton ACJ referred to and applied what he described as the principle laid down by O'Connor J in the Pastoralists Case.73 Justice Powers, in the majority, referred to the Pastoralists Case without disapproval.74 No other member of the Court referred to the case.

[98] In Federated Clothing Trades of the Commonwealth of Australia v Archer75 (Archer) the High Court was concerned with a case stated pursuant to s.21AA of the Commonwealth Conciliation and Arbitration Act 1904 as to whether a number of demands were capable of giving rise to an industrial dispute within the meaning of that Act. The matters were:

[99] The Court held that there was an industrial dispute within the meaning of the Act in relation to each of the three matters (Isaacs, Higgins, Powers and Rich JJ; Barton CJ and Gavan Duffy J dissenting).

[100] At the time Archer was decided, so far as presently relevant, s.4 of the Conciliation and Arbitration Act 1904 defined an industrial dispute by reference to industrial matters. Industrial matters were in turn defined to be "all matters pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes - . . ." There followed a list of specific matters which it is not necessary to set out.

[101] Isaacs and Rich JJ, in a joint judgment, held:

[102] Their Honours went on to observe that:

[103] Higgins J implicitly accepted the suggestion of counsel "that an industrial dispute must be about some matter which it is within the capacity of the parties to grant or refuse" 78.

[104] His Honour was of the opinion that the claims in issue were industrial disputes within the meaning of the Constitution79. His Honour doubted whether the then Act covered a more limited area than the Constitution but, in the event that view was not accepted, considered the meaning of the expression "any dispute as to industrial matters". Having noted that industrial matters were defined comprehensively, His Honour then addressed the claim in relation to right of entry:

[105] It will be apparent that the references in quotation marks in the last sentence of the passage are references to parts of the statutory definition of industrial matters. Powers J held that all of the claims were matters about which there could be an industrial dispute within the meaning of the Act because "they are matters which are in the control of, and can be enforced by, the respondents in connection with their industry"81.

[106] It may be important that none of the members of the Court referred to O'Connor J's decision in the Pastoralists Case. While in Archer the Court found that a right of entry claim based on a purpose related to the observance of the award was within the definition of an industrial dispute, a materially different claim was found not to be within the same definition in the Pastoralists Case. As we have previously noted, that claim sought a right of entry for the purpose of enrolling members and collecting subscriptions.

[107] The ACTU and the union parties in the present matter rely upon the decision in Archer, and, in particular, the decision of Higgins J, as authority for the proposition that right of entry as a subject matter pertains to the requisite relationship. Others submitted that the views expressed by Higgins J cannot be regarded as good law in the light of the later decision of the High Court in Cocks. In Cocks the Court rejected the principle expressed by the majority in Archer that an industrial matter, and therefore an industrial dispute within the statutory definition, is one to which the party of whom it is demanded can accede. The criticism of Archer in Cocks does not extend explicitly to the view expressed by Higgins J that the particular claims relating to right of entry in Archer were claims as to industrial matters. More importantly Cocks did not directly overrule the decision in Archer in relation to the demand for right of entry.

[108] In Meneling Station Pty Ltd v. Australasian Meat Industry Employees Union82 (Meneling) the Full Court of the Federal Court dealt with an appeal from a decision by Evatt J imposing penalties with respect to breaches of cl.23(c) of the Northern Territory Meat Processing Award 1984. That sub-clause was in the following terms:

[109] One of the grounds of appeal challenged the validity of sub-clause 23(c). That challenge was based on a statutory amendment relating to right of entry. It was argued that to the extent that cl.23(c) purported to impose conditions going beyond those contemplated by the amended statutory provision it was invalid. The Full Court of the Federal Court in a joint judgment addressed this argument as follows:

[110] The Full Court then considered s.42A, the right of entry provision, and rejected the argument that it placed limitations on the power of the Commission to make an award including a clause such as cl. 23(c).

[111] It is clear from the opening sentences of this passage that the decision in Meneling was made in the context of a concession by counsel that Archer decided that the Commision had the power to make an award in relation to right of entry in the terms referred to and a further concession that the grant of a right to inspect premises where award breaches are suspected and to have access to wage books and time sheets may be made either in settlement of an industrial dispute created by a demand for such a right or as incidental to the settlement of an industrial dispute. No occasion arose for the Court to consider the correctness of Archer.

[112] In Moranbah North Coal (Management) Pty Ltd v. CFMEU85 (Moranbah North) the Full Bench of the Commission was concerned with the nature of the Commission's jurisdiction to make an order pursuant to s.285G in Part IX of the Act. The appellant contended that the member at first instance did not have jurisdiction to make the order that had been made. Section 285G inter alia provides that:

[113] The member at first instance upheld a submission on behalf of the Union that the meaning of the expression industrial dispute in section 4(1) of the Act did not apply to the expression industrial disputes in s.285G. In considering the correctness of this conclusion the Full Bench considered whether a dispute between an employer and an organisation of employees about the matters dealt with in ss.285A to 285F would be a dispute about matters pertaining to the relationship between employers and employees.

[114] In the course of dealing with that question the Full Bench made the following observations about right of entry:

[115] Later in the decision the following passage appears:

[116] It can be seen that the Commission was concerned to characterise the nature of the matters which might arise pursuant to ss.285A to 285F inclusive, and the matter which had arisen in that case pursuant to s.285C, in the course of deciding whether the term industrial dispute in s.285G should be construed in accordance with the statutory definition. The passage should be seen primarily as drawing a general conclusion concerning the nature of the disputes which might arise about the operation of those sections. It may be that the conclusion that all of the matters dealt with in the sections are extraneous to the relevant relationship is inconsistent with the more qualified statement in the opening sentence of the passage and is too general in its expression. Even if that is so it does not detract from the general conclusion that disputes about the operation of the various provisions of Part IX are unlikely to be disputes about matters that pertain to the relevant relationship.

[117] In Re Unilever North Rocks Enterprise Agreement 200388 (Unilever) a Full Bench of the Commission considered whether a right of entry provision pertained to the relevant relationship. Although the principal reasons for decision in that case are inconsistent with Electrolux some elucidation may be gained from the Bench's discussion of this question. In relation to the right of entry clause, which permitted entry to accredited union officials on "genuine union business", the Full Bench stated:

[118] Although Moranbah North and Unilever were concerned with different questions of statutory interpretation much of the legal reasoning was common and in several respects the reasons are in conflict. There is no substantive reference to the earlier decision in the later one. It may be that the Full Bench which decided Unilever thought Moranbah North was irrelevant. On the other hand Unilever was decided in large part without the benefit of argument in support of the decision under appeal and perhaps the Full Bench was simply unaware of the significance of the earlier decision.

[119] In the present case the conflict must be resolved by the application the doctrine of precedent. Archer has never been overruled on the right of entry question. True it is that the law in relation to the statutory concept of matters pertaining to the relationship of employers and employees has been refined and developed and that some views, particularly those expressed in Cocks, suggest that if the case were decided again there might be a different result. Nevertheless we think the better course is to apply the conclusions of Higgins J in Archer on the question of right of entry. In applying Archer we think it should be confined to a right of entry for the purpose of ensuring the observance of the award and other matters related to the employment. We are not persuaded that a right of entry of a general kind, for example, to transact "legitimate union business", pertains to the relevant relationship. On its face such a right extends to matters extraneous to the employment relationship. Notwithstanding the reasoning in Unilever we think it proper to make a distinction between a right of entry which is appropriately qualified and one which is not. A right of entry which is confined to entry for the purposes of investigating and securing compliance with any relevant award, applicable agreement or other matters that pertain to the relations between employers and employees as such may be included in an agreement. A right of entry which is unconfined is capable of being exercised for purposes extraneous to the employment relationship. A right of entry of the latter kind might be used for the purpose of campaigning for union elections or for the purpose of raising the political awareness of union members in relation to a current political issue. It follows, in our view, that a right of entry confined in the fashion we have indicated may be included in an agreement that satisfies the requirements of s. 170LI.

[120] Applying this reasoning we have reached the conclusion that the provision in Schefenacker does not pertain to the relevant relationship, being a right expressed to be for the purpose of conducting legitimate union business. Senior Deputy President O'Callaghan reached the same conclusion for similar although not identical reasons. On the crucial issue of the significance of Archer he was undoubtedly correct.

[121] The provision in Murray Bridge confers a right of entry for the purpose of ensuring the observance of the agreement and awards and orders binding on the union and in our view, in light of the decision in Archer, pertains to the relevant relationship. In Murray Bridge Senior Deputy President O'Callaghan found that while the provision did not pertain it was nevertheless incidental to the relevant relationship. His decision was based on the conclusion that the demand in the log of claims giving rise to the foundation industrial dispute did not pertain to the relevant relationship. Accordingly there was no industrial dispute providing ambit for the right of entry provision in the agreement. The agreement being a Division 3 agreement this finding, if correct, is fatal to the application for certification.

[122] The relevant clause in the log of claims was:

[123] With respect, while we would agree this claim cannot be described as wholly pertaining to the relevant relationship, the claim is not wholly outside the relationship either. The term "Federation business" is capable of including much that pertains to the interests of employees as employees and indeed the interests of employees are specifically referred to. We do not think that we should regard those references as excluding matters that pertain to the relationship between the employer and the employees. As a matter of construction of the claim, it cannot be said to be directed only to matters which are extraneous to the relationship between employers and employees. In our view a demand of that kind can provide the foundation for a provision which pertains to the relevant relationship.

[124] For these reasons we find that the right of entry provision in Murray Bridge is within the ambit of cl.62 of the log of claims. As we have already found that the provision itself pertains to the relevant relationship it follows that the provision is no impediment to the certification of the agreement.

Union Representatives

[125] In this section of our decision we deal with the provisions concerning union representatives in the Schefenacker and Murray Bridge agreements. The provision in Schefenacker is as follows:

[126] The provision in Murray Bridge reads:

[127] Turning first to the provision in Schefenacker, the first sentence of cl.46.2 simply provides for recognition by the employer of the steward role of a particular employee. The provision for mutually agreed time-off for discussions with employees is unexceptional. The purpose of the time off does not take the clause outside the realm of the relevant relationship. The third sentence provides in effect for paid leave for discussion of union business with a union official. Similar considerations apply as to the previous sentence. Clause 46.3 is about the maximum number of stewards. Clause 46.4 facilitates communication between the steward and new employees.

[128] Overall the provision concerns the regulation of the role of an employee who is also the local union representative. It pertains to the relationship between the employer and on the one hand employees who are stewards and on the other hand the other employees, at least insofar as they are union members. This conclusion is reinforced by terms of the dispute settlement provision in the agreement, which give stewards a specific role in the settlement of disputes arising at the workplace.

[129] Senior Deputy President O'Callaghan found that this provision did not pertain to the relevant relationship but was nevertheless incidental to it. With respect, the better view is that the provision does pertain.

[130] Consistently with this conclusion, the provision in the Murray Bridge agreement pertains to the relationship between the employer and its employees covered by the agreement. The question remaining is whether the provision is within the ambit of any relevant dispute. Before the Senior Deputy President the parties relied upon the following demand in the relevant log of claims:

[131] The Senior Deputy President found that the cl.64 did not pertain to the relationship of employers and employees and could not therefore provide ambit for the worksite representation provision in the agreement. With respect we do not see why the demand is not capable of supporting a provision in an award or an agreement which is about workplace representatives and which pertains to the relevant relationship. It is true that the "duties" referred to in the claim are unspecified, but there is no reason to read down the claim so as to refer to duties which are extraneous to the relevant relationship. We refer in this connection to the conclusion we have expressed above concerning cl.62 of the log.

[132] In our view the workplace representatives provision is no obstacle to the certification of the Murray Bridge agreement.

Summary and Outcome of Appeal

[133] Turning first to the appeal in Schefenacker, there are two provisions which do not pertain to the relevant relationship, cl. 43 Payroll Deductions and cl. 46.1 dealing with union right of entry. The only provision in question in La Trobe concerned salary packaging. That provision pertains to the relevant relationship and we see no obstacle to certification. In Murray Bridge we find that each of the provisions in question pertains to the relevant relationship and that there is a finding of industrial dispute which provides a proper foundation for each of the provisions. In the circumstances we shall make orders confirming the decision in Schefenacker and quashing the decision in Murray Bridge. Since we are unaware of the full details of the application for certification in Murray Bridge we shall direct Senior Deputy President O'Callaghan to deal with the application for certification in accordance with this decision.

[134] We announced at the conclusion of the hearing that we intended to quash the decision under appeal in La Trobe and to certify the agreement and to reserve our reasons for decision. We made an order on 23 December 2004 granting leave to appeal from Commissioner Whelan's decision of 24 November, 2004 and quashing her decision.92 We certified the agreement on the same day.93

BY THE COMMISSION

PRESIDENT

Appearances:

R. Niall of counsel for the Australian Nursing Federation.

D. Wade for the Rural City of Murray Bridge.

S. Rothman SC with J.H. Pearce of counsel for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

P. Heywood-Smith QC with Mr A. Lazarentiz of counsel for the Australian Workers' Union.

J. Bourke of counsel for La Trobe University.

L. Rubinstein intervening on behalf of the ACTU.

C. Harris intervening on behalf of the Australian Chamber of Commerce and Industry.

B. O'Donnell intervening on behalf of the Australian Industry Group and the Engineering Employers' Association of South Australia.

R. Bunting solicitor, intervening on behalf of the Minister for Employment and Workplace Relations.

S. Moore of counsel intervening on behalf of the State of Victoria.

K. Bell QC with Mr A. Lawrence of counsel intervening on behalf of the Victorian Hospitals' Industrial Association.

Hearing details:

2004.

Adelaide:

December 20, 21.

1 PR952801, 28 October 2004.

2 PR953628, 24 November 2004.

3 PR952449, 29 October 2004.

4 (2004) 133 IR 49. Note: as at the date of this decision, Electrolux has not been reported in the Commonwealth Law Reports.

5 Workplace Relations Amendment (Agreement Variation) Act 2004, enacted 15 December 2004.

6 [2001] FCA 1600.

7 (2004) 133 IR 49 at para [14].

8 Ibid., at para [80] - [81]

9 ibid., at para [156] - [158].

10 Ibid., at para [239].

11 (1972) 127 CLR 353.

12 1994) 181 CLR 96.

13 Ibid., at para [6].

14 Ibid., at para [16] - [17].

15 Ibid., at para [100]

16 ibid., at para [163]

17 [2001] FCA 1600.

18 (2004) 133 IR 49 at para [97].

19 Ibid., at para [100].

20 Ibid., at para[111].

21 Ibid., at para [17].

22 Ibid., at para [78]-[79].

23 Callinan J implicitly accepted the same distinction. At para [253] his Honour referred to the relationship between "a particular employee and its present and future employer".

24 (2002) 114 IR 62 at para [30] - [32].

25 (2004) 133 IR 49 at para [60].

26 Ibid., at para [245].

27 (1987) 163 CLR 117.

28 Ibid., at 136-7.

29 (2004) 133 IR 49 at para [103].

30 AWU v Energy Developments Limited and Others, Ross VP, Kaufman SDP and Lewin C, PR928057, 21 February 2003 at paras [28] - [32].

31 (2004) 133 IR 49 at para [162].

32 (1952) 86 CLR 34.

33 Ibid., at 40, per Dixon C.J., Webb, Fullagar and Kitto JJ.

34 See Re Alcan (1994) 181 CLR 96 at 104 - 105.

35 (1986) 160 CLR 341 at 353.

36 (1987) 163 CLR 117 at 133-4.

37 (1984) 154 CLR 472.

38 ibid., at 491.

39 ibid., at 493.

40 ibid., at 501 - 502.

41 ibid., at 503.

42 See, for example Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, at para 51.

43 PR952801.

44 (1986) 160 CLR 341 at 355 - 356.

45 PR952449.

46 (1972) 127 CLR 353 at 357.

47 Ibid., at 364 - 366.

48 Ibid., at 360 - 361.

49 R v Galvin and Another; Ex parte Amalgamated Engineering Union, Australian Section (1952) 86 CLR 34 at 40.

50 (2002) 114 IR 62.

51 Ibid., at 68-72.

52 PR952801.

53 ibid.

54 (1968) 121 CLR 313.

55 (1978) 140 CLR 470.

56 Ibid., at 473.

57 Ibid., at 478.

58 PR932348.

59 Ibid., at para [38].

60 PR952801.

61 Print N2389, 27 June 1996.

62 Ibid., at p.7.

63 Ibid., at p.9.

64 Ibid., at pp.8 - 9.

65 See Re Business Equipment Industry (Technical Service) Award 1978 (1988) 26 IR 52; Australian Timber Workers Union v Integrated Forest Products and Others (1989) 35 IR 106; Re Various Northern Territory Awards Print J8371, 2 August 1991; [1991] 8 CAR 49.

66 PR952656.

67 [2004] FCA 1737.

68 Ibid., at para [96] - [97].

69 (1907) 1 CAR 62.

70 Ibid., at 95.

71 ibid.

72 The Australian Tramway Employees Association v The Prahran and Malvern Tramway Trust and Others (1913) 17 CLR 680.

73 Ibid., at 691.

74 Ibid., at 712.

75 (1919) 27 CLR 207.

76 Ibid., at 213.

77 Ibid., at 214.

78 Ibid., at 215

79 ibid., at 216.

80 Ibid., at 216 - 217.

81 Ibid., at 218.

82 (1987) 18 FCR 51.

83 Ibid., at 52.

84 Ibid., at 56.

85 (2000) 103 IR 267 (Giudice J, McIntyre VP, Simmonds C).

86 ibid ., at 273 - 274.

87 Ibid., at 274.

88 PR940027.

89 ibid.

90 C No 31999 of 1990.

91 ibid.

92 AG838123 PR954676.

93 AG838123 PR954673.

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