Stewart, Andrew; Riley, Joellen --- "Working around Work Choices: Collective Bargaining and the Common Law" [2007] MelbULawRw 35; (2007) 31(3) Melbourne University Law Review 903
[∗] BA, BCL (Oxon); John Bray Professor of Law, The University of Adelaide; Consultant to Piper Alderman.
[†] MA, LLB, PhD (Syd); BCL (Oxon); Professor of Law, Faculty of Law, The University of New South Wales; Consultant to Harmers Workplace Lawyers.
[1] The reforms were introduced by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), the bulk of which took effect on 27 March 2006. Two further sets of amendments were subsequently made: Workplace Relations Legislation Amendment (Independent Contractors) Act 2006 (Cth); Workplace Relations Amendment (A Stronger Safety Net) Act 2007 (Cth). The latter of these represented a significant backdown by the government, in reinstating some measure of protection against workers being asked (or forced) to bargain away certain award entitlements.
[2] For a general overview of the reforms: see, eg, David Peetz, ‘Coming Soon to a Workplace Near You — The New Industrial Relations Revolution’ (2005) 31 Australian Bulletin of Labour 90; Chris Briggs, Australian Centre for Industrial Relations Research and Training, ‘Federal IR Reform: The Shape of Things to Come’ (Report commissioned by Unions NSW, 2005); Joellen Riley and Kathryn Peterson, Work Choices: A Guide to the 2005 Changes (2006); Andrew Stewart, ‘Work Choices in Overview: Big Bang or Slow Burn?’ [2006] ELRRev 3; (2006) 16(2) Economic and Labour Relations Review 25; Sean Cooney, John Howe and Jill Murray, ‘Time and Money under Work Choices: Understanding the New Workplace Relations Act as a Scheme of Regulation’ [2006] UNSWLawJl 12; (2006) 29(1) University of New South Wales Law Journal 215; Jill Murray, ‘Work Choices and the Radical Revision of the Public Realm of Australian Statutory Labour Law’ (2006) 35 Industrial Law Journal 343.
[3] See Andrew Stewart, ‘A Simple Plan for Reform? The Problem of Complexity in Workplace Regulation’ (2005) 31 Australian Bulletin of Labour 210.
[4] The constitutional validity of this legislation was upheld by the High Court in New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1. The scheme applies to all trading, financial and foreign corporations, all Commonwealth agencies and all other employers operating in Victoria or the territories. These are collectively referred to in this article as ‘federal system employers’.
[5] See generally Breen Creighton and Richard Mitchell, ‘The Contract of Employment in Australian Labour Law’ in Lammy Betten (ed), The Employment Contract in Transforming Labour Relations (1995) 129; Andrew Stewart, ‘Redefining Employment? Meeting the Challenge of Contract and Agency Labour’ (2002) 15 Australian Journal of Labour Law 235, 235–7; Richard Johnstone and Richard Mitchell, ‘Regulating Work’ in Christine Parker et al (eds), Regulating Law (2004) 101; Rosemary Owens and Joellen Riley, The Law of Work (2007) ch 5. The ‘definitional’ role of the common law has been enhanced by the Independent Contractors Act 2006 (Cth) s 7, which seeks to prevent the states and territories in certain contexts from deeming or treating workers as ‘employees’ when they are not so regarded at common law: see Joellen Riley, ‘A Fair Deal for the Entrepreneurial Worker? Self‑Employment and Independent Contracting Post Work Choices’ (2006) 19 Australian Journal of Labour Law 246; Andrew Stewart, Piper Alderman, Understanding Independent Contractors (2007) ch 4.
[6] See Joellen Riley, Employee Protection at Common Law (2005) chs 3–5.
[7] See Carolyn Sutherland, ‘Regulating Dismissals: The Impact of Unfair Dismissal Legislation on the Common Law Contract of Employment’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation (2006) 242; Andrew Stewart, ‘Good Faith and Fair Dealing at Work’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation (2006) 579, 587–9.
[8] See, eg, ABC Television, ‘Julia Gillard Talks to the ABC about Industrial Relations’, The 7:30 Report, 17 May 2007 <http://www.abc.net.au/7.30/content/2007/s1926254.htm> .
[9] See, eg, Workplace Policy Division, Australian Mines and Metals Association, ‘Australian Workplace Agreements — A Major Matter for Miners’ (Paper released at the AMMA National Conference, Perth, 22 March 2007) 19–22.
[10] Kevin Rudd and Julia Gillard, ‘Forward with Fairness: Policy Implementation Plan’ (Policy Statement, 28 August 2007) 9–12.
[11] See generally Anthony Forsyth and Carolyn Sutherland, ‘Collective Labour Relations under Siege: The Work Choices Legislation and Collective Bargaining’ (2006) 19 Australian Journal of Labour Law 183; Sean Cooney, ‘Command and Control in the Workplace: Agreement‑Making under Work Choices’ [2006] ELRRev 7; (2006) 16(2) Economic and Labour Relations Review 147; Iain Ross, John Trew and Tim Sharard, Bargaining under Work Choices (2006). It should be noted that we are concerned in this article with collective bargaining, a process that almost invariably involves one or more trade unions. This can be contrasted with the process of making ‘employee collective agreements’ which (as with AWAs) generally involves little real bargaining, but rather a unilateral formulation by management of terms to which a group of workers are prepared to assent: see Chris Briggs and Rae Cooper, ‘Between Individualism and Collectivism? Why Employers Choose Non‑Union Collective Agreements’ (2006) 17(2) Labour and Industry 1. As to ‘employer greenfields agreements’ under s 330 of the WRA, which are made by employers without the formal involvement of any other party, it is a testament to the newspeak that now pervades the WRA that they can even be termed ‘collective agreements’. For discussion of the take‑up of employer greenfields agreements under Work Choices: see David Peetz, ‘Assessing the Impact of “WorkChoices” — One Year On’ (Report to the Department of Innovation, Industry and Regional Development, Victoria, 2007) 25–6; Peter Gahan, ‘Employer Greenfield Agreements in Victoria’ (Research report prepared for the Victorian Office of the Workplace Rights Advocate, 2007).
[12] By contrast, the Trade Practices Act 1974 (Cth) has been amended to make it easier for non‑employed contractors to engage in collective bargaining: see Shae McCrystal, ‘Regulating Collective Rights in Bargaining: Employees, Self‑Employed Persons and Small Businesses’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation (2006) 597; Shae McCrystal, ‘Collective Bargaining by Independent Contractors: Challenges from Labour Law’ (2007) 20 Australian Journal of Labour Law 1; Shae McCrystal, ‘Collective Bargaining and the Trade Practices Act: The Trade Practices Legislation Amendment Act [No 1] 2006 (Cth)’ (2007) 20 Australian Journal of Labour Law 207.
[13] See below n 180 and accompanying text.
[14] See Breen Creighton and Andrew Stewart, Labour Law (4th ed, 2005) 191–4.
[15] For general accounts of these changes: see, eg, Australian Centre for Industrial Relations Research and Training, Australia at Work: Just Managing? (1999) ch 3; Duncan MacDonald, Iain Campbell and John Burgess, ‘Ten Years of Enterprise Bargaining in Australia: An Introduction’ (2001) 12(1) Labour and Industry 1; Andrew Stewart, ‘The AIRC’s Evolving Role in Policing Bargaining’ (2004) 17 Australian Journal of Labour Law 245.
[16] The most recent statistics from the Australian Bureau of Statistics (‘ABS’) show 38.1 per cent of employees as having their pay set by a registered collective agreement: ABS, Employee Earnings and Hours, Australia: May 2006, ABS Catalogue No 6306.0 (2007) 6. Since it is possible to be covered by an agreement but receive higher pay by way of some individual arrangement, this may slightly understate the coverage of such instruments.
[17] As to this kind of ‘layering’ of regulatory instruments: see Joel Fetter and Richard Mitchell, ‘The Legal Complexity of Workplace Regulation and Its Impact upon Functional Flexibility in Australian Workplaces’ (2004) 17 Australian Journal of Labour Law 276; Mark Bray and Peter Waring, ‘“Complexity” and “Congruence” in Australian Labour Regulation’ (2005) 47 Journal of Industrial Relations 1, 3–6; Stewart, ‘A Simple Plan for Reform?’, above n 3, 212–16.
[18] See Mark Wooden, The Transformation of Australian Industrial Relations (2000) 59–65.
[19] See WRA ss 170LI, 170LO–LP (repealed).
[20] See generally Creighton and Stewart, above n 14, 97–104.
[21] [2004] HCA 40; (2004) 221 CLR 309.
[22] Ibid 327–8 (Gleeson CJ), 351–6 (McHugh J), 369–71 (Gummow, Hayne and Heydon JJ).
[23] The Court held that such a clause did not pertain to employment relations, analogising with earlier decisions to the effect that a claim for the deduction of union dues from wages cannot found an industrial dispute: see R v Portus; Ex parte Australia & New Zealand Banking Group Ltd [1972] HCA 57; (1972) 127 CLR 353; Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96 (‘Re Alcan’). The Court’s reasoning has been that ‘although the subject matter [deduction of union dues] pertains to a relationship between employers and employees, it is a relationship involving employees as union members and not at all as employees’: Re Alcan (1994) 181 CLR 86, 107 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[24] See WRA pt VIB div 10A (repealed), introduced by the Workplace Relations Amendment (Agreement Validation) Act 2004 (Cth) sch 1(1). The operation of these provisions in relation to pre‑reform agreements has been preserved by the amended WRA sch 7 cl 2(1)(p). However, any certified agreements (or indeed AWAs) registered between 2 September 2004 and 27 March 2006 are not covered by the pre‑reform WRA provisions. Hence these agreements can be invalidated if found to contain a non‑pertaining clause.
[25] For analysis of the post‑Electrolux case law: see Jason Harris, ‘Federal Collective Bargaining after Electrolux’ [2006] FedLawRw 2; (2006) 34 Federal Law Review 45.
[26] Re Rural City of Murray Bridge Nursing Employees, ANF (Aged Care) — Enterprise Agreement 2004 (2005) 142 IR 289. For further AIRC full bench decisions on the ‘matters pertaining’ issue: see, eg, National Union of Workers; Re Agreement with Exel (Australia) Logistics Pty Ltd (2005) 146 IR 334; Heinemann Electric Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2006) 157 IR 1.
[27] Workplace Relations Amendment (Work Choices) Act 2005 (Cth) sch 1 div 7B.
[28] See Cooney, above n 11; John Howe, ‘“Deregulation” of Labour Relations in Australia: Towards a More “Centred” Command and Control Model’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation (2006) 147.
[29] Stewart, ‘Work Choices in Overview’, above n 2, 35.
[30] Murray, above n 2, 365. See also ibid 35, 52.
[31] WRA s 407(2)(k).
[32] Section 356 was amended by the Workplace Relations Amendment (A Stronger Safety Net) Act 2007 (Cth) sch 4. It now defines ‘prohibited content’ to include a few specified matters, together with any further matters prescribed by regulation. The matters listed in WRA s 356 are taken from the definition of an ‘objectionable provision’ in s 810. The inclusion of such a provision was already treated as prohibited content by WR Regulations ch 2 reg 8.5(7). Even after the amendment, the bulk of what is defined as prohibited content is still to be found in the WR Regulations.
[33] See WR Regulations ch 2 reg 8.7. In line with the post‑Electrolux case law, the regulation specifies that matters of an ‘incidental’, ‘ancillary’ or ‘machinery’ nature may still be included in an agreement, even if they do not satisfy the matters pertaining requirement.
[34] For example, the imposition of conditions on the use of contract labour is now prohibited by WR Regulations ch 2 reg 8.5(1)(h), but was previously found to be a matter capable of pertaining to employment: see, eg, National Union of Workers; Re Agreement with Exel (Australia) Logistics Pty Ltd (2005) 146 IR 334.
[35] WR Regulations ch 2 reg 8.5(1)(a)–(f).
[36] WR Regulations ch 2 regs 8.5(1)(e), (h), (i), (8).
[37] In such a case the variation itself, though not the reasons for making it, is gazetted: see, eg, the notices that appear in the Commonwealth of Australia Gazette, No GN23, 13 June 2007, 1592–4.
[38] Action is not protected if taken in support of the inclusion of prohibited content in an agreement: WRA s 436. See also Heinemann Electric Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2006) 157 IR 1. The issue may also arise in connection with an application for a protected action ballot order: see below nn 68–81 and accompanying text.
[39] Pre‑reform WRA s 45(1)(e).
[40] Under the ‘fairness test’ introduced by the Workplace Relations Amendment (A Stronger Safety Net) Act 2007 (Cth), most agreements require review to determine whether ‘fair compensation’ has been provided for the exclusion or modification of ‘protected award conditions’, and may be rescinded if they do not: see WRA pt 8 div 5A. There is no such requirement in relation to prohibited content.
[41] WRA s 357(2). Note though that this protects only the employer, not anyone else (including individual managers, union officials and even lawyers or consultants) who may have been involved in drafting the agreement.
[42] See, eg, Workplace Express, Employer Fears on Prohibited Content Slowing down Bargaining, Unions Claim (21 September 2006) Workplace Express <http://www.workplaceexpress.com.au/> .
[43] See, eg, Submission to Senate Employment, Workplace Relations and Education Legislation Committee, Parliament of Australia, Inquiry into the Provisions of the Workplace Relations Amendment (A Stronger Safety Net) Bill 2007, 2007, Submission No 8, 14 (Cath Bowtell, Australian Council of Trade Unions).
[44] See Senate Standing Committee on Employment, Workplace Relations and Education, Parliament of Australia, Workplace Relations Amendment (A Stronger Safety Net) Bill 2007 (2007) [2.59]–[2.60], [2.83]–[2.89], [3.37]–[3.39], [4.25]–[4.27], [5.16], [6.17]–[6.18], noting similar concerns about the potential for inconsistent and unaccountable decision‑making by the Workplace Authority under the new ‘fairness test’.
[45] Cf pre‑reform agreements involving excluded (non‑federal system) employers which have a maximum duration of five years: WRA sch 7 pt 2 div 2.
[46] See WRA sch 7 cl 8.
[47] WRA sch 7 cl 30, sch 8 cl 15E. As originally drafted, these provisions ensured that the entitlements in the Australian Fair Pay and Conditions Standard would not apply at all to workers who remained covered by a pre‑reform federal agreement or a preserved state agreement. In December 2006, however, they were amended with retrospective effect by the Workplace Relations Legislation Amendment (Independent Contractors) Act 2006 (Cth) sch 6(41), (45). As they now stand, their precise effect is difficult to gauge, as it is unclear just how extensively an agreement must deal with a ‘matter’ before the Standard is excluded.
[48] See WRA s 172; WR Regulations ch 2 reg 7.1.
[49] See also ABS, above n 16, 6 which reveals that in May 2006, 3.1 per cent of employees were paid in accordance with an unregistered collective agreement. This measure would tend to understate the prevalence of such arrangements, since it would not include a side agreement operating in conjunction with a registered agreement that dealt with wage rates.
[50] Under the Australian Procurement and Construction Council, National Code of Practice for the Construction Industry (1997), companies are ineligible to work on Commonwealth‑funded projects unless they comply with the Code and its attendant Guidelines in relation to all of their construction work, whether Commonwealth‑funded or not. In November 2006, the Guidelines were revised to provide that a company will not be Code‑compliant if it enters into an unregistered agreement that deals with matters that would be prohibited content if included in a workplace agreement: see Department of Employment and Workplace Relations, Australian Government, Implementation Guidelines for the National Code of Practice for the Construction Industry (2006) s 8.1.2. The revision was made without prior warning and caused consternation for parties who had already negotiated such agreements: see Workplace Express, Bargaining Chaos, as Government Shifts Construction Code Goal Posts — Again (9 November 2006) Workplace Express <http://www.workplaceexpress.com.au/> . See also Anthony Forsyth et al, Workplace Relations in the Building and Construction Industry (2007) ch 3.
[51] See, eg, Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd (Unreported, Australian Industrial Relations Commission, Lawler V‑P, 19 October 2006) [23]–[24], where the union was recorded as seeking ‘a “gentleman’s agreement” — a matter of honour — rather than a legally enforceable agreement.’
[52] [2004] HCA 40; (2004) 221 CLR 309, 353 (McHugh J), 368 (Gummow, Hayne and Heydon JJ).
[53] [2001] HCA 16; (2001) 203 CLR 645.
[54] Ibid 658 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
[55] WRA ss 340, 342(1).
[56] WRA s 347(1).
[57] (1995) 185 CLR 410.
[58] Ibid 418–20 (Brennan CJ, Dawson and Toohey JJ), 456–7 (McHugh and Gummow JJ).
[59] For a critical analysis of the decision: see Creighton and Stewart, above n 14, 312–15.
[60] See Qantas Airways Ltd v Christie (1998) 193 CLR 280, 337–8 (Kirby J); ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325; (2002) 127 FCR 1, 17–18 (Whitlam and Gyles JJ); Hogan v Employment National (Administration) Pty Ltd (2002) 119 IR 59, 116–17 (Haylen J). For a recent illustration of the need to view registered agreements and employment contracts as separate sources of obligations: see Minister for Employment and Workplace Relations v Community and Public Sector Union (Unreported, Australian Industrial Relations Commission, Lawler V‑P, Hamberger SDP and Tolley C, 12 June 2007).
[61] [2001] HCA 16; (2001) 203 CLR 645, 658 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
[62] [2005] FCAFC 46; (2005) 142 FCR 105. See also Creighton and Stewart, above n 14, 315–16. Cf Fetter and Mitchell, above n 17, 278, 287.
[63] Emphasis added.
[64] (Unreported, Australian Industrial Relations Commission, Lawler V‑P, 13 October 2006).
[65] Ibid [10]. See also Re Educang Certified Agreement 2002 (Unreported, Australian Industrial Relations Commission, Richards SDP, 20 September 2006) where it was clearly assumed that an unregistered agreement was not to be regarded as a ‘workplace agreement’ for the purposes of the WRA.
[66] As to the differences between WRA s 496 and the provision it replaced, s 127 of the pre‑reform WRA: see Ross, Trew and Sharard, above n 11, ch 7.
[67] As to the torts that are almost invariably committed in the course of industrial action: see Creighton and Stewart, above n 14, 561–72. Section 166A of the pre‑reform WRA, which in at least some instances required a certificate from the AIRC before the commencement of tort proceedings, was repealed by the Work Choices amendments: Workplace Relations Amendment (Work Choices) Act 2005 (Cth) s 71.
[68] An order can be sought under WRA s 451.
[69] See Shae McCrystal, ‘Smothering the Right to Strike: Work Choices and Industrial Action’ (2006) 19 Australian Journal of Labour Law 198, 203–4; Ross, Trew and Sharard, above n 11, ch 6; Graeme Orr and Suppiah Murugesan, ‘Mandatory Secret Ballots before Employee Industrial Action’ (2007) 20 Australian Journal of Labour Law 272.
[70] WRA s 445.
[71] WRA s 461(1)(a), (b).
[72] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Kempe Engineering Services Pty Ltd t/as Kempe Manufacturing & Engineering Services (Unreported, Australian Industrial Relations Commission, Acton SDP, 8 August 2006) [24]. It may be different, however, where the content is not ‘clearly’ prohibited but merely of doubtful validity: see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tyco Australia Pty Ltd (2006) 157 IR 15, 21 (Giudice J, Lawler V‑P and Williams C); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Group Ltd (Unreported, Australian Industrial Relations Commission, Simmonds C, 9 May 2007).
[73] (Unreported, Australian Industrial Relations Commission, Acton SDP, 11 July 2006).
[74] (Unreported, Australian Industrial Relations Commission, Lawler V‑P, 13 October 2006).
[75] Ibid [13]. See also Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd (Unreported, Australian Industrial Relations Commission, Lawler V‑P, 19 October 2006).
[77] Transcript of Proceedings, United Firefighters’ Union of Australia v Country Fire Authority (Australian Industrial Relations Commission, Foggo C, 17 August 2006).
[78] United Firefighters’ Union of Australia v Country Fire Authority (2006) 158 IR 120, 135 (Watson V‑P, Lacy SDP and Hingley C) (emphasis added).
[79] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Amcor Packaging (Australia) Pty Ltd (Unreported, Australian Industrial Relations Commission, Harrison C, 6 December 2006) [34]. See also Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v CSBP Ltd (Unreported, Australian Industrial Relations Commission, Drake SDP, 20 April 2007) [64]. This is not to say that a party may continually ‘shift the goalposts’ in negotiations: see, eg, Liquor, Hospitality and Miscellaneous Union — Western Australian Branch v CSBP Ltd (Unreported, Australian Industrial Relations Commission, McCarthy DP, 15 June 2007).
[80] See, eg, National Union of Workers v Blue Circle Transport Pty Ltd (Unreported, Australian Industrial Relations Commission, Watson V‑P, 11 August 2006); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tyco Australia Pty Ltd (2006) 157 IR 15; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Mayfield Engineering Pty Ltd t/as Metlabs (Unreported, Australian Industrial Relations Commission, Acton SDP, 21 November 2006).
[81] See, eg, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Amcor Packaging (Australia) Pty Ltd t/as Amcor Cartons Australasia (Unreported, Australian Industrial Relations Commission, Harrison C, 6 December 2006).
[82] Electrolux [2004] HCA 40; (2004) 221 CLR 309, 353 (McHugh J), 368 (Gummow, Hayne and Heydon JJ); Private Arbitration Case [2001] HCA 16; (2001) 203 CLR 645, 658 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
[83] [1935] HCA 79; (1935) 54 CLR 387.
[84] See above n 23. As noted in Construction, Forestry, Mining and Energy Union v Ulan Coal Mines Ltd (Unreported, Australian Industrial Relations Commission, Lawler V‑P, 13 October 2006) [12], there is nothing ‘intrinsically evil’ about such arrangements.
[85] See Wilson v Darling Island Stevedoring & Lighterage Co Ltd [1956] HCA 8; (1956) 95 CLR 43; Coulls v Bagot’s Executor & Trustee Co Ltd [1967] HCA 3; (1967) 119 CLR 460. See generally J W Carter, Elisabeth Peden and G J Tolhurst, Contract Law in Australia (5th ed, 2007) ch 16.
[86] WRA ss 340(2), 351(b).
[87] See, eg, WRA sch 1 cl 27.
[88] See Carter, Peden and Tolhurst, above n 85, ch 6.
[89] Ibid 111–12.
[90] See R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (4th ed, 2002) 242–3.
[91] [1996] VicRp 67; [1996] 2 VR 235.
[92] The agreements, made in 1991, could have been registered under the Industrial Relations Act 1979 (Vic), which was in force until 1 March 1993.
[93] Liquidators are ‘officers’ for the purpose of Corporations Act 2001 (Cth) s 9 and are thereby subject to the duty of care in s 180. Section 180 is a ‘civil penalty provision’ (s 1317E), and a breach can give rise to an order for compensation to the company under s 1317H. Liquidators may also be removed for misdirecting payments. Sections 473(1) and 503 allow the court to remove a liquidator for ‘cause’, which includes breach of the duty of care: see Andrew R Keay, McPherson’s Law of Company Liquidation (4th ed, 1999) 313. For a case involving termination payments to employees: see City & Suburban Pty Ltd v Smith (as liquidator of Conpac (Aust) Pty Ltd (in liq)) [1998] FCA 822; (1998) 28 ACSR 328, 334–6 (Merkel J).
[94] In Markwick v Hardingham [1880] UKLawRpCh 237; (1880) 15 Ch D 339, 349, James LJ stated: ‘the relation of principal and agent requires the consensus of both parties’. See generally G E Dal Pont, Law of Agency (2001) 91–3. The principal may be held to have ostensibly authorised an agent by holding the agent out as one authorised: see Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480, 505 (Diplock LJ). However, the doctrine of ostensible authority still requires the existence of a principal at the time of the agent’s act.
[95] Ryan [1996] VicRp 67; [1996] 2 VR 235, 239 (Brooking JA).
[96] Ibid.
[97] See Ibid 270–1 (Hayne JA).
[98] Ibid 251.
[99] Assuming that is their intention: cf Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd (Unreported, Australian Industrial Relations Commission, Lawler V‑P, 19 October 2006).
[100] See Law of Property Act 2000 (NT) s 56; Property Law Act 1974 (Qld) s 55; Property Law Act 1969 (WA) s 11. Notwithstanding the statutes in which they are contained, these provisions can each apply to contracts that do not involve an interest in property.
[101] See Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107, where the High Court was prepared to create such an exception, but only in relation to insurance contracts. A number of judges appeared to lay the groundwork for the development of a more general exception, but this has not to date eventuated: see Carter, Peden and Tolhurst, above n 85,
332–5.
[102] See WRA s 356; WR Regulations ch 2 reg 8.5.
[103] Cf the features of the registered collective agreements at the University of Western Australia which Terence Quickenden sought to establish were not binding on him: Re National Tertiary Education Industry Union; Ex parte Quickenden [1996] HCA 33; (1996) 140 ALR 385; Quickenden v O’Connor [2001] FCA 303; (2001) 109 FCR 243.
[104] WR Regulations ch 2 reg 8.5(5).
[105] See Dal Pont, above n 94, 91–3. Even ratification of the act of an agent is impossible unless the agent purported to act for the principal at the time of the act: see at 113–14. See also Keighley, Maxsted & Co v Durant [1901] UKLawRpAC 21; [1901] AC 240.
[106] See McPhail v Doulton [1970] UKHL 1; [1971] AC 424. According to J D Heydon and M J Leeming, the criterion certainty test expounded by the House of Lords in this case ‘has come to be regularly applied in Australia and New Zealand and should be taken to represent the law’: J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (7th ed, 2006) 68.
[107] See Perpetuities Act 1984 (NSW) s 7. For other jurisdictions: see Perpetuities and Accumulations Act 1985 (ACT) s 8; Law of Property Act 2000 (NT) s 187; Property Law Act 1974 (Qld) s 209; Law of Property Act 1936 (SA) ss 61–2; Perpetuities and Accumulations Act 1992 (Tas) s 6; Perpetuities and Accumulations Act 1968 (Vic) s 5; Property Law Act 1969 (WA) s 101.
[108] Carter, Peden and Tolhurst, above n 85, 325 (citations omitted). See also Heydon and Leeming, above n 106, 22–4.
[109] Discussion following presentation by Joellen Riley, ‘Commercial Law Remedies for Workplace Problems’ (Speech delivered for Unions NSW, Trades Hall, Sydney, April 2006).
[110] Cf Ellenbogen v Federated Municipal and Shire Council Employees’ Union of Australia, NSW Division (1986) 14 IR 381, rejecting the argument that a union owes a legal obligation to its members to institute legal action on their behalf. However, no trust was involved in that case.
[111] See Heydon and Leeming, above n 106, 22.
[112] The union’s discretion lay in whether to notify a dispute over unfair dismissal to an industrial tribunal. In NSW, this ‘gatekeeper’ role was so jealously guarded by unions that it took a Liberal government to introduce a right for individual employees to lodge their own unfair dismissal claims: see Andrew Stewart, ‘A Quiet Revolution: Unfair Dismissal in New South Wales’ (1992) 5 Australian Journal of Labour Law 69, 70–1.
[113] Heydon and Leeming, above n 106, 67.
[114] A trust cannot burden a beneficiary, because a burdensome obligation is not property, and therefore cannot be the subject of a trust. ‘There can be no trust without property’: Heydon and Leeming, ibid.
[115] For example, the Industrial Relations Court of SA and the WA Industrial Relations Commission both have jurisdiction over certain contractual claims: see Fair Work Act 1994 (SA) s 14(a); Industrial Relations Act 1979 (WA) ss 7(1)(a), 29(1)(b)(ii). There is some doubt, however, as to whether this jurisdiction may now be exercised in relation to federal system employers: see the contrasting views expressed in Smith v Albany Esplanade Pty Ltd t/as The Esplanade Hotel [2007] WAIRC 00192 (Unreported, Smith SC, 2 March 2007) and Armanini v Transfield Services (Australia) Pty Ltd (2007) 162 IR 432. Proposals to amend the WA legislation to address this problem are currently before Parliament: Industrial and Related Legislation Amendment Bill 2007 (WA); Contractual Benefits Bill 2007 (WA).
[116] See, eg, Beswick v Beswick [1967] UKHL 2; [1968] AC 58; Silver v Dome Resources NL [2007] NSWSC 455 (Unreported, Hamilton J, 9 May 2007).
[117] See James Crawford and Brian Opeskin, Australian Courts of Law (4th ed, 2004) 112–13.
[118] This is also a problem with the enforcement of awards or registered collective agreements, though at least there the WRA and its state equivalents provide the deterrent of penalties for those who breach non‑monetary obligations: see Creighton and Stewart, above n 14, 267–8.
[119] See I C F Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (7th ed, 2007) 103–9, 119–25, 598–604.
[120] Though note that where the union has entered into the agreement as a trustee, it may seek to recover damages on behalf of an employee‑beneficiary. In such a case, the loss to be assessed is that of the beneficiary. Once recovered, the damages will themselves be held on trust for the beneficiary, and must be paid over on request: see Coulls v Bagot’s Executor and Trustee Co Ltd [1967] HCA 3; (1967) 119 CLR 460, 501–2 (Windeyer J).
[121] See Carter, Peden and Tolhurst, above n 85, 871–80.
[122] Indeed they are required by s 353 of the WRA. As to the impact of the Work Choices reforms on dispute resolution under the WRA: see A Forsyth, ‘Dispute Resolution under WorkChoices: The First Year’ (2007) 18(1) Labour and Industry 21.
[123] See Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (2nd ed, 2002) 96–102.
[125] Ibid 467 (Giudice J, Lawler V‑P and Raffaelli C).
[126] Ibid 468 (Giudice J, Lawler V‑P and Raffaelli C).
[127] Ibid 470 (emphasis added), citing Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation (2003) 128 IR 385, 393 (Giudice J, Harrison SDP and Simmonds C); Charles Sturt University v National Tertiary Education Union (2005) 145 IR 319, 324 (Lawler V‑P, O’Callaghan SDP and Harrison C).
[128] See Private Arbitration Case [2001] HCA 16; (2001) 203 CLR 645, 658 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
[129] Likewise, in relation to a post‑Work Choices agreement the AIRC may conduct a dispute resolution process only to the extent that it is specifically authorised by the agreement, and then only in accordance with the terms of WRA pt 13 div 5. It is possible, however, that an agreement may now validly confer on the AIRC a power to resolve disputes over matters that go beyond the application of the agreement: see Ross, Trew and Sharard, above n 11, 54–5, noting the difference in wording between pre‑reform WRA s 170LW and the current WRA s 353(1), though the matter is not perhaps as clear as the authors seem to suggest.
[130] Industrial Relations Reform Act 1993 (Cth).
[131] Both the Conciliation and Arbitration Act 1904 (Cth) s 4, and the subsequent Industrial Relations Act 1988 (Cth) s 4(1), included in the definition of industrial dispute a requirement that it extend ‘beyond the limits of any one State’.
[132] See J O’Donovan, ‘Reinstatement of Dismissed Employees by the Australian Conciliation and Arbitration Commission: Jurisdiction and Practice’ (1976) 50 Australian Law Journal 636,
639–40.
[133] See Helen Forbes‑Mewett, Gerard Griffin and Don McKenzie, ‘The Australian Industrial Relations Commission: Adapting or Dying?’ (2003) 11 International Journal of Employment Studies 1; Forsyth, above n 122.
[134] [1992] FCA 397; (1992) 37 FCR 419.
[135] Ibid 421–2 (Heerey J).
[136] Ibid 428 (Heerey J).
[137] Ibid 424–6.
[138] Ibid 427 (Heerey J).
[139] Ibid 427–8.
[140] Ibid 426.
[141] Tasmania also permits a form of ‘private arbitration’ of industrial disputes by its Industrial Commission: see Industrial Relations Act 1984 (Tas) s 61. However, this provision predates the Work Choices reforms and does not require a formal agreement by the parties, merely a joint request to the President. Section 61 has been amended by Industrial Relations Amendment Act 2007 (Tas) s 9, allowing private conciliation as an alternative to arbitration.
[142] Industrial Relations Act 1996 (NSW) s 146A, amended by the Industrial Relations Amendment Act 2006 (NSW) s 3, sch 1(3).
[143] Industrial Relations Act 1999 (Qld) s 273A, amended by the Industrial Relations Act and Other Legislation Amendment Act 2007 (Qld) s 25.
[144] Commercial Arbitration and Industrial Referral Agreements Act 1986 (SA) sch 1. This Act, formerly known as the Commercial Arbitration Act 1986 (SA), was amended and renamed by the Statutes Amendment (Public Sector Employment) Act 2006 (SA) pt 8.
[145] See also Industrial Relations Act 1996 (NSW) s 146B; Industrial Relations Act 1984 (Tas) s 19A, which authorise the NSW and Tasmanian Commissions respectively to perform dispute resolution processes under either a federal workplace agreement or the ‘model dispute resolution process’ in WRA pt 13 div 2 where selected by the parties concerned.
[146] Employment Dispute Resolution Bill 2007 (WA).
[147] Commercial Arbitration and Industrial Referral Agreements Act 1986 (SA) sch 1 cl 2(6).
[148] Commercial Arbitration and Industrial Referral Agreements Act 1986 (SA) sch 1 cl 2(10).
[149] The parties can provide for a right of appeal to the full bench of the NSW Industrial Relations Commission under Industrial Relations Act 1996 (NSW) s 146A(9). As to the nature of such an appeal: see Australian Workers’ Union v Bluescope Steel (AIS) Pty Ltd [2006] NSWIRComm 318; (2006) 157 IR 93.
[150] Industrial Relations Act 1999 (Qld) s 273A(5).
[151] Industrial Relations Act 1996 (NSW) s 146A(4)(b); Commercial Arbitration and Industrial Referral Agreements Act 1986 (SA) sch 1 cl 2(1)(c). A referral agreement under s 273A of the Industrial Relations Act 1999 (Qld) may deal with an ‘industrial dispute’, which is defined in sch 5 to mean a dispute over an ‘industrial matter’. That term is in turn defined broadly enough in s 7 to include a dispute over a dismissal.
[152] See Anna Chapman, ‘Unfair Dismissal Law and Work Choices: From Safety Net Standard to Legal Privilege’ [2006] ELRRev 11; (2006) 16(2) Economic and Labour Relations Review 237; Marilyn J Pittard, ‘Fairness in Dismissal: A Devalued Right’ in Julian Teicher, Rob Lambert and Anne O’Rourke (eds), WorkChoices: The New Industrial Relations Agenda (2006) 74.
[153] See WR Regulations ch 2 reg 8.5(5).
[154] Australian Workers Union v BlueScope Steel (AIS) Pty Ltd [2007] NSWIRComm 1029 (Unreported, Connor C, 5 June 2007) [3].
[155] At the time of writing, the most recent was Abbott v BlueScope Steel (AIS) Pty Ltd [2007] NSWIRComm 1097 (Unreported, Connor C, 19 December 2007).
[156] WRA s 4(1).
[157] See, eg, Australian Workers Union v Australian Steel Mill Services Pty Ltd [2006] NSWIRComm 1141 (Unreported, Connor C, 6 October 2006); Re Inquiry into Matter Relating to Availability of Work at Tristar Steering & Suspension Australia Ltd (2007) 161 IR 50. The Commission has taken a similarly broad view of the scope of the exclusions in WRA s 16(2), (3): see, eg, Re Transport Industry — Mutual Responsibility for Road Safety (State) Award and Contract Determination [No 2] [2006] NSWIRComm 328; (2006) 158 IR 17; cf Endeavour Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2007] FCAFC 177 (Unreported, Ryan, Moore and Mansfield JJ, 22 November 2007). WR Regulations ch 2 reg 1.2(2) has also been interpreted broadly, preserving the operation of state laws relating to pre‑Work Choices matters: see, eg, Skilltech Consulting Services Pty Ltd v Australian Workers’ Union (NSW) (2007) 160 IR 73.
[158] Cf Australian Workers Union v BlueScope Steel Pty Ltd [2007] NSWIRComm 1088 (Unreported, Connor C, 3 December 2007), where Commissioner Connor was prepared to accept that while the Commission could take jurisdiction under a referral agreement, it could not exercise that jurisdiction in such a way as to vary a preserved state agreement that had effect as a federal instrument under WRA sch 8.
[159] New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1, 166 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
[160] [2007] FCAFC 50; (2007) 158 FCR 104.
[161] Ibid 114–15. See also the reasoning at 107–8 (Kiefel J), 109–10 (Gyles J).
[162] See, eg, WRA s 97; Industrial Relations Act 1996 (NSW) sch 2 cls 7–8; Industrial Relations Act 1999 (Qld) s 337; Fair Work Act 1994 (SA) s 44.
[163] [2005] HCA 34; (2005) 227 CLR 166.
[164] Ibid 185, quoting Re McC (A Minor) [1985] AC 528, 540 (emphasis added).
[165] Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166, 226 (emphasis added) (citations omitted).
[166] See Commercial Arbitration Act 1986 (ACT); Commercial Arbitration Act 1984 (NSW); Commercial Arbitration Act 1985 (NT); Commercial Arbitration Act 1990 (Qld); Commercial Arbitration and Industrial Referral Agreements Act 1986 (SA); Commercial Arbitration Act 1986 (Tas); Commercial Arbitration Act 1984 (Vic); Commercial Arbitration Act 1985 (WA). In the case of the SA Act, the reference here is to the main part of the statute, as opposed to the recently added provisions in sch 1 which have already been discussed. It is possible though that if sch 1 causes the Act to be regarded as a ‘State or Territory industrial law’ for the purpose of the exclusion in WRA s 16(1)(a), then the rest of the statute is likewise precluded from applying to arbitration agreements made by federal system employers. The exclusion in WRA s 16(1)(a) should not affect the other Commercial Arbitration Acts, since none of them can be said to have a ‘main purpose’ of ‘regulating workplace relations’: see WRA s 4(1) definition of ‘State or Territory industrial law’.
[167] Commercial Arbitration Act 1986 (ACT) s 2; Commercial Arbitration Act 1984 (NSW) s 4(1); Commercial Arbitration Act 1985 (NT) s 4(1); Commercial Arbitration Act 1990 (Qld) s 4; Commercial Arbitration and Industrial Referral Agreements Act 1986 (SA) s 4(1); Commercial Arbitration Act 1986 (Tas) s 4(1); Commercial Arbitration Act 1984 (Vic) s 4(1); Commercial Arbitration Act 1985 (WA) s 4(1).
[168] For a general discussion of the Commercial Arbitration Acts: see Astor and Chinkin, above n 123, 298–311. See also Ross, Trew and Sharard, above n 11, 57–9.
[169] Commercial Arbitration Acts s 38.
[170] Commercial Arbitration Acts s 10.
[171] Commercial Arbitration Acts s 17.
[172] Commercial Arbitration Acts s 18.
[173] ‘Misconduct’ is uniformly defined: see Commercial Arbitration Act 1986 (ACT) s 2; Commercial Arbitration Act 1984 (NSW) s 4(1); Commercial Arbitration Act 1985 (NT) s 4(1); Commercial Arbitration Act 1990 (Qld) s 4; Commercial Arbitration and Industrial Referral Agreements Act 1986 (SA) s 4(1); Commercial Arbitration Act 1986 (Tas) s 4(1); Commercial Arbitration Act 1984 (Vic) s 4(1); Commercial Arbitration Act 1985 (WA) s 4(1).
[174] Commercial Arbitration Acts s 42.
[175] Commercial Arbitration Acts s 44.
[177] See WRA s 18(1), which provides that WRA s 16 is ‘not a complete statement of the circumstances’ in which inconsistency may arise between the Act and a state or territory law.
[178] A deficiency especially notable in the case of the Commercial Arbitration and Industrial Referral Agreements Act 1984 (SA), which says nothing about the relationship of the new sch 1 to the remainder of the Act.
[179] [2004] HCA 40; (2004) 221 CLR 309.
[180] Kevin Rudd and Julia Gillard, ‘Forward with Fairness: Labor’s Plan for Fairer and More Productive Australian Workplaces’ (Policy Statement, 28 April 2007) 13–15.
[181] See Julia Gillard, ‘Howard’s IR Policy an Unfair Mess’ (Press Release, 8 May 2007).