Commission bans bargaining fees

A RECENT decision by the full bench of the Australian Industrial Relations Commission means that unions will not be able to push for bargaining fees in Federal certified agreements.

The full bench of the commission has also decided that a clause requiring employers to give unions the names and addresses of all of their employees, whether or not they are union members, is not acceptable.

However, the union notification clause can be included as an ancillary to clauses such as those governing redundancy provisions.

On January 10 the full bench of the AIRC held that several agreements containing the bargaining fee and union notification clause could not be certified under the Workplace Relations Act.

A bargaining fee is something that all employees, be they members of the union or not, are required to pay to the union for the union’s efforts to negotiate the agreement on their behalf.

Minter Ellison partner Bruno Di Girolami said this meant that there was a strong argument that unions could no longer ask for a bargaining fee clause to be included in a certified agreement.

“There had been a number of cases before the commission previously where the decision on the bargaining fee clause went either way,” he said.

“However, this is only the commission’s view on it.

“This could be finalised in the High Court.”

Electrolux has applied for special leave to the High Court challenging a decision made in the full court of the Federal Court that allowed bargaining fees to be included in a certified agreement covering the company’s workers.

However, the High Court may not provide a final decision on bargaining fees.

Jackson McDonald partner Greg Smith said the Federal Court’s Electro-lux decision was not directly related to bargaining fees.

“The Federal Court’s decision was related to whether the bargaining period was valid,” he said.

Mr Smith said the High Court might not even consider the issue of bargaining fees.

“The High Court may get to the same decision as the Federal Court, that the bargaining period was valid and not even look at the issue of bargaining fees,” he said.

“It could also decide that the Federal Court got it wrong and send it back to them to decide on the bargaining fee issue.”

Mr Smith said the Federal Court decision in the Electrolux case would not overrule the AIRC’s ruling because the court had not directly considered bargaining fees or the notification clause.

“The Federal Court judges made some comments saying that they thought the bargaining fees were okay but that was not a binding part of the judgement,” he said.

“What the AIRC has said in its decision on bargaining fees is that the Federal Court got it wrong.”

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