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[2003] AIRC 988
procedural. The Commission certified the Liquorland Hotels Agreement 2003 with effect from 14 August 2003; the agreement is to operate in accordance with its terms and remain in force until 31 March 2006....
The Australian Industrial Relations Commission reviewed the Liquorland Hotels Agreement 2003 after raising concerns in a prior decision about whether a clause might improperly influence employees' freedom of association at recruitment. The employer companies and the union provided written undertakings (including documentary proof) that recruitment materials would not mislead prospective employees about union membership, clarified the geographical application ('Southeast Queensland') by reference to an existing award definition, lodged required statutory declarations, and gave a binding undertaking protecting supported wage employees. On this basis the Commission was satisfied the agreement met statutory requirements and certified it, operative until 31 March 2006.
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2 cited instruments linked from this judgment.
Liquorland (Australia) Pty Ltd and Liquorland (QLD) Pty Ltd (both Coles Myer subsidiaries) applied with the Australian Liquor, Hospitality and Miscellaneous Workers Union (LHMU) for certification of the Liquorland Hotels Agreement 2003 under Division 2 of Part VIB of the Workplace Relations Act 1996. The Commission had earlier expressed concerns in a related decision (PR935354) about the agreement's operation, particularly clause 43 and its effect on freedom of association under Part XA of the Act. The Commission directed the parties to provide further material and undertakings within 21 days (see [5]).
The matter was heard by video link on 14 July 2003, with appearances recorded and statutory declarations lodged (see [3], [4]). The Commission asked the parties to address: (1) undertakings required to satisfy s170LV(1)(a) so far as relevant to s170LU(2A) (freedom of association); (2) the definition and practical application of the agreement to 'Southeast Queensland'; (3) lodgement of statutory declarations to meet evidentiary requirements; and (4) an undertaking relating to the Supported Wages System (see [5]).
The parties supplied written undertakings: notably, they agreed that no prospective employee would be misled into believing employment depended on becoming or not becoming an LHMU member, and that documentation would clearly express that undertaking (see [6]). They also clarified that the phrase 'Southeast Queensland' was intended to carry the same meaning as clause 5.3 of the Hospitality Industry Award 1998 (see [14]). The companies gave a specific undertaking that Appendix A (Supported Wages System) would be applied so that no covered employee would be worse off than under the Commission's test case award provision (see [17]). The Commission inspected recruitment forms and policies (see [7]) and accepted the statutory declarations as satisfying the evidentiary rules (see [16]).
On the basis of those undertakings and materials, the Commission concluded Clause 43 did not contravene s170LU(2A) and was satisfied the agreement met the Act's requirements. The Commission certified the agreement effective 14 August 2003 and fixed its operation until 31 March 2006 (see [11], [18], [19]).
The central statutory concern was Part XA of the Workplace Relations Act 1996, specifically s170LU(2A), which prohibits terms that have the effect of forcing employees to join an organisation. The Commission's task in certification is to be "satisfied" as to the effect of agreement terms. Where there is doubt about the practical effect, the Commission may require further material and may accept undertakings under s170LV(1)(a) to address the concern (see [5], [11], [12]).
This Commission followed that approach. It required and received explicit undertakings from the parties that focused on the recruitment point, the critical moment when union-related clauses could have coercive effect if recruitment documentation or oral statements implied that employment depended on union membership. The undertakings were both preventive (no misleading statements) and documentary (document forms and policies to make the undertaking clear). The Commission scrutinised the materials that would be presented to prospective employees (see [6], [7]).
The Commission treated prior decisions and commentary (including the quoted material attributed to McCarthy DP and Senior Deputy President Polites reproduced in [9]) as establishing the proper boundary: facilitation and encouragement of union membership is permissible, but not where it has the effect, directly or indirectly, of forcing membership. The Commission applied that standard to the evidence and accepted that, with the undertakings, Clause 43 would not have the prohibited effect (see [9], [11]).
On the geographic scope point, the parties had a jointly understood meaning for 'Southeast Queensland' by direct reference to an existing award definition (Hospitality Industry Award, clause 5.3). The Commission considered that joint, pre-existing understanding sufficient to render the term workable for certification without amendment (see [14], [15]).
Finally, the Supported Wages System was addressed by an express undertaking that no employee covered under Appendix A would be worse off than under the Commission's test case award provision. The Commission accepted that undertaking (see [17]).
Taken together, undertakings on recruitment and supported wages, documentary evidence, and statutory declarations, satisfied the Commission as to both substantive and procedural requirements for certification, leading to certification and an operative period up to 31 March 2006 (see [18], [19]).
Before: The Commission's earlier decision (PR935354) reflected concern that clauses relating to union recognition or promotion at recruitment could, in practice, have coercive effects contrary to Part XA, and that the Commission must be satisfied as to the "effect" of such clauses when certifying an agreement (see [2], [10], [12]). Prior authorities, notably McCarthy DP and Senior Deputy President Polites, were cited as establishing the correct test: facilitation or encouragement of union membership is permissible unless it has the effect of forcing membership (see [9]).
After: This decision confirms the Commission's practical approach when faced with borderline or potentially problematic clauses. Where parties can provide clear, binding undertakings and documentary proof that recruitment practices will not mislead prospective employees about union membership, the Commission may accept those undertakings as resolving the Part XA concern and certify the agreement. It also clarifies that a commonly understood geographic term, aligned with an award definition, will not preclude certification where the parties share and have historically acted on that understanding (see [11], [14], [15]).
Thus, the decision demonstrates an administrative pathway: implement targeted undertakings and documentary safeguards to meet the Commission's satisfaction on the effect of sensitive clauses, rather than insisting on amendment or refusing certification outright.
Paragraph [6] (undertaking): Text: "no prospective employee will be misled ... into believing that employment ... is dependent upon becoming or not becoming a member of the ... LHMU;" Plain-English: The employer and union promise that recruitment will not give the impression that joining or not joining the union affects hiring decisions.
Paragraph [11]: Text: "the Commission ... is satisfied ... that the operation of Clause 43 ... does not now contravene section 170LU(2A) of the Act." Plain-English: Given the undertakings and materials, the Commission finds Clause 43 does not break the law protecting freedom of association.
Paragraph [12]: Text: "Where the Act requires the Commission to be 'satisfied' ... the Commission may take steps to indeed satisfy itself as part of the certification process ..." Plain-English: The Commission has the power to seek evidence and undertakings to ensure it can lawfully certify an agreement.
Paragraph [17] (Supported Wages undertaking): Text: "The Companies undertake ... to apply Appendix A ... that ensures that no employee covered by it ... will be worse off than ... the Commission's test case award provision ..." Plain-English: The companies promise supported-wage employees will receive at least the minimum protections set by the Commission's test case award.
Paragraph [19] (disposition): Text: "The Commission therefore indicates that the agreement will be certified ... remaining in force until 31 March 2006." Plain-English: The agreement is formally approved and will operate until the stated date.
Agreements containing clauses that reference union recognition, facilitation or promotion at recruitment, especially where those clauses might influence prospective employees' perceptions at the point of hiring (see [5], [6], [9], [11]). The Commission will scrutinise such clauses for their practical effect.
Situations where the geographic application of an agreement is phrased in terms commonly used in awards or other industrial instruments (e.g., 'Southeast Queensland') and where the parties can demonstrate a shared and settled understanding of that term (see [14], [15]).
Cases where supported-wages provisions apply, and the Commission needs assurance that covered employees will not be disadvantaged relative to the test case award; an express undertaking can resolve that concern (see [17]).
Certification applications where statutory declarations and evidentiary requirements under the Commission's procedural rules are in question; the Commission will require compliant statutory declarations and may request resubmissions clarifying signatory status (see [5], [16]).
This decision itself cites earlier Commission decisions (for example PR935354, the Sheraton Towers decision PR935830, and PR911869) as persuasive context in which the Commission's approach to Part XA and recruitment-related clauses was discussed (see [8], [9], [10]). The present decision illustrates how the Commission applies those principles: obtain undertakings, examine documentary practice at recruitment, and accept undertakings that eliminate coercive effect. The text of this decision does not record or assert any subsequent judicial or Commission treatment of this specific certification after 14 August 2003. The judgment therefore provides a contemporaneous example of the Commission's approach rather than a record of later appellate treatment within the decision itself.
Enforcement and monitoring of undertakings: The Commission records that the undertakings will form part of the file (see [12]), and that failure to comply could prompt consideration of s170LV(2). The judgment does not set out a monitoring mechanism or the triggers and procedures that would lead the Commission to act on non-compliance. Practitioners must therefore plan for how undertakings will be evidenced and audited in practice.
The boundary between permissible facilitation and impermissible coercion: The judgment reiterates the existing test, facilitation is acceptable unless it effectively forces membership, but it does not add granular guidance about borderline practices at recruitment (for example, who bears the evidentiary burden to demonstrate 'effect' in long-term practice). The Commission's acceptance here turned on explicit undertakings and documentary checks (see [6], [7], [11]); how close factual scenarios might be treated where undertakings are absent remains an open, fact-sensitive area.
The adequacy of a parties' shared understanding of geographical terms: The Commission accepted the parties' common historical understanding of 'Southeast Queensland' as sufficient (see [14], [15]). However, if disputes arise between parties or third parties as to application, the judgment does not articulate a dispute-resolution process arising from such disagreement, nor whether an express definition in the agreement would be required in other cases.
Longevity and variations of supported-wage protections: The undertaking in [17] ties the parties to the Commission's "test case award provision (as varied from time to time)". The decision does not explore how future variations or reinterpretations of that award will be operationalised in relation to the agreement; that practical interaction may require future Commission consideration.
Concluding note: This decision is a practical example of the Commission exercising its statutory certification functions by obtaining and relying on targeted undertakings and documentary assurances to address Part XA freedom-of-association concerns and other certification prerequisites. Practitioners preparing agreements for certification should ensure clear, documented recruitment practices, compliant statutory declarations, and explicit undertakings (for example on supported wages) where there is any risk of a clause being construed as having coercive effect at recruitment.
s.170LJ certification of agreement
Australian Liquor, Hospitality and Miscellaneous Workers Union
Certification of Division 2 agreement with organisation(s) of employees.
[1] This is an application to certify an agreement pursuant to section 170LJ in Division 2 of Part VIB of the Workplace Relations Act 1996 (Cth) (the Act). The agreement is known as the Liquorland Hotels Agreement 2003.
[2] This decision must be read in conjunction with the decision of the Commission in [PR935354] dated 28 July 2003.
[3] The Commission heard this matter by video link on 14 July 2003. Ms A McKenzie, Employee Relations Manager for Coles Myer Ltd, appeared for Liquorland (Australia) Pty Ltd and Liquorland (QLD) Pty Ltd in Melbourne. Both Liquorland (Australia) Pty Ltd and Liquorland (QLD) Pty Ltd are owned by Coles Myer Ltd. Mr N Swancott, National Industrial Officer, appeared for the Australian Liquor, Hospitality and Miscellaneous Workers Union (LHMU) in Sydney. The Commission heard the matter in Brisbane, where Ms A Brothers appeared for the LHMU. The Commission has had the benefit of hearing submissions from these three persons during the hearing of this matter. The Commission has also examined the statutory declarations of Ms McKenzie and Mr T Ferrari, Assistant National Secretary of the LHMU.
[4] The Commission sought by 18 July 2003, and was duly in receipt of, additional submissions from the parties in relation to a range of relevant issues.
[5] At the conclusion of the decision in [PR935354], the Commission requested that the parties complete the following within 21 days of the date of its decision:
"1. The application for certification is subject to the Commission receiving undertakings of the kind specified in relation to section 170LV(1)(a) of the Act, so far as the application for certification is required to satisfy section 170LU(2A), which bears on Part XA, "Freedom of Association", of the Act. If the Commission is not satisfied that the undertakings have been complied with, it will give consideration to its powers in relation to section 170LV(2) of the Act.
2. The Commission seeks further explanation, in writing from the parties as to the precise application of the agreement, which is currently referred to as "Southeast Queensland" and how this could be given effect in the context of the agreement, given section 170LV is only available in relation to matters arising in relation to sections 170LT and 170LU of the Act.
3. Lodgement of a statutory declaration by the Applicant in relation to both corporate entities (Liquorland (Australia) Pty Ltd and Liquorland (QLD) Pty Ltd)) to satisfy the evidentiary requirements necessary for section 170LB(2)(b) of the Act. Additionally, resubmission of the statutory declaration by LHMU, clearly stating the status and title of the signatory.
4. Pursuant to section 170LV(1)(a) of the Act, the parties are invited to provide a clarifying undertaking in relation to the (sic.) rectifying the minimum rates of pay and machinery for updating the same in relation to the Supported Wages System."
Issue One - Undertakings required to satisfy section 170LV(1)(a)
[6] Liquorland (Australia) Pty Ltd, Liquorland (Queensland) Pty Ltd and the LHMU have all undertaken that:
"no prospective employee will be misled intentionally or inadvertently, by way of either oral comment or documentation put to them, into believing that employment at Coles Myer Ltd's undertakings through either Liquorland (Australia) Pty Ltd and Liquorland (QLD) Pty Ltd is dependent upon becoming or not becoming a member of the Australian Liquor, Hospitality and Miscellaneous Workers Union (`LHMU'); and
"the practices and employment forms and other documentation of the Companies will clearly and unambiguously articulate the undertaking provided in the previous paragraph."
[7] The Commission has scrutinised copies of all documentation (including employment forms and policies of the Companies) that are made available to prospective employees at the point in time of recruitment as well as in other circumstances.
[8] The Commission has noted reference to a decision in another instance in which the relevant Member has determined that a similar clause as permissible in relation to the promotion of union membership policies at the point of recruitment of prospective employees in the context of section 170LU(2A) of the Act[1].
[9] In that decision, a decision of McCarthy DP[2] was relied upon and quoted in part. The decision of McCarthy DP stated more fully:
"Also Senior Deputy President Polites made the observation with respect to clauses of this nature that " In my view a clause which provides for the recognition of an association for purposes of representing the industrial interests of employees does not contravene Part XA of the Act unless either directly or by some other indirect means it seeks to force employees to join the organisation ".
There is nothing wrong inherently or otherwise with an employer supporting unions or union membership. Nor is there anything untoward with an employer facilitating a union to recruit members.
Where facilitation and encouragement may run foul of Part XA is where that conduct " has the effect of " or in Senior Deputy President Polites words " through some indirect means seeks to force employees to join a union ". In other words if that facilitation or encouragement does in practice jeopardise or prejudice an individual then it would be contrary to Part XA.
Therefore, it is my view that I am obliged to consider the manner in which clauses of this nature are applied and intended to be applied before I can be satisfied that the Agreement will not have the effect of contravening Part XA."
[10] At paragraph [52] of its decision of 28 July 2003[3], the Commission as currently constituted said:
"Nothing put to the Commission at the time of the hearing or by way of the parties' additional submissions of 11 July 2003 persuades the Commission that this concern, particularly so far as it relates to the point of recruitment, is without substance."
[11] The Commission, as currently constituted, is satisfied on the basis of the undertakings as entered into and the documentation that is now before it that the operation of Clause 43 of the agreement does not now contravene section 170LU(2A) of the Act. The Commission was not previously satisfied of this matter on the basis of the various submissions put to it by the parties, nor on the face of the agreement itself.
[12] Where the Act requires the Commission to be "satisfied" as to the "effect" of a term of an agreement (as does section 170LU(2A) of the Act), the Commission may take steps to indeed satisfy itself as part of the certification process required of Division 4 of the Part VIB of the Act.
[13] The undertakings provided by the parties will form part of the file for purposes of this agreement.
[14] The parties intended that the agreement apply throughout "Southeast Queensland". This phrase is commonly understood by the parties as having the same meaning as attributed to that phrase by clause 5.3 of The Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998[4]. This clause provides as follows:
"The South-Eastern Division of Queensland commences at Point Danger, and is bound by the southern boundary of the State westerly to 151 degrees of east longitude; by that degree of longitude bearing true north to 24 degrees 30 minutes of south latitude; by that parallel of latitude bearing true east to the sea coast; and thence by the sea coast southerly to the point of commencement and all islands comprised in any State of Federal electorate in the South-Eastern Division of Queensland."
[15] On the basis that the parties to this agreement have, and have had, a joint and common understanding of the definition of "Southeast Queensland" that clearly pre-dates the period in which this agreement was made, the Commission does not believe this matter is a constraint on certification. No amendment is required of the agreement.
[16] The Commission is satisfied that the parties have now met the requirements of Australian Industrial Relations Commission Rules 1998 in relation to the provision of various statutory declarations.
Issue Four - Undertaking in relation to Supported Wages System
"The Companies undertake for the life of the Agreement to apply Appendix A of the Agreement in a manner that ensures that no employee covered by it (if any) will be worse off than if the Commission's test case award provision on Supported Wage Employees (as varied from time to time) applied to the employee."
[18] In view of the above, the Commission is now satisfied that agreement meets the Act's requirements in full.
[19] The Commission therefore indicates that the agreement will be certified with effect from today's date and is to operate in accordance with its terms, remaining in force until 31 March 2006.
Swancott N, with Brothers A, appeared for Australian Liquor, Hospitality and Miscellaneous Workers Union
Printed by authority of the Commonwealth Government Printer
1 See Re Sheraton Towers Southgate - LHMU - Employee Relations Agreement 2003 & Ors, AIRC 7 August 2003 [PR935830]
2 Shop Distributive and Allied Employees Association-Western Australian Branch and Woolworths Supermarkets (WA) Pty Ltd, AIRC 28 November 2001 [PR911869]
Liquorland (Australia) Pty Ltd
Australian Liquor, Hospitality and Miscellaneous Workers Union Re Liquorland Hotels Agreement 2003 - PR936109 [2003] AIRC 988;
The Commission certified the Liquorland Hotels Agreement 2003 with effect from 14 August 2003; the agreement is to operate in accordance with its terms and remain in force until 31 March 2006. Undertakings provided by the parties form part of the file and were accepted by the Commission (see [18], [19], [6], [17]).