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[2002] AIRC 932
defendant. The application to certify the Health Minders Limited and National Union of Workers Comprehensive Enterprise Agreement 2002 was refused.
2 cited instruments linked from this judgment.
The Commission refused to certify the enterprise agreement because it included a union notification clause requiring the employer to provide employee addresses, and that clause was not connected by its wording to other provisions about the employment relationship. Deputy President Ives considered himself bound by an earlier Commission Full Bench decision concerning an identical clause. He did not consider himself bound by contrary observations made obiter by the Federal Court Full Court in another case.
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2,092 words · generated 30/09/2026
The National Union of Workers (NUW) applied to certify the Health Minders Limited and National Union of Workers Comprehensive Enterprise Agreement 2002 under s 170LT and Division 2 of Part VIB of the Workplace Relations Act 1996. The application was dated 25 June 2002 and received by the Commission Registry on 15 July 2002 ([1]). The application included statutory declarations from an authorised officer of both the NUW and the employer. The NUW made submissions at a hearing on 1 August 2002. The company did not appear ([2]).
The principal obstacle to certification was clause 43. It said that, on written request, the employer would provide the NUW with “a list of the names, addresses and classifications” of employees covered by the Agreement. The employer was not required to provide the list more often than once every three months ([5]).
Deputy President Ives accepted that all but one of the statutory requirements for certification had been satisfied. The remaining requirement was that the Agreement be “about matters pertaining to the relationship between” the employer and the employees covered by it ([3]-[4]). The issue was whether clause 43 met that requirement, including whether it could be treated as incidental or ancillary to other provisions that did relate to the employment relationship.
The Commission refused certification. Its central reason was that the clause was materially the same as one the Commission Full Bench had already found did not pertain to the employment relationship, and Deputy President Ives considered himself bound by that Full Bench ruling ([12], [19], [26]-[27]).
The decision turned on two connected points: the construction of s 170LI(1), and the application of that construction to the wording of clause 43.
First, Deputy President Ives relied on the Commission Full Bench’s Atlas Steels decision. The Full Bench had rejected the argument that an agreement could be certified if, considered as a whole, it mainly concerned the employment relationship even though it contained a discrete provision that did not. It identified difficulties with that approach, including uncertainty about how to weigh different provisions and the possibility that agreements with identical provisions might be treated differently depending on what other terms they contained ([8]). It also recognised that provisions that were merely machinery or administrative in character might be incidental to matters that did pertain ([8]).
Deputy President Ives treated the Full Bench’s construction of s 170LI as part of its ratio decidendi because the statutory construction issue had been squarely before it ([12]). That was important to the result. He considered himself bound by the Full Bench’s reasoning, not simply persuaded by it.
Second, he applied the Full Bench’s analysis of a clause identical to clause 43. The Full Bench had reasoned that the information could be used for a variety of purposes, that the clause appeared to create an arrangement between the employer and the union, and that it did not operate on an obligation arising from the employer-employee relationship. It also rejected the view that the clause was ancillary to other provisions, including dispute resolution, consultation about industrial change and negotiations for a new agreement. In its assessment, the clause did not link its operation to those other provisions ([18]).
The Full Bench had said the assessment depends on the “form of the clause, its content and effect” ([18]). Deputy President Ives applied that approach to the clause before him. Clause 43 had no express connection to other clauses in the Agreement, and required the employer to provide addresses as well as names and classifications ([25]). He therefore did not treat it as machinery or an administrative provision incidental to other employment-related terms.
Deputy President Ives also addressed the NUW’s argument that the Commission should follow observations in the Electrolux Full Court decision. The Full Court had expressed doubt, obiter, about whether every individual agreement term had to concern the employment relationship, and had said that an agreement should be characterised as a whole ([14]). Deputy President Ives did not regard those observations as binding. He distinguished them from the Atlas Steels Full Bench’s ratio on the construction of s 170LI, which he considered binding on him ([17], [26]).
The outcome was therefore not a general assessment of whether the Agreement as a whole was mostly about employment matters. It followed from the Commission’s then-applicable interpretation of the statutory requirement and its assessment that clause 43 was an independent provision outside that relationship.
This decision addresses the Workplace Relations Act 1996 as it stood in 2002. Section 170LI(1), as quoted in the judgment, required an agreement in writing “about matters pertaining to the relationship between” the employer and covered employees. Section 170LT(1) required the Commission to certify an agreement if, and not to certify it unless, the statutory requirements were met ([4]).
The legal position applied by Deputy President Ives came from the Commission Full Bench’s Atlas Steels decision. That decision rejected the construction that an agreement could qualify as a whole even if it contained a discrete substantive provision about a matter outside the employment relationship. It left room for provisions that were merely machinery or administrative in character and incidental to matters that did pertain ([8]). In the present case, the Full Bench’s reasoning about an identical notification clause was also decisive ([18]).
There was a competing judicial view in the Electrolux litigation. The decision of Merkel J discussed in the Full Bench’s reasons had been set aside by the Federal Court Full Court on 21 June 2002 ([9]). The Full Court expressed doubt, in obiter comments, about an interpretation requiring every individual term to pertain to the employment relationship. It suggested that the agreement itself should be characterised as a whole ([14]). Deputy President Ives acknowledged those comments but did not treat them as binding, because they were obiter ([15]-[17]).
The judgment does not establish what happened in the later appeal to the High Court. Its footnote says that, as at the time of this decision, an appeal had been lodged and had not yet been heard ([6], footnote). Nor does this judgment provide a later statutory history or a subsequent account of the governing law. It should therefore be read as a 2002 decision applying the authorities and statutory provisions identified in its text, rather than as a statement of current Australian workplace relations law.
At [12], Deputy President Ives said that the Full Bench’s construction of s 170LI was part of its ratio decidendi. In plain English, he considered the Full Bench had actually decided the legal issue, rather than merely making an observation, and that its ruling governed his decision.
At [17], he stated that a tribunal is “not bound by statements of law that are obiter dicta.” In plain English, a legal comment that was not necessary to decide the earlier case did not have the same binding force, in his view, as the Full Bench’s decision on an issue it had to determine.
At [18], the Full Bench’s quoted reasoning focused on the information the clause required the employer to provide, the possible purposes for which the union could use it, and the lack of a textual connection with other employment-related terms. The Full Bench also said it was difficult to envisage how providing employee addresses to a union would pertain to the employer-employee relationship. The decision’s analysis therefore rested on the clause’s wording and effect, not merely on its title as a notification clause.
At [22]-[24], Deputy President Ives compared two agreements considered at the same hearing. The Electrolux clause expressly said it operated to facilitate other clauses addressing major workplace change, industrial dispute avoidance and renegotiation. He considered that clause incidental or ancillary to those provisions ([21]-[22]). The Skilled Agreement clause concerned a list of current employees and required employee consent; it did not require addresses. He considered that clause pertained to the relationship, also referring to s 285B and information about employees’ names and classifications ([23]-[24]).
At [25], the decision drew together the differences: clause 43 had no express link to other clauses and required employee addresses. Those differences mattered to the result. Deputy President Ives added that differently worded terms might have led to a different certification outcome, but that observation was conditional, not a determination of how any hypothetical clause would be treated.
The reasoning is most directly engaged where an application for certification under the statutory scheme considered in this judgment includes a term requiring an employer to provide employee information to a union, and the term is not expressly connected to other provisions about the employment relationship.
The closest factual match is a clause requiring the employer to provide employee names, addresses and classifications on request, without a stated purpose tied to other agreement clauses. That is the wording at issue in clause 43 ([5]). The Full Bench’s analysis, adopted by Deputy President Ives, treated the absence of a link to other employment-related provisions as significant ([18], [25]).
The decision also indicates that the words and function of the clause matter. A notification clause expressly tied to provisions concerning consultation about major change, dispute avoidance or renegotiation may be assessed differently, as the Electrolux comparison illustrates ([21]-[22]). A narrower clause dealing with employee names and classifications, without addresses, was also distinguished in the Skilled Agreement comparison ([23]-[25]). These comparisons are not a universal rule about all employee information clauses. They show how the decision applied the specific statutory requirement to the terms before it.
The judgment does not decide every possible reason an employer might provide employee information, the consequences of employee consent in all settings, or how another statutory scheme would apply. Its stated approach is confined to the statutory setting and clause wording before the Commission.
The judgment itself does not report any later judicial treatment of PR920990. It does record the legal material available to Deputy President Ives in August 2002.
The Federal Court Full Court had set aside Merkel J’s decision in the Electrolux matter before this decision was issued ([9]). The Full Court made observations about characterising an agreement as a whole, but Deputy President Ives described the relevant comments as obiter and declined to follow them as binding ([14]-[17]).
The decision also records that an appeal from the Electrolux Full Court decision to the High Court had not yet been heard at the time ([6], footnote). That is the limit of the subsequent-treatment information contained in this judgment. It does not provide the result of that appeal or describe how later courts treated either the Full Court’s observations or the reasoning in PR920990. Any account of later treatment would require sources beyond this judgment.
Several questions remain unanswered by this decision’s text. First, it does not determine the full boundaries of what would count as a provision that is “merely machinery or administrative in character” and incidental to employment-related matters. The Full Bench recognises that category, but the judgment applies it to particular wording rather than providing an exhaustive test ([8], [18]).
Second, the decision does not decide how far an express connection to other agreement clauses must go before a notification provision is treated as ancillary. The Electrolux clause expressly identified the clauses it was intended to facilitate, and Deputy President Ives treated that as relevant ([21]-[22]). The judgment does not define what level of detail or functional connection would be sufficient in a different agreement.
Third, the Skilled Agreement comparison does not settle every issue concerning employee consent or disclosure of information. The clause before the Commission required a list of current employees and referred to consent; Deputy President Ives also relied on the distinction that it did not require addresses ([23]-[24]). The judgment gives no broader ruling about privacy, consent, or the operation of provisions outside the certification question.
Finally, the decision does not resolve the competing interpretive approaches discussed in the Electrolux litigation beyond applying the authorities as Deputy President Ives understood them in August 2002. The judgment’s account of the High Court appeal was expressly provisional because it had not yet been heard ([6], footnote). The source therefore supports a careful historical account of the Commission’s reasoning, but not a conclusion about the later or current legal position.
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s.170LJ certification of agreement
HEALTH MINDERS LIMITED AND NATIONAL UNION OF WORKERS COMPREHENSIVE ENTERPRISE AGREEMENT 2002
Union notification clause - Clause relating to provision of names and addresses of employees - Whether agreement about the employment relationship.
[1] By an application dated 25 June 2002, received in the Registry on 15 July 2002, the National Union of Workers sought certification of the Health Minders Limited And National Union Of Workers Comprehensive Enterprise Agreement 2002 ("the Agreement") pursuant to section 170LT and Division 2 of Part VIB of the Workplace Relations Act 1996 (`the Act').
[2] The application was accompanied by Statutory Declarations completed in accordance with the Workplace Relations Regulations 1996 by an authorised officer of both the National Union of Workers ("the NUW") and the respondent employer. Submissions were made in support of the application by Mr T Lyons of the NUW before the Commission on 1 August 2002. No appearance was entered before the Commission by the Company.
[3] On the basis of the materials filed in this matter, and the submissions made by Mr Lyons, I am satisfied that all but one of the requirements for certification under the Act have been satisfied. That requirement is that the Agreement must be "about matters pertaining to the relationship between" the employer and the employees covered by the Agreement.
[4] Sections 170LT and 170LI relevantly provide as follows:
170LT(1): "If an application is made to the Commission in accordance with Division 2 or 3 to certify an agreement, the Commission must certify the agreement if, and must not certify the agreement unless, it is satisfied that the requirements of this section are met."
170LI(1): "For an application to be made to the Commission under this Division, there must be an agreement, in writing, about matters pertaining to the relationship between:
(a) an employer who is a constitutional corporation or the Commonwealth; and
(b) all persons who, at any time when the agreement is in operation, are employed in a single business, or a part of a single business, of the employer and whose employment is subject to the agreement. ... "
[5] The Agreement contains clause 43 (referred to in this decision as "the Union Notification Clause") in the following terms:
"The employer will upon written request supply to the Union a list of the names, addresses and classifications of the employees whose employment is covered by this agreement. In any event the employer is not required to supply this list more frequently than once every three months."
[6] Notwithstanding the submissions made by Mr Lyons, both orally and in writing, I am not satisfied that the Agreement is about matters pertaining to the relationship between the employer and its employees. I provide brief reasons for my decision below.
[7] The clause before the Commission is identical to clause 44 of the Mitre 10 Agreement which I considered in Re Cadbury Schweppes Pty Ltd Confectionary Division - National Union Of Workers Enterprise Agreement 2001 (PR914087, 7 February 2002) ("the Cadbury Schweppes Decision"). The Cadbury Schweppes Decision, and another decision I issued on the same day (PR917092, 29 April 2002) ("the Atlas Steels Full Bench Decision").
[8] It was argued before the Full Bench that, properly construed, section 170LI of the Act does not require that every matter in an agreement pertain to the relationship between the employer and its employees. This was considered by the Full Bench as follows (paragraphs 19-23):
"The principal submission made by the appellants is that, properly construed, s.170LI(1) does not require that every matter in an agreement must pertain to the relationship between the employer and employees. More particularly, it was submitted that a valid application might be made in relation to an agreement which contains matters pertaining to the relationship between the employer and employees and matters that not so pertaining provided the agreement as a whole could be characterised as being about matters pertaining to the relationship. Reliance was placed on the decision of Senior Deputy President Kaufman in Re Knox City Council Enterprise Agreement (No.4) 2001.[1] It can be seen that if this submission is correct it is not necessary to decide in this case whether the union fees clause and the union notification clause are each about matters pertaining to the relationship.
We see a number of difficulties with this construction of the section. In the first place, it appears to us that an agreement which contains provisions some of which are about matters pertaining to the relationship and some of which are about matters which do not so pertain cannot be described, at least without straining language, as an agreement about matters pertaining to the relationship. Secondly, this construction gives rise to uncertainty in the application of the section and of the Division. It requires a weighing-up or balancing of provisions which are about matters which do pertain and those which do not in order to reach a conclusion as to whether the agreement as a whole is about matters which pertain. That might involve difficult value judgments in particular cases. Thirdly, the construction contended for might lead to some irreconcilable results. Some agreements deal only with one or two matters. Others deal comprehensively with the terms and conditions of employment. An agreement containing one or two matters only, being matters which do not pertain to the relationship, could not be the subject of a valid application for certification. An agreement containing the same one or two matters, but also containing a large number of matters that do pertain to the relationship, could be the subject of a valid application for certification. The legislature is unlikely to have intended the section to operate in such a capricious way. All of these considerations tell against the submission.
Also, as was pointed out by Merkel J in Electrolux Home Products Pty Ltd v Australian Workers' Union,[2] the submission requires s.170LI(1) to be read as though it contained an additional word. The reasoning is set out in the following passage:
_`_51 If one of the substantive matters provided for in the agreement is not within the required description and that matter is discrete and significant then the proposed agreement may properly be characterised as about matters that are within the relationship and a matter that is not. While it is arguable that s 170LI only requires that the agreement in question be characterised as one that is "substantially" or "primarily" about the requisite matters it would be inappropriate to add those words absent a clear legislative purpose in favour of that construction: see Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 22 per McHugh J.'[3]
We are unable to discern a legislative purpose which would justify reading down the clear words of the section.
It was pointed out in Electrolux that there are differences between the terms of s.170LI(1) and the terms of an antecedent provision in s.170MD(1)(a) of the IR Act. That section read:
`Despite section 170MC, the Commission may refuse to certify an agreement if:
(a) in the case of any agreement - the Commission thinks that any of the terms is one that the Commission would not have power to include in an award (disregarding section 95)...' (emphasis added)
We were taken to references to s.170MD in Victoria v The Commonwealth[4]. It may be accepted that by the use of the expression "any of the terms" in s.170MD(1)(a) the legislature intended that every term in an agreement was required to be a term which could be included in an award. We do not think it follows, however, that the language of s.170LI(1) was deliberately adopted, and more particularly that the term "any_" where secondly appearing was not included to signify that an agreement providing for some matters which do not pertain might give rise to a valid application. Section 170MD(1) dealt with the Commission's powers to refuse to certify an agreement. Section 170LI(1) deals with the type of agreement which may be the subject of an application for certification. The structure and wording of the provisions are so different that the use of "_any of the terms" in one provision and not in the other is an unreliable indication of the intention of the legislature.
For all of these reasons we do not accept the proposition that s.170LI(1) should be construed to permit an application to be made to certify an agreement which contains provisions about matters which do not pertain to the relationship between the employer and employees. Deputy President Ives was therefore correct to conclude that an agreement to which s.170LI(1) applies which contains a provision about a matter which does not pertain to the relationship is not one which is capable of certification. It should be acknowledged, of course, that an agreement may contain provisions, which although not themselves about matters which pertain, are nevertheless incidental to matters which do. We have in mind provisions which are merely machinery or administrative in character[5]."
[9] The decision of Merkel J ("the Electrolux Decision") referred to by the Full Bench has since been set aside on appeal to a Full Court of the Federal Court of Australia (Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Electrolux Home Products Pty Limited [2002] FCAFC 199 (21 June 2002, Wilcox, Branson and Marshall JJ)) ("the Electrolux Full Court Decision").[6] I shall further discuss the Electrolux Full Court Decision below.
[10] It was submitted by Mr Lyons, in the matter now before the Commission, that the Atlas Steels Full Bench adopted the reasoning of Merkel J and that (written submissions, paragraph 6):
"The NUW respectfully submits that the Full Bench of the Commission erred in adopting the construction of WR S170LI adopted by Justice Merkel, and should not be followed."
[11] I reject that submission. The excerpt quoted above shows that the Full Bench's reasoning in the Atlas Steels Full Bench Decision was not simply an adoption of the reasoning of Merkel J. Among other things, the Atlas Steels Full Bench Decision (see paragraph 20) considered a number of difficulties with the NUW's construction of section 170LI which were not squarely addressed by either Merkel J or the Full Court in the Electrolux case.
[12] The proper construction of section 170LI was clearly in issue before the Full Bench. The Full Bench's reasoning on that point forms part of its ratio decidendi. I consider myself bound by the Atlas Steels Full Bench Decision to reject the NUW's submission that characterising the Agreement as a whole it is an Agreement about matters pertaining to the relationship between the employer and its employees.
[13] As I stated above, the decision of Merkel J in the Electrolux Decision was set aside by a Full Court of the Federal Court of Australia in the Electrolux Full Court Decision.
[14] In comments made obiter dicta (see paragraph 96-97), while not expressing a final view, the Full Court expressed doubt whether it was correct that each individual term of an agreement must concern matters pertaining to the relationship between an employer and its employees (paragraph 98). In further obiter dicta statements, the Electrolux Full Court Decision states:
"We do not see why the presence of one or more provisions that do not pertain to the relationship necessarily takes an agreement outside the description embodied in s 170LI(1). As counsel for the Unions pointed out, 170LI(1) does not refer to the terms of an agreement. It talks about "an agreement ... about matters pertaining to the relationship". So it is necessary to characterise the agreement itself, considering it as a whole. An agreement for the sale of a house is an agreement pertaining to real estate, notwithstanding it includes a provision regarding furniture.
Nothing in the statutory scheme suggests that a certified agreement that, considered as a whole, answers the description of 170LI(1) may not include a particular term that does not. The only effect of certification is that prescribed by ss 170LY and 170LZ.. Certification provides a statutory override of certain inconsistent awards and orders. A term dealing with matters outside the employer-employee relationship is unlikely to be inconsistent with, and therefore to override, any award or order; but it has contractual effect as between the parties: see Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645."
[15] With respect, I do not consider the Commission to be bound by these obiter dicta comments of the Full Court. The Full Court gives the example of the sale of a house. If a business is conducted from that house, an agreement for the sale of the house and the associated business would appear to be more than a mere sale of real estate. While it does not arise in the matter before the Commission, I would suspect that had comprehensive arguments been put to the Full Court on point it would not have concluded that "the only effect of certification is that prescribed by sections 170LY and 170LZ". See, for example, sections 170M, 170MA, 170MB and 178.
[16] It was submitted by Mr Lyons that (written submissions, paragraph 6):
"In determining whether an agreement is within the scope of WR S170LI the Commission should apply the view expressed by the Full Court in the Electrolux Appeal."
[17] I reject that submission. While the Federal Court has a supervisory role over this Commission with respect to questions of law, it is a fundamental tenet that a tribunal is not bound by statements of law that are obiter dicta. In contrast, the proper construction of section 170LI of the Act arose squarely in issue before the Full Bench in the Atlas Steels case. I consider myself to be bound by the ratio decidendi statements relating to section 170LI in the Atlas Steels Full Bench Decision.
[18] Considering a clause identical to the Union Notification Clause, the Full Bench stated as follows (paragraphs 36-39):
"Turning first to the union notification clause in the Cadbury Schweppes Agreement_, it is clear that the information once acquired by the union could be used for a variety of purposes. On the face of it the clause constitutes an agreement between the employer as employer and the union as union. There is nothing in the agreement to suggest that the provision is relevant to any matter pertaining to the relationship between the employer and employees. In dealing with the union fees clause we noted that the clause operates upon and alters the employer's obligation to pay wages. The union notification clause does not operate upon any obligation, whether established by the agreement or not, pertaining to the relationship._
The Deputy President found that clause 44 of the Cadbury Schweppes Agreement is ancillary to, incidental to, or a machinery provision relating to various matters within the agreement which pertain to the employment relationship. The Deputy President identified those matters as dispute resolution, consultation about industrial change and negotiation of a new agreement upon expiry of the current agreement. With respect we do not think that conclusion was open. There is nothing in the terms of the clause which link its operation in any way to these other clauses. Furthermore it is difficult to envisage circumstances in which the provision by an employer of employees' addresses to a union would pertain to the relationship between the employer and employees.
The union notification clause in the Mitre 10 Agreement only operates in relation to employees who consent to the information being provided to the union. This does not alter the character of the provision. Like the clause in the Cadbury Schweppes Agreement it is not about a matter pertaining to the relationship nor is it ancillary to, incidental to or a machinery provision relating to other matters in the agreement which do pertain.
Whether a particular clause in an agreement pertains to the relationship depends upon the form of the clause, its content and effect. Our decision in this case is based on the wording of the clauses before us."
[19] It follows from my reasoning above, and from the Atlas Steels Full Bench Decision, that I am bound to reject the application for certification of the Agreement.
[20] At the same hearing before me, the NUW sought certification of the Electrolux Pty Ltd And National Union Of Workers Enterprise Agreement 2002 (AG2002/3862) ("the Electrolux Agreement") and of the Skilled Engineering Limited Capital Liquor (Clayton Site) National Union Of Workers Certified Agreement 2002-2005 (AG2002/3699) ("the Skilled Agreement"). Despite the inclusion of union notification clauses, I certified the Electrolux Agreement (AG817350 PR920830).
[21] The union notification clause of the Electrolux Agreement (clause 43) was in the following terms:
"In order to facilitate the operation of, and for the purposes of, Clauses 11, 12 and 48 of this agreement, the employer will upon written request supply to the Union a list of the names, addresses and classifications of the employees whose employment is covered by this agreement. In any event the employer is not required to supply this list more frequently than once every three months."
[22] Clauses 11, 12 and 48 of the Electrolux Agreement addressed the introduction of major change in the workplace, procedures for the avoidance of industrial disputes and re-negotiation of the agreement. Those clauses clearly do pertain to the relationship between employer and employee. I consider clause 43 of the Electrolux Agreement to be incidental or ancillary to those other provisions. I note, with approval, the written submissions of Mr Lyons on this point (paragraphs 9-12).
[23] The union notification clause of the Skilled Agreement (clause 19.6) was in the following terms:
"The company will send the union a list of all current employees employed under the terms of this agreement upon request from the union. This information will be provided on the basis that employees have given their consent for their names to be forwarded to the union."
[24] It is well accepted that provisions relating to the keeping of time and wages records pertain to the relationship between employers and employees. A union is entitled, in accordance with section 285B of the Act, to obtain information including the name and classification of an employer's employees. I am of the view, therefore, that clause 19.6 of the Skilled Agreement pertains to the relationship between an employer and its employees. I note, with approval, the written submissions of Mr Lyons on this point (paragraphs 13-14).
[25] Unlike the Electrolux Agreement, the Union Notification Clause in the Agreement does not expressly link its operation to any other clauses of the Agreement. Unlike the Skilled Agreement, the Union Notification Clause requires the provision of "names, addresses and classifications" (emphasis added). Had the Union Notification Clause been in different terms, then the Agreement might have been able to be certified under the Agreement.
[26] Because I consider myself bound by the ratio decidendi of the Atlas Steels Full Bench Decision, and not to be bound by obiter dicta comments contained within the Electrolux Full Court Decision, I am of the view that the Agreement does not satisfy the requirement that the Agreement be about matters pertaining to the relationship between the employer and its employees.
Printed by authority of the Commonwealth Government Printer
6 I understand that the Electrolux Full Court Decision has been appealed to the High Court of Australia, and that the appeal has not yet been heard.
(1991) 172 CLR 1
(1996) 187 CLR 416
(2001) 203 CLR 645
The application to certify the Health Minders Limited and National Union of Workers Comprehensive Enterprise Agreement 2002 was refused.