s.170LJ certification of agreement

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

Certification of Division 2 agreement with organisation(s) of employees.

[1] This decision deals with an application made pursuant to section 170LJ of Division 2 Part VIB of the Workplace Relations Act 1996 (`the Act'), for certification of the Schefenacker Vision Systems Australia Pty Ltd, AWU, AMWU Certified Agreement 2004 (`the agreement').

[2] The application was made on 10 September 2004 and has been the subject of hearings on 22 September and 13 October 2004. At these hearings Schefenacker Visions Systems Pty Ltd (`Schefenacker') was represented by Mr Metcalf and Mr Stovall. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (`the AMWU') was represented by Mr Plant and Ms Regione. The Australian Workers' Union (`the AWU') was represented by Mr Llewellyn-Jones and Mr Hanson.

[3] On the information included in the statutory declarations and provided at the hearing of this matter, I am satisfied that the agreement was reached through a process consistent with that set out in section 170LJ of the Act. I am similarly satisfied that the agreement meets the requirements of sections 170LT and 170LU such that, if I determined that the agreement was made consistent with the requirements of section 170LI, it should be certified.

[4] In the High Court decision in Electrolux Home Products Pty Ltd v Australian Workers' Union[1] the joint judgement of Gummow, Heyne and Heydon JJ stated:

"155. The exercise by the AIRC of its authority under Div 4 to certify is conditioned upon satisfaction of s 170LI. That appears from the terms of s 170LI(1). This states:

"For an application to be made to the [AIRC] 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."

The phrase "about matters pertaining to the relationship between: also appears in s 5AA(2), (3). These give additional operation to Div 2 in circumstances reflecting legislative reliance on the Territories power (s 5AA(2)), and the commerce power and the Territories power (s 5AA(3))."

[5] This conclusion was consistent with that reached by Gleeson CJ, McHugh J and Callinan J.

[6] Consequently, Electrolux is authority for the position that a certified agreement cannot contain terms which are not about matters pertaining to the relationship between employers and employees. Further, that there is the capacity for a clause in the agreement to be ancillary or incidental to a provision which pertains to the relationship between the employer and its employees, or is a machinery provision.

[7] Machinery and ancillary matters were referenced by McHugh J in Electrolux in the following terms:

"Thus, Merkel J distinguished between ancillary, incidental or machinery provisions in an agreement - which for the purposes of certification need only relate to a matter pertaining to the employment relationship - and a substantive matter that is both discrete and significant - which must pertain to the employment relationship. Such an approach is consistent with the decision of this Court in Shell [(1992) [1992] HCA 38; 174 CLR 345 at 359. Shell concerned a machinery provision in a claim, rather than a term of agreement.] and an obiter statement of Stephen J in Portus [(1972) [1972] HCA 57; 127 CLR 353 at 372] about an ancillary aspect of the claim."

[8] This approach is consistent with the position adopted by the Full Bench of the Commission in Re Atlas Steels Metals Distribution Certified Agreement 2001-2003[2].

"[23] 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."

[9] As a result of the decision in Electrolux, there are seven clauses in the agreement which require consideration as to whether or not they pertain to the employment relationship. The clauses are:

[10] The parties were given the opportunity to provide written submissions after both hearings for my consideration. In this respect I note that the Schefenacker submission is in marked contrast to the more comprehensive submissions of the AMWU and the AWU. Schefenacker simply provided a synopsis of the Electrolux decision, merely asserted that clause 26 pertains to the employment relationship and concluded that:

"Whilst the views expressed by the parties to a certified agreement may assist the relevant Commission Member in determining whether or not the requirements of s.170LI of the Act have been met, the responsibility for ensuring compliance with s.170LI rests with the Commission member with the application for certification. Therefore, in terms of the other questionable provisions raised during the hearing, the company will rely on the determination of the Commission as to whether these areas pertain to the employment relationship."

[11] As a result, in addressing the seven clauses I have not generally referred to the employer position.

[12] It is appropriate that I make a further observation about the AWU submissions insofar as these submissions proposed the recognition of various clauses as matters pertaining to the employment relationship on the basis that they fall within section 51(xxxv) of the Australian Constitution. This issue was addressed by the High Court in Re Alcan Australia Limited; Ex parte Federation of Industrial, Manufacturing and Engineering Employees[3] in the following terms:

"Even though a dispute as to the deduction of union dues falls within s 51(xxxv) of the Constitution (at least if it relates to authorized deductions), it will not be an industrial dispute within the jurisdiction of the Commission unless it is also a dispute as defined in the Act. By s 4(1) of the Act, "industrial dispute" is defined, so far as subject matter is concerned, as meaning "an industrial dispute ... that is about matters pertaining to the relationship between employers and employees" and as including "a demarcation dispute". To the extent that the definition requires the subject matter of a dispute to pertain to the relationship between employers and employees (and that is the only part of the definition that is relevant to this case), it is different from the definitions of "industrial matters" considered in R v Kelly and, later, in Reg v Portus (which were concerned with "the relations of employers and employees") only in the manner of its expression."

[13] Before turning to examine each of the individual clauses, it is appropriate to note that any determination as to whether a particular clause pertains to the employment relationship will depend upon an examination of the individual wording of that clause in the circumstances of this employer and its employees. I turn now to examine each clause and in so doing, reproduce each of the relevant clauses from the agreement.

"8.2 Subject to this Agreement, the employer and the unions agree that they shall bargain collectively in relation to matters arising from the Agreement, and in relation to the renewal, extension, variation or renegotiation of the Agreement."

[15] The AMWU and the AWU (`the unions') submitted that the clause committed the parties to bargaining in relation to:

• matters arising from the agreement, and
• the renewal, extension, variation or renegotiation of the agreement.

[16] Accordingly, the unions argue that the clause was, by necessity, about matters pertaining to the employment relationship. Alternatively, the unions submitted that the clause was incidental or ancillary to matters that did pertain.

[17] I am satisfied that the commitment to bargain collectively in relation to matters arising from the agreement is clearly a matter pertaining to the employment relationship. By definition, matters arising from the agreement must be matters that pertain to the employment relationship.

16.2.1 The employer shall discuss with the employees affected and their union, the introduction of the changes referred to in paragraph 16.1.1 hereof, the effects the changes are likely to have on employees, measures to avert or mitigate the adverse effects of such changes on employees and shall give prompt consideration to matters raised by the employees and/or their union in relation to the changes.

16.2.2 The discussion with employees affected and their union shall commence as early as practicable after the activities referred to in paragraph 16.1.1 hereof.

16.2.3 Wherever practicable the company will give 4 weeks notice prior to proposed changes occurring.

16.2.4 For the purposes of such discussion, the employer shall provide in writing to the employees concerned and their union, all relevant information about the changes including the nature of the changes proposed; the expected effects of the changes on employees and any other matters likely to affect employees provided that the employer shall not be required to disclose confidential information the disclosure of which would be detrimental to the employer's interests."

[19] The clause adopts provisions which closely relate to the pre-simplified version of the Metals, Engineering and Associated Industries Award 1998[4].

[20] The AMWU argued that the clause dealt with significant effects in terms defined on the basis of work-related matters that impact on employees. The AMWU referenced the Full Bench decision in AMWSU v BHP Pty Ltd Whyalla[5] where the Full Bench found such a provision as a matter pertaining to the employment relationship.

[21] The AWU referenced decisions of the Court which went to consider industrial disputes extending beyond the limits of any one state.

[22] In FCU v VEF[6], the High Court concluded that a similar provision could be described as pertaining to the employment relationship.

[23] In R v Coldham; ex parte Australian Social Welfare Union[7], the High Court accepted the capacity of a collective obligation involving the union, as pertaining to the employment relationship. In that matter the Court stated:

"It is, we think, beyond question that the popular meaning of "industrial disputes" includes disputes between employees and employers about the terms of employment and the conditions of work. Experience shows that disputes of this kind may lead to industrial action involving disruption or reduction in the supply of goods or services to the community. We reject any notion that the adjective "industrial" imports some restriction which confines the constitutional conception of "industrial disputes" to disputes in productive industry and organized business carried on for the purpose of making profits. The popular meaning of the expression no doubt extends more widely to embrace disputes between parties other than employer and employee, such as demarcation disputes, but just how widely it may extend is not a matter of present concern."

[24] I consider that the Introduction of Change clause can be properly described in this agreement as a matter which is ancillary to the employment relationship. In as much as this reflects a commitment to change, clause 9 of the agreement states:

9.1 The on-going introduction and expansion of "Kaizen" and other continuous improvement activities will be integral with employment.

9.2 The parties will undertake to support the processes designed to achieve the ultimate involvement of all employees in team based improvement activities as these will be integral with employment. Teams will utilise analysis and problem solving techniques currently being taught or to be taught."

[25] Consequently, clause 16.2 does not represent an impediment to the certification of the agreement.

17.1 The employer and unions confirm commitment to permanent direct employment, but also recognise that labour flexibility is an ongoing requirement to achieve job security and productivity requirements. The parties agree to the following criteria regarding the engagement of employees of labour hire agencies.

17.2 The agreed maximum level of employees of labour hire agencies will be 20% of total weekly paid employees. The company agrees to consult with shop stewards when the percentage is in excess of 20% as to the reasons the additional labour hire agency employees are required.

17.3 There will be a formal quarterly review of labour hire agency employees through the consultative committee. This meeting will review both the total number of labour hire agency employees and their length of service.

17.4 Employees of labour hire agencies will not be considered for permanent employment until the total percentage of labour hire agency employees exceeds 20% of total weekly paid employees. When the 20% threshold is exceeded, employees of labour hire agencies will be offered permanent employment based on specific positions and shifts identified as being needed by the company.

17.5 Employees of labour hire agencies who are offered permanent employment will be required to serve a maximum of 3 months probationary period before permanency is confirmed. Offers of employment will be prioritised based on length of service.

17.6 The company will instruct the labour hire agencies to increase the wage rate of their employees working at Schefenacker Vision Systems Australia by the same percentage that is listed in this Agreement."

[27] The AMWU has submitted that this clause pertains to the employment relationship between Schefenacker and its employees. In this respect the AMWU relied on the High Court decision in R v Moore and Others; Ex parte Federated Miscellaneous Workers' Union of Australia[8] (`Moore's Case').

[28] The AWU adopted a similar position in that it relied on Moore's Case. However, the AWU also contended that other decisions, including particular, Re Cram; Ex parte NSW Colliery Proprietors Association Limited and Others[9] and Metal Trades Employer's Association v Amalgamated Engineering Union[10] were authority for the abolition of the doctrine of managerial prerogative and the capacity for unions to argue for terms for non unionists.

[29] Clause 17 has three principal components. Sub-clauses 17.1, 17.2 and 17.3 deal with the circumstances under which labour hire employees may be utilised. I accept that the use of labour hire employees has the potential to be a matter of interest to Schefenacker employees and hence the circumstances under which labour hire employees will be engaged may be a matter which pertains to the employment relationship. In the circumstances of this agreement, I am satisfied that these three subclauses do pertain in that they described the work situation under which Schefenacker employees will be supplemented by other persons. They do not usurp management functions and fundamentally are about issues associated with direct employment opportunities. I have taken the obligation in clause 17.2 as simply an obligation to consult because to take it further may raise issues associated with the Freedom of association provisions in the Act.

[30] Subclauses 17.4 and 17.5 deal with the employment by Schefenacker of employees of labour hire companies. These provisions define when employment will be considered by Schefenacker and upon what basis.

[31] Subsection 17.6 requires Schefenacker to instruct the labour hire companies to increase the wage rate for their employees working at Schefenacker by the same percentage increases set out in the agreement. The agreement does not establish the basis upon which Schefenacker are entitled to issue such instruction, but I have presumed that the labour hire companies provide labour to Schefenacker under some form of contractual arrangement. Further there is no information before me that goes to the current employment benefits for employees of labour hire companies working for Schefenacker.

[32] The plain words of this subclause establish an obligation on Schefenacker relative to its labour hire contracting companies. In practical terms, the clause establishes that for a labour hire contractor to provide its employees to Schefenacker, these employees must receive wage increases consistent with the agreement. The clause does not establish that the wages or conditions of employment of employees of these labour hire contracting companies are consistent with those set out in the agreement.

[33] In K L Ballantyne & National Union of Workers (Laverton Site) Agreement 2004[11] Ross VP observed:

"[48] In addition to provisions which are incidental, ancillary or machinery in nature it may be permissible for a certified agreement to contain provisions which do not pertain to the requisite relationship provided they do not give rise to any right or obligation. A clause which is merely aspirational in nature may be such a provision. In this context Gleeson CJ made the following observation in Electrolux:

"There may be cases in which a matter extraneous to the employment relationship may be so trivial that it should be disregarded as insignificant.""

[34] In this case the clause does not attempt to make the labour hire contracting companies a party to the agreement. I doubt that it is an enforceable provision because the obligation it purports to establish is fundamentally contractual in nature.

[35] Nevertheless, I am unable to regard clause 17.6 as trivial because it is an integral component of a substantive agreement provision.

[36] It may well be that employees of Schefenacker are interested in the terms upon which labour hire contract employees are engaged. A similar interest was considered by a Full Bench of the Commission in National Transport Operations Pty Ltd Certified Agreement 2002[12] in the following terms:

"[38] We are not persuaded by Mr Murdoch's submission that the contract carrier provisions are justified by the interest employees of National Transport have about job security and accordingly an interest in the terms upon which contractors are engaged. There is nothing in the contract carrier provisions that suggest any linkage with the provisions regulating the wages or conditions of employment of the employees of National Transport. ....."

"[113] In my view clause 16.3.1 is to be characterised as a provision which requires the Company, among other things, to ensure that casual employees employed by a third party provider engaged by the Company to perform work covered by the Agreement are to be employed under terms no less favourable than those applying to their own employees under the terms of the Agreement. I am satisfied that such a clause pertains to the requisite relationship. In my view this conclusion is consistent with observations made by members of the High Court in Moore's case. In that matter a union made a claim in the following terms:

(a) No employer shall permit any operation or function or employment of any of the classes to which this Award is applicable to be carried on or exercised or entered into by any contractor or other person on behalf of the employer, except in accordance with the terms and conditions of this Award as if the contractor or other person were himself a party to and bound by this Award.

(b) No employer shall enter into any contract for the carrying on of any of the work covered by this Award by means of employees unless the contract contains a clause binding the contractor to pay the rates and observe the conditions herein prescribed in respect of the work contracted for, so long as this Award remains in operation.""

[38] VP Ross relied upon the High Court decision in Moore. He referred to the conclusion reached in that matter:

"[114] It was argued by the prosecutor, relying on Cocks, that this claim did not raise a dispute about an industrial matter. Referring to Cocks, Gibbs J said :

"That case is distinguishable. It decided that a dispute as to whether or not it should be permissible for an employer in a particular industry to employ independent contractors in performing relevant work outside the employer's factory or workshop is not an industrial dispute as defined in the Conciliation and Arbitration Act 1904 (Cth), as amended (`the Act'). However the present dispute, in so far as it relates to cl 5 of the log of claims, is not as to whether contractors should be engaged, but as to whether, if they are engaged, their employees should be entitled to the benefits of the award, assuming that one is made. The evidence has failed to show that in the circumstances prevailing in the industry in question such a clause could not be capable of being regarded as merely incidental to the settlement of the dispute as to the conditions of employment of workers in or in connexion with metaliferous mining. I agree with Jacobs J that this question should not be finally determined until the facts are fully explored.""

[39] I have considered Moore's Case in this context. Firstly, Moore's Case concerned both a matter of a union eligibility clause and the provisions of a log of claims being used to underpin an award. As such, this matter dealt with a dispute finding in the context of the Commission's capacity to make an award binding on multiple employers' which is not the case here.

[40] I am able to distinguish the circumstances in the case before me from Moore's Case. Moores' Case involved a dispute finding in circumstances where the employer proposed to undertake the same work using contractors engaged in the same industry. That can be contrasted to the situation before me where the labour hire companies can provide labour to a number of employers engaged in a variety of industries. Schefenacker cannot easily be said to be in dispute over the wages and conditions applicable to employees of the labour hire contracting company. The labour hire company is in the business of providing labour to diverse industries and is not easily described as being in the business of automotive component manufacturing.

"79. Section 170LI, however, does not refer to the relationship between employers and employees generally, but rather to the relationship between the employer bound by the agreement and all persons employed in a single business of that employer. As the Full Bench of the Commission (Giudice J, McIntyre VP and Whelan C) observed in Re Atlas Steels Metals Distribution Certified Agreement 2001-2003 [(2002) 114 IR 62 at 66]:

"The terms of s.170LI(1) indicate that the nature of the matters is to be assessed by reference to the relationship between the employer and the employees to whom the agreement applies rather than by reference to a generalised notion of the relationship between employers and employees."

For example, there may be matters particular to the relationship between an individual employer and the persons employed in a single business of that employer. Those matters may not pertain to the relationship between employers and employees generally in their capacity as such. But they may pertain to the requisite relationship in that workplace and require an examination of the issue or issues between the parties that give rise to the claims [See Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd [1993] HCA 81; (1993) 67 ALJR 604 at 609, 612 per Gaudron J (Brennan, Dawson and Toohey JJ agreeing), 617-618 per McHugh J; [1993] HCA 81; 113 ALR 421 at 428, 432, 439-440]"

[42] On this basis I am not able to conclude that the High Court conclusion in Moore represents an authority which supports the extension of the provisions of an agreement which has application to a single business, or part thereof, to a labour hire contractor or to the contractual relationship with such a contractor.

[43] In Ballantyne Ross VP also had regard to the Full Bench conclusion in Unilever[13]. Notwithstanding some reservations about the extent to which I am able to rely on Unilever subsequent to the High Court decision in Electrolux, I cannot describe clause 17.6 as a condition precedent for the use of labour hire personnel.

[44] Furthermore, in National Transport Operations Pty Ltd Certified Agreement 2002[14] the Full Bench stated:

"[44] We have considered the judgments referred to by the Commissioner. We do not doubt that, as the Commissioner observed in paragraph 125, contractor provisions have been inserted into awards, relying at least in part, on the authority of Moore's Case. We are unable to agree however that it may be called in aid as authority to justify, in terms of s.170LI, the contract carrier provisions in the Agreement. Neither, with respect to the Commissioner, does Atlas Steels support the contract carrier provisions being inserted into the Agreement. Nothing was said in that case about such clauses being "industrially desirable" or "incidental to matters within the requisite relationship."

[45] Are the provisions incidental or ancillary to any other clause or clauses in the Agreement that do pertain to the relevant relationship? We are not persuaded they are. They are discrete and substantive terms. They are contained in a specific part of the Agreement devoted solely to the terms upon which carriers may be engaged by National Transport and undertake parcel, taxi truck or courier work.

[46] Finally are the provisions machinery or administrative? For the same reasons given in the preceding paragraph they clearly are not."

[45] Finally, in Ballantyne Ross VP considered the specific provisions in that agreement in the context of the Full Court of the Supreme Court of South Australia in R v Industrial Commission of South Australia ex parte Master Builders Association[15]. Again, that matter was determined in the context of an award rather than an agreement to which section 170LI has application.

[46] In R v Commonwealth Industrial Court Judges; Ex parte Cocks and Others[16] the joint judgement of Barwick CJ, Taylor and Owen JJ stated:

".... Disputes may, of course, arise between employers and employees with respect to any practice in an industry but the Act does not commit to the Commission authority to regulate generally the manner in which industry shall be carried on; its authority is limited to regulating the relationship of master and servant in the industry and matters which are truly incidental to that relationship. ...."

[47] In that matter the High Court was also considering issues claimed for inclusion in an award as distinct from an agreement with application only to a single business or part thereof.

[48] Notwithstanding its plain words, to the extent that clause 17.6 is to be read as establishing an obligation on Schefenacker to ensure that labour hire contracting companies pay equivalent rates of pay, I am unable to conclude that such a provision is about the relationship of Schefenacker and its employees.

[49] To the extent that the clause requires Schefenacker to instruct its labour hire contracting companies to grant wage increases consistent with the agreement, I am unable to conclude that this is other than a contractual matter. Given the structure of clause 17 and the remainder of the agreement, I can draw no conclusions over the extent to which there is uniformity of wage rates and conditions.

[50] On the basis of the plain words in the agreement, the clause addresses matters that, at best, only affect Schefenacker employees indirectly. It goes to a contractual relationship outside the scope of section 170LI of the Workplace Relations Act and the Commission generally. Clause 17.6 does not prevent or limit employment or employment transfers, it simply requires Schefenacker to engage with a contractor in a particular commercial manner.

[51] Clause 17.6 cannot be regarded as ancillary to the remainder of clause 17. The remainder of the clause deals with Schefenacker and its employees. It is not a machinery provision associated with any other part of the agreement. I cannot consider this provision to be ancillary to the dispute resolution functions. If such a provision were to be the subject of a dispute on the basis that wage increases accorded to labour hire contractors were different to those applied to Schefenacker employees, the resolution of this matter would revolve around either contractual obligations, or the issue of whether a labour hire contractor, not party to the agreement, had followed an instruction issued by Schefenacker.

[52] On the basis of the Electrolux decision, the existence of clause 17.6 in the agreement precludes certification of the agreement. Had the parties intended to apply the agreement to labour hire contractors contracted to Schefenacker, the facility exists for an agreement to be made and the certification to be sought pursuant to section 170LC of the Act as a multiple business agreement. Such an approach would remove this impediment to certification and address the direct concerns of the unions over rates of pay applicable to employees of labour hire contractors.

Employees may choose to salary sacrifice part of their wage for pre-tax benefits, in accordance with the rules of the Australian Taxation Office. The amount of salary sacrifice will be deducted from the employee's gross wage.

Salary sacrifice does not reduce the employee's hourly gross rate of pay for the purposes of award entitlements (including accrued entitlements and the application of penalty rates).

The amount of salary sacrifice nominated by the employee must not reduce the employee's ordinary time earnings below the award rate for the employee's classification as stated in the Metal, Engineering & Associated Industries Award 1998.

In the event that the law governing taxation changes in such a way as to make the objective of this clause ineffective, unattainable or illegal, the company will advise the employees concerned and the salary sacrifice contribution arrangement will be amended or terminated."

[54] The AMWU argues that the clause fundamentally relates to remuneration and to machinery arrangements associated with how remuneration may be dispersed. The AMWU submits that the clause is distinguishable from those provisions found not to pertain to the employment relationship in R v Portus; Ex parte ANZ Banking Group Limited and Others[17] and Re: Alcan Australia Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees[18] in that it involves matters affecting employees as such, rather than the employees as union members. Relying on the Australia Taxation Office Ruling 2001/10 the AMWU argued that a salary sacrifice arrangement did not establish a debtor/creditor relationship of the type considered in Portus.

[55] The AWU similarly argued that this clause pertained to the employment relationship. The AWU argues that the proper construction of the High Court decision in Portus recognises that the clause permits such arrangements in the context of the employment relationship.

[56] Clause 26 was the only clause about which Schefenacker provided an observation. This was:

"In respect to clause 26 it is intended that this provision relate to the associated wage increases, which obviously has a direct relationship to the employer and employees'. Hence the intention here is for this provision to be ancillary to other clauses in the agreement and consequently pertain to the employment relationship."

[57] On its plain words, the clause provides that the difference between the award rate and the agreement rate may be allocated as a benefit by the employee other than wages, with the cost of this benefit, together with any consequent tax implications, being deducted from the employee's gross wages.

[58] The Australian Taxation Office Tax Ruling 2001/10 defines a salary sacrifice arrangement in the following terms:

"19. `Salary sacrifice arrangement' - in this Ruling, the term salary sacrifice arrangement means an arrangement under which an employee agrees to forego part of his or her total remuneration, that he or she would otherwise expect to receive as salary or wages, in return for the employer or someone associated with the employer providing benefits of a similar value. The main assumption made by the parties is that the employee is then taxed under income tax laws only on the reduced salary or wages and that the employer is liable to pay FBT, if any, on the benefits provided.

20. The type of benefits provided in SSAs by employers to employees includes superannuation contributions, the provision of motor vehicles and expense payment fringe benefits, such as payment of school fees, childcare costs or loan repayments.

21. `Effective SSA' - an effective SSA involves the employee agreeing to receive part of his or her total amount of remuneration as benefits before the employee has earned the entitlement to receive that amount as salary or wages.

22. `Ineffective SSA' - an ineffective SSA involves the employee directing that an entitlement to receive salary or wages that has been earned (see paragraph 23 of this Ruling) is to be paid in a form other than as salary or wages."

[59] In this respect, I have taken clause 26 as providing for what the Australian Taxation Office refers to as an "Ineffective SSA". The Tax Ruling provides that:

27. Payments made under an ineffective SSA to, or on account of, an employee are ordinary or statutory income derived by the employee at the time of payment for the reasons stated in paragraph 25 above. Benefits provided under an ineffective SSA are assessable income of the employee under section 6-5 or 6-10 of the ITAA 1997 and they are not exempt income under section 23L of the ITAA 1936. Remuneration related to a leave entitlement that has accrued before the issue of the SSA cannot be the subject of an effective SSA."

[60] The Australian Taxation Office Tax Ruling sets out the obligations on the employer to recognise various arrangements which might be regarded as salary sacrifice benefits for the purposes of Fringe Benefits Tax and other taxation obligations. It is clear that legislation treats salary sacrifice contributions to superannuation differently to other employee benefits.

[61] The effect of the salary sacrifice arrangements envisaged in clause 26 is that the employee may arrange for a limited portion of their remuneration to be paid into either superannuation or in another form which then provides a taxation benefit to the employee.

[62] I am satisfied that salary sacrifice arrangements for payments into an employee's superannuation is properly described as a matter pertaining to the employment relationship. This is clear from the conclusion reached by Menzies J in Portus.

"Each contention, it seems to me, involves the same critical question, namely, whether the imposition upon an employer of an obligation to make deductions and payments from salary in accordance with the authority of the employee to whom the salary has become due and payable affects the industrial relationship of employers and employees. The identity of the payee does not seem to me to be significant in determining the character of such a dispute, unless, of course, the payment relates to an incident of the employment such as a deduction for and payment to a superannuation fund. In my opinion, the relationship that would be affected by such an obligation is a financial relationship of debtor and creditor arising from the earning of salary, not the industrial relationship in which the salary has been earned and has become payable. What is sought, in reality, is to make the employer the financial agent of the employee for the benefit of the association.

It seems to me that the obligation sought to be imposed upon the banks is of the same character as one requiring the banks to open a deposit account for employees to pay earned salaries into that account and to disburse moneys in the account according to directions of the employees.

In my opinion, the facts before the Court disclose a dispute which is not an industrial dispute. It is, in truth, a dispute between the association and the banks about whether or not the banks should perform for the association a dues-collecting service. Indeed, as an indication that this is so, it is pertinent to observe that in places where what is called the "check-off" system does operate, unions who have members' dues so deducted and paid not infrequently pay the employers a commission for those services."

[63] Portus was decided in 1972, however the position adopted in Portus was endorsed by Gleeson CJ in Electrolux in the following terms:

"9. In one sense, anything that is capable of being made the subject of an agreement between an employer and employees could be said to be a matter pertaining to their relationship. An employer could agree, for example, to make regular donations to a particular political party. The established principle, however, is that, in the context with which this legislation is concerned, it is matters which affect employers and employees in their capacity as such that "pertain to the relations of employers and employees". Furthermore, a particular application of the principle, settled by authority, is that a proposal that an employer deduct amounts from the wages of future employees in their capacity as such. In Portus [(1972) [1972] HCA 57; 127 CLR 353 at 357], Barwick CJ said:

"In my opinion, the demand that the employer should pay out of earned wages some amounts to persons nominated by the employee is not a matter affecting the relations of employer and employee. It does not seem to me to advance the matter that the intended payee is the organization registered under the Act of which the employee is a member.""

[64] Whilst dealing with superannuation, the High Court in Re Manufacturing Grocers' Employees Federation of Australia: Ex parte Australian Chamber of Manufacturers[19] stated:

"21. What is important for the purposes of this case is that the claims made are, as we have said, no more than demands for the payment during the currency of an award of employer contributions to superannuation schemes which will take an approved form. It is because the claims are in this limited form that it is, in our view, impossible to sustain the argument that they are not made with respect to industrial matters, whatever may have been the position had the claims been made in a more elaborate form.

22. It may be observed generally that superannuation benefits are commonly regarded as being an aspect of the terms or conditions of employment, being in many circumstances in the interests of both employer and employee. They provide a reward for long and faithful service and afford security to an employee which may be conducive to a stable and productive relationship between him and his employer. They encourage loyalty on the part of an employee, although this will be a less important consideration if the benefits are "portable". Superannuation benefits are frequently offered as part of the total remuneration of a prospective employee as a means of attracting his labour and, having regard to the significant proportion of the workforce now entitled to superannuation benefits, no doubt in many instances as a necessary means of doing so. Relief from taxation arises from the provision of superannuation benefits both in the case of an employee and, where there are employer contributions, in the case of an employer. Previously a feature of employment in the public sector of the economy, the incidence of superannuation schemes in the private sector is frequent and increasing for reasons which may be readily understood. We would reject a submission made by the prosecutors, in reliance upon the observations of McTiernan J. in Hamilton Knight 47 (1952) 86 CLR, at p 301, that superannuation entitlements are by way of provision for the social security or welfare of employees or former employees and for that reason cannot form the subject of an industrial dispute. No doubt the payment of remuneration may obviate to a greater or lesser extent the need for government to provide for the social security or welfare of its citizens, but that is not to say that remuneration must be seen as payment of that kind and not as a reward for service - in the case of superannuation benefits, often as a reward for long service. As a matter of common understanding, entitlement to participate in a superannuation scheme and the means by which that scheme is to be funded are matters which pertain to the relations of employers and employees and fall within pars. (b), (c) and (h) of the definition of industrial matters in s. 4 of the Act."

[65] In the context of the Australian Taxation Office description of salary sacrifice arrangements, the distinction between this treatment of superannuation and other means of disbursing salary is not easily determined. Both require the employers and employees to relate as such. Salary sacrifice is impossible without the consent of the employer as the arrangement fundamentally relates to how the employee's salary is to be disbursed.

[66] Salary sacrifice does not involve an extra payment to a third party by the employer, it is about the redistribution of the employee's pay to provide a tax benefit for the employee. In this sense it differs from the arrangements considered in Portus and Alcan. Such arrangements do not establish a debtor/creditor relationship but are, instead, about the voluntary distribution of employee's income which is, in effect, at the discretion and the control of the employee.

[67] In Ballantyne Ross VP reached the following conclusion with respect to a clause about the deduction of union dues:

"[227] I am not persuaded that clause 46 of the Agreement is a matter which pertains to the relationship between the employer and employees bound by the Agreement. The High Court's judgments in Portus and Alcan are directly on point and should be followed. If a provision prescribing a bargaining agent's fee cannot be included in a certified agreement on the basis of the reasoning in these cases then clearly a provision that the employer deduct union dues from an employee's wages and remit them to the union cannot be included."

[68] I apply the same approach to salary sacrifice arrangements with some reluctance, in that whilst the High Court's observations are absolutely specific in this respect, if the issue were to be reconsidered today, a different conclusion could conceivably result.

[69] For these reasons I consider that clause 26 Salary Sacrifice represents an impediment to certification.

Each union shop steward covered by this agreement, and nominated by one of the two unions, shall be allowed up to 5 days paid leave per annum to attend trade union training courses conducted or approved by their union. The maximum paid trade union training leave for each of the two unions will be 15 days per annum. Unused leave can be used collectively by each union."

[71] The AMWU argued that this provision pertaining to the employment relationship. The AMWU relied on the Full Bench decision in Municipal Officers (Queensland) Consolidated Award 1975 and Municipal Officers (Queensland Harbour Boards) Award, 1977[20]. In that decision the Commission stated:

"These authorities confirm our view that a claim for a paid absence from work is a claim as to an industrial matter regardless of the purpose of the absence. It matters not whether the absence from work is for recreational purposes as in annual leave, or reasons arising out of the death of a relation as in bereavement leave, or on account of some religious or nation event as in some public holidays, or reasons associated with maternity or paternity, or for any other reason. The leave itself is a matter pertaining to the relations of employers and employees, and the purpose for which the leave is granted has no bearing on the question of whether such leave is an industrial matter."

[72] The AWU argues that as shop steward training leave was a matter that can, and has previously been legislated under Section 51(xxxv) of the Constitution, it refers to an industrial dispute and so pertains.

[73] The initial issue relative to this clause goes to the extent to which any form of leave can be described as a matter pertaining to the employment relationship on the basis that the purpose of the leave is irrelevant.

[74] In NUW v Le Cornu and others[21] a Full Bench of the Commission considered a range of leave claims in the context of a challenge to a dispute finding. This matter and others of a similar nature have established that there is not, about leave itself, such a character that all leave claims must, by themselves, pertain to the employment relationship.

[75] A claim for leave may well pertain to the employment relationship insofar as it impacts on the relationship of employees and employer as such.

[76] However, with respect to union training leave, the issue is whether, based on my consideration of the specific clause in the agreement, I consider that union training leave is a matter pertaining to the relationship between the employee and the employer as such. It is of course open to consider whether the clause has the fundamental purpose of promoting the role of the union, or is, in effect, a claim relating to employees as union members or delegates rather than as employees. Even if the clause is so characterised, it may still be held to pertain to the employment relationship on the basis that it is ancillary to other provisions of the agreement, particularly the dispute resolution provisions.

[77] I have reviewed the agreement in this context. Clause 38 creates an annual grant of leave at the discretion of the unions. This leave is available to shop stewards. The training courses are to be either conducted or approved by the unions.

[78] I am unable to characterise this clause as pertaining to the employment relationship as such. It is about the relationship of the unions, shop stewards and the employer. Employees as such are not mentioned. I can only regard the clause is a provision designed to further the interests of the unions. By itself, it does not pertain to the employment relationship.

[79] The agreement does not contain any provisions which allow the clause to be read as ancillary or incidental to the employment relationship or as a machinery provision. The content of the training courses is not referenced and there is no clear link between this clause and the agreement dispute resolution provisions. The dispute resolution provisions adopt the Metal, Engineering and Associated Industries Award provisions and hence establish a potential role for shop stewards. However, in the absence of any articulated link, the relationship between these provisions could only be the subject of guesswork. In contrast, the provisions of the clause governing Industrial Proceedings Leave clearly allows a linkage to the dispute resolution process.

[80] I have noted the conclusion reached with respect to a trade union training leave clause in an agreement by Ross VP in Ballantyne. However, I am unable to characterise the clause before me as leave being fundamentally about the relationship of the employer and the employee as such. Further, in the clause considered by His Honour in Ballantyne the purpose of the training that is, "...to attend courses conducted or approved by the Trade Union Training Australia Inc., which are designed to promote good industrial relations and industrial efficiency within the industry" was clear. This is not the case in the clause before me.

[81] I have concluded that, whilst union training leave may in some circumstances, be a matter pertaining to the employment relationship, the specific provisions in the agreement do not allow such a conclusion to be reached.

The company will continue to support deductions of union dues through payroll deductions."

[83] The AMWU position was that the clause pertains to the employment relationship on the basis set out in Atlas Steels which was endorsed by McHugh in Electrolux.

[84] The AWU referred to the decisions of the High Court in Portus and Alcan but also concluded that the Full Bench decision in Atlas Steels provided the basis upon which the Commission should find that this provision pertained to the employment relationship.

[85] I have already referred to the position adopted by Menzies J in Portus relative to union fee deductions. In Alcan the High Court reviewed the conclusion reached in Portus. The joint judgements of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ concluded:

"There are, in our view, three matters which tell persuasively against reconsideration of Reg v Portus. The first is that the principle on which it proceeds, namely, that for a matter to "pertain to the relations of employers and employees" it must affect them in their capacity as such, has been accepted as correct in a number of subsequent cases 38 See, eg, in relation to Reg v Portus: Reg v Coldham; Ex parte Fitzsimons (1976), 137 CLR 153, at pp 162, 163-164; Federated Clerks' Union of Australia v Victorian Employers' Federation [1984] HCA 53; (1984), 154 CLR 472, at pp 482, 488; Re Manufacturing Grocers' Employees Federation of Australia; Ex parte Australian Chamber of Manufactures [1986] HCA 23; (1986), 160 CLR 341, at pp 352-353. See also Re Finance Sector Union of Australia; Ex parte Financial Clinic (Vic) Pty Ltd (1993), 178 CLR, at p 363 and the cases there cited., with no question ever arising as to whether the principle was correctly applied in the case. The second is that Parliament re-enacted, in s 4(1) of the Act, words which are almost identical with those considered in Reg v Portus. There is abundant authority for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already "judicially attributed to [them]" 39 Barras v Aberdeen Steam Trawling & Fishing Co, [1933] AC 402, at p 446, per Lord Macmillan. See also D'Emden v Pedder [1904] HCA 1; (1904), 1 CLR 91, at p 110; Pillar v Arthur [1912] HCA 51; (1912), 15 CLR 18, at pp 22, 25, 29-30; Platz v Osborne [1943] HCA 39; (1943), 68 CLR 133, at pp 141, 146, 146-147., although the validity of that proposition has been questioned 40 Salvation Army (Victoria) Property Trust v Shire of Fern Tree Gully [1952] HCA 4; (1952), 85 CLR 159, at pp 174, 182; Reg v Reynhoudt [1962] HCA 23; (1962), 107 CLR 381, at p 388; Flaherty v Girgis [1987] HCA 17; (1987), 162 CLR 574, at p 594.. But the presumption is considerably strengthened in the present case by the legislative history of the Act.

The Committee of Review into the Australian Industrial Relations Law and Systems, whose report preceded the enactment of the Act, recommended that the jurisdiction of the tribunal be extended to the limits of the constitutional power under s 51(xxxv) 41 Report of the Committee of Review, Australian Industrial Relations Law and Systems, April 1985, vol 2, par 7.10.. Yet Parliament adopted, in almost identical terms, the language of the former Act into the Act, and the Minister acknowledged in his Second Reading Speech that the jurisdiction was to be limited by "the requirement that disputes relate to matters concerning employers and employees" 42 Commonwealth, House of Representatives, Parliamentary Debates, Hansard, 28 April 1988, p 2336.. These considerations reinforce the presumption that Parliament did not intend to overturn Reg v Portus.

The third matter that tells against a reconsideration of Reg v Portus is that, academic criticism notwithstanding 43 See, eg, the note at Australian Law Journal, vol 47 (1973), p 42; Sorrell, Law in Labour Relations: An Australian Essay (1979), pp 13-14., there is no reason to think it is in any way affected by error. The considerations which lead to the conclusion that a dispute as to deduction of union dues (at least, where authorized by individual employees) is an industrial dispute within s 51(xxxv) of the Constitution, tend in favour of the conclusion that the subject matter does not pertain to the relationships of employers and employees in their capacity as such. Those considerations, which depend on the nature and role of trade unions in Australia, show that although the subject matter pertains to a relationship between employers and employees, it is a relationship involving employees as union members and not at all as employees. That appears even more clearly if, as earlier suggested, the industrial character of the claim for the purposes of s 51(xxxv) comes about only in the case of a claim for employee-authorized deductions. Finally and so far as the statutory definition of "industrial dispute" is concerned, the character of a claim for the deduction of union dues is not altered simply because it is bound up with a claim for a wage increase equivalent to the dues to be deducted."

[86] In Electrolux, McHugh J referenced Atlas Steels in the following context:

"79. Section 170LI, however, does not refer to the relationship between the employers and employees generally, but rather to the relationship between the employer bound by the agreement and all persons employed in a single business of that employer. As the Full Bench of the Commission (Giudice J, McIntyre VP and Whelan C) observed in Re Atlas Steels Metals Distribution Certified Agreement 2001-2003 [(2002) 114 IR 62 at 66]:

"The terms of s 170LI(1) indicate that the nature of the matters is to be assessed by reference to the relationship between the employer and the employees to whom the agreement applies rather than by reference to a generalised notion of the relationship between employers and employees."

For example, there may be matters particular to the relationship between an individual employer and the persons employed in a single business of that employer. Those matters may not pertain to the relationship between employers and employees generally in their capacity as such. But they may pertain to the requisite relationship in that workplace and require an examination of the issue or issues between the parties that give rise to the claims [See Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Ltd [1993] HCA 81; (1993) 67 ALJR 604 at 609, 612 per Gaudron J (Brennan, Dawson and Toohey JJ agreeing), 617-618 per McHugh J; [1993] HCA 81; 113 ALR 421 at 428, 432, 439-440].

80. The analytical framework that the Court adopted in Re Alcan and Portus to determine what is a matter that pertains to the relationship between an employer and its employees is whether the matter affects the relationship of employers and employees in their capacity as such_. Such an approach applies both to employers and employees_ generally and to particular employers and the persons employed in their business."

[87] Notwithstanding this, the majority position adopted in Electrolux clearly applied the approach used in Portus and Alcan.

[88] I have contrasted the specific provisions of clause 43 with those applicable in both Atlas and Alcan. In this instance the commitment is to continue to support deductions. Previous agreements indicate that this is clearly a longstanding arrangement, the exact operation of which I have not been able to determine. I consider it unlikely that deductions are authorised by employees, but there is no information before me in this respect. Further, there is nothing that goes to the extent of the application of this arrangement, or whether there is any commission paid to Schefenacker in recognition of the arrangement. The clause appears to have been inserted in Schefenacker agreements following the simplification of the Metal Engineering and Associated Industry Award in 1998.

[89] In contrast, Atlas Steels dealt with a far more specific provision which was dependent on written authority. Similarly Alcan dealt with a provision which was dependent on an employee request for or authorisation of the deduction arrangement.

[90] In Atlas Steels the Commission differentiated the position it had adopted from that applied in Portus on the following basis:

There are other expressions of a similar kind to be found in the judgments. It is clear that in characterising the claim the Court was concerned with the nature of the Commission's arbitral power and not with its power in relation to agreements."

"[39] 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."

[92] I have adopted this position such that a consideration of specific agreement provisions may allow a conclusion that the subject matter may be a matter pertaining to the employment relationship. In this instance this clause does not allow me to conclude that deductions are authorised. It represents a significant divergence from the provisions considered in Atlas and has about it the character of an arrangement between Schefenacker and the unions. On this basis I am unable to describe this clause as a matter pertaining to the employment relationship, even if I accept Atlas as authority for inclusion of clauses of this nature as matters pertaining. Given the High Court decision in Electrolux, I doubt that this is sustainable.

[93] Further, I cannot consider it to be an ancillary or incidental provision with respect to other agreement provisions. It is simply not relied upon by any other provision.

46.1 An official or officer of the union/s shall have the right to enter the employer's establishment with the permission of the employer for the purposes of conducting legitimate union business.

46.2 The employer shall recognise appointed union shop stewards in the enterprise upon notification by the union to which the employee belongs. The shop steward shall be allowed mutually agreed time during working hours to interview employees and the employer or the employer's representative on matters affecting employees whom they represent. The shop stewards shall be allowed reasonable time during working hours to interview a union official from their union on legitimate union business.

46.3 Each union will be allowed 2 shop stewards on day shift, 1 on afternoon shift and 1 on night shift. A maximum of 1 shop steward (per union) on day shift may be a tradesman.

46.4 Shop stewards will be given the opportunity to introduce themselves at the company off-the-job induction program. Shop stewards will also be given a list of new starters."

[95] The AMWU submits that the right of entry provisions pertain to the employment relationship on the basis of the approach applied by the High Court in Federated Clothing Trades of the Commonwealth of Australia v Archer and Others[22] and the Federal Court in Re Meneling Station Pty Ltd and Australasian Meat Industry[23]. Further, the AMWU argues that right of entry was envisaged to be a matter pertaining to the employment relationship by the Parliament when the Workplace Relations and Other Legislation Amendment Bill was introduced in 1996.

[96] On the shop stewards provision, the AMWU argues that a consistent provision was held to be an ancillary matter relative to the representation of employees by Merkel J in Electrolux at first instance and that this decision was upheld by the High Court in Electrolux. Further, the AMWU submits that in the event that any part of this clause does not directly pertain, it should be considered to be ancillary to matters that do so, or to be of a machinery nature.

[97] The AWU references the Australian Tramways Employees Association v Prahan and Malvern Tramway Trust[24] and asserted that similar provisions had not been identified as being at issue in Portus.

[98] The clause deals with the right of entry for union officials to conduct legitimate union business.

[99] Right of entry provisions vary substantially insofar as some provisions allow for a right of entry for union business whilst others express a purpose of the right of entry as relating to compliance with the agreement, or issues affecting employees.

[100] I have considered the various authorities referenced by the unions in their submissions on the basis of the specific provision at issue here.

[101] I consider that there is the capacity for the recognition of a right of entry provision as a matter pertaining to the employment relationship. Notwithstanding the criticism of Archer's Case by the High Court in Cocks' Case, that much is clear from the extent to which certain provisions have been accepted in the past and the provisions initially proposed for inclusion in the Workplace Relations and Other Legislation Amendment Act.

[102] Central to the consideration of this clause is the extent to which the purpose of the entry, namely the conduct of legitimate union business, can be considered to be either a matter pertaining, or incidental to such a matter.

[103] Legitimate union business refers to activities allowable under the union's rules. It extends to recruitment of new members.

[104] In Unilever North Rocks Enterprise Agreement 2003[25] Cartwright SDP considered the extent to which a right of entry provision predicated on "genuine union business" pertained to the employment relationship. In that matter His Honour concluded that the clause did not pertain and could not be regarded as ancillary to a pertaining provision.

[105] SDP Cartwright's decision was overturned on appeal.[26] I have noted that in Ballantyne Ross VP relied upon this appeal decision in considering the specific provision before him.

[106] In National Standards Commission Certified Agreement 2003-2004[27] Lawler VP considered a right of entry provision directed at legitimate organisation business. In that matter His Honour concluded that the clause did not pertain to the employment relationship.

[107] I have adopted his approach in this matter and have then turned to consider whether the provision can be regarded as ancillary to another pertaining provision, or machinery in nature. I do not consider that this is the case. Because of the way the clause is expressed it may have an impact on dispute resolution provisions, but this is so indirect, that I am unable to conclude that the clause can be described as ancillary or machinery in nature. I stress that this decision is based on the specific provisions of the clause before me.

[108] The second component of clause 46 details provisions relative to shop stewards. I am unable to conclude that these provisions pertain to the employment relationship. They detail arrangements which determine the recognition of an employee as a shop steward rather than as an employee. Further, they establish an admissible number of shop stewards and, finally, the rights available to shop stewards as such. These provisions are not about the relationship of employees and the employer.

[109] However, the agreement dispute settlement provisions, adopted from the Metal, Engineering and Associated Industries Award 1998, establish a specific role for shop stewards. Each of the provisions set out in clauses 46.2, 46.3 and 46.4 can be related directly to the dispute settlement function undertaken by shop stewards, such that I have determined that these provisions are ancillary to the dispute resolution provisions of the agreement.

[110] On this basis I have found that clauses 17.6, 26, 38, 43 and 46.1 do not pertain to the employment relationship and cannot be regarded as ancillary or incidental to such a provision, or machinery.

[111] Electrolux established that the provisions of an agreement must be about the employment relationship and that section 170LI of the Act only allows for the certification of an agreement where all of the terms of that agreement are matters that pertain to the employment relationship.

[112] I have considered the extent to which the capacity exists to excise or change the provisions that represent an impediment to certification of the agreement.

[113] The AMWU and the AWU have put to me that there is no capacity under the Act for the Commission to unilaterally change the agreement in such a circumstance.

[114] I agree with this position and consider that the Act establishes a number of mechanisms by which an agreement can be reached. Leaving aside a greenfields agreement, each of the alternative approaches are founded on employees having the opportunity to consider a proposed agreement before deciding whether to endorse it by way of a valid majority.

[115] I consider that the appropriate approach in this matter is for the parties to redraft the agreement in view of this decision and for the employees to then be given the opportunity to approve or reject any such proposal.

[116] For these reasons the application for certification is dismissed.

D Metcalf representing Schefenacker Visions Systems Pty Ltd.

A Plant and G Regione on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

N Llewellyn-Jones and J Hanson on behalf of the Australian Workers' Union.

Printed by authority of the Commonwealth Government Printer

1 [2004] HCA 40 (2 September 2004) ("Electrolux")

3 [1994] HCA 34; (1994) 181 CLR 96

6 (1984) CLR 472

7 [1983] HCA 19; (1983) 153 CLR 297

8 [1978] HCA 51; (1978) 140 CLR 470 ("Moore's Case")

9 (1987) CLR 117 ("Cram Case")

10 [1935] HCA 79; (1935) 54 CLR 387

15 1981 SASR 535

16 [1968] HCA 86; 1968 121 CLR 313 ("Cocks' Case")

17 [1972] HCA 57; (1972) 127 CLR 353 ("Portus")

18 [1994] HCA 34; (1994) 181 CLR 96 ("Alcan")

19 [1986] HCA 23; (1986) 160 CLR 341

22 [1919] HCA 34; (1919) 27 CLR 207 ("Archer's Case")

23 (1987) 22 IR 149

24 [1913] HCA 53; (1913) 17 CLR 680