Electrolux Home Products Pty Ltd v Australian Workers' Union
[2004] HCA 40(Judgment by: Kirby J)
Electrolux Home Products Pty Ltd
vAustralian Workers' Union
Judges:
Gleeson CJ
McHugh J
Gummow J
Kirby JHayne J
Callinan J
Heydon J
Legislative References:
Workplace Relations Act 1996 (Cth) - Pt VIB; Div 2; Div 8; s 170ML; s 170LI
Industrial Relations Act 1988 (Cth) - s 4(1); Section 170MD
Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 - The Act
Workplace Relations Act 1996 - Pt VIB; s 170L; s 170NI)
Conciliation and Arbitration Act 1904 - s 4(1)
Judgment date: 2 September 2004
Judgment by:
Kirby J
[173] These three appeals from orders of the Full Court of the Federal Court of Australia [168] ., setting aside declarations made in that Court at first instance by Merkel J [169] ., concern primarily the meaning and operation of provisions of the Workplace Relations Act 1996 (Cth) ("the Act") relating to "protected action" on the part of industrial organisations of employees under the Act.
[174] As a secondary issue, the appeals concern whether an agreement propounded by the respondent Unions [170] ., presented to the Australian Industrial Relations Commission ("the Commission"), was certifiable under the Act, on the basis that it contained terms [171] . "about matters pertaining to the relationship between ... an employer ... and ... all persons who, at any time, are employed in a single business ... of the employer and whose employment is subject to the agreement." Because all three appeals involve a consideration of the same points, they were heard together in this Court.
[175] The facts giving rise to the dispute between the Unions and the appellant, Electrolux Home Products Pty Ltd ("Electrolux"), are set out in other reasons [172] .. So are the applicable provisions of the Act [173] . and of earlier federal legislation on the relevant powers of the Commission and its predecessor [174] .. Also set out there are the details of the history of the dispute between the parties and of their litigation [175] . and extracts from the respective reasons of the primary judge [176] . and of the Full Court [177] .. The reader of these reasons will not want these details repeated for a fourth time.
[176] It will be necessary to refer in a little more detail to the reasons of the Full Court in order to understand the considerations that led that Court to its conclusions, different from those of the primary judge. However, it is unnecessary to repeat any of the foregoing material. Incorporating it by reference in these reasons allows me to go directly to the essential points that need to be decided. In my view, the Full Court was correct in respect of each of them. The appeals to this Court should be dismissed.
The Unions' industrial action was within s 170ML(2)(e)
[177] The context of this dispute : The first issue is whether the Unions' industrial action in September 2001 was "protected action" within s 170ML(2) of the Act. In April 2001 the Unions had commenced discussions with Electrolux concerning a new agreement which the Unions proposed should be certified by the Commission under the Act. Those discussions were not fruitful. This led, in September 2001, to the Unions' notifying Electrolux of their intention to commence industrial action in support of their claims. The Unions clearly intended, and contemplated, that such industrial action would be "protected action" within the meaning of s 170ML of the Act. Industrial action was thereafter taken by the Unions, purportedly in reliance upon their notice and their claim to protection in accordance with the terms of the Act. The primary judge and the Full Court accepted that the Unions' claims (and by inference the proposed agreement) were genuine in the relevant sense [178] ..
[178] On the face of things, therefore, the Unions undertook the industrial action "for the purpose of supporting or advancing claims made in respect of the proposed agreement" [179] ., namely the agreement propounded by the Unions to Electrolux. However, the latter contended that the industrial action was not "protected" because it argued that a term of the proposed agreement, presented by the Unions to Electrolux, for what was described as a "Bargaining Agent's Fee" [180] . ("the Fee"), contaminated the "proposed agreement" and took it outside the Act.
[179] The Fee was intended to be applicable to each future employee of Electrolux who was not a member of an applicable union. According to Electrolux, the inclusion of the demand for the Fee took the "proposed agreement" outside the protection otherwise afforded to the Unions by s 170ML of the Act. It meant that the "proposed agreement" was not about a matter pertaining to the relationship between Electrolux and its employees. Accordingly, the inclusion of the term in the proposed agreement meant that the "proposed agreement" did not satisfy the requirements of s 170LI of the Act, was not capable of being certified and therefore was not a "proposed agreement" of the kind that attracted the protection to which s 170ML(2)(e) of the Act referred.
[180] According to Electrolux, it followed that the industrial action taken by the Unions, purportedly in respect of the "proposed agreement", was not "protected" industrial action. In law, it was unprotected. On that footing the declaration to such effect made by the primary judge (or other appropriate remedies) were available to Electrolux to give effect to that conclusion. Electrolux could, as it purported to do, refuse to negotiate on the "proposed agreement". The industrial action of the Unions, being outside of the Act's protection, was unlawful. The Unions, by inference, were liable to Electrolux accordingly.
[181] The other members of this Court find these arguments persuasive. I do not. I will shortly say why.
[182] A purposive interpretation : First, as in the interpretation of any legislation, including federal legislation, it is important to give meaning to the contested provision so as to give effect to the implied purpose of the Parliament derived from the language in which it has expressed that purpose.
[183] The context states, or suggests, the first purpose. This was to restore the capacity of employees and employers, with or without the interposition of arbitrated awards, freely to negotiate employment conditions to govern employment relationships. They were to be able to do so largely on an enterprise basis, without all of the constraints of arbitrated industry-wide awards that had been such a feature of the regulation of Australian industrial conditions virtually from federation and until recent years [181] ..
[184] Much was made in argument of the use in the Full Court's reasons of the entitlement of organisations, employees and employers to engage in industrial warfare within strict and objectively definable limits. That expression is to be deprecated [182] .. A better phrase might have been chosen, certainly one less provocative to the faint-hearted who recoil from the playing out of market forces in economic conflict at an enterprise level untamed, as in the recent past, by the interposition of representative bodies of employers and employees and the processes of dialogue, rational argument and formal decision-making by the Commission and its predecessors.
[185] However, the purposes of the new arrangements, inserted by Pt VIB of the Act, undoubtedly included a restoration of economic bargaining in which raw economic power at an enterprise level will, in some cases at least, replace the previous procedures of compulsory arbitration. This fact, and the apparent purposes of Pt VIB of the Act, make it correct, as the Full Court remarked, to say as North J did in Australian Paper Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [183] .:
The purpose of this statutory scheme is to allow negotiating parties, both employer and employee, maximum freedom consistent with a civilised community to take industrial action in aid of the negotiation of agreements without legal liability for that action.
[186] This is the starting point for the understanding of s 170ML(2) of the Act and the ascertainment of its meaning. The subsection is to be construed in a context of a revival of robust enterprise bargaining, initiated by demands on employers, including by industrial organisations of employees on behalf of employees.
[187] Avoiding disproportionate interpretations : Secondly, the provisions of Pt VIB of the Act, in which s 170ML appears, are written to introduce a significantly new industrial relations regime. The Act, and even the words of the critical section [184] ., pick up language with a long history and repeat its words in this new context. It should not, therefore, be entirely surprising that the Act would contemplate, in an Australian industrial relations setting, that a "proposed agreement" would, or might, include claims for terms that exceed the more sober expectations of the party making such claims.
[188] This has been a feature of proposals for industrial benefits since virtually the earliest days of federal legislative participation in industrial relations regulation. For constitutional reasons, it gave rise to the "log of claims" procedures and ambit claims [185] .. But even placing that peculiar feature of the award system to one side in the new context of the Act, the very nature of industrial or employment bargaining, aiming to reach an "agreement" about employment conditions, contemplates (and virtually demands) that one side will make claims for industrial conditions that it may, or may not, expect to secure. Thus benefits may be sought by unions that may be watered down, modified or deleted as the negotiations proceed. This is part and parcel of the reality of employment bargaining, as of other forms of negotiation. It is unsurprising that it should exist in the contemporary Australian industrial relations context.
[189] Realism on the part of this Court requires it to face this reality. It suggests that it would be odd in the extreme that the mere inclusion in a "proposed agreement", propounded by a union to an employer, of a clause that was excessive to the more modest expectations (or that might even be outside the ambit of those that would, or could, later be certified by the Commission) would deprive the entire "proposed agreement" and the industrial organisation propounding it of protection from unlawfulness in the statutory scheme introduced by Pt VIB of the Act. That would be such a disproportionate and excessive consequence that it naturally sends the rational mind looking for another interpretation of s 170ML, if such be available in the language of the section [186] ..
[190] The practical needs of industrial negotiations : Thirdly, the search for a rational and practical meaning to the language of the Act is made the more urgent by the dramatic consequences of denying protection to a union for industrial action taken following a "proposed agreement" as provided by the Act. The union might scrupulously go through all of the formalities contemplated by the Act: preparation and service within time of the "proposed agreement"; genuine negotiation; recognition of the failure of negotiations; notice to the employer of intended industrial actions and so forth. Yet all such precautions could be set at nought by a subsequent judicial declaration, perhaps months or even years later in contested legal procedings (such as the present), to the effect that a particular clause (possibly minor) fell outside the permissible subjects of an entirely separate and later process committed to others -- namely certification of the "proposed agreement" by the Commission. As the Full Court correctly said, "a high degree of certainty is essential" [187] . as to whether industrial action can be taken lawfully and is protected or not protected. Their Honours went on, in words that I would endorse [188] .:
If parties are to make rational and confident decisions about their courses of conduct, they need to know where they stand. It would be inimical to the intended operation of Pt VIB to interpret s 170ML(2)(e) in such a way as to make the question whether particular industrial action is 'protected action', and therefore immune from legal liability, depend upon a conclusion concerning a technical matter of law: whether a particular claim, if conceded, would cause any resultant agreement to fall outside s 170LI(1). As this case demonstrates, that may be a matter about which well-informed people have different views.
[191] The present point has even more telling persuasiveness in this Court. In this case the industrial action was taken as long ago as September 2001. By the time this Court's decision is announced, three years will have expired before the issue is finally determined with reference to this particular "proposed agreement". This Court should remember that industrial disputes often involve highly dramatic and urgent matters. The Parliament, at least, is to be taken to know that. The history of this country, going back to inter-colonial conflicts that first led to the inclusion in the Constitution of a relevant head of legislative power in respect of individual conciliation and arbitration, grew out of the recognition that, in this field, time is often of the essence. In construing Pt VIB of the Act, this Court should therefore prefer a construction that gives effect to that awareness; not one that inflicts delay, uncertainty and inordinate risk upon the industrial process.
[192] Realistic liability of industrial negotiations : Fourthly, the importance of securing protection against civil liability is not a minor matter. In the past, it might have been contemplated that institutional liability on the part of organisations of employees for unprotected industrial action might not be enforced. Such could not be assumed in current industrial circumstances. The provision of legal protection against liability for such industrial action is now a highly practical and important consideration for individual organisations, especially one might say for an organisation of employees that is party to negotiations under the Act [189] .. The Parliament would also have known this fact. It can be assumed that the Act was drafted on the basis of this reality.
[193] To expose an industrial organisation of employees to grave, even crippling, civil liability for industrial action, determined years later to have been "unprotected", is to introduce a serious chilling effect into the negotiations that such organisations can undertake on behalf of their members. It would be a chilling effect inimical to the process of collective bargaining, including by such organisations on behalf of their members, as contemplated by the Act. These features of the industrial realities, against the background of which the scope of "protected action" is to be defined in accordance with the Act, lend support to the construction of the Act preferred by the Full Court. At least without very clear language -- much clearer than appears in the Act -- I would, like the Full Court, not be persuaded to interpret the Act so as to narrow the scope of legal protection for the bargaining actions of such organisations. At least, I would require very clear statutory language to drive me to such an artificial, inconvenient, unrealistic and potentially discriminatory result.
[194] The generality of words of the Act : Fifthly, the text of the Act itself must be analysed. I will set out the relevant provisions of s 170ML(2) with the appropriate emphasis to permit my point to be made more clearly:
During the bargaining period:
- (a)
- an organisation of employees that is a negotiating party;
...
is entitled, for the purpose of :
- (e)
- supporting or advancing claims made in respect of the proposed agreement ;
...
to organise or engage in industrial action directly against the employer and, if the organisation ... does so ... that industrial action is protected action .
Most of the qualifying requirements necessary to render the Unions' industrial action in the present case a "protected action" are unquestionably established. The critical words that require attention concern whether the action is "for the purpose of ... supporting or advancing claims made in respect of the proposed agreement."
[195] The very generality of the words of connection ("for the purpose of" and "in respect of") support an interpretation of s 170ML(2) that would read the subsection in a broad way and not narrowly. The subsection does not provide explicitly for a loss of protection if there is later found a disqualifying demand in the "proposed agreement". Still less does it restrict the protection provided to a case where the industrial action is taken in order to enforce each and every demand made in the "proposed agreement". On the contrary, the words of connection oblige the reader to characterise the general nature of the industrial action -- its purpose and what it is done "in respect of". In accordance with the terms of s 170ML(2), this necessitates characterising the industrial action as a whole. The context reinforces such a reading.
[196] In my view, it is a serious mistake of interpretation to read the scope of the protection offered by the Act in the way favoured by the majority in this Court. Not only is that an impractical and narrow construction incompatible with the context and with the Parliament's language and purpose. It is one that has the effect of defeating a specific remedial protection against civil liability afforded by the Parliament to industrial organisations, such as the Unions. As the interpretation upholding that protection conforms to the statutory text and purpose, and sustains the effectiveness of the important right of collective bargaining about employment conditions, it is the one that this Court should prefer.
[197] Confirmation by later amendment : Sixthly, if the Parliament intended to adopt a narrower protection with respect to industrial action "for the purposes of" and "in respect of" the "proposed agreement", it would have said so. Indeed, the Parliament later did say so in terms of the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 (Cth) [190] .. The terms of the last-mentioned Act do the work that the Act, as it stood at the time relevant to the present industrial action, did not.
[198] In former times, it might have been argued that the passage through the Parliament of reformatory and amending legislation amounted to an acceptance and endorsement of the interpretation of the Act adopted by the Full Court which this Court should not therefore change upon the assumption that the supervening legislation was unnecessary or redundant [191] .. We now live in more enlightened and realistic times. Such interpretative myths are not now endorsed. Their assumptions are not attributed to the legislature [192] .. In advance of an appellate outcome, the Parliament is normally entitled to make its will perfectly plain. Subject to any constitutional limitations, it may later correct the outcome of a judicial decision of which it disapproves, leaving it to appellate courts to declare later whether that decision was, or was not, correct in the particular case.
[199] Nevertheless, the supervening legislation is at least available to a court reviewing the earlier decision to demonstrate how it was possible to remove doubt that was found to exist in the legislation as it previously stood. Such is the case here. Where the Parliament intended to cut back important protections, safeguarding valuable rights of protected collective bargaining, it should say so clearly -- as it has now done and could have done earlier if that had been its earlier purpose.
[200] Confirmation of the specialist court : Seventhly, although this Court has its own constitutional and appellate functions to discharge in relation to the interpretation of the Act, it is sensible for it to give proper weight to the opinions and approaches of the bodies having the relevant expertise in the interpretation of such specialised legislation. In this case, this means the Federal Court, in whose Full Court disputes of this kind do, and should, normally finish [193] ., and in the Commission. Although the Commission has expressed different views over time concerning the effects of the law canvassed in these appeals, its last word in respect of a contest, arising before the statutory amendment took effect, analysed past decisions of Full Benches of the Commissions. It confirmed the approach that the totality of the proposed agreement had to be considered in assigning a character to it as required by the Act [194] .. This supports the general approach of the Full Court. Where experts in the field adopt an interpretation of the legislation, this Court will usually anchor a differing approach in very clear statutory provisions. Yet such clear provisions are absent in this case. On the contrary, the statutory text supports the views adopted by the Full Court, as I have demonstrated. Those views take full account of industrial realities and the practical way in which the legislative protection of industrial organisations engaged in collective bargaining was to be taken as intended by the Parliament in the form in which the Act previously stood.
[201] Conclusion : the objection fails : For these reasons, the appeals to this Court from the substantive issue decided by the Full Court of the Federal Court fail. The orders of that Court, which rested upon its decision on this point, are sustained. The other matters argued are either premature and not the proper subject of relief by way of declaration or hypothetical in the state of the proceedings as they stood when the challenge was before the Federal Court. Especially because of the supervening amendment of the legislation, it is unnecessary to decide them. No costs orders turn on the resolution of the remaining points. It was common ground that no costs orders should be made by this Court. It follows that the appeals should be dismissed.
The Unions' claim was within s 170LI(1) of the Act
[202] The context of the dispute : Because the majority of this Court reaches a different conclusion about the disposition of the argument concerning the operation of s 170LI(1), and because that question was fully debated before this Court and is the subject of the reasoned opinions of others [195] ., I will deal with it briefly.
[203] The critical question is whether the proposed agreement, if it contained the "Bargaining Agents Fee" at the time it was propounded, would have been "an agreement ... about matters pertaining to the relationship between ... an employer ... and ... all persons ... employed in a ... business ... whose employment is subject to the agreement."
[204] It may be accepted that this question is to be determined according to the substance not simply the form of the "proposed agreement". It may be accepted that the mere demand by the Unions upon an employer concerning the terms of employment of future employees does not make the subject of the demand a "matter pertaining to" the employment relationship. It may also be accepted that a task of classification is involved which, once again, requires characterisation by the Court of the "matters" contained in the "proposed agreement" the subject of the application.
[205] The argument of Electrolux, supported in this Court by the Minister for Employment and Workplace Relations who intervened in the interest of Electrolux, was that the applicable "matter" involved a "matter" solely between future employees of Electrolux and the Unions. In short, the Unions had sought to make Electrolux a "collecting agent" for a new fee between the Unions and non-members who happened to be employees of Electrolux. This was not therefore a "matter" pertaining to the "relationship" between such an employee and the employer. The relevant "relationship" was between the employee and the union.
[206] I accept, focussing solely on the text of the Act read narrowly, that this is an arguable construction. The fact that the primary judge accepted it [196] ., and that others in this Court now have done so, shows that it is one way of looking at the statutory language. By the time contested questions of statutory construction reach this Court, it is rare indeed, if ever, that one can say that only one interpretation is arguable [197] .. Differences of interpretation suggest, or demonstrate, differing starting points or values that influence the decision-maker, consciously or unconsciously. A reading of earlier decisions of this Court concerned with award provisions for deductions of union dues from employment salaries appears at first blush to lend support to the proposition advanced by Electrolux: R v Portus ; Ex parte ANZ Banking Group Ltd [198] . and Re Alcan Australia Ltd ; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [199] .. However, this case is yet another illustration of the danger of reading judicial observations out of context. It demonstrates the need, in matters of statutory construction and characterisation, to focus on the language used by the Parliament, not the language used by judges in other contexts.
[207] Changing constitutional connection : First, the background to the problem concerning this Court in Portus and Re Alcan can be traced to the constitutional necessity of preventing the then Conciliation and Arbitration Commission from exceeding its constitutional mandate. At the time of those decisions, that mandate was relevantly confined to the provisions of s 51(xxxv) of the Constitution. The constitutional text continued therefore to take the Court back to the words "industrial dispute" in that paragraph of s 51(xxxv) as elaborated by the then provisions of the Conciliation and Arbitration Act 1904 (Cth) [200] . ("the 1904 Act") necessarily drawn with the provisions of the Constitution in mind. The Act in its present form operates in a considerably wider constitutional context. This is because of the utilization by the Federal Parliament of other relevant heads of constitutional power, including that derived from the corporations power [201] . and the external affairs power [202] . -- the latter concerned with giving effect in federal law to certain Conventions of the International Labour Organisation to which Australia is a party. In these circumstances, to read down the provision of s 170LI(1) by reference to earlier judicial dicta, written in a significantly different constitutional and statutory context, invites error. It is an error which this Court should avoid by adhering closely to the statutory words, read now in a larger constitutional context, without the same implication that it is necessary to read down the supposed restriction on "matters pertaining to" the identified relationship in order to avoid exceeding the constitutional bounds understood to exist in s 51(xxxv) of the Constitution.
[208] Developing constitutional understanding : Secondly, even within that former context, it needs to be borne in mind that this Court's decisions were not always entirely consistent with each other over the course of the century during which the Court described the ambit of what could constitute an "industrial dispute" within the Constitution and the statute. Thus, originally, this Court took a comparatively broad view of what could constitute an "industry" and could be subject to an "industrial dispute" [203] .. But then a majority restricted that notion by reference to supposed constitutional limitations that necessarily cut back the understanding of the statutory language [204] .. The result, for many years, was a restricted view of the Constitution and of the statute [205] .. This lasted until a wider view was adopted befitting the constitutional context and the larger statutory function envisaged [206] ..
[209] A similar course of decisional history can be found in the cases concerned with the meaning of an "industrial dispute". In its earliest years, this Court was highly protective of what came to be described as the "management prerogatives" of employers. Despite union demands made on employers in the industrial and employment context, so-called "management prerogatives" were commonly deemed to fall outside the scope of the constitutional power and hence of the applicable legislation [207] .. One of the strongest proponents of restriction upon interference in such "management prerogatives" was Barwick CJ. In R v Commonwealth Conciliation and Arbitration Commission ; Ex parte Melbourne and Metropolitan Tramways Board (Tramways No 2 ) his Honour put it thus [208] .:
Whilst it is a truism that both industrial disputes and awards made in their settlement may consequentially have an impact upon the management of an enterprise and upon otherwise unfettered managerial discretions, the management of the enterprise is not itself a subject matter of industrial dispute.
[210] With respect, there are reflections of similar views in some of the reasons now offered in disposing of these appeals. Yet gradually this Court reformulated its view of what constituted an "industrial dispute" for constitutional purposes so that implications of industrial demands upon "management prerogatives" came to be seen, in some cases, as legitimate subjects of "industrial disputes", lawfully giving rise to the facility of conciliation and arbitration under the Constitution and the statute [209] .. It was inevitable that this process would occur because, in a sense, at the outset of Australia's industrial arbitration system, all decisions of the applicable tribunals constituted interferences to some degree in what had earlier been regarded as "management prerogatives". It was during this process of evolution in the perception by this Court of what "matters" did, and did not, sufficiently "pertain to the relationship between" employers and employees that a broader range of subjects came to be seen as within the ambit of industrial conflict and employment disputation.
[211] By the late 1970s, following a period of generally restrictive decisions [210] ., this Court began to evince a broader and, I should say, more industrially realistic, approach to the permissible subject matters of "industrial disputes" within the Constitution and the statute. The turning point was probably R v Coldham ; Ex parte Australian Social Welfare Union [211] .. In that decision, this Court returned to the broad view of an "industrial dispute" originally contemplated by O'Connor J in Jumbunna [212] . and by Higgins J in Federated Municipal and Shire Council Employees' Union of Australia v Melbourne Corporation [213] .. In a unanimous opinion in the Australian Social Welfare Union case, this Court said [214] .:
The words ['industrial disputes'] are not a technical or legal expression. They have to be given their popular meaning -- what they convey to the man in the street. And that is essentially a question of fact.
...
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.
[212] The rejection of the implied notion of a restriction on "interference" in so called "managerial prerogatives" began in this Court with Re Manufacturing Grocers' Employees Federation of Australia ; Ex parte Australian Chamber of Manufactures [215] .. It gathered force in Re Cram ; Ex parte NSW Colliery Proprietors' Assn Ltd [216] .. The decision in Re Alcan [217] ., upon which Electrolux relied so heavily in these appeals, must be read in the context of this evolution in this Court's doctrine concerning the industrial tribunals and hence the matters that were to be taken, within those powers, as pertaining to the relationship between an employer and employee.
[213] The Court in Re Alcan there emphasised the words of the applicable legislation. It rejected the importation of artificial constitutional impediments concerning direct deduction of union dues as outside the scope of constitutional and statutory notions of an "industrial dispute". Given the language of the Constitution s 51(xxxv), the history of its development on this topic, the growth of compulsory arbitration and its dependence in practice upon registered organisations such as unions, this was a natural development in the Court's thinking. In the result, this Court applied the meaning it attributed to the parliamentary language unchanged since the Court's earlier decision in Portus but came to a different conclusion. It would be a great misfortune if this Court were now to reverse this beneficial and well established line of doctrine and returned to a narrow view of the ambit of an industrial dispute and employment relationship and what could be the subject of an award or agreement concerning this. There is no warrant in Re Alcan to do so. At least without a clear and valid statutory warrant to do so, this Court should resist the temptation to turn the clock back, effectively severing the history of decisional authority in this Court in recent years.
[214] Changing statutory connections : Thirdly, when the course adopted by the Court in Re Alcan is considered here, there are two very important changes to the applicable legislative language, since Re Alcan was decided, that affect the usefulness of that decision as an authority. They are critical for the outcome of this point in the present appeals. The first is the insertion of the word "about" in the statutory definition in s 170LI of the Act. It is enough that the "agreement" propounded to the Commission, under the Division, is "about" a matter "pertaining to the [specified] relationship". There are thus two words of connection. Each broadens and deepens the ambit of the linkage that would render the "agreement" one to which the Act applies. "Pertaining to" is already a very wide phrase of connection; but it also appeared in the 1904 Act. What was not in the 1904 Act was the preposition "about".
[215] At the time of the events relevant to the present case, it was enough that the agreement should be about matters pertaining to the relationship. It was not even necessary, as such, that the agreement should actually "pertain to" the relationship itself. Quite clearly, this parliamentary expansion of the ambit of the connection between the claim and the employment relationship was deliberate. It was designed to enhance the permissible scope of the agreement and the connection between its subject matter and the employment relationship. This, then, is the first textual reason for distinguishing the holding in Re Alcan and for declining in this case to follow the same approach on the basis that such a course was mandated there because the Parliament had persisted with the use of the same statutory language. Here, it has not.
[216] Even more important is the signal given in s 170LI(1) that the relationship in question is one between an employee and an "employer who is a constitutional corporation". This makes it clear that the Parliament had decided to cut the Act loose from the controversies arising in the past from implied limitations considered as inherent in the notions of an "industrial dispute", as that phrase is used in s 51(xxxv) of the Constitution, and to substitute new and additional reliance on the relationships of an employee with a corporation qualifying as envisaged by s 51(xx) of the Constitution. In a stroke, a new constitutional foundation for federal regulation is created. It is no longer necessary to read into the resulting employment "relationship" limitations, broad or narrow, adopted for constitutional reasons in past cases such as Portus and Re Alcan. The Parliament has thus embraced a new constitutional paradigm. It behoves this Court to approach it without the blinkers apt to the old thinking reflected in Portus and continued in Re Alcan for narrow textual reasons of commonality of statutory language. We now have to apply different statutory language. We should re-focus our eyes on the present statutory words, freed from the earlier constitutional thinking.
[217] The correct interpretation of the Act : Fourthly, when this approach is taken, who could doubt that a claim for a "Bargaining Agent's Fee" is at least about matters pertaining to the relationship between Electrolux and its future employees, when those words are considered as words of ordinary language, presenting a question of fact to be decided? The future employees concerned are by definition parties to the employment relationship with Re Alcan. Those to whom the Fee would apply are those who have not joined a relevant union but have stood to gain from the collective bargaining by the union on behalf of employees of Electrolux.
[218] In the context of contemporary employment issues in Australia -- where questions of enterprise bargaining, the role of unions in it and the terms of the Act continue to make such issues highly pertinent ones on the shop floor -- the notion that the Unions' claim is one about matters pertaining to the employment relationship is irresistible. The only impediment, suggesting that the claim pertains only to the "relationship" between the employees and the unions, is one that derives from old thinking. It is based on the suggested restrictions traced ultimately to discarded constitutional notions of the permissible ambit of an "industrial dispute" as that expression then stood in the statute and was there understood in terms of s 51(xxxv) of the Constitution.
[219] The statute has been changed. The understanding of the Constitution has advanced. A new and different constitutional head of legislative power has been invoked. It is therefore a serious error for this Court, and especially at this stage, to inflict on the interpretation of s 170LI(1) of the Act notions drawn from discarded constitutional doctrines expressed in a significantly different legal context. The real work of s 170LI(1), as it stood at the relevant time, was to exclude from such proposed agreements wholly extraneous demands -- such as those concerned with purely political issues, overseas conflicts or matters having no relevant connection to the particular Australian employment relationship. Unions have made such employment demands in the past, concerned with foreign policy, overseas wrongs and international solidarity. This demand was not of that kind. Section 170LI should be read as responding to demands of that extraneous kind . The present demand was on no view such an extraneous "non-employment" demand. It is completely unconvincing to me to say that the Unions' demand for the Fee pertained solely to the relationship between employees and the Unions. Least of all is it convincing to say that it was not about the matters pertaining to the employment relationship. Anyone who thinks otherwise, in my respectful opinion, must have paid no attention to employment controversies in Australia over the past two decades.
[220] Conclusion : claim valid and protected : Applying, therefore, the ordinary meaning of the English language to the words used in s 170LI(1), I have no doubt that the claim for the "Bargaining Agents Fee", made in the context, was about a matter pertaining to the relationship of Electrolux as a "constitutional corporation" and its future employees to whom the Fee was to apply. If there could have been any doubt about this under the former definition of "industrial dispute" in the 1904 Act, it is removed by the addition of the word "about", by the inclusion of a double formula for connection and by the substitution of a different foundation for the employment relationship in question (that with a "constitutional corporation").
[221] It follows that, in the Act as it then stood, the claim made by the Unions was not one which would render the agreement propounded by them incompetent in an application to the Commission with the serious and disproportionate consequences that would follow under the Act. The agreement was therefore protected, as the Full Court found. The contrary view does not make practical sense in an Australian industrial context.
[222] The other issues argued in the appeals do not therefore arise for decision by me. The declarations made by the primary judge should not have been made. The Full Court was correct to set them aside.
Order
[223] The appeals should be dismissed.