A RECENT Federal Court decision has raised the spectre of unionism by stealth in WA’s predominantly non-union housing sector.
A RECENT Federal Court decision has raised the spectre of unionism by stealth in WA’s predominantly non-union housing sector.
Industrial lawyers and employer representatives say the ruling by the full bench of the Federal Court gives unions carte blanche to make any sort of claim – and strike if it is rejected – as long as the claim is ‘genuine’.
Housing Industry Association WA executive director John Dastlik said the court’s ruling was unlikely to have a major effect on the housing industry, because the sector was not highly unionised.
But he agreed the ruling could have the effect of raising union membership through stealthy means.
Master Builders’ Association of WA director Michael McLean said the ruling was surprising, and suggested it represented a de facto return to the ‘no ticket no start’ regime.
He questioned whether it could apply across all representative bodies.
“Employer groups do a lot of good work for businesses that are both members and non-members. If unions are going to be eligible to claim payments from employees who gain benefits as a result of the union’s actions, are employer groups going to be able to charge all employers when they have a win in the commission?” Mr McLean said.
Blake Dawson Waldron partner David Parker agreed the implication that unions and workers might take protected industrial action over matters that did not relate to the employment relationship was significant.
“Even if the decision is successfully appealed, the publicity surrounding this case has highlighted that this is largely a dispute about the extent to which industrial action, from either side, will be tolerated as a weapon in bargaining,” Mr Parker said.
”That’s the sort of issue that needs to ultimately be decided by the parliament; the courts can only interpret the legislation as it stands.
He said it was unfortunate that the court did not need to express a final view on the main issue in the case, which related to whether provisions requiring workers who were not members of a union, but had to pay fees to the union, could be included in a certified agreement.
“This is still a live issue. However, the court gave a fairly strong indication that ‘bargaining fee’ provisions probably can be included in certified agreements,” Mr Parker said.
A senior Perth industrial lawyer, who asked to not be named, said that, in effect, the decision was not so much about the issue of union bargaining fees, but for what reasons industrial action could be taken.
The lawyer said the Federal Court ruling had potentially increased the justification for strikes by a substantial degree.
Industrial lawyers and employer representatives say the ruling by the full bench of the Federal Court gives unions carte blanche to make any sort of claim – and strike if it is rejected – as long as the claim is ‘genuine’.
Housing Industry Association WA executive director John Dastlik said the court’s ruling was unlikely to have a major effect on the housing industry, because the sector was not highly unionised.
But he agreed the ruling could have the effect of raising union membership through stealthy means.
Master Builders’ Association of WA director Michael McLean said the ruling was surprising, and suggested it represented a de facto return to the ‘no ticket no start’ regime.
He questioned whether it could apply across all representative bodies.
“Employer groups do a lot of good work for businesses that are both members and non-members. If unions are going to be eligible to claim payments from employees who gain benefits as a result of the union’s actions, are employer groups going to be able to charge all employers when they have a win in the commission?” Mr McLean said.
Blake Dawson Waldron partner David Parker agreed the implication that unions and workers might take protected industrial action over matters that did not relate to the employment relationship was significant.
“Even if the decision is successfully appealed, the publicity surrounding this case has highlighted that this is largely a dispute about the extent to which industrial action, from either side, will be tolerated as a weapon in bargaining,” Mr Parker said.
”That’s the sort of issue that needs to ultimately be decided by the parliament; the courts can only interpret the legislation as it stands.
He said it was unfortunate that the court did not need to express a final view on the main issue in the case, which related to whether provisions requiring workers who were not members of a union, but had to pay fees to the union, could be included in a certified agreement.
“This is still a live issue. However, the court gave a fairly strong indication that ‘bargaining fee’ provisions probably can be included in certified agreements,” Mr Parker said.
A senior Perth industrial lawyer, who asked to not be named, said that, in effect, the decision was not so much about the issue of union bargaining fees, but for what reasons industrial action could be taken.
The lawyer said the Federal Court ruling had potentially increased the justification for strikes by a substantial degree.
