||Issue No. 243||22 October 2004|
The Perfect Storm
Interview: The Last Bastian
Unions: High and Dry
Security: Liquid Borders
Industrial: No Bully For You
History: Radical Brisbane
International: No Vacancies
Economics: Life After Capitalism
Technology: Cyber Winners
Poetry: Do It Yourself Poetry
Review: Hard Labo(u)r
The Locker Room
Shop Till the Worker Drops
Bobís Silver Anniversary
Hit And Myth
Miner Shafts Democracy
A proposal to grant Collie tradesmen local government representation leave is one of half a dozen clauses Westfarmers Coal is seeking to have ruled "not pertaining" to the employer-employee relationship.
Westfarmers has issued writs for unspecified damages against WA AMWU officials, Jock Ferguson, Colin Saunders, four workplace delegates, and their union.
The case, arising from the High Court's controversial Electrolux ruling, is set down for hearing in Perth on November 4 and 5 before Justice French in the Federal Court.
Westfarmers has also taken exception to clauses that seek to control contracting and deliver right of entry, delegate education and leave provisions.
Arising from the Electrolux decision, employers are expected to argue that months of on-again, off-again industrial action at Westfarmers Coal was "unprotected", exposing the union, its officials and delegates to damages that could run into millions of dollars.
Corporate lawyers, Clayton Utz, are representing Westfarmers Coal in an action Ferguson says will be a "lawyers' picnic".
"Lawyers will be the big winners in this and everyone else will pay through the nose," Ferguson said. "It's not hard to guess what John Howard did before he went into Parliament.
"This situation will settle down eventually but, in the meantime, there will be a lot of pain, suffering and expense.
"The High Court has opened up a difficult situation because nobody knows what the rules of engagement are any more. All protected action over the last six years appears to be up for grabs as a result of its Electrolux ruling.
"Workers who genuinely believed they were acting within the law, can be sued retrospectively for millions of dollars over actions that employers also believed were lawful at the time.
"This case is a classic example. Westfarmers Coal is going to the Federal Court to have clauses ruled unlawful that it has already agreed to in negotiations."
There will be intense interest in the Westfarmers case from workers, employers, lawyers and politicians.
Senior Sydney-based industrial lawyer, Lachlan Riches, told Workers Online recently that the High Court had left IR operatives high and dry with its Electrolux ruling.
"They have left it ambiguous as to what the ground rules are and, as a result, fundamental rights that go back 80 years will be challenged and re-examined," Riches warned.
Immediately after the ruling, a string of employers, including Dandenong-based truck manufacturer, Iveco, tried to have clauses rubbed out and industrial actions declared illegal.
Industrial law firms began circulating employers with advice that long-agreed provisions might now be illegal and render entire documents, including wages, unenforceable.
Justice Michael Kirby warned fellow judges in a dissenting opinion on Electrolux that their decision would have a "chilling effect" on collective bargaining.
He called the majority view "impractical" and "narrow", suggesting it was divorced from workplace reality.
"To expose an industrial organisation of employees to grave, even critical, civil liability for industrial action, determined years later to have been unprotected, is to introduce a serious chilling effect into negotiations that such organisations can undertake on behalf of their members," Kirby wrote.
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