Case: Electrolux Home Products Pty Limited v The Australian Workers' Union [2004] HCA 40 (2004) 221 CLR 309
Outcome: distinguished
On 2 September 2004, the High Court of Australia delivered judgment in Electrolux Home Products Pty Limited v The Australian Workers' Union [2004] HCA 40 (2004) 221 CLR 309. The High Court held that certain provisions in an agreement negotiated between a corporation and a union did not pertain to the relationship between the corporation as employer and all persons employed in a single business or part of a single business of the employer, within the meaning of s 170LI of the Workplace Relations Act 1996 (Cth) ("the WR Act") (as the WR Act then stood). As a result, it was held that the agreement could not have been certified validly pursuant to what was then s 170LT of the WR Act . The two sets of claims in this proceeding both have some relationship with the judgment in Electrolux . 2 The first claim is for breach of contract. The applicant, Australian and International Pilots Association ("AIPA") claims that it entered into a binding contract with the respondent, Qantas Airways Limited ("Qantas") in the course of negotiating a new certified agreement. Certain provisions, which had been part of the certified agreement between AIPA and Qantas at the time of the judgment in Electrolux , had not been included in the new certified agreement because it was thought that their presence might jeopardise the certification of that agreement. It was contended that those provisions had been placed in a separate agreement. There is a substantial issue as to whether any concluded agreement about those provisions ever came into existence. AIPA contended that, although there was no express agreement as to the duration (in terms of starting and finishing) of the obligations under the contract, the gap was filled by an implied term. If there was a concluded agreement, there is an issue as to whether it is enforceable, or is an agreement not intended to create legal relations, but binding in honour only. If there was a binding contract, there is no real dispute that Qantas was in breach of it. There are issues, however, as to what, if any, remedies should be granted. Such issues include whether AIPA suffered any loss it can claim as damages for breach of contract, what was the quantum of its loss if it did suffer such loss, and whether some form of order by way of specific performance can, or should, be made. 3 The second claim is that, in the last days of the operation of the certified agreement that was in force at the time of Electrolux , Qantas failed to comply with its obligations under that agreement. Claims are made for penalties for contraventions of various terms of that certified agreement and for consequential orders in relation to those penalties. The terms concerned are among the provisions that were identified as possibly falling outside s 170LI of the WR Act . Not surprisingly, Qantas relies on the unenforceability of those terms of the certified agreement as a result of Electrolux . Qantas also contests the proposition that it failed to comply with its obligations as expressed in those terms. 4 It should be noted that the legislative provisions to which I refer in these reasons for judgment are those that were found in the WR Act as it stood at the times of events relevant to this proceeding. Subsequent major amendments to the WR Act have changed the numbering and wording of numerous provisions. 5 Division 2 of Pt VIB of the WR Act contained the following relevant provisions: 170LH What this Division covers This Division sets out requirements that must be satisfied for applications to be made to the Commission to certify certain agreements between employers who are constitutional corporations or the Commonwealth and: (a) organisations of employees; or (b) employees. 170LI Nature of agreement (1) For an application to be made to the Commission under this Division, there must be an agreement, in writing, about matters pertaining to the relationship between: (a) an employer who is a constitutional corporation or the Commonwealth; and (b) all persons who, at any time when the agreement is in operation, are employed in a single business, or a part of a single business, of the employer and whose employment is subject to the agreement. (2) The agreement must be made in accordance with section 170LJ, 170LK or 170LL. 170LJ Agreement with organisations of employees (1) The employer may make the agreement with one or more organisations of employees where, when the agreement is made, each organisation: (a) has at least one member employed in the single business or part whose employment will be subject to the agreement; and (b) is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement. (2) The agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement. (3) The employer must take reasonable steps to ensure that: (a) at least 14 days before any approval is given, all the persons either have, or have ready access to, the agreement, in writing; and (b) before any approval is given, the terms of the agreement are explained to all the persons. ... 170LM Making the application for certification (1) The application for the Commission to certify the agreement must state that it is made under this Division. (2) The application must be made no later than 21 days after: (a) if it is made in accordance with section 170LJ--the day on which it is approved as mentioned in subsection 170LJ(2) 13 In September 2004, when the Electrolux judgment was delivered, AIPA and Qantas were parties to the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2003-2004. This was the sixth collective agreement between AIPA and Qantas since provisions relating to enterprise bargaining had been introduced into the Industrial Relations Act 1988 (Cth), which was renamed as the WR Act in 1996. Because the agreement was the sixth in a series, it was known colloquially as "EBA6", and it is convenient to refer to it by this title in these reasons for judgment. EBA6 was certified by the Australian Industrial Relations Commission on 4 July 2003. Its nominal expiry date, inserted pursuant to the requirement found in s 170LT(10) of the WR Act , was 30 June 2004, but it remained in force in September 2004, pursuant to s 170LX, because it had not yet been replaced by another certified agreement. Indeed, negotiations for the agreement that replaced EBA6, the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2005-2006 ("EBA7") had not yet begun. 14 Part 11 of EBA6 was headed "Association Business". It contained the following provisions: 45. RELIEF FROM FLYING FOR ASSOCIATION BUSINESS The following arrangements apply to enable Association members to be reliably available to attend to Association duties and responsibilities. 45.1 Association President The Association President ("the President") is entitled to relief from flying under clause 46.4.1 and a pre-allocation of flying under clauses 27.6.1 and 46.4.2. 45.2 President's designates Associated with the office of the President, the President's designates are entitled to relief from flying equivalent to the credited hours allocated to the President for flying or leave, and a pre-allocation of flying under clause 27.6.1. 45.3 How relief from flying is achieved using Hours Banks 45.3.1 At the request of the President (or designate) and subject to demonstrable operational requirements, the Company will do one or more of the following: (a) release members from Company duties; (b) block days on a member's bid line; or (c) pre-allocate patterns of flying onto a member's bid line to enable Association members to attend to Association duties and responsibilities. 45.3.2 A request may be refused by the Company where it would incur unreasonable cost, but any refusal will first be discussed with the President with a view to resolving the matter to both parties' satisfaction. 45.3.3 The President (or designate) will endeavour to give Aircrew Operations as much notice as possible of any requirement for displacement under this Agreement. 45.4 Hours Banks 45.4.1 Time Bank (a) The Company will provide up to 175 credited hours on day one of each bid period to a "Time Bank". (b) In any bid period, if fewer than 175 hours are utilised by Association members, the balance will be carried forward. (c) A maximum of 350 hours may accumulate in the "Time Bank". 45.4.2 Leave Bank (a) Pursuant to clause 28.28, a leave bank is established and maintained. (b) The value of a "Leave Bank" day will be the value of the applicable bid period divisor divided by 38. 45.4.3 Additional flying hours re-credited to hours banks If an Association member flies additional credited hours during the bid period in which he or she has been released from Company duties for the purpose of carrying out Association duties or obligations, those additional credited hours will first be "re-credited" to the respective bank, less any hours calculated at the rate of the applicable bid period divisor divided by 38 for each day spent on Association business, before any payment for additional credited hours is made to the member. 45.5 Using the hours banks for Association business 45.5.1 An Association member who is required by the President (or designate) to attend to Association business: (a) may access the provisions of the Time Bank; (b) may access the provisions of the Leave Bank; or (c) may be removed from a pattern or patterns, in which case the member: (i) will be pattern protected for the credited hours value of the pattern or patterns, less the credited hours value of any Time Bank of Leave Bank days spent on Association business; (ii) will be available for offsets in accordance with clause 27.16.5(i); (iii) May be awarded or assigned an offset against the pattern protected hours in accordance with clause 27.16.5(g) with any remaining pattern protected hours becoming fixed; and (iv) If not awarded or assigned an offset against the pattern protection, will have the pattern protected hours offset by an equivalent deduction from the Time Bank or Leave Bank. 45.5.2 When a member is required to attend to Association business during a period of annual or long service leave, credited hours may be debited from the Time Bank or Leave Bank so that the infringed day(s) of leave are re-credited to the member. 45.5.3 At the request of the President, days may be blocked on a member's bid line with a "nil credited hours value". 45.5.4 Where a member is a BLH or RLH in a bid period and he or she is required to carry out Association duties, the member will receive credited hours calculated at the rate of the applicable bid period divisor, divided by 38, for each day that those duties are required to be undertaken and those credited hours will be deducted from the Time Bank or Leave Bank. 45.6 Joint Company/AIPA Business When a member is required by the President to attend a meeting with the Company, or attend to joint Association/Company business, he or she: 45.6.1 will be pattern protected for any credited hours involved, less any hours calculated by dividing the pattern value by the number of calendar days of the pattern, for each day spent attending to such business; 45.6.2 may be required to offset any or all of such pattern protection during the remainder of the bid period and, in good faith, will attempt to offset such hours but will not be required to be available for offsets/assignments during the normal hours of availability for pattern protected crew members; 45.6.3 may, with the approval of the President (or designate), have the hours debited from the Time Bank or Leave Bank and not be pattern protected under clause 45.6.1. 46. ASSOCIATION PRESIDENT 46.1 General The provisions of this clause apply to a pilot during his or her tenure of office as President of the Association ("the President"). To the extent of any inconsistency between the provisions of this clause and any other provisions in this Employment Contract, the provisions in this clause will prevail. 46.2 Pay The President will be paid a salary (calculated in accordance with clause 24.2) appropriate to the aircraft type on which he or she is flying. 46.3 Method of payment The President will be paid in pay periods 1, 2, 3 and 4 of each bid period an amount calculated on the basis of one 26th of the prescribed pay and the appropriate allowance provided in clause 46.2. 46.4 Scheduling 46.4.1. The President is entitled to relief from flying equal to the bid period divisor for his or her category. 46.4.2. Notwithstanding clause 46.4.1, the President is entitled to a pre-allocation of not less than 80 credited hours of known flying for each bid period, after consultation with the Company to select flying before it is made available before bidding (under clause 27.6.1). 46.4.3. Any flying allocated to the President for which he or she is not available will be re-allocated at the Company's discretion either in accordance with the provisions of clause 17 (in which case the quota provisions of clause 17.4.3 will not apply), or in accordance with the provisions of clause 27.21. 46.4.4. Open time will be allocated in accordance with the provisions of clause 27.21 (Allocating open time flying) except that the Company may displace the President from any allocated pattern. 46.4.5. The President may trade patterns with a pattern line holder or with a supervisory crew member in accordance with clause 17.4.6 or with open time in accordance with the provisions of clauses 27.21 and 27.22. 46.4.6. The Company may require the President to fly or exceed his or her allocation of credited hours. 46.4.7. The President may consult with the Company about the scheduling of designated duty free days. For the purpose of clause 27.17 (Duty free time at a crew member's base), the President will be deemed a pattern line holder. 46.5 Annual leave The President's annual leave will be planned and taken as mutually arranged except that the Company may assign leave when his or her annual leave is in excess of the standard prescribed in clause 28.14. 46.6 Changeover of President 46.6.1. When the Association elects a new President, the provisions of this clause 46 (with the exception of scheduling) will apply to the new President on and from the date of his appointment as President and will cease to apply to the outgoing President on and from that date. 46.6.2. Any scheduling issues arising from the change-over of Presidents will be discussed among the Company, the outgoing President and the new President with a view to making arrangements that are acceptable to all three parties. 15 Some other provisions of EBA6 were relevant to the operation of the provisions in Pt 11. There are numerous references to cl 27, a very long and complex clause relating to scheduling and hours of work, the details of which it is unnecessary to set out for present purposes. Clause 28.28, to which there is a reference in cl 45.4.2(a), provides: Notwithstanding clause 28.1, for the purpose of establishing and maintaining a leave bank, the quantum of annual leave prescribed in that clause may be reduced by one (1) day in each 5 year period and will be transferred to a leave bank in accordance with rules and procedures agreed in writing between the Company and the Association. 18 In September 2004, the implications of the Electrolux judgment were obvious. In the first place, existing certified agreements might turn out to be wholly invalid because they contained provisions about matters that did not pertain to the relationship between employers and their relevant employees ("non-pertaining provisions"), and the Commission had therefore lacked power to certify them. The second implication was that, if future agreements were to be negotiated, care would have to be taken to avoid including non-pertaining provisions, which would lead to the Commission refusing to certify the agreement altogether. 19 At least the second of these implications was not lost on AIPA. It was preparing to enter into negotiations with Qantas for EBA7. On 29 September 2004, the day on which the first meeting of those negotiations was due to be held, Alana Starke, General Counsel of AIPA, wrote a letter to Sue Bussell, Group General Manager Industrial Relations of Qantas, with a copy to Captain Chris Manning, Head of Flight Operations and Chief Pilot, in the following terms: I refer to our telephone discussion on 28 September 2004. Please confirm that any provisions in Certified Agreements, Safety Net Awards or other industrial agreements between the Company and AIPA which may be affected by the recent High Court's decision in Electrolux impacting upon any decisions by the Australian Industrial Relations Commission, will be transferred, without negotiation, into side agreements between us. 20 It should be noted that, although written at the outset of negotiations in respect of EBA7, this letter did not refer only to those negotiations. It was expressed to cover three classes of documents: certified agreements; safety net awards; or other industrial agreements. At the time, in addition to EBA6, which related to long haul flying, AIPA and Qantas were parties to a certified agreement that related to short haul flying, which was due to reach its nominal expiry date in September 2005. The evidence suggests that there may have been other documents caught by the description in the letter of 29 September 2004. One was an award dealing with the integration of two separate awards relating to domestic and international flying respectively, which had been made to accompany the merger of Australian Airlines and Qantas in the mid 1990s. Another suggestion was an agreement relating to the seniority of pilots as between Qantas and its subsidiary that operated an airline called Jetstar. 21 Negotiations for EBA7 opened with a meeting on 29 September 2004. The negotiators on behalf of AIPA were Alana Starke, Captain Bryan Welch, Andrew Marshall and Ely Nejadiran (whose surname changed during the course of negotiations to Jensen). Ms Starke was employed by AIPA with the title General Counsel. Under her contract of employment, her responsibilities were such that she was effectively AIPA's Chief Executive. Captain Welch was an elected Vice-President of AIPA, who was given principal responsibility for the negotiations for EBA7. Qantas was represented by Julian Hailes (Manager, Industrial Relations), Vanessa Webber, Peter Broschofsky, Captain Peter Wilson, Darren Ziegenfusz and Mark Wagner (or Wagener). Initially, Captain Manning as Qantas's Chief Pilot, and Captain Robin Holt as President of AIPA, each addressed the meeting. These addresses were regarded as opening the negotiations formally, and setting their tone. What then happened in the meeting is the subject of varying accounts given in evidence by Captain Welch, Ms Starke and Mr Hailes, and found in notes taken at the time by Ms Nejadiran/Jensen, Mr Hailes and Ms Webber. It is clear that there was some discussion about Electrolux . Ms Starke appears to have raised the issue, although Captain Welch's recollection is that he raised it first. Ms Starke also appears to have referred to her telephone conversation with, and letter to, Ms Bussell, although Ms Starke did not recall having made any such reference. The meeting was certainly aware of a proposal to remove any non-pertaining provisions before the terms of EBA7 were finalised, and to put those provisions into a separate document. The Qantas management team did not reject this idea. In his evidence, Mr Hailes said that he had not considered the issue previously. It also appears that, at the meeting on 29 September 2004, Qantas tabled its log of claims, a document setting out the changes it sought to make to the terms of EBA6 so that EBA6, as modified, could become EBA7. 22 A further meeting occurred on the following day, 30 September 2004, at which the same persons (other than Captain Manning and Captain Holt) attended. At this meeting, the AIPA log of claims was tabled, setting out the changes AIPA sought to have reflected in the new agreement. This document consisted of a cover sheet, three pages containing proposed clauses and a page headed "ANCILLARY MATTERS TO BE RESOLVED". There were seven items listed. Number seven was in the following terms: Administrative matter: Confirmation that provisions in industrial agreements between QAL and AIPA which may be affected by Electrolux decision of the High Court (impacting upon AIRC decisions) will be transferred, without negotiation, into side documents between the parties. 23 Towards the end of the meeting, there was a brief discussion about this item. Again, the accounts of Captain Welch, Ms Starke and Mr Hailes differ about what was said, as do the records found in the notes of Ms Nejadiran/Jensen, Mr Hailes and Ms Webber. Speaking broadly, the evidence led on behalf of AIPA is to the effect that agreement was secured to the transfer of non-pertaining provisions to side agreements. Ms Nejadiran's note and Captain Welch's recollection (perhaps prompted by the note) is of Mr Hailes saying "That should be okay." Mr Hailes and Ms Webber do not support such a firm agreement. I infer that, at that time, there was at least a recognition by both parties that it was in their interests to facilitate the removal of provisions that might jeopardise the certification of EBA7, and that transferring such provisions to some other form, not involving submission for certification, would be an option. In addition, Captain Welch was keen to make the point that any provisions transferred should not be altered. He did not want either party taking advantage of the post- Electrolux environment by seeking to renegotiate what had been agreed for EBA6 but could not be transferred to EBA7. Captain Welch expressed this view. Mr Hailes understood that AIPA did not want changes made to any transferred provisions. He wrote in his notes "AIPA wouldn't see change". 24 At a minimum, after the meetings of 29 and 30 September 2004, Qantas understood that AIPA wished to have removed from EBA7 any provisions that might put at risk the certification of EBA7, by being found to be non-pertaining provisions. Qantas also understood that AIPA wished to have these provisions expressed, without change, in some other instrument. Qantas did not reject this proposition. Indeed, it is clear that Qantas was quite prepared to entertain such an idea. 25 On 15 December 2004, the Workplace Relations Amendment (Agreement Validation) Act 2004 (Cth) commenced to operate. Its effect was to validate all provisions of existing certified agreements that were not non-pertaining provisions. Its operation was retrospective. Accordingly, from the point of view of AIPA and Qantas, EBA6 continued in operation except to the extent of any non-pertaining provisions that it contained. The first of the considerations referred to in [18] above was therefore no longer a consideration. Any invalidity would only extend to non-pertaining provisions in EBA6. 26 Negotiation of the terms of EBA7 continued over some 10 months following the meeting of 30 September 2004. Little or no mention was made during that time of the Electrolux issue. Mr Hailes did give evidence that, at some time during that period, he received a phone call from Ms Starke, apparently unprompted by any specific incident, in which Ms Starke raised the question of the kind of document into which possibly non-pertaining provisions would be transferred. She mentioned the possibility of a deed, and Mr Hailes rejected that. Ms Starke was not asked about any such conversation. It is not clear whether it took place during the period of negotiation of the terms of EBA7. 27 On 4 August 2005, a document entitled " EBA7 Terms of Settlement " was signed by Mr Hailes on behalf of Qantas and Captain Holt on behalf of AIPA. The document reflects the fact that EBA6 was regarded as the basis for negotiations, and records terms that the parties had agreed on by way of changes to what was in EBA6. Clause 4 contained provisions relating to superannuation, in which AIPA acknowledged that certain specified provisions would not form part of, or be included in, the new certified agreement, but that a designated letter of agreement would be voted on as part of the new agreement. Clause 12 was headed " Other Matters " and was in the following terms: Administrative Issue: Non-pertaining matters The parties agree to review provisions in existing industrial agreements between Qantas and AIPA to identify whether, pursuant to the Electrolux decision of the High Court of Australia, there are any non-pertaining provisions in those agreements. It is agreed that any provisions identified under this review as being non-pertaining will be transferred into side agreements between the parties. 28 On 14 September 2005, the election of a new Committee of Management of AIPA was finalised. Captain Ian Woods was elected to succeed Captain Holt as President. The change of regime involved a change of attitude to some issues affecting members of AIPA. Captain Woods had been a member of the AIPA Committee of Management. On 12 July 2005, when the Committee of Management had resolved to accept the EBA7 Terms of Settlement (subsequently signed on 4 August 2005), and to recommend acceptance by the members of AIPA, Captain Woods had spoken and voted against this proposal. He and the new officers also had views that there should be changes to the way in which AIPA was administered, which would involve more of the administration work being done by elected officers, rather than by employed personnel. 84 The parties were agreeing to transfer the non-pertaining provisions into a document separate from EBA7 on the assumption that, in the light of Electrolux , they were provisions that would not be acceptable to the Commission and would therefore prevent the certification of EBA7. It is true that there was no absolute recognition that the non-pertaining provisions fell outside the description in s 170LI(1), namely matters pertaining to the relationship between an employer and the relevant employees. As appears from my examination of the implications of Electrolux in [113]-[116] below, certainty about whether a particular provision did or did not fall within s 170LI(1) would have been extremely difficult to achieve. Nevertheless, it is clear that the parties, and particularly AIPA, contemplated that cll 45 and 46 and the related provisions, as they appeared in EBA6, might very well be unenforceable as a matter of law. If this had not been the case, there would have been no suggestion from either party that those provisions should be removed from EBA7. On this basis, it is legitimate to ask (as the mythical officious bystander might have asked) whether it was obvious that the starting points of the obligations would be the commencement of the operation of EBA7. If it be accepted that the parties were transferring the non-pertaining provisions into a separate document in order to ensure their continued operation as enforceable provisions, there would be every reason why such an agreement should operate as soon as it was reached, and not await the certification of EBA7. The circumstance that Qantas had continued to apply the Association Business Provisions in EBA6 does not diminish the force of this proposition. Objectively, it appears more likely that the parties would want any agreement to have been binding forthwith, rather than from a later date. 94 As to whether the parties intended to create a legally binding agreement, or an agreement binding in honour only, there are factors pointing in both directions. The refusal of Qantas to enter into a deed, accepted by AIPA, and the choice of "memorandum of understanding" as the title of the document, again accepted by AIPA, suggests that there was no intention to create legal relations. The title is not conclusive, however. The course of negotiations, particularly the detailed attention given by both parties to the precise wording of the document, tends to suggest that they were looking towards the letter, rather than merely the spirit, of an agreement, and therefore towards enforceability. Again, this is not conclusive. Nor is the history of the provisions that were being transferred from EBA6 into the memorandum of understanding. When they were first negotiated as part of EBA5, and carried into EBA6, the non-pertaining provisions were assumed to be enforceable. Following Electrolux , the parties were of one mind that the non-pertaining provisions were, at least potentially, unenforceable at law. This potential unenforceability and its possible effect in jeopardising the certification of EBA7 constituted the motivation for placing the non-pertaining provisions in another document. In these circumstances, it is difficult to say that the history of the provisions gives a clue either way as to whether the parties were agreed that the provisions should be legally enforceable or binding in honour. What seems to me to be the decisive factor in favour of legal enforceability is the agreement about the clause relating to the sharing of legal liability. Once it was realised that Qantas's compliance with the non-pertaining provisions, in a document outside EBA7, could place Qantas in a difficult position in the event of conflict between its obligations under EBA7 and its obligations under any separate agreement, the parties had a choice. They could have chosen expressly to make the memorandum of understanding binding in honour only, and liable to give way in the event that any actual conflict appeared. Alternatively, they could have done what they did, which was to assume that such conflict would occur and to make provision for the sharing of any liability flowing from it. This agreement suggests to the objective observer that both parties regarded the obligations under the transferred non-pertaining provisions as legally binding, so that provision needed to be made for the actuality of conflict between those provisions and the provisions of EBA7. For this reason, if it had been necessary to do so, I should have had little difficulty in finding that the agreement between AIPA and Qantas, to be expressed in the memorandum of understanding, was legally binding. 95 The question of damage flowing from Qantas's non-observants of the agreement is more difficult. It is necessary to detail some further facts. The claim consists of two elements. One is the salary of Peter Somerville, who was engaged as the General Manager of AIPA from 24 April 2006. The second is a payment made by AIPA to Captain Woods, designed to compensate him for the failure of Qantas to pay his salary at the rate designated for the President by cl 46.2 of EBA6. 96 At the same time as Captain Woods became President of AIPA, on 7 November 2005, Captain McNeil became Secretary, Captain John Dowe Assistant Secretary and Captain Andrew Percival Treasurer. The new regime was determined to reform the manner in which AIPA was administered. At that time, Ms Starke was employed as Legal Counsel and Industrial Relations Manager. Attached to her written contract of employment, dated 17 May 2000, was a schedule of duties, setting out the following duties and responsibilities: &#8226; Advise the President and COM generally on industrial issues &#8226; Negotiate industrial and employment matters affecting technical aircrew employed by Qantas Airways Limited and provide relevant documentation &#8226; Assess, prioritise and coordinate all industrial relations matters as they arise and develop &#8226; Advise the President, Executive and COM on corporate governance and organisational compliance issues, including reporting and accountability issues, professional indemnity insurance &#8226; Coordinate and prepare documents and returns required under the relevant legislation for the Association and AIFEA &#8226; Generally advise the Association's members on industrial/employment law issues &#8226; Represent technical aircrew in grievances &amp; disciplinary matters &#8226; Represent the Association and provide advocacy in relevant jurisdictions (including the AIRC, IRC (NSW) and the Federal Court of Australia) &#8226; Supervise and appraise industrial relations staff &#8226; Supervise and appraise administrative support staff &#8226; Manage all human resource issues &#8226; Assess need for outsourcing matters for professional opinions/assistance &#8226; Assess and monitor ongoing educational and professional needs of industrial relations staff and administrative support staff, including attendances at seminars/workshops/professional functions &#8226; Monitor office expenditure &#8226; Assess and monitor subscriptions to professional publications 113 The provisions that were agreed in Electrolux obliged the employer to deduct from wages to be paid to persons who might become employed by the employer in the future, and to pay to the Union, a fee, described as a "bargaining agent's fee". The provisions thus had three significant characteristics. First, they obliged the employer to deduct money from wages that would otherwise be paid to an employee, and to pay the money deducted to a party other than the employee. Second, the intended recipient of the money was the union that was party to the agreement with the employer. Third, the provisions bound the employer in relation to persons whom it might choose to employ in the future, and who chose not to belong to a relevant union. 114 In Electrolux , the High Court affirmed the line of authority consisting of R v Portus; Ex parte ANZ Banking Group Ltd [1972] HCA 57 ; (1972) 127 CLR 353 and Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34 ; (1994) 181 CLR 96. Each of those cases involved claims made by unions which, if acceded to by employers, would have obliged the employers to deduct from wages earned by their employees amounts by way of union dues, and to pay those amounts to the relevant union. In each case, it was held that such claims did not pertain to the relationship between employers and employees in their capacity as such. In Alcan , the High Court was invited to overturn Portus , but declined to do so. The claims in question in Portus and Alcan had both the first and second characteristics of the provisions in question in Electrolux . 115 In Electrolux at [9]-[11], Gleeson CJ appears to have identified the first of those characteristics as the reason for holding that the provisions in question in that case did not pertain to the relationship between an employer and its employees. The approach of McHugh J at [82] was to analyse the employer's obligation more closely, and to identify a number of factors that his Honour saw as taking the payments outside the relationship of employer and employees. His Honour said that the debt due by a future new employee to the union, about which the employer was obliged to inform the new employee, was not shown to be a debt relating to the employment relationship. In his Honour's view, the provision related to the relationship between the union and non-members to be employed at the employer's workplace. His Honour took the view that strengthening the position of unions at the workplace, "without more", did not make the provision a matter pertaining to the requisite relationship. Finally, his Honour said that, because the fee was not deducted pursuant to any agreement or authorisation from the employee, there was no nexus between the obligation imposed on the employer and the requisite relationship. At [165], Gummow, Hayne and Heydon JJ approved the statement of Merkel J at first instance, which identified a number of features of the provisions in question in Electrolux . The employer was to act as the union's agent in entering into a contract with new employees requiring the employees to employ the union as bargaining agent. The relationship between employer and employee was one of agency, requiring the employer to contract with its employees on behalf of the relevant union, as its agent. The agency was for the benefit of the union, rather than for the benefit of the employee upon whom the liability was to be imposed involuntarily. The provision could be characterised as a claim for payment for the union's services in securing the new employee's terms and conditions of employment, although the new employee would only have commenced employment after the date of the agreement. Kirby J dissented. At [239], Callinan J also preferred the approach of Merkel J to that of the Full Court. At [241], his Honour referred specifically to the first characteristic, with the added element of the involuntariness of the payment to the union on the part of an employee who was not a union member. His Honour described the relevant relationship between the employer and the non-unionist employee as an involuntary contract for the payment of an exaction sought to be made by a third party on the employee. 116 Clauses 45 and 46 and the related provisions of EBA6 are of a very different character from the provisions that were the subject of Electrolux . They involve none of the three significant characteristics of the provisions the subject of Electrolux . There is no obligation on Qantas to deduct money from wages or salary that would otherwise be paid to any of its employees, or to pay any amount so deducted to any party other than Qantas. AIPA is not the intended recipient of any money from Qantas. The provisions in question in this case bind Qantas in relation to its existing employees, particularly those who are already members of AIPA. The provisions bear no resemblance to those that were the subject of Portus or Alcan . Any debts created by cll 45 and 46 and the related provisions of EBA6 are debts due from Qantas to its own existing employees, and relate to the relationship between Qantas and its own employees. The provisions do more than simply strengthen the position of AIPA, although they are certainly intended to accomplish that. They accomplish it by regulating the hours of work of Qantas's employees and the amounts of money to be paid to those employees. No question of deduction of any money from anything that would otherwise be paid to an employee arises. No agency relationship between AIPA and Qantas could possibly be created. There is no question of payment by any non-member to AIPA. 117 Clauses 45 and 46 and the related provisions of EBA6 have substantial similarities to some of the provisions with which French J was concerned in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 1737 (2004) 138 IR 362. At [73] - [79] , his Honour analysed Electrolux , in an effort to distil the appropriate test for determining whether a matter pertains to the relationship of employers and employees. At [96]-[103], his Honour dealt with provisions of a log of claims setting out circumstances in which employees might be absent from their duties and yet still to be paid while they attended various kinds of union meetings, including board of management meetings, discussions between management and the union, and training and education courses organised by the union. At [96]-[97], his Honour said of those provisions: They establish for the most part an entitlement to paid leave for employees who are performing certain functions with the relevant union. The hours of an employees' [sic] availability for work and the conditions under which an employee may be absent from that work and whether or not he or she can be paid during that absence, in my opinion, lie at the heart of the employer-employee relationship. They affect employer and employee in their capacities as such. It is no answer to that proposition to say that these provisions affect employees in their capacity as union members. So much may be correct, but if the provision in question also affects the employment relationship in a direct way that is neither consequential nor remote it pertains to the employer-employee relationship. Argument by reference to the multiple capacities of employees can lead into a morass of fine distinction. So maternity leave, leave to perform jury service and leave to train in the military reserve may all be said to attach to people in their capacities as parent, citizen, military reservist respectively. In my opinion, the provisions of such clauses pertain to the employment relationship.