FEDERAL COURT OF AUSTRALIA Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Electrolux Home Products Pty Limited [2002] FCAFC 199 INDUSTRIAL LAW – Industrial action – Whether particular industrial action was "protected action" – Claims made by each of three employees' organisations – In each case one claim was for payment of a bargaining fee by future employees – Whether the making of this claim meant the industrial action was not for the purpose of "supporting or advancing claims made in respect of the proposed agreement" – Whether an agreement containing a term that does not pertain to the employment relationship is certifiable under s 170LI(1) of the Workplace Relations Act – Whether a term along the lines of the claim would fall outside the description in s 170LI(1). Workplace Relations Act 1996 ss 170LI, 170MT, 170NC AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, JAMES WATSON and DAVE OLIVER v ELECTROLUX HOME PRODUCTS PTY LIMITED, AUSTRALIAN WORKERS UNION, COMMUNICATIONS ELECTRICAL ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, ROBERT JOHNSTON and ROBERT GERAGHTY N 18 OF 2002 AUSTRALIAN WORKERS UNION v ELECTROLUX HOME PRODUCTS PTY LIMITED, AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, COMMUNICATIONS ELECTRICAL ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, ROBERT JOHNSTON and ROBERT GERAGHTY S 6 OF 2002 COMMUNICATIONS ELECTRICAL ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, ROBERT JOHNSTON and ROBERT GERAGHTY v ELECTROLUX HOME PRODUCTS PTY LIMITED, AUSTRALIAN WORKERS UNION, AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, JIM WATSON and DAVE OLIVER S 11 OF 2002 WILCOX, BRANSON and MARSHALL JJ 21 JUNE 2002 SYDNEY (HEARD IN ADELAIDE) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 18 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, JAMES WATSON and DAVE OLIVER APPELLANTS AND: ELECTROLUX HOME PRODUCTS PTY LIMITED FIRST RESPONDENT AUSTRALIAN WORKERS UNION, COMMUNICATIONS ELECTRICAL ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, ROBERT JOHNSTON and ROBERT GERAGHTY SECOND, THIRD, FOURTH AND FIFTH RESPONDENTS JUDGES: WILCOX, BRANSON and MARSHALL JJ DATE OF ORDER: 21 JUNE 2002 WHERE MADE: SYDNEY (HEARD IN ADELAIDE) THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The third declaration made by Merkel J on 20 December 2001, be set aside. 3. Any issue relating to costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 6 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: AUSTRALIAN WORKERS UNION APPELLANT AND: ELECTROLUX HOME PRODUCTS PTY LIMITED FIRST RESPONDENT AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, JAMES WATSON DAVE OLIVER ROBERT JOHNSTON and ROBERT GERAGHTY SECOND TO SEVENTH RESPONDENTS JUDGE: WILCOX, BRANSON and MARSHALL JJ DATE OF ORDER: 21 JUNE 2002 WHERE MADE: SYDNEY (HEARD IN ADELAIDE) THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The first declaration made by Merkel J on 20 December 2001 be set aside. 3. Any issue relating to costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 11 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, ROBERT JOHNSTON and ROBERT GERAGHTY APPELLANTS AND: ELECTROLUX HOME PRODUCTS PTY LIMITED FIRST RESPONDENT AUSTRALIAN WORKERS UNION, AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, JIM WATSON and DAVE OLIVER SECOND TO FOURTH RESPONDENT JUDGE: WILCOX, BRANSON and MARSHALL JJ DATE OF ORDER: 21 JUNE 2002 WHERE MADE: SYDNEY (HEARD IN ADELAIDE) THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The second declaration made by Merkel J on 20 December 2001 be set aside. 3. Any issue relating to costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 18 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, JAMES WATSON and DAVE OLIVER APPELLANTS AND: ELECTROLUX HOME PRODUCTS PTY LIMITED FIRST RESPONDENT AUSTRALIAN WORKERS UNION, COMMUNICATIONS ELECTRICAL ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, ROBERT JOHNSTON and ROBERT GERAGHTY SECOND, THIRD, FOURTH AND FIFTH RESPONDENTS IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 6 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: AUSTRALIAN WORKERS UNION APPELLANT AND: ELECTROLUX HOME PRODUCTS PTY LIMITED FIRST RESPONDENT AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, JAMES WATSON DAVE OLIVER ROBERT JOHNSTON and ROBERT GERAGHTY SECOND TO SEVENTH RESPONDENT IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 11 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, ROBERT JOHNSTON and ROBERT GERAGHTY APPELLANTS AND: ELECTROLUX HOME PRODUCTS PTY LIMITED FIRST RESPONDENT AUSTRALIAN WORKERS UNION, AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, JIM WATSON and DAVE OLIVER SECOND TO FOURTH RESPONDENTS JUDGES: WILCOX, BRANSON and MARSHALL JJ DATE: 21 JUNE 2002 PLACE: SYDNEY (HEARD IN ADELAIDE) REASONS FOR JUDGMENT THE COURT: 1 There are three appeals before the Court. As they involve precisely the same points, they have been heard together, by consent. 2 The three appeals challenge a decision made by a judge of the Court (Merkel J) to make declarations, each adverse to the interests of one or other of the respondents in the proceeding before him. 3 The appellants are three organisations of employees registered pursuant to the Workplace Relations Act 1996 (Cth) ("the Act"). They are: . Australian Workers Union ("the AWU") . Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the AMWU"), and . Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union ("the CEPU"). We will refer to the three appellants as "the Unions". 4 Each appeal is brought by one Union. The other two Unions are named as respondents to that appeal. The other respondent, in each case, is Electrolux Home Products Pty Limited ("Electrolux"). 5 On the hearing of the appeals, the Minister for Workplace Relations intervened by counsel pursuant to s 471 of the Act. The Minister supported the arguments of Electrolux. Background 6 Electrolux is a producer of whitegoods, under the brand names "Westinghouse", "Simpson", "Chef" and "Kelvinator". As purchaser of a part of the business of Email Limited, it is bound by the Metal Engineering and Associated Industries Award 1998 ("the award"), an award made by the Australian Industrial Relations Commission ("the Commission"), and the Email National Manufacturing Agreement 1999 ("the certified agreement"), an agreement certified by the Commission pursuant to s 170LT of the Act. 7 Each of the Unions is a party to, and bound by, the award and the certified agreement. Each of them has members employed by Electrolux. 8 The certified agreement contained a nominal expiry date of 30 June 2001. However, it is agreed between the parties that it continues to operate pursuant to the Act. Presumably it was extended under s 170MC. 9 In April 2001 the Unions and Electrolux commenced discussions about formation of a new certified agreement. Negotiations continued throughout the period April to September 2001. Numerous meetings were held but no agreement was reached. 10 On 5 and 6 September 2001 each Union gave notice to Electrolux of intended industrial action. The industrial action was intended to be "protected action" carried out pursuant to s 170ML of the Act and, therefore, substantially immune from actionability under State or Territorial law: see s 170MT(2) of the Act. 11 Industrial action falling within the terms of the notice was subsequently taken by each of the Unions. The issue before Merkel J was whether such action was indeed "protected action", as the Unions claimed, or whether it fell outside that concept because it was not undertaken "for the purpose of supporting or advancing claims made in respect of the proposed agreement": see s 170ML(2)(e) of the Act. 12 The argument put by Electrolux to Merkel J was that it was not so undertaken because some of the terms of the agreement, as proposed by the Unions, were not terms within the scope of s 170LI(1) of the Act. Electrolux conceded most of the proposed terms clearly fell within that subsection, but it said three claims did not. They were, first, a claim for a trust fund arrangement to secure employees' entitlements to termination benefits, long service leave payments etc; second, a claim that shop stewards have access to certain employer-owned facilities in order to communicate with other employees; and, third, payment to the relevant Union of a "bargaining agent's fee" in respect of each future employee who is not, at the commencement of his or her employment by Electrolux, a member of that Union. The proposal was that Electrolux would notify each prospective employee, prior to the employee commencing work for the company, that the sum of $500 would be deducted from his or her salary each year and remitted to the relevant Union. 13 Merkel J found against Electrolux in respect of the first two issues, employees' entitlements and shop stewards access. However, he upheld Electrolux's case concerning the bargaining fee. On 20 December 2001 his Honour made a series of declarations. Each was to the effect that industrial action instituted by a particular Union on specified days in September 2001: (i) was not protected action within the terms of s 170ML of the Act; and (ii) breached s 170NC(1) of the Act. 14 Each of the Unions appealed against the making of the declaration concerning its conduct. No cross-appeal or notice of contention was filed. Consequently, no issue remains in respect of employees' entitlements or shop stewards' access; the Court is concerned only with the issue relating to the bargaining fee. The statutory framework 15 The appeals turn upon the proper construction of Part VIB of the Act; in particular, Divisions 2, 3 and 8 of that Part. 16 Part VIB of the Act is headed "Certified Agreements". Section 170L states the object of the Part "is to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business". The "Commission" is, of course, the Australian Industrial Relations Commission. Sections 170LA to 170LG, which are all in Division 1, deal with other preliminary matters. 17 Division 2 of Part VIB is headed: "Making agreements with constitutional corporations or the Commonwealth". The constitutional foundation for this Division is not the Commonwealth's power, under s 51(xxxv) of the Constitution, to make laws in respect of conciliation and arbitration for the prevention and settlement of interstate industrial disputes. Rather, the Division is based on the Commonwealth Parliament's legislative power in respect of certain types of corporations (s 51(xx)) and Commonwealth agencies (s 51(xxxix) and s 52(ii)). 18 Section 170LH states that Division 2 "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." The term "constitutional corporation" is defined in s 4 of the Act. It is common ground that Electrolux falls within the definition. 19 Section 170LI is important to the argument made by Electrolux in this case. It reads: "(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." 20 Section 170LJ sets out requirements in relation to agreements with organisations and s 170LK in relation to agreements with groups of employees. Section 170LL relates to greenfield agreements and s 170LM sets out formal matters concerning the application for certification. None of these sections is important to the present case. 21 Division 3 is headed "Making agreements about industrial disputes and industrial situations". Sections 170LO and 170LP explain the scope of the Division. Those sections read: "170LO If an employer who is carrying on a single business is or was a party to an industrial dispute, the employer may agree with one or more organisations of employees with whom the employer is or was in dispute on terms for: (a) settling or further settling all or any of the matters that are in dispute; or (b) maintaining a settlement of all or any of the matters that were in dispute, whether the settlement was made by an award, a certified agreement or otherwise; or (c) preventing further industrial disputes between them. 170LP If the parties to an industrial situation are, or include, an employer carrying on a single business and one or more organisations of employees, the employer and any of the organisations may agree on terms for preventing the situation from giving rise to an industrial dispute involving them." 22 Sections 170LR and 170LS deal with pre-conditions to certification of an agreement. 23 Division 4 is headed "Certifying agreements". It applies to both Division 2 and Division 3 agreements. Section 170LT(1) sets out the Commission's duty: "(1) If an application is made to the Commission in accordance with Division 2 or 3 to certify an agreement, the Commission must certify the agreement if, and must not certify the agreement unless, it is satisfied that the requirements of this section are met." 24 Subsection (2) of s 170LT specifies that the agreement must pass the "no-disadvantage test": see Part VIE of the Act. Subsection (3) enacts a qualification to that rule and subs (4) provides an example. Subsections (5) to (6) make other requirements, but they are not material to this case. 25 It is not necessary to deal with the remaining sections in Division 4. 26 Division 5 of Part VIB indicates the effect of certification. A certified agreement comes into operation when it is certified, unless s 170LY(2) applies. It remains in operation until its nominal date has passed, it is replaced by another certified agreement or is terminated under any one of the five specified sections: see s 170LX. 27 Section 170LY(1) provides: "(1) While a certified agreement is in operation: (a) subject to this section, it prevails over an award or order of the Commission, to the extent of any inconsistency with the award or order; and (b) it has no effect to the extent of any inconsistency with another agreement certified before it, whose nominal expiry date has not passed." 28 Section 170LY(2) is concerned with the situation that pertains if an award is made under s 170MX(3) of the Act and, before it is made or before its nominal expiry date, a certified agreement is made. This situation is immaterial for present purposes. 29 Section 170LZ(1) provides that, subject to the section, "a certified agreement prevails over terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of any inconsistency". Subsection (2) enacts a qualification in respect of a State law that deals with occupational health and safety, workers compensation, apprenticeship or "any other matter prescribed by the regulations". Subsection (3) includes a further qualification concerning State law protecting employees against harsh, unjust or unreasonable termination of employment. Subsections (4) and (5) envisage that the certified agreement may also displace some conditions of employment specified in Commonwealth law. 30 Division 6 of Part VIB is headed "Persons bound by certified agreements". If the application for certification states the agreement is made under Division 2, the certified agreement binds the employer and "all persons whose employment is, at any time when the agreement is in operation, subject to the agreement": see s 170M(1). It will also bind any organisation that made the agreement: see s 170M(2). If the agreement is stated to have been made under Division 3, the certified agreement binds the employer, the one or more organisations of members concerned and all their members: see s 170MA. Successor employers are also bound: see s 170MB. 31 Division 7 is concerned with the extension, variation and termination of certified agreements. We can pass it over. 32 Division 8 is of critical importance to this case. It is entitled "Negotiations for certified agreements etc". 33 The Division opens with s 170MI which deals with the initiation of a "bargaining period". Subsections (1) and (2) provide: "(1) If: (a) an employer; or (b) an organisation of employees; or (c) an employee acting on his or her own behalf and on behalf of other employees; wants to negotiate an agreement under Division 2 or 3 in relation to employees who are employed in a single business or a part of a single business, the employer, organisation or employee (the initiating party) may initiate a period (the bargaining period) for negotiating the proposed agreement. (2) The bargaining period is initiated by the initiating party giving written notice to each other negotiating party (see subsection (3)) and to the Commission stating that the initiating party intends to try: (a) to make an agreement with the other negotiating parties under Division 2 or 3; and (b) to have any agreement so made certified under Division 4." 34 Subsection (3) specifies each of the persons who is a "negotiating party" to a proposed agreement. Where the initiating party is an organisation of employees, as here, they include "the employer who is proposed to be bound by the agreement". 35 Section 170MJ requires that the notice given under s 170MI be accompanied by particulars of: "(a) the single business or part of the single business to be covered by the proposed agreement; and (b) the types of employees whose employment will be subject to the agreement and the other persons who will be bound by the agreement; and (a) the matters that the initiating party proposes should be dealt with by the agreement; and (d) the industrial dispute (if any) to which the proposed agreement relates; and (e) the proposed nominal expiry date of the agreement; and (f) any other matters prescribed by the regulations." 36 The bargaining period begins at the end of seven days after the notice was given: see s 170MK. 37 Section 170ML concerns "protected action". Subsection (1) explains that the section "identifies certain action (protected action) to which the provisions in section 170MT (which confers certain legal immunity or protected action) are to apply". Subsection (2) deals with employee action during a bargaining period. It provides: "(2) During the bargaining period: (a) an organisation of employees that is a negotiating party; or (b) a member of such an organisation who is employed by the employer; or (c) an officer or employee of such an organisation acting in that capacity; or (d) an employee who is a negotiating party; is entitled, for the purpose of: (e) supporting or advancing claims made in respect of the proposed agreement; or (f) responding to a lockout by the employer of employees whose employment will be subject to the agreement; to organise or engage in industrial action directly against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action." 38 The remainder of the section concerns employer action. It is presently immaterial. 39 Sections 170MM and 170MN contain two special rules. They relate to action engaged in with a person who is not a "protected person" and industrial action taken between the time a certified agreement comes into operation and its nominal expiry date. 40 Section 170MO sets out requirements for a notice of proposed protected action and s 170MP requires that any such action be preceded by genuine negotiations. 41 It is possible to pass directly to s 170MT. That section immunises protected action from, firstly, the power of the Commission to make an order, under s 127 of the Act, requiring industrial action to stop or not occur; and, second, actions under State or Territory law, unless the industrial action has involved or is likely to involve personal injury, wilful or reckless destruction of, or damage to, property or the unlawful taking, keeping or use of property. 42 Section 170MV provides that a bargaining period ends if any of the following events occur: "(a) an agreement under Division 2 or 3 is made by the employer and any one or more of the other negotiating parties; or (b) the initiating party tells the other negotiating party or each of the other negotiating parties in writing that the initiating party no longer wants to reach an agreement under Division 2 or 3 with that other party or those other parties; or (c) the Commission terminates the bargaining period." 43 Section 170MW(1) empowers the Commission to suspend or terminate a bargaining period, if satisfied of the existence of certain circumstances. Under subs (2) these circumstances include that a negotiating party who "has organised or taken, or is organising or taking, industrial action to support or advance claims in respect of the proposed agreement: (a) did not genuinely try to reach an agreement with the other negotiating parties before organising or taking the industrial action; and (b) is not genuinely trying to reach an agreement with the other negotiating parties." 44 Sections 170MX-170MZ require the Commission to conciliate after terminating a bargaining period under subs (3) or (7) of s 170MW. However, there is no similar provision in connection with a termination under s 170MW(2). 45 Division 9 of Part VIB contains only s 170NC. Subsections (1) and (2) of that section are material to the argument. They read: "(1) A person must not: (a) take or threaten to take any industrial action or other action; or (b) refrain or threaten to refrain from taking any action; with intent to coerce another person to agree, or not to agree, to: (c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or (d) approving any of the things mentioned in paragraph (c). (2) Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8)." The decision of Merkel J 46 Merkel J noted certain facts agreed between the parties. They included the background facts set out above and also a list of 20 "union claims" with which the negotiations were concerned. Most of the claims concerned terms and conditions of employees' employment with Electrolux; on any view, they related to the employer-employee relationship. However, the list also included the three claims that were at suit before Merkel J, including the claim for payment of a bargaining fee. Merkel J took the wording of that claim from the statement of agreed facts viz: "Bargaining fees and the Unions' claim that the employer should advise new employees that an Agents' fee of $500.00 is payable to the Union by non-Union members to the Unions to reflect the service obtained by those non-members from the Unions in negotiating agreements, and that those employees should pay the amount and that the employer should provide a direct debit facility for the payments." 47 Merkel J referred to a draft agreement that had been produced by officials of the Unions during the course of negotiations. The draft clause concerning the bargaining fee did not confine its operation to non-members of the Unions. However, Merkel J noted, on the basis of the statement of agreed facts and the filed evidence, that it was intended to be so confined. His Honour found the bargaining fee claim was being pursued in a similar fashion to the claims in respect of security for employee's entitlements and shop stewards' access rights: "the unions were prepared to negotiate with Electrolux about the detail of the claims". 48 After identifying some of the relevant statutory provisions, Merkel J said at para 13: "It was common ground that the industrial action taken by the unions was for the purpose of supporting and advancing claims in respect of the proposed agreement. The issue between the parties was whether the proposed agreement satisfied the requirements of s 170LI and was therefore capable of being certified. In particular, the parties were in agreement that the outcome of the present application depended upon whether the proposed agreement was about matters pertaining to the requisite employment relationship." 49 All counsel accept the accuracy of the first sentence in this paragraph. However, counsel for the Unions dispute his Honour's characterisation of the issue. They say the critical issue was whether or not the action taken by their clients was action "supporting or advancing claims made in respect of the proposed agreement": see s 170ML(2)(e). It is immaterial, according to counsel for the Unions, whether or not the claims, if accepted and incorporated into an agreement, would have the effect of rendering that agreement unable to be certified under s 170LI(1). If it is necessary to go to that question, counsel say, they would not have that effect. 50 Electrolux put contrary submissions, both before us and before Merkel J. At paras 15 and 16, his Honour described Electrolux's case in this way: "Electrolux contends that industrial action taken by the unions to support or advance the employee entitlements, agent's bargaining fee, and the shop stewards access claims was not action in respect of claims that were capable of being the subject of a certified agreement as they did not pertain to the relationship of Electrolux and its employees as required by ss 170LI and 170ML. Electrolux's contention is based on the premise that if any term of, or matter provided for in, the proposed agreement does not pertain to that relationship the agreement cannot be certified under Div 2 of Pt VIB and no protected action can be taken to support or advance claims in respect of that agreement. Accordingly, so it is contended, the action taken breached s 170NC and was subject to the enforcement and penalty provisions in Div 10 of Pt VIB. Under s 170NF penalties may be imposed for a contravention of s 170NC. The Court may also grant an injunction under s 170NG requiring a person not to contravene, or to cease contravening, inter alia, s 170NC." 51 Merkel J focussed on the words "pertaining to the relationship" in s 170LI and said: "The relationship is between the employer, as such, and the persons employed, as such: see Re Alcan Australia Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96 ('Alcan') at 105-107. In that regard in Re Manufacturing Grocers' Employees Federation of Australia; Ex parte Australian Chamber of Manufactures (1986) 160 CLR 341 ('Manufacturing Grocers') at 353 the Court observed that the words 'pertaining to' mean belonging to or within the sphere of the requisite relationship and that the matters in question 'must be connected with the relationship- between an employer in his capacity as an employer and an employee in his capacity as an employee in a way which is direct and not merely consequential." 52 Merkel J went on at para 21: "The initial issue is whether the claims the unions were supporting or advancing by their industrial action, if acceded to, were in respect of matters that were capable of being included in an agreement that is to be certified under s 170LT. The general approach to be adopted in determining the characterisation of an industrial claim is to look at the substance of the demand and to identify the aspect that is central to the claim, or a critical part of it, having regard to the context in which the claim is made: see Re The Amalgamated Metal Workers Union of Australia; Ex parte Shell Co. of Australia Ltd (1992) 174 CLR 345 ("Shell") at 358-359. The claim is not to be construed as if it were a document creating legal rights and obligations: see Shell at 359. Finally, a claim can be properly characterised as pertaining to the relationship of an employer and its employees notwithstanding that parts of a claim that are machinery provisions giving effect to the claim …, or ancillary aspects of it …, may not pertain to that relationship. If a claim pertains to the requisite relationship in accordance with the above principles it is because it is in respect of a matter that pertains to that relationship." (Original emphasis) 53 The learned primary judge discussed at some length the claims made by the Unions in respect of employees' entitlements and shop stewards' access. He held both these claims pertained to the employer-employee relationship and concluded his discussion with this comment (at para 39): "I have dealt with Electrolux's contentions in respect of the employee entitlement and shop stewards access claims on the basis argued by Electrolux, that is that the claims are to be characterised essentially by reference to the unions' formulation of those claims in the draft agreement proffered by them. On that basis Electrolux construed the unions' claims as if the draft agreement expressed the precise legal relationship and obligations the unions were seeking to create. There is substance in the unions' criticism of that approach on the ground that, in the present context, it is impermissible to examine in detail each term of the draft agreement as if it were already a provision of an award about to be made or an agreement about to be certified. That is particularly so where the draft agreement is proffered as "the basis for further negotiations" and the context in which the claims were being advanced in September 2001 included the unions' stated preparedness to negotiate on the detail of the claims. It is unnecessary for me to further consider the unions' criticisms in view of the conclusions that I have reached as to the proper characterisation of the matters the subject of the claims." 54 Merkel J thought it inappropriate to take a similar approach to the bargaining agent's fee. He continued at para 39: "The bargaining agent's fee stands in a different position. On the evidence before me the unions' claim requires that, prior to commencing employment with Electrolux, Electrolux advise all employees who are not, or do not become, union members that they are required to pay to the union a bargaining agent's fee of $500 per annum and that the employer, at the request of the employee, is to provide a direct debit facility to pay the bargaining agent's fee to the union. The claim, implicitly if not explicitly, is that Electrolux is to act as the union's agent in entering into a contract with new employees which requires the employees, who are not union members, to employ the unions as their bargaining agent to reflect the unions' service in negotiating agreements with Electrolux under the Act. The relationship between the employer and the employee that would be created were the claim acceded to is, essentially, one of agency; Electrolux is to contract with its employees on behalf of the relevant union, as its agent. The agency so created is for the benefit of the union, rather than for the benefit of the employee upon whom the contractual liability is to be involuntarily imposed. The resulting involuntary 'bargaining' agency is, as a matter of substance, if not form, a 'no free ride for non-unionists' claim, rather than one by which the union is undertaking its traditional role of representing the interests of union members in respect of the terms of employment of employees. Although the claim was argued as if it were a claim for future services, it may also be characterised as a claim for payment for the unions' services in securing the new employee's terms and conditions of employment in the proposed certified agreement, notwithstanding that the new employee will only have commenced employment after the date of the agreement. In that regard, it is relevant to note that the proposed draft agreement is to remain in force until 31 March 2003 (cl 7.0) and, in the meantime, no extra claims are to be pursued by the unions in relation to matters dealt with by the agreement except where consistent with the agreement or national wage case decisions (cl 47.0). Thus, payments claimed for bargaining "services" prior to re-negotiation of a new agreement would appear to relate, primarily, to bargaining services rendered prior to the non-union member having commenced employment." (Original emphasis) 55 Merkel J then said the "other aspect of the claim, the bargaining fee debit facility" is analogous to a demand that an employer pay its employees' union dues by making deductions from their salaries and remitting the proceeds to the union. His Honour noted such a claim had been held not to be within the requisite employment relationship. He cited The Queen v Portus; Ex parte Australian and New Zealand Banking Group Limited (1972) 127 CLR 353. 56 Merkel J thought that, in proposing the bargaining fee, the Unions were acting in their own interests, rather than the interests of their members. He said at para 46: "It is not suggested that the bargaining services to be provided by the unions in the present case are other than the services that are provided to their members to protect their terms and conditions of employment. The claim by a union for the imposition on a non-member of a fee for the bargaining services, provided by the unions acting in the interests of the members they are representing, is confirmatory of the view that they are acting in their own interests in making and pursuing that claim." 57 Merkel J summarised his reasons thus far by saying at para 48: "I have concluded that the employee entitlements and the shop stewards access claims pertain to the relationship of employer and employee but, for the reasons set out above, the bargaining agent's fee claim does not. The issue therefore is whether, in the context of ss 170LI and 170ML, the agreement proposed by the unions is not a proposed agreement about matters pertaining to the requisite relationship because one of the claims relates to a matter that does not pertain to the relationship." 58 Merkel J returned to the form of s 170LI of the Act. After quoting a passage from Shell concerning the definition in the then Act of the term "industrial dispute", his Honour said at paras 49-53: "The question is whether the industrial action being pursued as protected action by the unions in September 2001 was for the purpose of supporting or advancing claims made in respect of an agreement about matters pertaining to the requisite employment relationship. The requirement that the agreement be 'about' the requisite matters enables the statutory requirement to be satisfied by a less direct relationship than might have been necessary previously. Further, Div 2 of Pt VIB relies on the corporations, rather than the conciliation and arbitration, power and the legislature has departed from its previous formulation that required that each of the terms of the agreement be as to the requisite relationship. Section 170LI does not require that all of the terms of the proposed agreement must pertain to the requisite relationship. As explained above, s 170LI requires that the agreement be characterised as one that is about matters pertaining to the relationship. If a term of the agreement does not pertain to that relationship it does not follow that the agreement is not about matters pertaining to the relationship. For example, the term may be ancillary or incidental to, or a machinery provision relating to, a matter pertaining to the employment relationship. Thus, an agreement may be about the requisite matters notwithstanding that some of its terms may not, strictly, be about such matters. However, if the term relates to a subject matter that does not pertain to the requisite relationship then the agreement might not be an agreement about the requisite matters. Of course, to the extent the agreement is not about the requisite matters it may have effect according to the general law but, if it does not meet the requirements of ss 170LI and 170LT, it cannot be certified and have effect as an award: see Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645 at [33]-[35]. If one of the substantive matters provided for in the agreement is not within the required description and that matter is discrete and significant then the proposed agreement may properly be characterised as about matters that are within the relationship and a matter that is not. While it is arguable that s 170LI only requires that the agreement in question be characterised as one that is 'substantially' or 'primarily' about the requisite matters it would be inappropriate to add those words absent a clear legislative purpose in favour of that construction: see Saraswati v The Queen (1991) 172 CLR 1 at 22 per McHugh J. I doubt that the legislature intended that protected action was able to be taken to advance or support claims in respect of a substantive, discrete, and significant matter that does not pertain to the requisite relationship, or that an agreement about such a matter is to be capable of certification. It is not to the point that the offending matter is only one of many matters dealt with in the agreement. More importantly, however, I am not able to discern any legislative purpose that a certified agreement can include a substantive, discrete, and significant matter that does not pertain to the requisite relationship. The claim by the unions for payment of a bargaining agent's fee is substantive, discrete and significant (ie, in the sense that it is substantial). … Accordingly, the agreement proposed by the unions is not an agreement about matters pertaining to the requisite employment relationship." (Original emphasis) 59 Merkel J concluded (at para 55): "The industrial action taken in September 2001 by the unions, pursuant to the notices issued under s 170MO, was action for the purpose of supporting or advancing claims made in respect of a proposed agreement that was not an agreement about matters that pertained to the relationship between Electrolux and its employees, as such. Consequently, the industrial action was not protected action under the Act." Submissions for the Unions 60 The arguments of counsel upon the appeals substantially reproduced the submissions put to Merkel J. 61 Counsel for the appellant Unions, Mr S C Rothman SC and Mr S Howells, argued Merkel J erred at three levels. 62 First, counsel said, it was erroneous to say the insertion of a term for a bargaining fee would mean that any agreement between the Unions and Electrolux was not "an agreement, in writing, about matters pertaining to the relationship between … an employer who is a constitutional corporation … and all persons who, at any time when the agreement is in operation, are employed in a single business … of the employer and whose employment is subject to the agreement." They pointed out the words used in s 170LI are different from those used in earlier legislation, solely founded on the Commonwealth's constitutional power in connection with interstate industrial disputes, and which were under consideration in cases such as Shell, Portus and Alcan. The difference in wording reflected the change to reliance (in Division 2 of Part VIB) upon other bases of constitutional power. 63 Counsel argued that even if, contrary to their submission, the claim proposed a term that would not comply with the wording of s 170LI, that does not mean the Commission would lack power to certify any resultant agreement. They pointed out that s 170LI does not require that each term of an agreement be about a matter pertaining to the relationship described in paras (a) and (b) of s 170LI(1). They said it is sufficient that the agreement, considered as a whole, be "about matters pertaining" to the employment relationship. 64 Finally, counsel said that, in any event, Merkel J was concerned with the application of s 170ML(2)(e), not s 170LI. The only question he had to decide was whether the protected action was taken for the purpose of supporting or advancing claims made in respect of the proposed agreement. Counsel for the Unions argued s 170NC supported their approach. They said: "Section 170NC of the Act imposes a penalty on a person who takes industrial action (other than protected action) with intent to coerce another person to agree to the making of an agreement under Division 2. If the making of a claim about a matter which was not one pertaining to the relationship of the employer and its employees took the agreement out of the description 'an agreement under Division 2' the making of such a claim would necessarily prevent a contravention of s 170NC of the Act." 65 Counsel also argued the need for certainty: "The purpose of the provisions dealing with protected action is to grant a significant immunity to participants in industrial action which industrial action is taken for certain purposes. In order for the purpose of the legislation to be achieved it is necessary for there to be certainty and a practical approach to be taken to the operation of the legislative provisions. If, as is submitted, the determination that any one of the claims (in whole or in part) is not relevant matter means that none of the industrial action was protected action, then it would lead to a situation where no participant in industrial action could without significant prior litigation (which may in any event be academic) be confident that the industrial action was protected." 66 Counsel for the Unions emphasised the use of the word "about" in s 170LI. They said: "The Court or any tribunal is not in a position to determine what a clause is 'about' without an examination of the issue or issues between the parties which gives rise to the clause. … A claim, for example, in relation to wages or the settlement of disputes about the application of the Agreement may involve the recognition of a single bargaining unit and/or the limitation on the number of representatives of workers and thereby involve a recognition by employees of the representative role of one or more unions (or others) in the negotiation of the agreement and the settlement of disputes arising in relation to the application thereof." 67 Counsel said: "The only requirement in relation to the making of claims is that the claims not be a sham (i.e. be that which the claimant does not truly desire) and is sufficiently capable of having a meaning assigned to it." 68 During the course of their submissions, counsel for the Unions referred to a decision of the Full Bench of the Commission, Atlas Steels Metals Distribution Certified Agreement 2001-2003, 29 April 2002. The Full Bench (President Giudice, Vice-President McIntyre and Commissioner Whelan) there heard appeals against decisions by a Deputy President of the Commission refusing to certify six agreements containing a "union fees" clause and two agreements that included a "union notification" clause. The Full Bench held (at [32]) the "union fees" clause (which empowered the employer to deduct union fees from employees' wages, with their consent, and remit them to the union) was "about the relationship between the employer and the union". However, they said, it was not confined to that: "It also affects the relationship between the employer and each employee who authorises the employer to deduct union fees from the wages earned by the employee and to remit the fees so deducted to the union. A union fees clause adjusts the manner in which the employer's obligation to pay wages earned by the employee in the employment relationship is to be discharged. It pertains to the relationship between the employer as such and the employees covered by each of the agreements as such." 69 The Full Bench took a different view about the "union notification" clause. This clause would require the employer periodically to submit to the union a list of names, addresses and classifications of employees; under one agreement, employee consent was required, under the other, it was not. The Full Bench thought consent was immaterial; neither clause was about a matter pertaining to the employment relationship. 70 Three aspects of Atlas Steel should be mentioned. First, at [18], the members of the Full Bench pointed out the difference in wording between the relevant part of the definition of "industrial dispute" in s 4 of the Industrial Relations Act and s 170LI of the Workplace Relations Act, a difference they thought "may be important". The Full Bench said: "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. The 'matters' referred to in s.170LI(1) are matters pertaining to the employment relationship involving the employer bound by the agreement, as such, and the employees covered by the agreement, as such." (Original emphasis) 71 Second, the Full Bench rejected a submission made to them "that, properly construed, s 170LI(1) does not require that every matter in an agreement must pertain to the relationship between the employer and employees". It had been suggested "that a valid application might be made in relation to an agreement which contains matters pertaining to the relationship between the employer and employees and matters that were not so pertaining provided the agreement as a whole could be characterised as being matters pertaining to the relationship". At [20] the Full Bench said: "We see a number of difficulties with this construction of the section. In the first place, it appears to us that an agreement which contains provisions some of which are about matters pertaining to the relationship and some of which are about matters which do not so pertain cannot be described, at least without straining language, as an agreement about matters pertaining to the relationship. Secondly, this construction gives rise to uncertainty in the application of the section and of the Division. It requires a weighing-up or balancing of provisions which are about matters which do pertain and those which do not in order to reach a conclusion as to whether the agreement as a whole is about matters which pertain. That might involve difficult value judgments in particular cases. Thirdly, the construction contended for might lead to some irreconcilable results. Some agreements deal only with one or two matters. Others deal comprehensively with the terms and conditions of employment. An agreement containing one or two matters only, being matters which do not pertain to the relationship, could not be the subject of a valid application for certification. An agreement containing the same one or two matters, but also containing a large number of matters that do pertain to the relationship, could be the subject of a valid application for certification. The legislature is unlikely to have intended the section to operate in such a capricious way. All of these considerations tell against the submission." 72 The Full Bench quoted the third paragraph of the extract from the judgment of Merkel J in this case which is set out at para 58 above. The Full Bench added: "We are unable to discern a legislative purpose which would justify reading down the clear words of the section". 73 Third, the Full Bench considered what was the proper course for a member of the Commission to take, if asked to certify an agreement that contained an impermissible clause. The Full Bench rejected the possibilities of issuing a certificate that excluded the impermissible clause or of requiring the parties to file amendments. The Full Bench said: "Where a substantive amendment is required to remove an impediment to certification, that amendment must be brought about in the manner prescribed in the Act for the making of agreements. It is not permissible for agreements to be certified without approval by a valid majority of the persons employed at the time whose employment will be subject to the agreement." 74 Although the Full Bench did not expressly say so, it seems it felt that the only available course was for the Commission member to decline to certify the agreement and leave it to the parties to create a new agreement, following the prescribed procedure, that omitted the impermissible clause. Submissions for Electrolux 75 Counsel for Electrolux, Mr C Kourakis QC and Ms K Noyen, supported the reasoning of Merkel J. They argued the first question to be determined was whether the claim for a bargaining fee, if granted, would result in an agreement that complied with s 170LI of the Act. In contending it would not, they relied heavily upon the decisions in Portus and Alcan. 76 Counsel said that, in Portus, the High Court held the words "all matters pertaining to the relations of employers and employees", as used in the definition of "industrial matters" in the Conciliation and Arbitration Act 1904, were limited to matters concerning the relationship as such. The words did not cover a different type of relationship, even between the same people, such as a financial agency. 77 Counsel pointed out that, in Alcan, the High Court declined to reconsider the correctness of Portus. In Alcan the Court held that a demand by a union that an employer deduct union dues from its employees' wages, and remit them to the union, did not give rise to an "industrial dispute" within the definition in s 4 of the Industrial Relations Act 1988. That definition referred to "an industrial dispute … that is about matters pertaining to the relationship between employers and employees". 78 Counsel for Electrolux acknowledged that any agreement, that reflected the claims made by the Unions against their client, would contain many terms undoubtedly concerning the employment relationship. However, they said, this would not suffice to bring the agreement within s 170LI; there must be no extraneous term. Counsel adopted the reasoning of Merkel J quoted in para 58 above. They said that, if there was any discrete and significant term that failed to fall within the required relationship, it had the effect of tainting the whole agreement. Counsel observed there was no provision in the Act for certifying part of an agreement; it had to be certified in its entirety or not at all. 79 Turning to the question of what constitutes "protected action", counsel for Electrolux noted the expression "proposed agreement" first appears in s 170MI(1) of the Act, in connection with initiation of a bargaining period. It follows, said counsel, "that the agreement that is proposed is an agreement of the type contemplated by Division 2 or 3, that is relevantly an agreement about matters pertaining to the employment relationship or in settlement of a dispute about matters pertaining to an employment relationship". Counsel submitted that s 170MJ "further strengthens the necessary connection between the proposed agreement and one coming within the description" in s 170LJ by requiring particulars of "the matters that the initiating party proposes should be dealt with by the agreement". They said these are "matters pertaining to the employment relationship". 80 Counsel claimed that a purposive construction of the Act supports its case; industrial action is only protected if taken during the bargaining period and the purpose of commencement of a bargaining period is negotiation of a certified agreement. Counsel argued: "The manifest purpose of the legislation is to allow industrial action as an aid to the negotiation of an agreement which can be certified. There is no apparent reason for the legislature to allow industrial action in support of agreements which can not be certified nor arbitrated if agreement is not reached." 81 Counsel for Electrolux referred to an observation by counsel for the Unions, based on a comment made by the High Court in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission ("CFMEU") [2001] HCA 16, 203 CLR 645 at para 32, that agreements made between unions and employers might, as a matter of contract, be about matters which do not pertain to the relationship between employers and employees. However, they said, this "does not lead to any conclusion on the issue of statutory construction as to whether such an agreement can be certified or whether industrial action taken in support of such a proposed agreement is protected". 82 Counsel for Electrolux said: "The prohibition in section 170MN on industrial action during the currency of an agreement does not lead to the conclusion that industrial action for any purpose is protected during a bargaining period. Rather, … the fact that the prohibition is lifted during a period in which there are negotiations for a further certified agreement strongly favours the respondent's contention that action is only protected insofar as its purpose is to advance agreements about matters pertaining to the employment relationship." 83 In relation to s 170NC, counsel submitted: "Section 170NC applies to action taken with intent to coerce another person to agree or not to agree to the making of an agreement. Such an intention may exist whether the agreement answers the description in section 170LI or not. In any event if section 170NC has a narrower operation than it might otherwise have had it does not affect the construction of section 170LI or section 170ML." 84 Counsel pointed out that, in this case, claims were clearly made in respect of the bargaining fee proposal. They said that was not a matter relating to the employment relationship; accordingly the industrial action taken by the Unions was not protected action. They submitted the approach of Merkel J should be affirmed and the appeal dismissed. Submissions for the Minister 85 Counsel for the Minister, Mr M McDonald, supported the submissions made on behalf of Electrolux. In his written outline, Mr McDonald identified two issues: "(i) whether the Appellants' claim for a bargaining agent's fee was a claim which pertained to the relationship of employer and employee ('the requisite relationship'); (iii) whether, if the bargaining agents fee claim did not pertain to the requisite relationship, the proposed agreement was nevertheless about matters pertaining to the requisite relationship for the purposes of s.170LI of the Workplace Relations Act 1996." 86 Mr McDonald put submissions about both these issues. He supported the views expressed by Merkel J and made much the same points as those made by counsel for Electrolux. He added a comment about certainty. Mr McDonald contended the appellant's construction of s 170LI "gives rise to weighing up of provisions which are about matters which do pertain and those which do not in order to reach a conclusion as to whether the agreement as a whole is about matters which pertain". Counsel argued that an agreement either does, or does not, fit the description employed in s 170LI(1). He drew an analogy with the issue of characterisation considered in Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 683. Conclusions 87 The issue in the present case is whether the industrial activity organised by each of the Unions in September 2001 was "protected action" within the meaning of s 170ML(2) of the Act. So it is appropriate to start with that subsection. That subsection entitles an organisation of employees, which is a "negotiating party" in respect of a possible agreement under Division 2 or 3 of Part VIB of the Act, "to organise or engage in industrial action directly against the employer". However, it may do so only for a purpose stated in para (e) or para (f) of the subsection. In the context of the present case, that means "for the purpose of supporting or advancing claims made in respect of the proposed agreement". 88 The effect of paras (e) and (f) of the subsection is to impose a limitation upon an organisation's entitlement to take legally-immune industrial action. The limitation is significant. Even if a bargaining period is in existence, the effect of the limitation is that there is no protection in respect of industrial action that was, or is being, organised for a purpose extraneous to claims in respect of the proposed agreement; for example, in sympathy with industrial action by other people. The effect of paras (e) and (f) is to make it clear that, in such a case, s 170ML does not apply. 89 However, this is the limit of the restriction imposed by paras (e) and (f). The paragraphs are concerned only with the purpose of the relevant organisation or individuals; not with their realism, or legal knowledge or the likely result of their industrial action. Of course, the claimed purpose must be the organisation's or individuals' real purpose. But no other limitation is imposed. 90 A claim is a claim. The only essential, for para (e) purposes, is that the claim be genuinely made "in respect of the proposed agreement"; however optimistically or even misguidedly. It does not matter whether or not the claim is likely to be conceded by the employer or whether or not its embodiment in an agreement will give rise to a problem in obtaining certification. These are matters for the future. 91 Provided the claims are genuinely made, it does not matter that others may think them unrealistic. In the industrial relations area, as in other spheres of life, extravagant claims are often made. Mostly, an extravagant claim is unsuccessful; but sometimes it is conceded, perhaps in a modified form. 92 There are sound policy reasons for reading para (e) literally. Fundamental to Part VIB of the Act is the notion that, within strict and objectively definable limits, organisations, employees and employers are entitled to engage in industrial warfare. We agree with the comment of North J in Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 at 18: "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." 93 If that purpose is to be achieved, a high degree of certainty is essential. 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 Part 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. 94 Further, there is usually more than one way of achieving a desired end. If an employer is disposed to concede a claim expressed in language that might create a problem, if repeated in an agreement presented for certification under s 170LI(1), the parties may find it possible to substitute different words. They may even agree on a different methodology. 95 Section 170NC points up the undesirability of narrowly reading s 170ML(2). We think counsel for the appellants are correct in submitting that, on their opponent's argument, there would be a lacuna in the operation of this section. If the making of a claim about a matter that did not pertain to the employment relationship was enough to take a proposed agreement outside the description "an agreement under Division 2", coercive action in support of such a claim, that was undertaken outside a formal bargaining period, or without a valid s 170MO(2) notice, would not be a contravention of a "penalty provision". It would not attract a penalty under s 170NF or injunctive relief under s 170NG. 96 Electrolux does not suggest the industrial action organised by the Unions in September 2001 was organised otherwise than for the support or advancement of the claims they were making against the company, including the bargaining fee claim. And Electrolux accepts that all the claims were genuinely made, in the sense that the Unions genuinely wished the substance of these claims to be included, in some form or other, in one or more certified agreements with the company. That being so, it seems to us the purpose of the industrial action clearly fell within the terms of para (e) of s 170ML(2); it does not matter whether or not the insertion of a provision along the lines of the bargaining fee claim would give rise to a certification difficulty under s 170LI(1). 97 It follows that we would allow the appeal and set aside the declarations made by Merkel J. We respectfully feel his Honour fell into error because he incorrectly identified the critical issue. The issue was not "whether the proposed agreement satisfied the requirements of s 170LI was not therefore capable of being certified": see para 48 above. The issue was whether the purpose of the industrial action fell within s 170ML(2)(e). 98 Under the circumstances, it is not necessary for us to express a final view about Electrolux's other propositions: first, that each individual term of an agreement presented to the Commission for certification must concern matters pertaining to the relationship between the employer and the employer's employees from time to time; and, second, that a term along the lines of the Union's bargaining fee claim would not concern such a matter. However, we doubt that either proposition is correct. 99 We do not see why the presence of one or more provisions that do not pertain to the relationship necessarily takes an agreement outside the description embodied in s 170LI(1). As counsel for the Unions pointed out, s 170LI(1) does not refer to the terms of an agreement. It talks about "an agreement … about matters pertaining to the relationship". So it is necessary to characterise the agreement itself, considering it as a whole. An agreement for the sale of a house is an agreement pertaining to real estate, notwithstanding it includes a provision regarding furniture. 100 Nothing in the statutory scheme suggests that a certified agreement that, considered as a whole, answers the description of s 170LI(1) may not include a particular term that does not. The only effect of certification is that prescribed by ss 170LY and 170LZ. Certification provides a statutory override of certain inconsistent awards and orders. A term dealing with matters outside the employer-employee relationship is unlikely to be inconsistent with, and therefore to override, any award or order; but it has contractual effect as between the parties: see CFMEU. 101 In connection with this point, it is relevant to remember that the Act wishes parties to have maximum flexibility in arranging their workplace relationship. Section 3 of the Act includes the following: "The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by: … (b) ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and (c) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act; …" 102 In relation to the second proposition, everything must depend upon the precise formulation of the term. But the words of s 170LI(1) are significantly different from those contained in the definition of "industrial dispute" in previous enactments. Cases decided with reference to that definition may not apply. Moreover, the claim by the Unions is that Electrolux impose a requirement (being a condition of their employment) upon future employees. It might give rise to a matter pertaining to the relationship between Electrolux and those employees, notwithstanding that the relevant Union, and its members, will benefit from the imposition: cf. The Queen v Gaudron; Ex parte Uniroyal Pty Limited (1978) 141 CLR 204 at 211, 226. The requirement of a direct debit facility seems to be merely facilitative and intended to be there for the benefit of those who wish to use it. Disposition 103 Each appeal should be allowed. Each of the declarations made by Merkel J should be set aside. That will have the result that the proceeding brought by Electrolux will stand wholly dismissed. 104 In deference to a request made by counsel for the Unions, we will reserve any issue relating to costs. I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 21 June 2002 Counsel for the Appellants: Mr S Rothman SC & Mr S Howells Solicitors for the Australian Workers Union: Lieschke & Weatherill Solicitors for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia, Jim Watson & Dave Oliver Taylor & Scott Solicitors for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia, Robert Johnston & Robert Geraghty: Moloney & Partners Counsel for the Respondents: Mr C Kourakis QC & Ms K Noyen Solicitors for Electrolux: EMA Legal Counsel for the Minister for Employment & Workplace Relations (as Intervener): Mr M McDonald Solicitors for Intervener: Blake Dawson Waldron Dates of Hearing: 27, 28 May 2002