Working around work choices: collective bargaining and the common law

Abstract

Since the early 1990s, the parties to collective workplace agreements have been encouraged to give their bargains statutory effect by registering them under industrial legislation. Yet in the wake of the High Court’s Electrolux Home Products Pty Ltd v Australian Workers Union ruling in 2004, and the introduction of ‘prohibited content’ rules as part of the Work Choices reforms, there has been a resurgence in the use of unregistered agreements that depend on the common law for legal effect. This article examines the use of such agreements and various barriers to their enforceability. It also looks at options for resolving disputes outside the courts — in particular whether parties can ask members of Australia’s publicly funded industrial tribunals to provide private dispute resolution services.