Corporate Australia is seeking massive fines against the AMWU and four rank and file delegates in a bid to deny workers the opportunity to serve on local councils.
A proposal to grant Collie tradesmen local government representation leave is one of half a dozen clauses Wesfarmers Coal is seeking to have ruled not pertaining to the employer-employee relationship.
The company has issued writs for unspecified damages against WA AMWU officials Jock Ferguson and Colin Saunders, four job delegates, and their union.
The case, arising from the High Courts contentious Electrolux ruling, is set down for hearing in Perth on November 4 and 5 before Justice French in the Federal Court.
Wesfarmers has also taken exception to clauses that seek to control contracting and deliver right of entry, delegate education and leave provisions.
Citing Electrolux, employers are expected to argue that on-again, off-again industrial action at Collie was unprotected, exposing the union and its members to damages that could run into millions of dollars.
Corporate lawyers, Clayton Utz, are representing Wesfarmers Coal in an action Ferguson says will be a lawyers picnic.
Lawyers will be the big winners in this and everyone else will pay through the nose, Ferguson said. Its not hard to guess what John Howard did before he went into Parliament.
The High Court has opened up a difficult situation because nobody knows the rules of engagement any more. All protected action, over the last six years, appears to be up for grabs as a result of the Electrolux ruling.
This case is a classic example. Wesfarmers Coal is going to the Federal Court to have clauses ruled unlawful that it has already agreed to in negotiations.
There will be intense interest in the Perth proceedings as workers and employers seek some certainty about what may, and may not, be bargained over.
Justice Michael Kirbys warning that his fellow judges Electrolux ruling would have a chilling effect on collective bargaining, appears to be being borne out.
In a dissenting opinion, Kirby called the majority view impractical and narrow, suggesting it was divorced from workplace reality.
To expose an industrial organisation of employees to grave, even critical, civil liability for industrial action, determined years later to have been unprotected, is to introduce a serious chilling effect into negotiations that such organisations can undertake on behalf of their members, Kirby wrote.
Immediately after the ruling, a number of employers, including Dandenong-based truck manufacturer, Iveco, tried to have clauses rubbed out and industrial actions declared illegal.
Industrial law firms began circulating employers with advice that long-agreed provisions might now be technically illegal and render entire documents, including wages, unenforceable.
Meanwhile, the AIRC has green-lighted a number of clauses that had been challenged by employers as a result of the Electrolux ruling.
In the first real test of the decisions ramifications, AIRC vice president Iain Ross held that a certified agreement could contain provisions which are machinery in nature or are ancillary or incidental to a matter pertaining.
He okayed union right of entry provisions, site rates for labour hire employees, trade union training leave, paid delegates leave, and a clause prohibiting AWAs all of which had been challenged by employer groups.
The submissions of the Ai Group and ACCI almost seem to proceed on the assumption that clauses which give unions, or their representatives, rights are, almost by definition, not clauses which pertain to the employment relationship and hence cannot be included in a certified agreement. This is a false premise.
The task to be undertaken is one of characterisation, Ross said.
He did, however, knock off clauses providing for payroll deduction of union fees and granting union delegates access to new employees.