Deeds Pitfall – No Protected Industrial Action
 Protected industrial action may only be taken in respect of claims
during a bargaining period “for the purpose of supporting or
advancing claims made in respect of a proposed collective
agreement.” – s 435(1)(e)
Deed Pitfalls – Negotiation of Deeds and Collective Agreements
LHMU v Wattyl (PR965273, 17 Nov 05, Full Bench)
Appeal from s127 order
Facts
 Union tabled a document said to be “final offer”
 Document included claims to be included in a certified agreement
and claims (eg PRD and non-pertaining matters) to be included in a
deed
 FB observed there was no evidence that the Union had withdrawn
its claim for the PRD and other non-pertaining matters in the deed
Held
 FB said par 19
The claim for a Deed had not been withdrawn and was part of the LHMU’s
final offer at the time the industrial action was threatened. The inference is
irresistible that the foreshadowed industrial action would be to support or
advance all of the claims including the claim for a deed to deal with matters
which did not pertain. … The action would not therefore be protected.
CEPU v Cadbury (PR973290, SDP Acton, 11 July 2006)
Unions seeking ballot order
Facts
 Unions seeking to simultaneously negotiate deed (to include
prohibited content) and a union collective agreement
 Employer had made counter proposal to claims to be included in
the union collective agreement but refused to negotiate a deed
containing prohibited content
 During negotiations for union work choices agreement, union
official passed deed to employer and said “sign this and it will go
away.”
 Cadbury claimed that the AIRC must not grant “ballot order
applications” because it could not be satisfied that the unions were
“genuinely trying to reach agreement”
Held
 SDP adopted established case law that “genuinely trying to reach
agreement” did not require willingness to make concessions,
moderation or not taking a hard line but did mean preparedness to
consider seriously offers and proposals made by the otherside and
to take account of arguments – but having done this, a bargaining
party may still be bargaining in good faith
 SDP found that the:
o unions had made agreement to the collective agreement
contingent on the parties reaching agreement on the deed
o therefore union had put Cabdury’s offer in response to the
Union collective agreements to a side
o In the dcircumstances where the AMWU and CEUP have not
been prepared and are not prepared to seriously consider
the Cadbury Schweppes’ offers in response to the claims
made by those unions in respect of the proposed collective
agreement, I canno be satisfied that … the AMWU and the
CEPU genuinely tried to reach agreement … or are
genuinely trying to reach agreement
Duress: Case Examples
Universe Tankships Inc of Monrovia v International Transport
Workers Federation [1983] 1 AC 366ITWF threatened to black ban a ship
unless the owner paid a large sum of money, partly to the union welfare fund.
o ship owners faced financial disaster and paid the money instituted proceedings
to recover the m oney
House of Lords – Held
o Money was paid because of duress and could be recoveredThe Evia Luck
[1991] 4 All ER 871
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

the plaintiff's ship was in harbour in Sweden
Panamanian registered ship with crew from Phillipines & Greece
International Transport Workers' Federation informed the plaintiff that the
ship would be black banned unless plaintiff met certain demands:
o entered into certain agreements with ITWF, including back pay to the
crew,
o new contracts of employment at higher wages (as per ITWF approved
standard) and guarantees for future payments.
o Contribution to ITWF welfare fund
 Plaintiffs agreed to the demands
 The plaintiffs then sought to avoid the agreement on the grounds of duress and
claimed restitution of all sums paid.
Held – House of Lords
Blackbanning or threatened blackbanning was illegimate economic pressure