The High Court has refused a judicial review challenge by the Building and Allied Trades Union (BATU) to a Labour Court variation of the registered employment agreement for the construction industry. The ruling upheld the Labour Court’s authority to include provisions on subcontracting in the agreement; it did not decide the separate employment disputes that might arise under those provisions.
The case concerned an amendment dated 18 May 1998 to an agreement first registered in 1967. It set conditions for approved subcontractors, including compliance with the agreement, social welfare and safety requirements, insurance, and the employment of appropriate grades of union labour and apprentices. BATU opposed the amendment and argued that the Labour Court lacked jurisdiction to make it, that the application had not been made by a party to the agreement, and that the change extended the agreement beyond the workers it covered.
The Labour Court had rejected those objections when it made the variation. It said the application was made by the Construction Industry Federation and the unions’ representative body, and that the subcontracting conditions related to protections for workers covered by the agreement. The High Court reviewed that decision in judicial review proceedings heard on 8 and 9 March 2005.
BATU also argued that its members had not been adequately represented in negotiations and that the proposal should have been put to a ballot. The judgment records opposing accounts of the union’s involvement: BATU said it had been excluded from key discussions, while the notice parties said it took part in meetings and had opportunities to state its position. The court found that BATU had participated in relevant meetings between 1991 and 1996, had made submissions at the Labour Court hearing, and that the Labour Court had taken its opposition into account. The court also noted that no ballot of BATU members had taken place, but said assertions about members’ views could not be proven.
The judge distinguished the case from an earlier ruling that had struck down a variation because it widened the agreement to cover workers and employers previously outside it. Here, the court found no evidence that the amendment widened the relevant categories. It concluded that the subcontracting provisions concerned parties already within the agreement and that the Labour Court had followed the statutory procedure, heard the relevant parties and acted within its jurisdiction.
The High Court refused the reliefs sought. The judgment notes that the matter did not reach a hearing until almost seven years after leave for judicial review was granted, but says that delay was not decisive to the decision.