The Right to Sever Invalid Provisions of Industrial Awards

Abstract

Using the 1977 AWU dispute with the oil industry as a basis for discussion, this paper examines the legality of an attempt to sever invalid provisions from industrial awards. The clause in dispute was a union preference clause and, while it is correct that statutory regulations, rules, by-laws and orders made by the Conciliation and Arbitration Court (as it then was) or by Conciliation Com missioners come under the provisions of S46 of the Acts Interpretation Act, industrial awards do not. In a review of case law on the legality of clause severance, this paper notes the important distinction between obligations which are divisible and those which are entire and indivisible. The author claims that these distinctions should apply to industrial awards and consent awards also. The conclusion is that (1) S46 of the Act does not apply to clause severance in industrial awards; (2) the nature of an industrial award points against the right of severance and (3) severance would, however, be acceptable in rare, excep tional circumstances.