C2003/4896, Transcript of Proceedings [2003] AIRCTrans 3421 (13 August 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, 15 Adelaide St BRISBANE Qld 4000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

C2003/4896

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under Section 127(2) by
Bradken Resources Pty Ltd for orders
in respect to industrial action at
Karrabin premises

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

BRISBANE

FRIDAY, 25 JULY 2003

EXTRACT OF TRANSCRIPT OF PROCEEDINGS [2.25pm]

PN1

THE COMMISSIONER: I would set out for the record that, as has been conceded by the parties, I consider the jurisdictional prerequisites in relation to this Section 127 application have been met. I turn to the issue of the Commission's discretion in relation to such an application. Firstly, this matter pivots on the provision as set out in section 170MO(2)(A) and (B). The employer's predominant argument in this regard is that the wording in this provision should be construed narrowly, that the requirements are that the construction in response, or the action in response should be taken after the start of a lock out of employees by the employer, in respect to the negotiation of a proposed agreement. That is, the action should be with respect to a lock out that is on foot. In contrast to this, the union's submission is that the reference to lock out refers more generally to previous lock outs.

PN2

The circumstances currently are that the employers and union clearly have been engaging in industrial action as contemplated by the negotiating provisions of the Act, and clearly seem to be protected in its form. The union has lodged notices of intended industrial action in place up until the period of 28 July, covering protected action in the form that can be distinguished from the notice of exhibit 4; that is, in the form of bans or limitations. However, when, on 24 July, the employer, after a lock out being in place on the day shift, then did not put a lock out in place for the afternoon shift for 23 July, the union responded in writing, setting out as per exhibit 4, that:

PN3

In response to your industrial action by way of a lock out, to organise and engage in industrial action in accordance with the provisions applying to a protected action as set out in Section 170ML of the Act.

PN4

The particulars of this notice are as follows:

PN5

Members and officials of the AMWU will refuse to work from the time of this notice until midnight on 29 July 2003.

PN6

And it further goes on to set out:

PN7

This notice supersedes all previous notices only to the extent of any inconsistency.

PN8

Thus, potentially, effectively, by its wording, invalidating the wording of the prior notices of intended industrial action as set out in the schedule in exhibit 1. I have reservations with regard to the communications by the employer to the union and the employees that no lock out was to be in place for the afternoon shift of 23 July. I particularly emphasise, however, that I have considered this matter separate to any previous history of the applications regarding these parties and this site, which have recently come before me. I do not attach any association to previous matters, and to the actions taken by either party in this particular application.

PN9

I have, in relation to this matter, decided to exercise my discretion as follows: I see the employer's actions to lift the lock out as a genuine act to progress negotiations on site. I stress that, in the circumstances of this case, what might have been hoped to be a movement this week towards tying up an agreement with only limited industrial action, seems to have struck difficult grounds. Having heard the evidence, I am inclined to the view that the difficulty on the ground was to be minimised by the employer's actions to lift bans and have a cooling off period. This has not eventuated.

PN10

I note the words of Munro J in similar circumstances, where he stated:

PN11

There needs to be a sensitivity to the obligations, requirements, and art of producing agreements through conciliation and negotiation. Those aspects are more important in many instances, than a high level of awareness of the sanctions, penalties, and opportunities for litigation with which the current negotiating regime abounds.

PN12

And I certainly emphasise those words to the employer as well. I also note his imposed formula in analogous circumstances to those as presented to me. That said, I am satisfied, for more reasons than one, that this is the case, where, having regard to the observations I made allowing the adjournment for discussions in this matter, there should be a form of compulsion put on both parties to these proceedings.

PN13

I will give that form of compulsion as an order under Section 127. I attach to it conditions and directions that are intended to encourage at least the parties to get on with the negotiating task that should be the primary function of any bargaining period. The conditions are intended also to encourage the union to observe the necessary elements of the responsibility, and accountability, obligations, associated with the rights that it has as a negotiating party. However, I note that the action taken by the union may potentially be protected industrial action, and that will only be a matter if, in fact, such an order was progressed to a court.

PN14

I will indicate on the record that I propose that the form of the order will be known as the Bradken Resources Proprietary Limited Industrial Action Order 2003. It applies to the work and employment regulated by the agreement to which I have referred. The parties bound are the AMWU and Bradken. The parties shall comply with the order; that includes, both the employer, I emphasise, the union, and employees, bound. The direction as to the industrial action to stop or not to occur is in an unusual form, I note. The order sets out that the action relates to the union and to its employees, but I will be seeking a commitment from the employer that they, too, will not engage in any industrial action for the period that I have set out in the order.

PN15

The applicant employer and union shall be under a restriction that is both a form of prohibition and a form of licence. That is, that they shall not take any industrial action until next Wednesday. I note the current lack of appropriate notices would prevent this in any event. The direction and conditions are for this cooling-off period for both parties to enable on each of those days next week for the negotiations to be progressed, with a report back to the Commission next Friday, 1 August, at 2 pm. I expect, before the parties leave the precincts of the Commission today, that arrangements will be made between the employer and the appropriate union parties, for the appropriate meeting to commence on Monday morning.

PN16

The order shall come into effect from 4 pm today, 25 July 2003, and shall remain in force until midnight next Tuesday, 29 July. I clarify that this order should prevent the union and its members, the employees of Bradken, and the employer, from taking industrial action for that limited period of time. This is specifically designed to ensure that the principal purpose of the negotiations as contemplated under the provisions of the Act take precedence, and that the agreement can certainly, in this interim period, be substantially progressed and hopefully resolved. I would expect a detailed report back in the Commission next Friday, 1 August at 2 pm.

PN17

Are there any questions or clarifications? If not, I would have my associate hand out that order. Nothing further? I will adjourn.

END OF EXTRACT [2.33pm]