C2005/6270, Transcript of Proceedings [2006] AIRCTrans 53 (5 January 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13873-1

COMMISSIONER HARRISON

C2005/6270

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
AND
AUSTRALIA POST
s.127(2) - Appln to stop or prevent industrial action
(C2005/6270)

MELBOURNE

9.00AM, WEDNESDAY, 21 DECEMBER 2005

Continued from 20/12/2005
EXTRACT OF TRANSCRIPT OF PROCEEDINGS

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PN1

THE COMMISSIONER: I am sorry for the delay. I didn't keep changing my mind but the research was not as easily available as I thought. This is an application by the Australian Postal Corporation for an order to stop or prevent industrial action pursuant to section 127 of the Workplace Relations Act 1996. Section 127(1) of the Act is a discretionary power in that the Commission may by order give directions that the industrial action stop or not occur. The issuing of an order as has been stated in these proceedings is a serious step given that it requires the persons or organisations to which it applies to comply or be faced with an application for injunctive relief.

PN2

The jurisdictional prerequisites required before issuing an order are that industrial action is happening, threatened, impending or probable at the time of making an order. In part the grounds for - relied upon by Australia Post for the issuing of an order are that an unusually high number of employees have reported sick on 18th, 19th and 20 December. Mr Peter Robbins, HR manager, gave evidence that there was a disproportionately high level of absence at this time of the year.

PN3

Australia Post asserts this to be a subterranean and industrial campaign in protest at the dismissal of a shop steward at the Fitzroy delivery centre. During proceedings much evidence was adduced which I regard as secondhand and of little weight. It is not necessary to comment further on the evidence as I intend to narrow myself to the jurisdictional prerequisites. Section 127(1) states and I quote:

PN4

If it appears to the Commission that industrial action is happening or is threatened, impending or probable et cetera.

PN5

I was advised by Mr Tehan for Australia Post in proceedings this morning that the action complained of has ceased and normal attendances of employees has resumed. In Coal and Allied Operations cited by Australia Post in these proceedings the Full Bench stated:

PN6

In our view -

PN7

And this is at page 317.

PN8

In our view the company is entitled to rely upon a threat or probability of industrial action as a basis for establishing jurisdiction under section 127. For that purpose the history of resort to industrial action and evidence about the current state of industrial relations is relevant. The onus on an applicant for a direction under section 127 also extends in our view to establishing on at least a prima facie basis that there are adequate grounds for the Commission directing that the relevant action stop or not occur. The directions under section 127 must be that the industrial action stop or not occur. Hence the order is specific to the industrial action found to be happening or to be probable for the purposes of attracting the jurisdiction.

PN9

In Construction, Forestry, Mining and Energy Union and CBI Constructors Pty Ltd print number R1748 a Full Bench commented or stated that a pattern of intermittent but continual industrial action could be sufficient to enable the view to be formed that industrial action was threatened, impending or probable even though there was no action taking place at the particular time the order was to be operative. But this is not the case here. Although there is some reference in the proceedings before Merriman C to earlier industrial action at the site the evidence overall was not sufficient to enable the requisite view to be formed.

PN10

In that matter Commissioner Merriman was overturned by a Full Bench. It is with reference to these authorities that I have decided to decline to issue an order in this matter. In my view there is no clear evidence that industrial action is threatened. The letter - I do not regard the letter of Ms Doyle seeking the urgent conciliation in the Commission following the dismissal of a shop steward at the Fitzroy delivery centre to be sufficient evidence to regard that further industrial action is threatened or probable.

PN11

If I am wrong about this judgement or this view I have arrived at, the Commission will give speedy attention to the issuing of an interim order if industrial action does - in the form that has been described in these proceedings does reoccur in the short term but for the purposes of these proceedings today I decline to issue the order and I dismiss the application. Thank you.

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