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C2003/ 1764 , Transcript of Proceedings [2003] AIRCTrans 1954 (23 May 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2003/ 1764 

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under section 127(2) by The
Australasian Meat Industry Employees Union
for an order in respect to the employer
taking industrial action against Mr A. Mallard

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

ADELAIDE

THURSDAY, 8 MAY 2003

PN1

THE SENIOR DEPUTY PRESIDENT: On the basis that parties have advised me that they are in agreement that the jurisdiction exists to allow the Commission to make an order pursuant to section 127, I propose to make an interim order tonight. That interim order is going to be made available to the parties in a written form at some stage tomorrow but I shall outline it in broad terms shortly. I think it appropriate that I advise the parties that the interim order that I propose is one borne of expediency.

PN2

The decision of Boulton J in the AMIEU and G. & K. O'Connor Pty Ltd in S0987 stated at paragraph 23 that:

PN3

It is a serious step for the Commission to make an order under section 127. The effect of such an order in the present matter will be to make unlawful what is otherwise lawful industrial action being taken by one party in pursuit of its own interests and as part of the bargaining processes provided under the Act. However section 127 is part of the scheme of the Act along with the bargaining and agreement-making provisions and the section gives the Commission power to make orders in relation to industrial action in appropriate circumstances.

PN4

That decision as the parties have alluded to was taken on appeal and in that decision the Full Commission said in Print S2371 at paragraph 50:

PN5

We accept for the reasons advanced by the appellant that the Commission would generally be reluctant to make an order under section 127 in respect of AWA industrial action. However the circumstances of this case are unusual.

PN6

I can advise the parties that I consider the circumstances fortunately of this particular case are also unusual to generally sit until hour of night. The interim order that I propose to make recognises that I will not be able to provide the parties with a decision on this matter until at the earliest early next week. It is based on the fact that I propose, pending further advice from the parties, to determine the application of that jurisdiction which is provided for pursuant to section 127.

PN7

I propose to take into account the situation confronting Mr Mallard and the situation which has confronted T & R Pty Ltd of Murray Bridge. I propose also to take into account the potential for a decision made in this matter to impact on further disputes between these two parties. On the basis of my experience, such further disputes appear certainly quite possible. The interim order will be binding on Mr Mallard. It will be binding on the AMIEU and its officers including Mr Trevor Smith and Ms Elena Jelehotzseva.

PN8

It will be binding on T & R Murray Bridge Pty Ltd and its officers including Mr Strong and it will also be binding on Mr Dasan. The order will take effect as of 7.30 pm this evening, 8 May 2003 and the order is to the effect that the parties engage in discussions which commence on the morning of 9 May 2003, that at these discussions Mr Mallard should detail to T & R Murray Bridge representatives the specific concerns which he has with the AWA proposed by T & R for him to sign.

PN9

That the parties use their collective best endeavours to effect an agreement which allows Mr Mallard to enter into an Australian Workplace Agreement which is consistent with the requirements of the Act with particular regard to the existing Australian Workplace Agreements which apply at T & R Murray Bridge. That the parties in the form of the AMIEU and T & R Murray Bridge individually provide the Commission by 5 pm on 9 May 2003 a written report on those discussions and to the extent that it is necessary, a further written report be provided to the Commission by 5 pm on 13 May 2003.

PN10

The opportunity exists for the parties to combine their individual reports in the event that they can come up with a collective and agreed position on the status of any negotiations. In the event that there is no agreement in relation to his matter by 5 pm on 13 May I will advise that parties that at that point I will deliberate on the discretion which is established pursuant to section 127 of the Act.

PN11

In the event that it is necessary that I determine a decision on this matter, I can foreshadow to the parties that I will be having regard to the question of whether section 170WHA requires that that decision be phrased or published in such a way as to protect the identity of any parties. The order that I have made on the interim basis will as I have indicated be made available to the parties at some point tomorrow and I reserve the capacity to modify the order insofar as that is necessary.

PN12

In that regard I would note that I have already identified an error in that I identified Mr Trevor Smith rather than Mr Graham Smith and I apologise for that.

END OF EXTRACT