CFMEU v Newcrest Mining Limited

CFMEU v Newcrest Mining Limited - [2005] NSWIRComm 23 - NSWIRComm 2005 case summary — Zoe

[6]

Industrial Dispute - Interlocutory proceedings - Notice of motion - Jurisdiction - Whether Industrial Relations Commission of New South Wales has jurisdiction to deal with the notification of an industrial dispute by a registered organisation of employees pursuant to s 130 of the Industrial Relations Act 1996 in circumstances where the employer named in the notification is a corporation party to a Australian Workplace Agreement approved in accordance with the terms of the Workplace Relations Act 1996 (Cth) - Consideration of Part 1 of Chapter 3 of the Industrial Relations Act 1996 as a valid law of NSW - Consideration of Part VID of the Workplace Relations Act as a valid law of the Commonwealth - Section 51(xx) of the Australian Constitution - Inconsistency of laws - Cover the field test - Direct inconsistency test - Whether corporations power authorises a law that would extinguish the power of a State industrial authority to deal with an industrial dispute - Conditions of employment - Held Commission has jurisdiction in respect of the dispute notification the subject of the proceedings. CATCHWORDS: Jurisdiction - Industrial Dispute - Interlocutory proceedings - Notice of motion - Whether Industrial Relations Commission of New South Wales has jurisdiction to deal with the notification of an industrial dispute by a registered organisation of employees pursuant to s 130 of the Industrial Relations Act 1996 in circumstances where the employer named in the notification is a corporation party to a Australian Workplace Agreement approved in accordance with the terms of the Workplace Relations Act 1996 (Cth) - Consideration of Part 1 of Chapter 3 of the Industrial Relations Act 1996 as a valid law of NSW - Consideration of Part VID of the Workplace Relations Act as a valid law of the Commonwealth - Section 51(xx) of the Australian Constitution - Inconsistency of laws - Cover the field test - Direct inconsistency test - Whether corporations power authorises a law that would extinguish the power of a State industrial authority to deal with an industrial dispute - Conditions of employment - Held Commission has jurisdiction in respect of the dispute notification the subject of the proceedings.

[34]

15 Sections 132 - 134 of the Act provide as follows: 132 Compulsory conference (1) For the purpose of resolving an industrial dispute, the Commission may convene a compulsory conference and require the attendance of any person whose presence the Commission considers would help in the resolution of the dispute. (2) A compulsory conference is to be presided over by a member of the Commission. (3) The Commission may confer with any person on any matter that may affect the resolution of an industrial dispute, without requiring the person to attend a compulsory conference. 133 Conciliation before arbitration The Commission must first attempt to resolve an industrial dispute by conciliation. 134 Conciliation of dispute (1) Commission to assist parties The Commission, when attempting the conciliation of an industrial dispute, is to do everything that seems to be proper to assist the parties to agree on terms for the resolution of the dispute. (2) Recommendations or directions During conciliation proceedings, the Commission may make a recommendation or give a direction to the parties to the industrial dispute. Failure to comply with any such recommendation or direction may not be penalised but may be taken into account by the Commission in exercising its functions under this Act. (3) Conferences The action that may be taken by the Commission to assist the parties includes making arrangements or giving directions for the convening and conduct of conferences of the parties or their representatives (whether or not compulsory conferences and whether or not presided over by a member of the Commission). (4) Good faith bargaining The Commission, when dealing with an industrial dispute, must consider whether the parties have bargained in good faith and, in particular, whether the parties have: (a) attended meetings they have agreed to attend, and (b) complied with agreed or reasonable negotiating procedures, and (c) disclosed relevant information for the purposes of negotiation. The Commission may make recommendations or give directions to the parties to bargain in good faith.

[36]

17 Sections 135 and 136 deal with the arbitration of an industrial dispute: 135 Arbitration after attempted conciliation (1) The Commission is to deal with an industrial dispute by arbitration only if it is not resolved by conciliation. (2) Arbitration by the Commission is not to proceed until the Commission has issued a certificate that reasonable attempts have been made to resolve the industrial dispute by conciliation ( certificate of attempted conciliation ). (3) A certificate of attempted conciliation is to be provided to the President of the Commission unless the Commission is constituted by the President. (4) When determining whether to issue a certificate of attempted conciliation, the Commission must consider the effect that any industrial action in connection with the industrial dispute is having on the parties and the public generally. In particular, the Commission must give urgent consideration to the effect of industrial action in connection with a demarcation dispute. (5) A certificate of attempted conciliation may be issued on the Commission's own initiative or on application by any person authorised to notify the Commission of the industrial dispute. (6) The Commission must, without delay, issue a certificate of attempted conciliation on the application of any such person if the person satisfies the Commission that there is no reasonable likelihood that the dispute will be resolved by conciliation. (7) The Commission must, without delay, issue a certificate of attempted conciliation if the Commission decides that industrial action or duress necessitates the exercise of its arbitral powers. (8) The parties to the proceedings are to be provided with a copy of any certificate of attempted conciliation. (9) Nothing in this Act prevents the exercise of conciliation powers merely because arbitration powers have been exercised under this Act. 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.

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Judgment (101 paragraphs)

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Legislation Cited (6)

Cases Cited (22)

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