CFMEU v Newcrest Mining Limited

Industrial Relations Commission (NSW)|2005-03-23|Before: Walton J, Ms J

CITATION: Notification Under Section 130 by the CFMEU of a Dispute with Newcrest Mining Limited [2005] NSWIRComm 90

APPLICANT: Construction, Forestry, Mining and Energy Union (New South Wales Branch) PARTIES: RESPONDENT: Newcrest Mining Limited

CATCHWORDS: Industrial dispute - conciliation under ss 130 and 132 - compulsory conference - application for direction under s 134(2) - application for summons to attend and confer under s 165(3)(a) - when conciliation exhausted - whether certificate of attempted conciliation should be issued - discretionary issues as to issuing of direction or summons in compulsory conference - jurisdictional challenge - power to issue direction or summons to attend and confer in compulsory conference for conciliation - direction to attend and confer issued

The Constitution s 109 LEGISLATION CITED: Industrial Relations Act 1996 (NSW) ss 130 132 134(1) and (2) 135(2) and (6) 165(3)(a) 174(b) Workplace Relations Act 1996 (Cth) ss 4 170VQ(1) and (4)

CFMEU v Newcrest Mining Limited [2005] NSWIRComm 23 CASES CITED: Notification under s130 by the CFMEU of a dispute with Newcrest Mining Limited [2005] NSWIRComm 77 Re Pacific Coal Pty Ltd , Ex parte CFMEU (2000) 203 CLR 346

APPLICANT: Mr A Bukarica Legal/Industrial Officer Construction, Forestry, Mining and Energy Union (New South Wales Branch)

RESPONDENT Mr S Meehan of Counsel Solicitor: Ms J Mansfield Blake Dawson Waldron

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, VICE-PRESIDENT

MATTER NO. IRC 5730 of 2004 NOTIFICATION UNDER SECTION 130 BY THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) OF A DISPUTE WITH NEWCREST MINING LIMITED RE DISCIPLINARY PROCEEDINGS AGAINST BRETT TAMETEA DECISION AND DIRECTION

[2005] NSWIRComm 90 1 Despite the relatively recent commencement of conciliation proceedings, this matter has a complicated procedural history which I will set out briefly as necessary background to the issues now before me. 2 On 23 September 2004, the Construction, Forestry, Mining and Energy Union (New South Wales Branch) ("the CFMEU") notified the Industrial Registrar of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 NSW ("the IR Act") involving the respondent employer Newcrest Mining Limited ("Newcrest"). The notification was amended on 5 November 2004. 3 In broad terms, the amended notification asserts that Mr Tametea, an employee of Newcrest and member of the CFMEU, is subject to a final written warning by Newcrest. Newcrest refuses to discuss the warning with the CFMEU. Mr Tametea's terms of employment are regulated under an Australian Workplace Agreement ("AWA") made pursuant to the Workplace Relations Act 1996 (Cth) ("the WR Act"). 4 The matter was listed for compulsory conference before Commissioner Cambridge on 7 October 2004. Newcrest challenged the Commission's jurisdiction. 5 A Notice of Motion seeking a declaration that the Commission had no jurisdiction was heard by the Full Bench of the Commission in Court Session with the intervention of the Commonwealth and New South Wales Attorneys-General. The Full Bench of the Commission in Court Session dismissed the motion on 21 February 2005 in CFMEU v Newcrest Mining Limited [2005] NSWIRComm 23. 6 After a request for re-listing was made by the CFMEU, the matter was listed for compulsory conference on 9 March 2005. On that date, Newcrest advised the Commission that it had commenced proceedings in the New South Wales Court of Appeal seeking prerogative relief against the Industrial Relations Commission and the CFMEU. Accordingly, Newcrest sought an adjournment of this matter until the hearing and determination of the proceedings before the Court of Appeal - in effect, a stay of these proceedings. This application was rejected in an ex tempore decision: Notification under s130 by the CFMEU of a dispute with Newcrest Mining Limited [2005] NSWIRComm 77. 7 In the conciliation proceedings (which commenced immediately after that decision), no officer from Newcrest was present for the compulsory conference. At that stage Newcrest merely repeated its jurisdictional objection (by its legal representatives). This prompted the CFMEU to seek that relevant officers of Newcrest be required to attend the conciliation proceedings. The Commission then invited Newcrest to consider whether its officers would voluntarily attend to confer. (A full description of the course of the conciliation proceedings appears in the transcript of the proceedings of 10 March, 2005). 8 Despite the judgment of the Full Bench in CFMEU v Newcrest Mining Limited to the effect that the Commission had jurisdiction and thereby compulsory conciliation would proceed; despite the decision of the Commission in Notification under s130 by the CFMEU of a dispute with Newcrest Mining Limited that, notwithstanding Newcrest's application for prerogative relief in the New South Wales Court of Appeal, compulsory conciliation would proceed; and, despite the obvious fact that without the attendance of officers from both parties (and thereby some indication of their respective views as to the industrial dispute ), conciliation could not properly proceed, Newcrest's solicitors wrote to the Commission later that afternoon stating that: We are instructed that our client will not voluntarily take part in conciliation before the Commission pending the determination of our client's claim before the Court of Appeal that the Commission has no power to deal with the matter. 9 In the course of the conciliation proceedings the next day Newcrest stated (without directly applying for a certificate of attempted conciliation) that "there would be no prospect of the matter progressing towards resolution by participation in conciliation". 10 The CFMEU submitted that it was premature to issue a certificate of attempted conciliation and asked the Commission to (a) give directions pursuant to s 134(2) of the IR Act to appropriate officers of Newcrest to attend the conciliation proceedings or (b) issue a summons pursuant to s 165(3) of the IR Act requiring appropriate officers of Newcrest to attend and confer. 11 Newcrest disputed the Commission's jurisdiction to give the directions or issue the summons requested, upon similar grounds to its original jurisdictional challenge, but denied that these issues had been (explicitly) dealt with authoritatively by the Full Bench in CFMEU v Newcrest Mining Limited. In particular, Newcrest raised a distinct issue concerning s 170VQ of the WR Act. Conciliation proceedings were then adjourned to allow the parties to file written submissions on the issues raised, which they have done. (The parties agreed that the Commission should resolve the issues raised upon their written submissions without the need for further oral argument). 12 I shall firstly consider whether the proceedings have reached a stage where the Commission should issue a certificate of attempted conciliation pursuant to s 135(2) of the Act. Newcrest submitted that the continued course of conciliation proceedings would have no utility and no prospects for successful conciliation (based, no doubt, upon its contention that it would not reach any agreement by conciliation, although it is not exactly clear whether that position relates to the actual issues in dispute or a determination by the company not to cede any ground because of its jurisdictional challenge to the conciliation process). 13 In essence, it was submitted for Newcrest that the Commission should treat the conciliation process as having been exhausted. This would raise the prospect of a certificate of attempted conciliation then being issued. However, I agree with the CFMEU that it would be premature to take that course. I consider that there remains prospects for a resolution of the industrial dispute by conciliation under Pt 1 of Ch 3 of the IR Act. 14 As the Full Bench observed in CFMEU v Newcrest Mining Limited (at [19]), the Commission will not lightly issue certificates of attempted conciliation because to do so signals a failure of the primary and threshold dispute-settling mechanism under the IR Act. 15 In considering whether conciliation proceedings should be concluded and a certificate of attempted conciliation issued pursuant to s 135(2) of the IR Act, Members of the Commission must be careful to observe the requirements of s 134(1) of the IR Act which requires the Commission, when attempting the conciliation of an industrial dispute, "to do everything that seems to be proper to assist the parties to agree on terms for the resolution of the dispute". Further, a certificate of attempted conciliation may not be issued unless the Commission is satisfied that "reasonable attempts have been made to resolve the industrial dispute by conciliation": see s 135(2). The Commission must issue a certificate, on application, if the Commission is satisfied that "there is no reasonable likelihood that the dispute will be resolved by conciliation": s 135(6). 16 The decision to grant a certificate involves the exercise of a broad discretion and may take into account a wide variety of factors such as the nature of the issues in dispute; the stances adopted by the parties in relation to the industrial dispute outside of formal processes and during the proceedings; and, the history of industrial relations in the particular industry or area of employment. Such broad assessments will no doubt be influenced by the Member's experience in dealing with industrial disputes both generally and (in many cases) in dealing with the parties to the industrial dispute or industrial issues in the relevant employment or industry area. 17 Long experience in this Commission in dealing with the conciliation of industrial disputes under the IR Act indicates that the rigid adherence by a party to its stated position in an industrial dispute at the outset of conciliation (even where the party is stridently opposed to the formal conciliation process for whatever reason) does not warrant a conclusion that the conciliation will necessarily be unsuccessful. In such cases, the requirement that there be a reasonable attempt at conciliation will normally not be satisfied until the position of the intransigent party has been properly examined in conciliation proceedings. 18 Whilst Newcrest has formally stated that it will not alter its position in relation to the issues raised by the CFMEU, and even allowing for a possible philosophical objection by it to the conciliation process, I am not satisfied, in the absence of conferring with officers of Newcrest and the CFMEU (and possibly Mr Tametea himself) in conciliation proceedings, that reasonable attempts have been made to resolve the industrial dispute by conciliation. There is certainly no proper basis at this stage for concluding that there is no likelihood that the dispute will be resolved by conciliation. As the Full Bench observed in CFMEU v Newcrest Mining Limited, the issues described in the amended notification would, in the ordinary course, be readily capable of resolution by conciliation. 19 Newcrest has firmly expressed views as to the jurisdiction of the Commission, and has resisted attendance at a conciliation conference no doubt influenced by this consideration. It does not follow, however, that a responsible corporation would conduct itself other than appropriately in a conciliation conference, although its participation in that manner does not, of course, mean that the issues in dispute will necessarily be resolved. Further, the full compass of potential outcomes of conciliation remain open and do not, therefore, preclude the possibility that Newcrest's stated position as to the substantive issues (once it has been clarified) may be accepted in whole or in part or, for that matter, that the issues in dispute may be narrowed (for example, with respect to Mr Tametea's position). Unfortunately the absence of Newcrest's officers in the conciliation proceedings to this date has prevented even a rudimentary clarification of its position in relation to the industrial dispute.

20 In my view, all reasonable attempts at conciliation have not been undertaken in this matter and there remains a likelihood that the industrial dispute may be resolved by conciliation. A Certificate of Attempted Conciliation should not be issued, therefore, at this stage and further steps in conciliation will be required. 21 I turn then to consider the CFMEU's request to facilitate the compulsory conciliation proceedings by a direction under s 134(2) of the IR Act or summons under s 165 of the IR Act to officers of Newcrest to attend the Commission for that purpose, given their refusal to do so voluntarily. This raises both issues of the Commission's power and the exercise of its discretion. 22 The relevant sections of the IR Act provide: 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. 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. 165 Issue of summons (1) A summons for the purposes of this Act is to be issued by the Industrial Registrar. (2) Any such summons must be signed by a member of the Commission or the Industrial Registrar or as otherwise provided by the rules of the Commission. (3) Any such summons may require a person to do any one or more of the following: (a) attend and confer, (b) attend and give evidence, (c) attend and produce documents or other things. (4) A person who, without reasonable excuse, fails to comply with the requirements of a summons is guilty of an offence. 23 Section 170VQ(4) of the WR Act provides: Effect of AWA on awards and agreements (4) During its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee's employment. 24 Section 4 of the WR Act contains the following definition of "state award": "State award" means an award, order, decision, or determination of a state industrial authority" 25 Newcrest conceded that the Full Bench's decision in CFMEU v Newcrest Mining Limited is binding on the Commission as presently constituted but contended that: ... the Full Bench recognised that an "operational inconsistency" may arise in the event that the Commission was to make an award or order that was inconsistent with the terms of Mr Tametea's AWA [para 84]. 26 In its notice of motion before the Full Bench, Newcrest contended that Part VID of the WR Act (which includes s 170VQ) invalidated Pt 1 of Ch 3 of the IR Act (ss 130 - 136) by extinguishing the Commission's jurisdiction to resolve a dispute by conciliation and arbitration where an AWA applies. In rejecting this contention, the Full Bench observed that s 170VQ did not purport to invalidate a State award or State agreement. At paragraph [64], the Full Bench continued: [64] ... The inconsistency may be said to arise because s 170VQ(4), underpinned by the corporations power, provides that during its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee's employment. The limit of the inconsistency, in our opinion, is only to the extent that an AWA, to which a corporation and an employee are party, applies to the employee's employment whilst the AWA remains on foot. The State award or State agreement is otherwise unaffected and following termination of the AWA will once again apply to the employee's employment provided there is no other supervening Federal instrument that may give rise to an inconsistency. [65] There is nothing in s 170VQ to suggest that a State award or State agreement that would otherwise have applied to an employee's employment is invalidated or that the reach of s 170VQ extends to precluding the Commission from making such an award or agreement. Whether the Commission did so would be a matter for its discretion, not a matter dictated by the terms of the Commonwealth law. In other words, an AWA and a State award or State agreement may stand side by side but the award or agreement will be excluded from applying to the employment of the employee who is a party to the AWA if, but for the AWA, the award or agreement would have applied to that employment. [66] In fact, by its language s 170VQ recognises that there may be State awards or agreements that apply to an employee's employment in circumstances where the employee is a party to an AWA. That is, s 170VQ recognises such awards or agreements have been made and may continue to be made, but where the award or agreement applies to the employment of an employee who is a party to the AWA, the award or agreement will be excluded by the AWA.

[67] We take the example of a registered organisation of employees that may notify the Commission of the existence of an industrial dispute. The Commission may decide to make a common rule award in settlement of the dispute. But for the existence of an AWA the employer corporation and the employee that are party to the AWA might be subject to the terms of the common rule award applying to a particular industry or occupation. [68] It may be accepted that the common rule State award that would otherwise apply to the employment of the employee who is party to the AWA would be excluded from so applying. The proposition, however, inherent in the respondent's position, that s 170VQ precludes the Commission from exercising its conciliation and arbitration powers to make such an award in the first place because it would, but for the AWA, apply to an employee's employment, is untenable. The corporations power is not a power that authorises laws the effect of which would be to extinguish the power of a State Industrial Authority to make common rule awards or exercise its conciliation and arbitration powers to resolve an industrial dispute merely because of the existence of AWAs. Such a law would not have the requisite connection to the corporation in the manner required by McHugh or Toohey JJ in Dingjan nor meet the "discriminatory operation" test of Brennan J in that case. (We note that a question may arise as to whether a Commonwealth law that sought to render inoperative the power of a State Industrial Authority to make awards, "impermissibly interfered with the governmental functions of a State": Austin v Commonwealth (2003) 77 ALJR 491 at [151] and the cases referred to therein regarding the limitation upon the powers of the Commonwealth Parliament that prevent it from discriminating against the States). 27 Newcrest has submitted that the exercise, in the present case, by the Commission of powers under sections 134(2) or 165 of the IR Act would be operationally inconsistent (in the manner described by the Full Bench at [84]) with s 170VQ(4) of the WR Act and therefore, by operation of s 109 of the Constitution, rendered invalid. The Full Bench held at [84]: [84] We do not accept in this case that an inconsistency arises between the terms of Pt VID of the WR Act and Pt 1 of Ch 3 of the IR Act at the time the Commission seeks to invoke its jurisdiction, if at all. At best an "operational inconsistency" (see The State of Victoria & Ors v The Commonwealth of Australia and Ors (1937) 58 CLR 618 at 631 per Dixon J; Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR 392 at 416 per Gleeson CJ and Gaudron J) may arise in the event the Commission were to make an award or order that was inconsistent with the terms of the AWA and if that were to occur s 170VQ(4) would apply but only during the period of operation of the AWA. No inconsistency would arise, for example, if the Commission limited the exercise of its power under Pt 1 of Ch 3 to the making of a recommendation or made an award or order that did not apply to Mr Tametea's employment or made an award or order that took effect after the termination of the AWA. 28 I do not agree with the further contentions as to jurisdiction put forward by Newcrest in the present application for the following reasons. First, I consider that the substantive matters raised by Newcrest have, in fact, been dealt with authoritatively by the Full Bench in CFMEU v Newcrest Mining Limited and the Commission is consequently bound to reject Newcrest's arguments. 29 Secondly, and in any event, I do not consider Newcrest's submissions (based as they are on s 170VQ of the WR Act) are sustainable. It could not be said, even on the broadest permissible interpretation, that a summons issued under s 165(3)(a) or direction to attend a compulsory conference for conciliation under s 134(2) "would otherwise apply to the employee's employment" within the meaning of s 170VQ of the WR Act. Thirdly, a direction under s 134(2) does not fall within the WR Act definition of "State award" (thereby enlivening s 170VQ). 30 Finally, whilst it is not strictly necessary to decide the matter, I have doubts as to whether summonses of the type sought by the CFMEU are "State awards" for the purposes of s 170VQ of the WR Act. 31 The Full Bench stated clearly that: (i) s 170VQ does not preclude the Commission from exercising its conciliation and arbitration powers under Pt 1 of Ch 3 in circumstances where an AWA applies to an employment relationship; (ii) it was a matter for the discretion of the Commission whether to make a "State award" or "State agreement", notwithstanding that it may stand side-by-side with an AWA; and (iii) in such a case, the "award" or "agreement" would be excluded from applying to the employment of the employee who is a party to the AWA if, but for the AWA, the "award" or "agreement" would have applied to that employment. 32 There can be no doubt that the issue of a direction during conciliation proceedings pursuant to s 134(2) of the IR Act is an exercise of the Commission's conciliation powers under Pt 1 of Ch 3 and is, therefore, explicitly covered by the Full Bench decision. Further, I agree with the submissions of the CFMEU that the issue of a summons requiring a person to attend and confer pursuant to s 165(3)(a) of the IR Act (found in Pt 5 of Ch 4 - Procedure and Powers of the Commission) is also an exercise of the Commission's conciliation powers under Pt 1 of Ch 3. 33 A centrepiece of the Commission's conciliation powers in Pt 1 of Ch 3 is the power to convene a compulsory conference pursuant to s 132. Not only is the conference described as compulsory (which may require some form of coercion); s 132(1) explicitly states that the Commission may require the attendance of any person whose presence the Commission considers would help in the resolution of the dispute (although that power is rarely required to be used as a practical matter). Section 165, in the procedural section of the IR Act, is the necessary mechanism to give effect to the compulsory nature of the Commission's conciliation powers enacted in s 132. The fact that s 165 performs this function is apparent by its very words which echo the words of s 132(1): "any such summons may require a person to ... attend and confer". To accept Newcrest's submissions to the contrary would be inconsistent with the decision of the Full Bench in CFMEU v Newcrest Mining Limited by depriving the Commission of the power to conciliate in the face of intransigence when it is the very prospect of resistance to conciliation to which the compulsory aspect of conciliation (in Pt 1 of Ch 3 of the IR Act) is directed. 34 That summonses may be issued pursuant to s 165 in matters which may not involve the exercise of the Commission's conciliation or arbitration powers (although it is unlikely that this would involve the exercise of the power granted under s 165(3)(a)) does not in any way detract from the fact that, in these conciliation proceedings, the present application for a summons to require people to attend a compulsory conference and confer necessarily involves the exercise of the Commission's conciliation powers. 35 Even if I was not constrained by the binding authority of the Full Bench in this matter, I reiterate that, even on the broadest interpretation, a direction to officers of Newcrest pursuant to s 134(2) or a summons issued pursuant to s 165 of the IR Act requiring officers of Newcrest to attend a compulsory conference (in circumstances where they refuse to attend voluntarily) could not be said to "otherwise apply to the employee's employment", but for the AWA. Such a direction or order does not bestow any privileges, rights, duties, or obligations on a party to an employment relationship in a manner affecting that employment relationship, and could hardly be described as "applying to Mr Tametea's employment" in circumstances where the conciliation itself (once validly convened) may not extend that far. The word "apply", used in both sub-sections (1) and (4) of s 170VQ, necessitates some practical level of contact which is precisely what this association lacks. The direction or summons sought would have no practical bearing on the terms or operation of Mr Tametea's employment; at best they may be a precursor to a compulsory conciliation between two parties involved in an industrial dispute, which may lead to any number of results not culminating in a "State award" or "State agreement" within the meaning of the WR Act. 36 For these reasons, neither the direction nor the summons sought by the CFMEU fall within the possibility of operational conflict raised by the Full Bench at [84]. 37 Further, I do not accept Newcrest's contention that a direction is a "State award". In CFMEU v Newcrest Mining Limited (at [56] - [58]) the Full Bench observed that a recommendation made pursuant to s 134(2) was neither an award, part of an award, nor a binding instrument and held that it does not fall within the definition of "State award". In the context of s134(2), a direction has the same effect as a recommendation and, on this basis and for the reasons outlined by the Full Bench, I am satisfied that a direction also falls outside the definition of "State award". Each example of a "State award" in the WR Act definition encompasses the notion of defining or specifying rights and obligations in an enforceable manner, a notion which is specifically excluded from recommendations or directions by the terms of s 134(2). Mr Meehan contended that a decision to issue a direction would be a "decision" falling within the definition of "State award". This is really the most forceful connection to the s 4 definition which could be put, as the direction is plainly not an award, order or determination. The decision to issue a direction, however, has no separate force and is, in effect, represented only by the direction. Accordingly, I do not accept this argument. 38 The preceding discussion provides the basis for the direction made in paragraph [46] below. I will, however, record my views on the issue of whether the summons sought by the CFMEU falls within the meaning of "State award" in the WR Act. As earlier mentioned, I have doubts as to whether the summons could be so categorised, although Newcrest's submissions that the summons sought by the CFMEU does not fall within the definition of "State award" have more merit than its submissions relating to the direction. (I note that the resolution of this issue is likely to require more comprehensive argument before a decision could properly be reached). 39 Mr Meehan contended that a summons would fall within the definition for two reasons: first, that a decision to issue a summons would be a "decision" or "determination" made in contested proceedings; and secondly, that the proposed summons is, in form and substance, an "order" of the Commission in writing requiring the recipient to attend at the Commission and confer. (I note in passing that an order issuing a summons under s 165(3)(a) may not require the order to be put in writing (Rule 29(1)). 40 For the reasons outlined above in relation to the direction, I do not accept Newcrest's submission that, should a summons issue, there would be a separate decision to issue a summons which would constitute a "decision" within the definition of "State award". 41 While a summons under s 165 of the IR Act is clearly an order of the Commission, the critical question for present purposes is whether it is an order of the type that falls within the WR Act definition of "State award". I have the following reservations about providing an affirmative answer to that question:

The word "order" must be read in the context of the word being defined and the list of words comprising the definition, both of which include the specific word "award". According to the doctrine of noscitur a sociis , if general words follow particular or specific words the general words should be confined to things of the same kind as those specified;

As Gleeson CJ observed in Re Pacific Coal Pty Ltd ; Ex parte CFMEU (2000) 203 CLR 346 at 355, "an outcome of the process of arbitration was the making of an award. In its awards the commission expresses an opinion as to what the rights and obligations of the parties, for the future, should be". Consonant with his Honour's description of an award (there being no material difference between an award of the Australian Industrial Commission and this Commission for present purposes), each word in the definition of "State award" relates to some process which affects or creates rights and obligations;

There is nothing to indicate that Parliament intended to include every possible order, decision or determination that could be made by State Industrial Authorities (which may exercise conciliatory, arbitral or judicial powers and which may make orders which are substantive or merely procedural in effect) in the definition of "State award";

It would be reasonable to infer that Parliament intended the awards, orders, decisions and determinations referred to in the definition as having some substantive connection to the rights and obligations of persons in employment (or at least work). In this vein, I note that the definition of "award" in the IR Act includes awards, and a subset of orders - those which set conditions of employment;

The summons, whilst an order, does not affect existing or future rights or obligations or set conditions of employment. Unlike other orders (such as, for example, a consent order pursuant to s 174(b) of the IR Act) it is simply an order compelling attendance of two named persons to a compulsory conference in order to facilitate conciliation, a process which, itself, may not affect existing or future rights or obligations or set conditions of employment. 42 In conclusion, I reject the submissions of Newcrest that there is no jurisdiction to give the directions or issue the summons requested. 43 I consider a direction should be issued for the attendance of the officers of Newcrest nominated by the CFMEU (other than Mr T. Lehany who is not available to attend) for the following reasons:

The solicitors for Newcrest have indicated that officers of Newcrest will not voluntarily attend;

It has not been suggested by Newcrest that the CFMEU has nominated officers of the company who could not be expected to contribute to the conciliation of the issues in the industrial dispute;

It is my assessment that the attendance of the officers will be necessary in order for the Commission to properly discharge its statutory function to conciliate the industrial dispute;

This conclusion follows from the discussion in paragraphs [13] and [20] of this decision and from my experience in dealing with industrial disputes;

Further, I would observe that the attendance of the officers will, more likely, allow for a clarification of Newcrest's position in the industrial dispute. From that vantage point an assessment may be better made as to the prospects of a conciliated outcome (and as to whether all reasonable attempts have been taken to resolve the matter by conciliation). 44 I do not consider that it is appropriate to issue a summons at this time. I am not convinced that a substantial corporation such as Newcrest (which is legally represented) would decline to attend upon the issue of a direction pursuant to s 134(2) of the Act notwithstanding the limitations imposed upon the exercise of power by that sub-section. This response would certainly be unusual in this jurisdiction; particularly as the attendance of these officers will enable the Commission to properly consider the position of Newcrest and the prospects for conciliation of the issues in the industrial dispute. 45 Further, I do not consider that it will be necessary to issue a direction in the form proposed by the CFMEU. I propose to adopt the conventional approach and issue the direction by this decision. 46 Thus, pursuant to s 134(2) of the Industrial Relations Act 1996, I direct two officers of Newcrest, Mr Anthony McPaul, Mine Manager, Cadia Valley Operations and Mr Adam Crossing, Mine Superintendent, Cadia Valley Operations, to attend and confer at a compulsory conference at Court 7, Level 5, 50 Phillip Street, Sydney at 2 pm, Wednesday, 30 March, 2005.

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Workplace Relations Act 1996(Cth)ss 4

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