Construction Forestry, Mining and Energy Union (New South Wales Branch) v Newcrest Mining Ltd

1 On 14 November 2008, the Commission issued a Statement and Direction in connection with a stoppage of work by teachers in schools and TAFE colleges. The stoppage had been organised by the New South Wales Teachers Federation for Wednesday 19 November 2008. The Direction, made pursuant to s 134(2) of the Industrial Relations Act 1996 ("the Act"), was in the following terms: (1) The Federation shall cancel the stop work meeting scheduled for 9.00 am Wednesday 19 November 2008 and shall make alternative arrangements to communicate with its members so that the disruption caused by such stop work meeting is averted. (2) The Federation shall bring this Statement and Direction (1) to the attention of its members. 2 On 17 November 2008, at about noon, the respondent employers (Director General of the Department of Education and Training and the Managing Director of TAFE), through the Crown Solicitor, filed the terms of an Order they were seeking pursuant to s 137 of the Act to the effect that the Federation, its officers, employees and members cease and refrain from taking industrial action including the stop work meeting proposed to take place on 19 November 2008. The proposed Order also sought to have the Federation, its officers, employees and members cease and refrain from authorising, organising, supporting, encouraging or inciting the stop work meeting. There was an affidavit in support by Mr Darren Husdell, Director, Industrial Relations. There was also an application to have the matter listed as a matter of urgency. The Commission heard the parties at 3.30 pm on 17 November 2008. 3 The Commission heard that although the Federation had drawn the attention of its members to the Commission's Statement of 14 November 2008 in accordance with the second direction, the Federation could not "accede to the cancellation of the stop work meeting and so the meetings will proceed on Wednesday 19 November". In light of the rejection of the Commission's directions, the respondent employers urged the Commission to issue a certificate of attempted conciliation, to proceed to arbitrate on the matters raised in the original dispute notification filed on 10 November 2008 and to make the orders sought. The Federation opposed the issuing of a certificate of attempted conciliation, contending that no conciliation had been undertaken. 4 The Commission engaged in conciliation of the parties both jointly and separately in an endeavour to avoid the stoppage planned for Wednesday 19 November 2008. The Commission, however, was unsuccessful. 5 The Commission heard the parties on the question of whether it should issue a certificate. The Act provides that the Commission must first attempt to resolve an industrial dispute by conciliation (s 133). 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 (s 134(2)). The Commission is to deal with an industrial dispute by arbitration only if it is not resolved by conciliation (s 135(1)). 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) (s 135(2)). 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 (s 135(4)). 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 (s 135(7)). The Commission may, in arbitration proceedings, make a dispute order (s 136(1)(c)). In making a dispute order the Commission may order a person to cease or refrain from taking industrial action (s 137(1)(a)). 6 The scheme of the Act leaves it to the discretion of the Commission as to whether it will issue a certificate of attempted conciliation but in exercising that discretion the Commission must take certain matters into account. If a certificate is issued the Commission may arbitrate the dispute and in arbitration proceedings may make dispute orders. There is to be no arbitration unless a certificate of attempted conciliation has issued. 7 In Construction Forestry, Mining and Energy Union (New South Wales Branch) v Newcrest Mining Ltd [2005] NSWIRComm 5; (2005) 139 IR 50 at [19]-[20] the Full Bench of the Court stated: 19 The Commission will not lightly issue certificates of attempted conciliation because they signal a failure of the primary dispute settling mechanism under the Act. Such certificates may also be the gateway to sanctions under the Act if the industrial dispute is accompanied by industrial action and a dispute order is later made. Before a certificate is issued the relevant party must be given an opportunity to be heard as to whether a s 134(2) direction should be taken into account: New South Wales Teachers Federation v NSW Department of Education and Training (2000) 100 IR 441 at [15].

20 Conciliation (or more aptly its failure) is, therefore, the jurisdictional prerequisite to the exercise of any powers by the Commission in arbitral proceedings (under s 136(1) of the IR Act). 8 There was debate about what it was that the Commission was being called upon to arbitrate. It appeared from the submission of counsel for the respondent employers that the issue for arbitration was whether the Federation should consult its members by means of a stop work meeting to consider a recommendation regarding the taking of "significant statewide industrial action at the beginning of the 2009 school and TAFE college year" and to consider reports on the Federation's salaries claim, staffing changes and qualifications in TAFE. The Federation's position was the industrial dispute consisted of a wider ambit and included the issue of the salaries claim, which had not been the subject of conciliation and, therefore, no certificate could be issued. 9 In the result, the Commission decided that it would not issue a certificate of attempted conciliation. It followed that no dispute orders would issue. The parties were advised accordingly and informed that the Commission would provide its reasons the next day. Those reasons follow. 10 The decision by the Federation to proceed with the stoppage on 19 November is regrettable. Whilst the Commission accepts that a decision to cancel the stoppage is one for the Federation's Executive and that the convening of a meeting of the Executive is not a simple affair achievable at short notice, it is not an impossibility. In my opinion, decision-making bodies within industrial organisations registered under the Act have an obligation to have in place the means of communicating quickly with the decision makers in the event they are ordered to take some action by the Commission at short notice. It really is no excuse in this day and age for a union or employer body to say that it is unable to contact members of the Executive or Council urgently in order to respond to directions of the Commission. Any industrial organisation pleading that it is unable to make contact with decision makers would need to provide evidence to that effect and not mere statements from the bar table. 11 Nonetheless, in the exercise of its discretion, the Commission considers that the opening up of the opportunity to seek dispute orders against the Federation would not, at this stage, enhance the prospect of a cooperative approach and contribute to a peaceful resolution of the significant and complex underlying issues. Indeed, quite the opposite. The Commission considers the public interest lies in an avoidance of any hardening of attitudes because of the threat of sanctions if the Commission is to have any chance of success in conciliation proceedings that have been scheduled during November and December in relation to the Federation's salary claim and the employers' counter-claim involving cost offsets. 12 Against that, of course, the Commission has considered the disruption likely to occur as a result of the stoppage. The stoppage is for two hours. It will clearly disrupt the education of students. The Commission has been concerned about the impact on parents, especially working parents. In this respect, I was advised that the experience in the past of such stoppages of relatively short duration has been that in the great majority of schools minimum supervision is provided. I expect that to be the case on this occasion. I note also in this respect, that there have been two occasions this year when the Federation has held two-hour stoppages during school hours to discuss industrial matters and that there was one occasion of a 24 hour stoppage. Yet the Department took no steps to bring the industrial action to the Commission. That raises a doubt, I believe, about the pleaded seriousness of the disruption caused by short duration stoppages where supervision is provided. But, of course, that is no basis, of itself, for the Commission to take no action in respect of such stoppages. 13 That the Commission has declined to issue a certificate of attempted conciliation will ensure there is no confusion that conciliation of the substantive issues that lie at the heart of this dispute remains on foot and will commence before the Vice-President of the Commission tomorrow afternoon. 14 The employers have expressed concern that the stoppage tomorrow, 19 November, is a prelude to much more significant industrial action by the Federation in 2009 if its claim regarding salaries is not met. The employers referred, in this respect, to the foreshadowed recommendation in a Federation newsletter of 14 November 2008. That the Commission on this occasion has declined to allow access by the employers to dispute orders should not be taken as an indication of its attitude to subsequent industrial action. The Commission has put in place a program of conciliation to be followed by arbitration commencing in March 2009 in the event conciliation proves unsuccessful. Directions have made for the filing of evidence in relation to the prospect of arbitration proceedings. 15 The Federation cannot expect to be free to engage in "significant statewide industrial action" in 2009 with impunity in circumstances where the Commission has sought to accommodate dealing with both the Federation's claims, and the employers' cross-claims, in a reasonable and expeditious fashion. ____________________________________

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Judgment (14 paragraphs)

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Cases Cited (4)