Making of a new award - s.107 Reference.

[1] The Commission has before it an application under s.111(1)(b) of the Workplace Relations Act 1996 (the Act) to make an award in the following terms (omitting the grounds):

"Application is hereby made by G & K O'Connor Pty Ltd for the making of an award in the following terms, with or without such modifications as to the Commission may seem just:

This award may be referred to as the `Federal Meat Industry (Processing) (G & K O'Connor Pty Ltd - Roping-in) Award 2000'.

b. the Australasian Meat Industry Employees Union.

This award shall apply to the employment of all persons who are members or eligible to be members of the Australasian Meat Industry Employees Union at the abattoir operated by G & K O'Connor Pty Ltd at Pakenham in Victoria.

This award comes into force on 3 June 1999, and continues in force for a period of 2 years from that date.

This award takes the place of the G. & K. O'Connor Pty. Ltd. and Australasian Meat Industry Employees Union Victorian Meat Processing Agreement 1992.

The terms of the Federal Meat Industry (Processing) Award 1996 as varied from time to time apply to the parties bound by this award as though G & K O'Connor Pty Ltd were a named respondent to that award."

[2] The Australasian Meat Industry Employees Union (AMIEU) has applied pursuant to the provisions of s.111(1)(g) of the Act as follows (omitting the grounds):

Application is hereby made by Australasian Meat Industry Employees' Union for orders pursuant to section 111(1)(g)(iii), (iv) and (v) of the Workplace Relations Act 1996 that the Commission:

(a) dismiss the Application in C 37455 of 2000 (`the Application'); alternatively

(b) refrain from further hearing or from determining the industrial dispute or part of the industrial dispute the subject of C 37455 of 2000."

that the Commission refrain from dealing with that application.

[3] When the proceedings came on for hearing before us on 16 February 2001, Mr Rothman SC who appeared for the AMIEU together with Mr White of Counsel made an application, foreshadowed in earlier correspondence, that all of the proceedings be adjourned. Mr Rothman made lengthy submissions in support of the application but in essence his submissions were as follows.

[4] First he submitted that there are proceeding before Conti J in the Federal Court of Australia in which the evidence has been completed and the programme determined for final disposition of the matters. These procedures involved determination of the following questions which the Commission would be required to determined if it were to proceed to deal with the AMIEU's applications under s.111(1)(g) of the Act:

· the question of whether O'Connor is in breach of the 1992 agreement;

· the relationship between the 1992 agreement and the award known as the Federal Meat Industry [Processing] Award 1996 and the Federal Meat Industry Processing Award 2000.

[5] Second, he submitted that the matters should be adjourned pending the outcome of proceedings before Marshall J in the Federal Court which involve the following matters:

· a claim that the company has breached s.170WG of the Act;

· a claim that the company has breached the employment contracts of a number of employees who have not signed AWAs.

[6] Mr Rothman submitted that both sets of proceedings before the Court would involve determination by the Court of the matters which would need to be determined by the Commission in relation to the AMIEU's s.111(1)(g) application.

[7] Mr Rothman also made a number of further points in support of the application as follows:

· There are orders of Marshall J in place which required payment of a rate higher than the FMIPA rate and those orders will remain in force until the proceedings before him are concluded.

· The Commission would have no power because of the operation of s.89A of the Act to grant the application under s.111(1)(b) of the Act insofar as it afforded to set aside the operation of the 1992 award.

[8] Dr Jessup QC who appeared with Mr Parry of Counsel opposed the application for adjournment. He acknowledged that there was an overlap in some questions which would arise in the AMIEU's s.111(1)(g) application and proceedings in the Federal Court of Australia but submitted that the Commission ought to exercise its own jurisdiction. He submitted that s.98 of the Act required the Commission to proceed as quickly as practicable. He submitted that:

"In our submission, as a matter of adjournment, there is no case whatsoever being made out in what my friend has said not to proceed with this 111(1)(g) application. In that application, there may be all manner of reasons why in the public interest and for the other reasons my friend has foreshadowed, the Commission might not want to proceed further but that will be a different matter all together, if the Commission pleases." [transcript para 1316]

[9] We have given consideration to all that has been put. We are of the view that on balance it would be desirable to await the outcome of the proceedings before Conti J before further dealing with the matter. In our view the determination by Conti J of the matters before him should significantly expedite the hearing of the application and s.111(1)(g). Moreover, we note that the programme established by Conti J for the disposition of the matter is relatively expeditious.

[10] We are not disposed to grant an adjournment of the proceedings pending the outcome of the proceedings before Marshall J. In our view, on the material before us to date we are not able to conclude that resolution of all of the issues before Marshall J is a necessary prerequisite to determining either the s.111(1)(g) application or the award application. We are not satisfied that any of the other reasons advanced by Mr Rothman justify the granting of an adjournment.

[11] Accordingly, the matter will be adjourned to Melbourne on 1 and 2 May 2001 when we expect the decision of Conti J to be available. The 8 and 9 May 2001 will also be reserved. We regret that it has been necessary to relist the matter so long after it could be expected that Conti J would hand down his decision. That has been occasioned by the other commitments of members of the Bench. In the event that this delay is of significance in relation to form and just determination of the matters before us it can be taken into account in relation to the operative date of any award we may decide to make. We would expect the proceedings to be concluded within that timeframe set out and if necessary will consider the exercise of our powers under s.110 of the Act to ensure this outcome.

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