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[1992] AIRC 1001
defendant. The Commission refused to issue the direction sought by the Union.
The Industrial Relations Commission refused to order Nestles to include a union official on its consultative committee because the existing award did not provide for non-voting members. The Commission emphasised that since the award clause was originally agreed to by both parties (a 'consent position'), the Union could not now ask the Commission to effectively rewrite it through a direction. If the Union wanted non-voting membership included, it needed to apply to formally vary the award rather than seek a direction in a dispute.
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1 cited instrument linked from this judgment.
Industrial Relations Act 1988 s.99 notification of industrial dispute
Nestles Pty Ltd (C No. 31092 of 1992)
FOOD PRESERVERS' INTERIM AWARD 1986(1) (ODN C No. 02129 of 1985)
Various employees
Food, beverages and tobacco industry
COMMISSIONER MERRIMAN MELBOURNE, 28 SEPTEMBER 1992
Work structure and process - consultative committee - found union claim goes further than the award - claim rejected.
On 12 June 1992 the Food Preservers Union of Australia (the Union) notified the Commission of the existence of a dispute between the Union and Nestles Pty Ltd (the Company) involving the Company's refusal to co-operate with the Union in establishing a consultative mechanism, as required by clause 11 of the award.
The matter first came before the Commission on 9 July 1992 and the parties sought and were granted an adjournment on the basis that further conciliation may resolve the issue. This was not achieved and the matter was heard by the Commission on 31 August 1992.
The Commission was given a detailed history involving meetings and correspondence between the parties in an endeavour to finalise a consultative
committee. The Union now seeks from the Commission a direction that the committee should include an official of the Union as part of the committee without voting rights. The Union developed argument in support of the direction it was seeking and the Company opposed the Commission issuing such a direction as the Company believes it is acting in accordance with the award.
The Commission has considered all of the material placed before it and is of the view that the direction sought by the Union is inconsistent with the existing award clause, as the clause does not provide for a participant without voting rights and, therefore, what the Union is seeking from the Commission is outside the requirement placed upon the Company by the award.
The Commission notes that this award clause is a result of a consent position between the parties and not determined by the Commission and this is further reason why the Commission is not prepared to issue any direction which is not provided for within the consent clause. If the clause, for some reason,
(1)Print G5788 [F015] does not meet the requirements of the parties at any particular enterprise then that is a matter for any party to address by way of an application to vary the award.
The Commission therefore refuses to issue the direction sought by the Union.
P. Hull for the Food Preservers Union of Australia.
The Commission refused to issue the direction sought by the Union.