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[1995] AIRC 1068
defendant. Adjournment refused; s.170PO application to proceed to hearing
The Industrial Relations Commission refused to adjourn proceedings to terminate a bargaining period under s.170PO of the Industrial Relations Act 1988, rejecting the unions' argument that conciliation must first be exhausted. The Commissioner held that s.170PO creates a distinct statutory power to intervene when industrial action threatens significant economic damage, and this power does not depend on whether conciliation has finished. The Commission can intervene in the bargaining process under s.170PO whether or not bargaining is continuing.
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This matter concerns an application made by 3M (the company) under s.170PO of the Industrial Relations Act 1988 (the Act).
1 cited instrument linked from this judgment.
On 30 May 1995 matter C No. 21353 of 1995 came on before Commissioner Lawson. This matter concerns an application made by the Metal Trades Industry Association of Australia (the MTIA) pursuant to s.170QH of the Act. Conciliation proceedings took place on 30 May 1995 pursuant to that application. I understand from the National Union of Workers (NUW) that Commissioner Lawson was not significantly involved in those proceedings.
Apparently, due to the s.l70QH application and the proceedings which arose from it, the company did not press its s.170PO application. Further, the s.170PO application was confined to the issue of the supply of medical products. Agreement was reached during the s.170QH proceedings that medical supplies were to be exempted from industrial action.
On 2 June 1995, Deputy President Watson was notified by the company that it urgently required a relisting of the s.170PO application. The advise of 2 June 1995 was according to Mr Harmer, of counsel for the company, faxed to the unions involved.
The advise to Deputy President Watson implicitly foreshadowed that the company was concerned about the disruption to its customers and in particular Ford Australia, Mitsubishi and Toyota. The company advised that the s.170PO application be relisted because "the impact which the dispute is now having upon an array of companies around Australia and employees of those companies".
On 5 June 1995 the company filed an application to amend its original s.l70PO application. In essence the amended application refers to the companies and circumstances referred to in the company's letter of 2 June
The matter came before me for hearing on 5 June 1995 at 12.30 p.m.
Mr Joseph for the NUW, supported by Mr Moore for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) submitted that the s.170PO application should be set aside and that conciliation pursuant to s.170QH take place.
Mr Joseph argued that the company had conceded that conciliation was not exhausted and that the Commission is bound to take a facillitative rather than an interventionist approach (ABC case - Print L4605). Further, that there had been an understanding arising from the previous proceedings in the s.170QH
application that should the parties require recourse to the Commission, that the first approach would be to seek conciliation.
Mr Harmer, said that while the company anticipated further conciliation, although it does not hold out much hope for a resolution through conciliation, however, the fact that further conciliation might take place, is not of itself sufficient to cause the Commission to adjourn the s.170PO hearing.
In Mr Harmer's submission, a s.170PO application relates to circumstances
where the Commission might intervene in the bargaining process, whether or not bargaining is continuing.
It is clear that the company's application is specifically pursued pursuant to s.170PO(1)(b). That section provides as follows:
"170PO(1) [Conditions for suspension or termination of bargaining period] Subject to subsection (2), the Commission
may, by order, suspend or terminate the bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that:
(b)industrial action that is being taken to support or advance claims that are the subject of the industrial dispute is threatening:
(i)to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(ii)to cause significant damage to the Australian economy o r an important part of it."
Implicitly, if not explicitly, the NUW and AMWU are seeking that I adjourn the s.170PO matter and call on the s.170QH matter. In this context, I note that the Commission as constituted did list the s.170QH matter at the same time as the s.170PO matter, but at the initiative of the Commission and not on the instigation of any party to this matter.
My understanding of the provisions of s.170PO(1)(b) is that the question of whether conciliation has finished or not, is not determinative to whether or not an application pursuant to this section is heard. What this s.170PO application requires of the Commission is to determine whether the industrial action is threatening to cause significant damage to the Australian
economy or an important part of it. The fact that conciliation is not exhausted may or may not be relevant to merits of this matter, but in my view is not a determinant factor in causing me to adjourn these proceedings.
I therefore refuse the Unions application for adjournment.
Adjournment refused; s.170PO application to proceed to hearing