Seamens' Union of Australia, New South Wales Branch and Anor and Captain Cook Cruises (NSW) Pty Ltd [2005] NSWIRComm 360

Industrial Relations Commission (NSW)|2005-10-14|Before: Sams DP, Marks J

CITATION: Seamens' Union of Australia, New South Wales Branch and Anor and Captain Cook Cruises (NSW) Pty Ltd [2005] NSWIRComm 360

NOTIFIER Seamens' Union of Australia NSW Branch PARTIES: Australian Maritime Officers' Union NSW Branch RESPONDENT Captain Cook Cruises (NSW) Pty Ltd

FILE NUMBER(S): 3948 of 2004 and 3777 of 2005

CATCHWORDS: Held, no jurisdictional impediment to making of an award - little authority on issue - arguments of respondent employer premature - no evidence relating to terms and conditions of proposed award - arguments of employer relevant to whether the Unions have a right to make application for an award and if so, in what terms - proceedings should continue - Special Case referred to President pursuant to Principle 10.

Industrial Relations Act 1996 Occupational Health and Safety Act 2000

LEGISLATION CITED: AWARDS: Marine Charter Vessels (State) Award 332 IG 875 Restaurant &c Employees (State) Award 321 IG 759 Theatrical Employees Recreation and Leisure Industry (State) Award 2000 319 IG 406

Shop, Distributive and Allied Employees' Association of New South Wales and Wollongong UniCentre Ltd [2005] NSWIRComm 1138 State Wage Case (1991) 36 IR 362 CASES CITED: State Wage Case (2005) [NSWIRComm) 213 Sugar Manufacturers Case (1926) AR 113

NOTIFIER Mr M Fleming Australian Maritime Officers' Union NSW Branch Seamens' Union of Australia NSW Branch LEGAL REPRESENTATIVES:

RESPONDENT Mr M Diamond, Agent McCarthy Ausgroup Pty Ltd

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Notification under section 130 by the Seamens' Union of Australia, New South Wales Branch of a dispute with Captain Cook Cruises (NSW) Pty Ltd re election of delegates and forming a Workplace Committee Matter IRC05/3777

Notification under section 130 by the Seamens' Union of Australia, New South Wales Branch and another of a dispute with Captain Cook Cruises (NSW) Pty Ltd

1 Pursuant to s130 of the Industrial Relations Act, 1996 ('the Act') two disputes have been jointly filed by the Seaman's Union of Australia, New South Wales Branch and the Australian Maritime Officers' Union of New South Wales ('the Unions') following a breakdown in negotiations for an enterprise agreement with Captain Cook Cruises (NSW) Pty Ltd ('the respondent'). 2 The dispute proceedings have been the subject of conciliation proceedings before Marks J and the Commission as presently constituted, but no agreement could be reached. At the request of the Unions the Commission issued a certificate of attempted conciliation, pursuant to s135 of the Act, and proceeded to set a program for the hearing of a claim by the Unions for the making of a new award to cover the employees of the respondent. 3 The respondent however, strongly resists the making of a new award on the grounds that firstly, an existing award, the Marine Charter Vessels (State) Award has current application to the respondent's operations and secondly, that the Unions' application is merely seeking to extend their 'sphere of influence' within the respondent's operations. 4 As a result, Mr Diamond appearing for the respondent, proposed that the Commission should determine as a preliminary matter, whether an award should be made. If the respondent was successful, the outcome would negate the need for costly and extensive arbitration proceedings. The Unions did not oppose Mr Diamond's proposal and the matter was listed for preliminary hearing on 21 September 2005.

The Evidence 5 Affidavit evidence was provided by Mr Robert Coombs, Union Secretary and Mr Bernie Farrelly, a Union official. Neither Mr Coombs or Mr Farrelly were required for cross examination. It can be taken therefore, that their evidence is not disputed. I have re-formatted their affidavits for consistency. 6 Mr Coombs deposed that in June 2004 in excess of 50 employees of the respondent signed Bargaining Agent Forms expressing their wish to be represented by the maritime unions in enterprise agreement negotiations, but are reluctant to be identified to the company for fear of retribution. 7 On 22 June 2004, I and Bernie Farrelly met with Anthony Haworth (General Manager Captain Cook Cruises, Sydney) to advise of the employees' desire to discuss a number of safety issues. The employees expressed a clear requirement to have these issues brought to the attention of the management through collective provisions as described in the New South Wales Occupational Health and Safety Act 2000 ('OH&S Act'). The claim by employees included a requirement that an election of employees take place to determine OH&S representatives. It was agreed that this election would take place and the respondent be advised of the results accordingly. On 28 June 2004 I advised Anthony Haworth in writing of the names of elected delegates. 8 On 30 June 2004 the respondent called a meeting with the identified delegates. Despite an appeal from the delegates, the respondent refused to allow a representative of the maritime unions to attend. The respondent decided to form a committee with the delegates to discuss issues, without maritime union involvement. 9 On 31 June 2004 the General Manager wrote to me advising of the outcome of the above meeting. On 1 July 2004 I replied and requested a meeting with management. 10 On 9 July 2004 by way of an application by the Seamen's Union NSW Branch to the Industrial Commission of New South Wales, Matter No IRC04/3984 was heard by Marks J. The dispute notification was lodged pursuant to s130 of the Act and requested that the Commission assist the parties in reaching an agreed position regarding recognition of a properly constructed OH&S Committee. At the hearing, representatives of the maritime unions also asked his Honour to assist in trying to get the respondent to enter into dialogue with the maritime unions for a new enterprise agreement. 11 On 22 July 2004 after the appearance of both parties before Marks J on 9 July 2004, the respondent replied to the maritime unions to advise that:

a) it had hired a consultant to properly investigate and if needed implement new OH&S measures; and b) it would still not engage with the maritime unions in negotiations for a new EBA. 12 On 23 July 2004 the respondent distributed a memo to their employees to advise that they would still not engage with the maritime unions to negotiate a new enterprise agreement.

13 In September 2004, the respondent attempted to get a significant proportion of the workforce to sign Australian Workplace Agreements (AWAs). 14 On 29 October 2004, a group of employees, who were members of the maritime unions, met with the General Manager requesting to negotiate an enterprise agreement with the maritime unions as participants and parties to any eventual agreement. At the meeting a number of unsigned AWAs were handed back to Mr Haworth, on behalf of the workforce. Mr Haworth stated at this meeting that the respondent intended to negotiate a collective agreement directly with the workforce on the basis of no union involvement or assistance. 15 On 10 November 2004 the respondent issued a memo to the workforce advising of its intention to negotiate a new enterprise agreement; albeit with five conditions of negotiations stated. Point 2 of the said correspondence stated that the negotiations would only take place with a committee of employees. On 11 November 2004, a group of employees met with Mr Haworth to discuss points outlined in the memo and the process of negotiation (election of delegates etc). 16 In November 2004, Mr Haworth distributed a draft EBA, titled "draft 9". 17 On 16 December 2004, following a request from the maritime unions' delegates the respondent wrote to them advising what awards are relevant for the purposes of coverage of all Captain Cook marine staff. 18 On 20 January 2005, the maritime union delegates wrote to the respondent regarding the draft 9 proposal, and included their own draft, titled "draft 10". 19 On 25 January 2005, the respondent issued a notice advising that all discussions relating to a new EBA were cancelled after a rally had been held by employees in support of a sacked work colleague. On 27 January 2005, the respondent distributed a second flyer advising that the enterprise agreement discussions were discontinued because draft 10 referred to the maritime unions. 20 On 5 April 2005 I, on behalf of the maritime unions, wrote to Trevor Haworth, the respondent's Executive Chairman, proposing a process to commence negotiating an enterprise agreement. On 18 April 2005, the respondent wrote back declining our request to negotiate and advising that they will continue to negotiate directly with their employees and won't have the maritime unions involved in the respondent's affairs. 21 Paragraphs twenty one and twenty two of Mr Coombs' affidavit were not pressed and are not recorded here.

22 Mr Farrelly deposed as follows: Over the last 12 months I have conducted numerous interviews with employees from sections of the workforce at Captain Cook Cruises. I am familiar with the Marine Charter Vessels (State) Award and the current employment arrangements for various employees of the respondent. The Awards that apply to employees of the respondent are the Marine Charter Vessels (State) Award and the Restaurant &c. Employees (State) Award and the Theatrical Employees Recreational and Leisure Industry (State) Award 2000. 23 Employees such as Masters, Engineers and Deckhands are not paid overtime rates as per the Marine Charter Vessels (State) Award, but are instead paid "aggregate rates" of pay. This means that wage rates currently paid to the respondent's employees are different to the Award rates. To the best of my knowledge the details of how the current aggregate wages rates are calculated have not been explained to the employees. In some cases, wage rates differ between employees with the same qualifications, who are doing the same work. 24 Deckhands employed on a permanent basis are not paid double time for work on Sundays as per clause 20 of the Marine Charter Vessels (State) Award. Casual rates of pay for Masters, Engineers and Deck Hands do not reflect the 20 per cent loading when compared with the permanent rate for employees with similar qualifications working in the same role. 25 The Marine Charter Vessels (State) Award specifically excludes overnight cruises such as the Captain Cook Explorer weekend cruise, see Clause 2(i) & Clause 22(22.1). Overnight Cruises are a significant feature of the respondent's Sydney Harbour operations. It is the intention of the maritime unions and employees that the proposed Award or agreement will describe the conditions of employment for Sydney Harbour weekend overnight cruises. 26 Employees who work on the Sydney Harbour weekend overnight cruise do not receive: (a) Specific annual wage increases as per State Wage Case increases. Any increases are sporadic. (b) An acceptable amount of time off between shifts (the Marine Charter Vessels (State) Award provides for 9 consecutive hours). (c) Overtime rates for second shift when working on a harbour cruise after finishing the weekend cruise on the same day. 27 The respondent requires all employees to pay for some items of uniform that they're required to wear such as winter coats. Prices charged by the respondent for these items differ between workers. For those items that are issued, such as shirts and trousers, a deposit is required to be paid which isn't refunded in some cases when employees cease employment. Sunglasses are not provided to employees who are exposed to glare. See Clause 14(iii) of the Marine Charter Vessels (State) Award. 28 To the best of my knowledge, groups of employees have, on more than one occasion, advised management of their desire to negotiate an enterprise agreement with the assistance and representation of the maritime unions. 29 Other major operators/competitors in the industry have negotiated collective agreements with their workforce. (1) Matilda Cruises Operations Staff Certified Agreement (2) AMOU and Blue Line Cruises Ltd (Officers) Agreement 2002 (3) Blue Line Cruises General Purpose Hands Enterprise Agreement

30 Employees who are required to perform work in a higher class, such as Deckhands filling the role as Cruise Director, for a period exceeding 1 hour are not paid the higher rate applicable to the role. See cl 15 of the Marine Charter Vessels (State) Award. SUBMISSIONS 31 Mr Diamond for the respondent and Mr Fleming for the Unions, both provided the following helpful outlines of submissions and developed their arguments in proceedings on 21 September 2005.

32 Mr Diamond said that the Unions seek to have the Commission make an award specifically in respect of Captain Cook Cruises (NSW) Pty Ltd. The issue is whether the Commission should make an award at all.

33 Background (a) The respondent has been operating pursuant to the Marine Charter Vessels (State) Award ('the industry award') since that award was made over 15 years ago.

(b) Both Unions have sought to obtain an enterprise agreement with the respondent, but they have been unable to gain the agreement of the company.

(c) The Unions now seek that an enterprise award be made which reflects the terms of the enterprise agreement rejected by the respondent.

34 Why No Award Should Be Made (a) The Unions have not established that the industry award is, in any way, inadequate to deal with the respondent's operations. (b) The effect of forcing an enterprise award on an unwilling employer in the terms sought herein by the Unions will be to immediately place the respondent at a significant labour cost disadvantage when compared to other industry operators. (c) The Unions have not shown any proper or appropriate motive for seeking an enterprise award, other than their failure to gain acceptance by the respondent of their draft enterprise agreement. (d) There is no evidence from, nor even any suggestion by the Unions that the existing rates of pay and conditions of employment at Captain Cook Cruises are not fair and reasonable. (e) The application herein for an enterprise award is aimed not at improving wages and conditions, but merely at extending the sphere of influence of unions both within the respondent's operations and within the industry generally. This is not an appropriate goal to be rewarded by the making of an enterprise award, particularly when an existing industry award already regulates the respondent. (f) The Unions must establish a special case pursuant to Principle 10 of the current State Wage Fixing Principles ( State Wage Case 2005 [2005] NSWIRComm 213) and the application before the Commission discloses no such case.

(g) To even contemplate making an enterprise award in this matter the Commission would have to be convinced that the industry award is inadequate to protect the rates and conditions of the employees. On the basis of the application before the Commission that conclusion is not available.

(h) The failure by the Unions to gain the consent of the respondent to a draft enterprise agreement cannot justify the making of an enterprise award where an industry award already exists. 35 In all circumstances the respondent should not be put to the expense of defending a detailed and lengthy arbitration which would have as its end product an enterprise award. There is no justification for such an award in the first place and the application by the Unions should be rejected at the outset.

36 The Issue (a) The Unions are the notifiers of industrial disputes in matters IRC 04/3948 and IRC 05/3777.

(b) The Unions seek that the Commission exercise its powers under the Act and resolve the industrial disputes by way of arbitration.

(c) The Unions seek that the Commission make an award that will describe enterprise arrangements for employees of the respondent employer.

(d) The Unions seek that the Commission make an award that has as the parties, the Australian Maritime Officers' Union of New South Wales, the Seamen's' Union of Australia, New South Wales Branch and the respondent employer.

(e) The award sought by the Unions will, to the extent of any overlapping or inconsistency, replace the application of the following Awards of the Industrial Relations Commission of New South Wales in so far as they apply to the respondent employer: Marine Charter Vessels (State) Award

Theatrical Employees Recreation and Leisure Industry (State) Award

37 The Evidence (a) The Unions refer to and rely on the evidence of Robert Coombs, Trade Union Officer, and Bernie Farrelly, Trade Union Officer, contained in affidavits filed in these matters.

(b) The Unions will submit that the evidence records, amongst other matters, the following: - The respondent employer employs members of the applicant maritime unions. - There are three Awards that currently apply to employees of the respondent employer who are the subject of the industrial disputes now before the Commission. - The respondent employer does not apply wages and conditions of employment strictly within the terms of the three Awards. Many of the current employment arrangements are enterprise based. - The evidence demonstrates that the respondent employer does not apply all of the terms of the Marine Charter Vessels (State) Award . - The Marine Charter Vessels (State) Award does not prescribe all of the employment arrangements of relevant employees. For example, the award excludes a vessel with overnight accommodation. - The respondent employer has actively supported and agreed to a process leading to an enterprise agreement and to enterprise arrangements. - The respondent employer is also currently seeking, by way of Australian Workplace Agreements, to introduce enterprise arrangements for its employees. - The respondent employer has agreed to complete an enterprise agreement with employees, however it is on condition that the applicant maritime unions are not involved or are parties to such an outcome. - Employees have sought agreement with the respondent employer to an enterprise agreement that includes the applicant maritime unions as parties. - After agreeing with employees that it would negotiate an enterprise agreement the employer has now refused to continue with meetings and negotiations. No meetings have been held with employees since January 2005. - Other major employers and competitors to the respondent employer have finalised enterprise agreements with their employees. - The respondent employer has acknowledged by its actions identified in the evidence that the current industry awards are not appropriate or are deficient in providing for all employment arrangements for its operations on Sydney Harbour.

38 The Industrial Relations Act 1996 (a) The Industrial Relations Act 1996 has, as a primary function, the resolution of industrial disputes by the Industrial Relations Commission of New South Wales by conciliation and arbitration.

(b) The Commission has published principles known as the State Wage Principles that the Commission will take into account in the dispute resolution process.

(c) The Commission has for a long period of time determined that industry awards operate alongside enterprise arrangements, including enterprise awards and enterprise agreements.

(d) The Unions submit that it is entirely appropriate and consistent for the Commission in this case to proceed into the hearing of all evidence and submissions and then make a decision, based on the merits of the case presented, as to whether an enterprise award should be made or not and the contents of any award.

(e) The Commission has for a long period of time determined awards for single enterprises when the parties have been unable to achieve enterprise agreements.

(f) The onus is on the respondent to convince the Commission that its jurisdiction and dispute resolution powers should not be exercised. The respondent employer has not put such a submission in these proceedings. 39 The State Wage Case Principles (a) The Unions acknowledge that the Commission must take account of the State Wage Principles in determining industrial disputes and that there is an onus on the Unions to convince the Commission that the Principles apply.

(b) The Unions are entitled to lead evidence and present submissions on the application of the State Wage Principles during the course of arbitration by the Commission on all matters in dispute, including the content of an award.

(c) It is the usual practise of the Commission to hear all the evidence and submissions and then determine the application of the State Wage Principles.

(d) The Unions submit that the evidence and submissions presented so far in these proceedings enables the Commission to conclude that an arguable case exists pursuant to Principle 10 - Special Case - of the State Wage Principles. 40 The Submissions of the Respondent (a) The Unions submit that much of the content in the Outline of Submissions by the respondent employer goes to arguments about the content of the award the Commission may make in these proceedings.

(b) The respondent has not made out a case that the Commission should not exercise its powers contained in the Act in resolving the industrial disputes by arbitration.

41 Future Proceedings (a) At the directions hearing in these matters on Friday 5 August 2005 the Unions sought directions from the Commission on the programming of inspections and the exchanging of evidence, discovery of documents and the written submissions of the parties.

(b) The Unions now ask that the Commission give directions on the future conduct of these proceedings, including the programming of inspections of the work under review.

42 One of the fundamental and historic functions of Australia's industrial tribunals has been to settle industrial disputes by conciliation, and if conciliation fails, to resolve industrial disputes by arbitration and the making of an Award. As far back as 1926, the predecessor of this Commission described the role in the Sugar Manufacturers Case (1926) AR 113 at 115 as follows: ...The scheme of all our Industrial Arbitration Acts is that conciliation should be tried as far as possible, but that in the last resort, if conciliation fails, there shall be some compulsory authority which will deal with matters in dispute - matters that are claimed, claims that are rejected - by the method of arbitration... 43 Plainly, the 1996 Act continues and reinforces the essential functions of the Commission in settling industrial disputes through conciliation and, if necessary, by arbitration. 44 There is nothing particularly revolutionary, new or novel in enterprise awards co-existing with industry or parent awards. Such an outcome is both consistent with the objects of the Act (to which I will later refer) and the emphasis in contemporary industrial relations on outcomes being negotiated and concluded at an enterprise or workplace level. There are hundreds of examples of enterprise awards in New South Wales which do precisely what the Unions are seeking here. 45 Invariably, the enterprise award or arrangement is made by consent of the parties. However, the difficulty here is that there is no consent as to the terms of an award, or even as to whether an award should be made at all. This is the crux of the present proceedings. 46 Mr Diamond argued that the Commission should not be asked to make an award in circumstances where the employer is already covered by an existing minimum rates award of this Commission. It was said that if this occurred, the respondent would be put at a competitive disadvantage, as it could only be the Unions' intention to increase wage rates or improve conditions. If this was not the Unions' intention, then there was no utility in creating a new award. Moreover, it was submitted that the Unions were seeking to extend their "sphere of influence" in the respondent's operations. 47 In my view, both Mr Diamond's primary submissions are clearly matters which go to the merits of whether an award should be made and the substance of the Unions' claim. At this time, the Commission has very little evidence before it about these matters. Seen in this context, it must be said that Mr Diamond's submissions are premature. 48 Further, I would emphasise that this decision, in no way, determines the merit of the Unions' award claim or the motives of the Unions in pursuing an enterprise award after the failure to secure an enterprise agreement. At this early stage, it is surely not open to presume that the Unions will establish a special case and if so, whether an award should be made, and in what terms. 49 Rather, I think, Mr Diamond's submissions are in essence about whether the Unions have a right to prosecute a case for the making of a new award in accordance with the relevant provisions of the Act and the State Wage Fixing Principles. I note Mr Diamond properly conceded that the respondent does not contend that the Commission has no power to make an award in consequence of settling an industrial dispute. I do not imagine how this could be otherwise. In this regard I refer to s136 of the Act: 136 Arbitration of dispute

(1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute,

(b) make or vary an award under Part 1 of Chapter 2,

(d) make any other kind of order it is authorised to make (including an order made on an interim basis). 50 Of course, the Commission's award making powers are governed by the other relevant provisions of the Act. Section 10 requires that an award may be made which sets "fair and reasonable conditions of employment for employees". The relevant State Wage Fixing Principles are also pertinent. In this regard Principle 11 is apposite and in particular sub-clause (g): The Commission is available to assist the parties to negotiations for an enterprise arrangement by means of conciliation and, in accordance with these principles and the Act, by means of arbitration. If any party to such negotiations seeks arbitration of a matter relating to an enterprise arrangement such arbitration shall be as a last resort.

51 There can be no doubt that the Commission has the power to make an enterprise arrangement being an award, as a last resort, by arbitration when the parties are unable to agree to its terms. 52 It is important, I think, to note that the Act gives no particular priority to enterprise agreements over awards or other industrial instruments. This proposition is derived from one of the objectives of the Act "to facilitate appropriate regulation of employment through awards, enterprise agreements or other industrial instruments" (s3(Object e)). 53 What then is the real basis for the respondent's strident resistance to the making of a new award? In my opinion, that resistance must be seen in the context of the following matters derived from the evidence of Mr Coombs and Mr Farrelly. 54 Over many months, the respondent had demonstrated, in unequivocal terms, its willingness to negotiate either a collective agreement, a non Union Enterprise Bargaining Agreement (EBA) or Australian Workplace Agreements (AWAs) with individual employees, separate from the industry award. Indeed, numerous drafts for an enterprise agreement have been prepared by the respondent and provided to the Unions and the employees. This evidence sits rather curiously with the respondent's submission about its desire not to be bound to a separate award outside the industry norms under the industry award. Moreover, as Mr Fleming identified, the respondent is not only bound to an existing industry award, but two other industry awards as well; namely the Restaurants etc Employees (State) Award and Theatrical Employees Recreation and Leisure Industry (State) Award 2000. 55 It must also be said that any contest concerning the competitiveness of the respondent, if a separate award is made, is inconsistent with the fact that other of the respondent's competitors have collective agreements sitting alongside the minimum rates industry award. I would add that it is difficult to quantify how the respondent will be uncompetitive when the terms of an award are unknown, let alone whether any award will be made. 56 As to the submission concerning the Unions wishing to extend their "sphere of influence", Mr Fleming successfully rebutted this argument. The evidence points to the employees themselves agitating for changes to their employment conditions and the respondent seeking to respond directly to individuals and groups of individuals in response to this agitation. At least fifty employees have asked the Unions to represent them. In any event, even if this submission be true, I do not see any inconsistency in the Unions seeking to extend their "sphere of influence" and one of the objects of the Act being to "encourage participation in industrial relations by representative bodies of employees" (s3 Object (d). 57 I believe these observations demonstrate conclusively that the submissions of the respondent are, in reality, submissions about whether the Unions have a right to make application for an award and in what terms. As I said earlier, this later argument is yet to be had. 58 Moreover, the respondent's position appears in direct collision with the trend towards enterprise arrangements between employees and employers which has been the focus of industrial relations in recent years. More particularly, the State Wage Case (1991) 36 IR 362 introduced an enterprise arrangements principle and said at p363:

The Commission has taken an initiative of historic dimensions in announcing a new Enterprise Arrangements principle. The form of the new principle is based upon a draft tendered by the Labor Council but was developed having regard to submissions from the other parties. This new principle will result in a major re-direction of industrial relations in New South Wales towards enterprise negotiation and agreements. Parliament recently passed an Act providing for enterprise agreements. The Act sets up the basic criteria of "productivity and efficiency". The new Enterprise Arrangements principle is designed to permit administrative compatibility with the terms of the new Act. In introducing the Enterprise Arrangements principle the Commission has unlocked some 500 active awards held within the State system which serves the needs of more than 60 per cent of the State's working people. The 500 awards represent a vast resource of derivative legislation built up largely by consent of the parties which systematically applies to a multitude of employments throughout the State. Unless the new Enterprise Arrangements principle is utilised to penetrate this large structure of awards, it is hard to see how changes would reach workplace levels on a wide scale. Under the Enterprise Arrangements principle, every award will contain a clause permitting negotiations at workplace level to allow flexibility and innovation by agreements which can adjust the award to the needs of individual enterprises, businesses, undertakings or projects. Conciliation and arbitration and the Commission's quick reaction dispute settlement procedures are fully maintained for those who need it. 59 That focus is emphasised by Object (c) of the Act: (c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level 60 This focus is further demonstrated by the Principle, in the State Wage Fixing Principles which permits the Commission to make an enterprise award, subject to the procedures outlined in the Principle. Further, it is to be noted that the power of the Commission to make an award, under this Principle can be by means of arbitration. This is precisely what the Commission is being asked to do in this case. 61 The authorities relied upon by Mr Diamond are, in my view, able to be distinguished from the facts and circumstances of this case. Nevertheless, I agree with him that this is a most unusual case for which no direct authority can be ascertained. In any event, this preliminary question must be decided on its own particular facts and circumstances, according to the relevant provisions of the Act. 62 However, a not dissimilar set of circumstances, as here, was recently faced by Connor C in a dispute between the Shop, Distributive and Allied Employees' Association of New South Wales and the Wollongong UniCentre Ltd ([2005] NSWIRComm 1138). In his decision of 23 September 2005, the Commissioner said at paras 8 and 9: At issue in the proceedings were stalled negotiations initiated by the SDA for an enterprise agreement to cover the employees of the UniCentre. In the proceedings before me on Tuesday, 1 March, 2005 I had recommended that further discussions take place between the parties and that the SDA proceed in future in accordance with the established grievance settling procedure, ie. without unannounced stop work meetings. But those further discussions between the parties failed to bring the negotiations any closer to finality. The UniCentre has consistently indicated that it was not prepared to negotiate the separate enterprise agreement which was being sought by the SDA and wished instead to rely on the University Unions (State) Award, a common rule State award which has exceeded its nominal term. To date the SDA has not lodged any application for variation of the State university unions award - admittedly a longer and more time-consuming process, involving as it does a range of different employers (and I understand other trade unions with an interest in university union employees). Nor has the SDA lodged a separate State enterprise award to cover the UniCentre staff. It is trite to say that the Commission cannot force the parties to agree on anything. As I indicated in my unreported interlocutory decision of Wednesday, 24 August, 2005 in the BlueScope Steel (AIS) Pty Limited Bulk Handling Dispute Case [Matter No.IRC 7187 of 2004 at p.10], in cases where the parties are unable to reach agreement the Commission may proceed only by way of a State award. If the negotiations for an enterprise agreement are not producing a result in the employee's interests, the SDA should proceed in that manner. 63 Obviously, the distinction here is that the Unions have applied for a State award. 64 The respondent is, of course, entitled to reject negotiations with the Unions (subject to the good faith bargaining provisions of the Act). It is also perfectly entitled to pursue non-union enterprise bargaining agreements or individual AWAs. In short, the respondent's legal rights are available and can be pursued as it sees fit. 65 On the other hand, the Unions also have legal rights, as registered organisations under the Act. One of those rights is the capacity to make an application for an award to be made on behalf of members who are employed by an employer which is able to be bound by an award of the New South Wales jurisdiction. 66 In short therefore, as a question of fact and law, I have not been persuaded that the Unions' claim should not be permitted to go forward. This finding should, in no way, evince any thought that the Commission has formed a view of the desirability of making a new award or the industrial merit of what such an award should contain. 67 Accordingly, the Unions' claim should proceed to arbitration. However, in view of the Unions' acknowledgement that the claim seeks wage increases and other claims outside those permissible by the State Wage Fixing Principles, I propose to refer this matter to his Honour the President, pursuant to Principle 10 of the Principles. I am satisfied that special case considerations arise in the draft award which has been filed by the Unions. 68 The parties will be advised in due course as to future proceedings.

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Cases Cited (3)

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