AIRC must be satisfied of satisfactory State coverage before ceasing to deal  with dispute

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AIRC must be satisfied of satisfactory State coverage before ceasing to deal with dispute

A Full Bench of the AIRC has stated that the mere existence of possible State awards and agreements covering employers and employees who the subject to a federal log of claims is not sufficient reason for the AIRC to cease hearing the matter.

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A Full Bench of the AIRC has stated that the mere existence of possible State awards and agreements covering employers and employees who the subject to a federal log of claims is not sufficient reason for the AIRC to cease hearing the matter. 

The critical factor was that the Commission must be satisfied as to the application of certain State industrial instruments before it must cease dealing with the dispute.

Background

On 10 April 2001 the NUW notified a dispute in respect of the letters of demand and logs served.

The solicitors for the employer forwarded a letter to the NUW, dated 26 April 2001, in which it indicated that their view was that the union should exclude their client from any Federal log of claims as the relevant employees were covered by State instruments.

The matter went before Deputy President Acton who heard arguments on the finding of an industrial dispute. On appeal, the company objected to the Deputy President proceeding in this way.

Full Bench decision

The Full Bench stated:

'In sum, we agree with the Senior Deputy President, the employer's s111AAA application was premature. It seems to us that s111AAA can only operate to require the Commission to 'cease dealing with' an industrial dispute in circumstances where the Commission is taking, or proposes to take, some affirmative step in relation to the dispute.

'For example, to make an award in part settlement of the dispute or, assuming that AMOU was correctly decided, to make a finding as to the existence of a dispute, or determining a s111(1)(g) application or indeed taking any affirmation step in relation to the dispute.

...

'It seems to us that the appellant's point is dependent upon us finding:

  • that her Honour was in error in failing to consider the issues raised by s111AAA [Commission to cease dealing with industrial dispute in certain circumstances] prior to making her initial finding of dispute...; or
  • that because of her failure to consider that matter prior to making a finding of dispute she should have subsequently varied or revoked her dispute finding...; or
  • that her Honour was in error in determining that Smith's s111AAA application was premature, and that in light of all of the evidence and materials placed before her which established State award and agreement coverage of the majority of Smith's affected employees her Honour fell into error by not ceasing to deal with the dispute in relation to certain categories of Smith's employees.

 '...We are not persuaded that her Honour erred in her conclusion by having regard to the fact that the Commission had not been asked to make an award in settlement or part settlement of the industrial dispute.’

The Full Bench refused the appeal.

See: Section 45 appeal against finding of dispute on 28 May 2001and decision [PR928210] by Smith's Snackfood Company Pty Limited - FB of AIRC - Ross VP, Polites SDP and Hingley C - (PR933457), 25 June 2003.

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