Jurisdictional issues: conciliation and injunction

Cases

Jurisdictional issues: conciliation and injunction

Litigation relating to industrial/employment matters often confronts the question of whether the court or tribunal has the power to do what a party requests. Two cases here consider the exercise of the conciliation power of the AIRC and the power of the Federal Court to block industrial action by issuing an injunction.

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Litigation relating to industrial/employment matters often confronts the question of whether the court or tribunal has the power to do what a party requests. Two cases here consider the exercise of the conciliation power of the AIRC and the power of the Federal Court to block industrial action by issuing an injunction.

Don't drag out conciliation stage: AIRC Full Bench

A Full Bench admonished a Commission member for extending arguments over whether the AIRC had jurisdiction to conciliate.

An unfair dismissal action by a university lecturer did not get to substantive argument as the process leading to conciliation was so drawn out - ending in the Full Bench finding that jurisdiction did not exist. The Full Bench concluded:

'...Without expressing any view on the underlying merits, we have considerable sympathy for the evident frustration felt by the appellant over the manner in which his application has been handled by the Commission.

'There have now been no fewer than five separate conciliation conferences in this matter. ... The appellant sought an arbitration of the jurisdictional issue and yet the Deputy President persisted with the conciliation.

'...It became clear during the course of argument, indeed painfully so, that it ought have been apparent at a very early stage in conciliation that the prospects of resolving this matter through conciliation were slight.

'...Section 98 of the Act obliges the Commission to perform its functions as quickly as practicable. Section 89(a) of the Act, which provides that the Commission should present and settle disputes as far as possible by conciliation and, as a last resort, by arbitration, should not be seen as providing a warrant for protracted conciliation of the sort that occurred in the present matter...'

Inappropriate directions

'...Generally it is unnecessary to issue directions in connection with a conciliation proceeding. It appears that in the present case the Deputy President directed the parties to file written statements or submissions at almost every stage of what remained a conciliation proceeding. The temporal requirements for filing of those written materials became more arduous as the date of hearing of this appeal drew closer...'

Expression of preliminary views

'...the expression of such views can, in appropriate circumstances, be of great utility to the parties in the management of matters before the Commission.

'However, this case clearly shows the importance of the member appropriately and clearly qualifying any expressions to the parties of his or her preliminary or provisional views. This particularly so where one or both of the parties are unrepresented...'

David Kershaw v Governing Council of Challenger TAFE - FB of AIRC - 01/

Related

Commission to perform functions quickly

Order to cease industrial action justified

The Federal Court rejected arguments that it exceeded jurisdiction by ordering industrial action by the AMWU to cease.

Justice Merkel found that the union claims were blocked by the 'no extra claims' provision in the relevant agreement:

'That matter is the making of an "extra claim" relating to the employment that the parties agreed was not to be made.

'The claim is to change, and thereby add to, the binding and enforceable terms and conditions of employment agreed upon in the certified agreement and is therefore a claim to change "the employment" agreed upon in that agreement, which is defined by the terms and conditions of the agreement...

'The respondents argued that the injunctive relief sought by the applicant [company] is too wide because it is not restricted to the present industrial action...

'In my view, the relief that is appropriate should prohibit the taking of industrial action at, or in relation to, the Portland plant in support of the rehabilitation and return to work claim, which I am satisfied has contravened s170MN(1) [Workplace Relations Act 1996(Cth)]. …'

National Fleet Network Pty Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2005] FCA 917 - 06/

Related

Individual employees ordered back to work
 


 

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