Notice of common law action over industrial dispute should be fairly managed

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Notice of common law action over industrial dispute should be fairly managed

Source: Australian Business Ltd The AIRC has expressed displeasure with employer tactics that severely reduced the time available to resolve issues before a common law action was initiated.

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Source: Australian Business Ltd

 

The AIRC has expressed displeasure with employer tactics that severely reduced the time available to resolve issues before a common law action was initiated.

The matter involved s166A of the Workplace Relations Act 1996 that allows common law actions to be launched in disputes that are before the AIRC, if 72-hours notice is given before the common law action is launched.

The legislation circumvents the general approach of courts and tribunals not to concurrently hear the same matter in two separate forums. This case emphasises that the parties should be given time to settle their differences before the time runs out. 

Here the notice was sought on a Friday afternoon - with the result that 48 of the 72-hours was consumed over a weekend.

Background

A picket and other industrial tactics were apparently in place. The employer applied for a certificate under the section. If granted, this would enable the employer to seek common law damages from the union and employees. The common law action could be launched 72-hours after the certificate was issued.

The 72-hour limit available for negotiation, to stop industrial action before the common action commenced, included Saturday and Sunday.

Consideration

Justice Munro considered in a complex case, failure of employer applicant to allow adequate time during working hours for conciliation may be a consideration that inhibits adequate identification, and characterisation of conduct sought to be covered by a certificate.

Justice Munro commented:

'In my observation, it has become a practice particularly of employer parties, to lodge relatively late on a Friday matters in respect of which there is a need for expedition enjoined by the Act. A result is that it is almost impossible to notify the Respondent party, usually a union, in a way that gives adequate opportunity to prepare a case without time running. In the instance of section 166A the time that is critical is 72-hours. It follows almost inevitably from the timing of a lodgement for Friday afternoon, that 48 of the 72-hours are occupied by the weekend. In most circumstances that is time during which there is no real opportunity to bring proceedings on for the ordinary run of matters.'

'...In short summary of the finding I make, there is a picket line at the site. It is maintained by the AMWU. The picket line itself involved some conduct that may or may not amount to action that gives rise to a tort relating to obstruction and interference with the entry and exit of vehicles. It is trite law that a picket line may be a form of obstruction or discouragement to people to enter sites in circumstances that do not give rise to a breach of the law.'

'However I am readily enough persuaded that a picket line mounted by the AMWU and persisted with over time may well amount to conduct that could give rise to an action in tort, unless great care be taken to avoid offending the law.'

The certificate was granted in relation to the conduct by the AMWU. The certificate was not granted in relation to the conduct of individuals.

It was recommended by the Judge the parties sooner, rather than later, find a way to resolve this matter by more peaceful means than they had been able to deploy up to this point.

See: TDU Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union PR920267 (18 July 2002).

 

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