Testing for exceptional matters

Cases

Testing for exceptional matters

In a recent decision, Australian Collieries' Staff Association v Gordonstone Coal Management Pty Ltd (unreported Print R0474, [1999] 008 IRCommA) the Australian Industrial Relations Commission (Munro J, Polites SDP and Hodder C) has determined the test that should be applied to applications to make an exceptional matters order.

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In a recent decision, Australian Collieries' Staff Association v Gordonstone Coal Management Pty Ltd (unreported Print R0474, [1999] 008 IRCommA) the Australian Industrial Relations Commission (Munro J, Polites SDP and Hodder C) has determined the test that should be applied to applications to make an exceptional matters order.

Section 89Aof the Workplace Relations Act 1996confines the Commission's award making powers to:

  • the 20 'allowable' matters set out in s89A(2)(a) - (t);
  • matters incidental to the allowable matters and necessary for the effective operation of the award - see s89A(6); and
  • 'exceptional' matters as per s89A(7).
An exceptional matter is one which does not fall under s89A(2) or (6) (but must be reasonably incidental to the subject matter of the relevant dispute) and may be inserted into an award if the Commission is satisfied that:
  1. a party has made a genuine attempt to reach agreement on the exceptional matter;
  2. there is no reasonable prospect of agreement being reached on the exceptional matter;
  3. it is appropriate to settle the exceptional matter by arbitration;
  4. the issues involved in the exceptional matter are exceptional issues; and
  5. a harsh or unjust outcome would apply if the award were not to include the exceptional matter.

Exceptional matters are included in awards by way of an exceptional matters order which is made under s120Aand which provides some additional restraints on their use.

In Gordonstone ([1999] 008 IRComA), the Commission refused an application by the ACSA to retain as an exceptional matter a last in first off ('LIFO') provision in the Coal Mining Industry (Supervision and Administration) Interim Consent Award, 1990, Queensland (C0891).

In determining whether a matter is an exceptional matter the Commission has to be satisfied that the five tests in Workplace Relations Act 1996s 89A(7)(a) to (e) have been met. The tests set out in paragraphs (a) - (c) and (e) do not require a subjective assessment by the Commission as to whether the matter is in fact exceptional. It is only in relation to paragraph (d) that the Commission needs to be satisfied that the matter is exceptional (ie, a subjective assessment is required).

In this case, the Bench found that the tests in paragraphs (a) to (c) were satisfied. However, when it came to decide whether the test in paragraph (d) was met, the Commission did not accept and ('... would be slow to accept') the industrial history of the industrial matter as being an exceptional issue in the sense of paragraph (d). The 'issues involved' in paragraph (d):

...are those aspects of the putative exceptional matter that are issues integral to the industrial matter in dispute. The history of a particular matter is scarcely likely to be an issue.

The Bench reasoned that the exceptional character of the issues involved in the claim to retain LIFO in the award must be assessed against the background of similar procedures that have been applied by award. There have been a number of decisions determining that the intention of the Actis to exclude from what is an allowable matter '...provisions which affect the capacity of an employer to determine the number or identity of persons who may be made redundant.' In the face of such legislative intent the Commission was satisfied that the claim to retain LIFO did not involve exceptional issues.

In determining that there was nothing about the issues in the matter that made them exceptional issues, the Bench gave an indication as to the things that might make an issue an exceptional issue.

There is nothing in the circumstances of the coal industry, or in the disappointed expectations of individual employees to which we have earlier made reference, that is of sufficient weight or of a sufficiently singular character to persuade us that we should be satisfied that the issues involved in this matter are exceptional issues. Those issues are important... [but] we are not satisfied that the issues involved... are exceptional.

In other words, an exceptional issue is one of more than mere importance and is singular and of weight.

 
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