To arbitrate or not?


To arbitrate or not?

In a lengthy decision the federal Commission has determined how it should handle arbitrations under s170MX of the Workplace Relations Act 1996.


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In a lengthy decision the federal Commission has determined how it should handle arbitrations under s170MXof the Workplace Relations Act 1996. Section 170MXapplies in instances where the Commission has had to terminate a bargaining period because the industrial action being taken in support of the claims threatens to endanger life or the Australian economy or because the employees concerned are covered by a paid rates award and there is no reasonable prospect of a certified agreement emerging.

In AFMEP&KIU and Ors v Curragh Queensland Mining Limited (Print Q4464, [1998] 983 IRCommA) a Full Bench (Guidice P, MacBean, Polites SDPP) decided that its arbitration powers under s170MXwere wide and were not constrained by the operation of the Commission’s ordinary powers (under Part VI of the Act). Its powers to arbitrate under s170MX(3) extend to the ‘matters which were at issue during the bargaining period’ as if these matters were an industrial dispute.

The legislation

Section 170MXrequires the Commission to conciliate as soon as possible after the bargaining period is terminated and if it is satisfied that it is not likely to settle the matters by conciliation, the Commission must, if it considers it is appropriate, arbitrate to make an award.

Closing off bargaining

In Curragh the Commission rejected the Company’s argument that its award making power under s170MXmust uphold the object of providing by award the maintenance of a system of fair minimum wages and conditions of employment. Instead, the Commission determined:

"[Curragh’s] argument is inconsistent in our view with the approach taken by the Commission in the Westrail case [(1997 74 IR 423] set out earlier in this decision. It is also inconsistent with the following statement in this case by this Full Bench in the interim award decision:

‘We do not think that s170MY of the Act was in any way intended to make generally applicable to Part VIB the provisions of Part VI. Rather its function is to make applicable certain powers which are contained in Part VI in relation to s170MX(2) and s170MX(3) of the Act.’"

The consequence of this is that the Commission in arbitrating under s170MXis not looking to provide a foundation (a safety net) for future bargaining, rather it is arbitrating to ‘close off’ the round of bargaining for which the bargaining period was terminated. This arises from the language of s170MX(5) which identifies what the Commission must take into account when arbitrating under this section.

The Commission stated, in confirming Westrail:

" objective assessment of the factors set out in s170MX(5) of the Act should be made to determine whether to make an MX award and what such an award should contain."

An award under s170MXneed not be comprehensive since it is arises from ‘…matters which were at issue during the bargaining period’ [s170MX(3)] although it is not confined to these matters [s170MX(6)]. The Commission said:

      "It seems to us that the whole of the Division manifests an intention to limit the Commission’s arbitral powers to those matters about which the parties cannot agree. To suggest that the Commission is at large to arbitrate on any matter following the cancellation of a bargaining period under s170MW(3) or (7) seems to us to be at odds with the legislative scheme."

In Curragh the Commission decided it was appropriate to deal with six major matters the Commission identified which were between the parties during the bargaining period and to make an award. The s170MXaward is read in conjunction with the Coal Mining Industry (Production and Engineering) Consolidated Award 1997.


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