Section 170mx arbitration proceedings

News

Section 170mx arbitration proceedings

A recent Australian Industrial Relations Commission Full Bench decision (3 March) drew attention to the fact that each arbitration proceeding under s170MX is dependent on the circumstances of the case.

WantToReadMore

Get unlimited access to all of our content.

A recent Australian Industrial Relations Commission Full Bench decision (3 March) drew attention to the fact that each arbitration proceeding under s170MX is dependent on the circumstances of the case.

In The Australian Workers Union and P&O Catering and Services Pty Ltd (Print R2643, [1999] 214 IRCommA) Watson, Harrison SDPP and Foggo C determined that arbitration of an award under s170MXis governed by the context in which s170MXappears in the Act. Section 170MXprovides that if a bargaining period is terminated because:

  • industrial action under the period endangers life or the Australian economy (s170MW(3)); or
  • parties were covered by a paid rates award and there was no prospect of their reaching agreement (s170MW(7));

then a Full Bench must, if appropriate, arbitrate '...[to] settle the matters which were at issue during the bargaining period'.

Section 170MX(5) identifies matters the Bench must have regard to and s170MX(5)(e) provides that the Bench must have regard to any principles formulated for s170MX(5). To date there have been no principles formulated.

One effect of an award made under s170MXis that a certified agreement does not operate while an award made under s170MXoperates. Also parties cannot commence a bargaining period while a s170MXaward is in operation.

The Bench concluded that the '...matters which were at issue during the bargaining period...' are all the matters subject to the notice of intention to bargain - not just those matters which remain not agreed following negotiations. It found that the Act does not operate so that parties can make an agreement covering agreed matters and have outstanding matters arbitrated, nor conversely, so that parties can have their outstanding matters arbitrated under s170MXand then make a certified agreement.

The parties submitted that the Bench should give effect to any 'agreed' matters unless they were plainly unreasonable. The Bench did not accept this submission stating:

However, we do accept that, in applying the statutory considerations, weight should be attached to the agreed position of the parties in the context of the current matter in which all matters...  were agreed from December 1996 and where absence from an award of longstanding agreed provisions would leave open industrial issues between the parties.

The decision makes it clear that another Full Bench arbitrating a different s170MXaward '...[unless there have been principles established under s170MX(5)(f)] ...should not be bound by the reasoning process adopted in other s170MXproceedings in deciding the matters before it. Each case will bring its own sets of facts and circumstances'.

 

Post details