AIRC quashes finding of industrial dispute against Network Ten

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AIRC quashes finding of industrial dispute against Network Ten

Television station Network Ten P/L and associated businesses were not legitimate parties to an industrial dispute initiated by the Musicians Union (MUA), due to lack of evidence, a full bench of the AIRC has found.

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Television station Network Ten P/L and associated businesses were not legitimate parties to an industrial dispute initiated by the Musicians Union (MUA), due to lack of evidence, a full bench of the AIRC has found.

The union failed to establish that the company actually employed any musicians (or intended to employ any musicians) and so a necessary basis for the service of a legitimate log of claims was absent.

To draw a business into federal award coverage this necessary pre-requisite must be substantiated - ie there are existing employees or likely to be employees (employed by the business) who come within the terms of the relevant award or log of claims.

Background

On 4 December 2001 the MUA served a log of claims and letter of demand on Network Ten Proprietary Limited and some other businesses. On 21 March 2002, the MUA notified the AIRC of the existence of an alleged industrial dispute between itself and Network Ten and other businesses.

On 31 July 2002 Commissioner Lewin found a dispute to exist between the MUA and the appellants in this matter. He found that the dispute arose out of the letter of demand and log of claims served on 4 December 2001. He rejected arguments that no dispute should be found because the alleged dispute was not genuine. He also rejected the argument that the company did not employ musicians (and that it did not intend to do so in the future).

Decision

The full bench found that the commissioner at first instance had not applied the law correctly:

'The issue of whether an industrial dispute exists is 'essentially a question of fact'.

The full bench stated:

'We think, firstly, that the learned Commissioner's conclusion that the appellants 'may employ musicians from time to time and/or will be in a position to influence the terms and conditions of employment of musicians employed' strayed too far from the statutory tests to be useful, by itself, in applying those tests.

We add that the statement that a dispute may exist as a result of the service of a demand upon a 'potential employer' is by itself also too broad to be useful.

...

The task of the Commission is to determine whether the demand in the present matter, or part thereof, falls within the definition of 'industrial dispute', as a matter of fact. It is true that the Courts have in matters before them necessarily used terms such as intention to employ, and prospective employment, as steps or interim conclusions to assist them in applying the statutory definition of industrial dispute to the matters before them.

Nevertheless, it is we think clear … that the fact of a company being in a position to influence or to 'grant a claim' is not by itself determinative of the issue of whether there is an industrial dispute in existence.

On our examination of the evidence before Lewin C we also find it very difficult to see why he found that the appellants 'may employ musicians from time to time and/or will be in a position to influence the terms and conditions of employment of musicians employed'.

He had before him what appear to be essentially unchallenged sworn statements that each appellant does not at present employ musicians, and is either not likely to, does not intend to, does not propose to, or will not employ musicians in the future. At most the evidence disclosed that at least some appellants may from time to time 'engage' musicians or be in a position to influence the terms and conditions of employment of musicians. What the actual nature of this engagement is, and other matters, is on the evidence before us, and before Lewin C, unclear.'

The full bench granted leave to appeal and quashed the finding of a dispute against the appellants.

See: Network Ten Pty Ltd and ors v Musicians Union of Australian - FB of AIRC (Polites SDP, Hamilton DP and Larkin C) - PR925331 - 4 December 2002.

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