AIRC finds no grounds for appeal against redeployment decision

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AIRC finds no grounds for appeal against redeployment decision

The AIRC Full Bench has rejected an SDA appeal against the redeployment of several Bunnings Warehouse delivery drivers after finding the union could not successfully ground the appeal under any of the provisions of s.45(1)of theWorkplace Relations Act 1996.

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The AIRC Full Bench has rejected an SDA appeal against the redeployment of several Bunnings Warehouse delivery drivers after finding the union could not successfully ground the appeal under any of the provisions of s.45(1)of theWorkplace Relations Act 1996.

The grounds of appeal did not involve failings in the initial decision in relation to: finding a dispute; making an award; or refusal to exercise jurisdiction.

Background

The Shop, Distributive and Allied Employees Association appealed against an AIRC decision which settled a dispute at Bunnings Warehouse. Bunnings had decided to outsource its 'delivery function' and the union said that as a result several truck drivers would become redundant. Bunnings sought to redeploy the drivers to other functions, but the SDA argued the company should make the drivers redundant and pay the relevant severance entitlements. Commissioner Richards found that the initiative to outsource or contract out the delivery driver functions did not give rise to a redundancy situation.

When the appeal was listed for hearing a question arose as to which provisions of s.45(1) of the Workplace Relations Act 1996 the SDA relied upon to ground the appeal. The SDA said the appeal was brought pursuant to the provisions of s.45(1)(a), s.45(1)(c) or s.45(1)(g).

Findings

The Full Bench looked first at s.45(1)(a). This subsection relates to an appeal against a decision 'by way of a finding in relation to an industrial dispute or alleged industrial dispute'. Industrial dispute is defined in the Act as a dispute which includes a threatened, impending or probable dispute which extends beyond the limits of any one state. The Bunnings dispute related to the application of the company’s certified agreement and was confined to a number of delivery drivers in several Queensland stores. 'We are unable to categorise the exercise as one in which [Commissioner Richards] was being asked to make a decision by way of a finding in relation to an industrial dispute.'

The Full Bench turned next to s.45(1)(c). This subsection allows an appeal against a decision of a member of the commission not to make an award or order. 'No part of the dispute settlement procedure in the terms here agreed between the parties and which empowers the commission to conciliate or arbitrate refers to any award or order being made...We do not understand that any part of the exercise before him was one in which the notifier of the dispute sought an award or order.'

Finally, the SDA submitted that the appeal lay under s.45(1)(g) of the Act in that the commissioner's decision reflected a constructive refusal or failure to exercise jurisdiction. The Full Bench found the commissioner's jurisdiction to arbitrate was not in issue. The categorisation of the dispute was also agreed by the parties - whether or not the redundancy provisions of the agreement had been correctly applied. 'Seen this way this is not a case where Commissioner Richards refused or failed to exercise jurisdiction. To the contrary he assumed it and exercised it. To the extent to which any error may have thereafter been made it was an error in the process of his exercising that jurisdiction, often described as an error within jurisdiction. That does not reflect a refusal or failure to exercise jurisdiction and cannot be the subject of an appeal under s.45(1)(g) of the Act.'

The Full Bench concluded that the appeal did not lie under s.45(1) and, therefore, was not competent.

See: Shop, Distributive and Allied Employees Association and Bunnings Building Supplies Pty Ltd t/as Bunnings Warehouse, AIRC PR949303, (15 July 2004).

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