Telstra loses AIRC jurisdiction challenge over redundancies

Cases

Telstra loses AIRC jurisdiction challenge over redundancies

The AIRC has upheld its jurisdiction to deal with a dispute over six redundancies which was notified under Telstra's certified agreement.

WantToReadMore

Get unlimited access to all of our content.

 

The AIRC has upheld its jurisdiction to deal with a dispute over six redundancies which was notified under Telstra's certified agreement.

Vice President Lawler said the case raised important questions about the Commission's procedural and interlocutory powers when dealing with a dispute referred under a dispute settlement procedure in a certified agreement.

The Commission had been empowered to settle disputes over the application of the agreement at the time of certification under a predecessor to s170LW of the Workplace Relations Act, s134H of the Industrial Relations Act 1988. Vice President Lawler found that the AIRC did have the jurisdiction to deal with the dispute and that the agreement conferred a power of private arbitration on the commission in this matter.

He also found the Commission had the power to grant an interim order requested by the CEPU preventing Telstra from progressing any further with the redundancies until the dispute was settled and requiring it to give the union more information about the nature of the redundancies. 

However, the Vice President went on to conclude that in relation to these findings on the power of the Commission it was one thing for the Commission to have a power, but it was another thing altogether for it to be appropriate for the power to be exercised in any given circumstance.

Background

 

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia notified a dispute between it and Telstra Corporation. The notification was made under clause 17 and 17.2 of the Telstra Redundancy Agreement 2002 (a certified agreement).

At the outset Telstra indicated that it challenged the jurisdiction of the Commission to deal with the dispute but consented to a conciliation proceeding on a 'without prejudice' basis. Conciliation occurred but did not resolve the dispute.

The dispute notified by the CEPU related to Telstra making six customer field workforce positions redundant in the Newcastle Field Service Area. The union objected as it said the redundancies were not bona-fide and said Telstra had failed to provide the union with information to prove their necessity.

The CEPU sought an interim order from the Commission which would make a final and binding determination of any dispute between the parties concerning the application of clause 17(2)(a) of the Telstra agreement. It also sought that the interim order should prevent Telstra from taking any further action on the redundancies until the dispute was settled, and that Telstra provide the union with more information about the nature of the redundancies.

Findings

 

Vice President Lawler said his decision was concerned only with whether there was jurisdiction to entertain the CEPU's application and whether there was power in the Commission to make interim orders of the type sought by the union.

The Vice President first considered whether the dispute notified by the CEPU was a dispute over the application of the Telstra Redundancy Agreement within the meaning of s134H of the 1988 Act (a predecessor of s170LW of the Act) and so whether the Commission had jurisdiction to deal with the dispute. 

He agreed that the dispute did come within the meaning of s134H, which gave the Commission the jurisdiction to deal with the dispute. He went on to find that clause 17.2 of the agreement conferred a power of private arbitration on the commission in relation to the present dispute.

Vice President Lawler also found that the Commission had the power (under s111(1) by virtue of the extended operation given by s111(2) and under the general law) to require Telstra to produce documents relevant to the issues in dispute and that, under the same section, it had the power to make an interlocutory order restraining Telstra from proceeding with the proposed terminations pending the resolution of the dispute.

The Vice President, however, concluded that in relation to these findings on the power of the Commission it was one thing for the Commission to have a power, but it was another thing altogether for it to be appropriate for the power to be exercised in any given circumstance.

'Where a party seeks to have the Commission exercise a particular power, it is always necessary for a proper case to be made out for the exercise of that power including the exercise of the power in a particular fashion.'

See: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Telstra Corporation, AIRC PR933892, (July 2, 2003).

Post details