Castlemaine Perkins Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees and Others [1998] QIRC 42 (1998) 157 QGIG 75

#########################################################/1 QUEEl'>SLAND INDl3STRlAl. RELATIONS COMMISSIO"i Workplace Rdations Act 1997 s. 292, s. 54 - application for orders Castkmaine Perkin-' Pty Ltd AND Australian Liquor, Hospitality and Miscdlaneou.s Work�r.s Union, Queensland Branch, l'nion of Employees and Olh«rs /No. 82003 of /997) COMMISSIONER BLOOMFIELD 23 January 1998 Application f<X Orders - Rea:<ons for Decision - Section., 292 and 54 of Workplace Re/mion., Acr /997 (the Act) - N�gotiations for new Cenified Agr.aemenl - Conferences chaired hy Commission - Qu�,1ion of whether prop;,r Initiation of Bargaining Period - Question of whether proper '.'lotice of Authorisation lo Engage in lndu�1rial Ac1ion - Scheme of Legislation considered - Sec1ion 292 permit.s Corruni.s.sion to act in discTctionary manner - Cooling-oil period thought appropriato - DJroctions issued hy Commission und�r .<. 292 to lilt bans. limi1a1ions on work or r�striction ,)n performance of -- 1 of 4 -- 76 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 February, 1998 work and employees to work in accordance with Certified Agreement - Further conferences chaired by Commission - Conference under s. 243 of Act - Inspections by Tribunal - Parties unable to reach agreement on new Certified Agreement - Continuation of Directions .sought hy Applicant - Commission considered that any rntervention hy 1t should he limited having regard to ohJect.1 of Act - C:ommis.,ion had performed its role as far as permitted by the scheme of the Legislation - '\'o further extension of Directions hy Conm1iss1011 beyond scheduled expiry. DECISIO\' I .ate on the altcrncxm of 11 \'owmber 1997 Ca..,tlemaine Perkins Pty Ltd caused for an application to be lodged on its behalf. The application a_sked the Commission to grant Orders under s. 292 of the Workplace Re/atiom Act 1997 (the Act) and/or s . 54 of the Act in the following terms:- "(a) An order that is directed to and binding upon the Australian Liquor, Hospitality and M1.1cellaneous Workers l ·nion, Queensland Branch, \:nion of Employees (ALH\1\J), the Federated Engine Drivers' and Flfemens' Association of Australasia Queensland Branch, Cnion of Employees (FEDFA) and The Electrical Trades l 'nion of Employees of Australia. Queen.sland Branch (ET\') and directed to and binding on the member.s of the AL!l\.1\', the FEDFA and the ETL engaged in employment in the State of Queensland hy Ca..stkmarne Perkins Pty Limited. (b) An order that all industrial action by the memher.s of the ALH\1\ ', the FEDFA and the ET\· to whom the order applies shall not occur and where such action ha., occurred or dck:s occur, shall cea,;,e. (c) The Order comes into diect on 11 \'ovember 1997 and remains in force for a period of 3 months. (d) Furth,,r and/or alternatively an order suspending or terminating the bargaining penod purportedly initiated by the ALHM\ ', H2DFA and ETl '.". The application was a..ss1gn,,d to the Commission as presently constituted early on the following morning. I arranged for the matter to he listed for preliminary hearing that same afternoon (viz. 12 \'ovemher 1997). On that date \1r I. Bennett, on behalf of Ca..stlemaine Perkins Pty Ltd, mformed me that the C,·rtified Agreement covenng the employer's Otk:rations had concluded on 31 August 1997. Pnor to that date and suhscquently the parties had hc�en involved in negotiations ahout a new ( 'ert1fied Agreement. Each of the \ 'nion.s with employec,s rn the production workforce had puf]X,rtcdly imtiated hargaming pcnods in early September. They had each subsequently also puf]X,rtedly notified the Company of intention to take industrial action. \fr Bennett referred me to what he described ,c, "a litany of industrial action, bans and limitat1om that have been taking place at the brewery . hy the employees" since 26 June but mostly in the period between 10 October and 11 '\'ovember 1997. The Orders were .sought to stop that mdustnal action occurring and to allow the employer to concentrate on iL, important production and m,ilketrng agendas !Il the period leading up to Chnstma.s I ')97. After hearing from Mr J. Martin of Australian Liquor, Hospitality and Mi.scellaneous Workers L'nion, Queensland Branch, \.'nion of Employees (AL!!\1W\;) and Mr A. D,xxlney of The Electrical Trades l 'nion of Employees of Australia, Queensland Branch (ETC) I adjourned the matter into conference. During the conference I discussed with the parties the out.standing issues from their enterprise bargaining negotiations and made certarn suggestions in relation to those issues. Each of the parties agreed to consider my suggestions overnight and to resume the conference on the following day. 13 \'ovember 1997. On that date I chaired further conferences over a lengthy pericxl from approximately I 0.00 a.m. until 4.20 p.m. At that time the Commission became aware that a stop work meeting had been in progress .since 2.00 p.m. and that it wa.s likely to contrnue until an outcome of the conference wa_s ki1own. Taking that into account and also taking into account that the day long conference had failed to pnxluce an outcome and that the negotiations were not, in my view, proceeding satisfactorily I put a series of proposition.s to the L'nions which they were invited to respond to on the following afternoon, viz. at 3.00 p.m. on Friday 14 \'ovemher 1997. The propositions put to the Cnion.s were as follows:- "Firstly, why should the Queensland lndustnal Relatiom Commission, a.s presently constituted, not act to determine that there ha., not been a proper imtiat1on of a bargaining period as required by sections 41 and 42 of the Workplace Relations Act 1997 by the ALHMWC and the FEDFA in that each of those organisations initiated a bargaining pericxl on Ca..stlemarne Perkins Limited and not the employer, which is Ca..stlemaine Perkrns Proprietary Limited: and further, in the ca..se of the ALIJMWC and the ETU, because the notices have failed to specify the matters that the umons proposed should be dealt with rn the agreement a.., required by section 42. Secondly, why should the Queensland Industrial Relations Comrrussion, as presently constituted, not act to determine that there has not been a proper l',; otice of Authorisation to Engage in Industrial Action a.., required by section 46, by each of ALHMWU, FEDFA and ETU in that each of the respective notices ha.s failed to sufficiently specify the nature of the industrial action which is proposed to be taken in support of claims made upon the wrong employer, in certain cases, and the failure to specify the date upon which such action is to commence and, further, in the case of the FEDFA and ETL', because they've failed to nominate the correct employer in providing a Notice of Authorisation to Engage in Industrial Action. Thirdly, why should the Queensland Industrial Relations Comnussion, a..s presently constituted, not take steps (with or without havmg made a determination under points I or 2), pursuant to the powers vested in it under s. 292 of the Workplace Relations Act 1997 to direct or order that there be no industrial action taken by any member of ALHMWC, FEDFA or ET\;, for a period of 21 days from today's date. Fourthly and finally, why should the Queensland Industrial Relatiom Comllllssion, a.., presently cons1ituted, not take step., (with out without having made a determination under poinL, 1, 2 or 3), to conciliate the dispute which exists between the partie.s pursuant to the powers provided to it under the Workplace Relat10ns Act 1997, most specifically under section 240 and also under the general 1x,wers in relation to rndustrial action which are contemplated under section 292.". At the commencement of proceedings on 14 ]\;ovemher Mr Bennett informed me that industrial action had taken place during the evening of 13 \'ovember which necessitated the Company having to dump 30,000 bottles, at a cost of some $3,000, which had been left in what wa..s called "the spiral" and that overtime and work to rule bans were m place. After hearing the \jnions, and the employer, respond to the propositions which I had advanced the previous afternoon I issued the following deci�ion:� "I preface what I'm about to say with the comment that I reserve the right to edit what it is that I say this evening and to also make the comment that what I am about to say will be supported by full and complete rea_sonings in the cour.se of time. I believe that the circumstances are such that I should advi.,e the partie., tonight of my decision and that the parties should not he required to await the full and complete rea..sons which my schedule will cat1se some difficulty in allowing me to produce. I've reached the conclusion that section 292 is clea rly a d1.scretionary provision. It's also clear to me that the powers in section 292(I) are in addition to and not in derogation of the powers conferred upon me elsewhere in the Act. By that, I mean that the powers are not impaired, nor are they detracted from, nor are they reduced in any way. by the powers conferred upon me elsewhere in the legislation. It 1s also clear that any exercise of discTetion under section 292(1) i.s not an exercise of any arbitration power available to the Commission and therefore is not, in any way, prohibited by section 58 of the Act Section 170MT(l ) of the Federal Workplace Relations Act provides that any order made under section l 27 of the Act (the counterpart to .section 292) dck:s not apply to protected action. If 6 February, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 77 any order he made under section 127, it can have no effect if protected action is IIl place. That is not the case in Queensland. There is no equivalent section to section ! 70MT(l ) in the State Act, that is, within section 51 - •immunity Provi.sions', and it would seem to follow, as a matter of logic, that the Queensland legislature - which ha..s otherwise acted to essentially mirror the Federal provisions of the Workplace Relatio11s Act 1996 - has consciously decided to omit such provision. That leads me to conclude, as indicated above, that the provision is a discretionary one which remains available to the Commission and that the Commission can make an order under section 292(1) notwithstandrng that protected action may be in place. However, in this case, I seriously doubt that there i.s protected action in place. Here, the affected employer, that is, the employer affected by the industrial action, is Ca.stlemaine Perkins Proprietary Limited. There might have been initiation of bargaining periods against Cas1lemaine Perkins Limited by ALHMWL and FEDFA but neither union ha.. , initiated a bargaining period against the employer proper. Although ETC ha..s initiated a bargaining period against Ca..stlemaine Perkins Proprietary Limited, it has not provided notice of the industrial action to be taken against that same company a.s required by section 46 of the Workplace Relations Act 1997. In the ca.se of ALHMWU, it ha.s served a notice of action to be taken under section 46 on Ca..,tlemaine Perkins Proprietary Limited but that step is, or wa_s, meanmgless without having initiated a bargaining period against the same company. FEDFA ha..s failed to nominate the correct employer in any of its notifications a.s required by the legislation. In any event, it is not necessary that I come to any firm conclusions or any defimtive rulings in relation to whether or not proper bargaining periods have been initiated. After considenng all of the matters that have been raised before me, I have reached the conclusion that in the circum stances of this ca_,e where:- (I) the Comnussion believes there is a likelihood that there is no protected action in place (and I indicate that I have not definitively determined that to be the ca.,e) becau.se:- (a) the v.rnng employer ha.s notices required under re.,pectively: and been named in various sections 41 and 46 (b) two of the notices of initiation of bargaining period, as required by section 41 appear to be deficient in that they fail to identify the matters that the imtiating parties (ALIJMWU and ETU) propose be dealt with by the proposed agreement; and (c) two of the notices of the industrial action to be taken (ALHMWU and FEDFA) appear to be deficient in that they do not sufficiently identify the nature of the action proposed to be taken: and (2) where it is apparent that the employees and the employer have already incurred considerable damage and losses: and (3) where the Commission believes that a ·cooling off period may prevent the dispute from escalating to the point where considerable further damage and further loss of income and profiL, may result to each of the employees and the employer re.spectively: and (4) where the Commission believes that the taking of any industrial action at this time will seriously inhibit the possibility of a successful conclusion to the enterprise bargaining negotiations: and (5) where the Commission has an apprehension that further indmtrial action is likely to be taken, I have determined to exercise my discretion under section 292 to issue certain directions in connection with this dispute and these negotiations. The directions are these. (I) That there be a lifting of all and any bans, limitations on work or restriction on the performance of work from midnight tonight, Friday, 14 November I997, by members of ALHMWU, ETU and FEDFA, employed by Ca.stlemaine Perkins Proprietary Limited. (2) That the employees are to work in accordance with the terms and conditions set down in the Brewing Industry Award - State and the Ca..stlemaine Perkins Proprietary Limited - Employees Certified Agreement. (3) That there is to be no reimposition of any bans, limitations on work or restrictions on the performance of work by any member of ALHMWU, ETU or FEDFA, employed by Ca.stlemaine Perkins Proprietary Limited. (4) That the Commission will reconvene in conference proceedings at 9.30 a.m. on Friday, 21 November 1997 for the purpose of chairing conferences aimed at trying to achieve an enterprise bargaining agreement between the parties. Further conferences will be set a.s determined by the Commission after that date. The Commis.sion aLrn recommends:- (1) That each of the unions take advice and consider the position that they and their members may he in, in relation to the notices of initiation of bargaining periods and the taking of industrial action and that they each give consideration to issuing new notices directed to the employer proper as required by sections 41 and 46 of the Workplace Relations Act 1997. /2) That the parties confer about the employer's proposal to travel to Toohey's Brewery in Sydney for the purposes of gaining first hand insight into the performance-based pay system at that site before the conference resumes next Friday. (3) That, in any event, the parties are to meet prior to next Friday to discus.s the other issues that remain in dispute between them, other than performance-ha.sect pay systems. The orders which I have issued will remain in force until midnight on Sunday, 30 \'ovember 1997. What happens after that date will depend upon what transpires over the next 16 days.". The matter resumed on Friday 21 November 1997 under the chairmanship of the Commission as presently constituted. Although the day had been set to allow the Commission to chair conferences about the unresolved items in the enterprise bargaining negotiations most of the day was taken up in attempting to resolve a separate dispute which had arisen in the previou.s week and which related to the Company's ability to implement shift roster changes. At 4.15 p.m. that afternoon I issued a further direction to the effect that employees were to work any shift to which they had been directed by their employer. I also informed the parties that I intended to visit the site at 12.00 noon on the following Monday to conduct inspections of the whole operation and to resume the enterprise bargaining negotiations in conferences commencing at 4.00 p.m. on lbursday 27 November, continuing on Friday 28 and Saturday 29 November should that be required. Over the course of the weekend of 22-23 November I considered the whole matter further and decided to act pursuant to s. 243 of the Workplace Relations Act 1997 to summom to a compulsory conference those persons whose presence I felt would he most conducive to the prompt settlement of the overall enterprise bargaining dispute. To that end I arranged on Monday 24 November to summons Mr Donald Keith Brown, Secretary of ALHMWU, Christopher John Barrett, Assistant SecTetary of ALHMWt:, Gregory Charles Stones, Operations Director of Castlemaine Perkin.s Pty Ltd and Kevin Robert McKenzie, Director of Human Resources - Operations of Lion Nathan Limited to a compulsory conference the following day. At the request of Mr Brown I also agreed that a representative of the union 25849_1.DOC -- 2 of 4 -- 78 QUEENSLAND GOVERNMENT INDUSTRI AL GAZETTE 6 February, 1 998 delegates and employees. Yir (iregory Davey. could panicipate in the conference, although not specilically summonsed. The conference (>Ccurrcd in ptTVttk on Tuc�<.Lty 25 �ovcn1hcr 1 99 7 and Listed JU St under four hours. Uunng th.:tt conkrcncc ....:ertdlil prupos1t1ons and counkr propo:-itlons wt:rc ddvanccd hy each uf the parties in what I bd1cvc wa...; a genuine endeavour to find some con1n1on ground which could kad to a ncw enterprise agrccn1cnt Each oi thc> parties kft the cornpubory confrrcnce in a con1parat1vdy posit1vc trarnc of rrund hd1cving thctt certam breakthroughs had been achieved <1r1t.i. hopeful thc1t an cnh:rpn.-;c ctgrccn1cnt could he achieved during the n...:g1..)tldtlnt'.,. .s.;css1on :-.chcdukd for Thur:--d<ly 27 .\'ovembc:r 1 997. l :n..furtundtdy, such hq:.X:s wcr.: '.\ht)rt-livt:d and no .:1,grcernent W<1� concluded on that day after three hours of ncgutiations nor on the fullowing day alter a h.1nher four hour., of ncgotut1on. Con.s,·yucntly, on h1day 2 X '.\owmber, after giving each ,,f the p,,nics the opponurnty t o addrc.,s me fonhcr on the employer' s appl1cat1on, I made the following dens1on at approximately 4.40 p.m. :- "l reserve the right to edit what I ' m about to say and what I ' m about t o say will al.so b e supported i n the ult1m.1tc h y full ,rnd con1pktc: reasons. On 1 4 '.\ove111h.::r 1 99 7 I 1ssu..:d dircci1ons pursuant to section 2 9 2 of the Workplace Rcl,1tior1., Act which had the dkct inter a/ia of dtrectrng to each of AU l:v!Wl · . the ET\ . the Ff:J )FA, and the respectJ\\� mcnlhl'f\ of tho.-:l· organis<ltion<.; thdt there he nu rndustnal action Ltk1;..'n agam.\t C,1stkma1 nc l-\:rkrns Proprietary Lmuted in the peri,xl leading up to midnight on 30 'iovembcr 1 997. I also issued direction.-, HMt ,dl en1ployec., were tu work m accordance with the kTn1s and conchtions ;.;et down in the Bn.:wmg Industry Award - State and the Castknuine Perkins Propnddfy L1 n1itcd - Err1ployec'.s Certified i\..grL'l'Tik'Ilt. I n lk,..:iding to 1sslh..' those orders at that time the Con11rnsS1on cktcrmmcd that it had the discTdionary power to do so and thdt such t.)fderr., could he issued notwithstanding that .-.:tcps h,td (argu,thly) been takl'O by the vctriuu. unmn.<- to dchic:vc the sLttu., uf prutt..',,__;tni action. I also ckcidcd that the powers <1vailabk to me under section 2'!2 were nut m derogation of th-: l)(-}Wer.�: confcrr1..· d upon the Comrni.c.;s1 on ci.-.:t.'Whcrc wnhin tht· \Vorkplan, RcLH1on.'- Act. \Vh1ht not .-.:p�:cifical\ y .<.;tdtmg .<.:o t>n 1--l :\'ov:..·mbc:r it 1.-.: ckar that, by \'IrhJc of n1y dec1s1on. any Order 1ssul·d under section 2 9 2 v,. ould have the dlcct of rl·n1oving the st.1tu:-, ot protected mdu-,tnal ac!ion for the· duration of th,, Order Jn my decision of 1 4 .\"owmber l ",L,o decided that the u.sc of the {X)Wers under section 2 9 2 wa..;;; clearly d1:-crd1onar;. I pruvld::d certain hackground ohscrvaticns c1.hout the stak of pLty in tht' ncgot1at1ons between thl: partll'S as tht:y i: xisk:d d.t th,tt time. In doing so I highlighted rny conl°l..:rn., ahout the dCtu,d skp,1., taken hy the respective u111ons to rn1ti.-1tc thl' V,\flOU,'l h,lfg.1rnmg �riod.s as well a<.; my concerns cthout whcthLr or not the not!Cl'.:' lt) take industna.1. action were in conforrn.ity wnh tht...' lt..:g1slation. In <.1dd1t1un I ..._)h;.;cn".::d thc1.c rn tht: l l rrJ.,_ kdding up w 1 4 D(:ccrnbcr, the cn1ploy.::es and the empluy..:r, respect1Ydy, had incurred considcrahk d.an1agc.� and losses;. I also oh<.;crvt.·d that in my view a cooling off pcricxi nu y prevent th..._, d1:-:p11k frurn ....-.,calating to the· point where cons1derahk furthl'.r darnd.gc: and further lo.\s of incum-.: and profits 1nay result. I further oh.1.,crvcd that the Ltking of industnal �tction at th<tt tlrnl'. would _c;r..T1ouslJ rnhihit the' po1.;sih!l1ty of the panics b,cing abk to succc."fully conclude their enterpri,e h argaimng negotiation.". On I 4 '.\ ovemher. after evaluating what ! had read m the application and what e,1ch ol \.1r \fanm ,rnd \1r !Lnnctt told me, ! had an apprehl:ns1on that the partic_, may have hc:cn rushmg headlong into the abyss -- to use an old cliche - without proper con:-:idcration of when: the matttT might go and wh,1.t the ddnngc might bc that llllght !low to cach of them if th,, apprch,,ndcd industrial action occurred. Taking ,1ll of thosl'. factor., into c1c....:c,unt, I dc ...:idcd h) eXt:Tcis,: th,..; di.scrdion availahk to n1e under Sc'ctHm 292 to order th;-\.t no industrial action he taken in the' pt.'nod up t<� n11 dnight on 1() �ovcmher 1 997 and th<lt tht: crr1ploy....,es were to \\- ork in accordanct' with the term<. of the aw1.rd and th,.__, t'Hkrprise cc:rtifi.l·d <lgrct'n1cnt descTihcd ahove. Smee that time, the panies have travelled to Sydney to investigate the operatlc)ll of the 1:>srh1rmancc ha_sed pay scheme at Toohcys Brewery. Th,·y ' vc met to review that visit and to talk (albeit bndly) about th,, other items th,,n rn d1.spute. They have met under my cha1rman.,h1p for m,ist of the day on 2 1 .'\owmber. They have m,,t again under my chairmanship for a suhstantial penod today and on 24 '.\"uvcrnher the Conm1iss1on t(X)k tht unusu.ii ·"kP of issuing a .sununons to rcyuire leadrng pantes on ectch side of the negotiations to attend a compui.sory conicrence under section 243 of the Act. That conferc·ncc' occurred on Tue.sday 25 .'\ovember. Whilst progres.s ha_s been made during the course of the vanous sets of negotiations which haw been hdd since 14 .\'owmbc:r some .:-olid issues rcnurn m dispute: and they have been outlrned above on the transcript at the reyuest of the par1ies. The �x,s1tion which h,L' been advanced to the Commission by Mr Bennett 1s that I should again act to exercise the discretion ava1lahle to me under section 2 9 2 to fonhcr extend the dtfection. which I issued ,in 1 4 '.\member 1 997, heyond its current apiry lime of mHlmght nat Sunday, 1() 'iovcmber. He he"' urged that course of action on me for a variety of reasons which are spelt out in the transnipt and which include pan,cular refcr,,nce to the loss or damage which might be suffered by the e mployer and the employees, respecttvcly, should there be the taking of industrial action atier the conclusion of the p<.Tiod covered by the Commis.,ion's direction. Mr Barrett ha_, urged me not to acrc1.se ,rny discretion available to me under the Workplace Rdatlons Act and, in doing so, h e ha_s panicul,uly referred me to the objects of the Act set out at section 3 and to the scheme of the legislation dealing with workplace agreement, which 1s recorded at Chapter 2 - Agreements. of the Wodplace RPiatio11s Act / 997. He hc1_s put to me that the .,cheme of the legislation is such that it deals comprehensively with what 1s to apply during the course of negotiations for certified agreemcntl.i and he took me a.<. wdl to the vanous sections sd out in division 7 - :\egotiat1on for Certified AgrccrncnL\, w 1thrn Chapkr 2 . In panicular. \!fr Barrett pointed oul the kgislation contemplates that parties rnight not he ahk to rc<1.ch c1.grec1nent ,L'i d result of their tJL·got1 ,1t1ons and thi1t the t<.1krng uf mdu 1.;tri,d act1c•n in support of a particular claim or t..kn1<lnd is one of the outcorncs which the L::g1s tttion provides fur. I k further {X)inted t1u1 th,1.t th1..' kgi-.Lttion t:'S'-t'Dttally set-; the rules down for the prcx:esses to he mvnlvt:d in the takmg of industrial action. Allhough he did not dir,,ctly say it. the kgislat,on �onkmpl,,tes the possibility of either pany taking protected 1ndustrial action ttg,1mst the other. Dunng the cnnfcrs;,·nccs cham.:d by me I ha \·e taken th.e tnnt' and effon to canva_s.s with ,:ach of the panies theff understanding o! the provisions which are scot out in the Workplace Relations Act and thclf understanding: of whl"re the d1,;,putt.� might go if no amicahle settlement could be reached. I am fully sati.sficd that each of the parties understand., the lcg1sL1tive framework and ! am further fully satisfied that ,·ach of the parties und,:rstand, the dangers which arc involved if industrial action is taken hy etther of them in sup1x1n of the contentions which tht'Y h:1.vc hecn prc,,;,sing during the' cour,;,e nf the negoti<ltions. The cooling off peri,xl has allowed the panies to explore the issues hetween them, hut as I havl'. said no successful outcome has heen achieved. During the negotiation., chaired h y me each side ha_s given ground hut. unfonunately. they have not moved sufficiently far enough towards e,i.ch other to enahle the negotiations to h e sui..:ce,-.:sfully cuncludcd. It se,,m, to me that the Cornrnission ha_s interwned for as long a-s i t can to ensure, firstly, that rca_sonable efforts have been made to hdp the panies resolve their differences by a process of conciliation and, secondly. that the parties fully understand the scheme of the kg1slatiun and where Hh.: rnattt:r n1lght gu 1f th-: 1.<.;sues which lie hd'-Vec.'D them are not re.'-olvcd amicably and without recourse to industn,t! action. 6 February, I 998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZE"ITE 79 The Parliarwnt tu, passed the Workplaa RPlatiom Act / 99 7 in the furrn th,1t ll has after con.s1denng all of the- options :irnilablc to it. One nf the 1._1ptinns could haYc ht.'CD to provide a spcufic contmurng rok for the Queensland Jndustnal Rdat1on<.: Corrm11.s.,ion rn c1fcun1.,tarn..:-.:_, such <ls this. The Legi.slatur,, ha_.s chosen not to specifically provide for an ongoing rnk fur the Queensland Industridl RcL1t1ons Comn11.<.;qon dnd tht.: ruk v;h H...:h 1...: contcn1pLi.kd by the gl'ncral schcn1e of the k1::.1..slat1or1, dc,tlrng with thl' th�goti<1tion for ,tgrc,;nk'nt.-. , i.'- :-:et c,ut at .sc�tion 5<) whl-re conul!atmn pt)wcrs arc provided for. The schc rill' of the Act --r.:cn1<.: to Ille' to he that the Conm11.,.-.:ion i.,: re4uircd to act to encour,1.gc the partic . ..; to takr.� upon thcrn,;;clvcs the pnme r.__• <.;pon.1.;1 bility f..._>r ddermining n1atkr.s affecting the rdation.,hip hdwcen e mploy,·rs and employees at the workpl,h-.: kvd 1L"-t.'IL The Con111uss1on cdn a.-.:s1 st hut 1t ...:annot take over the process . In those t..:ircu1n;.;tanccs, and given that the par! ll'..'- arc fully J.Wdfl' of whefl' thi.... n1attcr nught kad, I do not propn-,c tu contmue to intcrvcnc m the nMttcr. The orders which I 1s.-;:ucd on 1 4 \'ovcn1hcr I 997 will expire at m1dmght on 30 '.\ovembcr simply wnh the p<.bsagc of tune. I do not mknd, \1r Bennett, to act to cxcrcisc my discrd1un unckr s.:ct1on 2()2. to cxknd the orders which I have ,drcady i:-,sucd. I n makmg thdl statement. however. I nldkc It dear th<lt the direction which I issued dll 2 1 \'oven1hcr 1 997, which relates tu the working of shift work, dee:,; rcrnain in forcr..: . The d1rcct1on issued on thdt date oper,itc., until midrnght on 24 December J ')97 when it wiil ,1J.so !dps.: with the passage of time. If there wa.<,; doubt t1hout the provision under which thdt direction ot 2 1 'iovember nuy have been i.,sucd l make it plain that that dir--·ction v,·:t.'> is--:u,:d havrng regard to the g;.'ncral tX)Wl'f'- to 1sst1t.' directions avaiLi.hk to the Conuni;.;sion hut most spccificdlly those under _1.,cction 292. \V1th tlut th,} Con1n11,.<..:wn nMy he ,--tdj uurnl·'-L I will ,l:-..k tur thl: d\..'CL\\OD t{) he rrLrn.-;:cnh�d .-;:o that it c,rn b--: 1nm1.:diaki) tt\.·u.1bhk to thl' p.u11c;-,_ . . f now provide ft.';L'-ons for the deci.<sions which were i.-,sucd on 1 4 .\ nvemher 1 ')97 and 2 8 '.\uvemhcr 1 997. respectively. The appliut10n by C<l_,tJemaine Pcrkrn.s Pty Ltd soueht order., under s. 292 of the Acl ,rnd/or S4 of the Act. Secti,m 292 is in the following tenns:- "Power to diret:t or order in re]atinn to ind ustrial action 292.( I ) !f 1t con.ciders it dppropnak in relation to mdustnal action, whcth;:r �tetud.!, thrl·atcncd, or dpprehernkd, the conm1Fs1on may - t d) d trt·ct the indu:.::tnd.l action to .-;top or not happen: or (h) g,1 \\.' tht· other directions or rnakc th-: orders 1t cons1tkrs �tppn )pnatc. (2) The pt.)Wl:f\ conferred on the conun1.-;:sion hy suh'icctinn ( I ) are in Miditmn to, d.nd not m '-krogat1on of. the puw;.TS conferred on ll by the r,:st of this Act. (3) A pcr..,on or organisation to whom an order under suhscc:tion ( 1 ) d.pplic.-.; rnu.,:t con1ply with the �)rdcr." The section 1. c.: in roughly snnilar tcrn1..c; to .-:. 1 27 of the tt'orkp lacr RP!atwm Act 1 996 (C'th) which ha., h,·cn the sub_1,·ct of c<'ns1,krat1on by a nurnher of rnd1\·1 dual n1t:rnbers and Full Benches, rC."J-X:d1vdy, of the Au.<.:tulian Indu ...;tn,t! Rdation:-. Cor11n11ssion. Although the prov1.qon.12 arc roughly sinular hdwt:cn the ()ut'cn.,d d.nd and Fcd-.::ral Acts the 1 :cdcr,d Act dho contains another prov1:-.ion, VJL ·" 1 70:\-1:T, which pn)vHks that an order made hy the Cornnus:-..1on under s. 1 27 d0cs not apply to protected action. There 1s no :sim.ildr provision in the Workplace Relations Act 1 997. (\msequcntly. the vanous decisions issued hy mcmhers of the Australian Industnal Relations Cornn1i.;.;.sion need to be viewed m that umkxt. The power rn s. 2')2( l ) is that the C:omn11ssion mav, if it con.,iders it appropriate in rdat1on to industrial action etcetera. direct the industrial action to stop or not happen or to give- the other direction;.; or make the orders it considers a..ppropnatc. Any decL"H)n to 1.1.,suc dlfl'ctions or order.-; under s. 2 ()2( I ) is dearly disnctionary. The exercise of any such discretion should be guided hy the oh_1cct., of the Act and an understanding of the relation.ship of the power and the affect of its excr,:i<e tu the scheme of the Act (see Coal and A llied Operatwns Pt, Um11ed ,, A FMEPK!U and Others a ckcisiun of a Full Bench of the AlRC on 20 June l 'J'J7. Print P207 l dt p. 6n). Section 3 of the Workp/aep Relaliow Act / 997 provides. inter alia, a_, follows:- "Principal ohjcd of this Act 3. The principal object o! this Act 1.s to provide a frarnl'work for dx)perat1vc workpL.tce relations that sup1xirts economic prospcnty and welfare � - (hJ cnsunng the pnn1ary re.,1xmsihility for dekrnuning nMtkrs afft·cting the rdat1on.-:h1p hdween en1ployers and en1ployec'S rest-; with the en1pluvcr and en1ployees at the workplace or t·nten1nse kvd; and (c) -.:nahling -.:rnployl'fS and crnployccs to choo.<.;e the n10st appropriak fonn of <1gn.:en1cnt for their particular nrcurn<.;tanccs. whether or not that form is provided for by lh1., Act; and (d) prov1dm::: the n1e ctm-: � (i) for w.igcs rtnd e111ployrnent cond1 t1ons to he dckrn11ned a,'- far d." possihk hy the agn.'e1nent of c> mployl�r.<..: and crrtp!oyer..·s at the workpl<tce or enkqx1.<.;c kvd: and (i1) to t·nsure tht.· n1aintcnance of an d1ectivi: safety nd of L1ir and ,.-nforcc'cthk rnmanum w,1gcs d.lld c.·mployrncnt c,mdition:-::· ;rnd (c) providing t or right., and rl'spon.-,ihilit1es for en1ploylTS and c1nployccs, and their organi."atwn.-,, that (1 ) supports falf and dl,:ctive ag:rl:cn1cnt t1Mking; and {ii) ensures th'--'.Y ,_ihidc hy dW<1.rds ctnd agreements applying to thcn1: and ( t) enabling the comn1iss 1on - (1) h) establish dfl d.W<Hd Scl.fdy nd based on ,Hnplifi,·d .,wards to rncrea.,c: tlcx1b1lity ,lt the \\ OrkplctCt'. or cntL:rpri.-;e level: and (1i) to ,1_,;,,·i-.;t rn the n1ak102 of collective and individual agrcen1ent'- that arc relevant to the need.s of rndi,·idual workplaces and t'ntcrpri.-.:c ...; ; and (iii) to prevent and '-1..·ttle mdu.,tnal dist1uk.'- <L' far a.'- bX)ssihk hv conciliation and. if appropn<ik and w1thm spc-c1ficd lirrnts, hv arbitration: and" (my underlining) Chapter 2. Pan I of the Act deals with the making of Cenified Agreements. The oh_1ecl of Pan 1 , set out in .s. 1 0 of the Act, i, "to facilitatf' tht' rnaking, Ct'rttfvmg hy the cormnisszon, and opt> ratum, of certain agreemn1ts (part,cular/, at the level of a .,ingle bu.11,w,s or part of a nn:,.;le b1nines.\ ). ". 25849_ 1 . DOC -- 3 of 4 -- 80 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 February, 1998 Further. s. 1 1 pro,•idcs that "(l)he <·ommissio11 must, as far a.< practicable, perjonn its functions under this part in a way thatfurthers the object of this Act and, in parricular, the objecr of this parr.". Section 54 of the Act indicates that the Commission may .suspend or terminate a hargaining period in certain circumstances. Ahhough Orders were sought under this section it was not really argued by Mr Bennett that any of the particular drcum<tance.s sufficient to em,ble the Comnussion t o act under that .<ection existed in relation 10 this dispute. Section 59 of the A�'I provides, ;n1er alia. that "(t)he commission has the co11ciliation powers for a mal/er arising u11der this part that it would have under uctio11 240 if that section applied to conciliation of the maller., i11stead of i11du.strial disputes.". Fu rther, .s. 58 of the Act provides "(d)uring a bt,rgai11ing period, the commissirm 11111st not exercise its arbitration power.• under .,ection 240for a null/er rhar is at i.uue between the 11ego1iati11g parries.". In my views. 3(1) goes hand in hand with s. 59. 1l1e structure of the Act is ,such that the Conuni,sion i.< provided with the powers to enable it to a.,sist the parties in the making of collective and individu al agreements but in a way !,\!Ch that the Commission is also able 10 act to prevent and seule industri.al disputes hy conciliation and, if appropriate, and within specified limit<, hy arhitration. Section 58 limit.< the Comnussion's power to arhitrate dunng a bargaining period for a matter that i.< at issue between the negotiating parties to a collective or individual agreement. Relevantly, s. 292 is not limited in it.< potential scope and are,1 of affect in that the Parliament has not seen tit 10 enact an e<Juivalent ;-ection to s. I70MT of the, Workplace Re/a/ions Act 1996 (C'th). Accordingly, .<. 292 remains availahle if the Comnussion considers it appropriate in relation to industrial action which may be occurring. In the circumst ances which confronted me on 14 November 1997 the parties had heen negotiating about a new enterprise agreement sin,e �fay 1997. Betwee n 2 and 12 September 1997 notices purports,dly initiating a hargaining penod were .served hy each the three Cnions involved on the pany that they thought they were negotiating with. Between 9 and 17 s�plemher purported notices of industrial action were also .<erved. As it turned out certain ofthe notices were not served on the a�1ual employer. In any even!, prior to any of the-se notices being served the employee-' had commenced the taking of industrial a�t.ion. purportedly in .'tlpport of the Union.< negotiating agenda and in oppo.<ition to certain items heing pre.<.<ed hy the employer. In addition, inten.<e industrial action took place in the. peri1x1 commencing 10 Octoher and coniinuing right up until the employer's application was lodged. Indeed. industrial ac.1ion occurred during the evening of I 3 Novemher 1997 at a time when the Commission was chairing conferences between the parties and in circum,tances where the Commission had r-,4uested the \;nions and their memhers to agree to a moratorium on the taking of further industrial action whilst thi: Commission continued to chair confert::nce:-i. Further, it was the Company's unconte.<ted suhmission that it had incurred �ert,1in losses through having to dump. on two occasions, hottles caught in the spiral at a cost of some. $3,000 on each occasion. The Company had also been unahle to launch two new products nor properly mark<t another product becaa,e of lack of guaran tee of �upply. Finally, aod importantly in my eyes, the employees passed resolutions on I 4 November 1997 10 the effect that they were to commenc, a week long stoppage commencing in the early mom,ng of �onday 17 November 1997. My clear impn,ssion, gamed through having chaired conference.< on 12, 13 and 14 �ovemh�r wa.� that there wa.< a general reluctance on the part of the Union members to further negotiate. about the issues in disput� - whether under the chairmanship of the Commis.�ion or otherwise - because they helieved that taking industrial action would cause the Company to agree to their demands and ahandon it$ own. My discussions with the cmployu led me to conclude that such strike .ic.1ion would oot cause the Company to capitulate a.1 the employees believed bu t. rather. w,)uld h� more likely lo harden the employer's position and perhaps cause it to recon.<ider certain of the offers which it had already made.. A<.1ion in tort had also not heen ruled out. Accordingly, in the circum.\1ances where I believed that:- there was a strong likdihood that each of the 1.Jnions had llOI properly initiated bargaining periods; • there was an apprt>hension on my part that the. L:nions had failed to provide the appropriate notices under sections 4 I and 46 of the Act - which may have left the employees liable to action at common law: and • where the employees were clearly determined to embark on their week long stoppage withoot con.<iderati<m of the consequen,-es; I felt that it wa.< necessary for the Comm.ission to interven" and to establish a cooling-off period to allow further negotiation s to occur. Such cooling-off period was also designed to allow the l/niort5 to setk advi<.'e and to take any corrective action which may be found necessary 10 protect bOlh them�elves. but more particularly their members, from potential common law action. In my view, it would have been r"miss of me in my capacity as a Commissioner of this Trihunal to have let the employees emhark upon their intended strike in circ.um.stances where I believed tha! they almost certainly would have heen liable 10 he ,sued in tort for any losses incurred hy the employer during the (likely unpr0tected) industrial action thal they were ahout to commence. Additionally, the employer was prepared to continue to attempt to negotiate a Certified Agreement under the chairmanship of the Commission. Weighing all of these matters against the legislative framework I fell that the Cornmi.<.<ion should act to attempt to a.<sist the parties to successfully conclude their n egotiations for an enterprise bargaining agree�nt. It wa_� for those reasons that I issued the directions and recommendations (a.< ahove) on 1 4 !\ovemher 1997. By 28 November 1997 the Commission had chaired conferences between the parties on 12, 13, 14, 21, 25 (by compulsory conferenre under s. 243), 27 and 28 Sove.mher 1997. However, by late in the afternoon on 28 November it had hecome clear to me that, despite the Comrnis.<ion·s he.,t endeavours, neither of the parties w,�< prepared to make the necessary concessions to allow an agreement to be concluded. Each of the parties had become entrenched in their negotiating p<).Sition and was unwilling to c.-ompromi.se further. By that stage I helic,·ed that I had done all that I could to assist in the making ()f a collective agreement and resort to arbitration wa_� not available lo me by vjnue of the provisions of s. 58 of the i\i:t. In add1t1on, althoug h it provide.< a role for the Commission lo assist the parties in the making of a collective agreement. the legislation also contemplate,; that any party may initiate a bargaining period and take protected industrial action for the purpose of SUPJX)rting or advancing claim.I made hy it in relation to the proposed agreement. Such provisions are cortsistent with s. 3(b) which is designed to en,ure that "the primary responsibility for determining matters alfeq,ing the relationship hetwcen employers and employee.< rests with the employer and employees at the workplace or �nterpri� level". Weighing all of these matters again.,1 the kgislative framework I concluded that it would he inappropriate for the orders issued on 14 t'\ovemher .1 997 to be extended heyond their scheduled expiry at nudnight on Sunda y 30 '.liovemher 1997. For tho.,:c reasons I decided on 28 November 1997 not to act to extend the directions assought hy Castlemaine Perkins Ply Ltd, nor to issue any new one.<. A.L. BLOOMFIEL D. Commissioner. Appearances:- Mr I. Be.nnell, of l.G. Bt'nnett and Associate.< (instructed by !\.1s A. Milner and M, !'-. (,ordon of Cla}10n Utz). with Mr K. McKenzie and Mr G. Stone$ for Ca,tlemaine Perkins Pty Ltd. Mr J. Martin, Mr C. Barrett, Mr G. B ullock and Mr D. Brown for the Australian Liquor, Hospitality and Miscellaneous Worker.< Union, QueetL<land Branch, Union of Employee, and the Federated Engine Drivers 6 February, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE a nd fireni,sns A.--,;ociatwn of /\ustrala.<ia Que.;nsland Branch, Umon of Employees. \1r A. f)ooJney and �1r J. Camp for The Elec1rical Trad"s Union of Employee� of Au .<tn,lia. Queensland Branch. operati"" [}<1te : �/A . D,c1sion - OrJ-,r, - Barga1111ng P"nod ##################1/####################################### 8 1 -- 4 of 4 --