Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW Branch on behalf of Maree Ploner v Westport Bowling Club Ltd [2002] NSWIRComm 10

Industrial Relations Commission of New South Wales

CITATION : Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW Branch on behalf of Maree Ploner v Westport Bowling Club Ltd [2002] NSWIRComm 10 PARTIES : Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW Branch Westport Bowling Club Ltd FILE NUMBER: IRC3894 of 2001 CORAM: Harrison DP CATCHWORDS : Application for costs against employer - refusal to negotiate reinstatement - alternative settlement not acceptable to union - strike action - application for costs refused LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Copperart Pty Ltd v Martin (1995-96) 68 IR 58 Bankstown City Council v Paris (1999) 93 IR 209 HEARING DATES: 08/20/2001; 09/21/2001; 10/22/2001 DATE OF JUDGMENT: 02/05/2002

APPLICANT Mr C Acev Australian Liquor, Hospitality & Miscellaneous Workers Union, NSW LEGAL REPRESENTATIVES: RESPONDENT Ms M Knight Clubs NSW

JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 5 February 2002 Matter No IRC 3894 of 2001

AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION, NEW SOUTH WALES BRANCH (ON BEHALF OF MAREE PLONER) AND WESPORT BOWLING CLUB LIMITED Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION RE COSTS [2002] NSWIRComm 10

1 The substantive proceedings in this matter, pursuant upon an application by the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch ('the Union') on behalf of its member, Ms Maree Ploner ('the applicant'), resulted in a decision issued on 22 September 2001 finding in favour of the applicant. Orders issued for reinstatement; payment of wages for the period from termination of employment to reinstatement; and preserving continuity of employment and associated entitlements. The Union now seek an order for costs pursuant to s181(2)(c) of the Industrial Relations Act 1996 ('the Act') to the amount of one thousand two hundred and seventy six dollars and seventy cents ($1,276.70). 2 In respect to the application for costs Mr Acev of the union put that a delegation by Union officials and job representatives to the General Manager of Westport Bowling Club ('the Club'), Mr R Livingstone, seeking reinstatement of the applicant was rebuffed with an expression of a firm and concluded view of fact adverse to the applicant. 3 Mr Acev put that the respondent maintained this position and refused to engage in conciliation or consider a proposition advanced by the Union that the applicant be reinstated pending the outcome of arbitration proceedings. Mr Acev submits that several attempts to advance this proposition during the course of proceedings were rejected. 4 Mr Acev relies upon the conclusion reached by the Commission that the respondent employer was wrong and that the applicant was not guilty of the misconduct asserted; putting that: "the only action taken by the respondent was to remain inflexible in respect to the process and repeatedly rejecting an offer of compromise, which was 'reasonable', in light of the Orders made by the Commission. 5 Mr Acev further submits that the respondent's actions were contrary to the objectives of s181(2)(c) of the Act, which he puts is to encourage settlement of proceedings. 6 Mr Acev's argument is concluded at pts 24, 25 and 26 of his written submission in the following terms: 24. Each party in Section 84 proceedings holds a view as to the respective strengths and weaknesses of their case Such positions must also be formulated after giving mind to the provisions of the Act which require parties to engage earnestly in efforts to settle claims.