City of Botany Bay and FMSCEU [2000] NSWIRComm 85

Industrial Relations Commission of New South Wales

CITATION : City of Botany Bay and FMSCEU [2000] NSWIRComm 85 APPLICANT: City of Botany Bay PARTIES : RESPONDENT: Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division FILE NUMBER: 638 of 2000 CORAM: Schmidt J CATCHWORDS : Interlocutory decision - Extension of dispute orders - Orders declined LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 05/23/2000 DATE OF JUDGMENT: 05/24/2000

APPLICANT: Mr M Barnes, solicitor SOLICITORS: White Barnes LEGAL REPRESENTATIVES: RESPONDENT: Mr J Phillips of counsel SOLICITORS: PricewaterhouseCoopers Legal

JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Schmidt J

DATE: 24 May 2000 MATTER NUMBER IRC 638 of 2000 Notification under section 130 by City of Botany Bay of a dispute with the Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division re strike and refusing to work INTERLOCUTORY DECISION

1 In a decision given on 24 February, dispute orders were made pursuant to s137 of the Industrial Relations Act 1996 ('the Act'). Those orders have effect until 7am on 26 May. That time was selected in a context where the arbitration of the orders sought in the proceedings was listed for hearing on the following Monday, 29 May. 2 That hearing has been vacated, at the request of the Union, in circumstances where it has been unable to complete its preparation for the hearing, having regard to the sudden and unfortunate illness of Ms Bradley, who had carriage of the matter. The hearing has been adjourned until 16 August and a new timetable for its preparation fixed. 3 The Council did not oppose the vacation of the hearing, but took the view that the Commission's dispute order should be extended until the new hearing date. The Union did not agree to that approach and thus the question of the extension of the orders was listed for hearing. 4 At the hearing Mr Barnes, appearing for the Union, was unable to undertake to the Commission that there would be no resumption of industrial action when the dispute orders expired, but did proffer that the Union, through Mr Stubbs and Mr Fyfe, was not aware of any further intended industrial action and was not itself promoting such action. 5 Mr Fitzgerald gave evidence as to the current position and the Council's concern that if the orders are not extended, the Union's members would resume industrial action. It seems that since the orders were made there has been but one outbreak of industrial action, in circumstances where the relevant employees believed that the Commission's orders did not apply to that action. Mr Fitzgerald's evidence was that while on one view the industrial action was unconnected with the subject matter of these proceedings, they were in fact related on his understanding, given various comments made by a Union delegate. In any event, that matter was dealt with in discussions between the Council and the Union, which seemingly advised its members that the dispute orders applied to the issues in question. 6 I have found the issue, which presently lies between the parties, difficult to resolve. On the one hand, it cannot be overlooked that in this matter the dispute orders were made in difficult circumstances, where industrial action had been on foot for a considerable period, where the Commission's recommendations had been ignored, where the normal operations of Council had been seriously disrupted and the public interest affected. It seems to me that the Council has a proper basis for its concern. 7 On the other hand is to be considered what the Union has advanced to the Commission, the general compliance with the order made, the steps taken by the Union when the misunderstanding as to the application of the order seemingly arose and its opposition to the continuation of the orders, particularly given what it advanced as to its understanding that further industrial action was not threatened. 8 I take the view that dispute orders are not lightly made by the Commission. This accords with the scheme of the Act, including its objects. I also take the view that parties to awards such as that which applies here, where by consent they have agreed that there should be no industrial action while the agreed dispute resolution procedures are pursed, should abide by their agreements. 9 In this case, it was the Union who sought an adjournment of the hearing in which it wishes to pursue orders against the Council. It follows, in my view, that it should be unnecessary to impose orders upon the Union and its members, to ensure that preparation for the hearing and the hearing itself can proceed in an orderly way, in the absence of further industrial action. That is especially so when the Union is also seeking to pursue further discussions with the Council in the meantime, in order to resolve the current dispute without the need for arbitration by the Commission. 10 In those circumstances, I have concluded that the proper course is to decline to extend the dispute orders in the way presently sought by the Council. I have also been influenced in that conclusion by the speedy access which the Council is entitled to have to the Commission, if further industrial action takes place. The Council has liberty to approach at short notice in that event. 11 The parties otherwise have liberty to have the matter restored to the list, in the event that further assistance in conciliation is sought, as the result of the further discussions which the parties propose. 12 For all of these reasons, I decline to extend the dispute orders made on 24 February. ------------------------