Industrial Relations Commission of New South Wales CITATION: Reckitt Benckiser (Australia) Pty Ltd and AMWU and others [2005] NSWIRComm 1177 APPLICANT: Reckitt Benckiser Pty Ltd PARTIES: RESPONDENT: Automotive,Food,Metals<Engineering,Printing and Kindred Industries Union, New South Wales Branch and others FILE NUMBER(S): 4991 of 2005 CORAM: Ritchie C Request by respondent to invoke s.173 Applicant objected to request. Applicant submitted that respondent had failed to invoke s.173 at the appropriate time. Respondent did not object at the time Commission announced that conciliation had completed and Arbitration would proceed. CATCHWORDS: On the same day a Certificate of Attempted Conciliation was raised ,timetable given to parties for the filing and serving of evidence and a hearing date given. Respondent wrote to Commission seven days later. Commission found that the respondent did not invoke s.173 at the correct time. Application rejected. Arbitration to proceed. LEGISLATION CITED: Industrial relations Act 1996 Brown v Coca - Cola AMATIL(Aust) Pty Ltd 123 IR at 33. CASES CITED: Commissioner of Police and Police Association of Nerw South Wales (Matter no IRC 1580 of 2005) HEARING DATES: 11/02/2005; 11/03/2005 DATE OF JUDGMENT: 11/08/2005 APPLICANT: Mr. A. Cunningham of Minter Ellison(solicitors) LEGAL REPRESENTATIVES: RESPONDENT: Mr. A. Neilson from the AMWU DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C. 8 November 2005 Matter No IRC 4991of 2005 IN THE MATTER OF: Notification under section 130 by Reckitt Benckisser (Australia) Pty Limited of a dispute with Automotive, Food, Metals, Engineering , Printing and Kindred Industries Union, New South Wales Branch and others re rebalance of ratio of employees. INTERIM DECISION [2005] NSWIRComm 1177 Background 1 Reckitt Benckisser (Australia) Pty Limited (the applicant ) filed a dispute notification ( under section 130 of the Industrial Relations Act 1996 (the Act)) with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union , New South Wales Branch (the respondent) . 2 The dispute was filed on 23 September 2005. 3 The dispute was first listed for compulsory conference on 29 September 2005 but was cancelled by request of the applicant. 4 The dispute was relisted for compulsory conference on 7 October 2005 and a further compulsory conference was held on 21 October 2005. 5 At the completion of proceedings on 21 October 2005 no agreement between the parties to settle the dispute had been arrived at, therefore the Commission raised a Certificate of Attempted Conciliation on that day and directed same to the parties. On the same day the parties were directed to comply with the following the following: Applicant to file and serve their evidence by 11 November 2005 Respondent to file and serve their evidence by 2 December 2005 A hearing date of 13 December 2005 commencing at 9.30am was advised to the parties. 6 On 28 October 2005 the Commission received written correspondence from the respondent dated 28 October 2005 stating in part : " after consideration of the issues, the Union has decided to exercise its rights in accordance with Section 173 of the Act." The correspondence was signed by Mr. A. Neilson. 7 On 31 October 2005 the Commission received correspondence from the applicant's solicitor's Minter Ellison which in part stated: " that they strongly opposed the Union's assertion that it can exercise its rights under section 173 of the Industrial relations Act 1996 ('Act') at this late stage in the proceedings." The correspondence went on to request an urgent relisting of the matter so as to hear their argument against the Union's request under section 173 of the Act. 8 The matter was relisted on 2 November 2005 when the applicant made their submissions. The respondent made their submissions on 3 November 2005. A decision on the matter was then reserved. Applicant's Submissions. 9 It was the applicant's submission that the appropriate time for the respondent to exercise their right and invoke s. 173 of the Industrial Relations Act was on 21 October 2005 when the Commission announced that conciliation had been unsuccessful. That on that day they did not invoke s. 173 resulted in them forgoing their right to invoke it on a later day. 10 A party must invoke s. 173 before arbitration commences. 11 Once the Commission had advised the parties that conciliation had failed and that a Notice of Attempted Conciliation was to be raised, a timetable for the filing and serving of evidentiary material was given to parties and a hearing date provided, then conciliation had ceased and arbitration had begun. 12 The matter clearly moved into the arbitration phase on 21 October 2005 and the Unions involved lost any right it had to invoke s. 173 when it failed to do so on that day. Arbitration does not commence on the first day of the hearing. 13 In reply to the respondent's submission Mr. Cunningham stated that the respondent had confused the action of the Commission issuing the Certificate of Attempted Conciliation with the service (to the parties) of it. The Commission issued the Certificate of Attempted Conciliation on the same day that it announced that conciliation had not been successful. Even if they did not actually receive the Certificate of Attempted Conciliation until 26 September they still did not seek to invoke s. 173 until two days later. He also dismissed the respondent's submission that it would have been immature to invoke s. 173 on 21 October 2005. It was the respondent's obligation to invoke s. 173 on 21 October when the Commission announced that conciliation had not been successful. He also dismissed the respondent's submission with respect to the issue of the Commission to use its discretion to allow a s. 173 request. He also commented that the respondent had not raised any issue with respect to bias . Respondent's Submission. 14 It was the respondent's submission that in accordance with s.135(2) of the Act, the Commission is not to proceed to arbitration until the Commission has issued a Certificate of Attempted Conciliation. The respondent did not receive the Certificate in Court on that day but by post on 26 October 2005. 15 The Commission purported to make directions for the filing and serving of evidentiary material on 21 October 2005 but prior to the respondent receiving the certificate of Attempted Conciliation so therefore such directions could not be characterised as being made in the " arbitral phase of proceedings." The directions were made in anticipation of the proposed arbitration but were not made during the actual arbitrational phase of the proceedings. In the alternative, the directions were made in accordance with s.134(2) of the Act. 16 Taking into consideration the expression found in s. 173(1) of the Act "a party to the arbitration proceedings" can only be determined once a Certificate of Attempted Conciliation has been issued. Therefore the respondent could not have made an application pursuant to s. 173(1) before such certificate was actually issued and provided to the parties. 17 The respondents invoked s. 173 two days after receiving by post their copy of the Certificate of Attempted Conciliation. The respondent acted in a reasonable timeframe and well ahead of the hearing date. 18 The respondent also raised the issue that the Commission retained a general discretion to accede to the respondent's request. Considerations and Decision. 19 In a dispute notification under s.130 of the Act, the legislation is clearly expressed to show a two step process. Under conciliation, compulsory conferences are held and recommendations and directions may be given by the Commission to try and settle the dispute. If the dispute in the view of the Commission is still not resolved the Commission must then deal with the dispute by arbitration. A Certificate of Attempted Conciliation must without delay be issued. 20 As the background dates expressed at the commencement of this Interim Decision showed, two compulsory conferences were held. It was only at the end of the second compulsory conference that it became apparent to myself that further conciliation would prove fruitless in successfully resolving the matter. I expressed this sentiment to the parties. I then advised that I would raise a Certificate of Attempted Conciliation and then provided the parties with a timetable for the filing and serving of evidentiary material. I also provided a date and time for the hearing of this matter. No party objected at the time to this process by invoking a s.173 application. 21 I note the comments of McKenna C. in Brown v Coca-Cola Amatil (AUST) Pty Ltd (123IR 33) : " I think that in this matter the respondent's application has been made too late, given my twin conclusions on 20 March 2002 that conciliation had been exhausted and that it was appropriate to move to the arbitration phase. Only once I had recorded those conclusions did I proceed to determine the directions for the arbitrated hearing on the matter before me. Had a timely s 173 request been made on 20 March 2002, I would no doubt have effected a s. 173 disqualification given that I had attempted conciliation of the matter. However, I think the time for making the request passed once I recorded the view that in the matter that conciliation was exhausted-and then also decide the matter should move into arbitration; I then, without demur from either party, proceeded to make arbitral directions for proceedings before me. The s. 173 request should have been made at that most relevant time, not now that the matter has been the subject of arbitral phase directions for a hearing before me." and "Equally, if a party elects not to exercise its s. 173 request rights prior to consenting to arbitral phase directions for hearing before the member who had conciliated then the right to automatically effect a disqualification is, I think, waived or forfeited." 22 It is clear from the Full Bench Decision in Commissioner of Police and Police Association of New South Wales (IRC 1580 of 2005) that a party can not take objection under s. 173(1) at any time. In this decision it also referred to McKenna C. decision. 23 It is my finding that this matter clearly moved from the conciliation phase to the arbitration phase on 21 October 2005 and the respondent parties lost any right it had to request s. 173 when it failed to make the request at that time. All parties were on clear notice from my comments that conciliation had concluded and arbitration had begun. No other conclusion could be arrived at. 24 I do not accept the submission from the respondents that they must actually physically receive the Certificate of Attempted Conciliation before directions pertaining to arbitration can take place. 25 In arriving at my finding that the respondent parties did not invoke s. 173 at the appropriate time i.e. 21 October 2005 I have taken into consideration the various cases brought by both parties to support their submissions. 26 This matter will now proceed in accordance with my directions for filing and serving of evidentiary material and timetable for hearing as advised on 21 October 2005. D. RITCHIE COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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