Recorded Media Industry Union of New South Wales v Summit Technology Australia Pty Ltd [2006] NSWIRComm 270

Recorded Media Industry Union of New South Wales v Summit Technology Australia Pty Ltd [2006] NSWIRComm 270

Regulation 1.2(2) preserved the Commission's jurisdiction because the relevant act or omission was Summit Technology Australia Pty Ltd's failure, before the commencement of WorkChoices, to comply with the Commission's 5 December 2005 direction to negotiate in good faith. The s 135 certificate of attempted conciliation was also issued before WorkChoices commenced, moving the dispute into the arbitral phase and giving the Union a preserved right to invoke the Commission's arbitral powers under s 136. The employer's stated reasons did not displace the finding that the real and effective reason for delaying negotiations was to avoid determination before WorkChoices commenced.

Jurisdiction
Australia
Judgment Date
24 August 2006
Procedural Posture
Notification Under Section 130 of the Industrial Relations Act 1996 of an Industrial Dispute Re Industrial Action / Decision on Notice of Motion Challenging Jurisdiction After Failed Conciliation and Referral to Arbitration
Outcome
Notice of motion dismissed; the Commission held that it had jurisdiction to continue the proceedings by arbitration under s 136 of the Industrial Relations Act 1996.
Legal Topics
['work Choices Exclusion of State Industrial Laws' 'jurisdiction of the Industrial Relations Commission of New South Wales' 'good Faith Bargaining' 'conciliation and Arbitration of Industrial Disputes' 'notional Agreement Preserving State Awards' 'section 78 B Judiciary Act Notice']
['industrial Relations' 'constitutional Law' 'employment Law'] ['work Choices Exclusion of State Industrial Laws' 'jurisdiction of the Industrial Relations Commission of New South Wales' 'good Faith Bargaining' 'conciliation and Arbitration of Industrial Disputes' 'notional Agreement Preserving State Awards' 'section 78 B Judiciary Act Notice']

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Procedural Posture

Notification Under Section 130 of the Industrial Relations Act 1996 of an Industrial Dispute Re Industrial Action / Decision on Notice of Motion Challenging Jurisdiction After Failed Conciliation and Referral to Arbitration

Legal Issues

  1. 1 ['Whether notice under s 78B of the Judiciary Act 1903 (Cth) was required.' 'Whether the Commission had jurisdiction under s 136 of the Industrial Relations Act 1996 to arbitrate the dispute or make an award, recommendation or direction after the commencement of WorkChoices.' 'Whether Regulation 1.2(2) of the Workplace Relations Regulations 2006 preserved rights or obligations arising before the reform commencement.' 'Whether Summit Technology Australia Pty Ltd failed to bargain in good faith before the commencement of WorkChoices.' 'Whether the Union retained a preserved right to pursue arbitration of the dispute.']

Ratio Decidendi

Regulation 1.2(2) preserved the Commission's jurisdiction because the relevant act or omission was Summit Technology Australia Pty Ltd's failure, before the commencement of WorkChoices, to comply with the Commission's 5 December 2005 direction to negotiate in good faith. The s 135 certificate of attempted conciliation was also issued before WorkChoices commenced, moving the dispute into the arbitral phase and giving the Union a preserved right to invoke the Commission's arbitral powers under s 136. The employer's stated reasons did not displace the finding that the real and effective reason for delaying negotiations was to avoid determination before WorkChoices commenced.

Court Disposition

Notice of motion dismissed; the Commission held that it had jurisdiction to continue the proceedings by arbitration under s 136 of the Industrial Relations Act 1996.

Orders

  • ['No notice under the Judiciary Act 1903 (Cth) was required.' 'The notice of motion filed by Summit Technology Australia Pty Ltd was dismissed.' 'The matter was to be listed for further programming and directions on Wednesday 4 October 2006 at 9:30am.']