Seamens' Union of Australia, New South Wales Branch and Anor and Captain Cook Cruises (NSW) Pty Ltd [2005] NSWIRComm 360

Seamens' Union of Australia, New South Wales Branch and Anor and Captain Cook Cruises (NSW) Pty Ltd [2005] NSWIRComm 360

The Commission had power under the Industrial Relations Act 1996 and the State Wage Fixing Principles to arbitrate and make an enterprise award as a last resort where negotiations had failed. The respondent's objections about existing award coverage, competitiveness and union motives were premature because they went...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
14 October 2005
Procedural Posture
Notifications Under Section 130 of the Industrial Relations Act 1996 of Industrial Disputes Concerning Enterprise Agreement Negotiations and a Claim for a New Award / Preliminary Decision on Whether an Award Should Be Made or the Unions' Claim Should Proceed to Arbitration
Outcome
The Unions' claim was permitted to proceed to arbitration; the preliminary objection did not prevent the award claim going forward; the matter was referred to the President pursuant to Principle 10.
Legal Topics
['industrial Disputes' 'enterprise Agreement Negotiations' 'enterprise Awards' 'award Making Powers' 'state Wage Fixing Principles' 'special Case Considerations' 'maritime Industry']
['industrial Relations' 'employment Law'] ['industrial Disputes' 'enterprise Agreement Negotiations' 'enterprise Awards' 'award Making Powers' 'state Wage Fixing Principles' 'special Case Considerations' 'maritime Industry']

Source-derived case record

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Procedural Posture

Notifications Under Section 130 of the Industrial Relations Act 1996 of Industrial Disputes Concerning Enterprise Agreement Negotiations and a Claim for a New Award / Preliminary Decision on Whether an Award Should Be Made or the Unions' Claim Should Proceed to Arbitration

Legal Issues

  1. 1 ['Whether there was any jurisdictional or other preliminary impediment to the Commission making an award for employees of the respondent despite existing industry awards.' "Whether the respondent's objections concerning existing award coverage, competitiveness and the Unions' motives should prevent the Unions' award claim proceeding to arbitration." 'Whether the claim raised Special Case considerations under Principle 10 of the State Wage Fixing Principles.']

Ratio Decidendi

The Commission had power under the Industrial Relations Act 1996 and the State Wage Fixing Principles to arbitrate and make an enterprise award as a last resort where negotiations had failed. The respondent's objections about existing award coverage, competitiveness and union motives were premature because they went to the merits and terms of any award rather than to the Unions' right to prosecute the claim. The evidence did not justify stopping the claim at the preliminary stage, and the Unions' claim should proceed to arbitration, with the matter referred to the President under Principle 10 because Special Case considerations arose.

Court Disposition

The Unions' claim was permitted to proceed to arbitration; the preliminary objection did not prevent the award claim going forward; the matter was referred to the President pursuant to Principle 10.

Orders

  • ["The Unions' claim should proceed to arbitration." 'The matter is referred to the President pursuant to Principle 10 of the State Wage Fixing Principles.' 'The parties will be advised in due course as to future proceedings.']