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P0253 Dec 1383/94 S Print L4605

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1988 s.45 appeal against decision [Print L3403] and order [Print L3404] issued by Commissioner Smith on 18 May 1994

Public Sector, Professional, Scientific Research, Technical, Communications, Aviation and Broadcasting Union (C No. 20950 of 1994)

PUBLIC SECTOR UNION (AUSTRALIAN BROADCASTING CORPORATION) (INTERIM) AWARD 1992 (ODN C No. 50174 of 1992) [Print K3367 [P0253]]

Various employees Commonwealth employment

PRESIDENT O'CONNOR VICE PRESIDENT ROSS DEPUTY PRESIDENT ACTON COMMISSIONER MERRIMAN COMMISSIONER HARRISON SYDNEY, 31 AUGUST 1994

Enterprise bargaining - negotiations - good faith - s.170QK Industrial Relations Act 1988 - protected action - appeal - order limiting or prohibiting industrial is not an order available under s.170QK - order amounted to a bans clause - Division 4 Part VIB provides negotiating parties entitlement to take industrial action - orders of type granted by Smith C may have effect of suspending right to take protected action in circumstances other than those provided by s.170PO - order under s.170QK limited to procedural aspects of negotiation process - Commission's role in facilitating agreements should not involve requiring concessions from negotiation party - good faith depends upon negotiations as a whole - leave to appeal granted - appeal upheld - order quashed.

DECISION

Introduction

This is an appeal by the Public Sector, Professional, Scientific, Research, Technical, Communications, Aviation and Broadcasting Union (the PSU) against a decision and order by Commissioner Smith on 18 May 1994 [Prints L3403 and L3404].

The matter before Commissioner Smith arose out of a dispute notification by the Australian Broadcasting Corporation (the ABC), dated 16 May 1994, alleging that certain members of the PSU were about to engage in industrial action in support of a claim for the introduction of new salary levels. On 6 May 1994 the PSU had, pursuant to s.170PD(2) of the Industrial Relations Act 1988 (the Act), initiated a bargaining period by the service of a notice on the ABC that it wished to negotiate an agreement under Division 2 of Part VIB of the Act. By letter dated 13 May 1994 the PSU gave notice of its intention to engage in industrial action. A 24 hour strike of the PSU members concerned took place from 10.00 a.m. on 17 May 1994.

2 DECISION - PUBLIC SECTOR UNION (AUSTRALIAN BROADCASTING CORPORATION) (INTERIM) AWARD 1992

At the hearing before Commissioner Smith on 17 May 1994 the ABC, pursuant to s.170QK, sought an order from the Commission which would have had the effect of prohibiting industrial action on the basis that the PSU had not participated in "good faith" negotiations. After reviewing the relevant statutory provisions Commissioner Smith determined that he had jurisdiction to make the order sought and proceeded to do so.

Paragraph 3 of the order made provides, inter alia:

". . . In addition, the PSU, its members and those eligible to be members, who fall within the application of this order, shall not engage in industrial action as defined in the operation of this order." [Print L3404]

It is this part of the order which is the subject of the appeal.

Grounds of Appeal

Mr. Pearce on behalf of the PSU advanced two substantive grounds of appeal:

1. The Commissioner exceeded the jurisdiction available, in that the order made, and in particular clause 3 of that order, constitutes a bans clause. Section 125 of the Act provides that the power to insert a bans clause in an award may only be exercised by a Presidential Member or a Full Bench;

2. In the event that clause 3 of the Commissioner's order is not construed as a bans clause, the Commissioner exceeded his jurisdiction by making an order that has the effect of an order under s.127 of the Act, an action that is prohibited by sub-section 170PM(2).

It was submitted that the relevant part of the order was not an order under s.170QK as it hindered the efforts of the parties to negotiate in good faith, failed to promote the efficient conduct of negotiations and would not facilitate the making of an agreement.

The ACTU and the Commonwealth intervened and essentially supported the statutory interpretation submissions of the appellant.

In reply Ms. McKenzie, counsel for the ABC, submitted, inter alia:

1. The order which is the subject of the appeal is no longer operative, having been set aside on 30 May 1994. The outcome of the appeal, in so far as the appellant is concerned, is academic only and leave should be refused.

2. The order subject to appeal was made under s.170QK and was a valid and proper exercise of the Commissioner's powers under Part VIB of the Act. Section 170QK authorises the Commission to make orders for the purpose of ensuring that the parties negotiating an agreement under Part VIB do so in good faith, or promoting the efficient conduct of negotiations for such an agreement, or otherwise facilitating the making of such an agreement.

DECISION - PUBLIC SECTOR UNION (AUSTRALIAN BROADCASTING CORPORATION) 3 (INTERIM) AWARD 1992

The orders permitted under s.170QK expressly include an order to a party to take or refrain from taking specified action: (s.170QK(2)(c)). The express powers of s.170QK take precedence over any limitation on the Commission's powers which would apply under Part VI.

3. Section 125 of the Act does not prohibit the making of an order under s.170QK by a single Commissioner restraining a party from taking industrial action where the order is for a purpose referred to in s.170QK. Such an order is not a bans clause within the meaning of the Act. Section 125 of the Act has no application in these proceedings.

4. Section 170PM also has no application to these proceedings because:

(a) s.127 has no application where the order is made under s.170QK;

(b) the order is not a bans clause; and

(c) the action to which clause 3 of the Order was directed was not "protected action" within the meaning of the Act.

5. The right conferred on negotiating parties under s.170PG is subject to the satisfying of the requirements of s.170PH, s.170PI, s.170PJ, s.170PK and s.170PL. The right of a union and its members to take industrial action during a bargaining period is not unconditional and is subject to reasonable restrictions including, importantly, the requirements of s.170PI(1) that the union has, before taking industrial action, tried to reach agreement with the employer and has complied with any orders made under s.170QK of the Act. It was open to Commissioner Smith, on the evidence and submissions before him, to form the view that the PSU had not attempted to negotiate in good faith with the ABC before commencing the industrial action, and that the making of an order in the terms of the order made would facilitate the reaching of agreement by the parties.

Leave to Appeal

Pursuant to subsection 45(2) we have decided that the matter subject to the appeal is of such importance that, in the public interest, leave should be granted.

We have granted leave for two reasons.

First, in the course of his decision Commissioner Smith appeared to state, as a general proposition, that "resort to coercion is at odds with an obligation to bargain in good faith." The role and powers of members of the Bargaining Division in circumstances where a party is undertaking protected action is of general importance and this matter raises these issues for determination.

Second, notwithstanding that the order is no longer operative it may be that it adversely affects the appellant's rights in so far as any industrial action which may have taken place during the currency of the order.

4 DECISION - PUBLIC SECTOR UNION (AUSTRALIAN BROADCASTING CORPORATION) (INTERIM) AWARD 1992

Scheme of Part VIB

The central issue in this case is the role and powers of members of the Bargaining Division in circumstances where a party is engaging in protected action.

The determination of the role and power of the Commission in such circumstances must be viewed in the context of the Act as a whole, and in particular in the context of Part VIB. It is apparent that as a result of the amendments introduced by the Industrial Relations Reform Act 1993 (the Reform Act) the Act now places greater responsibility on the parties to directly manage their industrial relations. [ss 3(d), 113(4A), 170UA].

Part VIB of the Act - Promoting Bargaining and Facilitating Agreements - contains six divisions:

1. Objects and Interpretation [ss 170LA - 170LC] 2. Certified Agreements [ss 170MA - 170MN] 3. Enterprise Flexibility Agreements [ss 170NA - 170NP] 4. Immunity from civil liability [ss 170PA - 170PP] 5. Commissions Role in Facilitating Agreements under Part VIA Subdivision A: Bargaining Division of the Commission [ss 170QA - 170QG] Subdivision B: Conciliation in relation to proposed agreements [ss 170QH - 170QK] 6. Miscellaneous [ss 170RA - 170RC]

The role of the Bargaining Division (established pursuant to s.170QA) is to perform and exercise the Commission's functions and powers under Part VIB including the exercise of such functions and powers in circumstances where a bargaining period has been initiated and the initiating party is engaging in industrial action. (s.170QB)

The members of the Bargaining Division are required as far as practicable to perform their functions under Part VIB in a way which furthers the objects of the Act and in particular the objects of Part VIB (s.170LA(2)). Subsection 170LA(1) sets out the two objects of Part VIB.

The first is to facilitate the making and certifying of agreements under Division 2 and the making and approval of the implementation of enterprise flexibility agreements under Division 3.

The second is to encourage the use of agreements, particularly at the workplace or enterprise level.

Also subsection 3(c) states that it is an object of the Act to provide a framework of rights and responsibilities for the parties involved in industrial relations which encourages fair and effective bargaining, and ensures those parties abide by agreements between them.

Industrial action during the bargaining period

In defined circumstances Division 4 of Part VIB provides specific legislative protection for the right to strike, subject to limitations compatible with the existence of the right. [ss 170PA(2)] The object of the Division is to give effect, in particular situations, to Australia's international obligation to provide for a right to strike. [s.170PA]

DECISION - PUBLIC SECTOR UNION (AUSTRALIAN BROADCASTING CORPORATION) 5 (INTERIM) AWARD 1992

The right to strike in pursuit of a certified agreement is subject to certain procedural preconditions, as well as to an obligation on the initiating party to have tried to reach agreement before industrial action is taken.

Section 170PG provides that during a bargaining period a negotiating party (as defined in s.170PD(3)) is entitled to take industrial action for the purpose of supporting or advancing claims that are the subject of the relevant industrial dispute. Such industrial action is deemed to be protected action provided that certain procedural preconditions have been met and the initiating party has tried to reach an agreement before industrial action is taken.

Section 170PM provides that neither an order made by the Commission under s.127 nor a bans clause applies to protected action. Further subsection 170PM(3) provides that an action (other than an action for defamation) does not lie under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve:

. personal injury;

. willful or reckless destruction of, or damage to, property; or

. the unlawful taking, keeping or use of property.

The preconditions applicable to protected action are set out below:

(i) Application of the Division: s.170PC - provides that Division 4 applies if:

. the Commission has found that an industrial dispute exists;

. the dispute involves a particular employer and a particular organisation or organisations of employees;

. wages and conditions of employment of employees who:

are employed by the employer; and

are members of the organisation or one of the organisations;

are regulated by one or more awards (as defined in s.170MC(6)) that bind the employer; and

. all or some of those employees are employed by the employer in a single business or part of a single business, or at a single place of work.

(ii) Initiation of a bargaining period: s.170PD - provides that if an employer or an organisation of employees wants to negotiate a Division 2 certified agreement in relation to employees engaged in a single business (or part of single business or a single place of work) then the employer or the organisation of employees (the initiating party) may initiate a bargaining period for negotiating

6 DECISION - PUBLIC SECTOR UNION (AUSTRALIAN BROADCASTING CORPORATION) (INTERIM) AWARD 1992

the proposed agreement. The bargaining period is initiated by the initiating party giving written notice to the other proposed party to the agreement, and to the Commission, stating that it intends to try or continue to try to:

. reach an agreement under Division 2 with that party in settlement of the industrial dispute; and

. to have any agreement so reached certified under Division 2.

Subsection 170PD(3) defines the initiating party and the other proposed party or other proposed parties as the "negotiating parties".

(iii) Particulars to accompany notice: s.170PE - provides that the written notice initiating the bargaining period is to be accompanied by the following particulars:

. the single business, part of the single business or the single place of work to be covered by the proposed agreement;

. the proposed party or parties to the agreement;

. the matters that the initiating party proposes should be dealt with by the agreement;

. the industrial dispute to which the proposed agreement relates

. the proposed period of the agreement.

(iv) When the bargaining period begins: s.170PF - provides that the bargaining period begins at the end of 7 days after the day on which the written notice initiating the bargaining period was given. If the notice was given to different persons on different days then the bargaining period begins at the end of 7 days after the later or latest of those days.

(v) 72 hours' notice of action: s.170PH - provides that any industrial action taken by an employer or an organisation of employees during a bargaining period is not protected action unless at least 72 hours written notice of the intended action has been given to the other negotiating party. A written notice of the intention to take such action may be given before the start of the bargaining period.

(vi) Negotiation must proceed industrial action: s.170PI - provides that industrial action is not protected action unless before engaging in such action the employer or organisation of employees has tried to reach agreement with the other party and complied with any applicable order made by the Commission under s.170QK.

DECISION - PUBLIC SECTOR UNION (AUSTRALIAN BROADCASTING CORPORATION) 7 (INTERIM) AWARD 1992

(vii) Industrial action must be duly authorised: s.170PK - provides that industrial action by members of an organisation of employees is not protected action unless, before the action began, the industrial action has been duly authorised by a committee of management of the organisation or by someone authorised by such committee and has been duly authorised under the organisation's rules. Written notice of the giving of such an authorisation is to be provided to the Registrar.

Provided that a party seeking an agreement under Division 2 acts in accordance with the above requirements, then s.170PM provides that party can take industrial action in support of its claims without attracting civil liability. This includes exemption from an order under s.127 and from a bans clause.

The Bargaining Division's role in such a case will depend on the particular circumstances.

Termination of a Bargaining Period

The Commission's power to suspend or terminate a bargaining period is set out in s.170PO. Section 170PO allows the Commission to take such action in three circumstances.

First, if a negotiating party that has been organising or taking industrial action to support or advance it's claims:

. is not genuinely trying to reach agreement; or

. has failed to comply with any Commission direction relating to negotiating in good faith.

Second, where industrial action is threatening:

. to endanger the life, personal safety, health, welfare of the population or part of it; or

. to cause significant damage to the Australian economy or an important part of it.

Third, where the bargaining period applies to part of a single business, or a single place of work in the business, and the initiating party is not complying with an award or order or direction of the Commission in relation to another part of the single business or another place of work in the business.

Industrial action may also lose it's protected status in circumstances where the Commission orders a secret ballot of the members of an organisation pursuant to s.135 and a majority of the relevant members do not support the action taken. [s.170PJ]

Decision Subject to Appeal

In the course of his decision Commissioner Smith concluded that pursuant to s.170QK a member of the Commission assigned to the Bargaining Division may make orders requiring parties to conduct themselves in a way which constitutes

8 DECISION - PUBLIC SECTOR UNION (AUSTRALIAN BROADCASTING CORPORATION) (INTERIM) AWARD 1992

bargaining in good faith and that "such orders may include a provision which prohibits industrial action" [at p.5 of the decision]. In particular the Commissioner stated:

"In my view, resort to coercion is at odds with an obligation to bargain in good faith [see APPM Case print K3158]. It would seem incongruous to permit orders to be made which are directed to promoting the efficient conduct of negotiations, with an aim of reaching agreement, if those negotiations will be hampered by industrial action. The existence of industrial action would be extremely counterproductive to any efficient conduct of the kind prescribed by section 170QK(3)" [Print L3403 at p.6].

The Commissioner went on to make an order pursuant to s.170QK which included a provision prohibiting resort to industrial action.

In the course of his decision Commissioner Smith had cause to consider whether or not an order directing the PSU and it's members not to engage in industrial action is a bans clause and as such within the province of a Presidential member or a Full Bench. He concluded that such an order was not a bans clause and accordingly was within his power to make.

Decision on Appeal

After consideration of the submissions made by the parties in these proceedings we have concluded that:

1. To the extent that Commissioner Smith was purporting to state a general rule that "resort to coercion is at odds with an obligation to bargain in good faith" he was in error;

2. An order limiting or prohibiting industrial action is not an order which may be made pursuant to s.170QK; and

3. The order made constitutes a "bans clause" within the meaning of s.4(1) and was beyond the jurisdiction of the Commissioner (s.125).

Reasons

The extent of the general power provided in s.170QK is to be determined by examining the provision in the context of the Act as a whole. Such an approach is consistent with general principles of statutory interpretation: Metropolitan Gas Co. v. Federated Gas Employees Industrial Union (1924) 35 CLR 449 per Isaacs and Rich JJ at 455; K & S Lake City Freighters Pty Ltd v. Gordon G Gotch Ltd (1985) 60 ALR 509 at 514 per Mason J.

Section 15AA of the Acts Interpretation Act (Cth) 1901 States:

"In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."

The application of such an approach may require the apparent scope of a section to be limited by other sections in the Act. In this regard it has been held that different sections in an Act must be read so that they will fit with one another and that this may require a section to be read more narrowly than it would if considered on it's own: Ross v. R. (1979) 25 ALR 137 at 145.

DECISION - PUBLIC SECTOR UNION (AUSTRALIAN BROADCASTING CORPORATION) 9 (INTERIM) AWARD 1992

When construed in the context of the Act as a whole, and in particular in the context of Part VIB, it is apparent that s.170QK does not provide a jurisdictional basis for an order prohibiting or limiting industrial action during a bargaining period. Such a conclusion follows as the very purpose of Division 4 of Part VIB is to provide negotiating parties with an entitlement to take industrial action.

The stated object of Division 4 is to give effect, in particular situations, to Australia's international obligation to provide a right to strike [s.170PA]. In this regard we have noted that where an ambiguity arises in an Act purporting to give effect to an international convention courts have adopted an interpretation which best facilitates the operation of the convention: Salomon v. Commissioner's of Customs and Exise (1967) 2 QB 116; Post Office v. Estuary Radio Ltd (1967) 1 WLR 1396.

Section 170PG specifically provides that during a bargaining period a negotiating party is entitled to take industrial action for the purpose of supporting or advancing claims that are the subject of the relevant industrial dispute.

Section 170PM provides certain immunities in respect of industrial action which is protected action. In the context of this case there was insufficient material to support a conclusion that the industrial action taken by the PSU and it's members was not protected action.

The Commission's power to suspend or terminate a bargaining period is specifically set out in s.170PO. Orders of the type made by Commissioner Smith may have the effect of suspending the right to take protected action in a bargaining period in circumstances other than those specifically provided in s.170PO. In effect the order seeks to do indirectly that which is directly prohibited: R v. Commonwealth Court of Conciliation and Arbitration Ex parte BHP (1909) 8 CLR 419; Clyde Engineering Company Limited v. Cowburn (1926) 37 CLR 466; Australian Building Construction Employees and Builders Labourers Federation v. Master Builders Association of NSW (1986) 69 ALR 515; Container Terminals Australia Ltd v. Xeras (1991) 23 NSWLR 214 at 217 per Handley J.; Family Court of Australia v. PSU re: Counsellors (1993) 6 CAR 202.

In our view the primary role of the Bargaining Division is to assist parties to reach agreement. In this regard members of the Bargaining Division are, pursuant to s.170QK(2), expressly given powers to make orders under paragraph 111(1)(t) for the purpose of:

. ensuring that the parties negotiating an agreement under Part VIB do so in good faith;

. promoting the efficient conduct of negotiations for such an agreement; or

. otherwise facilitating the making of such an agreement.

Subsection 170QK(2) also provides that, for such a purpose, the Commission may "order a party to take, or refrain from taking, specified action". Whilst on it's face this subsection is suggestive of a wide general power it must be read in the context of the specified matters found in ss 170QK(2) and (3).

10 DECISION - PUBLIC SECTOR UNION (AUSTRALIAN BROADCASTING CORPORATION) (INTERIM) AWARD 1992

The Act does not define what constitutes bargaining in good faith. There is, however, guidance in paragraphs 170QK(3)(a) and (b) which set out factors to be considered by the Commission when deciding what orders, if any, to make,:

"(3) In deciding what orders (if any) to make, the Commission:

(a) must consider the conduct of each of the parties to the negotiations, in particular, whether the party concerned has:

(i) agreed to meet at reasonable times proposed by another party; or

(ii) attended meetings that the party had agreed to attend; or

(iii) complied with negotiating procedures agreed to by the parties; or

(iv) capriciously added or withdrawn items for negotiation; or

(v) disclosed relevant information as appropriate for the purposes of the negotiations; or

(vi) refused or failed to negotiate with one or more of the parties; or

(vii) in or in connection with the negotiations, contravened section 170RB by refusing or failing to negotiate with a person who is entitled under that section to represent an employee; and

(b) may consider:

(i) proposed conduct of any of the parties (including proposed conduct of a kind referred to in paragraph (a)); and

(ii) any other relevant matter."

The specific factors set out in paragraph 170QK(3)(a) can be broadly characterised as relating to the process of negotiation.

In circumstances where a party is engaging in protected action the Commission's role is to facilitate an agreement rather than adopt an interventionist approach. In this regard orders under s.170QK will generally be limited to the procedural aspects of the negotiation process, for example:

. setting a timetable for the negotiations;

. requiring the disclosure of relevant information as appropriate for the purposes of the negotiations; or

. directing an employer to negotiate with a person entitled under s.170RB to represent an employee of the employer.

DECISION - PUBLIC SECTOR UNION (AUSTRALIAN BROADCASTING CORPORATION) 11 (INTERIM) AWARD 1992

The extent to which the Commission may "order a party to take, or refrain from taking, specified action" pursuant to s.170QK(2) is limited to the type of actions described in s.170QK(3), that is orders relating to the procedural aspects of the negotiating process.

Further we have concluded that the order made constitutes a bans clause and hence was beyond the jurisdiction of the Commissioner.

The question of whether a particular clause is properly characterised as a "bans clause" turns on the issue of whether it's terms prohibits engaging in conduct that would hinder the performance of work in accordance with the award. The test is to determine what is the legal effect of the clause, the intention or purpose in inserting the clause is of limited assistance in such a determination: Re: Australian Postal Commission (Postal Workers) Award 1985 (1989) 28 IR 40. [the APTU Case]

The Commissioner characterised the order made as one "which prohibits resort to industrial action during the currency of the order". [Print L3403 at p.7]

The terms of the order are clearly within the definition of a bans clause found in s.4 of the Act. The order made is an ad hoc order and is not an order which constitutes or forms part of a procedure specified in an Award for preventing or settling disputes between parties. Accordingly, the order is not authorised by amendments to the Act in 1992 and does not fit within the circumstances discussed in the APTU Case which the amendment was intended to correct.

The power to include, omit or vary a bans clause [as defined in s.4(1)] is subject to the limitations of s.125, namely, that it can only be exercised by a Presidential Member of Full Bench.

In circumstances where a general and a specific power is conferred in respect of the same subject matter then the general power must be read down such that it is consistent with the terms of the specific power: Anthony Horderns & Son Limited v. Amalgamated Clothing and Allied Trades Union (1932) 47 CLR 1; Downey v. Transwaste (1991) 172 CLR 167; ACOA v. Public Service Commissioner (NT) (1990) 32 IR 435 at 437; Olex Cables v. NUW (1990) 35 IR 368; FIMEE v. BWIU (1991) 11 CAR 397; Family Court of Australia v. PSU Counsellors (1993) 6 CAR 202.

In view of our general conclusion as to the limited role of the Commission in circumstances where a party is engaging in protected action we have not considered it necessary to address the question of whether or not the order made could have been permitted under s.127 as the Commissioner did not purport to make the order under this section.

We note that s.170PM in its terms does not prohibit a bans clause or an order under s.127 from being made at any time. However, it would be at odds with the intention of Part VIB, Division 4, for such orders to be made during a bargaining period in relation to industrial action which is protected action. The appropriate course would be for the Commission to suspend or terminate the bargaining period under s.170PO, if such a course was justified in the circumstances.

12 DECISION - PUBLIC SECTOR UNION (AUSTRALIAN BROADCASTING CORPORATION) (INTERIM) AWARD 1992

Conclusion

Where a party is engaging in protected action the Commission's role is to facilitate an agreement rather than adopt an interventionist approach. Accordingly orders under s.170QK will generally be limited to the procedural aspects of the negotiation process.

The Commission's limited role in these circumstances is a consequence of the statutory context in which s.170QK appears and the industrial relations system introduced by the Industrial Relations Reform Act 1993. Even if we had not been driven to the conclusions we have reached in this matter as a consequence of the proper construction of s.170QK in its statutory context we would nevertheless have reached the same conclusions based on the recent changes to the industrial relations system as set out in the Review of the Wage Fixing Principles August 1994 decision [Print L4700].

The priority in the new system is on the parties at the enterprise - employers, employees and their representatives - taking responsibility for their own industrial relations affairs and reaching agreements appropriate to their enterprise. This new priority requires a change in the way the parties and the Commission approach the prevention and settlement of industrial disputes.

Whilst the Commission's role is to facilitate an agreement this should not involve requiring that concessions be made by a negotiating party. Nor should the Commission intervene to end or suspend protected action other than in the circumstances prescribed in s.170PO. In issuing an order pursuant to s.170PO the Commission will require evidence of the factors relied upon to establish the basis for suspending or terminating the bargaining period. However the determination of whether or not a negotiating party is "negotiating in good faith" may depend on the conduct of the party when considered as a whole. For example if a party is only participating in negotiations in a formal sense but not bargaining as such then they may not be "negotiating in good faith". Negotiating in good faith would generally involve approaching negotiations with an open mind and a genuine desire to reach an agreement as opposed to simply adopting a rigid predetermined position and not demonstrating any preparedness to shift.

The approach we have adopted in relation to the Commission's role where a party is engaging in protected action will necessarily require a cultural shift in the way in which the parties and the Commission have traditionally approached the prevention and settlement of industrial disputes. Such a shift in approach is however a necessary consequence of placing greater responsibility on the parties at the enterprise level for managing their own industrial relations.

For the reasons given we have decided to uphold the appeal and quash paragraph 3 of the order made by Commissioner Smith on 18 May 1994 and set out in [Print L3404].

DECISION - PUBLIC SECTOR UNION (AUSTRALIAN BROADCASTING CORPORATION) 13 (INTERIM) AWARD 1992

Appearances:

J. Pearce of Counsel for Public Sector, Professional, Scientific Research, Tehcnical, Communications, Aviation and Broadcasting Union.

T. Pallas for the Australian Council of Trade Unions.

H. McKenzie with Mr Forsyth, C. Palmer and D. Smith for the Australian Broadcasting Corporation.

K. Heaney for the Minister for Industrial Relations on behalf of the Commonwealth.

Hearing details:

1994. Sydney: June 6, 8.

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