Wrong Way---Go Back

Section 127 of the Workplace Relations Act 1996 and all that

David Purvis

Mr President, distinguished guests and members of the H R. Nicholls Society, ladies and gentlemen.

Preliminary comments

The purpose of my paper today is to look at S. 127 of the Workplace Relations Act 1996. Section 127 is one of the new provisions in the Workplace Relations Act dealing with industrial action.

I should clarify at this point that this paper will not address in any detail Sections 127AA, 127A, 127B or 127C. These Sections deal ostensibly with rights of entry and unfair contracts with independent contractors - issues not germane to today's discussion and I think recently critiqued in a paper published by this Society.

One may be excused for thinking - "well what does that leave of S. 127 to talk about ?" In fact, from an employer perspective, it leaves us with arguably the most relevant and important issues arising under the Section - those dealing with industrial action and what principles may be relevant to its use in that context.

At this point, given my profession and as a necessary preliminary, may I preface my remarks with a disclaimer. The views expressed today are my own and not necessarily those of Freehill Hollingdale and Page, my employer, to whom I am grateful for providing additional material which I hope you will find illuminating.

Introduction

It is now ninety-three years since the Commonwealth Parliament enacted legislation for the regulation of relations between employers and employees and the dream envisaged by Henry Bournes Higgins in his `New Province for Law and Order', that "...there should be no more necessity for strikes and stoppages..." has failed to materialise.

During the intervening years industrial relations has become almost exclusively the domain of government sponsored tribunals, panels, wages boards and legislation on all manner of different subject-matter; hours of work, occupational health and safety, annual leave, long service leave, equal pay, superannuation and discrimination to name a few. One enduring feature of the industrial relations framework which has remained relatively constant, albeit varying in effect and degree, throughout this period has been the existence of sanctions for industrial action.

Whilst it is trite to say that every national industrial relations system is shaped by a set of fundamental values and assumptions, there is little doubt that in Australia those values and assumptions have traditionally dictated the existence of recognised boundaries beyond which industrial action was, and continues to be, illegal.

Certainly, there is little debate that those boundaries have waxed and waned over time. However, the fact remains that at any given point in Australia's history that fundamental line between legality and illegality has always existed whether or not it has been enforced.

Section 127 is the latest attempt by the Federal Government at re-drawing that line in the sand.

For those who are unaware of the content of Section 127, or at least unaccustomed to its use, the section confers powers on the Commission to give directions that industrial action which is happening, threatened, impending or probable stop or not occur.

Where such orders are forthcoming from the Commission, an employer may apply to the Industrial Division of the Federal Court for an injunction against a person or organisation found to have contravened such an order.

The section was a key reform in the Coalition's industrial relations reform package when the Workplace Relations Bill was enacted. Essentially, it promised a faster, more effective means of dealing with unprotected industrial action than was previously the case under the Industrial Relations Reform Act 1994.

Whilst I am sure there are many of you who would argue that Section 127 does not go far enough in reasserting managerial prerogative, it is nonetheless a stride in the right direction.

This is not to suggest that S. 127 is entirely satisfactory. Arguably, delay and cost remain matters of significant concern to employers facing the prospect of concerted industrial action. So much is clear from a paper prepared by the Metal Trades Industry Association on the changes it feels warranted to address what it sees as "...a serious imbalance in bargaining power between employers and unions in the context of enterprise bargaining under Part VIB..." of the new Act.

Nor is the content of the MTIA's paper surprising when one considers it was written in the wake of the Email dispute - a dispute which continued for around 12 weeks and which resulted in the Commission refusing the company's application for termination of a bargaining period, a decision which prevented the company obtaining orders under S. 127 of the Act, and hence being able to proceed with an application in the Federal Court for an injunction.

I have not been able to discover what, if any, response the MTIA has got from the Minister as a consequence of its paper, suffice to say that at present there appear to be no changes mooted for the Section in the foreseeable future.

In his paper - Compliance with Dispute Settlement Orders in Australia1 written on the eve of the final parliamentary debate on the Howard Government's Workplace Relations. Bill, Graeme Watson commented:

"as will be obvious to any Australian industrial relations practitioner, enforcement of dispute settlement orders has had a chequered history and generates controversy to the present day. While certain means are available to enforce outcomes and adherence to the norms of the system these are either observed in the breach or resorted to in very exceptional circumstances."2

In a separate paper to an IBC Conference in July 1997 Graeme pointed out that in the more recent past the system has been characterised by

"...complicated procedures which have made resort to binding dispute settlement orders the exception rather than the rule... In practice, the situation represented a serious imbalance which has undermined the standing of the Australian system and its institutions. The imbalance arises because awards imposing obligations on employers are fully enforceable through the courts and subject to penalties in the case of breach. Commission recommendations, directions and orders requiring cessation of industrial action [on the other hand], were commonly ignored by unions and their members..."3

As a legislative scheme, the Workplace Relations Act 1996 seeks to remedy this imbalance. Section 127 is an important component of that scheme.

From a business perspective it is difficult to envisage a section in any piece of industrial relations legislation since the passage of the Conciliation and Arbitration Act 1904 which upon taking operational effect promised so much.

Whether or not it lives up to such expectations is as yet an open question given the relatively limited period of its operation. Whilst the experiences of the first 8 months enable some analysis at least of its effect, I have to say that the signs are not good.

As will become clearer during the course of this session, the recent interpretation given Section 127 by the Commission in its test case decision of 20 June 1997 in Coal and Allied Operations Pty Ltd and Automotive ,Food, Metals, Engineering, Printing and Kindred Industries Union (AFMEPKIU) and Others4 suggests the Section has been applied somewhat differently than perhaps may have been first envisaged - by a Commission with its own particular view of how industrial relations in Australia ought be managed.

In making this comment I am conscious of this Society's publicly stated position on the continued existence, or rather non-existence, of the Commission as the major forum for dispute resolution in the workplace. Arguably, the test case decision in the Coal and Allied matter adds grist to the mill in this debate.

But I hasten to add that for those of you intent on this course, at least as an interim measure, this Society should not close its mind to the potential benefits of targeted incremental legislative reform. This, I believe, is particularly important given the current make-up of the Senate.

To recap - the main objective today is to provide you with an insight into the operation of the Section under consideration, how it was envisaged as working in practice; how it has been interpreted by the Commission; in what situations it might be used by employers facing industrial action and what principles are pertinent to its operation.

The operation of Section 127

As I have indicated, Section 127 of the Workplace Relations Act 1997 has as its primary objective the prevention of industrial action, either happening, threatened, impending or probable [S. 127].

It was introduced in recognition of the fact that traditional compliance provisions in the Industrial Relations Act 1988 were ineffective in achieving the right balance between industrial action given special protection by legislation ("protected action") and that which remained fundamentally "unprotected", and therefore illegal.

As the Minister for Industrial Relations made clear in his second reading speech introducing The Workplace Relations and Other Legislation Amendment Act 1996 (The WROLA Act):

"consistent with the generally accepted principles of collective bargaining, industrial action will be permitted in certain circumstances ... However, there will be effective legal remedies available to those who suffer harm from illegitimate industrial action...

Industrial action other than for genuine bargaining for agreements is not compatible with the norms of the system and will not be protected."

If one takes as a starting point the Section itself, it is readily apparent that the procedure established by S. 127 was intended to be much more direct and penalties more accessible than was the case under pre-existing provisions in the Industrial Relations Act 1988.

  • Its stipulation that any member of the Commission may exercise the power to direct that industrial action which is happening stop, and that industrial action threatened, impending or probable not occur;

  • the requirement that the Commission must make such an order as "quickly as practicable" [S. 127(3)];

  • the fact that compliance with such an order is mandatory;

  • that breach will give rise to an immediate right to make application to the Federal Court for an injunction; and

  • the fact that the Section enables orders to issue both in respect of industrial action occurring and action contemplated in the future.

All of these factors confirm a Section with an entirely different modus operandi than for example the bans clause procedure contained in the former Industrial Relations Act 1988.

Crucial to the operation of the Section is the discretion conferred on the Commission to order that industrial action stop or not occur. I refer in detail to the discretion a little later, suffice to say that the power conferred by S. 127 on the Commission is exerciseable in three situations:

    1. In relation to an industrial dispute;

    2. in relation to the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB of the Act (in respect of a certified agreement); or

      3. in relation to work regulated by an award or certified agreement [S. 127(1)]

Where an order issues from the Commission and industrial action continues, the Court may issue an injunction if satisfied that the person or organisation the subject of the Commission's order:

    (a) has engaged in conduct that constitutes a contravention of the order; or

    (b) is proposing to engage in conduct that would constitute such a contravention.

The scheme of the Act

S. 127 is an important part of the new regulatory scheme established by the Act. As such, it cannot be viewed in isolation.

The Act distinguishes clearly between industrial action which is "protected", that which is "unprotected" and that which is unlawful. The circumstances in which "protected" industrial action may be taken are strictly prescribed.

Primarily, "protected" industrial action arises for the purposes of negotiating a certified agreement. Effectively, S. 170ML identifies certain action to which the provisions of S. 170MT are to apply. Essentially, S. 170MT confers legal immunity on industrial action carried out for the purpose of supporting or advancing claims made in respect of the proposed agreement, or where employees subject to the proposed agreement are responding to a lock-out by the employer.

Protected action can only be taken during the currency of a notified bargaining period. A successful application under S. 170MW for suspension or termination of the bargaining period will remove such protection. However, once a certified agreement is reached, S. 170NC makes any industrial action taken in pursuit of claims made in respect of the agreement unlawful and subject to an order under S. 127.

In the context of enterprise bargaining, the Act therefore contemplates certain action as immune from the operation of such an order. The availability of legal remedies for those suffering harm from industrial action is restricted to that class of action demonstrably illegitimate in nature and taken in breach of such an order.

It should be remembered that Section 127 is but one element in the regulatory scheme provided by the Act; other elements include:

  • the availability of a S. 166A certificate as a prelude to an application for an injunction to restrain industrial action amounting to a tort;

  • the possibility of injunctive proceedings for Contravention of S. 17OMN which prohibits industrial action during the currency of a certified agreement;

  • the availability of penalties by reason of S. 17OVV for industrial action taken by a party to an AWA before its nominal expiry date [S. 17OVU]

  • the fact that the Act makes it unlawful:

    • for an employer to pay strike pay;
    • for a union to take industrial action to pursue strike pay;
    • for an employee to accept strike pay [SS. 187AA and 187AB];

Objects of the Workplace Relations Act

In dealing with applications under S. 127 the Commission is constrained to act in accordance with the objects of the Act.

Section 127 falls in Division 3 of Part VI of the Act. Section 88b(i) specifies that:

The Commission must perform its functions under this part in a way that furthers the objects of the act and, in particular, the objects of this Part.

The principal object outlined in S. 3 of the Act is to:

provide a frame work for co-operative workplace relations which promotes the economic prosperity and welfare of the people of Australia...

Section 3(d) illustrates how this is to be achieved:

    (d) providing the means:

      (i) for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or enterprise level, upon a foundation of minimum standards...

And

    (e) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them...

The Act does not envisage its objects being met by industrial action taken outside or in contravention of provisions dealing with enterprise bargaining.

A further object to be taken into account by the Commission is provided in Section 3(h) of the Act. Section 3(h) enables:

    ...the Commission to prevent and settle industrial disputes as far as possible by conciliation and, where appropriate and within specified time limits, by arbitration;

The June 20 Principles Decision -
Coal & Allied Operations v AFMEPKIU

In exercising its discretion under S. 127 of the Act, and in accordance with the above objects, the Commission in its 20 June 1997 test case decision determined a range of principles as relevant to the operation of the Section.

For any of you contemplating using the Section, it would be as well to revisit these prior to making any application before the Commission.

The test case itself concerned an application for orders under S. 127 by Coal & Allied Operations Pty Ltd (a subsidiary of Rio Tinto, CRA) in respect of industrial action occurring at its Hunter Valley No. 1 mine site. Members of both the AFMEPKIU and CFMEU were involved.

Initially heard by Commissioner Leary, the matter was shortly thereafter referred by the President of the Commission to a Full Bench comprising Justice Munro, Deputy President Harrison and Commissioner Leary.

On 21 April 1997 the Full Bench made the Hunter Valley No. 1 mine industrial action order. That order was made on an interim basis and directed all industrial action cease. Its operation was extended on 14 May 1997 until such time as the company's application was determined by that Full Bench.

Proceedings before the Full Bench attracted the intervention of the Commonwealth, the Australian Chamber Of Commerce and Industry (ACCI) and the Australian Council Of Trade Unions (ACTU).

Before looking at the Commission's decision, it is worthwhile taking a moment to digest some of the history leading up to the company's application.

The following is a summary of some of the salient facts provided by Graeme Watson, who has handled the company's legal/IR strategy for some months now.

The Hunter Valley No. 1 mine is one of the Hunter Valley's largest and premier coal deposits. Even before the current dispute, industrial conflict at the site had been endemic throughout the 1990's. So much so that the Coal Industry Tribunal had described the behaviour of the Federated Engine Drivers & Firemens Association (FEDFA) at Hunter Valley as amongst the worst in the coal industry.

The conflict involved challenge to the authority of everyone other than the union. The CFMEU opposed and took industrial action against management initiatives and ignored Commission decisions with impunity. Conflict with CRA was deliberate and the CFMEU made no secret of its desire to have CRA sell its coal industry interests. Further, the disputes procedures in the award were consistently ignored whenever the unions wished to take industrial action.

In 1996, fourteen 24-hour stoppages occurred over issues including:

  • protesting a decision to terminate the employment of an employee;
  • protesting the Commission's decision on the dismissal matter in favour of the company;
  • protesting proposed industrial relations legislative changes;
  • a 48 hour stoppage for refusal by the company to allow 10% of its employees paid leave to attend the Canberra protest rally in August; and
  • refusal by the company to ban a contractor who had worked during a strike over proposed workers' compensation reforms.

A further stoppage in early 1997 over the content of a code of conduct issued by the company was the immediate precursor to current proceedings, which was filed on 10 January this year, soon after the commencement of the Workplace Relations Act 1996.

Despite the Commission's interim order of 14 May 1997 five further stoppages occurred in breach of this order. Whilst the company did not seek to injunct this conduct, it was used to support its application for final orders. Indeed, the Commission was highly critical of these stoppages.

From a purely legal perspective, a whole range of issues were examined by the Full Bench. Time prevents a detailed examination of them, suffice to say they included consideration of:

  • The nature of the discretion conferred on the Commission by S. 127;
  • provisions of the Workplace Relations Act most relevant to the operation of the Commission's discretion;
  • the onus of proof on parties in such cases;
  • the effect of an order under S. 127;
  • the constitutional basis of the Commission's power contained in the Section;
  • the definition of 'industrial action' for the purposes of S. 127 orders; and
  • the operational scope of S. 127 given the immunity conferred on "protected action" by S. 170MT and 170ML.

In relation to the more important of these, the Commission came to the following conclusions:

    (1) firstly, a direction under S. 127 is not expressed by the Act to be automatic upon jurisdiction being established. Its exercise is to be "... guided by the objects of the Act and an understanding of the relationship of the power and the effect of its exercise to the scheme of the Act." The implication being that the discretion was 'at large' enabling the Commission to take into account anything it perceived as relevant to its exercise, and that orders will not as a matter of course automatically flow.

    (2) secondly, a dual onus of proof exists on applicants requiring they satisfy the Commission that:

      (i) the jurisdictional pre-requisites to the exercise of the discretion are present (that grounds in S. 127(1)(a), (b) & (c) satisfied); and
      (ii) that at least on a prima facie basis adequate (factual) grounds exist for the Commission to direct that industrial action stop or not occur.

[You might note that the Commission left unresolved the question of whether the respondent bore any onus to demonstrate why an order should not issue against it and whether compelling reasons need be established by the respondent to persuade the Commission against making an order, as was argued by the Commonwealth.]

(3) thirdly, the scheme of the Act involves a dichotomy between "protected" and "unprotected" industrial action. However, the Act does not clarify the discretion granted by S. 127 with any guiding requirement to the effect that any or all industrial action that is not protected should be required to cease. [The Commission took the view that the norms of the system reflected in the Act are not so specific that all unprotected industrial action must be taken to be of itself unjustifiable.]

(4) for the Commission to exercise the discretion, it will need to be satisfied that the industrial action complained of is illegitimate, in the sense that it warrants a direction that the action cease or not occur.

(5) the exercise of the discretion is a serious step.

(6) there is nothing in the Act or the Minister's second reading speech from which it can be inferred that all unprotected industrial action is per se to be treated as illegitimate to a degree that warrants it automatically being the subject of a direction.

(7) the discretion under S. 127 is to be exercised in a fully contemporary context without reference to principles formulated for a significantly different legislative and jurisdictional context.

(8) as a general rule a S. 127 order should not be made in circumstances where industrial action is considered to be protected action, or plainly likely to be protected action. If the intervention of the Commission is sought in relation to industrial action that is likely to be considered to be protected action, the appropriate course is for an interested negotiating party to apply under S. 170MW for suspension or termination of the bargaining period.

In its decision the Full Bench made a number of observations about the potential overlap between action legitimately the subject of an order under S. 127 and action arguably "protected" by the Act.

The line of distinction may sometimes be difficult to draw in a particular case, but in such cases the Commission may well base any distinction upon the purpose and intended effect of the industrial action. Any such distinction will be a matter for evidence and for an inference from proved facts and the conduct of those engaging in the relevant action.

For these reasons, the Commission concluded that there was a class of probable industrial action likely to occur at the Hunter Valley No. 1 mine that was not protected action. The basis of the distinction drawn in this case was that certain action was not in truth directed to the advancement of claims made in respect of a proposed certified agreement subject to a bargaining period.

There followed the Commission's own formulation of the class of action that would not, in the circumstances of this case, be protected if engaged in by employees at the mine. It included industrial action taken against legitimate management decisions. It did not include:

  • other protected action;
  • action authorised by the employer;
  • health and safety action;
  • action directly, reasonably and proportionately related to an action or decision by the company that was not fair and reasonable, or that did not result in full compliance by the company with the dispute settlement procedure.

The decision is one of significance for parties contemplating using S. 127 of the Act. It provides guidance on how the Commission can be expected to characterise its discretion in such matters and how S. 127 orders emanating from the Commission may be framed in future to take account of the protected/unprotected distinction.

S. 127 submission by the Commonwealth - Coal and Allied

Having had the opportunity to read the submission put to the Full Bench by the Commonwealth, it is interesting to compare how the Commonwealth viewed the operation of the Section in practice.

For the purposes of this paper, four main differences are apparent. In the Commonwealth's submission:

    (1) The Commission is not charged with the responsibility for identifying and determining what action is protected and what action is not. The scheme of the Act does not compel the Commission to form a view either way as a jurisdictional fact. If this was the case, given the complexity of the task at times, it would be contrary to the intention of the legislation as being a rapid response to industrial action [see S. 127(3)]. The body charged with the determination of whether or not industrial action is protected is the Federal Court.

    (2) Secondly, it is upon the respondent that the onus of proof to demonstrate why an order should not issue against it rests, not the applicant.

    (3) Thirdly, where industrial action is occurring, or is threatened, impending or probable, S. 127 orders should usually issue in order to protect the integrity of the whole system. In other words, once an applicant establishes as a matter of fact that such action is happening, or is threatened, impending or probable, in relation to any of the matters set out in S. 127(1)(a), (b) or (c), the Commission should grant the order sought unless the persons against whom the order is sought are able to demonstrate compelling reasons for the Commission not to do so.

    (4) Finally, it is not a pre-requisite for grant of an order that conciliation either have taken place or have been exhausted. The emphasis on the conciliation of industrial disputes revealed in paragraph 89(a)(ii) and S. 100 of the Act provide, in fact, a powerful basis for the immediate making of a S. 127 order where industrial action is occurring, or is threatened, impending or probable.

    S. 127 orders are designed to fortify the conciliation process by acting to remove obstacles (such as industrial action) to effective conciliation.

A comparison of the above submission with the decision which was eventually forthcoming from the Commission illustrates clearly a marked divergence in opinion as to the intended operation of the Section.

Observations on Section 127

It is 8 months since the Act came into operation. As at 24 July 1997,125 Section 127 applications had been lodged with the Commission for determination. Approximately 18 of these have resulted in orders issuing from the Commission, three of which have subsequently been revoked.

In a majority of cases (83) a return to work has been obtained without the need for Commission orders. In at least 12 of these cases applications have been rejected whilst the bulk have been indefinitely adjourned or withdrawn. Injunctive proceedings have been taken in only two cases to date, both of which have resulted in injunctions compelling obedience to orders of the Court.

Currently, there are 11 applications in the system awaiting finalisation by the Commission.

As I indicated earlier, given its limited period of operation, it is difficult to offer any firm view on the effectiveness of the Section. Suffice to say that the small proportion of applications which have led to orders and the even smaller number of injunctions granted cannot be seen necessarily as determinative of the Section's effectiveness.

What is discernible, however, is that in a clear majority of cases a return to work with a minimum of illegal industrial behaviour has been achieved. This would suggest that many unions have, to date, been deterred by the prospect of S. 127 orders. Others of course, the CFMEU and the CEPU are good examples, have clearly signalled that they are prepared to contest matters more strongly.

A range of preliminary views from practitioners in the field suggest the following as issues of concern in relation to the operation of Section 127:

  • The period of time taken (from the date of initiation of industrial action) for receipt of orders from the Commission requiring either that industrial action cease or not occur, or the application be dismissed.

Whilst certainly a common complaint from employers, when analysed this phenomenon may be more a product of the combined effect of:

    (a) a somewhat equivocal approach by employers to use of the Section;
    (b) a predilection on the part of individual members of the Commission to deal with such applications as they deem appropriate; and
    (c) the nature of the role adopted by the Commission in these matters. (arguably different from that envisaged by the Federal Government)

You might note in this respect that:

  • the Email case continued for 12 weeks;
  • that once a S. 127 application was lodged in this matter, it still took 17 days to be determined;
  • that even in the NSW freight rail application it took 9 days for a S. 127 order to issue.

Having said this, it may well be useful for some clarification from government of the role and time-frame for conciliation in such matters.

Other concerns include:

  • the lack of any mandatory provisions requiring the Commission to issue orders to stop unprotected industrial action;
  • the need to include as a matter for consideration by the Commission in the exercise of its discretion, whether or not the parties have acted in good faith;
  • difficulties encountered in respect of situations involving industrial action by one or more unions ("in concert") against one or more employers. Specifically, the very restrictive interpretation placed on S. 170MM by the Commission in situations such as those which arose in the Email proceedings. (the effect of which was to make S. 127 orders very difficult to obtain);
  • the fact that a case proceeding to the Federal Court will be required to be substantially reheard at considerable cost.

Principles in summary

The following are some of the more important principles (or issues) to remember when considering whether or not, in any given situation, an application under S. 127 might be appropriate:

  • When considering S. 127 one also needs to be aware of the other provisions in the Act which bear upon it.
  • S. 127 is part of a regulatory scheme set up by the Act.
    · All industrial action that is not protected will not necessarily be directed to cease by the Commission. Certain unprotected industrial action may not be of itself unjustified in the Commission's eyes.
  • Before the Commission will grant an order it will need to be satisfied that the industrial action to be made the subject of the order is illegitimate, in the sense warranting that it attract appropriately a direction from the Commission. This will be a matter for evidence.
  • The exercise of the discretion will be viewed by the Commission as a serious step, requiring both:
      1. A finding that the relevant industrial action is, or will be illegitimate; and

      2. A determination that a continuation or commencement of it should be made unlawful.

[An accurate factual history of industrial action evidenced by contemporaneous notes, video, signed statements, etc. taken at the time will be extremely useful in this regard.]

  • Principles relevant to the exercise of the discretion in S. 127 are different to those which were relevant to the former bans clause procedure.

  • As a general rule, an order under S. 127 will not be made in relation to industrial action that is considered to be protected action, or plainly likely to be protected action.

  • Perhaps, most importantly of all, S. 127 is capable of being used against illegal (or illegitimate) acts by employers in the same way it is used against the illegal/legitimate acts of unions and their members.

Conclusion

It is accepted that any legislative scheme dealing with enterprise bargaining must strike a balance between the competing interests of employers on one hand and employees on the other. However, just as the concept of protected action in negotiating agreements is a logical legislative development, so too legislation must recognise the need for practical means on behalf of employers for enforcing legal boundaries beyond which industrial action is not permitted.

Prior to the implementation of the Workplace Relations Act, procedures for dealing with industrial action were both cumbersome and ineffective. Whilst the Commission could make recommendations under S. 111(1)(t) of the former Industrial Relations Act 1988, such recommendations were often avoided. Nor was the bans clause procedure very useful in achieving compliance.

There is little doubt that Section 127 has strengthened the hand of the Commission in requiring obedience from unions intent on ignoring or disregarding orders to cease or desist from irresponsible industrial action. It does so by providing a process which increases the potential exposure of unions to legal sanction for such action.

Ultimately, however, the effectiveness of S. 127 in reversing Australia's international reputation as an industrial disputes Mecca rests with the Commission. The real question is whether the Commission will measure up to the challenge.


Footnotes

1 Watson, G., Compliance with Dispute Settlement Orders in Australia, published in Facing the Challenge in the Asia Pacific region: Contemporary Themes and Issues in Labour Law, Centre for Employment and Labour Relations Law, Occasional Monograph Series, No.5, 1997.

2 ibid, p. 117

3 Watson, G., Compliance and the Regulation of Industrial Action - an Employer's Prespective, Paper presented to the IBC Conference - The New Workplace Relations Act - Revolution, evolution or Status Quo?, July 1997.

4 20 June 1997, C No.30058/97, Print P2071



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