TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.70(1) appeal against an order

Automotive, Food, Metals, Engineering,
Printing & Kindred Industries Union
(T8573 of 1999)

and

Pasminco Australia Ltd, trading as Pasminco Hobart Smelter

Appeal - order by Commissioner Imlach in Matter T8548 of 1999 issued on 19 August 1999 - appeal withdrawn - file closed

REASONS FOR DECISION

On 20 August 1999 the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union lodged an appeal, pursuant to section 70(1) of the Industrial Relations Act 1984, against an order issued by Commissioner Imlach in Matter T8548 of 1999.

Matter T8548 of 1999 was an application lodged by the Australian Mines and Metals Association (Incorporated) on behalf of Pasminco Australia Ltd, trading as Pasminco Hobart Smelter, pursuant to section 29 of the Act. The application sought a hearing in respect of an industrial dispute with the Australian Workers' Union, Tasmania Branch, the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Tasmanian Branch) and the Construction, Forestry, Mining and Energy Union, Tasmanian Branch regarding the imposition of bans in support of enterprise bargaining claims.

The Commissioner's order, which he issued on 19 August 1999, was in the following terms:

"In accordance with the power vested in me under section 31(1) of the Industrial Relations Act 1984 in settlement of this dispute, I hereby order that the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and their members employed at the Pasminco Hobart Smelter, Risdon, lift the work bans they have implemented currently at that site."

When the appeal came before the Full Bench on 23 August 1999, Mr R Phillips, a legal practitioner who appeared by leave of the Commission, represented the appellant. Mr W J Fitzgerald appeared for the respondent employer, Pasminco Hobart Smelter. At the outset a question of the Commission's jurisdiction arose, i.e. whether the Notice of Appeal as lodged concerned an appealable matter in terms of section 70(1)(b) of the Act. After hearing the parties and taking time to consider the submissions, we made the following observations:

"... we have considered your submissions and we wish to inform the parties that we are satisfied that no right of appeal exists against an order of this commission made under section 31(1) unless it falls within the ambit of section 70(1)(b).

We consider, however, that section 70(1)(b) allows an appeal against an order relating to an industrial dispute in respect of a breach of a registered agreement. At this stage, we are unable to determine whether the order issued by Commissioner Imlach in matter T8548 was such an order.

So that we may be properly informed, we propose to hear further submissions on this aspect from the parties and because those submissions will, we think, inevitably go to the subject matter of the appeal, we intend, for the convenience of the bench and the parties, to hear the parties on whether or not the order relates to an industrial dispute in respect of a breach of a registered agreement and at the same time consider the grounds of appeal generally.

For the purpose of hearing those submissions, we will reconvene at 10.30 tomorrow morning. So we stand adjourned until 10.30 tomorrow."

When the hearing resumed on 24 August 1999, Mr G Cooper, representing the appellant, informed us that the parties had settled all the issues in dispute. Accordingly, he said, his organisation wished to withdraw the appeal. Mr Fitzgerald confirmed Mr Cooper's submissions.

In view of the above and pursuant to the provisions of section 21(2)(c) of the Act, the matter is discontinued and the file is closed.

F D Westwood
PRESIDENT

Appearances:
Mr R Phillips of Phillips Taglieri on 23.8.99 and Mr G Cooper on 24.8.99 for the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union
Mr W J Fitzgerald of the Australian Mines and Metals Association (Incorporated) with Mr I Dowler and Mr M Emmett on 23.8.99 and with Mr A Hill on 24.8.99 for Pasminco Australia Ltd, trading as Pasminco Hobart Smelter
Mr D Dilger of the Tasmanian Chamber of Commerce and Industry Limited intervening on 23.8.99

Date and place of hearing:
1999
August 23 and 24
Hobart