Case: Electrical Trades Union of Australia v Sims Products Ltd trading as Besco Batteries (1998) 42 IR 250
Outcome: applied
While His Honour's remarks were addressed to the terms of an industrial award and those bound by an award, they are just as applicable to the terms of a collective agreement which has come into operation per force of the Workplace Relations Act and to those bound by such an agreement. When the terms of a collective agreement come into operation per force of statute they become part of the law of the land and must be obeyed by all of those bound by the agreement; see by analogy, Electrical Trades Union of Australia v Sims Products Ltd trading as Besco Batteries (1992) 42 IR 250 at 253, per Gray J (" Sims Products case"). Clauses 22 and 24 of the Collective Agreement, like the other terms of that agreement, were not aspirational statements. 27 There is no doubt that the University and Professor Rickard were aware in a general sense of a need to consult with affected persons and their trade union representatives. What was ignored though was the staged process for which cl 22 of the Collective Agreement in particular provided, as described by Senior Deputy President Richards. This failure was acknowledged by the University and Professor Rickard at the earliest possible opportunity following the institution of the present proceedings. 28 In the Sims Products case Gray J was confronted with an application for the imposition of pecuniary penalties arising out of a breach of a consultation clause in respect of redundancies then found in the Metal Industry Award 1994 . In effect, the clause provided that, where an employer had made a definite decision that it no longer wished a particular job to be done by anyone in circumstances where this was not due to the ordinary and customary turn over of labour and that the decision may lead to termination of employment, the employer was obliged to hold discussions with directly affected employees and with their Union or Unions. The award provided that such discussions where to take place as soon as was practicable after the employer had made a definite decision of the kind described. There was a separate provision in the award for the notification of the Commonwealth Employment Service by the employer where such a definite decision had been made. In that case the employer made a definite decision of the kind contemplated in the award which decision did in fact lead to the termination of its employees at a particular plant. It held no discussions at all with those employees or the union prior to effecting the termination of the employees. Nor did the employer give any notice of the kind contemplated in the award to the Commonwealth Employment Service. 29 The breaches of the award in the Sims Products case were flagrant. In a sense, so too were the breaches in the present case but, as was submitted on behalf of the University and Professor Rickard, a distinguishing feature in the present case is that the University did not completely ignore a need for consultation. Rather, it conflated what was meant to be staged consultation process. 30 In his evidence on the penalty hearing, Professor Rickard stated that, even if the form of consultation for which the "literal terms" of the Collective Agreement had been undertaken, "the same eventual outcomes would have been achieved as were achieved in the process which was directed by me". Given the anticipated financial effect of the decline in enrolments, that may have been the case, but it is, with respect, nothing to the point in terms of mitigation in respect of the particular Collective Agreement breaches alleged by the Union.