Sensis Pty Ltd v Members of the Full Bench of the Industrial Relations Commission

Sensis Pty Ltd, a wholly owned subsidiary of Telstra Corporation Limited, was the applicant in the case before the Industrial Relations Commission. The case involved a dispute over the negotiation process for a new enterprise agreement under the Workplace Relations Act 1996. Sensis argued that the Commission did not have the jurisdiction to direct that a union representative be present in all negotiations, meetings, or discussions regarding the proposed agreement. The Community and Public Sector Union (CPSU), which sought to have its representative present in all negotiations, appeared to resist Sensis’s case. The legal issues before the court were whether the Commission had the authority to make directions regarding the conduct of bargaining where it was suspected that one or more parties might not be bargaining in good faith, and whether any such directions were limited in any way. Additionally, the court had to determine whether the specific direction sought by CPSU could be granted within the Commission’s jurisdiction.

The court addressed these issues by first establishing that there is a duty to bargain in good faith under the Act. The court found that the Commission did have the authority to make directions as part of the conciliation process in cases where it was suspected that one or more parties might not be bargaining in good faith. The court concluded that these directions were not inherently limited and could be made within the Commission’s jurisdiction, provided they were reasonable and necessary to ensure fair bargaining. The court found that the direction sought by CPSU was reasonable and necessary under the circumstances of the case.

The court dismissed the proceeding and directed Sensis to invite the nominated representative of CPSU to be present in all negotiations, meetings, or discussions where the purpose was to explain or seek to reach agreement on the terms of the proposed agreement.