BHP Steel (AIS) Pty Limited v Australian Workers' Union, New South Wales

BHP Steel (AIS) Pty Limited v Australian Workers' Union, New South Wales - [2003] NSWIRComm 124 - NSWIRComm 2003 case summary — Zoe

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5 Schedule 2, which is referred to in paragraph 2 of the Notice of Motion, is in the following terms: SCHEDULE 2 The Industrial Relations Commission of New South Wales makes the following dispute orders under sections 136, 137 and 138 of the Industrial Relations Act 1996: 1. From the time these orders take effect as specified in Order 4: (a) In the event of a strike or other industrial action in any department of the Steel Works of BHP Steel (AIS) Pty Limited (the "Company") at Port Kembla, employees of the Company who are nominated by the Company as being required to perform work to ensure dispatch of product in order to ensure compliance with clause 9 of the BHP Steel Port Kembla Operations Agreement 2002 (EA 02/259) (the "Agreement") must cease and refrain from engaging in any strike or other industrial action. (b) The Company may nominate the employees it requires for the purposes of order 1(a) in respect of each and every shift during which such strike or other industrial action occurs. Where a nominated employee is or becomes unavailable for work due to any cause other than industrial action (eg illness) the Company may nominate a replacement employee for the purposes of order 1(a). 2. The Australian Workers' Union, New South Wales ("AWU"), Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch ("AMWU") and Electrical Trades Union of Australia, New South Wales Branch ("ETU") and their respective officials, employees and delegates must take all necessary steps to ensure that these orders are complied with, including but not limited to advising the members of the AWU, AMWU and ETU employed by the Company at the Port Kembla Steel Works of these orders by [insert date 3 days after the date of decision of the Commission]. 3. The Company and the AWU, AMWU and ETU, and their respective officials, employees, delegates and members shall further comply with the applicable procedures set out in the annexures A ,B and C to this order. 4. Subject to further order of the Commission, these orders will take effect on and from [insert date of decision of Commission] and shall remain in force until the termination of the Agreement.

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8 The clause which is the subject of dispute in this matter is cl9.4. It is in the following terms: 9.4 Meeting Urgent Customer Needs 9.4.1 To satisfy the requirements of the customers of the Companies, the parties are committed to ensuring that the urgent needs of customers are met throughout the period of any industrial dispute. 9.4.2 In recognising that the Companies' customers are a key foundation of the Companies' business, the parties commit to the principle that all disputes and issues will be resolved in accordance with the applicable dispute resolution procedures and without recourse to industrial action that would adversely impact on those customers. 9.4.3 In the unlikely event of industrial action occurring, the parties will, before such action commences, and on an ongoing basis as necessary during such action, hold discussions in relation to production or maintenance work that is necessary to enable genuinely urgent customer requirements to be met. So far as practicable, prior to the taking of industrial action and (on all occasions) progressively, as necessary, during such action the relevant union delegate(s) and the relevant Company representatives will meet and confer immediately and on an ongoing basis to manage the supply of product to avoid stocking out of customers. 9.4.4 The Company's customer service or logistics representative will identify product that is required to maintain a customer's business and is packed and waiting dispatch. 9.4.5 Where, in accordance with subclause 9.4.6 and 9.4.7, product is identified as requiring dispatch to avoid a stock out or potential stock out and that product or part of that product is packed and awaiting dispatch, it will be dispatched as required by the Company. 9.4.6. The Company will become aware, either through its dispatch management systems or by way of other direct communication with a customer that the customer is in need of urgent delivery of product to avoid a stock out. This will occur each and every day during a period of industrial action. 9.4.7. Where the Company becomes aware of a stock out or a potential stock out for a customer, then the company will provide to the relevant union delegate a written report containing the following particulars of the stock out or potential stock out: s the name of the customer

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s when the product is required. A copy of the written report will be faxed to the relevant union offices. 9.4.8 In the event that there is a residual amount of an order to be processed to enable dispatch of it to occur and there are special or urgent considerations applying to the order, these circumstances will be raised and discussed between the relevant company representative and the relevant employee representative with a view to reaching agreement. In the absence of agreement either party may seek the assistance of the Commission by notification under s130 of the Act. The parties agree that if the operation of this subclause creates substantially adverse consequences then any party may apply to the Commission after 13 November 2002 to recommend other arrangements in relation to residual amounts of orders and the parties will comply with the terms of such recommendation in lieu of the provisions of this sub-clause. 9.4.9 In the event that there is a breakdown of a crane, forklift, or other dispatch related equipment that would otherwise prevent the urgent dispatch of product provided for in this sub-clause then maintenance employees or contractors as appropriate will work to repair the equipment and facilitate the dispatch of product. 9.4.10 No employee or Union will direct or encourage any employee or contractor in an associated area to take action that may have the effect of circumventing the intent and operation of these arrangements. 9.4.11 In subclause 9.4: "relevant union delegate" means the delegate of the employees whose industrial action is preventing or hindering the normal dispatch of product. In the absence of that delegate the relevant union delegate shall be the employee who, in the ordinary course, would be regarded by the employees as acting in the place of the delegate. "relevant company representative" means the customer service officer nominated by the company for the purpose of the arrangements in this subclause. "Stock out" and "stocking out" mean a situation where the customer is unable, because of its lack of the Company product which the customer requires, to maintain its normal operations.

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