Bluescope Steel Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

REASONS FOR JUDGMENT 1 The applicant Bluescope Steel Limited (BSL) sought an interlocutory injunction to restrain industrial action threatened by the first respondent union (CEPU). The application was short served and came on for hearing on 6 January 2005. As the action the subject of the application was to commence the following day and as argument did not conclude until almost 7.00 pm, I announced a decision to refuse the application. I gave a brief outline of my reasons and told the parties I would later deliver amplified reasons. This I now do. 2 BSL operates a large steel mill near Hastings in Victoria. Among its employees are about sixty maintenance electricians, most of whom are members of the CEPU. It also employs maintenance workers in the metal trades who are member of the AMWU and production workers who are members of the AWU. Since about the middle of last year the metal trades maintenance workers have been employed by Silcar, an unincorporated joint venture between Siemens Ltd and Thiess Pty Limited, to which BSL has contracted maintenance work. 3 On 4 September 2002 an agreement was certified under Pt VIB of the Workplace Relations Act 1996 (the Act). The nominal expiry date of that agreement was 28 June 2004. The parties to the agreement are BSL, the AWU, the AMWU and the CEPU. 4 On 29 April 2004 the CEPU faxed to BSL a document headed "Notice of Initiation of Bargaining Period" (the initiating notice) under s 170MI(2) of the Act. As required by s 179MJ(c), the initiating notice included particulars of matters which the CEPU proposed should be dealt with by the proposed new agreement. There were thirty items, including such matters as wage increases and superannuation contributions, and also "17. No contracting out of work except by agreement with the Union. Employees and the Union are to be consulted if contracting is contemplated." 5 The initiating notice was also sent by post and was received by BSL in the mail on 3 May 2004. Initially the AWU and the CEPU advanced separate claims but at a negotiating meeting on 17 June 2004 the AWU, the CEPU and the AMWU jointly gave BSL a consolidated log of claims. The log consisted of forty-six items including "13. No contracting out of work except by agreement with the Union. Employees and the Union are to be consulted if contracting is contemplated. … 36. No outsourcing of any work being performed by any employee without the approval of the relevant Union and majority of employee's (sic) effected." 6 Shortly after the provision of the consolidated log of claims the AMWU reached agreement with Silcar. The agreement was certified under the Act and employees of BSL who were members of that union resigned their employment with BSL and accepted employment with Silcar. 7 Negotiations continued between BSL, the AWU and the CEPU. Commencing on 1 September 2004 the CEPU on numerous occasions took industrial action at BSL's plant by way of work stoppages. These commonly were of two hours but occasionally twelve hours or more with one stoppage of three days. There was also imposition of bans on the performance of isolation duties or other work by members of BSL and contractor staff and imposition of bans on equipment on which such work had been performed by such persons. 8 On each occasion the CEPU prior to the stoppage gave a notification under s 170MO(2)(b) of the Act, which required the union to give BSL "at least 3 working days' written notice of the intention to take the action". This is one of the requirements for industrial action to qualify as "protected action" within the meaning of s 170ML and thus to obtain the protection of s 170NC(2) from the prohibition against coercion in the making of an agreement contained in s 170NC(1). 9 The first of such notifications was contained in a document from the CEPU dated 26 August 2004 addressed to the Proper Officer, Bluescope Steel Limited at Hastings. The notification advised that industrial action would commence on Wednesday, 1 September 2004 at 7.00 am and would involve a stoppage of the performance of work between that time and 7.00 pm on 1 September and between 7.00 am and 7.00 pm on 6 September. The notification was received by BSL by fax on 26 August and by mail on 1 September. 10 There were in all 156 occasions on which the CPU notified BSL by fax that it intended to take industrial action. Action proceeded on forty of those occasions. Of the 803.5 hours industrial action notified 225 hours of action proceeded. 11 Sometimes the notification was also sent in the mail but on many occasions there was notification by fax only. BSL apparently did not complain to the CEPU about receiving otifications by fax. It has not suggested that it was disadvantaged in any way by this means of communication. 12 BSL commenced the present proceeding on 5 January 2005. At the date of the interlocutory injunction application hearing (6 January) the proposed industrial actions for which notification had been given were as follows: s 6 January 8.00 am to 7 January 7.00 am s 7 January 8.00 am to 8 January 7.00 am s 10 January 8.00 am to 11 January 7.00 am In each case the notification was a stoppage of the performance of work for all shift and day workers. 13 Notice has been sent by post in sufficient time for the proposed stoppage on 10 and 11 January. Therefore if, as BSL contends, notification by fax was not sufficient, that would only be relevant for the proposed stoppage on 7 and 8 January. 14 During last year BSL arranged a major maintenance shutdown at the plant. The shutdown had been planned for over twelve months and commenced on 28 November 2004. It was the largest shutdown in more than thirty years of the operation of the plant. Different parts of the plant were scheduled to be decommissioned on various dates in late November and early December. Originally the plan was to have the work completed for the plant to be operational by 17 December. The stoppages have caused delays. The continuation of the delays will result in lost revenue for BSL of approximately $3.3 million per day. For each day of lost production fixed costs not recovered amount to $283,000.