BlueScope Steel (AIS) Pty Limited v. Australian Workers' Union [2005] NSWIRComm 1129

Industrial Relations Commission (NSW)|2005-08-08|Before: Grayson DP

CITATION: BlueScope Steel (AIS) Pty Limited v. Australian Workers' Union [2005] NSWIRComm 1129

APPLICANT BlueScope Steel (AIS) Pty Limited

PARTIES: RESPONDENT Australian Workers' Union

CATCHWORDS: steel works - bulk handling operations - interlocutory decision - whether an enterprise award should be made over objections by party - industrial dispute - public interest considerations

LEGISLATION CITED: Industrial Relations Act 1996

Butchering (Wholesale) Award Case (1911) AR 245 Hammersley Iron Case (1982) WAIG 2418 CASES CITED: 2004 State Wage Case (2004) 132 IR 190 Sugar Manufacturers Case (1926) AR 113

APPLICANT Jack de Flamingh Blake Dawson Waldron LEGAL REPRESENTATIVES:

RESPONDENT Andy Gillespie Australian Workers' Union

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

BlueScope Steel (AIS) Pty Limited and the Australian Workers' Union

Dispute notification under S.130 of the Industrial Relations Act, 1996 re application for a new enterprise award

1 This interlocutory decision concerns operators in the bulk handling department of BlueScope Steel (AIS) Pty Limited. The matter came before me initially through a notification lodged for and on behalf of BlueScope Steel under S.130 of the 1996 Industrial Relations Act. Currently before me is a deceptively straightforward issue - whether or not the industrial dispute should go forward to a State enterprise award for the operators. That issue is really far from straightforward, however. 2 The State enterprise award is proposed by BlueScope Steel but it is opposed by the Australian Workers' Union, representing the operators. At present the employees are covered by the Port Kembla Operations Enterprise Agreement (unregistered) which exceeded its nominal term on Friday, 6 August, 2004 and negotiations for a new enterprise agreement have been protracted and have reached something of an impasse. As I understand the position, there are essentially two issues still in dispute between the parties, viz:

(i) the amount of the bonus payment for the first year of the proposed new agreement; and

(ii) the calculation of a 4½% wage increase. The protracted and unsuccessful negotiations between the parties have been from the outset accompanied by a series of strikes and bans which prompted me to make dispute orders under S.137(1)(a) and later to revive them.

(a) The S.130 notification came initially before Grayson DP in proceedings on Friday, 10 December, 2004 and Tuesday, 14 December, 2004 when the campaign of industrial action commenced but it was reallocated to me in the absence of Grayson DP in the light of further industrial disruption. I set it down for a conference on Tuesday, 11 January, 2005 (in Sydney) and reconvened proceedings on Wednesday, 12 January, 2005 and Thursday, 13 January, 2005 (also in Sydney) when there was further industrial action by the employees.

(b) I found it necessary to issue the certificate of attempted conciliation required by S.135, lodge it in the prescribed manner and on Friday, 14 January, 2005 in proceedings (in Sydney) I issued dispute orders restraining the employees from further industrial action. The industrial action ceased and those dispute orders lapsed on Monday, 28 February, 2005.

(c) I had chaired a conference to conciliate the issues in dispute on Monday, 14 February, 2005 (in the Commission's premises at 90 Crown Street, Wollongong) but the matters in dispute remained unresolved between the parties. The proceedings were adjourned without resolution.

(d) On Wednesday, 2 March, 2005 I was informed that the employees had held a further unauthorised stop work meeting for over two hours on Wednesday, 2 March, 2005 and resolved, among other things, to perform limited tasks on a vessel then in service (the "Iron Kembla") when it was due to berth, allegedly imposed over safety concerns. BlueScope Steel requested that I reconvene the proceedings. I set the matter down for further mentions on Wednesday, 9 March, 2005, Tuesday, 15 March, 2005 and Tuesday, 29 March, 2005 (in Wollongong). The additional days arose because bad weather had delayed the vessel. I recommended that there be no further industrial action by the operators and the vessel did berth without problems.

(e) However, on Thursday, 7 April, 2005 the operators held a further unauthorised work stoppage without any prior notice being given to discuss the enterprise agreement negotiations. Staff employees were required to berth another vessel (the "Iron Chieftain") at that time and following the conclusion of the meeting, the operators commenced an indefinite strike, apparently in protest over the use of staff labour to unload the vessel. On a request made on behalf of BlueScope Steel, I again reconvened the proceedings for conference on Thursday, 7 April, 2005 (in Sydney).

(f) Whilst the employees had resumed work by that time (and certain undertakings were given that there would be no further industrial action), I was disappointed to receive a letter dated Saturday, 9 April, 2005 on behalf of BlueScope Steel informing me that the bulk handling operators again commenced a further strike on Friday, 8 April, 2005 and had imposed a ban on the "Pacific Triangle", a vessel currently in berth and which was carrying critical material urgently required for steelworks operations. BlueScope Steel requested an urgent re-listing of this matter. I reconvened the proceedings on Monday, 11 April, 2005 (in Wollongong) and found it necessary to revive my earlier dispute orders against the employees, extending them to Monday, 13 June, 2005.

(g) I attempted further conciliation on Tuesday, 10 May, 2005 (in Wollongong). The difficulty I have been confronted with in these proceedings was obtaining clarification of issues in dispute. The parties seemed to be working at cross-purposes with mutually exclusive positions being taken. I directed the parties to prepare documents to reflect their current positions in an effort to properly address the issues in dispute, adjourning the proceedings for a further mention on Monday, 30 May, 2005 (also in Wollongong). Although BlueScope Steel responded with a detailed document outlining its position, nothing had been received from the AWU and a chance to explore the fundamental differences between the parties went begging.

(h) Two days after my revived dispute orders lapsed, ie on Wednesday, 15 June, 2005 - with a depressing inevitability about it, I would say - a letter was forwarded to me to inform me that the operators in the bulk handling department had again ceased work. I reconvened the proceedings on Wednesday, 15 June, 2005. The employees resumed work.

(i) I stood the matter over generally but scheduled the matter for further mentions for programming purposes (in Wollongong) - Monday, 27 June, 2005, Monday, 4 July, 2005, Monday, 11 July, 2005 and Tuesday, 19 July, 2005. The matters in dispute came no closer to resolution, however.

(j) The matter was reconvened yet again before me on Wednesday, 3 August, 2005 (in Sydney) on a request made for and on behalf of BlueScope Steel when there was a further unauthorised stop work meeting over the enterprise bargaining negotiations on Wednesday, 3 August, 2005. BlueScope Steel was concerned that the stop work meeting coincided with the berthing of another vessel (the "Marvellous"). Assurances were nevertheless given by the AWU in the proceedings on Wednesday, 3 August, 2005 that the stop work meeting would not continue beyond a time which would actually disrupt the berthing of the vessel and, indeed, the stop work meeting did end in sufficient time to avoid any problems with the berthing of the vessel.

(k) The concern of BlueScope Steel therefore did not materialise on that occasion but BlueScope Steel advanced a suggested protocol to avoid unnecessary disruption in future. In the protocol BlueScope Steel management recognised that from time to time the operators would need to meet collectively to discuss issues of concern to them but they wished to establish a dialogue with the operators to ensure that such meetings did not clash with critical times when a ship was berthing. I indicated in a statement I issued on Wednesday, 3 August, 2005 that I supported a protocol of that nature.

It is with that history that the matter resumed before me on Monday, 8 August, 2005 (in Wollongong) to discuss the way to progress this matter.

4 Mr de Flamingh, representing BlueScope in the proceedings, proposed to advance the document provided by BlueScope Steel as a State enterprise award to cover the bulk handling operators. He recognised that, if agreement could not be reached between the parties (which, in the light of the history of this matter and the numerous unsuccessful attempts by me in conciliation, seems inevitable), the matter will have to be referred under the Special Case principle of the current wage fixation principles [the 2004 State Wage Case (2004) 132 IR 190 at p.214], viz:

"Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President.

The principle does not apply to applications for awards consented to by the parties, which will be dealt with in terms of the Act, or enterprise arrangements, which will be dealt with in accordance with the Enterprise Arrangement principle."

5 Mr Gillespie, representing the AWU in the proceedings, opposed the application by BlueScope Steel for a new State enterprise award to cover the bulk handling operators. He has nevertheless consistently indicated both in correspondence to BlueScope Steel, and to me in these proceedings, that the AWU would be prepared to accept my recommendation concerning the issues in dispute. He is still pressing for further conciliation of the matter and has indicated that, in the meantime, the operators remain content to stay on their existing wage and conditions of employment.

6 That is, of course, an unique situation with which I am confronted in this hearing. I would not have thought that it was in the interests of the employees for the current impasse to continue any longer - and twelve months outside the nominal term of the current unregistered agreement which covers them. Ordinarily, it is a trade union, acting on behalf of its members, which advances an application for a State award and an employer who stands for one reason or another to oppose it. It is ironic that in the current industrial and political climate, where trade unions are attempting to preserve their rights to enter into industrial awards against Federal attempts to either abolish them or reduce their influence, the AWU is opposing the matter going forward to a State enterprise award. If the bulk operators reject features of the State enterprise award proposed by BlueScope Steel it is open to them to produce counter proposals for consideration and determination. 7 As Mr de Flamingh has indicated in his submissions, the unregistered agreement which presently covers the bulk handling operators may be rescinded at any time, leaving the employees without any protection at all. I would regard it as fundamental that employees receive a level of protection through regulation. That I believe is in their own interests. But, ultimately, I must meet the argument advanced by the parties before me - and that is simply in this case whether such a State enterprise award should be made at all.

8 There can be no doubts concerning my jurisdiction to make such a State enterprise award in these S.130 proceedings. That is accepted by both Mr de Flamingh and Mr Gillespie. I had issued the certificate of attempted conciliation required by S.135 and lodged it in the prescribed manner when on Friday, 14 January, 2005 I found it necessary to first issue the dispute orders restraining the employees from further industrial action. The matter has really been in the arbitration phase since that time, notwithstanding my several unsuccessful attempts at conciliation since Friday, 14 January, 2005. Consequently, by virtue of S.136(1)(b), I am authorised to "...make or vary an award..." (subject to the restrictions which flow from the Special Case principle of the current wage fixation principles). It remains simply a matter for my discretion whether the proposed new State enterprise award sought by Mr de Flamingh in this hearing, or some variation to it consistent with the AWU claim, should go forward.

9 In the Hammersley Iron Case (1982) WAIG 2418 a Full Bench of the Western Australian Industrial Commission (O'Dea P, Kelly CIC and Cort SC) rejected a trade union's attempt to seek an industrial award, against the wishes of the majority of the employees it sought to cover, with the following comments:

"…The evidence showed beyond question that the overwhelming majority of employees who would have been affected objected sincerely to the making of an award; that they were content with their conditions of employment; and that they were opposed to a third party in the form of the union interposing itself between them and their employer in their employment relationship… The case for the union really amounted to little more than a demand to be allowed to extend its sphere of influence. While that is no doubt a natural aspiration for a union to have, it is not a sufficient reason in itself to justify making an award against an unwilling employer, particularly when to do so would be to ride rough shod over the wishes of all but a few of the employees concerned…"

Therefore, the wishes of the employees themselves, as expressed through Mr Gillespie in this hearing, must be respected. According to Mr Gillespie , they collectively do not want to be covered by a State enterprise award. 10 But whilst the wishes of the employees is a very important consideration, it is only one thing which I should consider in determining whether to make a State enterprise award to cover them. Historically, it has always been the essential function of the Commission and its predecessors to settle industrial disputes, by conciliation or, if necessary and if conciliation fails, by arbitration and the making of an award. In the Sugar Manufacturers Case (1926) AR 113 the role of industrial tribunals was explained (at p.115) in the following terms:

"...The scheme of all our Industrial Arbitration Acts is that conciliation should be tried as far as possible, but that in the last resort, if conciliation fails, there shall be some compulsory authority which will deal with matters in dispute - matters that are claimed, claims that are rejected - by the method of arbitration..."

11 Moreover, the Commission acts not only in the interests of the parties themselves but the community in general, the so-called silent party in every industrial dispute [the Butchering (Wholesale) Award Case (1911) AR 245 at p.247]. The dispute over the stalled enterprise negotiations for the operators has been accompanied by much industrial disruption in the past. Although a less destructive industrial climate now seems to be emerging in the bulk handling operations, the current hiatus remains a fertile field for that industrial disruption to continue, in my opinion. That affects not only the operations of BlueScope Steel but the extensive range of customers who rely on product from it, bringing with this particular industrial dispute a sufficient public interest to give more weight to the application by BlueScope Steel for a State enterprise award.

12 And the public interest has also to be considered in the context of the objectives of the 1996 Act under which I operate. In particular, S.3(e) directs me:

"...to facilitate appropriate regulation of employment through awards, enterprise agreements or other industrial instruments..."

S.3(e) does not give any particular priority to State awards over enterprise agreements or other industrial instruments: they are all equally valid forms of regulation of employment in this State. But the employment of the operators is presently unregulated at all. And, notwithstanding Mr Gillespie's emphasis on an enterprise agreement for the employees, in the light of the lengthy history of this matter, to my mind an enterprise agreement seems less likely. The parties should move to a State enterprise award instead. 13 Of course, the Commission has no power to force employees and their employer to agree on anything: in cases where the parties are unable to reach agreement the Commission may proceed only by way of a State award. It is therefore logical to move the matter forward by way of the State enterprise award being pressed by BlueScope Steel and by the AWU to respond with its own claims in those proceedings. It seems to me that this is one of the problems which will emerge with any attempt to undermine the State award system and promote separate direct agreements between individual employees and their employer. What happens when there is no agreement and there is nowhere else to go?

14 I therefore reject the arguments advanced by Mr Gillespie that I should not let the BlueScope Steel application for a new enterprise award to cover the bulk handling operators go forward. I decline at this time to refer the matter to be considered as a special case, however. I direct the parties into further discussions and will list the matter for one further attempt at conciliation commencing at 9.00am on Tuesday, 6 September, 2005 (in Wollongong).

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