Elura Mine Enterprise (Consent) Award 2001 [2003] NSWIRComm 218 - NSWIRComm 1998 case summary — Zoe

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Elura Mine Enterprise (Consent) Award 2001 [2003] NSWIRComm 218

[2003] NSWIRComm 218

Industrial Relations Commission (NSW)|1998-08-21|Before: Sams DP, Goot AM

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1998-08-21

Before

Sams DP, Goot AM

Catchwords

07/01/2003
07/03/2003
07/04/2003 DATE OF JUDGMENT: 07/17/2003

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Original judgment source is linked above.

Catchwords

07/01/200307/03/200307/04/2003 DATE OF JUDGMENT: 07/17/2003

Judgment (203 paragraphs)

[1]

CITATION : Elura Mine Enterprise (Consent) Award 2001 [2003] NSWIRComm 218 revised - 18/07/2003 MATTER IRC1917 of 2003 APPLICANT: Australian Workers' Union, Greater New South Wales Branch RESPONDENT: Pasminco Australia Limited (subject to Deed of Company Arrangement) INTERVENER: Elura Mines Pty Ltd PARTIES : MATTER IRC2410 of 2003 APPLICANT: Elura Mines Pty Ltd RESPONDENTS Australian Workers' Union, Greater New South Wales Branch Electrical Trades Union of Australia, New South wales Branch Australian Manufacturing Workers' Union Pasminco Australia Limited (subject to Deed of Company Arrangement) FILE NUMBER: 1917 and 2410 of 2003 CORAM: Sams DP Metalliferous mining industry - Application to vary award during nominal term - application to rescind award during nominal term - scope of award - preference clause - objects of the Act - s17(3)(c), s10, s11, s12 of the Act - whether award sets fair and reasonable conditions of employment for employees - party to an award - sufficient interest - standing of party not an existing employer - financial state of employer - proposed purchaser of mine - conditional sales agreement - whether industry award to apply - whether consent award should apply to non consenting party - long history of consent arrangements - preserving status quo - public interest tests - substantial reason - employee morale - potential for industrial unrest. CATCHWORDS : Held, prospective employer has standing to bring application - sufficient interest established - no distinction between type of award - public interest wider than interests of direct parties - financial evidence accepted - extension of mine life major public interest consideration - consent arrangements should not be imposed on non consenting parties - sufficient reasons established to rescind the award - future negotiations over indutrial regulation - Unions willingness to negotiate change - award rescinded on competion of sale process - unnecessary to determine application to vary award - orders made. Industrial Relations Act 1996 LEGISLATION CITED : Labour Relations Act 1995 (South Africa) Workplace Relations Act 1996 (Cth) Cobar Mines Pty Ltd Consent Award 1995, (unreported) Cahill, VP. IRC No. 3305 of 1998, 21 August 1998 Davis v Western Suburbs Hospital [1942] SR 26 Storeworkers - IGA Distribution Pty Limited New South Wales Distribution Centres Award 2002 [2002] NSWIRComm 156 Federated Engine-Drivers and Firemen's Association of Australasia v The Broken Hill Proprietary Co Ltd (1911) 5 CAR 9 O'Sullivan v Farrer and Anor (1989) 168 CLR 210 Notification under s130 by Kellogg (Aust) Pty Ltd of a dispute with the National Union of Workers, New South Wales re alleged breach of Award and other matters [2003] NSWIRComm 167 Operational Ambulance Officers (State) Award, Re [2001] NSWIRComm 331 CASES CITED : Pastoral Industry (State) Award (2001) 104 IR 168 Preference of Employment Case [1977] AR 458 Re Butchering (Wholesale) Award [1911] AR 245 Re Aluminium Industry (Comalco Bell Bay Companies) Award 1983 (1994) 56 IR 403 Re Cram and others, ex parte the Newcastle Wallsend Coal Company Pty Ltd (1987) 163 CLR 117 Re Equal Remuneration Principle [2000] NSWIRComm 113 Re Charitable Sector Aged and Disability Services (State) Award [2000] NSWIRComm 217 Southern Copper Limited Award and Others Awards (unreported) Hungerford, J, IRC No. 899 of 1999, 5 May 1999 State Wage Case 2002 [2002] NSWIRComm 118 HEARING DATES: 06/30/2003; 07/01/2003; 07/03/2003; 07/04/2003 DATE OF JUDGMENT: 07/17/2003

[93]

69 In specifically responding to the respondent's affidavit evidence Mr Manns put the following evidence in reply. a) the current workforce would support the introduction of paste fill plant as proposed by Elura Mines; b) he was aware that some of the ore concentrates from the Elura mine and Broken Hill mine will go to smelters in Port Pirie and Roseberry in Tasmania; c) the Elure mine is the workplace of choice in Cobar. Employees have come from the CSA and Peak mines. Elura mine employees enjoy hard fought industrial entitlements, negotiated between Unions and the employer over a long period; d) the award's proficiency allowance represents agreed efficiency and productivity objectives. He believed similar arrangements could be reached with Elura Mines; e) the proposal of providing incentives for employees to improve safety suggests a past practice which was abandoned because it was seen to be a financial incentive for employees not to report injuries; f) the Unions and the employees accept that all existing Pasminco employees will be made redundant by Pasminco. He did not accept that existing employees will not work for Elura Mines; g) he was concerned at the proposal to invite expressions of interest for work at the mine from other people in the Cobar community. The existing employees understand the mine and its work practices; h) appropriate terms and conditions will able to be negotiated when the consent Award expires on 24 September 2003. A new classification structure could be negotiated in the future; i) the Dispute Handling Procedure has resolved problems at the mine for years, including safety issues. There has been no application to vary this clause, even as recently as the present consent Award made in 2001; j) no employee is familiar with the industry award. It had never had any relevance at the Elura Mine; k) the consent award would not impede or frustrate the ability of Elura Mines to successfully implement the Improvement Plan; l) there is no reason why Elura Mines could not reach agreement (with the Union) in relation to the use of specific contractors. There were concerns with the longer term use of contractors;

[164]

132 On the other hand there are some uncanny similarities between what Cahill J, dealt with in the Cobar Mines case and the circumstances here. His Honour's conclusions were: Having given serious consideration to the submissions of the parties I find that, on balance, the applicant has made out a case for rescission and that its application should be granted. The matters leading to that conclusion have already been referred to, and I attempt to summarise them as follows: The present award is restricted to companies operating on leases of Cobar Mines Pty Ltd and employees of such companies coming within the Metalliferous Mining (State) Conciliation Committee. Mining operations ceased on those leases in early 1998 and no work is now being performed thereon except for maintenance duties performed by a small number of employees. The award now has no practical application except in regard to those persons. The expectation is that another company will take over that mining leases, seek to re-open the mine and to employ labour. If that occurs, the award, having regard to its Incidence clause, will not apply to that company or its employees. The present negotiations regarding the sale of the mine are likely to be advantaged if the award is rescinded. The re-opening of the mine will afford employment opportunities for the Cobar community. It is possible that it may result in the payment of some outstanding award entitlements to former employees of the company. The rescission of the award will have no detrimental consequences on the legal entitlements of former employees to award benefits outstanding. If the mine re-opens without a site award or agreement in place, the provisions of the Metalliferous Mining Industry (State) Award (An award which is presently the subject of an application to the Commission by the AWU for variation) will be at least a safety net for employees pending the making of any such site award or agreement. The parties representing employees involved in the negotiations for any such site award or agreement will be able to draw on the provisions of the present enterprise award to support their proposals to the extent desired, notwithstanding its rescission. There will be no bar to submissions being made by them that the provisions of the present award, or some of them, should be considered in a "no net detriment" context. The applicant has a legal right to apply for rescission having regard to s17 of the Act. The position of the care and maintenance employees will be protected having regard to the undertaking given by the applicant in these proceedings. The Commission accordingly make an order pursuant to s17 of the Act that the Cobar Mines Pty Ltd Consent Award 1995 be rescinded, effective as of today's date. 133 In my view, it would be a manifest absurdity and a denial of natural justice to reject Elura Mines' interests in these proceedings in circumstances where it is the prospective operator of, and employer of employees at the mine. One could hardly find a more obvious example of a party which had established a "sufficient interest" in proceedings both to make applications in its own right and appear in proceedings designed to bind it to the terms of an industrial instrument. I find accordingly.

Elura Mine Enterprise (Consent) Award 2001 [2003] NSWIRComm 218

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