Notification under s130 by BHP Steel (AIS) Pty Ltd of a dispute with the Australian Workers' Union, New South Wales and others [2003] NSWIRComm 125

Industrial Relations Commission (NSW)|2003-04-30|Before: Wright J, Walton J, Grayson DP

CITATION : Notification under s130 by BHP Steel (AIS) Pty Ltd of a dispute with the Australian Workers' Union, New South Wales and others [2003] NSWIRComm 125 APPLICANT: BHP Steel (AIS) Pty Ltd

PARTIES : RESPONDENTS: The Australian Workers' Union, New South Wales Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch Electrical Trades Union of Australia, New South Wales Branch FILE NUMBER: IRC4413 of 2002 and IRC722 of 2003 CORAM: Wright J President; Walton J Vice-President; Grayson DP; Connor C CATCHWORDS : Industrial Dispute - Interpretation of enterprise agreement - Dispute orders - History of enterprise agreement - Whether applies to rail operations - When considered in terms of plain words, in context or as to purpose of provision, applies to rail operations - Obligations of industrial organisations - Adherence to agreements - Commission will not countenance departure - Issues reserved at time of approving agreement - Industrial action - Maintenance of production - Not dumping hot metal - Use of staff employees - Number of locomotives - Application granted in part - Dispute orders to be made - Applicant to file draft orders LEGISLATION CITED : Industrial Relations Act 1996 s130 CASES CITED : Re Broken Hill Commerce and Industry Consent Award (No. 2) [2002] NSWIRComm 309 Re Notification under Section 130 by the Minister for Industrial Relations of a Dispute between BHP Billiton and Australian Workers Union, NSW and Others [2002] IRComm 378 HEARING DATES: 11/06/2002; 11/21/2002; 02/04/2003; 02/14/2003; 03/03/2003; 03/04/2003; 03/18/2003; 03/31/2003 DATE OF JUDGMENT: 04/30/2003

APPLICANT Mr A Morris, Solicitor Blake Dawson Waldron Solicitors

RESPONDENTS LEGAL REPRESENTATIVES: Mr A Gillespie The Australian Workers' Union, New South Wales Mr W Phillips Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch Mr W Tomlins Electrical Trades Union of Australia, New South Wales Branch

JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: Wright J, President Walton J, Vice-President Grayson DP Connor C Wednesday 30 April 2003

Notification under section 130 by BHP Steel (AIS) Pty Ltd of a dispute with The Australian Workers' Union, New South Wales re availability of locomotive drivers and shunters

Notification under section 130 by BHP Steel (AIS) Pty Ltd of a dispute with The Australian Workers' Union, New South Wales re stop work meeting DECISION OF THE COMMISSION [2003] NSWIRComm 125

1 On 11 July 2002, Walton J Vice-President approved an enterprise agreement known as the BHP Steel Port Kembla Operations Enterprise Agreement 2002 ("the enterprise agreement"). That agreement applied to BHP Steel Limited and BHP Steel (AIS) Pty Limited (the applicant in the present proceedings) and the Australian Workers' Union, New South Wales ("the AWU"), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW ("the AMWU") and the Electrical Trade Union, New South Wales Branch ("the ETU") (the respondents in the present proceedings).

2 The enterprise agreement resulted in a very substantial alteration to the terms and conditions of employment for employees of the applicant and to the system of industrial relations in the Port Kembla Steel Works. The enterprise agreement represented a detailed and finely balanced set of industrial arrangements which had derived from a decision given by the Vice-President in relation to the industrial dispute which preceded the making of the agreement: Re: Notification under Section 130 by the Minister for Industrial Relations of a Dispute between BHP Billiton and Australian Workers Union, NSW and Others [2002] IRComm 378.

3 The significance of the resolution of that industrial dispute by the making of the enterprise agreement is highlighted by the opening passages of his Honour's decision as follows: 1. This matter concerns the notification of an industrial dispute by the Minister for Industrial Relations pursuant to s130 of the Industrial Relations Act 1996 ("the Act"). 2. The industrial dispute emerges from the confluence of two events, both of which significantly affected industrial relations in the steel industry in Port Kembla, namely, the restructuring of the merger corporation BHP Billiton Limited with respect to its steel operations and the expiration of the Port Kembla Steelworks - Steel Industry Agreement 1998 - 2001 ("the Steel Industry Agreement") and the nominal term of awards applying at the Port Kembla Steelworks (resulting in collective bargaining as to the retention or alteration of the arrangements between industrial parties hitherto applying in that industry). 3. That confluence has produced an industrial dispute of substantial dimensions, the resolution of which is of fundamental importance for the steel industry in Port Kembla and ultimately the public interest, (most directly reflected in the interests of the community). 4. The resolution of the issues in this dispute essentially involves a wholesale reconsideration of longstanding industrial and employment relationships in this industry. Those relationships have as their foundation the extensive programme of industry reform brought about by the Steel Industry Plan and subsequent Steel Industry Agreements. The arrangements arising from that plan and those agreements constitutes the modern history of the steel industry and were instrumental in the emergence of internationally competitive corporations in the steel industry in Port Kembla. Until more recent times, those arrangements also produced relatively stable industrial relations in the industry. The determination of those issues represents, therefore, no less than a watershed for industrial relations and employment in the steel industry in the Illawarra region.

4 The enterprise agreement resulted in and constituted the legally binding arrangements between the employers and employees and their unions at the Steelworks. However, the obligations which come about in such circumstances are not confined to merely legal considerations. The Commission will ensure parties give solemn adherence to the terms of industrial arrangements whether in the form of consent awards or enterprise agreements and will not countenance manoeuvring by parties designed to extricate themselves from good faith bargains: Re Broken Hill Commerce and Industry Consent Award (No. 2) [2002] NSWIRComm 309 at [33]. The operation of this principle is even more significant in the present case where the agreement of the parties (which derives from their own direct agreement and their agreement to be bound by recommendations made by the Commission) constitutes the resolution of significant industrial issues affecting a very substantial corporation employing many employees and where the resolution of the issues in dispute is very much connected to the interests of the citizens of the Illawarra. There are, therefore, powerful public interest considerations in favour of requiring strict adherence to the terms and spirit of the enterprise agreement

5 These principles are significant in the present matter as the industrial dispute before us concerns the taking of industrial action by members of the AWU in the rail operations of the applicant in circumstances where the applicant contends that such actions are contrary to the terms of the enterprise agreement regulating disturbances to production and supply. By way of contrast, the AWU contended, on behalf of its members at the Steelworks, that those provisions of the enterprise agreement (and, in particular, cll9.1.7) do not apply to one group of its members employed at the Steelworks, namely, rail operations. The enterprise agreement is apparently, on its submission, otherwise applicable to that group. Thus, it was contended by the AWU, when the enterprise agreement was properly considered, it did not apply to rail operations employees, notwithstanding that that group otherwise benefited from the terms of the enterprise agreement including those fundamental elements which improved wages and conditions and established security of employment. This would be a surprising conclusion, and one which could only be reached where there was clear language to that effect in the enterprise agreement.

6 The relevant provisions of cl9 of the enterprise agreement are as follows: 9. REGULATION OF DISTURBANCES TO PRODUCTION AND SUPPLY

Objects of this Clause 9.1.1 One of the key pillars that supports the ability of the Companies to have an effective and efficient business is the ongoing compliance by the parties and all employees with the obligations in this clause in respect of hot metal arrangements and meeting urgent customer needs. 9.1.2 The commitment and compliance with the obligations prescribed in this clause are significant in that they recognise the paramount importance of satisfying the Companies' customers each and every day and the close linkage between customer satisfaction, business performance and employment security. In addition they recognise the importance of protecting the security and integrity of the Companies' assets and not wastefully destroying product. 9.1.3 The parties recognise that to achieve these goals and maintain secure employment, they must manage their differences without allowing these differences to result in the destruction of product or major disruption to the Companies' customers. 9.1.4 The parties understand that only by satisfying customers and developing markets can the Companies deliver the desirable benefit of ongoing security of employment. 9.1.5 The obligation to comply with the arrangements contained in this clause in respect of hot metal and meeting urgent customer needs does not restrain, or seek to restrain, the taking of industrial action which does not result in non-compliance with those obligations. The parties are however committed to working together to provide a workplace where issues are resolved without recourse to industrial action. 9.1.6 The obligations imposed by this clause apply to all parties and all employees at all times, regardless of the reasons for or the nature or the extent of industrial action (i.e. whether limited to a particular part or parts of the Companies' operations or involving the whole of such operations). 9.1.7 The obligations imposed by this clause require that employees covered by this Agreement perform as directed the necessary work (for the purposes of this clause) which is part of their usual duties and are not to be taken as requiring 'staff' employees to undertake such work instead of employees covered by this Agreement. 9.1.8 The hot metal arrangements provided for in this clause are designed to preserve the interests of those engaged in the taking of industrial action by requiring that the Companies not deal with slabs produced (in the sense of further processing and dispatching the slabs) until the industrial action ceases except as provided for in sub-clause 9.3.6. 9.1.9 Similarly, the proposal for the meeting of urgent customer needs does not require all product to be distributed but rather only that part of it requiring urgent dispatch and subject to the provision of information and appropriate consultation as specified in this clause. 9.2 Compliance with this Clause and Linkage with Employment Security 9.2.1 There must be strict compliance by all parties with the terms of this Agreement concerning hot metal arrangements (sub-clause 9.3) and meeting urgent customer needs (sub-clause 9.4) during the course of any industrial action. There must be no breaches of these provisions. 9.2.2 The taking of steps during the course of any industrial action in breach of these requirements would be a serious matter and one requiring significant and urgent attention in any dispute resolution processes. Any breach would be a paramount consideration for the Commission in the exercise of its powers under the Act as to industrial disputes. 9.2.3 A breach of the provisions concerning hot metal arrangements (sub-clause 9.3) and meeting urgent customer needs (sub-clause 9.4) may result in the removal (in part or whole) of the employment security provisions specified in clause 8 of this agreement. Any such removal shall not relieve the employees concerned of their obligations to comply with the requirements of this clause 9. 9.2.4 An application to remove the benefits of security of employment from any employees may be made by the relevant Company by notification under the Act of an industrial dispute. The Companies shall bear the onus of making out a case for such removal. The determination of such an application shall be governed by the considerations referred to by the Commission in the Recommendation of Walton J - Vice President, dated 13 May 2002, particularly at paragraph 95. The Commission's determination shall be binding on the parties. 9.3 Hot Metal Arrangements 9.3.1 Plant operations will continue at normal production rates unless there is industrial action, which extends more than 8 hours, in one of the following major departments and where that action would prior to this Agreement have resulted in the dumping of hot metal. The major departments are: Blast Furnaces, Rail Operations, BOS and Slab Caster. 9.3.2 Recognising that this provision is designed to avoid destruction of product and not to retain normal operations in the event of industrial action in one of the above areas, the Blast Furnaces will, where the industrial action in one of the major departments referred to in sub-clause 9.3.1 runs for more than 8 hours, operate at a reduced level. That level will be nominally 90% of full production level - that being the level necessary to maintain stable furnace operations and to return to normal operating levels immediately after the industrial action. 9.3.3 All iron that is at the BOS at the time the industrial action commences will be processed as normal. 9.3.4 Slabmaking operations will be sufficient to ensure that there is no hot metal dumped as a result of industrial action. Generally it is expected that this will require consistent 2-machine casting on any 2 machines as may be required. It is noted that, where possible, generally No. 2 and No. 3 machines would be utilised. 9.3.5 Slabs will be processed to the extent necessary to ensure the integrity of the product. 9.3.6 Subject to subclauses 9.3.3, 9.3.5 and 9.3.7 all slabs produced during the course of industrial action shall be stored at locations selected by the Company and will not be further handled, dispatched or processed until the actual cessation of the industrial action, provided that slabs shall be further handled (but not dispatched or processed)to the extent necessary for reasons of safety or to enable effect to be given to the objects of this Clause and the requirements of this sub-clause 9.3. 9.3.7 Slabhandling operations will ensure that slab is stacked in the Slab Yard or as directed by the company in an efficient and effective way. Where the industrial action is in the Slab Yard area, slab will still be produced and that slab will be stacked and stored in an effective and efficient way as directed by the Company. 9.3.8 The parties' commitment to "no dumping of iron" requires that support functions necessary to sustain the safety and operating integrity of the blast furnaces, however provided, will continue through the industrial action. 9.3.9 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 - namely that Blast Furnaces continue to operate and hot metal is not dumped in the event of industrial action. 9.3.10 The Company shall provide the Unions each day with a list of the location of all slabs stored in accordance with these hot metal arrangements during the course of industrial action.

7 It is not necessary to analyse this provision in detail. However, it will be seen immediately that the agreement provides substantial measures to ensure that, in the case of industrial disputation, the operations of the company will be maintained so as to prevent the destruction of product through the dumping of hot metal. The arrangements do not prevent the taking of industrial action per se but strike a balance between the interests of the applicant employer (by ensuring that its employees perform necessary work to prevent the dumping of hot metal) and the interests of union members by ensuring that the employer recognises the rights of those participating in the industrial action (by not dealing with, in the sense of processing or dispatching, slabs produced during the industrial action). The significance of the provisions is well illustrated by cl9.2 which establishes a link between the avoidance of the destruction of product and security of employment provisions.

8 The primary issue in this matter is to be considered against these important features of the background and the principles referred to. The rail operations employees through their union (the AWU) contend that the provisions of cl9.1.7 of the enterprise agreement do not apply to them so as to require the maintenance of rail operations during an industrial dispute such as to prevent the dumping of iron. Mr Gillespie, who appeared for the AWU, submitted that such a responsibility should fall entirely on staff employees. If there is insufficient staff to prevent the dumping of metal, it was contended, then his members had no duty under the enterprise agreement to supplement that labour to prevent that loss. In fact, during the course of these proceedings there have been industrial stoppages where this very issue has emerged, notwithstanding the terms of the enterprise agreement and the issues then being considered by us as to its operation.

9 The applicant sought to redress this situation by seeking an interpretation of the enterprise agreement and dispute orders requiring the AWU and its members to adhere to the outcome of that adjudication. By a Notice of Motion, the applicant sought the following relief: 1. The determination of questions concerning the interpretation, application or operation of the BHP Steel Port Kembla Operations Enterprise Agreement 2002 (the "Agreement") in the terms set out in Schedule 1 to this Notice of Motion, for the purpose of resolving a dispute concerning those questions, pursuant to section 136 of the Industrial Relations Act 1996 (the "Act"), clause 12 of the Agreement and clause 36 of the BHP Steel (AIS) Pty Ltd - Port Kembla Steelworks Employees Award 2000 (the "Award") and in accordance with section 175 of the Act. 2. The making of dispute orders in the terms set out in Schedule 2 to this Notice of Motion, pursuant to sections 136, 137 and 138 of the Act.

10 Schedule 1 which is referred to in the first paragraph of the motion is in the following terms: SCHEDULE 1 On its true meaning and intent the BHP Steel Port Kembla Operations Enterprise Agreement 2002 requires that in the event of a strike or other industrial action by locomotive drivers and shunters: (a) BHP Steel (AIS) Pty Ltd (the "Company") may lawfully and reasonably require and direct drivers and shunters to perform their usual duties associated with the handling of hot metal and slabs in order to ensure compliance with the Agreement; and (b) the Company is not required to engage staff employees in the performance of the work described in (a) above although the Company may, at its discret ion, engage staff to perform such work.

11 The dispute orders sought in Schedule 2 were 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 3: (a) In the event of any strike or other industrial action by locomotive drivers and/or shunters employed by BHP Steel (AIS) Pty Ltd (the "Company") in its Rail Operations Department at the Port Kembla Steelworks, the locomotive drivers and shunters who are nominated by the Company as being required for the handling of hot metal and slabs in order to ensure compliance with clause 9 of the BHP Steel Port Kembla Operations Enterprise 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 up to 6 locomotive drivers and 6 shunters to perform work for the purposes of order 1(a) in respect of each and every shift during which a strike or other industrial action occurs. Where a nominated driver or shunter is or becomes unavailable for work due to any cause other than industrial action (eg illness) the Company may nominate a replacement driver or shunter for the purposes of order 1(a). 2. The Australian Workers' Union, New South Wales ("AWU") and its 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 employed in the Rail Operations Department of these orders by [insert date 3 days after the date of decision of the Commission]. 3. 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.

12 We propose to deal initially with the question raised by paragraph (a) of Schedule 1. What is essentially raised by that question is whether the provisions of cl9 of the enterprise agreement (and, in particular, cl9.1.7) apply to the rail operations employees.

13 In our view, it is plain from the terms of the enterprise agreement that the provisions of cl9.1.7 apply to the employees of the applicant engaged in rail operations. That is plain on the face of cl9.1.7. The interpretation is confirmed (if confirmation is necessary) by a consideration of the enterprise agreement in its context. For example, the hot metal arrangement provisions apply specifically to rail operations. Furthermore, the enterprise agreement, when read as a whole, makes clear that its terms are intended to apply to the whole of the award regulated workforce of the applicant. The enterprise agreement applies to all industrial action whether arising as a result of a general strike or as a result of disputation in a particular work area.

14 The same conclusion may be reached by having regard to the purpose of the enterprise agreement. The agreement is directed to the avoidance of the very consequences that would derive from rail operations employees not ensuring an adequate supply of product in the case of industrial action by them. The enterprise agreement is intended to ensure the integrity of the production process and the avoidance of the destruction of product that would result if insufficient staff carried out locomotive operations.

15 We do not consider that the AWU has advanced any cogent argument in support of a contrary view. In particular, we do not consider that any feature of the proceedings before Walton J would indicate any different conclusion. Indeed, acceptance of the AWU's contentions would result in the avoidance of the clear requirements of the enterprise agreement (apparently to favour a particular group of its members). Whilst a trade union may appropriately provide active representation and support for its membership, industrial organisations also bear important responsibilities which include not only adherence to bargains which have been struck in good faith but also positive compliance with arrangements reached in good faith. The AWU has not met or recognised its responsibilities in its contentions in this matter.

16 However that conclusion is not the end of the issues in this matter as two further issues remain. These were described by Mr Morris, solicitor, who appeared for the applicant as follows: 1. Whether, assuming the company has the right under agreement to require drivers and shunters to handle metal and slabs during industrial actions by them, it is reasonable for the company to so require?

How many locomotives may the company reasonably require to be operated during industrial action by drivers and shunters?

17 The first such issue in substance raises two questions: 1. Should staff employees be engaged in the performance of the work in rail operations during industrial action by employees in that area; 2. If so, and there arises, during the course of that industrial action, a shortfall of such staff employees to carry out the work required to avoid the dumping of hot metal (when the blast furnace operates at 90% production rate), may members of the AWU in the rail operations area be required to supplement the work of staff employees so as to ensure that outcome?

18 In dealing with the first issue we would emphasise that it was properly raised in these proceedings by the AWU as the question was expressly reserved by Walton, J when the recommendation was made as to the terms of cl9.1.7 of the enterprise agreement. What was reserved for consideration was the question of how cl9.1.7 might operate in practice having regard to the terms of the agreement and the present day and historical working arrangements in rail operations.

19 Having regard to that consideration, we find little assistance in the authorities provided by Mr Morris as to the jurisprudence of the Commission concerning managerial prerogative. Whilst those principles will, no doubt, be a useful guide to our decision making (including the question as to whether a managerial decision is unreasonable or unfair) they cannot be determinative in circumstances where the Commission is, in essence, required to subsequently resolve an industrial dispute within the parameters earlier established by the parties.

20 The first issue was the subject of some earlier conciliation processes (which, in fact, occurred on the day of the execution of the enterprise agreement by the AWU and before approval of the enterprise agreement by the Commission). Those conciliation processes were successful in producing interim arrangements (which continued after the making of the enterprise agreement) as follows:

Sub-clause 9.1.7 stands as in the Agreement: The obligations imposed by this clause require that the employees covered by this Agreement perform as directed the necessary work (for the purposes of this clause) which is part of their usual duties and are not to be taken as requiring 'staff' employees to undertake such work instead of employees covered by this Agreement. 2. The Commission recommends that there is to be no industrial action in the blast furnaces, rail operations, steel making, slab making or slab handling areas in relation to the agreement or its operation, pending the finalisation of further proceedings to resolve the practical implementation of subclause 9.1.7 in those areas. 3. In the interim, in the event of any industrial action in one of the areas referred to in point 2 above, the Company shall, without prejudice to its final position, use staff to the extent that to so do is consistent with safety and maintaining the integrity of operations to avoid the dumping of hot metal. 4. The company and the unions shall consult as to the implementation of the arrangements in 3. So far as practicable, this step should be taken by 12 July 2002 (and certainly in advance of any industrial action). If the issues cannot be resolved then the matter may be referred to the Commission for resolution. The parties have liberty to apply with respect to the final resolution of the implementation of sub-clause 9.1.7. 5. All parties shall immediately sign the enterprise agreement so that it may be approved by the Commission on or before 12 July 2002.

21 The interim arrangements resulted in different arrangements applying as between rail operations and the other areas of the applicant's operations (see cl2 and cl3 of the arrangements).

22 Thus, in the slab yard area (which was the subject of separate proceedings before the Full Bench which ultimately settled) a certain number of employees, members of the AWU, are required to work during industrial action to receive and store slabs in such a manner "that ensures no hot metal is dumped and that slabs are stacked in their final storage destinations." The number of employees required to work is the number sufficient to meet that objective. In contrast, where industrial action occurred in the rail operations area after the making of the enterprise agreement, staff employees carried out the requisite work.

23 However, the interim arrangements to some extent proved ineffective because rail operations employees engaged in industrial action and the parties disputed what complement of labour was required in order to maintain the conditions of the enterprise agreement that there would be no dumping of hot metal. The applicant contended that the rail operations employees should wholly carry out the task and that, in any event, there were insufficient staff employees to ensure the integrity of product. The AWU contended that there were sufficient numbers of staff employees to ensure the integrity of product and that its members should not be required to carry out any work during industrial action.

24 Prior to the interim arrangements and the making of the enterprise agreement, rail operations employees would convey, during an industrial dispute in that department, hot metal to the '21 Dump' to be dumped (and the company would later recover the product as far as possible from that location). As earlier mentioned, after the making of the enterprise agreement, the evidence reveals that a number of industrial disputes in the rail operations area resulted in a stoppage of work. In each such case, the company endeavoured to operate the rail operations using staff employees with the union members refusing to perform any work.

25 The evidence as to the circumstances arising from those disputes and also the empirical evidence given as to rail operations and hot metal and slab movements (based on historical work load and work arrangements) indicate that the use of staff employees alone will on occasions not be sufficient to maintain the integrity of the operations during industrial action in the rail operations area. Once this conclusion is reached, and having regard to the parties' joint acceptance that there must be maintained the integrity of the operation (and the elimination of the dumping of hot metal) it follows that the use of only staff employees during industrial action cannot be the invariable rule for the performance of work in rail operations in such circumstances. This partially answers the first question raised by Mr Morris. In order to fully resolve that issue, however, it is necessary to further consider whether the work (required to be performed during the course of industrial action) should be wholly performed by rail operations employees or a combination of staff and rail operations employees.

26 We have concluded that, having regard to the history of arrangements in this work area, the interim arrangement and the capacity of staff to perform the work, that staff employees should be engaged to perform work when industrial action occurs in the rail operations area. Where supplementation of that labour is required to avoid the dumping of hot metal then the employees normally engaged in the rail operations area should be engaged to perform that supplementary work. As a practical matter the staff employees will be first engaged during an industrial dispute (after the expiry of the requisite period provided under the enterprise agreement) and then the award regulated employees will be engaged, as required, in order to maintain the integrity of product (and only for that purpose). The decision as to when supplementary award based employees will be called to work during industrial action shall be made by the employer so as to avoid any "point-taking" by the AWU over such engagements. If any dispute arises as to the employer inappropriately calling in award based employees, then that matter can be resolved by the filing of a dispute notification under s130 of the Act. However, we make it absolutely clear that the filing of such a notification does not remove the requirement for the AWU members to perform work as directed by the employer in the manner described above. If the employer has abused the right here conferred, then an appropriate remedy can be fashioned during the s130 proceedings (which may occur after the industrial action has ceased). The primary obligation for all concerned is to avoid the dumping of hot metal.

27 This conclusion results in the rejection of the order claimed by the employer in paragraph (b) of Schedule 1. However, we place this caveat upon this decision. It is not clear from the evidence of Mr Collins (who gave evidence for the AWU) as to whether the combined use of staff and ordinary employees might result in industrial action by members of the AWU. If that were the consequence (either by experience or a declaration by the members of that union to that effect) then we will amend our order so as to require employees to perform the work in lieu of staff on all occasions where industrial action is taken by rail operations employees.

28 That leaves the second question raised by Mr Morris, namely, the number of locomotives which may be utilised during industrial action. We have considered the detailed evidence and the very extensive submissions of all parties as to all aspects of work in rail operations and the demands which arise in that area when the furnaces are ramped down to a 90 per cent operation during an industrial dispute.

29 We consider that, on the balance of the evidence, up to five locomotives should be operated whilst rail operations is affected by industrial action (as contemplated by the enterprise agreement). The decision as to whether 4 or 5 locomotives shall operate shall be made by the employer. This limitation on locomotive operations during the course of industrial action shall operate for a trial period consisting of the balance of the term of the enterprise agreement. The question of the appropriate number of locomotives can be further examined in the light of experience at the end of the 'trial period'. The applicant has liberty to apply in the event that a serious issue concerning the dumping of hot metal arises prior to that time as a result of such restriction. In the event that liberty is so exercised by the applicant, it may be necessary to consider whether there should occur an increase in the number of locomotives to six or a reduction of the furnace rate during the course of industrial action.

30 It remains to consider whether we should make the dispute orders sought by the applicant. We consider, given the history of disputation engaged in by the rail operations employees, including disputation which, we observe with concern, actually occurred during the course of proceedings before the Full Bench, it is plain that dispute orders are required to buttress the terms of the enterprise agreement. However, given our conclusions, the form of the orders sought by the applicant in Schedule 2 will need modification to conform with this decision.

31 We therefore direct the applicant to file and serve within seven days amended draft orders both in terms of paragraph (a)1 and 2 of the Notice of Motion giving effect to our decision. ________________________________________

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (43 paragraphs)

Cases Cited (1)

Cited By (2)