Industrial Relations Commission of New South Wales CITATION : Elura Mines Enterprise (Consent) Award [2003] NSWIRComm 302 APPELLANT: The Australian Workers' Union, New South Wales PARTIES : RESPONDENTS: Pasminco Australia Ltd Elura Mines Pty Ltd FILE NUMBER: IRC 4369 of 2003 CORAM: Wright J President; Walton J Vice-President; McLeay C CATCHWORDS : Appeal - Award - Statement issued - Interim orders and awards made - Reasons to be provided in due course LEGISLATION CITED : Industrial Relations Act 1996 s 16 CASES CITED : Elura Mine Enterprise (Consent) Award 2001, Re [2003] NSWIRComm 218 HEARING DATES: 08/29/2003; 09/03/2003 DATE OF JUDGMENT: 09/11/2003 APPELLANT: Mr A A Hatcher of counsel Maurice Blackburn Cashman Lawyers (Ms Kim Parker) RESPONDENTS: Mr R M Goot SC LEGAL REPRESENTATIVES: Minter Ellison Lawyers (Mr Andrew Cunningham) for Pasminco Australia Ltd Ms H McKenzie Blake Dawson Waldron Lawyers for Elura Mines Pty Ltd JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Wright J, President Walton J, Vice-President McLeay C Thursday, 11 September 2003 Matter No. IRC 4369 of 2003 Elura Mines Enterprise (Consent) Award Application by The Australian Workers' Union, New South Wales for leave to appeal and appeal against the decision of Deputy President Sams in Matter Nos. IRC1917 of 2003 and 2410 of 2003 given on 17 July 2003 STATEMENT OF THE COMMISSION [2003] NSWIRComm 302 1 This matter concerns an application by The Australian Workers' Union, Greater New South Wales Branch for leave to appeal and, if granted, appeal from a decision of Sams DP of 17 July, 2003 wherein his Honour granted an application by Elura Mines Pty. Ltd. ("Elura Mines") to rescind the Elura Mines Enterprise (Consent) Award 2001 ("the award"): Re Elura Mine Enterprise (Consent) Award 2001 [2003] NSWIRComm 218. 2 In so determining the matter, the Deputy President concluded that, "as a matter of sequential logic", it was unnecessary for the Commission to consider or determine an application by the appellant (which was joined to the proceedings brought by Elura Mines) to extend the scope of the award to apply to "any employer of employees employed in classifications covered by this Award engaged in or associated with mining activities and metallurgical plant operations at the Elura Mine" and to grant absolute preference of employment to persons employed by "the operator of the mine as at 4 April 2003". For convenience, we shall refer to the relevant workplace as "the Mines". 3 The background of the proceedings is set out in the judgment of the Deputy President and need not be repeated in detail in this Statement. In brief, parties to the award were Pasminco Australia Ltd (the second respondent to the appeal), the appellant, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch and the Electrical Trades Union of Australia, New South Wales Branch. Pasminco Australia Ltd encountered some financial difficulties and commenced operation under a deed of company arrangement. The two applications arose in association with a decision by Pasminco to enter into a conditional sales agreement with Consolidated Broken Hill Co Ltd (CBH) to purchase Elura Mine and the Newcastle port facility. A conditional sales agreement was signed on 8 April 2003. The sales agreement required certain conditions to be met before 18 July 2003, including the labour changes identified in a management improvement plan developed by CBH. As a result of these arrangements and transactions, which we were informed were made unconditional on 18 July 2003, the Mines will be operated by Elura Mines. 4 In proceedings before us the appellant conceded that the award does not apply, by its terms, to operations conducted by Elura Mines. It sought before the Deputy President to extend the operation of the Award to that company and sub-contractors engaged by it and to give absolute preference to assisting employees in any fresh engagements at the Mines. 5 The appellant contended that the decision of the Deputy President was attended by three fundamental errors as follows: 1. His Honour heard and determined Elura's application to rescind the Award in circumstances where the applicant had no standing under the Industrial Relations Act 1996 to bring the application; 2. His Honour granted Elura's application, but it was not reasonably open to him on the evidence to do so; 3. His Honour dismissed the AWU's application without having considered or determined it. 6 On 29 August 2003, the Full Bench refused leave with respect to the first such contention. The matter proceeded with the Full Bench considering the remaining two matters both as to the question of leave to appeal and the merits of the appeal. 7 In our view the appellant has at least made out a case with respect to the third ground for the appeal, set out above, namely, that, in substance, the appellant's application was not considered or not adequately considered and thus not properly determined by the Deputy President. That error can be characterised as jurisdictional in nature as was submitted by the appellant. 8 In making this Statement, and in considering the appropriate orders on the appeal, we have been guided by the fact that this matter is attended by some real urgency. This urgency is created by two circumstances (although the respondent Elura Mines only accepted the first of these): 1. It is necessary to determine the appeal urgently so as to bring the matter to an early conclusion, essentially for the same reasons that were raised with the Deputy President for the early disposition of the first instance proceeding (namely the conditional sale arrangements). 2. Upon the upholding of the appeal, there remains serious unresolved issues as to the final form of award regulation for the Mines. This is, so as it is conceded by the appellant and all parties, that the Award does not apply to the future operations of the Mines. It also arises because, whilst there is presently a common rule award operating generally in the metalliferous mining industry, there remains extant an application by the appellant to continue the operation of the existing enterprise award. The resumption of mine operations at least in the redevelopment phase is imminent and in that respect, and subject to the appeal, there is an application for absolute preference in respect of current employees as at April this year. 9 We have determined that leave to appeal should be granted and that the appeal be upheld. We also consider that it is appropriate that the orders made by the Deputy President rescinding the award be quashed and that interim measures be put in place to deal with both the extant application by the appellant (and with it the application for rescission by Elura Mines) and the industrial dispute arising in relation to the regulation at the mine. We note, in that respect, that we have determined that the matter should be referred to Grayson DP to be dealt with on an urgent basis. The arbitration of the matter shall proceed upon the basis that there is an existing enterprise award, a common rule award in the metalliferous mining industry and a dispute as to some conditions in the existing enterprise award. 10 In those circumstances, we make the following orders and awards: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The orders of Sams DP of 17 July 2003 are quashed. 4. The matter is remitted to Grayson DP to hear and determine the applications as a matter of urgency. 5. In the intervening period, the Full Bench makes orders and awards preserving the subject matter of the applications as follows: (i) In employing persons at the Mines, Elura Mines shall ensure that it and any prospective employer at the Mines (with whom it contracts) shall firstly consider applications for employment by former employees at the Mines and in the case of rejected applications shall keep a record of all interviewing processes and reasons for any rejection. Any such rejected application shall, to the extent of any order made, be subject to any order for preference on a retrospective basis; (ii) Any such prospective employers at the Mines shall be advised by Elura Mines that there is an outstanding arbitration as to an award to regulate employment at the Mines and shall be provided with details of the arbitration and where Elura Mines contracts for the performance of work at the Mines, it shall ensure that such contractors comply with this order in respect of their employees; (iii) Liberty to apply to the extent necessary, to make any ancillary or supplementary orders or awards, or more formal award, to ensure that orders and awards (i) and (ii) shall operate effectively; (iv) The interim award so made pursuant to s 16(4) of the Industrial Relations Act 1996 shall commence on the date of this statement and remain in force for a nominal term of two months subject to any further award or order by this Full Bench or Grayson DP; (v) The phrases "Elura Mines" and "the Mines" shall, in these orders and awards, have the same meanings as given to them in the Full Bench's Statement of 11 September 2003. That is "Elura Mines" means Elura Mines Pty Ltd and "the Mines" means the workplace the subject of the proceedings. 11 The Commission shall provide full reasons for its decision in this matter as soon as practicable. ____________________ 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.