Industrial Relations Commission of New South Wales CITATION : OneSteel Manufacturing Pty Ltd Newcastle Rod & Bar Award. Application by OneSteel Manufacturing Pty Ltd for variation re clause 4, Eligibility for Payment [2003] NSWIRComm 126 APPLICANT OneSteel Manufacturing Pty Ltd PARTIES : RESPONDENTS The Australian Workers' Union, NSW Electrical Trades Union of Australia, NSW Branch Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch FILE NUMBER: IRC 1088 of 2003 CORAM: Harrison DP CATCHWORDS : Application for variation of award to disentitle payment to March 2003 quarter productivity payment - breach of disputes procedure by strike action - insistence on compliance by mangement with change process - Notification pursuant to s130 required - alternative breach found by management and union. Held - breach by both parties not grounds for removal of payment - variation refused. LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Matter No IRC 759 of 1992, Notification under s204 by Federated Ironworkers' Association of Australia, NSW Divn of a dispute with Australian Wire Industries Pty Ltd re restructing site agreement covering quarterly productivity payment (Harrison CC, 11/6/93, unreported) HEARING DATES: 03/28/2003 DATE OF JUDGMENT: 05/09/2003 APPLICANT Mr D Lloyd, Solicitor of Blake Dawson Waldron LEGAL REPRESENTATIVES: RESPONDENTS Mr K Maher, AWU Ms M Kennedy, AMWU Mr I Edwards, ETU JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 9 May 2003 Matter No IRC 1088 of 2003 OneSteel Manufacturing Pty Ltd Newcastle Rod & Bar Award Application by OneSteel Manufacturing Pty Ltd for variation re clause 4, Eligibility for Payment DECISION [2003] NSWIRComm 126 1 This is an application by OneSteel Manufacturing Pty Ltd ("the company") seeking variation of the OneSteel Manufacturing Pty Ltd Rod & Bar Award 2001 335 IG 178 ('the Award') by insertion of provisions in clause 4 of Appendix 2, the effect of which is to disentitle employees of the company employed in the Newcastle Rod Mill engaged in industrial action during the period 1 January to 31 March 2003 to a quarterly lump sum payment under the Performance Recognition Payment Scheme ('PRPS') for the quarter ending 31 March 2003. 2 The variation sought is in the following terms: No quarterly lump sum payment shall be made for the quarter ending 31 March 2003 to an employee of OneSteel Manufacturing Pty Ltd employed at the Newcastle Rod Mill who engaged in industrial action in the period 1 January to 31 March 2003 contrary to clause 34, Procedures for Resolving Claims, Issues and Disputes, of this award. In this clause "industrial action" has the same meaning as in the Industrial Relations Act 1996. 3 The matter was subject to hearing on 28 March 2003. Mr D Lloyd, solicitor of Blake Dawson Waldron Solicitors, appeared on behalf of the company with Mr S O'Connor and Mr S Cook. Mr K Maher appeared on behalf of The Australian Workers' Union, NSW (AWU) with Mr W McGuiness and Mr D Perkins. Ms M Kennedy appeared on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch (AMWU). Mr I Edwards appeared on behalf of the Electrical Trades Union of Australia, NSW Branch (ETU). 4 Mr Lloyd brought evidence from Mr S O'Connor, the Newcastle Rod Mill Manager. 5 Mr Maher brought evidence from Mr W McGuiness, Level Four Operator at the Newcastle Rod Mill and AWU delegate; and Mr D Perkins, Level Four Operator at the Newcastle Rod Mill and AWU delegate. 6 Mr Lloyd went to the provision of a PRPS scheme found in clauses 2 and 3 of Appendix 2 of the Award at 335 IG 220 in the following terms: 2. Purpose of Agreement The parties acknowledge that the continued viability of the OneSteel Manufacturing Rod & Bar Mills is dependent on achieving significant gains in Business Performance. Hence, maintenance of existing benefits and the introduction of additional payments can only be justified and financially supported through constantly improving business performance. Therefore it is the purpose of the Agreement to assist in achieving the critical business plan objectives. To this end, the parties commit themselves to co-operating in measures to achieve lower operating costs, improved quality, improved delivery performance and increased productivity, all of which will contribute to improved business performance and job security. Recognise the contribution of employees to improved performance as this occurs. 3. Quarterly Lump Sum Payment In addition to other payments, there shall be a quarterly performance recognition payment directly related to business performance improvements as indicated by the performance against set targets. The performance measures operating will be focused on specific critical improvement targets identified in the Business Plan. The specific measures and the targets will be reviewed at least annually following completion of the site Business Plan for each financial year, but may be reviewed more often if circumstances dictate such a need. Payments under the scheme will be made at the end of each quarter, based on performance outcome against targets and will be calculated as a percentage of each eligible employee's gross earnings for the quarter. For the purpose of calculating payments under this scheme, gross earnings shall be defined as award rates, bonus, overtime payments, shift allowances and payments for periods of leave in that quarter. Payments of up to 4.5% of quarterly gross earnings will be made for attainment of reasonably achievable performance targets; these payments can reach 5.5% in any quarter for achievement of exceptional levels of performance. There shall be a provision for a "top-up" payment, to the 4.5% reasonably achievable level, in the final quarter of each year should the payments made for the individual quarters not reflect the full year's performance. In the event of a catastrophe (such as a major fire) which occurs after targets have been set for a quarter, there will be a review of the targets so they remain reasonably achievable, notwithstanding the effects of the catastrophe. 7 Mr Lloyd put that the substance of the instant application is breach of clause 5 of Appendix 2 of the Award found at 335 IG 221 which connects the disputes procedure and the PRPS in the following terms: 5. Procedures for Resolving Claims, Issues and Disputes The parties to this agreement recognise that industrial disputation is damaging to the business and employees alike. It places at risk both the long term viability of the business and the employment security that it currently provides. It is also recognised that industrial stoppages will significantly reduce the potential payments flowing to employees from this scheme. The parties acknowledge the procedures for resolving claims, issues and disputes as an Award clause and obligation to be observed by management, employees and the unions. It is the objective of the parties to this agreement that all issues and disputes shall be resolved through the agreed procedures without interruption to work. In the event of the failure to achieve this objective any of the parties may refer the question of the future continuance of this agreement either partially or in its entirety to the Industrial Relations Commission for determination. [EMPHASIS ADDED] 8 Mr Lloyd supported the application in the following terms: 1. Since July 2002 employees of the Applicant employed at the Newcastle Rod Mill who are members of the Respondents have engaged in certain industrial action contrary to the agreed dispute resolution procedures, as detailed in the particulars below. 2. Having regard to the objectives of the PRPS, it is not fair nor reasonable for quarterly performance payments to be made to employees who do not comply with their obligations to follow the agreed dispute resolution procedures. 3. Arising from industrial action at the Newcastle Rod Mill in July 2001 a different direction was sought that no PRPS payment for the quarter ended 30 June 2001 be made to any employee who engaged in that industrial action. The industrial action is that occurring on 27 and/ or 28 June 2001 (matter no IRC 4676 of 2001) and on 26 July 2001. The issue was settled on terms including: a) an acknowledgement by the unions and their members of the necessity of complying with the agreed dispute resolution procedures; b) a commitment by the unions and their members to comply with the agreed dispute resolution procedures in the future; c) appropriate communication to Rod Mill employees about adherence to the agreed dispute resolution procedures (this communication was subsequently effected); d) payment of the PRPS for the quarter ended 30 June 2001 on 30 September 2001 provided that Rod Mill employees complied with the agreed dispute resolution procedures during the quarter ended 30 September 2001 (in addition to payment of the PRPS for the quarter ended 30 September 2001). 9 Mr Lloyd put that the company relied upon five incidents of strike action by Rod Mill employees since July 2002 to support the application. These are the three occasions referred to above and two incidents of strikes action occurring within the current quarter, specifically on 13 January continuing to 16 January 2003; and on 11 February 2003. 10 Mr Lloyd relied upon proceedings before the Commission as presently constituted and before Connor C arising from industrial action wherein the Commission emphasised the obligation to and benefits of adherence to the disputes resolution procedure. 11 In particular Mr Lloyd referred to Matter No. IRC 4179 of 2002 on 22 July 2002 in which the Commission as presently constituted stated: "Well, I understand that submission, Mr Maher, but the difficulty with it is this, that there will always be from time to time decisions of the company that are wrong and incite your members to great objection. If this is a decision that the company has taken which is plainly wrong, as you suggest, strike action is not the remedy. The spirit and intent of the Dispute Settlement Procedure is not to take strike action in the face of decisions made by the company that are plainly wrong." Matter No IRC 5260 of 2002 in proceedings before the Commission as presently constituted on 11 February 2003 in declining a request for private conference in which the Commission said: "I'm reluctant, I must say, because the behaviour, and the issues that are presented to me, don't justify the investment in my time. It just seems to be a totally crazy situation, and if people are going to think, in any circumstances, that they can ask any employer to sit someone idle, while they call other people in and pay them penalty rates, then they've got rocks in their head, and it doesn't need a private conference for me to tell them that. Now, if they can't talk to one another, and they get into a screaming match every time they try to address an issue, then I don't know what I'm going to offer them in private conference, because that seems to be the history here. We've had a number of walkouts on the back shifts, where tempers have got the better of people, circumstances have got the better of people, and it seems to be there's a real leadership issue. … … I have to say, Mr Maher, it appears simply to be a resentment of management trying to manage. If there's no other issue than that, then it's something your members and delegates are going to have to think hard about, and get over, because, what's been made plain in the last couple of months of these proceedings, is that the Rod Mill may have suffered over the last decades, of lack of management and lack of interest, because the main issues were in the steel making area. But, it's very clear that the Rod Mill now has to be managed, and managed competently, in terms of a business that's looking towards its survival in a contemporary market place. I see nothing unusual, or spectacular, about filling a casual vacancy with someone who has no other work to do." 12 Mr Lloyd further relied upon a decision to withhold payment of PRPS in Matter No. IRC 759 of 1992 on 11 June 1992 before Harrison CC (as I then was). This matter was argued by Mr Stoker for the AWU. The relevant aspect of the decision referred to by Mr Lloyd is at pp 4 and 5 in the following terms: "Mr Stoker sought payment to the sixty nine people involved in the strike action to the basis that the scheme was new and they had not fully comprehended their obligations to the disputes settlement procedure. Mr Stoker put that the employees affected had met all other implementation requirements. The company opposed payment on the basis that adherence to the dispute settlement procedure was an integral and important part of the implementation requirements and that the productivity payment scheme required all implementation activities to be carried out to qualify for payment. It is impossible to accept Mr Stoker's submission that employees were unaware of their obligations and in particular the adherence to the disputes settlement procedure. The detail of the agreement was subject to extensive consultation and negotiation between the parties, and close examination during the proceedings before the Industrial Commission in Court Session. Disputes procedures, payments therefore, and commitments to adhere thereto have been features of several agreements between the parties in recent times. In all matters and in particular adherence to the disputes settlement procedures it must be that commitments made will be adhered to. Patience is wearing thin in circumstances where commitments made are not met. The issues that are raised here are indeed quite simple and straight forward: - Did the employee commit to follow the disputes settlement procedure? The answer is yes, recorded in the proceedings before the Industrial Relations Commission of New South Wales in Court Session - Did the employees breach that procedure and in so doing breach their commitment? The answer is yes, recorded in the proceedings in Matter 406 of 1992 Any reading of the performance recognition payment scheme agreed between the parties as presented to the Industrial Relations Commission of New South Wales in Court Session results in a conclusion that the employees have not met their end of the bargain and are accordingly not entitled to payment." 13 Mr Maher opposed the application for variation, putting further that the AMWU and ETU should not be included in the application as collective decisions made by Rod Mill employees some years ago bound the AMWU and ETU to support AWU members when industrial action was taken. 14 Ms Kennedy and Mr Edwards concurred with the submissions by Mr Maher. 15 Mr Maher submitted that although the company relied upon five previous stoppages, the relevant industrial action for the purposes of the Application must be confined to stoppages of work occurring in the current PRPS period, ie 1 January 2003 to and 31 March 2003. Mr Maher submitted that both stoppages were the result of the company failing to follow the disputes settlement procedure in the Award. 16 Mr Maher relied upon the evidence of Mr McGuiness in respect to the stoppage on 13 January to 16 January 2003. Mr McGuiness deposed that this event arose from a decision by the company to remove the Mill crane driver from the day shift. 17 Mr McGuiness put that a conference involving the company and relevant delegates had occurred prior to the stoppage with no agreement to remove the crane driver position. 18 Mr McGuiness submitted that he was notified at the conference that the crane driver position was to be removed the following Monday. Mr McGuiness outlined the circumstances leading to the industrial action of 13 January 2003 in the following terms: "We were notified at the conference that as of the Monday, the crane driver was going to be removed - that was, I think from memory, on the Thursday prior. On the Monday after our safety meeting, we sought an interview with Scott O'Connor, to ask him to reconsider his position and allow it to go back to the Commission, as it was already in dispute - had been before the Commission beforehand. There was a fair bit of conversation around it, but the decision was made by Scott that he would continue on, and I told him that we had instructions that we if we were to do that, we were going to the car park to have a meeting. We went to the car park, had a meeting and in the middle of the meeting they were still trying to get us to resume work, and several times through that meeting, I actually stopped the meeting and came back and, and this was with Ivan Stevkovski, my co-delegate, to put the view of the people together again, and still impress him that we wished to continue down the track of going to the Commission, and getting a decision from the Commission. And every time we came in Scott - Mr O'Connor, made it very clear that he was the manager of the Mill, and he was directing us to work without that operator. The outcome of it was we ended up being - going home for that shift and have a mass meeting the next day." 19 In cross examination Mr McGuiness conceded that within proceedings before the Commission a proposal had been developed which involved removal of the crane driver position. This proposal had been considered by employees at mass meetings, without acceptance or rejection as no vote was taken. 20 At the time of the January incident the proposals remained "under consideration" but apparently "not active consideration". 21 Mr Maher relied upon the evidence of Mr Perkins in respect to strike action on 11 February 2003. The evidence of Mr Perkins is found at transcript page 24 in the following terms: "It was a labour shortage issue - not actually a labour allocation issue - as far as I and all the other employees on shift were led to believe, we were one person down, on the night, and we asked management to source another person to come in, to fill the position. Management told us that they would not do that, so in cases of labour shortages, when we haven't got enough people, we've got agreed options where we either down-man, or we only run one side of the mill - only one strand of the mill, so we either run one side of the mill or we down-man and let people have breaks and put the Mill down for breaks. We asked management if they would consider that - they were our agreed alternatives, and they said no, we will not consider that, and that was when management asked us to get out onto the job, we said no, we haven't got enough people- it's a safety issue and they proceeded to stand us down until midnight." 22 Mr Perkins deposed that the down-manning arrangement between the company and employees had been in place since 1992 and operating without issue or discord. 23 Mr Perkins' evidence is that the company has prepared a manufacturing strategy which included among other matters a change to the down-manning arrangements to provide for work to be performed with less people as opposed to overtime or limiting operations. The evidence of Mr Perkins is that the "Manufacturing Strategy" remains in dispute. 24 Mr Perkins deposed that he put to Mr Bruce Morris, as the relevant management representative, that the down-manning procedure be applied or overtime be utilised to solve the immediate issue on that particular shift. 25 Mr Perkins' evidence is that this was refused by Mr Morris who insisted that work proceed utilising employees available in allocated tasks. This was not accepted and employees were stood down for refusal of duty. 26 Mr Perkins put that employees were provoked by the company's insistence to operate the plant with 25 employees. Mr Perkins put that the night shifts prior and subsequent to the strike operated with 26 employees. 27 Mr Perkins further deposed that when his shift returned after the stoppage management brought an employee in on overtime to cover the vacancy. 28 Mr Perkins conceded that management had wanted a third trimmer to be used to replace the absent employee but submitted that only two trimmers were working on the shift. 29 Mr O'Connor's evidence acknowledged that industrial action of 13 to 16 January 2003 was the result of a long running issue surrounding the company's intention to remove the position of dedicated crane driver within the Rod Mill. 30 Mr O'Connor acknowledged that a proposal was developed which was neither accepted or rejected by employees. Mr O'Connor's evidence is that the resolution by employees was for further discussions to occur and a further proposal be put to the company. 31 Mr O'Connor deposed that this resolution was conveyed to the company on 9 January 2003 which was considered an unsuitable outcome. Mr O'Connor states that he made it clear at the meeting on 9 January 2003 that it was his intention to remove the crane driver. 32 The evidence of Mr O'Connor is found at p35 of transcript in the following terms: At a meeting - an industrial conference which I think, was on 9 January, that resolution was put to the company, and we explained that was not suitable. We'd had months of discussion and people were very clear on the agreement, on the proposal, and it was time we got some agreement. I made it clear at the meeting, that my intention was to go ahead and implement the terms of the proposal, and that was to remove the crane driver, and also introduce term hire into our finishing end of the Mill". 33 Mr O'Connor deposed that he understood the union gave license to proceed with removal of the crane driver position, putting that Mr McGuiness, whilst not agreeing to the change, stated that there was management prerogative to do so. This, Mr O'Connor deposed, was in the context of specific objection and threatened industrial action in respect to other changes. The other changes were not pursued and remain live issues to be progressed in accordance with the disputes procedure. 34 Mr O'Connor deposed that he was aware of opposition to removal of the crane driver at the meeting of 9 January 2003. It is Mr O'Connor's evidence that, resulting from the comments of Mr McGuiness, he believed that the removal of the crane driver would be tolerated (if not accepted) without industrial action. 35 Mr O'Connor's evidence is that on the morning of Monday 13 January 2003 delegates informed him that if the crane driver position was removed there would be a stop work meeting with no guarantee as to the outcome. Mr O'Connor contended that he was bound to go ahead with the change and asked the delegate to explain to the employees at the mass meeting that there would be no reduction in numbers of people employed in the Mill, simply a re-allocation of tasks. 36 In cross examination Mr Maher put to Mr O'Connor that as opposition existed to his proposal work should have proceeded as normal and the Commission notified. Mr O'Connor's evidence is that at the time this wasn't his view. 37 Mr Maher relied upon clause 34 (i) which states in the following terms: "To enable claims, issues and disputes to be progressed while work proceeds normally the procedure outlined in this clause will apply." 38 Mr O'Connor deposed that he interpreted the clause that production would continue. MANNING ISSUE 39 Mr O'Connor acknowledged that the strike action taken by afternoon shift employees of the Mill on 11 February 2003 arose from the company's intention to reduce the amount of trimmers from three to one. 40 Mr O'Connor's evidence is that the customer requirement for trimming of product has diminished over time. Mr O'Connor's evidence is that as a result of arrangement with customers quite some time ago not to trim D-formed bar, only two persons have been allocated to the trimming task when D-formed bar is manufactured. Mr O'Connor put that more recent arrangements with customers have resulted in a reduction of trimming requirements on all reinforcing materials. 41 Mr O'Connor deposed that he informed the AWU of the consequent changes at a meeting in February 2003. Mr O'Connor's evidence is that the agreed outcome of this meeting was to work with two trimmers and continue to consult on reducing this to one. 42 In cross examination Mr O'Connor agreed there was a long standing agreement in regard to the minimum crewing of 26 as the base upon which the down-manning arrangements applied. Mr O'Connor put that due to the reduced requirement for trimming 25 employees were adequate to meet the shift requirement on 11 February 2003. 43 Mr O'Connor deposed that the intended changes had been made clear to employees and that the employees had a number of days to raise issues with him prior to 11 February 2003, adding that no issue of objection had been brought to him. 44 Mr O'Connor deposed that on 11 February 2003 he received a call at home informing him that there wasn't a full crew available and that it was intended by the company to use the third trimmer to cover the vacancy based on discussions from the previous week. This proposition was not accepted by Rod Mill delegates who wanted the third trimmer to be allocated to training and the vacancy to be covered with overtime. 45 It is Mr O'Connor's evidence that covering the vacancy with overtime was not necessary as only two trimmers were required for trimming and that it was not disputed that there were only 25 actual positions in the Rod Mill that night. 46 Mr O'Connor deposed that a meeting was held that night in which no agreement could be reached, he then suggested that an industrial conference be held with a union organiser and the company's industrial officer that night. 47 It is Mr O'Connor's evidence that following the unavailability of union representatives the delegates immediately held a mass meeting, the result being a resolution allowing continuation of work on the condition that the Mill be stopped to allow crib breaks unless the vacant position was filled by overtime. 48 Mr O'Connor deposed that he told the delegates that if the Mill was stopped for crib breaks people would be stood down. The Mill was stopped and employees stood down. 49 It is Mr O'Connor's evidence that when the following shift attended for work a mass meeting was held, the result being strike action by all employees. SUBMISSIONS 50 Mr Maher submitted that the evidence of Mr McGuiness and Mr Perkins demonstrates the company's disregard to their obligations pursuant to clause 34, Disputes Settlement Procedure of the Award. 51 Mr Maher submitted that there is substantial opposition by employees to the Rod Mill manufacturing strategy and that this opposition had been made clear to the company, thus invoking the obligation to take the issue to this Commission in accordance with the disputes settlement procedure. 52 Mr Maher submitted that the same principles apply for the company as they do for the employees whereby if there is disagreement then the company can work under protest and follow the disputes settlement procedure in accordance with clause 34 of the Award. 53 Mr Lloyd opposed Mr Maher's interpretation of the disputes settlement procedure stating that clause 34 requires that dispute processes are to be followed without recourse to industrial action. 54 Mr Lloyd contended that clause 34 does not restrain the company's rights as an employer in relation to exercising reasonable directions for the performance of work. Mr Lloyd submitted that clauses 34(v) and 27 (xii) and (xiii) of the Award support this contention. 55 Mr Lloyd submitted that the events in January and February concern reasonable directions by the company following extensive consultation and with prior notice to employees and that the Award disputes procedure cannot be invoked to block reasonable directions of the employer. CONSIDERATION 56 An extempore decision was issued on 28th March 2003 that the circumstances in this Application do not justify withdrawal of the PRPS payments from AMWU and ETU employees. I strongly recommended that each of these industrial organisations re-visit and review the notion of one out, all out and blanket support; these notions have no place in contemporary industrial relations and can be counter productive to those people they are trying to support. So far as the members of the AWU are concerned the issues are more finely balanced and require careful and deep consideration. I reserved my decision in respect to those issues. 57 I now turn to the position of AWU members. 58 The provision of clause 5 of Appendix 2 of the Award makes plain that observance of the procedure is an "obligation to be observed by management, employees and the unions". 59 The facts to emerge in this matter reveal a failure by management in pressing the removal of the crane driver and a failure by employees in the down-manning issue. There is no failure by any full-time official of the union. Employees, members of the unions, would do well to heed the advice and leadership available to them from their union. 60 There is room for the view that Mr O'Connor was misled by the remarks of Mr McGuiness to believe that he faced no active opposition to removal of the crane driver's position and accordingly that matter was not in dispute, and therefore not an issue subject to the provisions of the disputes settlement procedure. 61 This is a convenient and I think naïve view, having regard to the content of the exchange. Mr McGuiness could have been more direct in his language (at the risk of being considered confrontational), however, the consequences and continued opposition were clearly implied in the reference to management prerogative. 62 In any event, Mr O'Connor was left in no doubt that there was opposition to removal of the crane driver's position on Monday, 13 January 2003 when he was informed that his insistence on removal rather than submitting the matter to arbitration would result in a stop work meeting. 63 The events of 11 and 12 February are clearly different. Mr Perkins took a completely unreasonable and unsustainable position. The evidence reveals adequate consultation and clear foundation for the company's action. The use of the disputes procedure in these circumstances is in my view a clear and blatant abuse and misuse of that provision. 64 The disputes procedure is, apart from and in addition to a legal imperative, an arrangement of mutual benefit, the balance of advantage falling with the employees and their unions. 65 The phrase "without interruption of work" as found in the Award disputes procedure received some limited attention by the parties. 66 The AWU advanced a notion of the "status quo", that is disputed changes do not occur until the procedure has been followed and issues resolved. Management advanced a notion of "compliance with management direction" pending resolution of the issues. Neither is absolutely correct. Practice appears to support the status quo argument while the language tends more toward the management contention, albeit a proposition industrially untenable in universal application. 67 The disputes procedure is a process, it is not a panacea or formula for abdication of common sense and reasonable reaction to circumstance. It is in my view greatly misguided to regard the disputes procedure as merely a restraint upon industrial action by employees. Such approach is not only a superficial view but denies the substantive advantage to both parties. Properly approached, the disputes procedure is primarily a process of communication and issue resolution with restraint on both management and employees to provide for continuity of business and earnings whilst mutually beneficial solutions are found. The primary right is to the employees to avail themselves of this procedure to, where necessary, ensure issues of concern to them are given a high priority by management; and, where unsuccessful, to have this Commission intervene. 68 There is an obligation upon the union, and particularly the delegates, to give voice to their views in a proper and professional manner. It reflects little credit upon the participants that no objection or issue was put to Mr O'Connor in respect to the manning issues prior to 11 February 2003 despite the opportunity to do so. 69 It is dangerous, foolhardy and contrary to the interests of employees to abuse this process by regarding it as an absolute constraint upon management regardless of merit. Such an approach, as demonstrated by the actions of delegates involved in the manning dispute, is as shallow and misguided as the view that the disputes procedure is only a restraint upon the union. 70 It is recommended both parties examine the disputes settlement procedure and their obligations thereto. The actions taken by both parties demonstrates failure to comply with the disputes settlement procedure which must be rectified for the future. 71 A further issue of concern with the present application is the absolute terms in which it is brought. Whilst there may be a case for reduction of the PRPS payment below what appears to have become a benchmark 4.5%, no such application is made. What is sought here is all or nothing. I note that the Award provides for payment of up to 4.5%, with ability to achieve more in exceptional circumstances. I am not favoured with quantum of payment to be removed in the March quarter, leaving open the question of the actual effect on productivity and business performance arising from the disputes in January 2003 and February 2003, creating room for a view that a negative effect should result in a payment less than 4.5%. 72 The application for variation is refused. oo0oo 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.