Industrial Relations Commission of New South Wales CITATION: BlueScope Steel (AIS) Pty Limited v. Australian Workers' Union [2005] NSWIRComm 1027 APPLICANT BlueScope Steel (AIS) Pty Limited PARTIES: RESPONDENT Australian Workers' Union FILE NUMBER(S): 6951 of 2004 CORAM: Connor C industrial dispute - strikes - equitable jurisdiction - supplementary decision - revival of lapsed dispute orders CATCHWORDS: LEGISLATION CITED: Industrial Relations Act 1996 Colliery Employees Federation v. Northern Colliery Proprietors Association (1904) AR 182 CASES CITED: Holy Family School Case (1975) AILR Rep 1046 HEARING DATES: 02/25/2005 EXTEMPORE JUDGMENT DATE : 02/25/2005 APPLICANT Aaron Dearden Blake Dawson Waldron LEGAL REPRESENTATIVES: RESPONDENT Andy Gillespie Australian Workers' Union DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 25 February, 2005 Matter No IRC 6951 of 2004 BlueScope Steel (AIS) Pty Limited and the Australian Workers' Union, New South Wales Dispute notification under S.130 of the Industrial Relations Act, 1996 re strike action by products berth operators SUPPLEMENTARY DECISION [2005] NSWIRComm 1027 1 A notification of an industrial dispute has been lodged for and on behalf of BlueScope Steel (AIS) Pty Limited under S.130 of the 1996 Industrial Relations Act. Members of the Australian Workers' Union, employed as operators by BlueScope Steel at its products berth at Port Kembla had commenced a strike on Monday, 29 November, 2004. Those employees are covered by the terms of the BlueScope Steel (AIS) Pty Limited - Port Kembla Steelworks Employees Award and the BHP Steel (AIS) Pty Limited Port Kembla Products Berth Enterprise Development Agreement (with respect to which negotiations were taking place between BlueScope Steel and the AWU). 2 The S.130 notification was allocated to me and I set it down for a conference on Monday, 29 November, 2004 (in the Commission's premises at 90 Crown Street, Wollongong). I recommended a resumption of work and certain assurances were given by Mr Gillespie, representing the AWU in the proceedings at that time. The employees resumed work. I adjourned the matter for a further conference on Wednesday, 1 December, 2004 (in Sydney) with a view to further conciliation and stood the matter over generally at that time on the basis of the recommendation I had made. 3 I understood that at the centre of the dispute were stalled negotiations for a new enterprise agreement covering the employees and, in particular, the employees' wish to preserve their entitlements - stevedoring rates - in any restructuring and integration of warehouse operations for BlueScope Steel. Discussions between the AWU and BlueScope Steel in a consultative committee had been continuing - amicably enough, it would seem to me - and changes had progressively been implemented on the restructuring but a stalemate now appears to have developed concerning the requirements that stevedores under contract by Toll Stevedoring be engaged to pre-receive product at the No.2 products berth. 4 As an interim measure, Mr Gillespie had proposed in the conference proceedings before me on Monday, 29 November, 2004 that the employees be permitted to stack on a part of the wharf which he referred to as the "grey area", ie an area beside the warehouse on the wharf. I recommended that until the matter resumed before me on Wednesday, 1 December, 2004 BlueScope Steel stack in the "grey area" - as a short term measure only. That recommendation lapsed by Wednesday, 1 December, 2004. 5 The discussions in the proceedings before me on Wednesday, 1 December, 2004 centred on current negotiations between the AWU and BlueScope Steel for a new enterprise agreement. The AWU was seeking a three year enterprise agreement, presumably to preserve for the employees the stevedoring rates which they are presently receiving during that time. BlueScope Steel, influenced by the restructuring which was taking place with consultation with the employees and concerned to place unnecessary barriers in the way of that restructuring, was prepared only to negotiate a twelve month enterprise agreement at this time. 6 That matter remained a fundamental issue for the parties in further discussions. However, I commented (at p.3) in a statement of Wednesday, 1 December, 2004 that: "...it appears to me that the issues in dispute may be addressed effectively by some written assurances and commitments to the employees by BlueScope Steel and, to that extent, the duration of the proposed enterprise agreement may not be the issue at all... Irrespective of the duration of the proposed new enterprise agreement ultimately flowing from those discussions, it would seem to me that much of the employee's concern may be resolved by some commitment of that nature being made by BlueScope Steel to the employees relating to the preservation of their existing entitlements..." I recommended that the AWU and BlueScope Steel resume their discussions over the enterprise agreement with a view to providing some assurances to the employees and stood the matter over generally, reserving the right of either party to seek the re-listing of the matter. 7 Instead, the AWU members engaged at the No.2 products berth ceased work on Monday, 6 December, 2004. At the request of BlueScope Steel the conference proceedings were reconvened on Tuesday, 7 December, 2004 (in Sydney). Mr Dearden, representing BlueScope Steel in the proceedings, pressed that I issue dispute orders against the striking employees under S.137(1)(a), viz: "The Commission may order a person to cease or refrain from taking industrial action." I indicated in a decision I issued at that time (p.4) that: "...I do not see how this further industrial action is going to constructively advance the matter in dispute between the parties. And BlueScope Steel regards the strike as a serious issue, causing major disruption to its transport logistics operations. I believe I have no choice in the matter and must proceed to make the dispute orders..." 8 I issued the certificate of attempted conciliation required by S.135, lodged it in the prescribed manner and proceed into arbitration, issuing the dispute orders sought by Mr Dearden, viz: (i) that members of the AWU employed at the products berth immediately cease and refrain from taking any form of industrial action; and (ii) that the AWU, its officers and employees take all reasonable steps to ensure compliance with that dispute order. I further directed that, upon resumption of work by the employees, the AWU and BlueScope Steel management resume further discussions concerning the issues in dispute. I stood the matter over generally on that basis with liberty for either party to seek the re-listing of the matter. The dispute order remained in force until Monday, 10 January, 2005. Consequently, they have now lapsed. 9 On Thursday, 24 February, 2005 Mr Gillespie forwarded a brief memorandum by facsimile transmission to me seeking the re-listing of the matter. However, the employees commenced a strike on that day as well and I received a request made for and on behalf of BlueScope Steel for the re-listing of the matter. I set it down for a conference on Friday, 25 February, 2005 (in Wollongong). I was informed in the proceedings that the strike was continuing. Mr Gillespie has sought my assistance in chairing a conference to resolve outstanding issues in the negotiations for the new enterprise agreement. I am certainly willing to assist in that regard and would have commenced that process on Friday, 25 February, 2005 were it not for the industrial action by the employees. 10 I fail to see how further industrial action by the employees is going to constructively advance their position. There is no sense, on the one hand, in requesting the Commission's assistance and, on the other hand, embarking on industrial action which is contrary to the orderly processes in resolving disputes on which the Commission depends. My intention was to devote time on Friday, 25 February, 2005 to assist in conciliation for issues in dispute - essentially, to pursue the course of action proposed by Mr Gillespie. I have been frustrated in that attempt by the industrial action. Instead, Mr Dearden sought that I revive the dispute orders which had lapsed. What else may I effectively do but revive them now? The employees give me no other option. 11 The employees must appreciate that, by virtue of S.163(1)(c), I exercise an equitable jurisdiction in this hearing [Colliery Employees Federation v. Northern Colliery Proprietors Association (1904) AR 182 at p.185 and the Holy Family School Case (1975) AILR Rep.1046]. With any equitable jurisdiction comes the maxim that parties must come to it with clean hands, ie relief in equity is denied to a party also at fault. By taking industrial action, the employees are not helping their position. On the contrary, they are simply denying any assistance that the Commission would be prepared to give them. 12 I revive the following dispute orders. Mr Dearden also indicated that the current offer from BlueScope Steel will expire on Friday, 25 February, 2005. I will reconvene these proceedings and chair a conference to conciliate the matter as Mr Gillespie requested at 12.00noon on Monday, 28 February, 2005. I also direct BlueScope Steel to extent the offer it has made so that it remains on the table for those proceedings. O R D E R 1. The members of the AWU employed by BlueScope Steel (AIS) Pty Limited at the products berth at the Inner Harbour of Port Kembla shall immediately cease and refrain from taking any form of industrial action. 2. The AWU, its officers and employees must take all reasonable steps to ensure compliance with my order in para 1 above. 3. This order shall come into effect on and from 3.00pm on Friday, 25 February, 2005 and shall remain in force until Monday, 30 May, 2005 unless, on formal application, it is varied, rescinded or extended in the meantime. 4. This order may be served by facsimile transmission on either the Wollongong or Sydney offices of the AWU. P J CONNOR Commissioner 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.