Industrial Relations Commission of New South Wales CITATION: BlueScope Steel (AIS) Pty Limited v. Australian Workers' Union [2005] NSWIRComm 1051 APPLICANT BlueScope Steel (AIS) Pty Limited PARTIES: RESPONDENT Australian Workers' Union FILE NUMBER(S): 7187 of 2004 CORAM: Connor C industrial action - revival of dispute orders CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: HEARING DATES: 04/11/2005 DATE OF JUDGMENT: 04/11/2005 EXTEMPORE JUDGMENT DATE : 04/11/2005 APPLICANT Jack de Flamingh Blake Dawson Waldron LEGAL REPRESENTATIVES: RESPONDENT Darryl Anderson Australian Workers' Union DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Monday, 11 April, 2005 Matter No IRC 7187 of 2004 BlueScope Steel (AIS) Pty Limited and the Australian Workers' Union, New South Wales Branch Dispute notification under S.130 of the Industrial Relations Act, 1996 re site agreement SUPPLEMENTARY DECISION [2005] NSWIRComm 1051 1 Pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, a notification of an industrial dispute was lodged for and on behalf of BlueScope Steel (AIS) Pty Limited over a series of strikes and bans imposed by operators, members of the Australian Workers' Union, in its bulk operations department at Port Kembla. The employees are presently covered by the Port Kembla Operations Enterprise Agreement (unregistered) which exceeded its nominal term on Friday, 6 August, 2004. Negotiations for a new enterprise agreement had progressed but had stalled over an issue relating to the appropriate method for bonus payments. Those negotiations have also been accompanied by a series of work stoppages of short duration and, according to BlueScope Steel, an overtime ban and a "go slow" campaign. The AWU has claimed that the series of work stoppages were essentially over a range of safety issues but BlueScope Steel disputes that. 2 The S.130 notification came initially before Grayson DP in proceedings on Friday, 10 December, 2004 and Tuesday, 14 December, 2004 but it was reallocated to me in the absence of Grayson DP in the light of further industrial disruption. I set the matter down for a conference on Tuesday, 11 January, 2005 (in Sydney). At that time I indicated my willingness to assist the parties in the process by setting the matter down for a conference to conciliate with respect to issues in dispute on Monday, 14 February, 2005 (in the Commission's premises at 90 Crown Street, Wollongong). That further conference chaired by me was a request by Mr Gillespie, representing the AWU in the proceedings, to which I acceded. 3 However, all parties should have understood that I would not involve myself in assisting in the negotiations for a new enterprise agreement unless the employees were prepared to pursue their claims in a proper orderly manner, ie without further industrial action on their part. They did not. At the request of BlueScope Steel I reconvened proceedings on Wednesday, 12 January, 2005 (in Sydney). Mr Gillespie did not appear at that time due to other commitments and he requested over the telephone that I adjourn the proceedings. I acceded to that request and proceeded instead on Thursday, 13 January, 2005. In the meantime, I issued the certificate of attempted conciliation required by S.135 and lodged it in the prescribed manner. I did so in the face of a foreshadowed application under S.137(1)(a) by BlueScope Steel restraining the employees from taking further industrial action. 4 I, in fact, issued those dispute orders on Friday, 14 January, 2005 over the objection of Mr Gillespie, effective until Monday, 28 February, 2005 for the reasons I outlined in my decision at that time (at p.6), viz: "...Mr Gillespie has frequently claimed that the Commission issues dispute orders too readily. The fact remains that his members employed by BlueScope Steel so often give the Commission very little scope to do anything else. That certainly appears to be the position on this occasion. The campaign of industrial action on which the bulk handling operators appear to have been engaged does nothing more than place unnecessary barriers in the way of the resolution of the issues in dispute between them and BlueScope Steel management in a proper orderly fashion. I am willing to assist in chairing a conference over the negotiations for the proposed new enterprise agreement, but in the light of the history of this matter, I have no confidence that I may rely on the employees to come to that conference without further unnecessary industrial disruption..." I nevertheless retained the conference on Monday, 14 February, 2005 in my court diary and the matter proceeded into private discussions on that day and on Monday, 21 February, 2005 and Thursday, 24 February, 2005 (in Wollongong) and was stood over generally at that time when conciliation failed to bring the parties to a point of agreement. 5 On Wednesday, 2 March, 2005 I was informed in a letter on behalf of BlueScope Steel that the employees held an unauthorised stop work meeting for over two hours on Wednesday, 2 March, 2005 and resolved, among other things, to perform limited tasks on a vessel in service for BlueScope Steel (the "Iron Kembla") when it was due to berth. BlueScope Steel requested that I reconvene the proceedings. I set the matter down for a further mention on Wednesday, 9 March, 2005, Tuesday, 15 March, 2005 and Tuesday, 29 March, 2005 (in Wollongong). Initially, the vessel was expected to return to berth on or about Friday, 18 March, 2005 but it has been delayed for a number of reasons, including bad weather. It was not due to berth until much later. But when it berthed, the bans would no doubt have come into effect. 6 The ban on the "Iron Kembla" is alleged to be related to safety concerns but BlueScope Steel management believes it is related to breakdown in the negotiations for the new enterprise agreement. In any event, in the proceedings before me on Wednesday, 9 March, 2005 I directed the operators to participate with BlueScope Steel in addressing safety issues by the process of job safety analysis which I understood to be the standard practice in that respect. I also recommended that there be no further industrial action by the operators. I adjourned the proceedings for mention on Tuesday, 15 April, 2005 and Tuesday, 29 March, 2005 (in Wollongong) and again stood over generally at that time. Ultimately, the "Iron Kembla" berthed and was unloaded without any industrial problems. 7 However, on Thursday, 7 April, 2005 the operators held an unauthorised work stoppage to discuss the enterprise agreement negotiations (without any prior notice being given). Staff employees were required to berth another vessel (the "Iron Chieftain"). Following the conclusion of the meeting, the operators commenced an indefinite strike, apparently concerned over the use of staff labour in unloading the vessel. I understand that if the employees had given notice of their impending stop work meeting to BlueScope Steel management, arrangements could have been made to delay the berthing of the vessel. But, as I see the situation, once it berthed the only alternative available to BlueScope Steel was the use of staff labour. On a request made on behalf of BlueScope Steel, I reconvened the proceedings for conference on Thursday, 7 April, 2005 (in Sydney). 8 The employees had resumed work by that time and Mr Gillespie gave certain undertakings that there would be no further industrial action. On that positive note, and at Mr Gillespie's request, I adjourned the proceedings until Tuesday, 10 May, 2005 (in Wollongong) for further conciliation. An earlier date was not acceptable to Mr Gillespie who would be absent overseas for a period and did not want the matter to be advanced further in his absence. I expressed some concern that this matter may be delayed further but accepted Mr Gillespie's wish to retain an involvement in the matter. 9 It is therefore disappointing to receive a letter dated Saturday, 9 April, 2005 on behalf of BlueScope Steel to inform me that the bulk handling operators commenced a further strike at 7.30pm on Friday, 8 April, 2005 and had imposed a ban on the "Pacific Triangle", a vessel currently in berth and which is carrying critical material urgently required for steelworks operations. BlueScope Steel requested an urgent re-listing of this matter. I reconvened the proceedings on Monday, 11 April, 2005 (in Wollongong). 10 I am informed by Mr de Flamingh, representing BlueScope Steel in the proceedings, that the employees have now resumed work and lifted the ban on the "Pacific Triangle" but the history of this matter gives me no confidence that there will not be further industrial action by the employees. Mr Anderson, who represented the AWU in the proceedings, indicated that the employees were concerned over jobs ordinarily performed by them being "....outsourced by stealth...". He raised in issue the cleaning of snub pullies and trays which had been performed by a contractor. Clearly, there is a need for better communication between the parties over this issue and any other issue which may prompt the employees to cease work. I am prepared to assist the employees with any problem they may experience if they follow proper procedure, ie the AWU brings the matter to my attention by way of a S.130 notification. 11 But I am not impressed by any further industrial action by the employees. This game of cat and mouse has gone on long enough. Mr de Flamingh submitted that I should renew the dispute orders which expired on Monday, 28 February, 2005. I propose to do so. Mr de Flamingh sought that the dispute orders extend for three months. I propose that my dispute orders extend for only two months which should be sufficient for the parties to come to some conclusion on all issues in dispute between them. I also direct the parties into further discussions with a view to providing an orderly process for the resolution of any dispute in future. 12 A copy of this order may be served by facsimile transmission to the registered office of the AWU or its Wollongong office. The matter will resume before me for conference, as originally requested by Mr Gillespie, on Tuesday, 10 May, 2005. O R D E R 1. The members of the AWU employed by BlueScope Steel (AIS) Pty Limited in its bulk operations department at Port Kembla shall refrain from taking any further industrial action, including any strike, ban, limitation or restriction on the performance of work. 2. The AWU, its officers and employees must take all reasonable steps to ensure compliance with my order in para 1 above . 3. The AWU and BlueScope Steel management shall resume further discussions concerning all issues in dispute. 4. This order shall come into effect on and from 12.00noon on Monday, 11 April, 2005 and shall remain in force until Monday, 13 June, 2005 unless, on formal application, it is varied, rescinded or extended in the meantime. 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.