Industrial Relations Commission of New South Wales CITATION: Australian Workers' Union, New South Wales v. BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1077 APPLICANT Australian Workers' Union PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): 6951 of 2004 and 2447 of 2005 CORAM: Connor C enterprise agreement negotiations - agreement reached in principle - industrial action as a bar to retrospectivity on wage increase - dispute orders CATCHWORDS: LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 05/17/2005 DATE OF JUDGMENT: 05/20/2005 APPLICANT Andy Gillespie Australian Workers' Union LEGAL REPRESENTATIVES: RESPONDENT Michael Patti BlueScope Steel (AIS) Pty Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 20 May, 2005 Matter No IRC 6951 of 2004 and IRC 2447 of 2005 Australian Workers' Union, New South Wales and BlueScope Steel (AIS) Pty Limited Dispute notifications under S.130 of the Industrial Relations Act, 1996 re retrospectivity on negotiations for wage increase for products berth operators flowing from enterprise agreement negotiations SUPPLEMENTARY DECISION (No.2) [2005] NSWIRComm 1077 1 Pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, BlueScope Steel (AIS) Pty Limited lodged a notification of an industrial dispute which was allocated to me. Operators at the products berth of BlueScope Steel are members of the Australian Workers' Union. They commenced a strike on Monday, 29 November, 2004. The industrial dispute centred around negotiations for a new enterprise agreement to cover the operators. They are currently 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 which had expired and was the subject of current negotiations which had stalled. 2 The history of this matter is important for the issue ultimately before me in this supplementary decision. I set the matter down for a conference on Monday, 29 November, 2004 (in the Commission's premises at 90 Crown Street, Wollongong), recommending a resumption of 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. I understood that the operators wished to preserve their entitlements - stevedoring rates - in any restructuring and integration of warehouse operations for BlueScope Steel. The AWU was initially seeking a three year enterprise agreement, presumably to preserve for the employees the stevedoring rates which they were presently receiving. BlueScope Steel, influenced by the restructuring which was taking place, with proper 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. 3 I commented (at p.3) in a statement I issued on 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 employees' 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. I emphasised during the proceedings that I saw a need for BlueScope Steel to provide some assurances to the employees concerning the preservation of the existing entitlements of the employees. I stood the matter over generally, reserving the right of either party to seek the re-listing of the matter. 4 The operators ceased work again on Monday, 6 December, 2004 and at the request of BlueScope Steel proceedings were reconvened on Tuesday, 7 December, 2004 (in Sydney). BlueScope Steel 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 issued the certificate of attempted conciliation required by S.135, lodged it in the prescribed manner and proceeded into arbitration, issuing the dispute orders sought by BlueScope Steel, 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 again stood the matter over generally on that basis with liberty for either party to seek the re-listing of the matter. The dispute orders remained in force until Monday, 10 January, 2005 when they lapsed. 5 On Thursday, 24 February, 2005 the AWU 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 also received a request made for and on behalf of BlueScope Steel for the re-listing of the matter. I set the matter down for a conference on Friday, 25 February, 2005 (in Wollongong). I was informed in the proceedings that the strike was continuing at that time and I revived the dispute orders, extending them until Monday, 30 May, 2005. I also reconvened the proceedings on Monday, 28 February, 2005 to chair a conference to assist in conciliating the issues in dispute. That was a request made by Mr Gillespie who has represented the AWU in the proceedings. He was opposed to the dispute orders, however (and resentful that they were revived). But it seems to me, depressingly, that dispute orders were the only way that I could guarantee an orderly resolution of issues in dispute. The employees' industrial action left me with no other choice. 6 The matter resumed before me on Monday, 28 February, 2008 and, when conciliation failed at that time, I stood it over generally yet again. The file had remained in that position until Monday, 16 May, 2005 when, the AWU lodged a fresh and urgent S.130 notification and I convened proceedings over it on Tuesday, 17 May, 2005 (in Wollongong), together with the earlier S.130 notification by BlueScope Steel over the industrial action. 7 Agreement had belatedly been reached between the parties who are signing off on a memorandum of understanding as a bridging document for a new enterprise agreement (and the restructuring of operations). I understand that BlueScope Steel has made a number of concessions in the course of the negotiations. But it has rejected retrospectivity before Friday, 25 February, 2005. The AWU is seeking greater retrospectivity on the increased remuneration contained in the proposed enterprise agreement - from the commencement of the negotiations for the enterprise agreement eight months ago. 8 In the proceedings before me on Tuesday, 17 May, 2005 Mr Gillespie represented the AWU and Mr Patti represented BlueScope Steel. Mr Gillespie pressed for greater retrospectivity for the proposed new enterprise agreement but Mr Patti continued to reject further retrospectivity beyond that which BlueScope Steel has already offered the employees, ie from Friday, 25 February, 2005. The issue in dispute from the earlier S.130 notification had been in the arbitration phase. I had issued the certificate of attempted conciliation required by S.135 and proceeded into arbitration, making appropriate dispute orders under S.137(1)(a) and subsequently reviving them. Notwithstanding that fact, however, the dispute remaining between the parties does not appear to me to be a matter capable of determination by arbitration. It is trite to say that I am not able to arbitrate an agreement between the parties: they either reach an agreement on the terms already before them or simply fail to do so. Nevertheless, both Mr Gillespie and Mr Patti are content to conclude the issue in dispute before me on the basis of my recommendation with which they have indicated they are prepared to abide. 9 Mr Gillespie has indicated that the industrial action taken by the employees was not directed specifically to the enterprise agreement negotiations. I must confess that I do not recollect that to have been the position. But in any event, it does not really matter, in my opinion. There is a matter of some principle involved with this AWU claim. I do not believe that I may extend retrospectivity on the enterprise agreement earlier than the resumption of work by the employees following their last strike - the date already agreed by BlueScope Steel. The industrial action taken by the employees defeats them in that respect. A loss of retrospectivity on wage negotiations is one casualty of the industrial action taken by employees and they cannot expect to preserve retrospectivity on a wage increase earlier than the period of the strike. 10 I therefore reject the AWU claim for greater retrospectivity on the proposed enterprise agreement. 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. 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