Notification under s 130 by Sydney Water Corporation of a dispute with Australian Services Union of New South Wales re refusal to work [2008] NSWIRComm 88

Industrial Relations Commission of New South Wales

CITATION: Notification under s 130 by Sydney Water Corporation of a dispute with Australian Services Union of New South Wales re refusal to work [2008] NSWIRComm 88

APPLICANT Sydney Water Corporation PARTIES: RESPONDENT Australian Services Union of New South Wales

FILE NUMBER(S): IRC 377 of 2008

CORAM: Staff J

CATCHWORDS: Industrial dispute - Bans by Union on employees crossing boundaries from one production area to another - Bans in breach of agreement reached between parties during conciliation - Commission directed lifting of bans - Direction not implemented by the Union - Union advised that it did not propose to comply with direction - Dispute orders made

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 24 April 2008

DATE OF JUDGMENT: 28 April 2008

APPLICANT Ms K West Sydney Water Corporation LEGAL REPRESENTATIVES: RESPONDENT Mr S Hatter Australian Services Union of New South Wales

JUDGMENT:

- 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: STAFF J

28 April 2008

Matter No IRC 377 of 2008

NOTIFICATION UNDER S 130 BY SYDNEY WATER CORPORATION OF A DISPUTE WITH AUSTRALIAN SERVICES UNION OF NEW SOUTH WALES RE REFUSAL TO WORK

DECISION

[2008] NSWIRComm 88

1 On 20 March 2008, the Sydney Water Corporation ("Sydney Water") notified the existence of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 ("the Act") concerning the Australian Services Union of New South Wales ("the Union") and its members employed as production employees within the Civil Maintenance Business Unit of Sydney Water. 2 The dispute related to production employees refusing to cross a boundary into another production area during out of hours or on weekends. Such refusal is in contravention of an agreement reached between the parties on 31 January 2006. 3 The dispute was initially the subject of a compulsory conference before Commissioner Bishop on 25 March 2008. The Commission, as presently constituted, chaired further compulsory conferences of the parties on 1 April 2008 and subsequently engaged in extensive conciliation on that day and on 2 April 2008. 4 After hearing the parties, the Commission made a direction pursuant to s 134 of the Act in the following terms: I direct that the Union immediately lift all bans presently in place and not engage in any further industrial action or threatened industrial action or have any further limitations placed on the crossing of boundaries without recourse to the dispute resolution clause of the Sydney Water Award during the interim periods referred to above. Sydney Water similarly should comply with the dispute resolution clause. 5 The matter was listed for further report on 24 April 2008, when the Commission was advised that the bans in respect of the crossing of boundaries remained in place. 6 It is convenient at this stage to briefly set out the history surrounding the dispute and the crossing of boundaries by civil maintenance employees. On 31 January 2006, the parties reached an agreement which included the introduction of an afternoon shift for production employees within the Civil Maintenance Business Unit of Sydney Water, effective from 27 March 2006. The agreement was subject to Sydney Water engaging an occupational health and safety consultant who was to conduct a risk and hazard assessment of the introduction of an afternoon shift and to consult with the Civil Maintenance Section OHS Committee. These steps were undertaken by Sydney Water and a consultant provided a risk assessment report in respect of the introduction of the afternoon shift. 7 Part of the package that was agreed between the parties on 31 January 2006 was that a number of claims that the Union wished to press would be referred to a Full Bench of this Commission for hearing and determination. Those claims included a claim for a reduction in ordinary hours to 35 per week and a claim for an afternoon shift allowance. On 9 October 2006, the Full Bench of the Commission delivered its Decision in respect of these issues. See Sydney Water Award, Re (2006) 155 IR 435. 8 Arising out of the risk assessment report of 2006, there remained three areas which, although agreed, were the subject of further review. The first of these involved the risks associated with crossing a boundary into another production area. There were two key issues identified. First, the necessity for each employee who crosses a boundary and is required to work in another production area, be provided with an induction into the adjacent area's depot. The second issue relates to the failure of Sydney Water to provide swipe cards or keys to access the depot in the alternative production area, as required. 9 In respect of the above issues, I made the following recommendations on 2 April 2008. Ms K West, who appeared for Sydney Water, advised that these recommendations had been accepted by Sydney Water and steps were being taken to implement the recommendations: (i) That Sydney Water restate its earlier commitment to induct all employees into adjacent production areas next to where each civil maintenance employee is based. I am advised by Sydney Water that approximately 30 per cent of its workforce have been already inducted into adjacent areas, although approximately 60 per cent of employees in the Inner West Area have been inducted into the five production areas that surround this area. This is disputed by the Union. Sydney Water advised that it may take a further six months to complete the induction. Sydney Water is to establish a central register of where employees are inducted which should be used to assist in the allocation of work. As an interim measure, if a civil maintenance employee working outside his area, experiences sewerage contamination, such employee may return to his home depot if he has not been inducted into an adjacent area depot. This does not apply to the use of toilet facilities. In respect of this matter, a memorandum will be provided to all employees regarding the availability of such facilities. In addition, if an employee is called upon to cross a boundary, although not inducted, such employee may call a field supervisor to induct him. This issue will be the subject of a report back before the Commission at 9.30 am on 3 October 2008. (ii) In respect of the induction process, it shall be in accordance with and include those matters agreed by the Health and Safety Committee as set out in Exhibit 10, i.e. access, egress, site layout facilities, risk areas and emergency evacuation process. (iii) Sydney Water will ensure that civil maintenance employees called upon to work in adjacent areas shall have access to a swipe card or key to the depot located in the adjacent area. In respect of the Inner West Region a master key shall be provided which allows access to each depot in the adjacent areas. It is acknowledged that the provision of such cards or keys may take approximately three months. Any employee with a safety or hygiene concern should attend the depot closest to where he is working. This issue shall be the subject of a report back before the Commission at 9.30 am on 4 July 2008. (iv) Sydney Water will provide a suitable container made of plastic or similar product for contaminated clothes to be stored and conveyed back to the employee's home depot. (v) The shift monitoring committee shall remain in place to oversee the introduction of the above procedures and the completion of discussions regarding roster rules. It shall then be wound up and any issues that arise will be dealt with by the appropriate committee or the employee's supervisor.