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. 10 During the proceedings on 24 April 2008, Ms West advised the Commission that since 2 April 2008, although the bans remained in place, there had been 15 occurrences where employees have crossed boundaries, including two out of hours and four on weekends. However, there have been five occasions when employees have refused to cross boundaries. This has occurred during afternoon and weekend work. Ms West further submitted that Mr S Hatter, who appeared for the Union, had informed Mr Richard Petterson, Manager Civil Maintenance and Construction, that the Union intended to ignore the Commission's direction made on 2 April 2008. Mr Hatter acknowledged the bans which were originally imposed in March 2007 remained in place. 11 Mr Hatter did not dispute his discussion with Mr Petterson and advised that he did not require Mr Petterson, who was present in Court during the proceedings, for cross-examination on this or any other issue. 12 It was evident that conciliation was not going to resolve the dispute. The Commission took the view that it should issue a certificate of attempted conciliation, as reasonable attempts had been made to resolve the industrial dispute by conciliation and the industrial action being undertaken by the Union necessitated the exercise of the Commission's arbitral powers. A certificate was issued pursuant to s 135 of the Act and provided to the President and the parties. 13 Sydney Water sought orders under s 136 and s 137 of the Act. Both parties accepted that the Commission had jurisdiction to make such orders in light of a s 146A agreement filed with the Commission, a copy of which was tendered during proceedings. As I have observed, this dispute relates to an agreement reached between the Union and Sydney Water which requires civil maintenance employees to cross boundaries. It is trite to observe that a fundamental part of industrial relations is the adherence to agreements reached between parties. On one view, it seems that the Union does not understand the importance and sanctity of agreements reached in the resolution of disputes. It was, in light of the agreement reached, that the Full Bench heard claims by the Union for a reduction in ordinary hours and for an afternoon shift allowance. 14 The position that the Union now finds itself in has the potential to impact on the long-term industrial relationship between the parties. This is an important and significant matter. I urge the Union to review its position. 15 Ms West sought orders, in broad terms, in circumstances where it was submitted that Sydney Water was concerned that the Union may pursue other industrial action including a "go slow" work strategy and/or limit the working of overtime. Ms West also sought that any orders be for a period of three months, submitting that Sydney Water was concerned was that industrial action would occur again. 16 Mr Hatter opposed orders being made in broad terms, submitting that the bans only related to the crossing of boundaries outside of hours. Mr Hatter subsequently acknowledged that the bans also included weekend work. He further submitted that an order for a period of three months was unreasonable. 17 In light of the agreement which arose out of protracted conciliation before the Commission and included the crossing of boundaries, the recommendations and directions made on 2 April 2008, were designed to result in the lifting of the bans and a return to normal work. This has not occurred and no attempt has been made by the Union to comply with the direction. Its approach, in light of the agreement, is most unsatisfactory. I therefore propose to make the following dispute orders: ORDERS 1. Pursuant to s 137 of the Industrial Relations Act 1996, I make the following orders: (a) The Australian Services Union of New South Wales (ASU) and their officers and employees, and their members employed by the Sydney Water Corporation (the Company) who are employed as Production Employees in Civil Maintenance at various locations, must immediately cease and refrain from taking any form of industrial action, including any strike, stop work meeting, ban, limitation or restriction on the performance of work; (b) the ASU and their officers and employees must immediately cease and refrain from organising, encouraging or inciting any industrial action (including any strike, stop work meeting, ban, limitation or restriction on the performance of work) contrary to Order 1(a); and (c) these orders shall come into effect on and from 5:00 pm on 29 April 2008 and shall remain in force until 12:00 midnight on 28 July 2008, or as further ordered by the Commission. Pursuant to s 136(1) and s 163 of the Act, I make the following direction: The ASU and their officers and employees must take all reasonable and necessary steps to ensure that Orders 1(a) and 1(b) is complied with, including but not limited to: (i) advising their members of these orders by no later than 5:00 pm on 29 April 2008; and (ii) convening a meeting by 10:00am on 29 April 2008 of all members who are engaging in industrial action and directing them to comply with Orders 1(a) and 1(b). 2. For the purposes of service in accordance with the Industrial Relations Commission Rules 1996, without limitation to other means of service, these orders may be served on the Union and their officers, employees and members: (a) by facsimile to the registered offices of the Union; or (b) by handing a copy of these orders to an officer or employee of the Union. 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