Industrial Relations Commission of New South Wales CITATION: Construction, Forestry, Mining and Energy Union (New South Wales Branch) and Macquarie Generation [2009] NSWIRComm 160 Construction, Forestry, Mining and Energy Union (New South Wales Branch) (Notifier) PARTIES: Macquarie Generation (Respondent) FILE NUMBER(S): IRC 993 of 2009 CORAM: Walton J Vice-President; Sams DP; Stanton C CATCHWORDS: INDUSTRIAL DISPUTE - 'BlueScope model' - use of alternative preparatory procedures - resolution of issues - agreement between the parties. LEGISLATION CITED: Industrial Relations Act 1996 BHP Billiton and The Australian Workers' Union (Notification by the Minister for Industrial Relations) [2002] NSWIRComm 378 Crown Employees (NSW Fire Brigades' Permanent Firefighting Staff) Award 2008 [2008] NSWIRComm 174 CASES CITED: Crown Employees (Public Sector - Salaries 2008) Award [2008] NSWIRComm 193 Operational Ambulance Officers (State) Award [2008] NSWIRComm 168 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Macquarie Generation [2009] NSWIRComm 29 HEARING DATES: 23/7/09, 29/7/09, 7/8/09, 7/9/09, 18/9/09 DATE OF JUDGMENT: 30 September 2009 Mr A Bukarica Construction, Forestry, Mining and Energy Union (New South Wales) (Notifier) LEGAL REPRESENTATIVES: Mr J Phillips of senior counsel Macquarie Generation (Respondent) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Vice-President SAMS DP STANTON C Wednesday 30 September 2009 Matter No IRC 993 of 2009 CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) AND MACQUARIE GENERATION Notification under s 130 of the Industrial Relations Act 1996 STATEMENT [2009] NSWIRComm 160 1 It may seem somewhat unusual to commence this Statement by the announcement of the successful resolution of a complex industrial dispute, but that slightly different approach fits neatly with the unconventional method used to resolve the dispute, namely, the 'BlueScope model'. 2 There has now been substantial discussion and usage of the 'BlueScope model' in decisions of the Commission: Operational Ambulance Officers (State) Award [2008] NSWIRComm 168; BHP Billiton and The Australian Workers' Union (Notification by the Minister for Industrial Relations) [2002] NSWIRComm 378; Crown Employees (NSW Fire Brigades' Permanent Firefighting Staff) Award 2008 [2008] NSWIRComm 174 and Crown Employees (Public Sector - Salaries 2008) Award [2008] NSWIRComm 193. 3 The model was applied in this case, as it typically is, by means of proceedings before a Full Bench of the Commission. It involved the use of alternative preparatory procedures and a detailed investigation of the full scope of the industrial issues which had attracted attention in a variety of proceedings before the Commission, which we will describe below. The ultimate resolution of those issues is to be found in an agreement between the parties which is annexed to this Statement and described as the 'Macquarie Generation Production Technician Restructuring Agreement'. 4 It is suffice to say, at this point, that we agree with the submissions received from the parties at the conclusion of the proceedings that the adoption of the 'BlueScope model' made a material difference to the resolution of the industrial dispute. Indeed, it was submitted that there was very little prospect that the ultimate resolution may have been achieved by the utilization of traditional dispute resolution procedures or other processes before the Commission. This is not to disparage those other procedures but, simply, to acknowledge that the 'BlueScope model' procedure may be very valuable in the resolution of particular industrial disputes, most notably ones involving multiple, longstanding and complex issues or issues which are not comprehensively resolved by a normal inter parte contest in relation to a particular application. 5 Some short description of background procedures will, no doubt, assist in the elucidation of these observations. 6 On 5 July 2007, Macquarie Generation entered into a Referral Agreement with a number of unions pursuant to s 146A of the Industrial Relations Act 1996. That agreement allowed for the resolution of industrial disputes notified by the Construction, Forestry, Mining and Energy Union (New South Wales Branch) and the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales with Macquarie Generation. There were many elements of the disputes, but the centre point of them concerned a decision by Macquarie Generation to train and use a number of persons as operators who were not specifically appointed as such. These persons continued to perform their normal work, predominately as tradespersons, and were required to work as operators as and when required. The unions contended that such persons could not fill intermittent needs for operator skills unless there had been a specific agreement as required by the enterprise agreement applying to the employment. Indeed, part of the contest between the parties involved the interpretation of that agreement as well as the policy decision adopted by Macquarie Generation. 7 The matter came before Harrison DP, who issued a decision interpreting the agreement, essentially in favour of the contentions advanced by the unions, and made limited orders: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Macquarie Generation [2009] NSWIRComm 29. 8 It was during the course of an appeal from Harrison DP's decision, that parties agreed to the use of the 'BlueScope model', not only to resolve the immediate issues raised by the appeal but the much wider range of issues concerning the engagement of persons as operators or in subsidiary positions leading up to that position where various levels of training had been provided by the employer. Indeed, the training arrangements themselves became the subject of consideration, as well as appointment and promotion issues. 9 All of those matters were attended to in 'BlueScope model' proceedings, and resulted in the agreement, that we have referred to above, for the establishment of a production technician classification. That matter resolved not only the immediate dispute but a number of very longstanding industrial issues at the workplace and was seen by all parties as a milestone in the development of industrial relations at Macquarie Generation. 10 It would be remiss of us, in concluding this Statement, not to make particular mention of the role of the parties in this process. It is as well to applaud the development of a new model or process for dispute resolution (albeit one which is an adaptation of models long used by the Commission over time), but the singular success, in this case, must be attributed to the approach of Macquarie Generation and the two unions concerned together with their officers and site representatives. That approach may be properly described as a mature, reasoned and conciliatory approach to the resolution of complex and difficult issues. ___________________ 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.