C2001/3127, Transcript of Proceedings [2001] AIRCTrans 1241 (21 June 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE BOULTON

C2001/3127

BHP STEEL (AIS) PTY LIMITED

and

CONSTRUCTION FORESTRY, MINING
& ENERGY UNION

Application under section 127(2) to stop
or prevent industrial action

SYDNEY

3.10 AM, THURSDAY, 31 MAY 2001

Adjourned sine die

PN1

HIS HONOUR: May I have the appearances please?.

PN2

MR DAVIES: If the Commission pleases I seek leave to leave to appear for BHP Steel (AIS) Pty Limited.

PN3

MR WHITE: your Honour, if it please the Commission, I represent the CFMEU, Southern Southwest Region. With me I have MR D. MASSEY from Elouera.

PN4

HIS HONOUR: Yes, thank you. Mr Davies?

PN5

MR DAVIES: Thank you. Your Honour, this application for orders under section 127 arises because of strike action which commenced at the company's Elouera colliery at about 6.30 am this morning. The strike action arises, the company has been informed out of circumstances surrounding the company's use of contractors at Elouera colliery and I will come to the specific details of the use of those contractors in due course. The strike action is ongoing. At the moment work is not being performed at Elouera colliery with the obvious consequence that there is no production and the company is losing in the order of 3 to 4000 tonnes of coal per shift.

PN6

I intend to bring Mr Hank Pinkster to give evidence to the Commission about the circumstances which have given rise to the strike action. In particular, your Honour, there has been a clear failure on the part of the members of the CFMEU who are employed at the colliery to find the appropriate dispute settlement procedures which is set out in the relevant certified agreement which covers the employees. I might at this stage if I could your Honour, hand up a copy of the relevant certified agreement.

PN7

HIS HONOUR: Thank you.

PN8

MR DAVIES: Your Honour, that agreement is the Elouera Colliery Certified Agreement 1999, an agreement certified by Commissioner Harrison on 14 April 1999. The certified agreement is now outside its nominal term but there will be no question in the course of the proceedings that the action that is taking place is not protected industrial action. I will come to the particular terms of the certified agreement in due course but just to let the Commission know from the outset, clause 29 of the certified agreement contains dispute settlement procedures. Those dispute settlement procedures are similar, if not identical to those contained in the underlying award which covers the employees, which is the Production and Engineering Award 1997.

PN9

They follow the ordinary course which is that there be escalating levels of consultation where matters are in dispute and that in the meantime work continue normally. As matters stand strike action is taking place; we also intend to call some evidence about some strike action which has occurred on three other occasions at the mine in the last 12 months where there has been similar wild cat stoppages which have led to Section 127 proceedings before the Commission.

PN10

On two of those occasions it gave rise to section 127 orders. The primary purpose of dealing with those matters being that the Commission has made it very clear in the course of earlier proceedings to the members at the colliery that there is a proper approach to be taken where members do have a dispute or grievance and that certainly the taking of industrial action is not the course, that there is a way of going about these things where matters can be resolved between the parties without there being economic loss suffered not only by the company but by the employees themselves through strike action. If I might come to those matters in due course, your Honour. At this stage if I might call Mr Hank Pinkster to give evidence in the proceedings.

PN11

HIS HONOUR: Do you need to actually call evidence? Are these sort of matters in contention?

PN12

MR DAVIES: My friend, Mr White, has indicated that he is happy for me to make submissions about what we say are the facts and circumstances which give rise to our application for orders and that if to the extent that he disagrees with those, he might indicate that to the Commission. Obviously if there is no disagreement about those facts and circumstances then there may be no need to call evidence, if the Commission pleases.

PN13

The company says that these are the facts and circumstances which the Commission ought to take into account in determining whether or not to make an order under section 127. Firstly, as I have said, BHP Steel (AIS) Pty Ltd, owns and operates Elouera Colliery which is located in the Illawarra area. Elouera employs about 160 people in total, that's staff as well as production employees and when I use the word production, I intend to include tradespeople as well. The tradespeople at the mine are also those who are members of a union, are members of the CFMEU.

PN14

Of the 160 employees, at the colliery, approximately 138 of those employees are production employees in the sense that I just mentioned and those employees are, if not all, the majority are members of the CFMEU. The mine operates on a 24 hour continuous basis, Monday through to Friday with there also being some normal rostered work on Saturdays and Sundays. But Monday through to Friday, including clearly today's roster, there is a day and afternoon and a night shift. The strike action that has commenced that has given rise to these proceedings commenced with day shift.

PN15

The day shift members who are production employees voting to take strike action and they ceased work at 6.30am. In other words they didn't commence their normal rostered shift and we understand that afternoon shift is also to be out on strike.

PN16

HIS HONOUR: What time does the afternoon shift start?

PN17

MR DAVIES: They were due to start at 2 pm and have not commenced work.

PN18

HIS HONOUR: And the evening shift?

PN19

MR DAVIES: The evening shift is due to start at 11 pm. That is night shift. The strike action the company is informed, arises out of a grievance concerning contractors and if I might hand up a copy of a grievance form which was given to the company.

PN20

HIS HONOUR: I'll mark this exhibit D1.

EXHIBIT #D1 COPY OF GRIEVANCE FORM CONCERNING CONTRACTORS GIVEN TO BHP STEEL (AIS)

PN21

MR DAVIES: Thank you, your Honour.

PN22

HIS HONOUR: Yes. I have read that.

PN23

MR DAVIES: Your Honour, the contractors which the company has engaged to perform work at the colliery are engaged to perform a belt installation in a part of the colliery which is not a current working part of the mine. The actual coal extraction is taking place in another location within the mine. The company made a decision that it needed additional labour to be able to have the belt installation performed. That was a matter that was discussed with the union and indeed the contract workers who were engaged are employees of a contracting firm known as SMP Contractors, which I understand has had, in the past, a very close relationship with the CFMEU, and that the contract workers who were engaged were actually engaged with the assistance of the local lodge of the CFMEU.

PN24

That belt installation requires, as part of the work, the use of certain machinery equipment and equipment underground, including EIMCO vehicles which are company owned vehicles which the contractors use as part of the performance of the belt installation, including for transport underground. The dispute has arisen because of authorisation which the contract have to perform safety checks on those vehicles before the vehicles are then used on a particular day. They are known as 103 checks and the particular contract workers are former employees of BHP (AIS) Pty Limited, who were employed at its Cordeaux Colliery. The Cordeaux Colliery closed earlier this year. They are qualified tradespeople.

PN25

As I said, they have worked at another BHP colliery and they have gone through the proper processes required at Elouera Colliery, for authorisation to be given to them to perform the inspections. Clearly, some umbrage was taken by union members about that fact, that the contractors were able to perform the safety inspections on those vehicles and use the vehicles. It certainly made sense in the efficient performance of the work at the mine, particularly given the location of the belt installation. It was not something which is foreign at the mine. There have been other occasions where a contract worker has performed 103 inspections and a number of contract workers are qualified to do that.

PN26

HIS HONOUR: So it is inspections on company equipment?

PN27

MR DAVIES: Company vehicles underground. They are known as EIMCO vehicles.

PN28

HIS HONOUR: What is it?

PN29

MR DAVIES: E-I-M-C-O. It is a form of underground transport. The brand of an underground transport machinery. The requirements from safety points of view for inspections to be carried out on the equipment underground and the particular contractors have the appropriate authorisation through the mine manager to do that work. The company received a copy of a grievance form, signed by Mr Massey who is the Lodge President of the CFMEU, on 30 May which was yesterday. Under the dispute settlement procedure that is contained in the Elouera Colliery certified agreement, a written grievance form is the second step within the grievance procedure process.

PN30

The company had discussions with the relevant lodge people, both before and after the grievance form was issued. Those discussions included giving rise to the company approaching the district check inspector, to ensure from the district check inspector's point of view that there was no issue with the contractors being so qualified, being able to perform the inspections. The district check inspector said to the company that, provided they were appropriately qualified and authorised there was no issue from the check inspector's point of view. There was also discussions with Mr Massey, I understand, by Mr Pinkster who is the mine manager, about the matter.

PN31

The grievance form is dated 30 May 2001. I understand that it was provided to the office of Mr Pinkster last night and that there was some discussion with Mr Massey last night, although he did not actually see the particular form itself until this morning. But there was some discussion there that the company was happy to hold further discussions with the relevant lodge officials about any concerns that they might have and to continue to follow the grievance process.

PN32

Clearly, under the certified agreement the company had 24 hours within which to respond to the grievance form. Unfortunately, by 6.30 am this morning a wildcat stoppage had begun without prior notification to the company. The first that Mr Pinkster knew about it, the men had already started the strike action and there were no further steps taken under the grievance procedure to properly follow the whole of the procedure. Clearly, no dispute was notified to the Australian Industrial Relations Commission and, even as early as step 2, the company did not have 24 hours to respond to grievance that was given in writing to it.

PN33

It has been clear from discussions between the company and the relevant lodge officials that there is no question of the competence of the particular workers to perform the work. It is a question of demarcation. The members say that there is - I presume this is the thin end of a wedge and they do not want to see contract workers performing work which is often performed by them, i.e. inspections of the vehicles. Notwithstanding the fact that the existing certified agreement does contain within in assurances about security of employment and a new certified agreement which is currently under consideration by the members. It has been provided to them and they are in the middle of the 14 day process of considering that - also gives assurances about security subject to economic circumstances, etcetera.

PN34

As I said earlier, your Honour, the strike action is giving rise to three to four thousand tonnes of lost production per shift, which is in the order of $200,000 - actually more than $200,000 - in revenue per shift. I might deal with the earlier industrial action by handing up to the Commission copies of orders that have been made in relation to those earlier proceedings and related materials. It might help if I was to hand up a bundle of documents to you. I can then take you through those documents once your Honour has had an opportunity to see what is there.

PN35

HIS HONOUR: Do you want me to mark it as an exhibit?

PN36

MR DAVIES: Although most of the documentation is Commission documentation in any event I wonder whether they might not be marked as a bundle at this stage or as I go through them we might mark them individually, whichever the Commission thinks is more appropriate.

PN37

HIS HONOUR: I might just mark it as a bundle. It includes some orders, some transcript and some correspondence I see.

EXHIBIT #32 ORDERS, TRANSCRIPTS AND CORRESPONDENCE

PN38

MR DAVIES: If I might just briefly take you through the documents that have been handed up. I don't at this stage intend to go into them in great detail. There are effectively three groups of documents, some documents which relate to proceedings on 26 June 2000, which were proceedings which were before Commissioner Wilkes. Those documents include directions which were made on 26 June 2000, orders which were then made on 27 June 2000 and the transcript of proceedings on 26 and 27 June 2000. They are the first documents which I take the Commission to. If I might say in summary in relation to those, your Honour, that the proceedings on 26 and 27 June last year related to a, what we say is a "wild cat" protest stoppage that occurred. On that occasion it related to a heating on a solenoid which had occurred under ground and issues which members raised about that matter.

PN39

That matter gave rise to strike action and 127 proceedings being commenced and as a consequence of conciliation which took place in the first instance. In that matter some directions were made by Commissioner Wilks about how that matter be dealt with including a return to work taking place from the start of night shift at 11 o'clock on that evening on that occasion. Unfortunately, that did not occur and as a consequence, Commissioner Wilks made section 127 orders on the following day. They're the first materials. The second materials relate to another section 127 application which was made on 10 August last year.

PN40

On that occasion, the matter which gave rise to strike action concerned the alleged failure on the part of the company to tell the union about an injury which had occurred to a person who was checking some rollers. On that occasion section 127 orders were not made but as a result of the discussions which took place between the parties their return to work was able to be obtained. The third instance concerns 9 January of this year and the Commission has a copy of an order made by Commissioner Wilks on that occasion and also the transcript of proceedings on that occasion. This instance related to an injury which a staff person suffered when moving some equipment on a PJB vehicle. There were questions about the demarcation that the staff member was involved in performing work which the men believed was their work.

PN41

Again, section 127 orders were made on that occasion. In each of the various occasions the criticism which was made, was not that members might wish to discuss something with the company but that each time there was something of concern or of issue to the men, rather than follow the appropriate course set out in the dispute settlement procedure, that the company would have thrust upon them strike action. This is the fourth occasion that that has occurred and indeed in this occasion it has occurred in circumstances where there is no question of competency. It is not a question of safety, whatsoever, the question is the members saying that they are not happy with something, does not suit them and therefore they will go out on strike action.

PN42

We say that that is just not the appropriate way that these matters ought to be dealt with and it does hurt the company each time it occurs. That is the purpose of strike action, to hurt the company and force something to happen. The enterprise agreement says that there is a particular way that ought to be followed, that is a way that the pay is agreed. The dispute settlement procedure is an agreed procedure where issues in dispute occur and it would be on the basis of that failure that we would seek that section 127 orders be made. Particularly in light of the history of industrial action at the mine being taken without following the procedure.

PN43

If I might take your Honour to section 127 of the Act. Section 127 says that if it appears to the Commission that industrial action is happening, or is threatened, impending or probable in relation to (c), work that is regulated by an award or a certified agreement, the Commission may by order give directions that the industrial actions stop or not occur. It is very clear that industrial action is happening and is ongoing at the moment. The industrial action is in the form of strike action. The industrial action relates to work that is regulated by both an award and a certified agreement. The Elouera Colliery Certified Agreement, certified by the Commission and work that is performed under that agreement. That is the work of the members of the CFMEU employed by the company at Elouera Colliery.

PN44

Certainly the Commission has power under section 127 subsection (i) of the Act to make orders that industrial action stop or not occur. We would submit in the circumstances that it is appropriate for that form of order to be made. The application seeks that the order be made binding on the CFMEU, its officers and employees, and the members of the union who are employed by the applicant at its Elouera Colliery. There are several orders which are sought in the application to cause the industrial action to stop which we would seek that the Commission make. Those are set out in paragraph 3 of the orders sought under the application. The primary content of the orders are for three things to happen. For the union to ensure that it takes no strike action, the first step, strike action or other action.

PN45

The second step that it advise its members that they have not got authority to take strike action and in short the members comply with the order. Then most importantly because I should emphasise that in this case it is the voting members of the lodge at Elouera Colliery who we say must be held most responsible for what has happened. The voting members of the Elouera Colliery who have decided to take strike action without following the proper course of procedure for the dispute to get to district level for the district officials to hold discussions with the company in the appropriate course. We say that 3(c) in particular is most important that employees be directed to cease strike action of any foreman not to take further strike action.

PN46

Your Honour will see from paragraph 5 that we ask that the Section 127 order be made in force for a period of one month. The belt installation is expected to take a further two weeks to four weeks to completion and therefore we would say it is appropriate for the order to cover that period of work being performed by the contractors during which any further threatened industrial action may occur so as to prevent that from happening. Those would be our submissions, your Honour.

PN47

HIS HONOUR: Thank you. Mr White?

PN48

MR WHITE: Your Honour, I will not be as long as my learned partner. Certainly the industrial action that is occurring at this particular moment has occurred out of total frustration with what is happening at the site. The concerns even though are outlined in the industrial matter in regards to the inspection, deal with the subject of the inspections to be an erosion of permanent employment. At this particular time the current agreement that we have in place is one that you have in front of you right now and that deals with on page 30 of that agreement, contractors, clause 27 and virtually the first paragraph is what I relate to right now:

PN49

The parties agree that Elouera Colliery will need to access external and non-permanent labour resources in accordance with subclause (a), to enable it to meet its business goals. It is not the intention of this clause to reduce the award standards and terms and conditions of employment of employees covered by the this certified agreement.

PN50

Dealing with that particular statement there, although relating it to a district wide issue is there have been in the last period or the last four years probably 2000 employees have been retrenched from the Illawarra and certainly at this location here, Elouera, it also had its fair share of retrenchments even though that clause is in place. So the concerns for contractors has been ongoing there in regards to erosion of permanent employment. Dealing with it, we have been in discussions over a period of the last few months, dealing with a new agreement that has security guarantee of employment.

PN51

During that period the company have been quite adamant in regards to guaranteeing only that permanent people are on-site and not any new labour hired. They have indicated the pit is in a wind-down mode over the next three to four years and we concede that. But certainly we see at this particular moment that the issue of contractors doing full blown inspections as a full time employee, doesn't deal with the quality of the machinery to be left at a standard that will guarantee us down the track.

PN52

So we're not actually disputing the capabilities of their inspections, certainly a quality as to long term commitment. That we feel is an erosion of the ability of a permanent employee to have his guarantee there and with a commitment for non continuing of if a person was to retire of a replacement person on a permanent basis to be a mistake, has been part of a concern of the membership. If you go through the grievance procedure and that I have put in mainly as a statement as to what the intention of the membership is behind this particular issue. But if we go through the grievance procedure, certainly the company has not responded in the grievance procedure to a written statement of an outcome with the document you have in front of you. In the first particular clause of the disputes procedure of the current agreement, it actually deals with, "you can bypass any of those steps by having discussions with a district official and company officials, to fast track those steps."

PN53

That has not occurred at this particular stage by the company in regards to a written response. It is our concern that the supervisor at the particular operation in regards to this particular issue has a casualistic approach to labour. He sees that long term his ability to use casual labour more and more rather than discussions to occur on what is the best way to deal with that with full time employees rather than casual employees, is becoming a bigger and bigger issue at that site. We believe that there should be more emphasis on discussing permanent arrangements for these people rather than a issue of short term employment with the knowledge of the massive amounts of retrenchments we've had in regards to the southern districts at this particular stage.

PN54

We believe there could have been a lot more approachable concerns to try and deal with this issue on a local level in regards to resolving it. We believe the attempt by our membership to show their concerns is warranted at this particular stage, and I would be open to the Commission's intervention in this issue to look for a resolution.

PN55

HIS HONOUR: How long is this industrial stoppage going to last?

PN56

MR MASSEY: Your Honour, I addressed the day shift this morning and they were quite passionate that all attempts to resolve it with the engineer hit a brick wall. They were of the opinion that any further attempts to resolve the issue without confrontation was not there and that's why day shift took the action. I waited at the mine to address night shift to get their feelings on the whole issue and actually convinced night shift to work tonight.

PN57

May be some of those people on night shift aren't as radical or have the same concerns and I was actually able to convince dog watch they will be resuming work or they will be continuing work as normal from 11 o'clock tonight. I can't say any more than that. The fact that dog watch will be working. The whole concerns as Mr White has pointed out, is we've received guarantee of employment but it still didn't stop the company from putting off 56 people and replacing them with contract type scenario. The strike has happened on day shift and afternoon shift but I believe that dog watch will be working tonight.

PN58

HIS HONOUR: Well, back to you, Mr White. How do you see the matter as being resolved?

PN59

MR WHITE: I would believe that the new agreement we are currently ready to put to our membership on 14 June would be a fair way to resolving it. If it is endorsed by the membership we would have currently a better understanding of the rank and file in regards to their concerns with this issue. But it will still be foremost in their minds that the amount of retrenchments that have occurred, even though there was an agreement in place and their concerns over casualisation with non guarantee of replacement if a person was to retire of old age that is the concern and the issue more than the actual inspection itself.

PN60

The actual inspection is the build up in a scenario to where we actually see the issue right now. My belief is that we could hopefully with some discussion with the company attempt to resolve the issue at district level.

PN61

HIS HONOUR: The agreement that you say is going to be put on 14 June that agreement has been finalised has it or is it not yet finalised?

PN62

MR WHITE: No, the document is currently with every employee for the 14 day period we issued that to them and ready because of the public holiday situation the debating will actually occur on the 14th is our attempt at this particular stage.

PN63

HIS HONOUR: So, it has been finalised to the extent for negotiations.

PN64

MR WHITE: In that particular new document and that is why I raise the concern it could be there at the back of it is an issue that we have guarantee of employment for the next three years in that document but there is no guarantee of future employees hired to be in a seniority position because of the current award.

PN65

HIS HONOUR: I am not sure that in your submissions you made any submissions as to what the Commission should or should not do in relation to the company's application.

PN66

MR WHITE: It would be our belief that you would reject the 127 application and possibly agree to an order of return to work and force the situation of discussion to occur between the relevant parties in an attempt to resolve it if it pleases the Commission.

PN67

HIS HONOUR: Thank you, Mr Davies?

PN68

MR DAVIES: Thank you, your Honour. I wonder if I might say a couple of things in response. There are really a number of criticisms which the company levels at the conduct taken by the employees. I think the very fact that there is a certified agreement that is in final form discussed at the relevant various levels between both parties and with the members for consideration which gives the sort of security which has given rise to the strike is one strong reason why there needs to be an order made. Notwithstanding everything the company has signalled it is prepared to do for the members in that regard the strike action has still taken place.

PN69

We also say, so far as the particular incident that gave rise to the strike action, it is not just the sort of incident that justifies the response or the reaction the company temporarily needed some labour it was a couple of weeks ago that it approached the relevant lodge officials and informed them of that need. The lodge was involved in the obtaining of the contract workers to perform the work, they knew that it was taking place in fact, the work took place for a number of days without incident while the particular contract workers were getting the appropriate authorisation from the mine.

PN70

Each separate mine needs to go through the authorisation process even if they might have worked at another mine. So we say it is not simply a reaction to contract workers performing work at the site because that was already occurring. But it is an over reaction to a circumstance where the company was more than willing to discuss the issue and Mr Pinkster and Mr Massey had discussions about how that might occur as late as yesterday evening. It appeared that there was an agreeable way of moving forward without there needing to be strike action but the members took it upon themselves to go out on strike this morning and afternoon shift has continued that course this afternoon.

PN71

As I have said this is the fourth occasion where that has occurred and the company cannot afford to have to keep coming to the Commission and using the Commission's resources and time to resolve matters which should never have been here in the first place. As I said the contract workers will continue to be performing the work over the next few weeks and therefore a recommendation that the workers return to work, which would not be likely to be effective for afternoon shift in any event but that recommendation will not stop this from occurring again. We say it is therefore necessary that a section 127 order be made to secure the performance of work the parties have a process that can be followed.

PN72

The company should not have the lodge members at the mine continually put a gun at its head and say, "our way or no way and we will go out on strike rather than have discussions with you". We are now being asked after the strike has taken place and after the hurt has happened to be told to go back and have discussions when the company has always been prepared to have those discussions. So we say that the action is illegitimate it is not good enough for the members to say "well the Commission should say let's have discussions" that could always have happened in the first place.

PN73

The conduct is illegitimate it is not appropriate, it has occurred before and in those circumstances we say orders should be made directing a return to work forthwith on the basis and form set out in the application. Thank you, your Honour.

PN74

HIS HONOUR: The order that you are seeking as I understand it you are seeking that it operate for a month and the order is confined to issues or circumstances which have given rise to the present industrial action.

PN75

MR DAVIES: That is correct, your Honour.

PN76

HIS HONOUR: Which would be this issue about contractors before these 103 checks on company machinery.

PN77

MR DAVIES: That is correct, your Honour, and you will see that the definition of matters in paragraph 3(a) extends the order to associated protest industrial action. Say for example if there was a reaction to obtaining orders themselves that that should not justify strike action either. So it is both the events giving rise to the dispute and anything related to those events. Your Honour, I am also instructed to request perhaps in addition to the orders that are made that the Commission encourage the members at Elouera Colliery in relation to other matters that are in dispute that there is an appropriate way of dealing with those as well. We accept that if 127 orders are made they will be limited to the cause giving rise to the strike action. But there really does need to be encouragement for the members to adopt the appropriate course in if there were to be any other issues that were to come up at any point in time and to follow the dispute settlement procedure.

PN78

HIS HONOUR: Is there any utility in making the order operate before 11 o'clock this evening?

PN79

MR DAVIES: We would certainly seek that that occur. We would be taking all steps necessary and available to us upon making of the orders to have any persons who are on afternoon shift return to work for the remainder of that shift. If we get them back to work by, for example, 5 o'clock or 5.30, we still get a half of shift of work, which is in the order of 1500 to 2000 tonnes. Which is more than $75 to $100,000 in revenue.

PN80

HIS HONOUR: Mr White?

PN81

MR WHITE: If I could, your Honour, the ability under what Mr Davies has indicated would be near impossible for us to achieve in regards to a return to work, even if it was ordered before 11 o'clock, simply because of the amount of time to get back to either of our locations, Mr Massey and myself, and getting in contact with other people to arrange those phone calls for a return by that time. We could certainly comply if that was to commence at 11 pm, but also it would be fair to say that it needs to be taken into account that over the period that they have indicated of their desire for a 127 application there would be a need for a communication day with the entire membership to vote on the agreement. We would be seeking, if those orders were forthcoming by the Commission, even though we resist them, we would be asking for an exemption for that part if they were ordered.

PN82

HIS HONOUR: I'm not sure the order as it has been sought would apply to a communication day. I'm not sure exactly what form a communication day takes and indeed whether a communication day itself would be industrial action. But the order that is sought by the company seems to relate only to matters which have given rise to the industrial action today. They would seem to be different to the matters which might relate to the making of a new agreement.

PN83

MR DAVIES: I was going to confirm, your Honour, that we would not see the section 127 order as extending to other matters of that type. The company would expect an appropriate course be adopted for voting on the agreement with as little disruption as possible, but that is another matter.

PN84

HIS HONOUR: There are no further submissions that anyone wants to put?

PN85

MR DAVIES: No, your Honour.

PN86

MR WHITE: If I can have a moment of the Commission's time. In an attempt to be open with the Commission, we would be seeking on the day of voting for all of the employees to be off work on that particular day to have in depth discussions on the document and itemised to each of them, point by point on the document. We would see no other way than the opportunity of a 24 hour period with our membership, so that would need to be taken into account by the Commission.

PN87

MR DAVIES: Your Honour, I do wish to say something in relation to that, if I may. These proceedings do not concern the vote on the certified agreement whatsoever and we say it would not be appropriate for there to be any directional recommendation of that form. The members have an obligation as the ordinary part of their work obligation to perform their work and there really should be as little disruption as possible to the business in that respect. That is something which is an entirely separate matter, to be voting on the certified agreement. That could be discussed between the union and management.

PN88

HIS HONOUR: Nothing further? In matters such as this, the Commission is often requested to convene a conference or to engage in some conciliation. That request has not been made and so, in the circumstances, I am prepared to give a decision on the company's application.

PN89

I have considered what has been put, both in the application and in the submissions today. I am satisfied that the circumstances which would give the Commission jurisdiction to make an order under section 127 are met. I am also satisfied that it is appropriate in the circumstances of the present matter for the Commission to make an order in the form which has been sought by the company. Those circumstances include the history at this colliery in regard to the taking of industrial action and the various orders which have been made by the Commission in the past.

PN90

Secondly, they include the circumstances which led to the present industrial action being taken. In particular, in contravention of the dispute settling procedure in the certified agreement. Thirdly, they include the circumstances that discussions were under way between the company and the union regarding the issues which gave rise to the current industrial action. Those discussions and the grievance lodged by the union would have more appropriately been pursued through the dispute settling procedure in the award.

PN91

I also note that it would seem that there is no issue of safety which is involved in the industrial action which is being taken, but it is a dispute which arises out of the concern of the membership in regard to security of employment at the mine. In all the circumstances, as I have indicated, the order will be issued. The issue of the order does not prevent further discussions being taken, further discussions being held between the parties in relation to the particular issue of contractors performing the 103 checks on certain company machinery, and does not prevent that particular matter being pursued through the dispute settling procedure in the certified agreement.

PN92

Indeed, I would encourage the parties to engage in such further discussions in an endeavour to resolve the issues which have given rise to the strike action today. I would also encourage the workers at the colliery in the future to adopt the appropriate procedures which are set out for the settlement of disputes in the certified agreement, clause 29. As I indicated the order will be issued, the order will take effect from 5 o'clock this afternoon and will operate for a period of one month.

PN93

That concludes this matter.

ADJOURNED INDEFINITELY [4.11pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 COPY OF GRIEVANCE FORM CONCERNING CONTRACTORS GIVEN TO BHP STEEL (AIS) PN21
EXHIBIT #32 ORDERS, TRANSCRIPTS AND CORRESPONDENCE PN38