C2001/1620, Transcript of Proceedings [2001] AIRCTrans 567 (11 April 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C 2001/1620
C 2001/1623

BHP STEEL (AIS) PTY LIMITED

AND

AUSTRALIAN WORKERS' UNION AND OTHERS

BHP STEEL (AIS) PTY LIMITED

AND

CONSTRUCTION FORESTRY MINING AND ENERGY UNION

APPLICATION UNDER SECTION 127(2) TO STOP
OR PREVENT INDUSTRIAL ACTION
RE INDUSTRIAL ACTION BY EMPLOYEES OF
CONTRACTORS AT THE HOT STRIP MILL AT
BHP'S PORT KEMBLA STEELWORKS

SYDNEY

9.13 AM, TUESDAY, 27 MARCH 2001

Continued from 26.3.01

PN114

THE COMMISSIONER: Good morning, Mr Hatcher, what's the news?

PN115

MR HATCHER: The news is there is no resumption of work and we wish to press our application. If I could inform the Commission, yesterday I referred to an Australian Petroleum case, the reference to that case, Commissioner Lawson's decision, is print P5227 and his orders appear in print P5228. Can I inform the Commission that there has been some further refinement of our draft orders, might I hand up two copies of those orders. Might I note that a copy was earlier provided by email. Can I inform the Commission that the order is in a form which has already found favour with the Commission. Commissioner Wilks issued orders in similar form in BHP Steel (AIS) Pty Limited v the Elouera Colliery which orders are to be found in print S7522. He more recently in matter C2001/58 in relation to the same parties issued a further order in relevantly identical form to that which we press upon the Commission today.

PN116

If it please the Commission, the Commission will recall that yesterday there was no dispute as to any fact in issue. The Commission will recall that the parties were on notice that the matter would proceed at 9 am today. The respondents have chosen not to attend notwithstanding that they were clearly informed of their obligations in that regard yesterday. In those circumstances we invite the Commission to make the order.

PN117

THE COMMISSIONER: Thank you, Mr Hatcher. Do you know the terms of the decision this morning to remain on strike?

PN118

MR HATCHER: We have not been informed of any terms of any decision other than, as it were, the rumour mill has made it clear that there is no resumption. I'm told that there are still a group of people outside the gate.

PN119

THE COMMISSIONER: I wish we could get some information other than rumour. It's nobody's fault.

PN120

MR HATCHER: Well, Commissioner, perhaps if the respondents had chosen to appear we might have a more authoritative source but in the absence of that we're of course committed to pressing for relief.

PN121

THE COMMISSIONER: Very well. As I indicated yesterday I was sympathetic to the application. Nothing has changed in my view. I will study the new draft order and adjourn for 30 minutes and then issue a decision.

SHORT ADJOURNMENT [9.17am]

RESUMES [10.44am]

PN122

MR HATCHER: If it please, Commissioner, there's been some further information made available to us which results in a variation of the orders we seek. The members of the Construction, Forestry, Mining and Energy Union resumed work earlier today so we delete from the order any reference to that organisation or the National Building and Construction Industry Award 2000 or Andrecco Hurll Refractory Services or the relevant enterprise agreement for that organisation. The relevant entries are, Commissioner, in the heading, the Construction, Forestry, Mining and Energy Union, then in the orders themselves in the first paragraph under the matter of, "work that is regulated by," there is a reference to the National Building and Construction Industry Award and Andrecco Hurll Refractory Services Enterprise Agreement.

PN123

On the second page clause 2 subparagraph (a)(iv) we delete and (v) in the second line we delete the reference to Andrecco Hurll Refractory Services Pty Limited. Then a further five lines down the reference to National Building and Construction Industry Award 2000 and a further four lines down Andrecco Hurll Refractory Services Enterprise Agreement 2000 and the last line CFMEU. In clause 3 we delete the reference to the CFMEU. In clause 4 subparagraph (a)(ii) we delete the reference to Andrecco Hurll Refractory Services Pty Limited. We otherwise press for the orders.

PN124

THE COMMISSIONER: Thank you, Mr Hatcher.

PN125

These are applications brought pursuant to section 127(2) of the Workplace Relations Act 1996 to stop or prevent industrial action by BHP Steel (AIS) Pty Ltd, hereinafter called, the company. The Company operates a Hot Strip Mill at its Port Kembla Steelworks and is currently engaged in a major maintenance shutdown at an approximate cost of $20 million. The maintenance work is being performed by a number of contractors whose employees are bound by a number of awards and agreements. The Australian Workers Union, the AMWU, and the Communications Electrical and Plumbing Union, are parties to those industrial awards and agreements.

PN126

When the applications were first heard by the Commission on 26 March, the Commission was advised that a stoppage of work commenced at 7.00 am on 23 March and was continuing. It was said that the industrial action was illegitimate and conduct prescribed. The industrial action was in contravention of the dispute settling procedures contained in the relevant industrial awards and agreements and was not protected action in terms of the Act.

PN127

Representatives of the unions did not deny that industrial action was occurring and was likely to continue at least until a further meeting of employees scheduled for 7.00 am today, 27 March 2001. The Commission referred the parties into conference. However, upon reporting back, the Commission was advised no settlement of the dispute could be reached. The unions undertook to recommend a resumption of work to the employees when they met at a scheduled meeting this morning, 27 March at 7.00 am. On the basis of this undertaking by the unions, and without prejudice to the company's rights to seek urgent legal redress, I adjourned proceedings until 9.00 am today, 27 March.

PN128

The Commission has been advised by representatives of the company and of late by Mr Wayne Phillips of the AMWU that a resumption of work has not taken place. Therefore I have decided to grant the orders sought by the company in a slightly amended form. I do so because I am satisfied that industrial action is happening in relation to an industrial dispute between the members of the unions named in the order I propose to issue and the various contracts engaged in refurbishment of the Hot Strip Mill at the Port Kembla Steelworks.

PN129

The industrial action is causing serious financial and commercial hardship on the company. I am further satisfied that the jurisdictional prerequisites for the exercise of the discretion conferred by section 127(2) of the Act have been met. The order will be known as the Hot Strip Mill industrial action order March 2001. It shall come into force immediately and shall remain in force for a period of one month.

PN130

These proceedings are adjourned.

ADJOURNED INDEFINITELY [10.50am]