C2004/1420, Transcript of Proceedings [2004] AIRCTrans 323 (23 January 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 2121

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SPENCER

C2004/1420

APPLICATION TO STOP OR PREVENT
INDUSTRIAL ACTION

Application under Section 127(2) by Anglo Coal
(Capcoal Management) Pty Ltd for orders
in respect to the alleged industrial action
in protest of a safety issue at the Southern
Colliery

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

BRISBANE

WEDNESDAY, 14 JANUARY 2003

EXTRACT OF TRANSCRIPT OF PROCEEDINGS [6.29pm]

PN1

THE COMMISSIONER: The following comments are made on transcript, subject to further formal editing and release. This is an application made pursuant to Section 127(2) of the Workplace Relations Act 1996. The applicant is Capricorn Coal Management Pty Ltd, Capcoal, who seeks the Commission to make an order directing Capcoal's employees, members of the CFMEU, AMWU, and CEPU, employed at Southern Colliery to return to work as soon as possible to resume their rostered duties for the night-shift on 14 July 2004. The union has opposed the making of such an order.

PN2

The background to this matter is largely not contested. Capcoal has a statutory obligation under the Coal Mining Health and Safety Act to undertake the prescribed safety checks. The company concedes there was a lapse in this process. Such safety checks form part of a risk-management program to ensure the safety of employees on the site. The Commission acknowledges the seriousness of such safety concerns to employees, and the considerable necessity to ensure compliance with these statutory checks. The uncontested evidence of Mr Gillett, the HR manager for Capcoal, is that a series of failures in the system led to lapses in such safety checks, and such, were not affected.

PN3

This is a serious matter, potentially exposing employees to an unknown risk. Whilst the company took steps to remove employees from the area, and rectified the testing when the situation became apparent, it is a significant issue, given that the scheduled testing did not occur as expected by the employees. In relation to jurisdiction commensurate with this application, the jurisdictional pre-requisites exist for the making of an order pursuant to Section 127(1) of the Act. On the material available to the Commission, industrial action is happening. Work is covered by an award and three certified agreements as set out, and the requisite jurisdiction exists for making of an order giving directions that industrial action stop or not occur.

PN4

In relation to the exercise of the discretion of such an order, whilst I do not reduce the seriousness of safety issues in the eyes of those working on site, I note, as has been the course adopted by Commissioner Bacon in similar circumstances, that the disputes procedure has not been followed. The employees at this site are aware of the disputes procedure, and the course insisted upon by this Commission that there be necessary compliance with it. This Commission cannot support protest action that inflicts financial loss on an employer such as Capcoal. That is not to say that it should be seen that it supports a situation where the health and safety of employees in any way is put at risk or condones the company ignoring their statutory obligations in regard to such.

PN5

However, I exercise the discretion to issue the order, and to ensure there be the earliest return to work in circumstances where there has been a disregard for the disputes procedure, and the issue could have been alternatively processed in this Commission without loss of work, and reaching an appropriate remedy for the employees in question. This Commission has a history of urgently listing matters, particularly in relation to safety issues, when applied. This course should be followed in future. The action was unwarranted, unreasonable, and illegitimate in relation to the non-compliance with the disputes procedure. Accordingly, the order is issued for a period of 48 hours to be effective from 7 pm. One of the means of service will be via the provision of such order at the conclusion of these hearings on the union's representatives present, and by alternative means as set out in the order.

PN6

I issue the order accordingly.

END OF EXTRACT [6.34pm]