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T11939, T11951 and T11952

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

The Australian Workers' Union, Tasmania Branch
(T11939 of 2005)
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

(T11951 of 2005)
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(T11952 of 2005)

and

Zinifex Rosebery Mine

 

DEPUTY PRESIDENT SHELLEY

HOBART, 18 February 2005

Industrial dispute - mode terms and conditions of employment - bargaining in good faith - jurisdiction - effect of bargaining notice - direction and recommendation issued - file to remain open

REASONS FOR DECISION

[1] On 10 February 2005, The Australian Workers' Union, Tasmania Branch ("the AWU") applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Zinifex Rosebery Mine ("the company") arising out of the alleged failure of the company to negotiate in good faith regarding the mode, terms and conditions of employment of employees engaged at the Zinifex Rosebery Mine.

[2] A hearing was set down for 2.30pm on Friday 11 February 2005. At the request of the company, and with the consent of the AWU, the hearing was adjourned until Tuesday 15 February at 2.30pm at the Commonwealth Law Courts, 39-41 Davey Street, Hobart. At the hearing, Mr R Flanagan appeared for the AWU. Mr D Hanisch of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the AMWU") sought and was granted leave to intervene, as was Mr K Mays of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("the CEPU"). Counsel for the company, Mr R West, sought and was granted leave to appear.

[3] The hearing continued at 1.00pm on Wednesday 16 February 2005. On this date the AMWU asked that application T11951 be joined with T11939 and the CEPU asked that T11952 also be joined with the above. The AWU supported the application for joinder, the company objected. I decided that the matters should be joined, on the basis that the applications were in identical terms and concerned the same issues and events. All three applications were expressed as follows:

"The circumstances of the dispute are as follows:- A dispute with Zinifex Rosebery Mine over the failure of the Company to negotiate in good faith regarding the terms, mode and conditions of employment of employees engaged at the Zinifex Rosebery Mine. The Union seeks the urgent assistance of the Commission."

BACKGROUND

[4] The terms and conditions of employment of approximately 130 employees employed on the surface and underground at the Zinifex Rosebery Plant are governed by the Pasminco Rosebery (Mining) Award ("the award"), an award made pursuant to s33 of the Tasmanian Industrial Relations Act 1984 ("the Act"), and the Pasminco Rosebery Mine 2002 Agreement ("the agreement"), made pursuant to s55 of the Act and registered in the Tasmanian Industrial Commission ("the Commission"). The parties to the award and the agreement are the company and the unions who are also parties to this dispute. The agreement is to be read in conjunction with the award. In the Reasons for Decision dated 11 November 2002, it was recorded that Mr Fitzgerald of the Australian Mines and Metals Association Inc. had said: "the new Agreement was the product of extensive discussions with a single bargaining unit over several months."1 Clause 26 - Grievance Procedure - of the agreement provides for the reference of the disputes to the Commission.

[5] The s55 agreement, although still in place, reached its nominal expiry date on 1 August 2004. The unions, through a single bargaining unit, have been negotiating with the company with the view to registering a new s55 agreement in the Commission.

[6] On 19 January 2005 Minter-Ellison (lawyers) filed a Notice of Initiation of Bargaining Period ("the bargaining notice") in the Australian Industrial Relations Commission ("the AIRC").2 The notice states the intention of the company to try to make an agreement with the AWU (but not with the AMWU or the CEPU) under Division 2 of Part VIB of the Workplace Relations Act 1996 (Cth) ("the WRA").

[7] There have, apparently, been 14 meetings between the unions and the company to discuss the new agreement, the last of which was on 8 February 2005. On that date there were discussions between the AWU (it is not clear whether the AMWU and the CEPU participated) and the company, at which, the AWU say, there was a clear understanding that the company would advise its response to a number of issues. Mr Pearce, Manager Mining, had participated in those negotiations. Key issues included performance-based pay and the issuing of the bargaining notice.

The next day, the company issued a notice to its underground employees, which said:

"General Notice No. 1223

INVITATION TO ALL UNDERGROUND EMPLOYEES

If any underground employee wishes to accept the Company offer of a pay rise backdated to August 04 under the same conditions as the overwhelming majority of Surface employees please contact Arthur Youd.

Sean Pearce
Manager Mining
9th February 2005"3

[8] It appears that this offer is the same as a proposal that had previously been put by the company and which was voted down in a secret ballot conducted in November and December 2004.

[9] It is the issuing of the above notice that has resulted in the current dispute applications to the Commission.

[10] The AWU, AMWU and CEPU ("the unions") are seeking Directions in the following terms:

    (1) [that] the Company withdraw and cease the offering of alterations to employment arrangements on an individual basis for those persons within the scope of the s55 industrial agreement currently in place.

    (2) [that] the Company will meet with the AWU, the AMWU and the CEPU collectively in Tasmanian within seven days to negotiate outstanding issues which were identified in the meeting of 8 February 2005.

    (3) [that] prior to the meeting referred to in (2) the Company will forward to each union their written response to the issues identified at the meeting on site of 8 February 2005.

[11] The company contends that the initiation of a bargaining period means that the Commission has no jurisdiction to deal with this matter.

SUBMISSIONS

For the Unions

[12] Mr Flanagan said that the unions have been attempting to negotiate a new agreement with Zinifex and its predecessor, Pasminco, for more than twelve months. He outlined the history of the unions' attempts and presented a number of documents, one of which was a letter from Mr Graham Blanksby, [ex] Human Resources Manager of the company, in which he said that the company was available to commence those negotiations on 30 June 2004.4 Also tendered were minutes of a meeting between the unions and the company which took place on August 9 and 10 2004, which show that there was agreement that a new three year agreement would be entered into. The minutes show that agreement was reached on some, but not all issues.

[13] There were 13 meetings with the company, which ultimately remained unyielding in several respects. A major issue was performance-based pay, which, according to Mr Flanagan, is not embraced by the union or the employees.

[14] The company put their proposals to the employees. There were a series of meetings between 29 November and 2 December 2004 and the employees were asked to participate in a secret ballot, the result of which was that the employees "overwhelmingly" rejected the company's proposals.

[15] Following the secret ballot the unions held a series of meetings with their members to identify the components of the proposal that would be acceptable and other issues relating to the endorsement of a new agreement. The unions recognise that Zinifex will not enter into an agreement without performance-based pay. There is a model that the employees are prepared to accept in the context of a total package.

[16] The AWU then wrote to the company on 17 December 2004, identifying the issues they wished to have addressed "in order for then (sic) to support a total package of arrangements contained within a new Industrial Agreement which they would be prepared to endorse."5 The union requested that the company respond prior to the next meeting that was scheduled for 21 December 2004.

[17] The company responded by letter dated 21 December 2004, saying that they needed "some time to consider these new developments", cancelling the 21 December meeting and nominating a new meeting date of 20 January 2005.

[18] On 19 January 2005 the company filed the notice to bargain in the AIRC.

[19] There was a meeting between the parties on 20 January 2004 during which the issues raised included performance based pay and the bargaining notice filed by the company on 19 January 2005. It was agreed that there be a further meeting on 8 February 2005.

[20] On the next day, February 9 2005, the company issued General Notice No. 1223 to individual employees, which has given rise to the current dispute.

[21] Mr Flanagan said that the dispute had been brought under s29(1) of the Act.

"An organisation, employer, employee or the Minister may apply to the President for a hearing before a Commissioner in respect of an industrial dispute".

[22] Section 3 defines "industrial dispute" and "industrial matter". An "industrial matter" at (a)(i) includes a matter relating to "the mode, terms and conditions of employment."

[23] This dispute is about the failure of the company to negotiate the terms and conditions of employment and is clearly within the scope of what is regulated by the Act.

[24] Section 19(2)(c) provides for the Commission to "conduct hearings for settling industrial disputes." The applications are seeking that the Commission resolve an industrial dispute.

[25] Section 20(1)(b) says that the Commission shall:

"...do such things as appear to it to be right and proper for effecting conciliation between the parties, for preventing and settling industrial disputes, and for settling claims by agreement between the parties."

[26] In notifying the dispute the unions have sought the assistance of the Commission in working through unresolved issues in order to reach agreement on employment conditions. That is consistent with the legislative framework and with the Wage Fixing Principles, in particular Principle 3:

"ROLE OF THE COMMISSION IN WORKPLACE BARGAINING

The Commission will continue to play an active role in encouraging and facilitating workplace bargaining..."6

[27] Mr Flanagan said that the employees do not want to negotiate individually with the employer. In about May of last year, the AWU had filed a bargaining notice under the WRA. Following the re-election of the Howard government and their new majority in the Senate, the union no longer wanted to pursue an agreement in the federal jurisdiction and considered it more appropriate to pursue an agreement in the context of the state Act.

[28] Last December the AWU spoke to the employees who gave the union clear instructions to pursue a state agreement. This is a matter pertaining to the relations of the employer and the employees because it is about what the employees want to achieve. The mechanism they have chosen is a s55 agreement. The unions have put it [to the company] that if agreement can be reached on the key issues, then the current agreement would simply be amended to reflect any changes.

[29] The company has offered employment arrangements on an individual basis at the same time as negotiations for a collective agreement are being conducted. The unions contend that this is provocative and an act of bad faith. The company's notice to the workforce on 9 February 2004, in which they invited the underground employees to individually sign up to the package which had been rejected in the ballot last year was "grubby and underhanded" whilst the unions were attempting to address the issues.

[30] The company has not sought to make a certified agreement with the AMWU and the CEPU. The company's argument that the WRA confers an exclusive code in relation to the making of certified agreements has no applicability to the AMWU or the CEPU, who are free to operate within the state jurisdiction.

[31] There is no industrial action, which is what is regulated by Division 8 of Part VIB of the WRA following a notice to bargain. In this dispute, there is no inconsistency or conflict between the state and federal jurisdictions.

[32] The unions are not asking that the company make any concessions on outstanding issues, but are asking the Commission to assist in dealing with a dispute. The powers of the Commission are arbitral, not judicial. It is not up to the Commission to determine the parties' rights at law, but to resolve industrial disputes.

[33] The focus of the legislation on settling disputes has been endorsed by the Full Court of the Supreme Court of Tasmania in the matter of Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission, [2004] TASSC 142 ("Blue Ribbon") and the Commission should have regard for that determination.

[34] The Commission is not restricted to the claim before it; s20(3) says that the Commission is not restricted to the specific claim made or to the subject matter of the claim.

[35] The unions submitted that there was some urgency to the negotiations because of the time lines proposed for performance reviews.7 It is not necessary for Mr Murphy to be present as claimed by the company; there are others within the company who are capable of conducting the negotiations.

[36] The Directions sought are designed to facilitate the making of a s55 agreement.

[37] Mr Flanagan's submissions were endorsed and supported by the AMWU and the CEPU.

For the Company

[38] Counsel for Zinifex, Mr West, rejected the proposition that the company was not bargaining in good faith and said that it was not necessary for the Directions to be made. He said that the company has confirmed in writing its desire to reach an agreement with the unions.8

[39] The reasons for the delays on the company's part were as a result of the absence of Mr Murphy, the Group General Manager of Human Resources who was absent because of family matters until 28 February 2005. A formal response to the matters raised by the unions on 8 February 2000 will be provided before Mr Murphy returns and then there will be further discussions and meetings. The company is not prepared to have any meetings without Mr Murphy being present, but will meet as soon as practicable after 28 February 2005.

[40] There is no urgency because the pay components referred to by the union [in relation to performance-based pay] are not due until much later in the year and there is adequate time to resolve those issues before there is any prejudice to the employees. The company does not believe that it is essential that an agreement be finalised before the end of February.

[41] The AWU had served a bargaining notice in about May of 2004. General Notice 1196, issued by the company, said:

"The AWU has forwarded the attached Notice of Initiation of Bargaining Period including a log of claims.

The Bargaining Period Notice means that the union MUST be seeking to have the new Award or Agreement registered in the Federal Commission. This is different from past practice given we have for many years had agreements in the State Commission.

The Company will be agreeable to now registering any future agreement in the Federal Commission.

..."9

[42] The union withdrew its bargaining notice before Christmas. The company then served their own notice in January.

[43] Section 170MI of the WRA provides that an employer, or organisation of employees can initiate a bargaining period. Section 170MK provides that the period begins seven days after the day on which the notice was given. Section 170ML enables parties to take protected industrial action during the bargaining period. There is a prohibition against the AIRC arbitrating during a bargaining period.

[44] Mr West submitted that once a bargaining notice is issued then it invokes the jurisdiction of the AIRC. Once the requisite seven days pass and the bargaining period commences, then there is an exclusive code of regulation around the bargaining process.

[45] Part VIB - Certified Agreements - of the WRA provides for a comprehensive code surrounding the making of agreements. Section 127 extends the powers of the AIRC beyond its normal dispute-settling powers; it may make orders preventing or stopping industrial action in relation to the negotiation of certified agreements.

[46] Section 170NC prohibits coercion during the making of agreements and notes that the Federal Court has remedial powers in relation to a contravention of that section.

[47] [Once a bargaining notice is served] protected industrial action is the principal thing that is provided for, but there are many other provisions of the WRA which confer on the AIRC and, in some cases, the Federal Court, the capacity to supervise the conduct of parties involved in negotiating federal certified agreements. That constitutes a legislative code for how certified agreements are to be dealt with, giving the AIRC the role of scrutinising both the content of the agreement and the negotiations. The clear intent of the Federal Parliament was to regulate the behaviour of the parties during the negotiation of certified agreements.

[48] There is nothing in the code that says that there must be a mutual commitment to the making of an agreement. The fact that a certified agreement is not mutually sought does not matter; the seeking of such an agreement can be a unilateral action.

[49] Section 109 of the Constitution says, in effect, that where there is an inconsistency between a state and federal law, the federal law prevails, at least to the extent of the inconsistency.

[50] A number of High Court decisions have dealt with the conflict between federal law and state laws.

[51] In Telstra Corporation Limited and Worthing and Anor, 197 CLR 61, at p76, the High Court said:

"...Here again, the operation of s 109 of the Constitution is decisive.

The applicable laws are well settled. Cases still arise where one law requires what the other forbids. It was held in Wallis v Downard-Pickford (North Queensland) Pty Ltd (58) that a State law which incorporated into certain contracts a term which a law of the Commonwealth forbad was invalid. However, it is clearly established that there may be inconsistency within the meaning of s 109 although it is possible to obey both the Commonwealth law and the State law (59). Further, there will be what Barwick CJ identified as "direct collision" where the State law, if allowed to operate, would impose a greater obligation than that for which the federal law has provided...."

[52] In Australian Mutual Provident Society and Goulden and Ors, 160 CLR at p339, in a joint judgment concerning the NSW Anti Discrimination Act 1977, the Court determined the issue of a collision between the state law and the federal law where the federal law imposes a greater obligation.

[53] In the Clyde Engineering Company and Ors case of 1926 ("Clyde Engineering"), the judgment of Isaacs J, 37 CLC 466 at p489 under the heading "Inconsistency", said:

"-As to the first there arises on the threshold a question as to the proper test of inconsistent. It is said that the State Act concedes to the Federal award its full operation, since it says nothing about the deduction for hours not worked, and merely creates a new and independent right to a further payment for the hours actually worked. The infallible test of whether in so providing there is an inconsistency is said for the respondent to be whether the two provisions of deduction on the one hand an extra payment on the other could both be obeyed. No doubt the employer could obey both, that is physically...But surely the vital question would be: Was the second Act on its true construction intended to cover the whole ground, and therefore, to supersede the first? If it was so intended, then the inconsistency would consist in giving any operative effect at all to the first Act, because the second was intended entirely to exclude it. The suggested test, however useful a working guide it may be in some case or, in other words, however it may for some cases prove a test, cannot be recognised as the standard measuring rod of inconsistency. If, however, a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field..."

[54] Mr West submitted that there is a well-established line of authority that where the Commonwealth evidences an intention to cover the field in relation to a particular matter the State law gives way, and there is no clearer example of an intent by Parliament to set up a regime or code of regulation than in relation to the WRA around the negotiation of certified agreements.

[55] If the Commission were to issue the Directions sought, which are intended to affect the negotiation of a certified agreement, it would be contrary to s109 of the Constitution and would be an invalid exercise of power.

[56] In the company's submission, Direction 1 is not a Direction that is within the power of the Commission. The Act does not confer express powers over the supervision of the negotiation of state agreements. Its powers are powers for the settling of disputes. Section170NA of the WRA gives the AIRC the powers to conciliate in respect of certified agreements. These powers are not mirrored in the Tasmanian act.

[57] The unions have relied upon the definition of industrial dispute in s.3 of the Act. The definition of "industrial matter" requires that the dispute be about "matters pertaining to the relationship of employers and employees". This is expressed in almost identical terms to those in the WRA.

[58] The High Court in the matter of Electrolux Home Products Pty Ltd v AWU [2004] HCA40 ("Electrolux") established that the matter must affect the employer and the employees in their capacity as employers and employees. The complaint in this matter is that the company is not dealing with the union in a proper way; the Directions sought are directed at how the company deals with the union and therefore are not matters pertaining to the employer and the employees, but rather to the union and the company.

[59] Direction 1 goes beyond what is appropriate for bargaining in good faith. The Full Bench, in Barminco Pty Ltd and AWU, TIC, T10893 of 2003, 22 March 2004, appeared to accept that there was no obligation in law that the parties bargain in good faith. The Commission is being asked to give directions to require the employer to do something that the law itself does not require.

[60] There is no requirement in the federal act, as currently drafted, to bargain in good faith, as found by the Full Bench of the AIRC in Sensis and the CPSU, print PR939704. Even if there were a requirement to bargain in good faith, it is instructive to look at the Enterprise Agreements Flexibility Test Case, 59 IR 430, beginning at p434 in which the Full Bench of the AIRC, when there was a legislative requirement to bargain in good faith, said:

"The role of the Commission in the bargaining process is facilitative rather than interventionist."

[61] The Commission may direct the parties to meet, confer, set timetables etc, but may not intervene in the bargaining itself. It cannot require the parties to make concessions.

[62] Direction 1 is directed at materially altering the company's position and requires concessions. It has the effect of according paramountcy to the making of a collective agreement, there is no support in the Act for that proposition. It is drafted so broadly as to be oppressive.

[63] Mr West submitted that there is nothing inherently wrong with the company's position; it has made a commitment to making an agreement with the unions. Notice 1223 links wage increases to performance, but does not directly preclude employees from the collective bargaining process. It is perfectly lawful for an employer to make offers to individuals.

FINDINGS

Jurisdiction

[64] I deal first with the jurisdictional issues. It is not for this Commission to interpret the provisions of the Workplace Relations Act 1996 (Cth) or to make any findings as to its operation. My task is simply to determine whether or not I have jurisdiction to hear and determine the applications under the Tasmanian Industrial Relations Act 1984.

[65] If there is an industrial dispute under the terms of the Act, then I have jurisdiction to hear the matter, provided that there is no inconsistency of the nature described in Section 109 of the Constitution:

"Where a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

[66] Mr West referred the Commission to the Clyde Engineering case, in which it was said:

"If, however, a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field."

[67] The present dispute is a dispute about the regulation of the mode, terms and conditions of employment. I observe that the federal jurisdiction certainly does not cover that field, as the existence of a number of state jurisdictions attests.

[68] It is also a dispute about the form of regulation of employment conditions, ie, whether it is to be a state or federal agreement. Again, I observe that the federal jurisdiction does not cover the field in respect of agreement making. Indeed, the parties in question are currently parties to a state agreement that regulates the employment conditions of the employees the subject of these applications.

[69] The company argues that when a bargaining notice is served it invokes the jurisdiction of the AIRC and that once the bargaining period commences there is an exclusive federal code of regulation around the bargaining process.

[70] It is certainly well outside of my jurisdiction to determine that question. I observe, however, that the initiation of a bargaining period signals an intention to "try to" make an agreement under Division 2 of Part VIB of the WRA. It is an undisputed fact that there is currently in operation an award and an agreement of the state jurisdiction, and there is no federal award or agreement that currently applies.

[71] It is self-evident that an agreement is only made by agreement. The parties may never agree to bargain for a certified agreement. There does not appear to be any ability to compel a party to bargain for a certified agreement. Indeed, the notions of compulsion and agreement are antithetical. It is true that a bargaining notice can be made unilaterally, but until the parties agree to bargain for a certified agreement, there is not any bargaining for a certified agreement. Similarly, until the parties agree to a federal certified agreement there is no such agreement in existence. There may never be such an agreement. I do not suggest that a certified agreement, if it existed, would not override a state agreement, but there is no certified agreement.

[72] It would be manifestly absurd if an event that has not yet happened, and may never happen, would or could prevent the Commission from dealing with disputes in relation to agreements or awards of this Commission that already exist.

[73] What does exist is a notice of intent on the part of the employer to try to make an agreement, the effect of which is to invoke the provisions of s170(MI) of the WRA, which goes only to protected industrial action during the life of the bargaining period. Neither the union nor the company are presently engaged in any industrial action. If that were so, then, I do not doubt, that section of the WRA would regulate such action. I can detect no reference to any other consequence in relation to the filing of a notice to bargain.

[74] Even it were the case that the existence of the bargaining notice were a bar to the Commission hearing this dispute, then that would not apply to the CEPU and the AMWU who are parties to the existing agreement and the current negotiations and for whom there is no bargaining notice in place.

[75] I do not discern any inconsistency that would prevent the Commission from hearing and determining a dispute in relation to the mode, terms and conditions of employment of the employees at Zinifex Rosebery. Whether or not this is such a dispute, I shall come to later in this Decision.

[76] The definition of "industrial dispute" is a dispute about an "industrial matter" and the definition of "industrial matter" is:

"any matter pertaining to the relations of employers and employees and, without limiting the generality of the following, includes- (a) a matter relating to - (i) mode, terms and conditions of employment".

[77] The company submitted that this is not a dispute about an industrial matter because the dispute relates to the company's dealings with the union and therefore is not a matter pertaining to the relations between employers and employees in their capacity of employers and employees, citing Electrolux as authority.

[78] I think that there could be few clearer examples of matters connected with the relations of employers and employees in their capacity as employees and employers than the wages and conditions that apply at the workplace. That is the underlying element in this dispute. The actual event which gave rise to the dispute applications was an offer by the company in relation to wages and conditions to individuals, at the same time as negotiations were being conducted in relation to a collective agreement covering wages and conditions. The reason that negotiations have stalled is because of a disagreement about the method of determining a wages component.

[79] I find that the dispute relates to the mode, terms and conditions of employment and that therefore the Commission has jurisdiction to hear it.

[80] It was further argued by the company that the Act does not confer express powers upon the Commission over the supervision of agreements, unlike the AIRC, which has powers to conciliate in respect of certified agreements. That may be so, but the Commission has broad dispute settling and conciliation powers, and I have already found that the current dispute concerns the mode, terms and conditions of employment. Whilst there is no explicit power to conciliate agreements, there is a broad power to conciliate and settle disputes. In addition, s20(1)(b) provides that in the exercise of its jurisdiction under the Act the Commission:

"shall do such things as appear to it to be right and proper for effecting conciliation between parties, for preventing and settling industrial disputes, and for settling claims by agreement between the parties."

Merit

[81] I accept the submissions of the employer, that there is no specific requirement in the legislation for the parties to bargain in good faith. Nonetheless, it is within the powers of the Commission, in settlement of a dispute, to order the parties to bargain in good faith. Authority for the proposition that the Commission has broad powers in the settlement of disputes is to be found in Blue Ribbon, a decision of the Full Court of the Supreme Court of Tasmania, which upheld the power of the Commission to make orders of the Commission against a third party pursuant to s31(1) which provides:

"Subject to this section, where the Commissioner presiding at a hearing under section 29 is of the opinion, after affording the parties at the hearing a reasonable opportunity to make any relevant submissions and considering the views expressed at the hearing, that anything should be required to be done, or than any action should be required to be taken, for the purpose of preventing or settling the dispute in respect of which the hearing was convened, that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken."

[82] What have been sought are directions, not orders. The Commission is able to regulate its own procedures s21(1). If the directions do not assist in the resolution of the matter, the file will remain open and any party can bring the matter back before the Commission and seek orders in settlement of the dispute.

[83] I deal firstly with Directions 2 and 3 as sought by the unions. Direction 2, as proposed, requires that the company meet with the unions within seven days to negotiate outstanding issues that were identified in the meeting of 8 February 2005.

[84] It is obviously desirable that negotiations recommence as soon as possible. However, I note that the company would prefer to have continuity in its negotiating personnel, and has argued that any further meetings should be delayed until Mr Murphy returns on 28 February 2005. I propose to direct that such meeting take place no later than 1 March 2005.

[85] The company has confirmed, on the record, its intention to respond to the issues identified in the meeting of 8 February 2005, in which case Direction 3, as sought by the union is not necessary. I simply observe that it would be unfair to the unions if such a response were not forthcoming in a timely manner so that they may prepare for the meeting referred to above.

[86] Direction No 1, as sought by the union, requires that the company withdraw and cease the offering of alterations to the employment arrangements on an individual basis for those persons within the scope of the s55 industrial agreement currently in place.

[87] The company has argued that such a direction is so broad as to be oppressive. The unions have argued that the company's actions in making individual offers whilst negotiating a collective agreement were "grubby" "underhanded" and "provocative". There is merit in both parties' submissions.

[88] Whilst I lean to the view that the Commission is able, pursuant to s31(1) to make an order along the lines as sought by the unions, at this stage I am going to recommend that the company immediately withdraw such offer to any employees who have not already taken it up; cease offering such individual arrangements to its employees; and continue not to make such offers for as long as the negotiations for a collective agreement are continuing. I do so on the basis that I am required pursuant to s20(1)(b) to do "such things as appear to it to be right and proper for effecting conciliation between parties, for preventing and settling industrial disputes." I consider that the company's actions are an impediment to any settlement of the dispute and to the making of the collective agreement with the union that they say they are committed to.

Direction

I hereby direct that the Zinifex Rosebery Mine (the company) meet with the AWU, the AMWU and the CEPU collectively in Tasmania for the purpose of negotiating outstanding issues relating to the making of a new collective agreement and that such meeting take place no later than 1 March 2005.

Recommendation

I hereby recommend that Zinifex Rosebery Mine (the company) immediately withdraw General Notice 1223, and cease offering the arrangements contained therein. Further, that the company not make any such offers for so long as negotiations for a collective agreement with the AMWU, the CEPU and the AMWU are continuing.

[89] It is open to any of the parties to apply to the Commission to have these matters brought back on at any time.

 

P C Shelley
Deputy President

Appearances:
Mr R Flanagan for The Australian Workers' Union, Tasmania Branch
Mr K Mays for Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Mr D Hanisch for Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
Mr R West of Minter Ellison for Zinifex Rosebery Mine with Mr G Bruce

Date and place of hearing:
2005
February 16, 17
Hobart

1 Exhibit A2
2 Exhibit AMWU1
3 Exhibit A4
4 Exhibit A4
5 Exhibit A4
6 Exhibit A3
7 Exhibit A7
8 Exhibit A6
9 Exhibit A8