TASMANIAN INDUSTRIAL COMMISSION

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

The AWU-FIME Amalgamated Union, Tasmania Branch
(now The Australian Workers' Union, Tasmania Branch)
(T.5724 of 1995)

and

Tasmanian Electro Metallurgical Co. Pty Ltd (BHP)

Industrial dispute - strike pay - workplace safety

REASONS FOR DECISION

This application was lodged by the AWU-FIME Amalgamated Union, Tasmania Branch (now The Australian Workers' Union, Tasmania Branch) (the applicant) pursuant to section 29 of the Act for the purpose of settling a dispute between the applicant and the Tasmanian Electro Metallurgical Co. Pty Ltd (BHP) (the respondent).

The dispute was over the non payment of wages to certain employees of the respondent who went on strike during the night shift of 22 June 1995. The employees alleged that the workplace was unsafe and as a consequence withdrew their labour.

The applicant sought the payment of wages for the said employees during the time they were on strike.

HISTORY:

On 14 June 1995 a mass meeting of union members employed by the respondent endorsed their union's position in opposition to the proposed Workers Rehabilitation and Compensation Reform Act 1995 drawn up by the State Government.

The resolution1 condemned the proposed reforms to the Workers Compensation Act which, in the view of the employees, would see a further reduction in their standard of living. It went on to endorse additional industrial action.

On 22 June 1995 the amendments to the Workers Compensation Act were tabled in Parliament and a rally of trade unionists was organised in Hobart for that day. Members of the applicant, being employees of the respondent, (along with other union members) who were on day shift on the 22 June 1995, determined to stop work for 24 hours, relying upon the previously mentioned resolution to support their action.

Prior to the commencement of night shift there was a meeting between the applicant and the respondent in an attempt to avert night shift employees participating in the stoppage. An agreement2 between the applicant and the respondent was endorsed by members of the applicant and they proceeded to commence work at 7.00 pm.

At approximately 9.00 pm on 22 June 1995 Mr Kelvin Schiefelbein (shift supervisor) was called to furnace No.1 and 2 tapping floor by Mr D Clinton, the AWU-FIME shift delegate (shift delegate), who expressed the employees concern about problems within the area. Namely, they were unhappy that many housekeeping standards that would normally be required to be undertaken, had been neglected by "staff" members who worked in the area during the period of stoppage by the day shift.

At approximately 9.20 pm the shift delegate requested, what is known on the plant as, a communication meeting with members of the organisation he represented.

At 10.30 pm the shift delegate arrived at the supervisor's office to return communication. At that time the supervisor was informed, by the shift delegate, that employees were going "to wait in the crib room until 1 and 2 area is cleaned up" and that management would "have to call in the people who worked on the day shift to tidy up the mess that they left".

The supervisor did not agree to this request and the shift delegate departed the room to call the senior union delegate.

Some 20 minutes later the supervisor went to the crib room and told the employees that their meeting was over one hour (which is the authorised time for a communications meeting) and directed them to return to work immediately. The employees from 1 and 2 furnace were also directed to return to work to clean up the areas concerned and to clean up the shot skip.

After that directive the shift delegate addressed the same group of employees. At approximately 11.45 pm on 22 June 1995 the shift delegate advised the respondent, through Mr T Webber and Mr K Schiefelbein, that members of the applicant organisation had withdrawn their labour. When asked what was the dispute about the shift delegate said "a protest over the state of furnace 1 and 2".

During the course of the hearing the Commission was informed that employees had withdrawn their labour because what they believed to be unsafe working conditions.

Those alleged unsafe working practices can be summarised as follows -

1.  There was no shift hand over meeting;

2.  That no one knew what had gone on through the day shift (including the supervisor) in respect to why the skimmer door had been left open;

3.  The shot skip was full and the shift delegate felt this was a hazard because the crew was annoyed at the way in which staff members working on the previous shift had left what he believed to be a mess, and that the employees were like to be less careful using the oxy equipment.

FINDING:

Having considered all the submissions and exhibits presented during the course of this matter, I have decided not to issue an order on the respondent to pay the wages of night shift employees for the hours they withdrew their labour on 22 June 1995, for the following reasons:

1.  Whilst recognising that it may be a very unsatisfactory practice to -

(a)  have the shot skip full;

(b)  leave open the skimmer door and;

(c)  not have a shift "hand over"

nevertheless, I have not been persuaded that all those things placed employees in a position whereby they were reasonably entitled to believe that a safety hazard existed and the hazard was of such a nature as to justify them taking strike action.

2.  The onus was on the applicant to demonstrate that the alleged safety hazards were of such a nature that the employees had reasonable grounds to conclude that, had they continued to work in that environment, there would have been an inordinate risk of personal injury or a potential to seriously impair their health.

As that onus was not satisfied it leaves me no alternative but to reject the application for what could be called "strike pay" and I so order.

R J Watling
COMMISSIONER

Appearances:
Mr J Glisson and Mr D Booker and Mr D Clinton for the AWU-FIME Amalgamated Union, Tasmania Branch (now The Australian Workers' Union, Tasmania Branch)
Mr S Knott and Ms L van Jager and Mr K Schiefelbein for the Tasmanian Metallurgical Co. Pty Ltd (BHP)

Date and place of hearing:
1995
August 29
Hobart

1 Exhibit AWU.2
2 Exhibit AWU.3