T8095
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Mines and Metals Association (Incorporated) for and on behalf of Pasminco Australia Pty Ltd trading as Pasminco Hobart Smelter and Construction, Forestry, Mining and Energy Union, Tasmanian Branch
Industrial dispute - threatened industrial action - hours of work in leaching division - arbitrated REASONS FOR DECISION This was an application for a dispute hearing made under section 29(1) of the Industrial Relations Act 1984 (the Act) by Australian Mines and Metals Association (Incorporated) (the Association). The Association made the application on behalf of Pasminco Australia Pty Ltd trading as Pasminco Hobart Smelter (Pasminco) which was in dispute with the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (the CFMEU) over work starting times in the leaching division of Pasminco's works at Risdon. The leaching division operated on a 24 hours a day, seven days a week basis and the workers in that division were rostered for 12 hour shifts, on a four shifts on, four shifts off system. The Association advised the Commission that Pasminco was seeking to improve the process stability of the whole Risdon operation so that all divisions were efficient and contributing to sustained, acceptable production. Pasminco also sought to implement continuous improvement in its operations. Of three sequential processes in the production chain, roasting, leaching and purification, the leaching division was said by Pasminco not to be up to the standard of the other two divisions. Because of the continuous process at the works, sequential divisions were in a 'customer relationship' with each other the Association said. As part of Pasminco's efforts to improve the reliability of the leaching division it was requiring the shift employees to commence work at the nominated roster starting times. A certain laxity was said to have been allowed previously where employees were not strictly required to adhere to the nominated starting times so that some employees were commencing their shifts at times over an hour before the nominated starting time. This loose practice had been occurring for some time in the leaching division the Association said. One result had been inadequate supervision of the plant at shift changeover periods. The CFMEU was threatening industrial action against Pasminco's stricter requirements. The Association quoted some precedent cases in support of the management prerogative concept and submitted to the Commission that it was the employer's (ie Pasminco's) prerogative or right to require strict adherence to shift starting times. In response the CFMEU pointed out that the flexibility complained of by the Association had been operating for about two years in an environment created by the implementation of the Stable Income Plan at the Risdon works, a key element of which was said to be improved flexibility. In support of its contention that flexibility in starting times was envisaged and should remain, the CFMEU quoted from Clause 3.4 of the Pasminco Hobart Smelter Agreement 19981 (the Agreement) which provided: "3.4 FLEXIBILITY OF WORK HOURS Flexible work hours may be arranged by mutual agreement between the Company and employee." The CFMEU also relied on Clause 3.3.1 of the Agreement which referred to "their agreed roster", to submit that flexibility in starting times was envisaged and permitted under the roster provisions. In the circumstances of these agreement provisions the CFMEU said that the concept of management prerogative was inappropriate and did not apply. It was also submitted by the CFMEU that there had been no evidence put forward to show that the leaching division's operation was inefficient and, therefore, there were no grounds to impose compliance with set starting times. The CFMEU had put forward alternate flexible starting time proposals, but, they had been dismissed by Pasminco even though the CFMEU said by far the majority of the shift workers involved had supported the union's proposal. The International Labour Organisation's recommendation for workers with family responsibilities was also relied on by the CFMEU in opposing the set starting times as many of the workers in this dispute had family responsibilities and needed the flexible hours opportunity. The CFMEU said that the Commission should refrain from ruling on this dispute because the matters involved were clearly covered by the Agreement, which did not provide for arbitration. The Australian Workers' Union, Tasmania Branch endorsed and supported the CFMEU's submissions. The Association rejected the CFMEU's submissions saying that Pasminco was endeavouring to implement a process of improvement to apply across the board and the CFMEU's proposals meant there would be no improvement in Pasminco's operations. The Association said the circumstances at Pasminco's Risdon works of 24 hours per day, seven days per week continuous production involving the use of complex, inter-related skills and machinery, dictated strict procedures and close monitoring. In this context it would be wrong for the Commission to countermand Pasminco's requirements as to starting times. DECISION The Commission views this dispute in simple terms. Unless there is some clear, formal arrangement dictating otherwise, an employer does have the right or prerogative to decide at what times an employee or a group of employees shall commence and finish work. In this case there were no formal provisions allowing employees to start (or finish) work at times other than those permitted or decided by Pasminco. The Commission does not accept that the Agreement provisions quoted and relied on by the CFMEU apply in this case or were ever intended to apply in such circumstances. In the case of Clause 3.4 of the Agreement, the flexible work hours provided there were subject to mutual agreement which was not present in this case. Again, the reference to "their agreed roster" in Clause 3.3.1 of the Agreement means that rosters ought to be agreed before implementation not that the rosters should be agreed flexible rosters which statement is contradictory. The word roster implies regular, consistent shifts of work (so that the distribution of work, hours and pay, is fair to all) and this is inimical to flexibility of starting times which clearly allows for inequities. In the circumstances of this dispute the Commission considers that Pasminco has not contravened the provisions of the Agreement in requiring the shift workers in the leaching division to adhere to rostered starting times.
P A Imlach Appearances: Date and place of hearing: |