T8548
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Mines and Metals Association (Incorporated) on behalf of Pasminco Australia Ltd, trading as Pasminco Hobart Smelter and Construction, Forestry, Mining and Energy Union, Tasmanian Branch, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Tasmanian Branch),
Industrial dispute - workplace bans - enterprise agreement negotiations - order that bans be lifted REASONS FOR FURTHER DECISION This was the continuation of an application for a dispute hearing made under section 29(1) of the Industrial Relations Act 1984 (the Act) by the Australian Mines and Metals Association (Incorporated) (the Association). The Association made the application on behalf of Pasminco Australia Ltd, trading as Pasminco Hobart Smelter (the Company), which was in dispute with the unions party to the Electrolytic Zinc Award (the Award) over the imposition of bans at the Company's Risdon works affecting the introduction of a new computer system. In the decision of the Commission dated 5 August 1999, following a previous hearing of this application, all unions party to the Electrolytic Zinc Award (the Award) were strongly recommended to lift the bans and the hearing was adjourned. At a further hearing of this application, on 12 August 1999, the parties reached an agreement as to a procedure for enterprise bargaining to be resumed. This agreement included consideration in particular of matters involving the introduction of the Company's new computer based Pasminco Business System (PBS). A key part of the agreement was that bans be lifted before all else. The hearing was again adjourned so that meetings of rank and file union members could consider the agreement and decide whether or not to lift the bans. On Wednesday, 18 August 1999, the Company requested a resumption of the hearing as two unions, the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the two unions) had rejected the agreement and refused to lift the bans on that day. The hearing resumed the next day, Thursday, 19 August 1999, and the Company requested the Commission to issue an order against the two unions requiring them to lift the bans. It was confirmed at the hearing that The Australian Workers' Union, Tasmania Branch and the Construction, Forestry, Mining and Energy Union, Tasmanian Branch had lifted the bans that same day. All unions party to the Award except the Australian Municipal, Administrative, Clerical and Services Union were present at the latest hearing and opposed the Company's application citing frustration and opposition from the Company in negotiations over enterprise bargaining and the PBS introduction issue. The Commission was told that discussions over the disputed issues had been going on for quite some time. The unions sought an adjournment of the hearing so that negotiations aimed at a resolution of the dispute could resume. The Company opposed any adjournment on the basis that two weeks had passed since the matter was first brought to the Commission, all parties had agreed previously on a resolution process, but, that had been foiled and the bans remained. The Commission accepted the Company's argument and refused the adjournment. Findings As well as the Award, the parties are bound by an agreement registered with the Commission under section 55 of the Act (the Agreement). The Agreement, which expired in 1998, but, still applies since it has not been superseded nor withdrawn from by the parties, provides, under the terms of Clause 2.4 Problem Solving Procedure, that industrial action is not to take place in the ultimate prior to the matter in dispute being raised before the Commission. The Commission is bound to take note of the Agreement as it has the force of an Award over the matters in dispute on this occasion. As before, I have reviewed the provision of the Agreement and I am satisfied that the implementation of bans was contrary to the letter and intention of the Agreement. Consequently, in the presence of continuing bans, the Commission will issue an order to lift the bans against the two unions and their members. The Commission is disappointed that the unilateral imposition of bans by the two unions has, by reason of the clear prescriptions in the Agreement, which were agreed formally by the two unions, blocked any opportunity for the Commission to assist with conciliation between the parties. If the unions had sought the assistance of the Commission prior to the imposition of bans the present dispute may well have been prevented. Order In accordance with the power vested in me under section 31(1) of the Industrial Relations Act 1984 in settlement of this dispute, I hereby order that the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and their members employed at the Pasminco Hobart Smelter, Risdon, lift the work bans they have implemented currently at that site.
P A Imlach Appearances: Date and place of hearing: |