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Tasmanian Industrial Commission

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T10906 and T10919

 

TASMANIAN INDUSTRIAL COMMISSION

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

The Australian Workers' Union, Tasmania Branch
(T10906 of 2003)

Construction, Forestry, Mining and Energy Union, Tasmanian Branch
(T10919 of 2003)

and

Pasminco Hobart Smelter
(Administrator Appointed)

 

COMMISSIONER T J ABEY

HOBART, 27 June 2003

Industrial dispute - the intention by the company to unilaterally alter conditions of employment in relation to the disciplinary process - parties directed to confer - recommendation that implementation be deferred

REASONS FOR DECISION

(1) On 19 June 2003 and 24 June 2003, The Australian Workers' Union, Tasmania Branch (AWU) and the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (CFMEU), respectively, applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Pasminco Hobart Smelter (Administrator Appointed) arising out of the intention by the company to unilaterally alter conditions of employment in relation to the disciplinary process.

(2) When this matter came on for a conciliation conference on 27 June 2003, Mr R Flanagan appeared for the AWU. Mr M Reeves appeared for the CFMEU. Mr R West, solicitor, together with Mr A Hill, Ms S Gorringe and Mr R Murphy, appeared for the Company.

(3) In this matter the Company wishes to implement a revised Disciplinary System at the corporate level. The unions party to this dispute have identified certain aspects of the new policy with which they have concerns. The Company's position is expressed in the following extract from a letter to the CFMEU dated 30 April 2003.

"The company reserves its right to formulate its own policies and procedures in accordance with its legal obligations and is not prepared to negotiate policy development at a local or national level. Pasminco is, however, committed to a process of consultation with its employees and their unions about the implementation of the new policies and proposes to do this on a site by site basis."

(4) The existing Disciplinary System is found in Cause 17 of the document titled "General Information and Conditions of Employment".

(5) The Commission was advised that employees are required to sign a document indicating that they have read this booklet.

(6) Item 17 of the document titled "Contract of Employment - Award Employee" reads:

"17. I also acknowledge that I have received the General Information and Conditions of Employment Booklet."

(7) The unions contend that the Disciplinary System is part of the contract of employment and, it follows, cannot be altered on a unilateral basis.

(8) The Company position is that the Disciplinary System is a policy which is open to the employer to both formulate and change in order to meet the ongoing needs of the Company.

(9) Without hearing full argument and/or evidence on these competing issues, the Commission is not in a position to offer even a preliminary view on which position is correct, other than to observe that both the unions and the Company have arguable cases. Indeed both unions foreshadowed the lodgement of alternative applications whereby these issues might be tested.

(10) Leaving aside the legal niceties, there can be no argument with the proposition that disciplinary procedures can and do give rise to industrial disputes. A preliminary search of a well-known industrial database revealed in excess of 100 "hits" whereby a disciplinary procedure has given rise to an industrial dispute.

(11) I am also mindful of the level of goodwill, which I observe to exist at the Risdon plant in recent times, and I am conscious of the adverse consequences of any loss of goodwill at this critical point in the Company's history.

(12) Against this background I propose the following course of action:

(13) Pursuant to section 31 of the Act I direct:

  • The parties to enter into consultations both as to the substance and implementation of any revised Disciplinary System.

  • That such consultations occur in the absence of any industrial action or limitation whatsoever.

  • In the absence of any agreement to undertake the consultative process at a local [Tasmanian] level, the national offices of the respective unions are to initiate the process at a Pasminco corporate level.

(14) I so order.

(15) Further, I strongly recommend that the Company defer implementation of a revised Disciplinary System for a period of six weeks from the date of this decision so as to facilitate the consultative process.

 

Tim Abey
COMMISSIONER

Appearances:
Mr R Flanagan for The Australian Workers' Union, Tasmania Branch
Mr M Reeves for the Construction, Forestry, Mining and Energy Union, Tasmanian Branch

Mr R West, solicitor, with Mr A Hill, Ms S Gorringe and Mr R Murphy for Pasminco Hobart Smelter (Administrator Appointed)

Date and Place of Hearing:
2003
June 27
Hobart