T11513
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Construction, Forestry, Mining and Energy Union, Tasmanian Branch HENTY GOLD MINE ENTERPRISE AWARD
New award - union coverage - interest - eligibility rules - public interest - orderly conduct of industrial relations in Tasmania - application refused REASONS FOR DECISION [1] On 25 May 2004, an application was lodged by the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (CFMEU), pursuant to Section 23 of the Industrial Relations Act 1984, for the making of the Henty Gold Mine Enterprise Award. [2] This matter was listed for hearing on 20 and 21 July 2004 in Ulverstone, and 5, 6 and 13 August 2004 in Hobart. Mr A Bukarica appeared for the CFMEU, Mr R Flanagan sought and was granted leave to intervene on behalf of The Australian Workers' Union, Tasmania Branch (AWU), and Mr W Fitzgerald, of the Australian Mines and Metals Association (Incorporated) (AMMA), appeared for Placerdome Asia Pacific trading as Henty Gold Limited. Brief Overview of the Issues [3] Henty Gold Mine commenced operations in 1996. It consists of an underground mine with associated surface milling facilities. Ownership of the mine has changed on several occasions, with the current owner, Placerdome Pacific, taking over in 2002. [4] Since inception employment arrangements have been regulated by a registered Part 1VA Enterprise Agreement. There have been five such agreements with the current agreement1 due to expire on 18 September 2004. Employees have been represented in the negotiation process by an elected employee committee. [5] The mine employs approximately 65 operative employees in underground and surface operations. [6] The AWU has had a modest presence at the work site for a number of years. Evidence from the AWU witnesses indicates that membership recruitment had been difficult, largely as a consequence of relatively favourable conditions of employment prevailing at the mine. The AWU is not a party to the enterprise agreement. The AWU has however been recognised by the employer as having "right of entry" and there was evidence of representations made by the AWU on behalf of individual members. [7] In September 2002 eight employees joined the CFMEU. This had grown to 11, perhaps 12, at the time of hearing. The employees were predominantly located within the surface mill operations. [8] The CFMEU established a formal lodge structure at the mine in February 2004. The relevant CFMEU official, Mr Hinds, held a number of "strategy" meetings with members between July 2003 and May 2004. The union did not however make representations to the employer, preferring instead to build a "power base" first. The evidence of the mine manager, Mr Daly, was that he was unaware of a CFMEU presence on site until 10 May 2004. According to the evidence attempts by the CFMEU to gain "right of entry" were denied by the employer. [9] At some point in time (probably early May 2004) the employer wrote to employees offering individual common law contracts, and indicating that the enterprise agreement would not be renewed following expiry in September 2004. This action sparked a chain of events. [10] On 18 May the CFMEU lodged a s.29(1) dispute notification asserting that "the Enterprise Agreement process adopted by the Company to the agreement was not appropriate and fair", and further, "the agreement is being made under duress". [11] Particulars provided subsequently by the CFMEU indicated that the major issue was the proposed replacement of the agreement by individual contracts. [12] On 25 May the CFMEU lodged an application for an enterprise award to cover the Henty operations. [13] The s.29 dispute was listed for a conciliation conference on 26 May 2004. The application for an enterprise award had also been referred to the Commission as presently constituted, and, not surprisingly, became inextricably involved in the dispute proceedings. [14] The conciliation conference failed to settle the dispute. As a consequence the instant application was set down for hearing on 20 and 21 July 2004 for the determination of the following matters:
[15] On a date between 20 and 28 May 2004 an AWU member at Henty contacted Mr Flanagan of the AWU seeking advice as to the common law contract he had been invited to sign. [16] Following discussions amongst AWU officials the union decided to once again approach the employer, through AMMA, with the view of negotiating a collective agreement. Similar approaches in the past had apparently been rejected. [17] On this occasion the employer expressed a willingness to explore this avenue. It follows that a completed s.55 Agreement covering the totality of operations at Henty was filed in the Commission on 11 June 2004.2 This lodgement coincided with an aggressive and apparently successful membership recruitment campaign on the Henty site by AWU officials. [18] The s.55 agreement was listed for hearing on 20 July 2004. [19] Because of the interrelationship between the two matters and the commonality of evidence, the parties agreed that the two matters should be heard jointly, on the understanding that separate decisions would result. Conduct of the Application [20] The application was heard over five sitting days. Final written submissions from the CFMEU were lodged with the Commission on 24 August 2004. [21] Evidence was taken from the following witnesses:
The Application [22] The application seeks the creation of an award titled the Henty Gold Mine Enterprise Award. [23] Clause 7 - Application of Award, reads:
[24] Clause 15 - Salaries, specifies salary levels for process technicians. In the case of miners there is an expression (leave reserved). [25] Mr Hinds said that the intention of the application was to cover all classifications, including underground miners. At the time of lodgement there had not been the opportunity to consult with underground miners and hence the leave reserved clause.3 Mr McLean said that the CFMEU had no objection to the AWU or any other union with the requisite eligibility being made a party to the award. The AWU had, however, previously rejected attempts to discuss a joint approach to Henty Gold.4 CFMEU Presence at Henty [26] Mr Hinds said that, in May 2002, a Henty worker, acting on behalf of a group of mill operators, approached the CFMEU concerning membership. They were apparently dissatisfied with the Part IVA agreement, were not members of the AWU and had no interest in joining the AWU. [27] Mr Hinds forwarded membership forms by post. Eight employees joined the CFMEU in September 2002. [28] Mr Hinds held a number of meetings (off-site) with members between July 2003 and May 2004. Mr Hinds described these as "strategy meetings", aimed at establishing a "power base ... before we attempted to talk to the company". [29] In February 2004 the Henty lodge was established, with officers duly elected. [30] In March 2004 an attempt to exercise "right of entry" was rejected by the employer. [31] At the time of hearing the CFMEU had 12 members, although it seems likely that one was in the process of resigning and joining the AWU. With the possible exception of one, all CFMEU members are employed in the mill. There are 20 employees in total employed in the mill. [32] The proposed introduction of individual common law contracts in May 2004 was the catalyst for firstly, the dispute notification, and shortly thereafter, the application for an enterprise award. AWU Presence at Henty [33] According to Mr Jones, membership of the AWU had fluctuated between seven and 12 over a number of years. Mr Wakefield said the range was more likely to have been 10 to 12. Both officials said that recruitment had always been difficult because the workforce was generally satisfied with the conditions of employment prevailing on the site. [34] Some four years ago the then mine operator had denied AWU officials right of entry. That had subsequently been resolved and an agreed protocol concerning site visits was put in place. Mr Jones said he visited the site every six to eight weeks. [35] The AWU has never been a party to the registered enterprise agreement. The union did over recent years make a number of approaches to the Company, through AMMA, seeking a collective agreement, with the AWU as a party. These approaches had hitherto been rejected. [36] There was evidence that the AWU had pursued a number of matters with the Company in relation to individual members. One of these matters5 occupied some seven sitting days before the Commission at first instance, with a subsequent appeal involving the retention of counsel. [37] The membership of the AWU increased significantly following a concerted membership campaign during May/June 2004. The following evidence of Mr Wakefield is to point:6
[38] According to the evidence the AWU membership at the time of hearing was between 40 and 45, of which seven were employed in the mill. History of Coverage in Metalliferous Mining prior to 1992 [39] In 1992 the then FEDFA amalgamated with a number of unions to form the CFMEU. For the purpose of this decision, there is no distinction between the two entities. [40] This application is inextricably bound up in the broader question involving representational rights in the metalliferous mining industry taken as a whole, and not just limited to the Henty site. The AWU contends, that with the exception of the trades based unions (the AMWU and CEPU), it has exclusive rights of representation. It follows that an understanding of the historical perspective of union coverage in this sector is an important consideration. [41] This analysis also involves questions of interpretation. For example, it was the undisputed position of all parties that the CFMEU had exclusive coverage of the coal mining industry. The AWU and AMMA were adamant that coal mining was quite separate from the metalliferous mining industry. Mr Hinds, on the other hand, saw no distinction between coal and metalliferous mining.7 There is also the question of stand-alone smelters (Zinifex Hobart and TEMCO), whereby both unions have coexisted for many years (albeit not without some difficulties from time to time). [42] The evidence of Mr Lowe presented the following picture in relation to coverage in the pre 1992 era:
[43] The broad picture of union coverage was not contested to any serious extent by CFMEU witnesses. [44] Mr Lowe described the then relationship between the FEDFA and AWU as "fairly hostile". He went on to say:8
[45] Mr Lowe said that following the turf war at Renison, the AWU retaliated by signing up members in the mill at Savage River.9 [46] Mr Knott, referring to the industrial relations climate at Savage River at the time, said:10
The s.118A Order [47] In 1992 Moore VP considered applications from both the AWU and FEDFA lodged pursuant to s.118A of the Industrial Relations Act 1988 (Commonwealth). These applications concerned the rights to represent under the Commonwealth Act the industrial interests of employees in the metalliferous mining industry in South Australia and Tasmania.11 [48] In his decision dated 5 November 1992, Moore VP noted that following inspections and hearings in Tasmania, he was informed that the AWU and FEDFA had agreed upon terms of settlement of the applications. There was not however agreement "regarding whether or not rule change pursuant to s.118A(5) should apply." The Vice President noted:
[49] The Vice President further noted that the ACTU had designated the AWU as a Principal union in the metalliferous mining industry and the CFMEU/FEDFA as a significant union. Moore VP observed:
[50] Moore VP concluded with the following observation:
[51] The matter was referred to the designated Presidential Member under s.118A(5). [52] In a decision dated 25 March 1994, Moore VP, in his capacity as the designated Presidential Member, altered the Rules of the CFMEU to give effect to the 1992 s.118A Orders. The rule alteration was expressed in the following terms:12
[53] Whilst there was some debate in the instant matter as to whether the rule change applied to named companies, designated mine sites or both, the practical effect of this decision was to render employees on certain mine sites ineligible for membership of the CFMEU. [54] The only mine site of any substance not named in the order was that of Savage River. It was submitted by the AWU, supported by AMMA, that this reflected the conscious agreement of the parties at the time. Traditionally Savage River had not had an AWU presence, and it was likely that the mine would, in the near future, close. In the circumstances it was agreed to allow the status quo to continue. This submission was not contested by the CFMEU. [55] Importantly Henty did not exist at the time of the s.118A Order. Mr Bukarica submitted that the effect of the rule change was limited to designated mine sites. It did not exclude the CFMEU from the metalliferous mining industry in Tasmania as a geographical area. [56] Questioned on the representational role of the CFMEU post s.118A Order, Mr McLean said:13
[57] The evidence indicates that with certain limited exceptions at Savage River and Beaconsfield, the intent of the s.118A Order has been largely complied with. The CFMEU progressively withdrew from the industry, albeit not without some resistance from certain individuals who remained committed to the CFMEU, notwithstanding the rule change. [58] Prior to 1990 the FEDFA had an interest in the Mining (Lead-Zinc) Award applicable to the Rosebery mine. This award was replaced by the Pasminco Rosebery (Mining) Award on 8 August 1990. Initially the FEDFA was cited in the Parties and Persons Bound clause of the new award. However on 12 July 1993 the CFMEU wrote to the Commission seeking to withdraw the CFMEU interest in the award. The withdrawal of the CFMEU was effected by a Correction Order notified in the Government Gazette on 13 April 1994 relating to an earlier Order of Gozzi C dated 28 February 1994.14 [59] Mr Hinds said that he did not agree with the application to withdraw from the award but at the time was not in a position to influence the decision. However Mr McLean said, as Joint State Secretary at the time, Mr Cordwell had the authority to make the application.15 Union Coverage Subsequent to 1992 [60] From the evidence it is clear that the metalliferous mining industry in Tasmania, and elsewhere, underwent quite massive structural changes during the early 1990s. This resulted in a very significant reduction in the total number employed coupled with a move towards direct employment arrangements. This combination had a dramatic negative impact on the level of unionisation, both in terms of total numbers and union membership density. [61] It would seem that at some point in the late 1990s the AWU embarked on an aggressive campaign to increase the level of union membership and replace direct employment arrangements with collective awards and/or agreements. [62] There was much evidence presented as to the efforts of the AWU in both an industrial and political sense to pursue the interests of the metalliferous mining industry workers. At the forefront of these efforts was the hours of work campaign, and changes to the Industrial Relations Act in relation to long service leave applications and transmission of business provisions. Extensive evidence was also produced as to the industrial representation of the AWU on behalf of members. At the time of hearing the following position presented as to each mine site: Beaconsfield Gold Mine: 30 to 40 members, established delegate structure in place, in the process of concluding a collective agreement. Australian Bulk Minerals: 140 members, established delegate structure in place, registered collective agreement. Zinifex Rosebery: 140 members, established delegate structure, registered collective agreement and enterprise award. Copper Mines of Tasmania: 30 members, established delegate structure, registered collective agreement. Barminco: 80 members, established delegate structure, registered collective agreement. Tasmania Mines: 16 members, established delegate structure. Henty Gold Mine: 40 to 45 members, established delegate structure, collective agreement pending registration. [63] Both Mr McLean and Mr Hinds said it was the policy of the CFMEU to target non-unionists for membership. Mr McLean said:16
[64] The evidence shows that the CFMEU has substantial membership in the stand-alone smelters of Zinifex Hobart (300 members) and TEMCO (50 members). Mr Hinds acknowledged that CFMEU membership at TEMCO had expanded beyond their traditional coverage following a turf war in the mid nineties. There was also evidence that the growth in membership at Zinifex Hobart had been at the expense of AWU membership. [65] The CFMEU have eight members at Savage River (ABM). However Mr Hinds acknowledged that the CFMEU could not directly represent the industrial interests of these members, nor participate in collective agreement negotiations. [66] The CFMEU also have a small number of members at Beaconsfield Gold although it subsequently transpired that these individuals were not financial members. Union Coverage Interstate [67] From the evidence it is clear that the AWU is the predominant union in the metalliferous mining industry outside Tasmania. There are however exceptions to this general rule. These exceptions include the following:
Position of the Employer [68] The employer vigorously opposed the CFMEU application. [69] Mr Daly said that the Company, notwithstanding the Part 1VA agreement, had always recognised the AWU as the appropriate union to represent employees' industrial interests in the event that issues arose. Further, he was aware that the AWU had approached the Company, through AMMA, on a number of occasions seeking negotiations on a s.55 agreement to replace the existing agreement when it expired. [70] Notwithstanding this approach, Henty had opted to offer individual contracts of employment rather than renewing the current agreement. [71] Following a further approach from the AWU the Company agreed to go down the s.55 path for two reasons:
[72] Mr Daly denied that the s.55 agreement was a device aimed at keeping the CFMEU off the site. [73] The Company has refused to recognise the CFMEU as the appropriate union because the CFMEU have had no representative role over the past 10 years. Metalliferous Mining and Processing Award [74] This award came into effect on 2 May 1996.18 [75] The award consisted of three clauses only, Title, Scope and Operative Date. [76] The Scope clause reads as follows:
[77] In T Nos 6728, 6811 and 6900 of 1997, the AMMA, AMWU and AWU respectively were named as parties with an interest in the award. [78] In T8247 of 1999 the CFMEU sought an interest in this award. The matter came before Imlach C on 15 April 1999 whereupon the CFMEU withdrew the application. Mr Benson, for the CFMEU said:
[79] Correspondence from the AWU to the Commission dated 12 April 1999 said in part:
[80] The terms of the memorandum referred to by Mr Benson, was expressed in the following terms:
[81] It would seem that little progress was made in furthering the completion of this award until an application for an interpretation was lodged by the AMWU in 2002. In a decision dated 9 September 2002, Leary P said:19
[82] Mr Bukarica submitted that given the President's observations, no reliance can be placed on the "purported withdrawal of the CFMEU's interest in the MPP". That, he said, was a matter yet to be determined. [83] The President went on to convene a conference to determine the future course of this award, which was subsequently referred to the Commission as presently constituted. Since March 2003 there have been eight conferences under the chairmanship of the Commission and presumably numerous other meetings between the parties. Substantial progress has been made but the award is not finalised at the time of this decision. Refrain From Further Hearing [84] The first of the threshold issues is whether the Commission should refrain from hearing the present application due to a foreshadowed application under the Workplace Relations Act 1996 (WRA) by, or on behalf of, Henty Gold. [85] No such application has materialised. It follows that the answer to this question is 'No'. Determination of Interest [86] For an organisation to be granted an interest in an award it must satisfy the Commission that the requirements of s.63(10)(c) have been met. This section reads:
[87] I deal with each sub-section in turn. Membership [88] There was uncontested evidence that the CFMEU has at least 11 members who are employees of the employer to which the proposed enterprise award relates. [89] I therefore find that the requirements of s.63(10)(c)(i) have been met. Is the Membership Consistent with the Organisation's Rules? [90] Mr Bukarica submitted that the constitutional eligibility of the CFMEU derives from the eligibility rule of the FEDFA, which is retained in the current CFMEU eligibility rule. [91] Rule 2(E)(a) reads: "(E) Without limiting the generality of the foregoing and without being limited thereby the Union shall consist of:-
[92] This, Mr Bukarica submitted, is a "classic craft or occupation based eligibility rule" whereby the "industry" and "occupation" described are identical and eligibility is defined by work performed by the employee, rather than the industry of the employer. The industry/occupation is related to the operation of "engines", broadly defined, Mr Bukarica submitted. [93] Mr Bukarica submitted that the broad, occupational nature of the rule was confirmed by the High Court in Re Coldham and Others; ex parte the Australian Workers' Union.20 [94] The "craft" basis of the rule was not contested by either the AWU or the employer. The AWU, however, submitted that the CFMEU had failed to produce evidence that the work performed by CFMEU members at Henty was consistent with the rule. [95] This was not so. The evidence of Mr Knott (PN 2452 to 2460), and Mr Daly (PN2883 to 2895) clearly goes to the type of job classifications found at Henty. At the very least the Commission is satisfied that some, perhaps all of the CFMEU members, are process technicians. There was no suggestion that this class of employee did not fall within the eligibility rule. [96] I am satisfied that the CFMEU membership is consistent with the organisation's rules and the requirements of s.63(10)(c)(ii) have been met. Would the Grant of an Interest in the Proposed Award not Prejudice the Orderly Conduct of Industrial Relations In Tasmania? [97] In essence this consideration embraces the public interest requirements of s.36 of the Act, and in particular s.36(2)(c), which requires the Commission, before making an award, to:
[98] Not surprisingly, there is no statutory guidance as to what factors should be considered under this broad "public interest" heading. [99] Having reviewed the evidence and the submissions, I now turn to the considerations which I consider should be uppermost in determining the question which is at the heart of this application. That is, should an award be made? Competition v Conveniently Belong [100] There seems little doubt that prior to the advent of the Commonwealth WRA in 1996, the registration of organisations was founded in the notion that competition between unions for membership was both wasteful and potentially disruptive. Hence the development of the widely accepted and understood concept of "conveniently belong". [101] It is clear that this was uppermost in the mind of Moore VP when he said:21
[102] Mr Bukarica argued that this notion has been largely overturned, and that the scheme of the WRA now encourages competition between unions. Mr Bukarica relied on an AIRC decision in Re CPSU, The Community and Public Sector Union and National Tertiary Education Industry Union in which the Full Bench observed:22
[103] The same Full Bench noted that the previous s.118A had been effectively eliminated for the purpose of structuring an organisation's representational rights. Such an order may now only be made if there is both a demarcation dispute and conduct restricting the performance of work or causing damage to the business of an employer. [104] The requirements for registration under the State Act are found at s.63(1), (3), (4) and (5). In essence rules that are registered under the Commonwealth Act are to be accepted as satisfying the requirements set out in s.63(3). [105] Notwithstanding, a discretion remains with the Registrar to refuse registration "if an organisation to which the members of the association might conveniently belong already exists". [106] It is a reasonable assumption that the expression "conveniently belong" was borrowed from the Commonwealth Act as it then was (ie in 1984). [107] The determination of an "interest" in an award is determined by the Commission, as distinct from the Registrar, pursuant to s.63(10)(c) of the Act. [108] Section 63(11) requires the Commission, before making a determination under s.63(10)(c), to notify all other organisations with an interest in the award and give them an opportunity to be heard in respect of the determination. [109] Unlike the Commonwealth Act, the State Act has effectively remained unchanged in regard to registration/interest process since the Act was proclaimed in 1984. [110] I have reached the following conclusions relevant to this application: 1. Under the Commonwealth Act, there has been a distinct change in emphasis from a position whereby competition between unions was discouraged, to a situation whereby the Act at least allows for, and perhaps even encourages, competition. 2. The scheme of the State Act shows a bias towards discouraging competition between unions. That position remains unchanged. 3. Under the Commonwealth Act, representational rights are largely determined by an organisation's eligibility rules. Under the State Act representational rights are determined by the existence of an interest in an award. 4. It does not necessarily follow that satisfaction of the eligibility criteria will automatically lead to a grant of an interest in an award. That is a separate question to be determined on the facts and circumstances presented. Relationship Between the AWU and CFMEU [111] There seems little doubt that the relationship between the two unions in the metalliferous mining industry prior to the early nineties was openly hostile. Of far greater importance is the relationship, as it currently exists. Mr McLean said in evidence:23
[112] Wheras the CFMEU is prepared to co-exist with the AWU in terms of membership and award coverage, the position of the AWU was one of uncompromising opposition. Mr Flanagan said:24
[113] There was evidence that the CFMEU had recruited members at both Savage River (ABM) and Beaconsfield, notwithstanding the absence of representational rights. [114] There was evidence that in relation to TEMCO and Zinifex Hobart, sites where there is joint coverage, that the CFMEU has expanded membership beyond its traditional areas. [115] Mr Hinds said he believed the CFMEU could cover underground miners at Henty as well as mill technicians. He described the CFMEU relationship with the AWU as cordial, but not necessarily co-operative.25 [116] Mr Best said:26
[117] Mr Flanagan said:27
[118] Having regard for the totality of the evidence I have reached the following conclusions, in the event that the application was granted:
Other Considerations [119] As to the general approach to public interest considerations, Mr Bukarica submitted "that there is no general license for the Commission to restrict or inhibit the representation rights of already registered organisations via the award making power. Rather the Commission has the ability to decline an award interest application in specific circumstances where there are compelling public interest reasons for doing so". [120] In large measure I accept that this is the correct approach. [121] I also accept Mr Bukarica's submission that it is not the role of the Commission to determine which organisation has the "best product". However the converse of this is that a history of neglect and inadequate representation may well constitute compelling public interest grounds to open up to competition an area which had hitherto been the exclusive province of one organisation. Indeed this was the approach adopted by Munro J in Weipa. [122] On the evidence the AWU has demonstrated an impressive record of representation, both at an industrial and political level, in the metalliferous mining sector since the difficult period of the early nineties. The evidence of Messrs Best and McLean as to the de-unionisation of the industry was either misplaced or out of date. [123] I am equally certain, that given the opportunity, the CFMEU would also provide effective representation in the industry. [124] I make no finding as to which union might provide the more effective representation. That is not the role of the Commission. I do however find that there is no evidence of neglect on the part of the AWU. [125] I have some difficulty in accepting that the employer, in entering into the s.55 agreement with the AWU, was not motivated, at least in part, by a desire to keep the CFMEU off the site. It is not surprising that an employer, given the choice, would generally prefer to deal with one union rather than two covering the same group of employees. It is also not surprising that an employer might choose to deal with a union with a long history of representation in the industry. It is quite legitimate for both employers and unions to have a preference for one form of industrial regulation over another, and within the law, to pursue strategies to achieve those objectives. I accept Mr Bukarica's submission that the employer does not have a right to "pick the other team". The employer does however have a right to express a preference. [126] Ultimately it is the integrity of the agreement, particularly the consultative process, which is of greater importance than the timing of the negotiations. [127] Mr Bukarica relied on a decision of Gozzi C in relation to the Roadmakers Award28 as representing the correct approach in determining questions of award interest. In that matter the CFMEU was granted an interest despite the opposition of the AWU-FIME. I take no issue with the approach of Gozzi C. However I am of the view that the facts in that matter can be distinguished from the instant application. [128] Firstly, the FEDFA was previously party to the award prior to the amalgamation. Secondly there was no evidence at all going to the question of the orderly conduct of industrial relations in Tasmania. As Gozzi C said, it was "purely speculative" on the part of AWU-FIME that the orderly conduct of industrial relations would in some way be prejudiced. [129] I do not accept Mr Bukarica's submission that the Metalliferous Mining and Processing Award should be disregarded in light of Leary P's decision in the interpretation case. It is true that the President found that the award was not capable of legal enforcement. But it does not follow that the earlier decisions to create the award and determine questions of interest, were simply set aside as a consequence. Indeed there is no power under s.49 to set aside an award. [130] There are other considerations which I consider to have compelling public interest import. They are: [131] The original s.118A Order had as its genesis an agreement, presumably brokered by the ACTU. That agreement saw the CFMEU effectively withdraw from all significant mine sites, with the quid pro quo apparently being an ability to maintain coverage at Savage River, at least for the life of the mine as it then was. [132] The CFMEU voluntarily withdrew its interest from the Pasminco Rosebery (Mining) Award. [133] The CFMEU did not pursue an interest in the Metalliferous Mining and Processing Award in light of a memorandum of understanding designed to protect its interests in other areas. [134] There is no evidence of any instance whereby the CFMEU has pursued the industrial interests (as distinct from provision of advice) of a member or members in the metalliferous mining sector in the past 10 years. [135] The combination of these factors strongly indicates that the CFMEU had voluntarily vacated the metalliferous mining sector in return for concessions in other areas. Such arrangements should not lightly be overturned. [136] Having regard for the totality of the evidence I am not satisfied that the granting of the application for an enterprise award, with an attendant interest for the CFMEU, would not prejudice the orderly conduct of industrial relations in Tasmania. [137] Accordingly, the application for an enterprise award is refused.
Tim Abey Appearances: Date and Place of Hearing: 1 TE1181 of 2001 |