T12255 and T12398
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australian Workers' Union, Tasmania Branch and Zinifex Rosebery Mine s.23 application for award or variation of award The Australian Workers' Union, Tasmania Branch ZINIFEX ROSEBERY (MINING) AWARD
Industrial dispute - award variation - clause 13 - consultative procedures - use of contractors - jurisdiction - industrial matter - new subclause (c) - approved - operative date 9 January 2006 REASONS FOR DECISION [1] On 31 August 2005, The Australian Workers' Union, Tasmania Branch (AWU) 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 Zinifex Rosebery Mine (T12255 of 2005). [2] This application was listed for a hearing (conciliation conference) on 6 September 2005. [3] As a consequence of that conference the AWU lodged an application to vary the Zinifex Rosebery (Mining) Award (T12398 of 2005). [4] When this matter came on for hearing on 10 November 2005, Mr R Flanagan appeared for the AWU and Mr R West, solicitor, with Mr R Kinnane, appeared for Zinifex Rosebery Mine. [5] This application seeks to vary Clause 13 Consultative Procedures of the award. [6] Currently Clause 13 reads:
[7] The application seeks to include a new subclause (c) as follows:
Historical Background [8] Until the late 1980s operational work at the Rosebery mine was performed exclusively by employees of the then owner, Pasminco. [9] In 1990 industrial relations at the Rosebery mine underwent a significant restructuring. As part of this process the parties entered into a Contractor's Agreement.1 This was a comprehensive document that, inter alia, required that "The Company will keep the relevant Union delegate advised of planned requirements for contractors by holding communication meetings on a routine basis". [10] The agreement also provided that "base wage rates and conditions will not be less than that applicable to Pasminco Mine-Rosebery". [11] In 1991 Pasminco notified a dispute to the Commission regarding the Company's desire to use contractors in underground functions.2 This matter was resolved with the acceptance by the parties of the recommendation of Gozzi C in the following terms:
[12] According to Mr Flanagan the arrangements in T3401 together with the contractor's agreement "were honoured by the employer until 1999". He said that there were minimal stoppages or industrial action in relation to the use of contractors during this period. [13] By letter dated 28 January 1999 to site unions the Company referred to a severe financial crisis facing the Rosebery mine. The letter said, in part:
[14] The correspondence outlined a number of strategies aimed at ensuring mine survival including "greater flexibility in the use of contractors". At the same time the company formally withdrew from the contactor's agreement. [15] In response the AWU sought to vary the Award to give effect to one aspect of the contractor's agreement, namely the requirement for contractors to observe the Rosebery award wage rates and conditions. This application was rejected on jurisdictional grounds,3 a decision confirmed on appeal.4 [16] The statement of Rodney David Bennion5 refers to the Pontil dispute. Mr Bennion described this dispute as follows:
[17] Mr Bennion's statement refers to the following incidents of industrial action relating to the use of contractors: · 29 May 1999 36-hour stoppage · 11 March 2000 48-hour stoppage · 21 September 2000 24-hour stoppage [18] The statement of Gordon Phillip Austin6 refers to a 24-hour stoppage on 12 January 2004 and the subsequent resolution of the workforce, viz.:
[19] According to Mr Austin, this resolution remains operative. [20] Mr Austin referred to a further brief stoppage in May 2005. Work resumed following notification of a dispute to the Commission. A further dispute occurred on 30 August 2005. Cross shift meetings resolved not to take industrial action provided an urgent listing in the Commission was achieved. It was this latter dispute that ultimately led to the current application before the Commission. [21] The contractor issue has been the subject of a number of hearings before the Commission. [22] In March 2000 the Company notified a dispute regarding industrial action over the use of contractors.7 This was subject to conferences before Imlach C on 13 and 27 March 2000. The application was subsequently withdrawn on the basis "that there is no longer industrial action occurring ..." [23] The substance of the dispute however remained unresolved and as a consequence the AWU lodged a further dispute notification.8 The outcome of proceedings before Imlach C on 5 May 2000 appear inconclusive although it would seem that agreement was reached in relation to a document, dated 5 April 2000 which, relevantly, read:
[24] On 21 September 2000 the AWU notified a further dispute alleging that the company had breached the terms of the 5 April agreement.9 The matter came before Watling DP on 22 September 2000. The application was withdrawn at a further hearing on 2 October 2000. According to Mr Flanagan the company had re-committed to observe the 5 April 2000 agreement. [25] At the heart of the April 2000 agreement was a commitment to regular monthly meetings between the company and union delegates for the purpose of consultations on contractors and related issues. According to the statements of Mr Bennion and Mr Austin, save for periods during which enterprise agreement negotiations were on foot, these meetings occurred on a regular basis between July 2000 and July 2005. [26] According to Mr Flanagan the April 2000 agreement was generally observed during this period with, it would seem, an attendant absence of industrial disputation on the contractor issue. [27] On 20 May 2005 the AWU notified a dispute alleging a failure on the part of the company to consult in relation to the use of contractors. Following a conference before the Commission as presently constituted on 30 May 2005, the parties recorded an agreed position as follows:10
[28] Following the notification by the AWU of the dispute that gave rise to this application, it became clear that the company did not intend to continue with the regular monthly meetings. Jurisdiction [29] Mr West submitted that the application did not deal with an industrial matter in that it was concerned with the relationship between the employer and the union, rather than the employer and its employees. He relied on Electrolux Home Products Pty Ltd v AWU11 which addressed the issue of matters pertaining to the relationship of employer and employee. This judgement adopted with approval the judgement in Re Alcan Australia Ltd; Ex parte FIMEE12. McHugh J observed:
[30] In Amalgamated Metal Workers' and Shipwrights Union & Ors v BHP Pty Ltd, Whyalla & Anor13, the Full Bench concluded:
[31] Mr West submitted that on this authority it is valid to have a requirement to consult with both the union and employees, but not the union alone. [32] In The Association of Professional Engineers, Scientists and Managers, Australia v Airly Coal Pty Ltd and Others14, Bacon C referred to BHP Whyalla and concluded that the claim in question pertained to the relationship between employers and APESMA. The clause did not pertain to the employer/employee relationship and did not constitute an industrial dispute. [33] Mr West submitted that the approach taken in Federated Clerks Union of Australia v Victorian Employers Federation and Others15 was consistent with Whyalla and Electrolux in that the clause in question required the employer to consult and notify both employees and the union. [34] Mr West referred to the judgement in Westfarmers Premier Coal Limited v AFMEPKIU,16 which dealt, inter alia, with the issue of protected industrial action and a proposed clause relating to the utilisation of independent contractors. French J concluded:
[35] Mr Flanagan submitted that FCU was clear authority for the proposition that an obligation to consult on matters impacting on job security and career progression was an industrial matter. He said that the application is very much about the employer/employee relationship and it is an artificial distinction to suggest that the union's proposition is one about the relationship between the AWU and Zinifex. [36] Mr Flanagan submitted that union delegates are elected annually by the employees, not appointed by the AWU. He said:17
[37] Mr Flanagan submitted that Westfarmers should be distinguished from the instant application in that it was dealing with a clause that placed parameters around the use of contractors. The application before the Commission only imposes an obligation to consult. AWU Submissions [38] The issue of the use of contractors has, over a number of years, led to disruption and stoppages at the mine site, and those stoppages are not in the interests of the employer or employees.
[39] Mr Austin said:18
[40] The application seeks an award variation, which does no more than reflect arrangements that have been in place since April 2000. It does not impose any additional impost on the company. [41] The consultative arrangements, when they have been observed, have demonstrably served to minimise industrial dislocation, in the interests of both employer and employee. Industrial disputation has only occurred on the occasions the employer has chosen to walk away from the agreed process. It is therefore in the public interest that the Commission should grant the application, in whole or in part. Zinifex Submissions [42] Zinifex does not believe that regular monthly meetings with union delegates is necessary or desirable for the efficient operation of the Rosebery mine.19 [43] The union is asking the Commission to require the company to do something that it does not wish to do. It is the element of compulsion that is at issue in this case. [44] From the statement of Mr Murphy, it is clear that the Company is committed to forms of consultation that it feels are appropriate. There is regular ongoing consultation directly between the company and its employees over a raft of matters, and there is facility for the company to consult with union delegates as genuine issues arise. [45] Whilst a clause of this nature might reasonably be found in an agreement, it is an extraordinary provision to include in an award. [46] Guidance as to the appropriate principles governing consultation can be found in the TCR case (Commonwealth):20
[47] Mr West submitted that based on the TCR case, an award based obligation to consult is limited to when major change is involved, and such a provision is already contained in Clause 8 of the Pasminco/Rosebery Mine 2002 Agreement: "8. CONSULTATIVE PROCEDURES (a) The parties to this Agreement are committed to co-operating positively to increase the efficiency, productivity and competitiveness of the Company and where possible, subject to the needs of the business, enhance the career opportunities of its employees. (b) Where significant workplace change is required to achieve the objectives stated in sub-clause (a), the Company will: (i) prior to the implementation of significant workplace change, provide written notification about the change to all potentially affected employees and the potentially affected Union/s party to this Agreement; (ii) convene meetings with representatives of the workforce and their Union/s to discuss the nature & extent of the change. The Company will also discuss what alternatives were considered; (iii) endeavour to accommodate appropriate suggestions offered by the workforce and their representatives to mitigate the impact on employees; however, notwithstanding such consultation, the company reserves the right to implement changes it deems necessary." [48] Awards have not gone beyond the general principles outlined in the TCR case. That is, consult over major change. [49] In accordance with s 60 of the Act, the agreement would prevail over the award. To grant the application would lead to uncertainty as to the legal effect of the award. [50] The application invites the Commission to interfere with the bargaining process. The Commission should encourage the agreement making process. In this context it would be inappropriate to allow applications that have the effect of adding to or qualifying the agreement. [51] The responsibility for running the business rests with management. The Commission should only interfere where there is some manifest unfairness or inappropriate exercise of management prerogative. [52] The Commission should not have regard for consent arrangements unless they are justified on the merits. Findings [53] I deal firstly with the jurisdictional argument. [54] The thrust of the company argument is that a requirement to consult with union delegates is a requirement to consult with the union, in the absence of consultation with employees. As such the necessary direct connection to the relationship between employer and employee is absent. [55] Clearly on the authorities cited by Mr West, should I accept that union delegates and the union are one and the same, then the provisions sought by the AWU would not constitute an industrial matter. [56] None of the authorities relied upon address this particular question in that the proposed clauses referred only to the union as a distinct legal entity. In my view there are good and cogent reasons why they should be distinguished from the instant application. [57] First and foremost union delegates at Rosebery are employees in their own right. As I understand it would not be possible to be a union delegate if that person was not an employee of the company. [58] Union delegates at Rosebery are elected annually by fellow employees to represent employees in relation to industrial issues. They are not appointed by the union. They do not have an entity outside this capacity. [59] Union delegates at Rosebery have over many years, demonstrably represented the interests of fellow employees in day-to-day grassroots industrial issues. This application is not about some esoteric issue aimed at strengthening the union as a legal entity (such as bargaining agent's fees or union deductions), it is about on-the-job consultation on matters that are very much day-to-day coalface issues. [60] A requirement to consult with a union, without a concomitant requirement to consult with employees (eg Whyalla), is an entirely different situation and could conceivably impose a requirement to consult with a union which does not have any members engaged at the workplace. In such circumstances it is not difficult to see why such a provision would be found to not be an industrial matter. [61] For the above reasons the authorities relied upon by Mr West should be distinguished from the proposal before the Commission. [62] Similarly, I am not persuaded that Westfarmers is relevant to the instant application. The proposed clause does not in itself constrain the use of contractors, it only imposes an obligation to consult. [63] I find that the Commission has jurisdiction to consider the application on merit. [64] I am cognisant of the company submission going to the issue of imposing by arbitration something that the employer does not wish to do. There is considerable force in this submission and in most instances my strong preference would be for the parties to determine their own consultative arrangements. [65] This is not to say however that the Commission would never arbitrate on a matter against the wishes of one or more party. To take this to its logical conclusion it would mean that awards would never be varied other than by consent. Such a position is contrary to the scheme of the legislation. [66] There are in my view compelling circumstances that set this case apart and justify the granting of the application, albeit in a modified form. These reasons are as follows. [67] The impact of contracting out labour requirements has had a profound impact both at this workplace and the mining industry generally. The process has been a gradual one and perhaps has not had the big bang effect of major technological change. Nonetheless over a period of time the outcome is of similar proportions to that which underpinned some of the earlier decisions such as the Federated Clerks Union case. [68] This is not meant as a criticism of the company. Indeed it may well be the inevitable outcome of the imperative to remain internationally competitive. Nonetheless the impact on job security and career opportunities for employees is very real and it is not difficult to understand their concerns, as represented in the statements of Mr Bennion and Mr Austin. [69] The workplace has had a consultative mechanism in place ever since the contracting process gathered momentum in the early nineties. On the available evidence the consultative process has worked well and contributed significantly to a reduction in industrial disputation. The AWU submission, to the effect that industrial disruption has only occurred on occasions when the company has chosen to not follow the consultative process, was not challenged. [70] I do not accept that the application is in conflict with consultative arrangements contained in the registered agreement. The provision I propose to insert into Clause 13 is in my view complimentary to the agreement provisions. [71] The modified provision will not require the company to do anything that it has not done at least since 2000. It follows that no additional cost is imposed on the company. [72] I do not accept paragraph (iii) of the application. Whilst I would expect sensible, normal courtesies to apply, the proposed subclause is unnecessarily over prescriptive. [73] In relation to proposed paragraph (iv), I note the statement of Mr Murphy as to the provision of resources and meeting facilities for union delegates. It is unnecessary to make this the subject of an award prescription. [74] The claim for paid report back meetings in paragraph (v) is rejected. The case for such meetings has not been established and would in any event be prohibitively expensive. [75] I propose to vary the award by inserting the following new subclause into Clause 13: "(c) The employer shall meet on a regular basis with union delegates to consult regarding the use of contractors and related issues. Unless unforeseen circumstances intervene such meetings shall occur on at least a monthly basis." [76] The Order reflecting this decision is attached.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit A1
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