PR952364 PR952364 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.127 (2) application to stop or prevent industrial action BHP Coal Pty Ltd and Construction, Forestry, Mining and Energy Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (C2004/6149) Coal industry COMMISSIONER BACON BRISBANE, 8 OCTOBER 2004 Industrial action at Blackwater Mine. DECISION [1] BHP Coal Pty Ltd (BHP) makes application to the Commission pursuant to s.127 (2) of the Workplace Relations Act 1996 (the Act). The application seeks the making of an order pursuant to s.127 (1) of the Act directing that industrial action stop or not occur. The order, if made, would bind the Construction, Forestry, Mining and Energy Union (CFMEU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the employees, members of the three organisations employed by BHP at its Blackwater coal mine. The CFMEU, CEPU and AMWU oppose the making of the order. [2] After hearing the parties on 7 October 2004 the Commission made an order [ PR952347 ] substantially in the terms sought by BHP. The following are the reasons for the decision to make the order. Jurisdiction [3] The jurisdiction of the Commission to make the order was not contested. Accordingly it appears to the Commission that industrial action is happening in relation to work that is regulated by an award or a certified agreement. Discretion [4] The members of the three organisations adopted strike action following a meeting held at 7.00am on 7 October 2004. Mr Stuart Hayes, who is the Human Resources Manager at the Blackwater Mine became aware shortly after 6.00am that employees were leaving the mine to attend the meeting in the town of Blackwater. Mr Hayes contacted the CFMEU Lodge Secretary, Mr Paul Vickery, in an attempt to establish "what was occurring". It is Mr Hayes' uncontested evidence that Mr Vickery advised Mr Hayes of the 7.00am meeting, but refused to provide the detail of the purpose of the meeting, other than to say that it was over "a serious issue". Despite further questioning from Mr Hayes, Mr Vickery refused to provide any details. [5] Ultimately the meeting resolved to adopt strike action for 48 hours. This was conveyed at about 8.15am to Mr Hayes by another official of the Blackwater Lodge of the CFMEU, Mr Andrew Curtis. Mr Curtis advised Mr Hayes that the resolution of the meeting was being reduced to writing and would be provided to BHP as soon as that was done. Mr Curtis also provided some of the background events that led to the strike. [6] That background in broad terms is that an apprentice at the mine, in accordance with what was said to be BHP policy or procedure, ordered from a supplier a pair of spotlights for a field maintenance vehicle. In accordance with again, what is said to be accepted procedure, the apprentice, because he was unable to charge the spotlights to the correct cost centre, charged the spotlights to the nearest cost centre, which, I am told, was "the dragline" or "the dragline vehicle". [7] At some point in time (it doesn't matter precisely when for the present purpose) BHP formed the view that the spotlights had been stolen or at least that they were missing. The BHP apprehension was not discussed with the apprentice, nor any other employees that are members of one of the three unions. [8] It seems BHP reported its apprehension to the Queensland Police. Earlier this week the Police executed a warrant authorising a search of the house at which the apprentice lives with his parents. The warrant was executed at night. The warrant is issued in relation to an offence. The offence can be summarised as "theft as a servant". The spotlights were not found during the search. [9] The angst of the members of the three unions is best expressed by the resolution passed at the meeting. That resolution is as follows: "Please be advised that as of 6.00am this morning labour was withdrawn in order to discuss the seriousness and ramifications of the following issue: Recently an employee was interrupted in his family home by the local Police who were there to conduct a search and we believe they had a warrant to do so. We also believe the search was initiated by BMA Management at Blackwater Mine. The employee concerned said he was not aware of circumstances surrounding any allegation or given any indications of allegations by Management. All he knew was that the Police were on his doorstep to conduct the search. We believe Management had ample opportunity to discuss the issue well before this type of action was taken and, as we are commonly told, make use of the appropriate disputes procedures. If this is the type of knee-jerk reaction that is to be shown towards your own employees then you should be well aware, there would be a reaction from us in response. Given the seriousness of the issue members have motioned at this morning's meeting to withdraw labour for a period of 48 hours." [10] The unions submit that the Commission should not exercise its discretion because the background circumstances demonstrate that BHP has been "heavy handed" in this matter and that the proper course was that BHP should have at least held discussions with the apprentice or made allegations to the apprentice to allow him the opportunity to respond. It is also submitted that the apprentice's name has been tarnished inappropriately and that BHP should (or should be made to) apologise. [11] The Commission does not intend to act on the second of the above points. Whether there is merit in the submission is a matter that could have been considered by the Commission had the Disputes Procedure been followed. It was not. The employees knew their options and obligations. They chose to advance their contention by adopting strike action, which is a course that is inconsistent with (indeed it is in breach of) their obligations in the relevant certified agreement. [12] The Commission has made it clear in the past and does so again that once the employees make the choice to abrogate their obligations in the certified agreement, the Commission will refuse to assist in the merits of the dispute. That course is available through the Disputes Procedure. Should the Disputes Procedure "steps" be followed to exhaustion and the dispute remain in existence, then the parties are free to take whatever steps each of them think is available. However, if that course is followed, the unions will have honoured their obligation not to take industrial action. The Commission has no intention of assisting parties to advance their position in a dispute whilst that party, employer or employee, is (or has been) in a relevant way in breach of their EBA or award obligations. [13] The industrial action is illegitimate. Clearly the parties need to discuss the unions' concerns expressed in the resolution. That will not happen whilst the strike continues. The strike serves no purpose. The employees may well have a different view about how BHP should go about investigating missing property, however the proper course is to discuss that with BHP. The Commission expects that such discussions will take place at a convenient time after the resumption of work. [14] The resolution of the employees that: "We believe management had ample opportunity to discuss the issue well before this type of action was taken and, as we are commonly told, make use of the appropriate disputes procedure." implies that BHP's apprehension that the spotlights had been stolen was a matter caught by the disputes procedure. It is not, and that was conceded by the AMWU, without comment by the CFMEU and CEPU during the proceedings. If BHP is of the belief that some of its property has been stolen it has every right to report that to the Police. It is certainly not a matter that can be dealt with through the disputes procedure. If the parties agree procedures to be adopted in similar circumstances then so be it. It is an area where all concerned need to be very cautious. The rights of all concerned must be protected. The Queensland Police are more likely to achieve that in cases involving suspected criminal offences rather than a well intentioned "star chamber" comprising BHP and employee representatives. BY THE COMMISSION: COMMISSIONER Appearances: I. Humphreys and T. Oliver on behalf of BHP Coal Pty Ltd. T. Butler and H. Peace on behalf of the Construction, Forestry, Mining and Energy Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. E. Moorhead, J. Hume, D. Booth and B. Muller on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union. Hearing details: 2004. Brisbane: October 7. Printed by authority of the Commonwealth Government Printer <Price code A>