PR939433 AW774609 PR939433 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.99 notification of industrial dispute Construction, Forestry, Mining and Energy Union and North Goonyella Mines Ltd (C2003/6009) Coal industry COMMISSIONER SPENCER BRISBANE, 15 OCTOBER 2003 Utilisation of Contractors at NGCM and the failure of the company to adhere to the disputes procedures RECOMMENDATION BACKGROUND [1] This Recommendation arises from a matter filed by the Construction, Forestry, Mining and Energy Union (the Union) pursuant to s. 99 of the Workplace Relations Act 1996 in relation to the utilisation of contractors and alleged failure of North Goonyella Mines Ltd (the Employer) to adhere to the disputes procedures in the North Goonyella Underground Mine Certified Agreement 2001 (the Agreement). [2] The Union claims that the information provided by the Employer with regard to the use of contractors was amended without communication to Employees. The issue was put in dispute in accordance with Clause 37.2 of the Agreement by the Union. The Union stated that following this, the information provided on the use of contractors at the site on the night of Saturday 11 October 2003 was deficient and misleading. As a result, a stoppage of work occurred on Sunday 12 October 2003, as the Union considered that relevant consultation on changes to the performance of work had not occurred in accordance with Clause 38 of the Agreement. [3] The Employer submitted that it had provided a presentation to Employees in August this year which set out the strategy involving the use of contractors on site. A general plan of this was put on the notice board at the workplace. This plan was later amended as operational requirements evolved. However, the Employer emphasised that any employee concerns that arose as to the utilisation of contractors would have been clarified by working through the disputes procedure that had been initiated. The Employer provided an undertaking that the use of these contractors had not resulted in significant change in the workplace that would impact on the earnings, work patterns or job security of Employees, as set out in Clause 38. [4] Lengthy discussions were held with both parties during the Commission conference, where it was emphasised by the Commission that the industrial action was unwarranted. The Agreement provides mechanisms and obligations for both parties when dealing with contractor issues. Employees should not feel vulnerable about job security or changes to work patterns involving the use of contractors. They have the right to make legitimate inquiries about their use and should be provided with contractor impact information to confirm the nature of the use of contractors. RECOMMENDATION [5] Clauses 37 (`Contractors'), 38 (Workplace Change, Continuous Improvement') and 44 (`Grievance Resolution Procedure') of the Agreement provide clear obligations for the Employees and Employer with regard to consultation on the use of contractors, and the grievance procedure to be followed if disputation occurs in relation to their use. Obligations of the Employer [6] The Employer has an obligation: · to provide timely information on the use of contractors, as per Clause 37. This information should be provided as early as possible. Such information is also currently provided by the Weekly and 24 hour plans. · to consult with Employees as soon as reasonably practicable if the use of contractors is going to involve changes to the organisation or performance of work, as per Clause 38; · to respond with timely information to inquiries from Employees if concerns arise over the use of contractors; · to ensure contractor work is performed in accordance with the Coal Mining Industry Contractor's Conditions, as per Clause 37.3; · the Employer cannot take any industrial action during the grievance procedure; · the Employer is able to continue the contractors' work, subject to the considerations in Clause 37, whilst the grievance is being resolved. However, the Employer's decision to continue contractor work will be assessed against the criteria in Clause 37. Employee obligations [7] If Employees have concerns with regard to the use of contractors: · the Agreement provides entitlements to address such questions to the Employer, and if the matter is not resolved it can be progressed through the disputes procedure, as per clauses 37 and 44; · Employees must not undertake any stoppage of work whilst the Grievance Resolution Procedure is taking place. CONCLUSION [8] It is strongly recommended that no further industrial action occurs, and that if the disputation continues, either party has the right to notify this matter to the Commission to have the conference reconvened at the earliest opportunity. [9] The Employer reiterated its undertaking, as per Clause 38 of the Agreement, to inform Employees as soon as reasonably practicable if an instance arose when the use of contractors would impact on the organisation or performance of work. [10] Further to effect Clauses 37, 38 and 44 of the Agreement, the Employer should continue to provide reasonable information on the use of contractors to reduce Employees' concerns on their utilisation, and to facilitate the use of the Grievance Resolution Procedure to resolve any grievances arising. BY THE COMMISSION: COMMISSIONER Appearances: Mr T. Conroy of the Construction, Forestry, Mining and Energy Union appeared on behalf of the Applicant. Mr J. Lunny of Clayton Utz appeared on behalf of the Employer. Conference details: Brisbane: 14 October 2003. Printed by authority of the Commonwealth Government Printer <Price code B>