100104832

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CONSTRUCTION, MINING, ENERGY, TIMBERYARDS, SAWMILLS AND WOODWORKERS UNION OF AUSTRALIA - WESTERN AUSTRALIAN BRANCH & OTHERS

APPLICANTS

 -v-

 BHP IRON ORE PTY LTD

RESPONDENT

CORAM COMMISSIONER S J KENNER

DELIVERED FRIDAY, 16 MARCH 2001

FILE NO/S C 60 OF 2001

CITATION NO. 2001 WAIRC 02341

_________________________________________________________________________

Result Order issued.

Representation

Applicant Mr D Schapper of counsel

Respondent Mr R LeMiere QC and Mr R Lilburne of counsel

_______________________________________________________________________________

Order

WHEREAS on 2 March 2001 the applicants applied to the Commission for a conference pursuant to s 44 of the Industrial Relations Act, 1979 (“the Act”);

AND WHEREAS on 7 March 2001 the Commission convened a conference between the parties pursuant to s 44 of the Act;

AND WHEREAS at the conference the Commission was informed that the parties were in dispute as to the respondent’s notice of intention to withdraw from an unregistered industrial agreement known as the Industrial Relations Agreement (1997 as amended) (“the Agreement”) which notice was given on or about 15 February 2001 and due to take effect on or about 17 March 2001 and with the applicants seeking interim and final relief in the form of orders that the terms of the Agreement continue;

AND WHEREAS the applicants submitted to the Commission that the Agreement was binding on the respondent by reason of it being referred to in and/or incorporated within the terms of the BHP Iron Ore Enterprise Bargaining Agreement 1997 (“EBA III”) and thus such notice of purported withdrawal was ineffective and that in any event an order should issue on the merits preserving the terms of the Agreement;

AND WHEREAS the respondent raised as a preliminary issue the jurisdiction of the Commission to inquire into and deal with the matter referred to it pursuant to s 44 of the Act on the basis that the application sought the enforcement of EBA III alternatively the Agreement and thus entailed the exercise by the Commission of judicial power which was said by the respondent not to be within the jurisdiction and power of the Commission;

AND WHEREAS the Commission invited the parties to file further submissions as to the Commission’s jurisdiction to entertain the application which submissions were filed by the respondent and the applicants on or about 9 and 10 March 2001 respectively;

AND WHEREAS the Commission by reasons for decision dated 14 March 2001 determined that it did have jurisdiction and power to inquire into and deal with the matter and further directed the parties to file and serve written submissions by 12pm 15 March 2001 as to whether an interim order in the terms sought by the applicants should issue and invited the parties to file and serve any further submissions in reply;

AND WHEREAS the Commission has carefully considered the submissions as filed by the parties;

AND WHEREAS the Commission having regard to all of the matters raised by the parties in their submissions, both oral and written, including but not limited to the fact that the Agreement has in part governed the industrial relationship between the parties for a number of years containing provisions dealing with the orderly resolution of grievances and disputes; the engagement of contractors; provisions for the conduct of union business; continuation of remuneration and benefits for dismissed employees who commence proceedings in this Commission within a specified time; a commitment by the applicants to no industrial action and that it is apparent from the terms of EBA III and its predecessors that the Agreement, as amended from time to time, has formed and forms an element of the commitments, rights and obligations of the parties one to the other in their industrial relationship;

AND WHEREAS the Commission is of the view that there is a serious issue to be determined as to whether the Agreement has binding effect on the parties by reason of the terms of EBA III and whether in any event the Commission should by order preserve the terms of the Agreement by final relief and that the balance of convenience is in favour of the grant of an interim order by reason of there being substantial prejudice to employees of the respondent and to the applicants by way of the removal of rights and entitlements presently contained in the Agreement relative to any potential prejudice to the respondent in the interim and relatively short period given the time over which the Agreement has been in effect;

AND WHEREAS the Commission is of the opinion from all of the foregoing that there will be a deterioration in industrial relations between the parties in the event that an interim order does not issue until arbitration resolves the issues in dispute and notes that as a consequence of proposed changes to the Agreement in 1999 industrial action did occur (see: Australian Workers Union v BHP Iron Ore Pty Ltd (2001) FCA 3 per Kenny J at paras 90-94);

NOW THERFORE the Commission, having regard for the interests of the parties directly involved and to prevent the deterioration of industrial relations in respect of the matters in question, in accordance with the provisions of the Industrial Relations Act, 1979 hereby orders -

(1)         THAT with effect from 17 March 2001 the applicants and the respondent shall be bound by and shall observe the terms and conditions of the Industrial Relations Agreement (1997 as amended) except clause 8 thereof pending the hearing and determination of the applicants’ claim.

(2)              THAT there be liberty to apply to any party on 24 hours notice to the others to vary, revoke or otherwise set aside the terms of this order.

COMMISSIONER