Union consent required to change rosters at MIM

Cases

Union consent required to change rosters at MIM

The Queensland IRC has determined that the wording of the Mount Isa Mines Certified Agreement 1996 is clear as to the role to be played by the AWU in the introduction of new rosters. The decision clarifies that the certified agreement lays down a process for consideration and implementation of new rosters that includes obtaining agreement of the AWU, prior to any change.

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The Queensland IRC has determined that the wording of the Mount Isa Mines Certified Agreement 1996 is clear as to the role to be played by the AWU in the introduction of new rosters. The decision clarifies that the certified agreement lays down a process for consideration and implementation of new rosters that includes obtaining agreement of the AWU, prior to any change.
 
The Commissioner viewed the role to be played by the AWU under the Certified Agreement thus: 'the AWU must agree to the introduction of new rosters, or alternatively be determined to be unreasonably withholding agreement to the implementation of new rosters under the processes laid down in the Certified Agreement for dispute resolution ... a new roster cannot be implemented unless and until, the AWU has agreed to the new roster, or is found to be unreasonably withholding agreement.'
 
The previous award covering the sector required no obligation on the AWU to be reasonable and the Commissioner considered this significant when considering what the AWU had brought to the bargaining table. The AWU had agreed to be reasonable and to commit to balancing health and safety, employee needs and business needs in that consideration. There was no question that they bargained away their power of veto.
 
Background
 
The relevant Certified Agreement, which has been in operation since 1 August 1996, remains in force despite the in force date having elapsed. The parties have not sought certification of a replacement and it remains in operation by virtue of the transitional provisions in the relevant legislation. Numerous disputes have arisen as to the application of cl. 5.6 relating to the introduction of new rosters. MIM have adopted a practice of reaching agreement directly with employees or calling for volunteers. The AWU sought an order, under s. 230, Industrial Relations Act 1999, that MIM be ordered to refrain from implementing new rosters without seeking and reaching agreement with the AWU.
 
The Commissioner was of the view that this was a case where both the contentions of the AWU and MIM, with respect to cl. 5.6, were arguable, and found three issues for determination:
  1. The proper construction of cl. 5.6.
  2. In the event of acceptance of the AWU view, should orders be issued to compel compliance by MIM with the terms of the Certified Agreement?
  3. Should the terms of the Certified Agreement be amended?
Reasoning
 
While not expressly stating that the acceptance of the AWU must be gained prior to the introduction of new rosters, the clause, when read with the remainder of the Agreement has that effect. Evidence concerning the negotiations for the Certified Agreement considered objectively, confirm that what was reached was agreement on a process by which new rosters might be implemented. 'Against the background in which the certified agreement was negotiated, there is no ambiguity.' The fact that the AWU is a signatory to the Certified Agreement, and where their input is not required this is clearly indicated, also leant weight to the decision.
 
As to the remedy sought, the Commissioner was of the view that to issue an order in the form of an injunction would be 'overkill'. Subject to the parties exercising their right of appeal, the Commissioner anticipates that there will be compliance with it.
 
The Commissioner did not feel that it was appropriate to amend the agreement for two reasons: firstly there was no ambiguity, and second; due to the passing of time since the expiry of the Agreement, and an understanding that negotiations were due to commence for a replacement.
 
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