“Conciliation on Steroids”
The Full Bench of the Industrial Relations Commission of NSW comprising Walton J, Vice-President; Sams DP, Stanton C, has handed down a statement setting out the resolution of a lengthy, complex industrial dispute by the IRC using what has become colloquially known as the “BlueScope Model”. The BlueScope Model had its origins in proceedings some years ago which were successful in settling a lengthy industrial dispute in the Steel Industry. (See Re Notification under s.130 by the Minister for Industrial Relations of a Dispute between BHP Billiton and the Australian Workers’ Union (NSW) & Ors Re Proposed Strike Action. [2002] NSWIRComm 378). Justice Walton who conducted that case identified that the BlueScope process requires the agreement of the parties to step outside the normal conciliation and arbitration provisions of the Industrial Relations Act (NSW). It requires the parties to have the industrial dispute adjudicated within the context of the conciliation proceedings at the conclusion of which, should an agreement not be reached, a recommendation will be made by the Bench which will be binding. In doing so, the Commission will take into account concessions made during the conciliation process. It will also take into account the evidence called by parties within the conciliation process and their submissions both written and oral. In the BHP case, Justice Walton set out the procedure in paragraphs [11] through to [20] inclusive. Over a period, the process has been refined. In particular, in Operational Ambulance Officers (State) Award & Ors [2008] NSWIRComm 168 (12 September 2008), the Full Bench said this about it:
“[9] The process, in the strict sense, is evidence based. As the parties in these matters have experienced first hand, the process requires a rigorous and robust examination of the issues raised in the proceedings. The resolution of issues in a sequential fashion by agreement or by the giving of an ex tempore Recommendation by the Commission, is an intensive process with the Commission’s consideration of a particular matter being sharply focussed (and sometimes involving an inquisitional aspect), but subject always to the evidence or relevant concessions made by the parties. It is no less a rigorous analytical process than the traditional courtroom based public processes which have guided the Commission and the parties over the years, albeit there is a significantly different methodology employed. That approach is not designed to displace such processes, but represents an alternative methodology which may be employed in suitable cases within the scope of the Commission’s conciliation and arbitration powers.”
The process in the CFMEU v. Macquarie Generation case involved a considerable amount of interaction between the members of the Bench, the advocates and those who supported them. The Commission called for a bundle of documents to be prepared by the parties being all documents which the parties respectively and jointly believed to be important. This particular case which started out as a training dispute in the power generation industry, had followed the normal processes before the Commission of conciliation and arbitration, decision and then an appeal. That process had taken over two years. The appeal itself, whichever way it went, would not have resolved the underlying industrial dispute. It was the underlying industrial dispute which became a part of the BlueScope process which took only about eight weeks from start to finish.
The documents were filed some days before the case, somewhat akin to an appeal book. It was apparent that the Bench had clearly read the papers closely and challenged the advocates in relation to aspects of the material. The Bench refused to let the parties go off on irrelevant matters and continually brought them back to the real issues. Matters tangential to the dispute were disposed of and the parties were forced to focus upon not only what divided them but also how to improve the overall industrial regulation at the two power stations run by Macquarie Generation.
The result was an entirely new classification structure combining the work of a number of different classifications. Previously, the work of the different classifications was subject to demarcation lines. The outcome provided for higher earnings and a significantly enhanced training and career path opportunities for a broader group of employees. The new career structure abolishes the demarcations of the past and will provide more interesting work for this group together with benefits to the employer in being able to utilise trained, available staff without reference to ancient demarcation limits.
The BlueScope Model has been used successfully in a number of cases in addition to the ones mentioned above such as New South Wales Health Professionals (State) Award [2007] NSWIRComm 300; Crown Employees (NSW Fire Brigades Permanent Fighting Staff) Award [2008] NSWIRComm 174 and Crown Employees (Public Sector – Salaries 2008) Award [2008] NSWIRComm 193.
The case proves the on-going effectiveness and relevance of the NSW Industrial Relations Commission. This is despite the body blow dealt to the Commission by the WorkChoices legislation and its push for a unitary industrial relations system. There is a profound degree of experience within the NSW Industrial Relations Commission of New South Wales for resolution of such disputes. Its processes are less complicated than the federal system and its personnel have a deeper historical connection to a range of important industries. The success of the BlueScope Model as used here suggests there is a lot of life left at 47 Bridge Street. The Phoenix rises.
