The latest precedent from the Fair Work Commission relating to right-of-entry to BMA draglines has BHP furious about the prospect of loss of productivity, but that’s a very small part of the picture.
“If allowed to stand, this decision would unnecessarily reduce the productivity and economics of our operations as it disrupts the operations of our draglines, which at 2500 tonnes are the largest, most expensive equipment we have in our operations,” came the core complaint from BHP this week.
BMA have 20 draglines operating at their coal mines in Queensland, most of which have two operators on board at any one time to avoid downtime if one operator needs to take a lunch break, fill out paperwork, or use the toilets. Some machines only carry a single operator, and in that case you can see that any stoppage of the operator, union-related or otherwise, would result in a significant productivity loss.
It’s very difficult to get BHP to quantify the prospective loss of dragline productivity from union visits, especially while they are weighing up the prospect of an appeal against the new FWC decision.
On the flip side, the CFMEU is perfectly willing to describe the practical process by which a union rep would enter a dragline, and give us a starting point for estimating the loss of productivity.
It’s important for us to gauge this loss, as it forms the basis of BMA’s argument against allowing union reps to board a dragline, so let’s get into it.
Queensland CFMEU district president Steve Smyth told Australian Mining that it takes between one and two minutes for a dragline to stop movement to allow someone on board. This goes for anyone, whether you’re an operator starting shift, a drill and blast superintendent checking up on operations, a member of management or even the press there to take a tour, or a union rep paying a visit to one of their members.
CFMEU national secretary Andrew Vickers says that during a dragline visit, it is not necessary for the machine to cease operation if there are two operators on board. There’s no safety risk to the occupants while the machine moves: anyone would be subjected to greater risk standing on a train in Sydney on the way to work.
So while one operator speaks with the rep, the other operates in the cabin up front. There's no risk that the one operator will hear the conversation of the other, contrary to the opinions espoused by FWC deputy president Ingrid Asbury.
We’re looking at a four minute loss of productivity for a single visit. Even with 10 union visits per machine per year (a gross overestimation in even the worst industrial dispute), this is probably small number of stoppages compared to what the machine faces every time a member management needs to board the machine for a visit, or for maintenance.
AMMA chief executive Steve Knott, understandably defending his members' preferences, says this is “impractical”, but how practical is the alternative?
The alternative is stopping the dragline to allow the operator to leave, finding a replacement for him to accompany the other operator, driving the first operator 2.4 kilometres from the dragline to a lunch room he never uses (at least a 15 minute drive at safe site speed limits), meeting with him there, driving him back, stopping the machine again and allowing him to alight.
Neither of these situations is a “shutdown” of critical equipment. The machine never stops running, but one of these ways requires an extra dragline operator and extra steps in the overall process of meeting, and that is the way being suggested by BHP.
So we can rule productivity out of the equation altogether when trying to understand why BHP don’t want union reps boarding their draglines.
The second point that needs to be addressed relates to the law that's at stake here. The CFMEU has sought meetings in crib rooms aboard the draglines as per the Fair Work Act s.492(3)(b), which stipulates union officials may meet with members in “specified locations provided for the purpose of taking meal or other breaks”.
The recent full bench decision rightly identified that the room aboard the dragline is the ordinary lunchroom for dragline operators, overturning the November decision which said it was not. The law clearly states that the place where a worker ordinarily takes their lunch, the 'specified location' is a suitable place for a union meeting.
BHP says the area in question is a “corridor” between two rooms aboard the dragline, but Central Queensland Services’ own drill and blast superintendent gave evidence to the FWC which described “half kitchenette”, which include an urn, a small sink, a microwave, cupboards and drawers. Regardless of what BMA or BHP legal representation calls it, dragline operators do call it a “crib room” because it is where they always take their lunch: That is the 'specified location'.
Knott compared meeting in the drag line crib room to a union rep wanting to meet a pilot in the cockpit of a commercial airliner “because the pilots occasionally eat a sandwich there”. That would be a good analogy, except for the fact that a cockpit is not a specified location for lunch (there's no kitchenette in the cockpit, that's elsewhere in the plane), and the fact that they can’t halt the plane in two minutes to allow a rep to board.
So Knott brings us closer to the real heart of the matter: “This case is a strong example of why the business community has consistently opposed automatic or presumed access for union officials to employee lunchrooms, let alone to small pseudo-meal areas inside heavy production machinery.”
This fight has nothing to do with productivity. This has nothing to do with lunch rooms. This has everything to do with BHPs fear that this precedent is at the top of a slippery slope to union reps being able to go to any type of lunchroom they want. What if they could visit people at their desks because they eat the occasional sandwich there, BHP asks? Common sense tells us that is not an ordinary lunch room, or a specified area for lunch.
But BHP are assessing their options, and the only doubt about whether or not they will appeal lies with the amount of pressure they can put on the government to repeal the Fair Work Act s. s.492(3)(b). The Liberal Party will gladly oblige any move to restrict the legal powers of the unions, but the Labor party will gladly uphold them, so passage of an amendment put forward by government is not a foregone conclusion.
Dean Dalla Valle tried pressuring the Senate to overturn this amendment in late 2014, without any success, and it’s unlikely the same move will succeed in the same goal now. If that amendment is removed, where shall we say the union is allowed to meet with their members? BHP’s preference would be offsite and after hours, to be sure.
It is the prerogative of the Union to protect their right of entry to lunch rooms, for the sake of their members. Some cynically read this as territorial pissing, that the union are making a nuisance of themselves because “that’s what they do”, but what if they didn’t try to protect this right? They are actually obliged to uphold this right of entry to the ordinary lunch room space used by their members, and in the case of dragline operators this is always aboard the dragline. The same does not apply to haulage and other truck drivers, because they take lunch in a truck cabin only rarely.
The union has no choice but to protect the laws that cover their members just as the AMMA (effectively a union that has mining companies as members) must protect the interests of its own members.
It is not only a slippery slope for BHP: Even more so this is a slippery slope for the CFMEU, that by failing to uphold this principle they could be prevented from entering any lunch room, specified or otherwise.
It is amply clear that the dragline crib-room is the line in the sand where the battle will always be fought over right-of-entry to the workplace between the AMMA (representing a collective of companies) and the CFMEU (representing a collective of employees), but for now the law is in place, and changing it will be quite difficult indeed.