Union officials will maintain their right of entry for meeting dragline operators aboard BMA draglines, according to a recent Fair Work Commission decision.
The full bench decision made on Friday 5 February overturned a ruling made in November last year, which was held to have misinterpreted the Fair Work Act.
The dispute over where union officials would be allowed to meet member dragline operators came to a head in September 2014, when CFMEU officials sought to hold meetings in the break rooms aboard draglines 34 and 35 at the Caval Ridge Mine.
Meetings were sought 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”.
BMA argued the space aboard the draglines in which operators ordinarily took meal breaks were “corridors” in which employees were able to store and prepare food and drink.
Evidence from the Central Queensland Services drill and blast superintendent was summarised as describing a “half kitchenette” aboard the draglines, which include an urn, a small sink, a microwave, cupboards and drawers.
It was also argued that the area contained a board for affixing “confidential” or “commercially sensitive” material such as drawings, designs, internal communications, and dragline sequencing.
BMA originally suggested the meetings should be held in rooms located 2.4 kilometres from the dragline operators’ ordinary break rooms, which was rejected by the union.
The Full Bench granted permission for the CFMEU’s right of entry, quashing the November ruling due to the importance of the matter, and the necessity to allow interpretation of a “relatively new and contentious provision of the Act”.
“The specified location is part of an operational piece of heavy machinery,” the bench said.
“The area is used for multiple purposes including ingress and egress to the Operator’s cab and the performance of operational duties such as computer operation, administrative duties and communication.
“Nevertheless the area is fitted out with kitchenette facilities. Because it is practical, convenient and efficient to do so, operators partake of meal and other breaks in the specified locations with the full acquiescence and approval of CQS.
“As we are of the view that the specified locations are areas in which the relevant employees ordinarily take meal or other breaks and they are provided by CQS, in part, for the purpose of taking meal and other breaks, we have concluded that a permit holder may conduct an interview or hold discussions in the specified locations.”
The latest decision to allow appeal has angered BHP management, with head of coal Mike Henry saying it highlighted the “productivity-disabling imbalance in the current Fair Work Act right-of-entry provisions and the need for reform”.
“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,” he said.
“The division was very focused on lifting the productivity of our operations in order to assure their ongoing commercial viability.”
Henry said the decision was “disappointing” in the face of tough market conditions.
In 2014 then-coal boss Dean Dalla Valle pressed the Senate to amend the Fair Work Act, suggesting the ability of unions to meet aboard draglines was disruptive to productivity, because draglines had to cease operation for health and safety reasons for discussions to occur.
CFMEU general secretary Andrew Vickers said draglines did not have to stop for discussions to occur, and that union officials were former mine workers who were familiar with safety procedure and presented no risk to operations or employees.
CFMEU district secretary Steven Smyth explained to Australian Mining the process by which union officials entered draglines, and how it did not impact on productivity.
“When we enter a dragline we talk with the two operators separately, in the separate crib room on the machine,” he said.
“The dragline does not stop operating, except to allow officials on board, which takes a maximum of one to two minutes, the same as when a supervisor or manager wants to enter the cabin.
“You call up the dragline an say you’re coming on board, the operator says okay and finishes his cycle, swings around to where his next cycle starts so he’s ready to go anyway, drops the ladders and stairs, it’s about a 100 meter walk on the radius, up the stairs, they lift it all back up and he starts swinging. They do that day in, day out, to let anyone on the machine.
“The way we do it, we try to ensure productivity continues uninterrupted. A dragline needs two operators, and if we had to take them to another crib room that would stop production.”
Smyth maintained that meetings only occur during the operator’s meal break.
BHP is now considering an appeal to the FWC decision, and stated it looks forward to the addressed "imbalance" in the Fair Work Act relating to right of entry undergoing reform as supported by the Productivity Commission.