Construction Forestry Mining and Energy Union district vice-president Bob Timbs told ILN the workers also have protected action status to take two-hour rolling stoppages next week.
Xstrata and the union are at odds over what to include in the EA and negotiations have failed for the past 19 months.
The union is calling for Xstrata to let Australia’s workplace relations commission conciliate and arbitrate the EA, for the third time according to Timbs.
He said Xstrata management had not responded to its latest offer.
Timbs added if Xstrata agreed to take the matter to Fair Work Australia then all industrial action would be withdrawn and “we will go back to work”
But Xstrata does not have to take the matter to Fair Work Australia.
“Both parties have to agree to get the outstanding issues arbitrated,” Timbs said.
Should the union successfully pressure Xstrata into taking the matter to Fair Work Australia, Timbs said the outcome would depend on the commissioner appointed for the case, noting they had different views on certain issues such as the use of contractors.
But he also said Xstrata might possibly fear how a commissioner would rule on this outstanding issue and others such as crew manning levels.
Timbs also views “corporate Xstrata” as previously not allowing the local Tahmoor management to strike a new EA with the union as proposed through the onsite bargaining committee.
A company spokesperson revealed why Xstrata has declined the union request to go to arbitration.
“We are following the legislative process provided by the Fair Work Act for bargaining in good faith,” he said.
“It is our preference to negotiate a flexible modern agreement directly with the CFMEU in the interests of our employees and we are currently waiting on the outcomes of our application to the industrial relations commission for the cancellation of the current EA.
“We have made the application in the interests of removing the existing restrictive workplace practices that are not in the interests of the long-term viability of the operation.
“We need a little less posturing from the CFMEU and a lot more resolution in the genuine interests of our employees and the broader Tahmoor community.”
The spokesperson also responded to the union’s call to halt industrial action if Xstrata got Fair Work Australia to arbitrate on the enterprise agreement in dispute.
“We won’t be responding to heavy handed threats.
“We have explained that we are waiting on the outcomes of the Industrial Relations Commission and therefore have declined the CFMEU’s request to take the matter to arbitration.
“Continued industrial action is to the detriment of our employees and the viability of the operation.”
The spokesperson also denied that local Tahmoor management ever had an “in-principle” agreement with the union.
“There has never been an in-principle agreement. At no time during negotiations has an agreement been made at a local level.
“The suggestion an agreement was made and then supposedly scrapped by corporate management is completely false and out of touch with reality.”
The ongoing dispute recently took an unusual twist when Tahmoor operations manager Darren Nicholls had an explosive device – thought to be taped-together fireworks – attached to his ute at his Mount Kembla property early on Sunday, July 18.
The incident caused workers to end the second week of their strike on Friday but industrial action is starting to heat up again.