Australian Workers Union v. Australian Steel Mill Services Pty [2006] NSWIRComm 1141

LEGISLATION CITED: Industrial Relations Act 1996 Federal Workplace Relations Amendment (Work Choices) Act, 2005

Australian Steel Mill Services Pty v. Australian Workers Union [2006] NSWIRComm 1072 Australian Workers Union v. BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1151 Automatic Fire Sprinklers Pty Limited v. Watson (1946) 72 CLR 435 CASES CITED: Clark v. Pittwater RSL Club Limited (1998) 84 IR 309 Csomore v. Public Service Board of New South Wales (1986) IR 275 Electricity Commission of New South Wales v. Swieringa (1975) AR 504 Mackie v. Weinholt (1880) 5 Qld SCR 211 Maldoc Pty Limited v. Bollard - unreported

APPLICANT Wayne Phillips Australian Workers Union LEGAL REPRESENTATIVES:

RESPONDENT Jack Henington Australian Steel Mill Services Pty

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Australian Workers Union and Australian Steel Mill Services Pty

Notification under S.130 of the Industrial Relations Act, 1996 re stand down of an employee

1 The Australian Workers Union has lodged a notification of an industrial dispute with Australian Steel Mill Services Pty under S.130 of the 1996 Industrial Relations Act, 1996. The S.130 notification records the matter in dispute as concerning the stand down of Mr Dennis Cranston, a Level 3 operator, without pay for 24 hours on Thursday, 27 April, 2006 for his refusal to drive a dump truck. The AWU was claiming that Mr Cranston should be paid for the period of his suspension. On Friday, 5 May, 2006 the AWU wrote to me to make a further claim for payment on behalf of another member (Mr Dean Robinson), also a Level 3 operator employed by ASMS who was stood down without pay on Thursday, 4 May, 2006 for refusing to drive a dump truck.

2 I set the matter down for conference on Tuesday, 2 May, 2006, Monday, 9 May, 2006 and Monday, 22 May, 2006 (in the Commission's premises at 90 Crown Street, Wollongong). Conciliation failed to settle this matter. I issued the certificate of attempted conciliation required by S.135, lodged it in the proscribed manner and programmed the AWU claim for arbitration. I set the matter down for mention and programming on Monday, 31 July, 2006 and Monday, 28 August, 2006 (in Wollongong). In the proceedings Mr Phillips represented the AWU and Mr Henington represented ASMS. Mr Phillips provided witness statements from Mr Cranston and Mr Robinson. The AWU was no longer pursuing that claim on behalf of Mr Robinson but Mr Robinson had some evidence to advance in support of the AWU claim on behalf of Mr Cranston.

3 Ultimately, I set the matter down for a hearing on Tuesday, 19 September, 2006 (also in Wollongong) but found it necessary to vacate that hearing when Mr Robinson was not available for the cross-examination insisted by Mr Henington. Mr Phillips had assumed that, because Mr Robinson's evidence was brief - his witness statement contained only two paragraphs - and, as far as he was concerned, non-contentious, he did not have him available for cross-examination. He could not be contacted, although Mr Phillips made an attempt to do so. I rescheduled the hearing for Friday, 22 September, 2006 (also in Wollongong). Mr Robinson was ill at the time and Mr Henington sought a further adjournment. In the circumstances, I was concerned at further delay of this matter and, following discussion with Mr Phillips and Mr Henington in chambers, agreement was reached for the matter to proceed on the basis of Mr Cranston's evidence alone.

4 This issue flows from a matter previously before me for determination and at the time that Mr Cranston was stood down - Thursday, 27 April, 2006 - my decision was reserved. The background to this matter is as follows:

(a) Level 3 operators employed by ASMS had refused to drive dump trucks in the crushing plant department of the Port Kembla steelworks of BlueScope Steel (AIS) Limited. The employees asserted that the work was properly to be performed at Level 2 - and that they were under no obligation to perform the work in question. ASMS disputed that claim.

(b) ASMS lodged a notification of an industrial dispute under S.130 which came before Macdonald C for conference on Thursday, 13 April, 2006 in Wollongong and he made directions pursuant to S.134(2) that the employees drive the dump trucks if directed to do so.

(c) The ASMS employees refused to comply with those directions and ASMS requested that Macdonald C reconvene the proceedings. The matter resumed for a further conference on Wednesday, 19 April, 2006 before Macdonald C in Sydney and Friday, 21 April, 2006 in Wollongong. ASMS pressed for dispute orders under S.137(1)(a) restraining the industrial action and directing that the employees drive the dump trucks.

(d) The AWU made an application under S.173 restraining Macdonald C from proceeding into arbitration to make the dispute orders sought by ASMS. Macdonald C issued the certificate of attempted conciliation required by S.135, lodged it in the prescribed manner and referred the file for reallocation.

(e) The matter came before me for arbitration on Friday, 21 April, 2006 in Sydney. It was the AWU's contention that there was no obligation on Level 3 operators to drive a dump truck. Such work was not part of their ordinary duties. Hence, any direction to perform that work by ASMS management may be refused (and there was consequently no basis for a dispute order directing them to perform the work in question). It was, according to the AWU, a matter of choice for the employees to perform that work or not and, if they refused to do so, they could not be compelled to drive the dump trucks.

(f) I reserved my decision on that argument. In the meantime, the AWU claimed that there were sufficient employees ready and willing to perform the work in question and it would not act to prevent an individual employee to carry out the work if he chose to do so.

5 On Thursday, 4 May, 2006 I handed down my unreported decision on the matter in Australian Steel Mill Services Pty v. Australian Workers Union [Matter No.IRC 2180 of 2006]. I declined to make the dispute orders sought by ASMS at that time but, whilst I accepted the AWU argument that an employer could not compel its employees to perform work outside their contract of employment [Mackie v. Weinholt (1880) 5 Qld SCR 211 and Clark v. Pittwater RSL Club Limited (1998) 84 IR 309 at p.311], I took the view that the Level 3 operators were, in fact, obliged to perform the work of driving dump trucks as part of their duties if directed to do so. In particular, I referred to the obligation on ASMS operators under Clause 9, Training, of the Australian Steel Mill Services Pty Enterprise Award which provides that:

"...this award has been formulated on the basis of providing multi-skilling and flexibility opportunities for company employees. In this regard demarcation provisions are not included: providing employees are suitably qualified, they may be required to carry out any work function contained within the employer's operation ..."

"...it is clear to me that when Clause 9 refers to the requirement on the employees '...to carry out any work function contained within the employer's operation...' it means the employer's whole operation and not just a part of it. I believe that the range of duties for Level 2 and Level 3 positions...must be considered in the context of the overall requirements flowing from Clause 9, provided always, of course, that the operator is actually competent and accredited to drive the dump truck..."

6 It has consistently been the AWU's assertion that there were sufficient employees available to operate the dump trucks for the crushing plant if that work were offered to them but that some of the employees who were, for one reason or another, uncomfortable in driving dump trucks should not be compelled to do so. In those circumstances, I commented in my decision (at pp.11 and 12) that:

"...I would regard it as sensible that ASMS management at least give preference to those employees who have expressed a willingness to drive a dump truck over those who do not wish to do so... But for the reasons I have outlined earlier in this decision, I conclude that, provided the ASMS employees at Level 3 are competent and accredited to drive dump trucks, they are obliged to do so and their refusal to drive the dump trucks would disentitle them to wages whilst their refusal to perform that work continues. It would also form a proper basis for a dispute order in accordance with S.137(1)(a)..."

It is in that light that Mr Cranston's refusal to drive the dump truck must be considered.

7 Effective from Monday, 27 March, 2006 the 2005 Federal Workplace Relations Amendment (Work Choices) Act, and the regulations made under it, came into effect. As I understand the position, some - but not all - State industrial laws have purportedly lapsed with the introduction of Work Choices. Whilst Work Choices may present some barriers to create new entitlements for employees, Work Choices preserves a number of State matters, including the enforcement and compliance of existing rights and obligations under State law. 8 In support of that contention, I note that S.16(1) of Work Choices outlines the areas of State industrial law which are purportedly proscribed. The heading to S.16(1) gives me the key: it speaks of "...some State and Territory laws..." being excluded. It reads as follows:

"This Act is intended to apply to the exclusion of all the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer:

(b) a law that applies to employment generally and deals with leave other than long service leave;

(c) a law providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal value...;

(d) a law providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair;

(e) a law that entitles a representative of a trade union to enter premises..."

9 Whilst S.16(1)(a) might appear to be in the widest possible terms, extending to proscribe all State industrial laws, I do not believe that is actually the position. In particular, Ss.16(1)(c), (d) and (e) are more confining and respectively concern only the equalisation of remuneration, the variation to employment entitlements and right of entry. It is therefore appropriate to read S.16(1)(a) down, in my opinion, permitting the preservation of some existing entitlements of employees at least. Where a provision, such as S.16(1)(d), for instance, so clearly identifies something which is to be proscribed, it should be confined to what it actually says. And that precludes changes to working conditions or remuneration only. It does not proscribe the protection of existingemployment conditions.

10 And, indeed, what the AWU is intending to pursue by way of these S.130 proceedings is what it perceives, correctly or incorrectly, to be an existing right of Mr Cranston to payment of wages which he lost because of his refusal to drive the dump truck. That is a claim which, notwithstanding the restrictions of Work Choices, the AWU may still effectively pursue as a small claim by virtue of S.379 and 380. In particular, S.380(1) provides as follows:

"An industrial organisation may, during any proceedings before the Commission, make an application for an order under this Part and for the application to be dealt with under S.379 (small claims procedure)."

It is Ss.379 and 380 which is the source of my jurisdiction in this hearing. That remedy is confined to an industrial organisation , ie the AWU in this hearing, a position confirmed by the Full Bench of the Commission (Glynn and Hungerford JJ and Connor C) in its unreported decision of Wednesday, 10 February, 1999 in Maldoc Pty Limited v. Bollard [Matter No. IRC 2710 of 1997]. The maximum amount of any order for a small claim is confined by S.379(3): on Friday, 15 September, 2006 by regulation the maximum amount for a small claim was increased from $10,000.00 to $20,000.00 for each individual - certainly sufficient to cover the AWU's current claim before me on behalf of Mr Cranston. 11 The purpose underlying the 1996 State Act under which I still operate places on me, to the extent that Work Choices permits, certain responsibilities in resolving industrial disputes by conciliation and, if necessary, arbitration [S.3(g)]. I would have thought it unarguable, as a matter of policy and commonsense, that employers and trade unions should have a place to effectively resolve their differences in an orderly manner without industrial disruption.

12 Mr Phillips called Mr Cranston to give evidence in the hearing. Mr Cranston has almost eighteen years of employment with ASMS. He has been engaged at the crushing and screening plant for approximately ten years. He claimed in his evidence that the only truck driving process at the crushing and screening plant was eliminated some time ago and that he has not driven a dump truck for three years. Time and wages records appear to show otherwise. Also ASMS records show that there were earlier occasions when Mr Cranston was asked to drive a dump truck but had refused to do so. In any event, whilst Mr Cranston was accredited to drive a dump truck and was also an accredited trainer and assessor, he asserted in his evidence that he had not been confident to drive the dump truck, especially at night. Consequently, when he was requested to drive the dump truck by Mr Keith Eastham, his supervisor, on the night shift of Thursday, 27 April, 2006 he refused to do so.

13 ASMS had another option open to it on Thursday, 27 April, 2006. Mr Robinson, who was also accredited to drive the dump truck, had informed Mr Eastham that he was willing to do so. Mr Eastham informed Mr Cranston that he had been instructed by ASMS management to order that he drive the dump truck and that he would be suspended without pay if he failed to do so. Ultimately, after Mr Cranston's suspension Mr Eastham asked Mr Robinson to drive the dump truck and he did so.

14 Mr Cranston was suspended for 24 hours. He recorded in a written statement which accompanied his evidence that:

"...due to the harassment by my shift supervisor, I consulted my family doctor and he advised me that I was suffering from stress and provided a medical certificate for the next shift. I felt extremely embarrassed as all of this happened in front of my workmates. One of my fellow employees rang me the next day and informed me that I had been suspended for 24 hours..."

Mr Cranston commenced one week of annual leave on Monday, 1 May, 2006. When Mr Cranston resumed work on his next rostered shift - Monday, 8 May, 2006 - he agreed to commence driving the dump truck - reluctantly, he claimed. He recorded in his written statement that he:

"...was extremely nervous and proceeded very carefully as it had been a very long period of time since I had last driven this vehicle..."

Mr Cranston believes that the direction that he drive the dump truck was unreasonable in the circumstances and he claimed that he was being victimised for his refusal on Thursday, 27 April, 2006 to do so.

15 Simply stated, Mr Cranston (and Mr Robinson) had received a direction by ASMS management to drive a dump truck - work which I had determined in my decision of Thursday, 4 May, 2006 in Australian Steel Mill Services Pty v. Australian Workers Union to be part of the normal duties of a Level 3 operator - and had refused to perform the work according to that direction. Admittedly, Mr Cranston's refusal to drive the dump truck on Thursday, 27 April, 2006 (and Mr Robinson's refusal to drive the dump truck on Thursday, 4 May, 2006) were at times when there remained some unresolved argument until in my decision in Australian Steel Mill Services Pty v. Australian Workers Union I resolved it in favour of ASMS's position and that fact was explained to the ASMS employees. But the driving of the dump trucks was part of the ordinary duties of a Level 3 operator, provided he was accredited to drive the dump trucks and competent to do so. Mr Cranston was both accredited and competent to drive the dump truck.

16 In my unreported decision of Friday, 30 September, 2005 in Australian Workers' Union v. BlueScope Steel (AIS) Pty Limited [Matter No.IRC 5641 of 2004] I commented in that respect (at p.8):

"... Any employment contract involves mutual obligations by employers and employees. It is the obligation of the employee to perform all work reasonably given to him by the employer and the obligation on the employer to pay wages for that work. The payment of wages is essentially dependent upon the employee providing a service and no employer is obliged to pay employees for times when they are refusing to perform work required of them [ Automatic Fire Sprinklers Pty Limited v. Watson (1946) 72 CLR 435 at pp.465 and 466 and Csomore v. Public Service Board of New South Wales (1986) IR 275 at p.281]. That is to say, the refusal of an employee or a group of employees to perform any work which they are properly directed to perform is tantamount to a strike..."

Mr Cranston's suspension has to be considered in that light.

17 In Electricity Commission of New South Wales v. Swieringa (1975) AR 504, to which Mr Henington referred me in his submissions, the Full Bench of the former State Industrial Commission (McKeon, Cahill and Dey JJ) commented (at p.514) that:

"...in order to be entitled to payment of the wage which the terms of the employment prescribe, an employee must be ready and willing and able to perform in accordance with the lawful and reasonable directions of his employer the service for which he contracted, and that any failure on his part to do just that of itself, and so long as the failure continues, disentitles him to such payment..."

18 Mr Phillips has argued that until my decision of Thursday, 4 May, 2006 in Australian Steel Mill Services Pty v. Australian Workers Union clarified the position, the status quo should have been preserved, ie Mr Cranston should not have been pressed to drive the dump truck against his wishes, especially since Mr Robinson had indicated his willingness to do so. Mr Phillips relies in that respect on Clause 31, Disputes Procedure, of the ASMS Enterprise Award and, in particular, Clause 31.3(a), viz:

"While the matter in dispute is being discussed in accordance with the dispute procedure, work shall continue and the status quo , as applying before the dispute, shall be maintained. No party shall be prejudiced in relation to the final settlement by the continuance of work in accordance with this clause."

The problem with Mr Phillips' submission is to determine what is the status quo . As I concluded in Australian Steel Mill Services Pty v. Australian Workers Union , the ASMS Level 3 operators were obliged to drive the dump truck: that, in fact, was the status quo . Employees may not simply decline to perform any work which they are ordinarily obliged to perform and expect the status quo from Clause 31.3(a) to preserve their position.

19 I am satisfied from the evidence before me that Mr Cranston's refusal to drive the dump truck on Thursday, 27 April, 2006 - and on the earlier occasions when he refused to do so - was linked to the industrial dispute that had come firstly before Macdonald C and subsequently before me. To my mind it was part of a campaign of industrial action at that time and the AWU claim on behalf of Mr Cranston in this hearing falls squarely under S.143(1) in my opinion, viz:

"An employer who pays any remuneration or provides any other financial benefit to an employee in respect of time spent by the employee in engaging in industrial action is guilty of an offence."

20 As I indicated earlier in this decision, I had commented in my decision of Thursday, 4 May, 2006 in Australian Steel Mill Services Pty v. Australian Workers Union (at p.11) that when allocating work I regarded it "...as sensible that ASMS management at least give preference to those employees who have expressed a willingness to drive a dump truck over those who do not wish to do so...". In view of the fact that Mr Robinson had indicated his willingness to drive the dump truck, it might have been better if ASMS management had adopted that course and, in the interests of industrial harmony, not pressed the issue at that time on Mr Cranston. However, the direction that Mr Eastham made to Mr Cranston was certainly open to him and Mr Cranston's refusal to drive the dump truck must consequently deprive him of wages whilst his refusal continued.

21 I therefore dismiss the AWU application made on Mr Cranston's behalf.

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