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[2021] FWC 1849
General information, not legal advice.
Fair Work Commission
2021-04-27
Original judgment source is linked above.
[2021] FWC 1849 [Note: An appeal pursuant to s.604 (C2021/2778) was lodged against this decision.]
s.739 - Application to deal with a dispute
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] The Australian Workers Union, NSW Branch (the Applicant) notified a dispute to the Fair Work Commission (the Commission) against BlueScope Steel (AIS) Pty Ltd (the Respondent) on 17 August 2020. The Respondent has proposed to introduce contractors to perform trimming and machining in the hatches of ships docked at its Bulk Berth Department (the Department) at Port Kembla. This change will result in the reduction of 8 full time employees from the Department.
[2] It is not in dispute that the work is governed by the BlueScope Port Kembla Steelworks and Springhill Enterprise Agreement 2019 (the Agreement).
[3] The Agreement has a detailed consultation provision which has been the subject of extensive litigation before the Commission and the NSW Industrial Relations Commission (NSWIRC).
[4] Leave was granted in accordance with section 596(2) of the Fair Work Act 2009 (the Act) for the Applicant to be represented by Mr Aron Neilson of Panetta Lawyers. The Respondent was represented by its Senior ER/HR Manager, Mr Martin Aicken.
[5] The Respondent operates a number of stevedoring berths at Port Kembla where it loads and unloads coal and other raw materials used in the making of steel. It currently employs 24 Operators on a 7 x 2, 24 hr shift system, ie, 6 operators per shift for the operation of wharves 111 and 112. The Respondent proposes to reduce the permanent workforce out of the Department by 2 employees per shift, ie, by 8 Operators in total and use contractors to perform the trimming and machining of the hatches in the ships. Trimming and machining is the practice of cleaning the hatches. It is a manual job where employees use a front-end loader, a shovel and a broom to move the raw material away from the walls and crevices inside the hatch into a position to allow the crane (Ore Loader) to scoop up the remaining material.
[6] The Operators currently work a 12-hour shift. Due to a previous ergonomic report by a consultant and a historical work practice, Operators basically work a pattern where they have 2 hours inside the crane and 2 hours outside the crane. It is not unusual for the Operator to spend the 2 hours outside of the crane in the crib room, however, there are times where the Operator will be required to do a multitude of other functions.
[7] The trimming of the ships is an important function, which can only be carried out in the latter stages of the unloading process. The Respondent believes that this work can be best undertaken with a flexible workplace environment, ie, the workers should be present when the trimming needs to be undertaken. After a number of failed trials with its full-time workforce and numerous discussions, including mediation in the Commission, the Respondent determined to outsource the trimming work to a contractor. The Respondent claims that this will allow the Respondent to flex up or flex down the contractor workforce to suit the demand, in real time, for trimming work to be undertaken.
[8] Relevantly, clause 36 of the Agreement describes the obligations of the parties in relation to consultation and change:
36.1 Principles concerning the management of change including Outsourcing
The parties agree to the following key principles concerning the management of change:
(a) The parties recognise and accept that change is an inevitable and increasingly necessary part of the steel industry.
(b) Change must be ongoing to ensure that the Company remains viable and employee expectation concerning security of employment can be satisfied.
(c) In considering the desirability and business case for any proposed change the tests to be applied are requirements for the change to be:
(d) The parties will enable early genuine consultation to facilitate the timely and efficient implementation of change, where it satisfies the test above.
(e) The parties commit to consult and abide by the dispute settling procedures provided in this Agreement in the event that proposed changes are not agreed. In support of this commitment there will be both detailed communication and strong reinforcement by the Company and Unions in respect of these procedures. At the conclusion of the processes, including dispute settlement if required, the change will be able to be implemented with no resort to industrial action.
(a) All parties being prepared to put forward considered views in respect of desired improvements and alternatives as to how such improvements could be achieved;
(b) An opportunity being given to all affected parties to fully understand the nature and impact of those views;
(c) Employee's and their unions will be given an opportunity to contribute to problem-solving and decision making, and input into the change, before any final decision on implementation of changes is made by the Company;
(d) Fair consideration being given to the issues and concerns raised by the parties before any final decision on implementation of change is made;
(e) A process that is fair, genuine and comprehensive.
36.3 Definition Significant Change A change is a "significant change" if the change will have substantial effects on:
(a) the composition, operation or size of the workforce in a section or department of the operations of the Company;
(h) outsourcing of work (meaning the engagement on a permanent basis of another organisation to perform work which has previously been performed by employees of the Company. In this respect outsourcing differs from the use of contractors to meet intermittent work load requirements or to provide specialist skills on a short term or as needs basis).
36.6 Process for introduction of change which is "significant change" and for resolving associated issues and disputes The provisions of this subclause set out the terms and order of the procedure which shall govern the introduction and management of significant change.
(a) When the Company has an idea or concept which could result in a significant change, the Company will commence a consultation process by notifying in writing employees and their union of the idea or concept that could be implemented. The written communication will outline the idea or concept and the possible effects that the idea or concept could have on employees.
(b) A consultation team will then be established to consider the idea or concept and any issues arising from that idea or concept. The team will discuss the idea or concept using interest based problem solving techniques. The consultation team will include representatives of the Company and representatives of employees and unions nominated by the relevant employees.
(c) The consultation process will consider of all aspects of the idea or concept. As a priority, the consultation will consider the impacts on employees and what steps are to be put in place to manage the impacts on employees.
(d) Consultation will not limit any party from proposing alternative ideas that may result in the objectives of the business being achieved.
(e) The Company is not under any obligation to disclose commercially sensitive information.
(f) A decision by employees or the unions not to participate brings the consultation process to an end.
(g) When consultation is concluded, the Company will advise and provide written notification to employees and the relevant unions what change is intended to be implemented, the arrangements to manage the impact of the change, the date the change will commence, the impact the change will have on employees, and what steps are to be put in place to manage the impact that the changes will have on employees.
(h) Where agreement is reached on a change, the change may be implemented immediately and the terms of the agreement will be documented.
(i) For any workplace change (including the number or composition of employees engaged on any task), the consultation process may provide for the change to be introduced on a trial basis by agreement. There should be discussion between the parties as to how the trial arrangements should be implemented. An appropriate monitoring system will be established to ensure that the proposed changes are safe, efficient, legal and fair. The period of the trial will be determined in advance, with a return to the working arrangements that existed immediately prior to the proposed change in the event that it is shown that the trial fails the safe, efficient, legal and fair test.
(j) Where there is disagreement on the change to be implemented, a party to the consultation process must give written notice to the other parties that it disputes the implementation of the change. Given that consultation has already taken place, the written notice of the party disputing the change will include a copy of that party's application referring the matter to the Fair Work Commission in accordance with the steps in the Dispute Settlement Procedure.
(k) FWC shall make such procedural directions for the conciliation or arbitration of the matter. So far is as practicable, the matter will be determined by the FWC within a period of 35 business days (Monday to Friday) from the day the Company notified its final decision on the change. The parties shall ensure strict compliance with such directions.
(l) Once a matter is referred to FWC, implementation of the change will not be implemented by the Company until either:
A period of 35 business days has elapsed from the day the Company notified its final decision on the change (unless either party has sought and been granted by FWC an interim order to reduce or extend this period);
(m) A union may apply to FWC for an interim order restraining the implementation of the change. Such an interim order will be made only if FWC is satisfied that:
(i) The matter cannot be determined within the period of 35 business days;
[9] The approval of any change proposed has become known by the parties as the "SELF" test, i.e. safe, efficient, legal and fair as per clause 36.1.c of the Agreement.
[10] Three witnesses gave evidence on behalf of the Applicant, namely:
Mr Paul Farrow, who was the Acting Assistant Secretary of the Applicant at the time of the Hearing.
Mr Claudio Morales, a Level 3 Stevedore (Operator) at the Department with 41 years' experience at the Respondent and the last 28 years in the Department, and
Mr Ciro Pinto, also a Level 3 Stevedore with 40 years' experience at the Respondent and 23 years in the Department.
[11] The Respondent also relied on the evidence of three witnesses namely:
Mr Richard Lorenc, the Bulk Ore Preparations Operations Manager.
Mr David Jones, the Process Improvement Manager at the Bulk Operations and a direct report to Mr Lorenc: and
Ms Rhea Zaulich, a senior Human Resources Advisor.
[12] The Applicant submitted that the Respondent had not complied with the provision of the Agreement due to the uncertainty associated with the proposed change.
[13] The Applicant referred to the recommendation of Hatcher VP in Australian Workers Union & Ors (NA2015/5) where, in relation to a cost-cutting proposal in this Department, he said:
"I am not satisfied this point in time that BlueScope's proposal to reduce the number of operators per crew to 4 or 5 would be safe or efficient (noting that because operators need to provide their own leave relief, this effectively means that usually only 3 or 4 in the case of each proposal would be present at any given time). The employees have raised serious concerns, which I consider to be legitimate, as to how the work could be properly and safely covered with crews of that size when two ships were at berth and or when two cranes were being operated. To the extent that the answer to those concerns was that contractors would be used to provide additional manpower at those times, I consider it likely that the cost models for these proposals have underestimated the usage of contractors (or employees on overtime) that would be required and have overestimated the savings that would be achieved."0F[1]
[14] The Applicant submitted that the current proposal is similar or the same to that which was brought before Hatcher VP in NA2015/5.
[15] Further the Applicant claimed that the Respondent has only focused on a possible cost saving rather than look at the unquantifiable cost benefits from employing full-time in-house labour.
[16] The Applicant argued that the Respondent has not provided written notification of the proposed change with sufficient clarity. Relevantly Letter 1 states:
Consultation on a significant change which could affect members of the Union
This letter is being sent to inform you that the Company wishes to commence a consultation process with employee and union representatives on a matter that could result in a significant change which could affect members of your Union.
This is a requirement of Clause 46.6 (a) of the 2019 Enterprise Agreement.
The change which the Company will consult on is the introduction of contractors to perform trimming of ships hatches at Bulk Operations.
The reason that it has become necessary to consider this change is to manage peak workloads, increase flexibility, improve gross vessel discharge rate, reduce demurrage and reduce high levels of overtime at Bulk Operation.
It is possible that this change could result in the reduction of operating positions on each crew.
A consultation team with representatives of employees, unions and the Company, will be established to discuss the change and any proposals using interested based problem-solving techniques.
If your Union wishes to have a representative be part of the consultation team, please contact me so that suitable arrangement can be made.
The first meeting is planned for Thursday 12 December 2019 commencing at 8am."1F[2]
[17] The Applicant claimed that the requisite information is simply not contained in the correspondence on the basis that there is no mention that 8 employees would be losing their jobs in the Department, no mention that voluntary redundancy would not be available to the displaced employees and no mention of the roles to which the displaced employees would be transferred.
[18] The Applicant also submitted that the overwhelming majority of employees in the Department have substantial service in the Department. The Applicant stated that these employees are career stevedores whose skills are department specific and not easily transferred to other areas of the steelworks and that it would be unfair to the employees to move them away from the Department.
[19] The Applicant claimed that the Respondent did not "substantially comply" with clause 36.6 of the Agreement due to the deficiencies of the correspondence and that the was no meaningful consultation about the proposed change. The Applicant made this claim on the basis that the Respondent did not consult about how to minimise the effects on employees because it did not know what these effects would be themselves.
[20] The Applicant also claimed that the consultation letter (Letter 2) was also incomplete
Implementation of a significant change following consultation
On the 2nd December 2019 employees and relevant unions were sent a letter which notified of a significant change that may affect members of the Union, and that the Company wished to consult with employees and the union about that change (copy attached). This follows on discussions on the top which have been occurring in the department since 2016.
A consultation team was established, and discussions have taken place with employee representative and union representative.
The consultation has now concluded. This letter is being sent to you to inform you that the Company wishes to implement a significant change that was discussed. This is a requirement of Clause 36.6 (g) of the 2019 Enterprise Agreement.
I confirm the Company's intention to implement that following change(s):
This change will be introduced from the 28th September 2020.
Taking into account the outputs of the consultation team, the effects the proposed changes are likely to have on employees include:
The following steps will be put into place to manage the impact the change may have on employees:
Employee and union representatives have contributed constructively to the consultation team. Those contributions have improved the original proposal and will assist with managing the impact on employees I wish to thank them for their time and their efforts."2F[3]
[21] The Applicant claimed that there was no mention of the reduction of roles in the relevant part of the letter and no mention of the alternative roles within the Steelworks for the displaced employees.
[22] The Applicant also claimed that this letter does not put a timeframe on the retention of shift earnings and that there was no mention of the internal policy which caps the retention of earnings to 6 months.
[23] The Respondent submitted that the application should be dismissed on the basis that the proposed change complies with all aspects of the agreement including the SELF test.
[24] In relation to Hatcher VP's 2015 recommendation, the Respondent stated that it was issued over 5 years ago and was relevant for that point in time. However, the current proposal has been subject to significant planning over a considerable period of time and in fact deals with the issues raised by the Vice President.
[25] The Respondent recommitted itself to its primary obligation, ie, to ensure the health and safety of its workforce, including any contractors who work at the Steelworks.
[26] The Respondent submitted that the trimming and machining work which is being outsourced does not require any licenses or qualification, nor is it to be conducted in a confined space. The outsourced work has not been classified as a high-risk class of work.
[27] The Respondent submitted that the proposed change provides an opportunity for the Respondent to flexibly align its labour measures to its business needs. This will allow the Respondent to use its contract workforce when there is work to be performed rather than be restricted by a regimented shift pattern.
"The Change affords the Respondent the flexibility to align labour availability to business needs. This flexibility:
(a) reduces demurrage and increases customer satisfaction;
(b) reduces high levels of overtime (which bears on safety, work life balance and cost of labour);
(c) allows trimming and machining to be performed during day shift (which bears on both safety and cost of labour);
(d) maintains a core group of employees, placing a focus on core skills, in particular the Ore Unloader driving skills; and
(e) addresses the underutilisation of employees during quiet periods, where there are surplus employees on a fixed roster for the work available."3F[4]
[28] In relation to their consultation obligations, the Respondent referred to the decision in AWU v Bluescope [2016] FWC 3848, where it was held:
"[58] .... the information sharing and consultation required by the clause must in substance occur before any final decision is made to introduce the proposed significant changes. For example, the "Letter 1" referred to in clause 35.2.3(f) of the 2015 Agreement is required to "outline the broad objectives of the change and the possible effects that the change is likely to have on employees, to enable further Consultation". The substantive purpose of the requirement is to provide affected employees with relevant information in writing so as to permit meaningful consultation to occur. Provided that the relevant information is provided, it does not seem to me that it was intended that the subsequent implementation of a proposed change can be regarded as not "legal" because, even though there was meaningful consultation, the information was not contained in a single document.... An overly technical approach would defeat the intention of clause 35.2 overall to "facilitate the timely and efficient implementation of change" (clause 35.2.1(d)) without adding anything of substance to the benefits of consultation conferred by the clause."
[29] The Respondent submitted that Letter 1 substantially, if not strictly complied with the Agreement on the basis that it provided written notice to the employees and the Union, advised of the concept of the introduction of contractors to perform trimming of the hatches and stated that a possible effect of the proposal was the reduction of operating positions on each crew.
[30] The Respondent claimed that the consultation process was "fair, generous and comprehensive" and included the following:
"(a) Consultation commenced in December 2019 and continued for 9 months; and
(b) A consultation team was established in accordance with clause 36.6(b) and the process included:
(i) various in person meetings with employee and union representatives;
(ii) conferences facilitated by the Fair Work Commission;
(iii) a 3-month trial period for a 'flex crew' option proposed by employees; and
(iv) report backs to the Fair Work Commission on those trials"[5]
[31] The Respondent claimed that the consultation letter did satisfy the requirements of the Agreement and that it would be impossible to identify vacant positions that may be available to displaced employees many months before the implementation of the proposed change.
[32] The Respondent also claimed that the employees fully understood the 6-month timeframe of the retention of earnings policy because it had been the subject of discussion on many occasions throughout the consultation process.
[33] The Respondent argued that the proposed change is legal and referred to the commitment of the parties to the management of change principles in the Agreement.
[34] The Respondent also submitted that the proposed change does not undermine the job security of the remaining 16 Operators in the Department on the basis that the employees will remain on their existing roster, continuing to perform their current role whilst focusing on their core skill of driving the Ore Loader.
[35] The Respondent advised that the notification of the change proposed was the culmination of a lengthy process to introduce labour flexibility into the Department and followed the trialling of two proposed labour models and an in-principle agreement on a different model which was subsequently rejected by the employees.
[36] Finally, the Respondent submitted that it would be unfair if the Respondent was denied the labour flexibilities and cost efficiencies associated with the proposed change. The Respondent claimed that it had complied with the provisions of the Agreement, including the SELF test.
Brief outline of the Applicant's submissions in Reply
[37] The Applicant reiterated the relevance of the recommendation of Hatcher VP in NA2015/5, particularly when the Steelworks was facing imminent closure at that point in time unless significant cost savings could be found and implemented.
[38] The Applicant submitted that the cost savings for the Department in reducing its permanent workforce by 8 employees does not reflect any actual saving for the Respondent because those employees will be redeployed into other departments and continue to be paid.
[39] The Applicant rejected the submissions of the Respondent in relation to the safety considerations of the new employees being placed into positions as yet unknown and asked the Commission to directly resolve this issue
[40] The Applicant submitted that there is more to the term job security then simply having some form of employment no matter what the pay and conditions. There is dignity in being provided with meaningful work. In Quinn v Overland [2010] FCA 799, Bromberg J observed:
"There is now a greater recognition than ever that employment is important to an employee not simply because it provides economic sustenance. Workplaces are a hub of important human exchanges which are vital to the wellbeing of individual workers. Work provides employees with purpose, dignity, pride, enjoyment, social acceptance and many social connections. As well, the performance of work allows for skill enhancement and advances career opportunities. These non-pecuniary attributes of work are important and their denial can be devastating to the legitimate interests of any worker, either skilled or unskilled."
[41] The Applicant's final submission was that the change proposal, when weighing up all of the competing interests, is simply unfair to the employees.
[42] I have taken into account all of the submissions of the parties and the evidence of the witnesses. I now turn to the consideration of the 'SELF' test.
[43] At the conclusion of the evidence at the Hearing on 15 December 2020, I requested further evidence and submissions from the parties in relation to the following question:
What are the skills and qualifications required for "trimming and machining" in the hatch of a ship and are these specialised skills?
[44] Based on the submissions and evidence received from the parties there are no formal qualifications or restrictions which are imposed on persons working in the hatch of a ship. The operation of a Front-End Loader does not require any special qualifications or licence and the hull of a ship (hatch), is not classified as a high-risk environment or a confined space.
[45] The Respondent advised that all contractors on-site at Port Kembla are required to undergo an extensive safety induction course and relevant departmental training. All contractors operating a front-end loader will be required to possess a "Verification of Competency" to operate this equipment.
[46] I acknowledge the recommendation from Hatcher VP in NA2015/5. However, I accept that this proposed change is different to the Respondent's 2015 proposition. I am satisfied that the proposed operation of the Department has resolved the issues raised by the Vice President. This proposal will dramatically reduce the significant amount of overtime worked by the Operators, has been financially modelled over an extended period of time and has resolved the manning and leave issues.
[47] I was originally concerned that the proposal was inherently unsafe. I am now satisfied that the Respondent will ensure that any contractor performing trimming and machining will hold the relevant competency verification and will be trained and focused on the Respondent's safety principles and legislative obligations.
[48] I do not accept the submission that the proposal is not safe simply because the Respondent is unable to advise the Applicant of the redeployment roles that will be available to the displaced employees. No matter what the future role for the displaced employee may be, the statutory safety obligations placed upon the Respondent continue to apply. The displaced employees will be trained in the relevant safe work practices of their new roles just like any other new or transferring employee in a department of the Respondent.
[49] I am satisfied that the outsourcing of the trimming and machining function at the Department is safe.
[50] The Respondent has submitted that the quantifiable cost savings from the proposal will be approximately $700,000 per annum. I accept there will be additional efficiencies which have not been costed due to improved labour utilisation, contract labour flexibility and the removal of highly skilled full-time employees undertaking the manual tasks of trimming and machining. I accept that all of these measures will assist the Respondent in alleviating its expensive demurrage costs and provide for the efficient utilisation of its berth.
[51] I concur with the submissions of the Applicant that the use of contractors can provide headline "efficiency savings" which, in implementation, do not take into account the inherent benefits of fulltime labour. However, in this circumstance, where the Respondent is outsourcing the minor and basically unskilled portion of the role, the improved labour flexibility and the associated benefits of the change is significantly greater than any costs associated with workplace unfamiliarity or turnover of personnel that may be experienced by the contractor.
[52] I am satisfied that the proposed change is efficient.
[53] The Applicant submitted that the proposed change is not legal because it does not comply with the terms of the Agreement. I do not accept the argument that the Respondent has not substantially complied with the provisions of the Agreement. From my involvement in the discussions, I know that the Applicant and its members were aware that the proposed change would lead to a reduction in full time employees. The precise number of displaced employees or their redeployment opportunities may not have been known at the time of issuing Letter 1, but it has been held many times by the Commission that consultation must be real, i.e. the employer cannot have a fixed position or present a 'fait accompli' when consulting with the employees about significant change.
[54] I am also aware that the issue of not offering voluntary redundancy to the displaced employees has been the position of the Respondent since the matter was first before the Commission. For an employee to be made redundant whilst there are suitable full-time positions is an oxymoron. Demanding voluntary redundancy is not an entitlement of employment. Redundancy should only occur when there are no suitable positions available into which an excess or displaced employee can be redeployed. No employee has the right to simply "sell their job" simply because it suits their personal circumstances.
[55] I do not accept the submission that there has been no meaningful consultation in relation to the proposed change in the Department. The desire for reform in the Department has been known by the Applicant for many years. The parties have undertaken two trials, the last being in 2020, at the recommendation of the Commission as presently constituted. Put simply, the Applicant and its members were not prepared to operate in a flexible manner similar to the stevedoring industry, in order to alleviate expensive 3rd party costs. There has been more consultation about this reform than any other I have seen in my 9 years as a member of the Commission.
[56] Finally, the obiter of the NSWIRC that a proposal is "legal if it is not illegal"[6] is still relevant.
[57] I am satisfied and find that the proposal is not illegal, that the consultation has been extensive and exhaustive and that any non-compliance with the Agreement is insignificant.
[58] The concept of fairness applies equally for both parties, ie, is the proposal fair for employees if it is implemented or is it unfair to the Respondent if the proposal is not implemented.
[59] Protection for employees is one-way to assess fairness. The parties accept that change will be an ongoing reality of the operation of the Steelworks. Clause 36.1. of the Agreement is a provision that the parties have agreed with for more than twenty years:
"36.1 Principles concerning the management of change including Outsourcing
The parties agree to the following key principles concerning the management of change:
(a) The parties recognise and accept that change is an inevitable and increasingly necessary part of the steel industry.
(b) Change must be ongoing to ensure that the Company remains viable and employee expectation concerning security of employment can be satisfied..."
[60] To counterbalance this necessity for reform, the parties negotiated a Retention of Rate (Clause 11) provision in the Agreement. This provision maintains the current base rate of pay for redeployed employees until the rate of pay of their new role equates to and exceeds the base rate of their old position.
[61] The Respondent also has a policy known as a "retention of earnings" policy. This policy ensures that when employees have a change to their roster or work location which results in a reduction to their salary, the Respondent's policy lessens the burden of the impact of this reduction by continuing to pay the higher salary for 6 months. These provisions provide an element of financial security and surety for any displaced employee.
[62] I am satisfied that the contracting out of the cleaning function of the Operator's role will not undermine the job security of the remaining Operators in the Department. These employees are highly skilled and valuable employees of the Respondent. I sincerely hope that the trust and goodwill, which previously existed between management and the Operators, can be re-established for the betterment of all concerned.
[63] The Respondent submitted that voluntary redundancies are not on the table for the employees who will be displaced because they believe that alternate and meaningful positions at the Steelworks will be available. Obviously, that is an ambition and preferred outcome of the Respondent. However, it may be that there are no suitable positions available for these displaced employees. I note that if a suitable position for a displaced employee cannot be found within 6 months of the employee being made surplus, then the provisions of the Agreement will apply.
[64] The Commission has maintained a long-standing reluctance of not interfering with the principle of managerial prerogative. However, I note that the Respondent continues to support clause 36 of the Agreement and the SELF test. It is not in dispute that every provision of every enterprise agreement has work to do.
[65] In this circumstance, I am satisfied that the displaced employees will be treated fairly and with dignity. I am satisfied that the remaining employees in the Department will be treated fairly by continuing to work their normal roster and continuing to utilise their core skill in operating the Ore Loader, but they will no longer be required to perform the physically demanding work of trimming and machining.
[66] I am satisfied and find that it would be unfair to deny the Respondent the option of introducing the proposed change. It would not be fair to exclude the Respondent from achieving the financial benefits of the improved labour flexibility that the proposed change delivers.
[67] The Department is a critical element in the operation of the Respondent. The Operators in the Department are highly skilled in stevedoring. These skilled employees will continue to play a vital role in the operation and future success of the Steelworks.
[68] For the reasons identified above, I am satisfied and find that the proposal to outsource the trimming and machining function in the hatches of ships at the Department is in accordance with the provisions of the Agreement.
[69] The Application is dismissed.
[2] Witness statement of Paul Farrow, Annexure 2
[3] Witness statement of David Jones, Annexure 3
[4] Respondent's submissions in closing, [23]
[5] Respondent's outline of submissions dated 5 March 2021, [38]-[39]
[6] BlueScope Steel Limited v Australian Workers Union, Electrical Trades Union and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2008] NSWIRComm 1039 at [36]; BlueScope Steel Limited v Australian Workers Union [2010] NSWIRComm 1020 at [27]- [28]
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BlueScope Steel