Australian Workers Union v. BlueScope Steel Limited [2006] NSWIRComm 1092

Industrial Relations Commission (NSW)|2006-05-29

CITATION: Australian Workers Union v. BlueScope Steel Limited [2006] NSWIRComm 1092

APPLICANT Australian Workers Union PARTIES: RESPONDENT BlueScope Steel Limited

CATCHWORDS: industrial dispute - steel industry - suspension and warning given to trade union delegate for allegedly inciting industrial action - role of trade union delegate explained - unauthorised stop work meetings

Australian Workers Union v. BlueScope Steel Limited [2005] NSWIRComm 1194 Garden Island Dockyard Case (1964) 107 CAR 806 Gorman v. BHP Integrated Steel Division - unreported CASES CITED: Newcastle Steel Works Case (1961) AR 48 O'Brien v. Linfox Limited - unreported Transport Workers' Union of Australia v. CWS Transport Services Pty Limited (1990) 39 IR 8 Transport Workers' Union of New South Wales v. Premier Illawarra Pty Limited - unreported

APPLICANT Branko Gorgievski Australian Workers Union LEGAL REPRESENTATIVES:

RESPONDENT Mark Davis BlueScope Steel Limited

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Australian Workers Union and BlueScope Steel Limited

Dispute notification under S.130 of the Industrial Relations Act, 1996 re suspension and final warning notice to a paintline employee

1 A notification of an industrial dispute under S.130 of the 1996 Industrial Relations Act has been lodged by the Australian Workers' Union. The issue concerns a final warning and the standing down for two shifts of Mr Joseph Pleli, an employee on the No.3 paint line of the Springhill works of BlueScope Steel Limited (and purportedly AWU delegate at the site, although there had been some dispute over Mr Pleli's status, now I understand largely resolved) for an unannounced stop work he allegedly organised. The matter was allocated to me and I set it down for a conference on Tuesday, 31 January, 2006 and a further mention on Monday, 6 February, 2006 in the Commission's premises at 90 Crown Street, Wollongong.

2 Conciliation failed to settle this matter. I programmed it for arbitration, issuing and lodging the certificate of attempted conciliation required by S.135 in the prescribed manner. I set the matter down for a mention for programming on Tuesday, 18 April, 2006 in Wollongong and, ultimately, for hearing on Monday, 29 May, 2006 and Tuesday, 30 May, 2006, also in Wollongong. The parties have provided me with a referral agreement in accordance with S.146A and Practice Direction No.18 to arbitrate two matters, viz:

(i) whether the final warning issued to Mr Pleli should be removed; and

(ii) whether Mr Pleli's two shift suspension should continue to stand and that he be paid for those two days.

3 Mr Gorgievski represented the AWU in the hearing. He called Mr Pleli to give evidence in the hearing. He also called Mr Tome Karabeleski, another employee, as a witness in the hearing. Mr Ibrahim Halilovic, another operator, had provided a written statement but Mr Davis, representing BlueScope Steel in the hearing, was content for Mr Halilovic's written statement to be admitted into evidence without the need to cross-examine him. Mr Davis called three witnesses to give evidence in the proceedings: Mr David Brain, the maintenance manager, Mr Michael Farrelly, a supervisor, and Mr John Sierhuis, a shift technical officer.

4 On Wednesday, 14 December, 2005 O'Neill C handed down his unreported decision in Australian Workers Union v. BlueScope Steel Limited [Matter No.IRC 1206 of 2004] concerning the manning of the paint line. In particular, as a result of a restructuring of the paintline, two positions - a forklift operator and a cleaner - were abolished. The manning levels for the paint line were reduced accordingly by O'Neill C who commented in his decision (at p.24):

"...I have given careful consideration to the submissions of the parties and have formed the view, based upon the work load of all employees, including the repositioning of the rover's duties, that there is no longer sufficient sustainable work to continue with the operator known as '...day shift fork lift driver on the No.3 paintline...' and the '...day shift cleaner on the No.3 paintline....'. In my view, the evidence given by the company overwhelmingly advanced their case beyond any reasonable doubt... The union evidence was, at best, patchy and did not in any way sustain an argument in support of retention of the positions. I am more than convinced that the duties of these two employees can more than satisfactorily and easily be taken up by the rovers and operators under the restructure, as proposed..."

And O'Neill further stated in his decision (at p.24):

"...The company may proceed with the restructure as soon as it wishes to do so. The employees concerned should be managed under the agreed restructuring principle established between the parties..."

5 On Tuesday, 24 January, 2006 Mr Brain conducted a communication session with crew on the day shift concerning the proposed new arrangements for operating the forklift. According to Mr Pleli, at no stage prior to this communication session had there been any consultation with the workforce regarding the new organisational structure, although I would have understood that the employees would have been aware of the decision of O'Neill C and its implications for that work. The reorganisation was hardly a secret from anyone. Mr Halilovic and Mr Karabeleski recorded in their written statements that:

"...The company informed us about the decision to implement O'Neill C's decision with immediate effect on that shift. We informed them of the resolution passed at our 4 shift meeting not to work with less than eight men on the shift. We asked for alternative work and were told by Mr Farrelly that there was no alternative work. If we did not go back to work we would be stood down..."

Mr Farrelly claims that he had not told the employees that they would be stood down but that they would be "...taken off pay...": the effect would be the same, of course: they would not be paid for the time they refused the duties given to them.

6 There was a crew of eight operators involved in the communication session with Mr Brain, including Mr Frank Harrison, an operator who had stayed back for four hours on overtime which was to end at 10.30pm. Mr Farrelly was also present at the communications meeting and he claimed that at the meeting Mr Pleli and Mr John Johnston, another operator on the paint line, said to him:

"After 10.30pm the crew would not be running the line."

7 Mr Farrelly explained that the refusal of the employees to run the line was a breach of an agreement between the AWU and BlueScope Steel that had operated for over twelve months. Under those arrangements, the minimum crew manning was eight operators and with seven operators, the work was stopped for a crib. According to Mr Farrelly, Mr Pleli responded:

"Well, we have eight operators now. Lets get back on the job and make some money."

Mr Farrelly indicated to Mr Pleli that he would talk to him again at 10.30pm when Mr Harrison ceased overtime.

8 At approximately 11.30pm the crew filed into the conference room and Mr Farrelly said to them:

"Guys, we are down to seven men. I want you to take a twenty minute crib break and return to your work stations and run the line as per schedule."

9 Mr Farrelly explained to Mr Pleli that, having regard to the history of this matter, the procedure for some little time had been for the running of the line with seven operators and stopping for cribs. He indicated that the rover duties on the forklift were very light that night and he could not see why there should be any problems but Mr Pleli and Mr Johnston remained adamant. Mr Johnston asked if there were any other duties to perform. Mr Farrelly replied:

"Look fellows, I have plenty of coils, plenty of paint and a schedule to run. We should stop playing around and work as per the agreement."

"Well, we don't have other duties for you. We are all here to run the line and make money. I want you to run the line. If you have a manning issue with the company, please follow the dispute settlement procedure."

10 Mr Farrelly gave the crew some time to reconsider their position. Ultimately, Mr Farrelly informed Mr Pleli and Mr Johnston that if they refused to run the line, he would have no alternative but to take them off pay. Members of the crew then said:

And by midnight they had cleared up the line and, according to Mr Farrelly, had given indications that they would be leaving work. And they did so.

11 Mr Farrelly was instructed by BlueScope Steel management to distribute a memorandum to the staff. On the next night shift - Wednesday, 25 January, 2006 - he did so at "tool box" meetings at the commencement of the shift. That memorandum reads as follows:

"...BlueScope Steel Limited and the steel unions...have agreed to the BlueScope Steel Limited - Springhill and CRM Employees Award... The award formally and legally commits the company, its employees and the unions to follow the dispute settling procedure (DSP). The DSP is set out in this award in Clause 36 and is a process by which employees may raise issues or concerns that they have at work with their supervisor. The supervisor is given time to investigate and provide a response to the issue by the end of the next working shift. If issues remain, the DSP provides for a process of escalation up to and including the Industrial Relations Commission to resolve this matter. The objective of the DSP is to give the parties time to investigate, think through and resolve the matter without losing production or wages.

The company is concerned and disappointed at the refusal by the crew to run the paintline with seven men under a stop for crib scenario on Tuesday, 24 January, 2006. This has been a long-standing agreement with the company and employees and was formalised in the New South Wales Industrial Relations Commission on Tuesday, 18 October, 2005. The DSP was not followed in this case. In not following the DSP, employees have lost wages and we have damaged the business of our customers and therefore our own job security.

You need to be aware that as an employee of this company, you are lawfully obliged to follow the DSP in the award. You will be held personally accountable for your actions in regard to the DSP. We wish to advise employees who fail to follow the DSP or other clauses of the award that they may face disciplinary action.. ."

12 Mr Farrelly then held individual meetings with each and every employee and a warning notice was placed on the files of each employee over the incident. Mr Pleli was a witness at those meetings - a role that Mr Farrelly apparently was prepared to accept, whether or not Mr Pleli was officially recognised as an AWU delegate: he has certainly acted in the past as a spokesman for the employees on the paintline and has continued to do so. Since the industrial action by the employees was collective action, I am not altogether convinced that the separate meetings and the warning notices contributed much in resolving the issue in dispute. Those meetings would have affected production just as much as stop work meetings but, as Mr Davis indicated in his submissions, BlueScope Steel was in a position to control such a break in production and that would not be possible for an unauthorised work stoppage initiated by the employees. And I understand that what was intended by the separate interviews was to stress to the employees their obligations in following the established dispute settling procedure.

13 Mr Farrelly recorded in his written statement that at the conclusion of the meetings he complimented Mr Pleli on the way he had conducted himself as a witness in the meetings and he believed that Mr Pleli "...seemed to be taking things reasonably well...". But following the meeting Mr Pleli said to Mr Farrelly:

"We may have to have a talk with the boys to see what they all think about this."

That comment may be interpreted a number of ways: it may mean, for instance, that Mr Pleli simply wished to talk separately with the members of the crew on his shift as time and work requirements permitted - something which was his right. But Mr Farrelly was concerned that Mr Pleli was, in fact, suggesting that there would be a stop work meeting of the crew. He told Mr Pleli that he had no permission to hold such a stop work meeting and that any issues arising out of the warning letters should be dealt with through the dispute settling procedure.

14 Mr Farrelly then instructed the employees to start the line and for the finish coater room operators to pump up the paint and check for viscosity. At 3.10am he entered the delivery cabin where he observed Mr Pleli and Mr Johnston talking to one another. He discussed the start up of the line with Mr Sirhius and then went to the finish coater room and instructed Mr Ray Komoramy, the operator in the finish coater room at the time, to perform the viscosity checks. At 3.30am Mr Komoramy called on the public address system to the delivery section that the coater room was "...right to go...". Immediately after Mr Komoramy made that announcement, Mr Pleli also spoke over the public address system. Mr Farrelly and Mr Sierhuis assert that Mr Pleli said:

"Okay fellas, in the crib room. We are having a stop work meeting."

"Okay fellas, to the crib room. There's been a request for a meeting."

15 The evidence of Mr Pleli, Mr Halilovic and Mr Karabeleski is that following the meetings with Mr Farrelly and the issuing of the warning letters, many of the operators said that there should be a stop work meeting and they talked to Mr Pleli about it. Mr Pleli claimed in his evidence that the employees "...were fired up..." over the warning letters and pressed for a stop work meeting. Mr Pleli proposed that instead he would take the matter up with AWU officials on the following day but ultimately he was persuaded to call the stop work meeting "...to pacify..." the operators and ensure that they did not take more serious industrial action. Mr Pleli claims that some of the employees were suggesting that they should take strike action.

16 Mr Pleli claimed in the written statement which formed the basis of his evidence that:

"...I talked to the crew at the delivery end. They said that there was a threader on the line and we could have the meeting then and there. I said that they should let them finish the work so that no time would be lost. The coater room called down saying that they had finished and were ready to go. We called to them and told them we were having a meeting in the crib room..."

It was Mr Pleli's view that with a threader in the line, it was the appropriate time to call the stop work meeting.

17 Mr Farrelly had asked Mr Komoramy in the finishing coater room if he had any knowledge of the stop work meeting and he claimed that Mr Komoramy responded:

And then Mr Halilovic called out over the public address system:

Suggesting to Mr Farrelly and Mr Sierhuis that Mr Halilovic also had no prior knowledge of the stop work meeting - or at least its timing - either. Mr Halilovic recorded in his written statement that he "...was not happy..." about receiving a warning - the first warning he had received in his employment - and he said to Mr Pleli that there should be a meeting. But apparently he was not ready for the meeting at the time that Mr Pleli called it, as his comments over the public address system would suggest.

18 Mr Farrelly and Mr Sierhuis believe that the time of the stop work meeting, after the paint had been pumped up and ready to go, was to inflict maximum damage and inconvenience to BlueScope Steel. Mr Sierhuis claimed in his written statement that:

"...I believe that Mr Pleli decided to call a stop work meeting during this procedure in a deliberate attempt to stall the running of the line during the execution of a critical task. Mr Pleli is a long-standing employee within the department and has sufficient knowledge to know that a stoppage during the pumping process can severely impact on the quality of the paint that is to be used. The concern by both Mr Farrelly and myself was that, if the crew were to go out on strike and an extended stoppage occurred, a significant amount of paint could have been destroyed, causing a significant financial cost to the company..."

19 Mr Pleli denies that was his intention. He asserted in his written statement that:

"..as a long standing employee within the department, I have sufficient knowledge to know that a stoppage during the pumping process can severely impact on the quality of the paint to be used. Therefore, we made sure that Mr Sierhuis was asked to go to the coater room and act as a safety person while we had a short meeting."

20 I suspect that Mr Farrelly and Mr Sierhuis are correct. No prior indication had been given to Mr Farrelly that there was to be a stop work meeting - and it was against his directions in any case. However, the stop work meeting was concluded in ten minutes and five minutes after that the employees returned to their work stations. A stop work meeting of that duration would not have any real impact on the work on the paintline. 21 What chiefly appears to have concerned Mr Farrelly and Mr Sierhuis was the prospect that the stop work meeting would be a prelude to as more serious work stoppage. They did not know what was intended by the stop work meeting and feared the worst. But, as Mr Sierhuis indicated in his evidence, when Mr Pleli called the stop work meeting he would not have known its outcome either. If the employees were as "...fired up..." over the warning notices as Mr Pleli alleges in his evidence, there would always have been the risk of a strike following the stop work meeting.

22 Mr Pleli then contacted Mr Farrelly and informed him that he wished to speak with him. Mr Pleli, accompanied by Mr Johnson, met Mr Farrelly and Mr Sierhuis in the delivery cabin. Mr Johnston read out a resolution carried by the employees at the stop work meeting:

"We condemn the warnings and the timing of the issuing of the warnings - 3.00am on the night shift does not allow us to contact the union office."

Mr Pleli claimed that he apologised to Mr Farrelly for not giving him prior notice of the meeting. Mr Farrelly recalls no such apology from Mr Pleli, either at the meeting or subsequently. He informed Mr Pleli and Mr Johnston that the warning notices still remained and any concerns the employees had with them should be processed through the dispute settling procedure. Mr Farrelly volunteered to put the employee's concerns forward as part of the dispute settling procedure for them.

23 Mr Farrelly then made enquiries concerning Mr Pleli's status as AWU delegate for the site. Mr Pleli informed Mr Farrelly that he had been elected by the employees as AWU delegate. Mr Farrelly indicated to Mr Pleli that BlueScope Steel had received no official notification concerning Mr Pleli's status as AWU delegate and he told Mr Pleli:

"You need to rectify this. The company requires official notice from the union when a new delegate has been elected..."

"Look fellas, I am annoyed by all of this. You guys did not request a stop work meeting from me. You did not even inform me that you were going to call one. I also consider the timing of the meeting as a form of sabotage and, as union delegate, I see you as the person directly responsible for this. You did not even pay your supervisor the courtesy of telling him of a stop work meeting taking place. I will be informing my supervisor of this behaviour. This is unacceptable as far as I am concerned."

On Friday, 27 January, 2006 Mr Farrelly spoke to each member of the crew and issued the employees who had attended the stop work meeting with a "counselling".

25 On Friday, 27 January, 2006 Mr Brain met with Mr Pleli. Mr Johnston accompanied Mr Pleli as his witness. Mr Brain explained his concerns to Mr Pleli at the meeting, viz:

"The events in question are very serious, calling an unauthorised meeting only six hours after receiving a letter regarding DSP obligations is unacceptable, particularly when you were personally requested by Mr Farrelly after the warnings to follow the DSP if there were any problems. Furthermore, you had ample opportunity to request a meeting with the shift co-ordinator or the shift technical advisor. But what concerns me the most is the fact that you chose to wait until the line was ready to run before calling for the stop work meeting. This is something that I believe warrants further investigation. I therefore am requesting that you go home on full pay to allow this to take place."

26 The meeting ended. Mr Brain expected that Mr Pleli would go home. Instead there was a further stop work meeting by the employees twenty minutes later. Mr Pleli claimed that the crew at the stop work meeting wanted to cease work but he persuaded them not to do so, viz: "Don't lose any money over this as I am getting paid and it's not worth it."

Mr Pleli had also contacted Mr Gorgievski and he arrived on site, seeking a meeting with Mr Brain.

27 It was Mr Pleli's assertion in the meeting that "...the guys had requested the meeting..." and that he was simply doing what they told him to do. Mr Sam Gerovasilis, the Vice President of the metal coating and painting department, asked who had requested the meeting and Mr Pleli replied:

"I am not going to give you names, but I have the right to call a stop work meeting even if only half of the guys request it."

"You are singling out Mr Pleli because he is the delegate. He said he was sorry. You are making a mountain out of this."

As I indicated earlier in this decision, Mr Farrelly can recall no apology from Mr Pleli. 28 Mr Pleli was directed to leave the site and he did so. He returned on Wednesday, 1 February, 2006 for his next rostered shift. A further meeting with Mr Brain took place and Mr Brain told Mr Pleli:

"You had ample time and opportunity to request a meeting, and I don't think you made any effort to contact your crew to understand their concerns and try to avoid a stoppage of the line. Furthermore, the line was ready to run and those in the coater room and entry did not know of the meeting. As I have said to you before, I consider this to be extremely serious. What do you have to say?"

"The DSP is not worth the paper it is written on. We don't do it this way. We have stop work meetings to resolve issues."

Whilst Mr Pleli confirmed in his evidence that he had spoken in those terms, he claimed that he had been "...taken out of context...". He explained that it was not the dispute settling procedure itself that concerned him but rather the "tracking" of the disputes, ie the procedure that BlueScope Steel management had introduced to deal with disputes at the place of work - which does not apparently have the support of the AWU. Essentially, it is the delay in matters coming to a resolution through the procedure and Mr Pleli's belief that the AWU organisers were being taken out of the loop in the process which appears to have been his area of concern. 29 But it should be stressed that ultimately the aim of the dispute settling procedure is the resolution of disputes without unnecessary disruption to BlueScope Steel operations. Clause 36, Procedure for Resolving Claims, Issues and Disputes, of the BlueScope Steel Limited - Springhill and CRM Employees Award states in a preamble that: "...the parties intend that the level of direct action in the company's operations, particularly strikes, be greatly reduced in order to provide a basis for a reduction of the ordinary hours of work in the steel industry to 38 and to minimise contraction of the industry's operations..."

30 Of course, any dispute settling procedure would not be effective if it bypasses the trade union which represents its members in any disciplinary action. But that does not mean that AWU organisers would necessarily be brought into the picture from the very outset of the dispute. The first step in any dispute is to see if the matter may be resolved at the local level - between the employee or employees and their supervisor - and the dispute settlement procedure then progresses in orderly steps until it involves more senior management and trade union officials - and, ultimately, to members of the Commission. But, inevitably, to exclude the AWU from the process entirely would really resolve nothing, in my opinion. It would simply leave the issue in dispute largely unresolved and the employees still dissatisfied with the dispute settling procedure. The employees may still be more comfortable in taking their concerns through their trade union.

31 Mr Brain imposed a two shift suspension and a final warning. Thirty minutes later, Mr Craig Adams, another operator, asked Mr Farrelly for a stop work meeting. Mr Farrelly granted it. Mr Gorgievski, who attended the stop work meeting, subsequently telephoned Mr Brain and asked:

"Can the company back off and remove the warning until we are before the Commission...to take the heat out of the situation."

Mr Brain declined to do so. Mr Pleli went home, suspended for two shifts - and because there were only six employees, insufficient to run the line, the crew was engaged in cleaning duties. The matter came before me under S.130 and ultimately proceeded into arbitration. Mr Gorgievski's claim in this hearing is for the removal of the final warning and payment for the two shift suspension.

32 I have set this matter out in some detail because it gives me concern that after all this time and effort on the part of BlueScope Steel management, and members of the Commission, in making sure that the employees are aware of their obligations under the dispute settlement procedure, they would continue to approach any issues in dispute with unauthorised stop work meetings instead. I accept that often the most effective way for the employees - and the least inconvenient course of action for the employer - is for the employees to communicate through brief stop work meetings, and it is, after all, standard practice for any trade union to conduct its affairs in that manner. But I would expect that the employees would attempt to make sure that the employees would raise the matter with management first and arrange for such meetings to be convened at times when it would cause the least amount of inconvenience to their employer.

33 In this case I fail to see how this matter was so urgent as to justify an immediate unauthorised stop work meeting of the employees at a time when it was most inconvenient to the BlueScope Steel operations. Mr Pleli's purported approach - to bring the matter to the attention of the AWU on the following day - would have sufficed, in my opinion. It is difficult to avoid the suspicion that the stop work meeting convened on this occasion on Wednesday, 25 January, 2006 had as its principle aim to cause concern to BlueScope Steel management and put pressure on them to reconsider their position on the warning notices.

34 It is an equitable jurisdiction that I exercise under S.130. S.163(1)(c) directs me:

"...to act according to equity, good conscience and the substantial merits of the case..."

The employees should understand that means that if they are to obtain the benefits which flow from the BlueScope Steel Award that presently covers them, and the State industrial jurisdiction from which it flows, they must have clean hands in their dealings with BlueScope Steel management. They are not doing that if they respond to every issue with respect to which they have concerns by stopping work at critical times in the process. During the course of this industrial dispute Mr Farrelly reminded the employees of their obligation to follow the dispute settlement procedure and provided them with a memorandum to that effect. I can do no more than add to what Mr Farrelly has already said to them. They should familiarise themselves with the dispute settlement procedure which is in their interests as much as it is in the interests of BlueScope Steel.

35 But the question remains whether or not Mr Pleli's conduct justified a suspension and a final warning to him. The position of a trade union delegate is protected by S.210(1)(a) which makes it an offence for an employer to victimise an employee because he:

"...is or was a member or official of an industrial organisation of employees or otherwise an elected representative of employees..."

An employer is navigating dangerous waters if he victimises an employee as a consequence of his conduct as a trade union delegate, no matter how unhelpful the employer may have viewed the employee acting in that capacity [ Transport Workers' Union of Australia v. CWS Transport Services Pty Limited (1990) 39 IR 8].

36 There was initially some doubts in the minds of BlueScope Steel management whether, in fact, Mr Pleli was an authorised AWU delegate for the site at all. But Mr Farrelly was prepared for Mr Pleli to act as a witness when on Wednesday, 25 January, 2006 he interviewed the members of the crew: he must have recognised that Mr Pleli held some authority on behalf of the employees in his crew. Mr Gorgievski asserted that Mr Pleli was indeed an AWU delegate, although Mr Pleli's status has not formally been confirmed by the AWU to BlueScope Steel management to date. In Mr Pleli's interests, it is important that the AWU confirm his status in that respect. Mr Pleli would have no rights to act as a trade union delegate unless he has been duly elected as such and BlueScope Steel informed officially of that position.

37 That having been said, the role of trade union delegates is no licence to act in an inappropriate manner. A trade union delegate will not be excused conduct which for any other employee would be grounds for censure. In the Newcastle Steel Works Case (1961) AR 48 the Full Bench of the former State Industrial Commission (Richards, Beattie and Kelleher JJ) commented in that respect (at p.66) as follows:

"…While the Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak conferring on the wearer immunity from liability for wrongful actions…"

But it is Mr Pleli's assertion that he was doing no more than what he was directed to do by other employees (which naturally enough he declined to name).

38 As I outlined in my unreported decision of Thursday, 13 July, 2000 in Gorman v. BHP Integrated Steel Division [Matter No. IRC 4242 of 1999 at pp.31 and 32), I accept that the position of trade union delegate is often a thankless job - an intermediary between workers and management with the individual taking the heat from both sides. A trade union delegate doing no more than his job as delegate, whether or not the action he took in that respect was proper in the opinion of the employer, would be entitled to expect that his employer would respect his legitimate activities in that role as a delegate. For instance, in my unreported decision of Friday, 25 July, 2001 in O'Brien v. Linfox Limited [Matter No.IRC 6240 of 1999 at pp.34 and 35] I found the reason for the dismissal of a trade union delegate was so linked with his legitimate role in that capacity as to make it unfair. And in my unreported decision of Tuesday, 21 September, 2006 in Transport Workers' Union of New South Wales v. Premier Illawarra Pty Limited [Matter No.IRC 3653 of 2004] I removed a warning notice from the personal file of a trade union delegate because I was satisfied that his actions had been only a reflection of the collective decision of the employees whom he represented. 39 What then is the legitimate role of a trade union delegate? Clause 38, Delegates, of the BlueScope Steel Award confines the role of a trade union delegate, viz:

"The company will recognise an employee who is a delegate representing the employees in a shop or department where he or she is employed. A delegate will be allowed the necessary time to interview the employees for whom the delegate represents, the company or its representatives, during working hours, where there is a dispute affecting employees in his or her shop or department."

Whilst, a trade union delegate is entitled to carry out trade union business in working hours and, pursuant to Rule 60, Representatives, of the AWU Rules, has the power "...to call meetings of members on such jobs to discuss union affairs...", I observe that there is no authority in Clause 38 on a trade union delegate to call unauthorised stop work meetings on their own initiative. And Rule 64, Disputes, of the AWU Rules provides:

"In the event of a dispute arising on any job or at any place of employment which cannot be settled amicably, the members involved shall by their delegate or other representative and before taking any action in furtherance of the dispute, notify the State Secretary or the relevant Branch Secretary or some full-time officer of the Branch..."

40 Commissioner McCreadie of the former Australian Conciliation and Arbitration Commission gave what I still believe is the best outline of the proper functions of a trade union delegate when in the Garden Island Dockyard Case (1964) 107 CAR 806 he stated (at pp.810 and 811) that:

"…the true function of a union delegate or shop steward is, of course, a very important one in which he looks after the interests of his fellow members, mostly on minor matters which, if not dealt with satisfactorily, can lead to serious events. But, refusal of duty or other serious matters are not the prerogative of a delegate. The job delegate or shop steward is not a union official; he therefore should refer important matters, or those which he considers are likely to develop into serious matters to his union for attention. Such matters are properly dealt with by union officials with their wider experience, knowledge and understanding of union policy. A shop steward or delegate who understands his function and their limitations can, as most do, perform very useful work on behalf of his union and its members, and make a valuable contribution to good industrial relations in an establishment…"

What Mr Pleli should have done, consistent with Rule 64, was speak to the employees separately and then bring this matter to the attention of an AWU organiser at the earliest opportunity. He professed that to be his original intention and he should not have been persuaded away from that course of action.

41 I regard Mr Pleli as a diligent (if at this stage unofficial) AWU delegate for the paint line employees. I believe that he has attempted to advance the interests of the employees he represents, as he sees them. But, on the basis of the evidence adduced in this hearing, it is open to me to conclude that Mr Pleli actually initiated the stop work meeting, possibly in consort with some - but by no means all - of the employees he purportedly represents. And, in doing so, I am satisfied that he has acted outside his proper role as AWU delegate, as I see it. It appears to me from the evidence before me that it was his intention that there be an unauthorised stop work meeting at a most inconvenient time for the operations of BlueScope Steel, notwithstanding Mr Farrelly's request to him that he not hold one but instead follow the dispute settling procedure.

42 I consider that Mr Pleli's two day shift suspension should stand. He is not entitled to payment for those two days. However, I recognise that warning notices, especially final warning notices, have a particular significance in BlueScope Steel's operations. They are, for instance, factors taken into account when in future positions on the establishment are being considered for retrenchment and to that extent they represent a threat to continued employment. I believe that a final warning placed on Mr Pleli's personal file is an excessive penalty to him, in all the circumstances, and it should be replaced with a notation recording that his conduct has been subject to censure. A copy of this decision may also be placed on his personal file.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

[2005] NSWIRComm 1194

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