Australian Workers Union v. BlueScope Steel Limited [2007] NSWIRComm 1042

Industrial Relations Commission (NSW)|2007-08-09

CITATION: Australian Workers Union v. BlueScope Steel Limited [2007] NSWIRComm 1042

APPLICANT Australian Workers Union PARTIES:

RESPONDENT BlueScope Steel Limited

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

Australian Workers Union v. BlueScope Steel Limited [2005] NSWIRComm 1194 Australian Workers Union v. BlueScope Steel Limited [2007] NSWIRComm 1022 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v. Ralph M Lee Pty Limited (1966) 68 IR 333 Blue Metal Industries Limited v. Dilley (1969) 117 CLR 651 CASES CITED: Caltex Australia Limited Disputes Case [2002] NSWIRComm 1082 Electricity Commission of New South Wales v. Swieringa (1975) AR 504 Labor Council of New South Wales v. Axis Metal Roofing (2004) 131 IR 272 Transport Workers' Union of New South Wales v. Chubb Security Services Limited (2005) 147 IR 199 Masters, Mates and Engineers (Geelong) Tugboat Award (1970) 28 IIB 1176

HEARING DATES: 09/07/2007, 10/07/2007, 13/07/2007

APPLICANT Branko Gorgievski Australian Workers Union

LEGAL REPRESENTATIVES: RESPONDENT Trent Sebbens Blake, Dawson, Waldron

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Australian Workers Union and BlueScope Steel Limited

Notification of an industrial dispute under S.130 of the Industrial Relation Act, 1966 re standing down of employee on the paintline without pay

Referral of an industrial dispute under S.146A of the Industrial Relations Act, 1996 by the Australian Workers Union and BlueScope Steel Limited

1 Pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, the Australian Workers Union lodged a notification of an industrial dispute with BlueScope Steel Limited concerning the standing down of employees without pay on the No.3 paintline at the Springhill works on Sunday, 20 January, 2007. At that time there was insufficient employees to man the line in the customary mannetr and the employees refused to work in the manner proposed by BlueScope Steel management. The employees regarded the proposals advanced by BlueScope Steel to man the paintline as contrary to an agreement on manning levels reached between BlueScope Steel and the AWU.

2 The matter was allocated to me and set down for a conference on Tuesday, 30 January, 2007, Tuesday, 6 February, 2007 and Tuesday, 13 February, 2007. Those proceedings, and all subsequent proceedings for this matter (with the exception of brief proceedings on Thursday, 22 February, 2007 in Sydney which the AWU had sought as a matter of urgency) were convened in the Commission's premises at 90 Crown Street, Wollongong.

3 Conciliation failed to settle the dispute. I issued the certificate of attempted conciliation required by S.135, lodging it in the prescribed manner. I directed the parties to file and serve evidentiary material and listed the matter for mention on Monday, 16 April, 2007 to programme it for arbitration. The parties had in the meantime signed off on a referral agreement pursuant to S.146A (and Practice Direction No.18) in accordance with the protocol that they have developed for the operations in the Port Kembla steelworks, viz:

"The dispute concerns employees at BlueScope Steel Limited, Springhill, No.3 paintline being stood down without pay."

4 However, as I indicated earlier in this decision, on Thursday, 22 February, 2007 the AWU communicated with me on the telephone and requested that I urgently reconvene these proceedings. The employees had again been stood down without pay on Wednesday, 21 February, 2007 when there was insufficient numbers of employees to operate the paintline.

5 I reconvened the proceedings on Thursday, 22 February, 2007. I was satisfied that the existing S.146A referral agreement was expressed in sufficiently wide enough terms to also cover the further standing down of the employees on Wednesday, 21 February, 2007 as well as Sunday, 20 January, 2007. The arbitration of the matter was now to include both days in the arbitration. The proceedings then resumed before me for a further mention and programming on Monday, 16 April, 2007 and ultimately for arbitration on Monday, 9 July, 2007 and Tuesday, 10 July, 2007 (for evidence) and Friday, 13 July, 2007 (for final submissions).

6 Mr Gorgievski represented the AWU in the hearing. He called three paintline operators to give evidence: Mr Luis Texeira, Mr Craig Adam and Mr John Johnston. Witness statements of three other paintline operators - Mr Jorge Paniagua. Mr Ibrahim Halilovic and Mr Paul Yates - were admitted into evidence without the need for their cross-examination. Mr Sebbens represented BlueScope Steel in the hearing. He called as witnesses Mr Simon Took, the paintline operations manager, and Mr Mick Farrelly, a paintline supervisor. Background

7 The paintline operators are covered by the terms of the BlueScope Steel Limited Springhill and CRM Employees Award - now a preserved State agreement [PSA]. The employees work in four crews in a continuous process. The present manning levels on the paintline followed substantial agreement between the parties, although one issue was the subject of arbitrated proceedings before O'Neill C and determined by him in his unreported decision of Wednesday, 14 December, 2005 in Australian Workers Union v. BlueScope Steel Limited [Matter No.IRC 1206 of 2004]. O'Neill C reduced the manning levels for the paintline from 13 employees to 9 employees to run under normal operational circumstances. By agreement the paintline may run with no less than seven employees provided the employees take co-ordinated crib breaks, viz:

"...The minimum number to start the line is 7. The company commits to making all reasonable efforts to start with 8, including calling through the callout list. The union commits to doing all it can to get the 8th person in when necessary. If the line starts with 7 and an 8th person cannot be called in, the line will stop for crib breaks..."

8 There are, in fact, five stations for the operators which must be manned at all times, viz an entry operator, two coater operators, a laboratory/pre-treatment operator and a delivery operator. The paintline is also supported by three rovers to ensure the operations work continuously. The main duties of the rovers are to supply crib relief and to perform various ancillary tasks. Mr Took recorded in a written statement which formed the basis of his evidence in this hearing that:

"...normal running of the line with the 3 rovers sees the crib relief being carried out in parallel by 2 of the rovers at the same time. This is facilitated by the rover who spends most of his time in the coater room covering crib for himself, the 2 coater operators and the entry operator. At the same time, one of the rovers normally stationed at the exit end would cover crib relief for himself, the delivery operator, the lab operator and the other rover..."

9 To fully appreciate the circumstances concerning this particular industrial dispute it must be considered having regard to other industrial issues which have emerged on the paintline recently and, in particular, the 12 hour shift system in place for much of the Springhill steelworks operations. The existing arrangements for a 12 hour shift system for paintline operators was part of a trial which commenced in 2002, involving annualised salaries - the Trial Annualised Salary Work System July, 2002. That document outlines the annualised salaries system, describing it in the following terms [para 3.1]:

"...The annualised salary is an all purpose payment which includes a pre-paid overtime component which is to be worked when the workload requires. An annualised salary provides a more stable income and is applied to all pay periods, including periods of annual leave and sick leave, provided the employee has sick leave credits. For long service leave, the base rate of pay plus the pre-paid overtime only is paid. This excludes shift and weekend penalties as well as payment for leisure days..."

And the document goes on to indicate [para 3.3] that:

"...all employees will be required to work additional hours to meet operational needs. This will include ensuring that a full complement of employees, based on production requirements, are available throughout every shift. The annualised salary covers working additional hours to cover all instances of overtime worked in the last two years. Without limiting the instances it covers, the pre-paid amount specifically includes coverage for:

replacement for absenteeism, 3 consecutive days and less (including sick leave, family/personal carer's leave and parental leave);

rehabilitation and workers compensation, 3 consecutive days and less;

committees and meetings for company business (eg improvement meetings, work groups);

planned workload in excess of crew and shift resources (eg unpacking of Williams White coils, packing WV coils);

employees who may have been suspended with or without pay due to safety or disciplinary reasons;

meeting all commitments outlined in the restructuring document.

Additional payments will be made for these instances of overtime..."

10 When the trial came to an end in late 2006 the paintline operators announced their rejection of the 12 hour shifts. Essentially, as I understood their position, their view was that they were not being adequately compensated for the level of overtime and call backs which they actually worked and the fact that they were all expected to remain on call at all times when a simple rotating roster should have sufficed to provide adequate manning of the plant for unexpected absences by members of crews. If all employees were receiving pre-paid overtime, it is not unnatural to expect that they would be obliged to attend to work from time to time to honour their commitment in that respect. But, as I understand the position, the AWU proposed, and BlueScope Steel accepted, a compromise, ie that there be two employees on call for occasions when there was insufficient staff to man the plant.

11 That compromise has not always worked to ensure that the paintline was adequately manned. It did not do so on Saturday, 20 January, 2007 and Wednesday, 21 February, 2007 when the two employees on call had already been engaged on previous shifts or were otherwise not available. I would have thought that a sensible course for the parties to adopt with this matter is to arrange for a rotating roster for the employees who were on call so that employees would move from the top of the roster, when they are more likely to be called in, to the bottom of the roster, where they are unlikely to be called in. In that manner there would have been greatere certainty as to whether or not they would be called in and there would be a more equitable sharing of such additional work. Also, since the agreement that had been reached between BlueScope Steel and the AWU placed some obligations on the AWU, committing it to do "...all it can..." to ensure the adequate manning of the paintline, in my opinion, this type of problem may be more effectively addressed by communication with an AWU official as the need may arise from time to time to assist in ensuring that the paintline may operate to the maximum level.

12 In any event, on Friday, 2 February, 2007 BlueScope Steel and the AWU reached agreement to terminate the annualised salary system as far as it concerned the paintline operators and arrangements were taking place administratively to give effect to that agreement. The employees were finally taken off annualised salary arrangements from Sunday, 25 February, 2007. Consequently, from that time the concerns that the employees had with respect to the alleged inadequacy of the overtime component of the annualised salaries should no longer have been the issue that it formerly had been to them. They are now, in fact, being paid overtime for all time that they worked beyond their span of ordinary hours. But on Saturday, 20 January, 2007 and Wednesday, 21 February, 2007 the issue was still very much a live issue between the parties. The employees are at present continuing to work 12 hour shifts, ie the trial of the 12 hour shifts is continuing.

13 On Saturday, 20 January, 2007 only six members of one of the four crews (C crew) reported for work at 6.00pm to commence their shift and Mr Mark Tilley, the outgoing paintline shift supervisor at the time, contacted Mr Took on the telephone to explain to him that the paintline was short staffed and that, while efforts had been made to cover the vacant positions, he had been unsuccessful. Mr Tilley informed Mr Took that he had not been able to reach some employees on the telephone, that he had received negative responses from some of those employees whom he had actually reached and that there had been no employees on the previous shift prepared to work beyond their shift.

14 Mr Took and Mr Farrelly suggested two ways for the paintline to continue in operation which they believed to be appropriate in the circumstances, viz:

(i) Option One: to engage an extra shift technical advisor [STA] - a staff employee - to work in the laboratory alongside the current shift technical in place of the operator assigned to that work, freeing up the operator ordinarily working in that area to work at another station: that STA was not on pre-paid overtime and his work would consequently be paid overtime;

(ii) Option Two: to run the line in a non-standard fashion with six operators but stopping the line regularly to change colours and set up the line ready to paint, ie the line would run on a stop-start basis with all preparation work for the running of the line being carried out prior to the line starting up.

From the point of view of BlueScope Steel, Option One was the preferred option since with Option Two the start-stop operations on the paintline would result in considerably less than full production.

15 Mr Took and Mr Farrelly believed that either option would permit the paintline to run. They used the words "...safe, legal and logical..." to describe those options. Those words apparently have some currency in the steelworks operations. They appear to be derived from provisions the BlueScope Steel Award. For instance, Clause 36.4, which concerns the introduction of major change in the steelworks, provides for a "...safe, efficient, legal and fair..." test. The word "fair" is a notable omission from Mr Farrelly's "...safe, legal and logical..." test but fairness must, of course, be read into it as well. 16 Those options were put to the crew but at a meeting they rejected both options. Mr Took pressed the crew for a reason why the paintline may not operate along the lines that had been suggested to them. Mr Took and Mr Farrelly claimed that the crew declined to give him an answer. The crew suggested two options of their own. They suggested that the line not start and that they perform alternate work, eg cleaning and routine maintenance: there have apparently been occasions in the past where the paintline has been short staffed on certain shifts and the employees have been engaged on such alternate work. According to Mr Took, the crew informed him that, in the circumstances, he was, in fact, obliged to offer such alternate work. Alternatively, the crew suggested that an operator be engaged on paid overtime. Mr Took rejected those proposals by the employees, responding as follows:

"I have already offered you two options to operate the line in a safe, legal and logical manner, which you have rejected."

17 Mr Johnston had acted as spokesman for the crew. As far as Option One was concerned, he read out a prepared response of the meeting of the crew to Mr Took, viz:

"We reject the proposal to work two staff officers in the lab. Why can't you go through the crew lists again and offer paid overtime?"

Mr Farrelly recalled Mr Took saying words to the following effect:

"There is no way I will pay overtime for a position to be covered because of absenteeism. This is what the salary clearly covers."

18 Mr Johnston in his evidence drew attention to the fact that Mr Took was prepared for an STA to be paid overtime but not an operator. In fact, as I pointed out in the hearing, since the STA would be on a higher salary, overtime to that person would mean that it would actually have been less costly on the night to engage an operator on overtime rather than an STA. But the fact remains that if an operator on pre-paid overtime was additionally paid overtime for work it would be a case of double-counting and Mr Took indicated in his evidence that he was not anxious to establish a precedent in that respect: he saw it as a matter of principle.

19 A conversation then took place between Mr Farrelly, Mr Took and Mr Johnston concerning the running of the paintline with a six man crew [Option Two] and Mr Johnston, again speaking on behalf of the crew, rejected that approach as well. According to Mr Farrelly, Mr Johnston refused to give reasons for the attitude of the crew, viz:

"It sounds like the crew is taking an industrial position on this."

20 And the employees were taken off pay. The crew asked Mr Took if they would be paid to clean up the coater room and Mr Took told them that he would pay them for the cleaning. The crew proceeded to clean up the coater room and then ceased work at approximately 8.30pm. When the incoming crew for the next shift - B crew, Mr Took thinks - attended and discovered what had occurred on the previous shift, they also ceased work for the whole of their shift. Two days production was lost.

21 At approximately 6.00pm on Wednesday, 21 February, 2007 Mr Peter Sellars, the outgoing paintline shift supervisor at that time, telephoned Mr Took and told him that he had only been able to have a seven man crew up to 10.30pm on that night shift with one employee (not engaged on the annualised salary arrangements) being paid overtime. At that time the crew (C crew) would reduce to six men and attempts made by him to call in any relief operators to cover the remainder of the shift had not been successful.

22 Mr Took requested Mr Sellars to contact an STA to see if the shift could be covered with that STA working (on overtime) to relieve the operator stationed in the laboratory/pre-treatment area [Option One]. Alternatively, Mr Took and Mr Sellars developed a plan whereby the operators could run the paintline on a stop-start basis ie stopping the line from time to time at regular intervals [Option Two]. Those options were to be put to the crew and Mr Took told Mr Sellars that if the operators refused to work on that basis they were to be taken off pay.

23 Mr Farrelly subsequently put the two options to the crew with predictable results. He preferred Option One since it provided for continuous running of the paintline but again when it was put to the crew Mr Johnston, speaking on behalf of the crew, rejected it, saying:

But when Mr Farrelly asked Mr Johnston to elaborate on his assertion in that respect, Mr Farrelly claimed that Mr Johnston replied:

And he refused to explain the crews' concerns. 24 Mr Farrelly suggested:

"Just some advice. It may help even your own cause if you can present a plausible argument tonight."

"Look, why don't you guys work to this under protest and process your concerns through the dispute settlement procedure?"

25 When Mr Farrelly put Option Two forward for consideration, it too was rejected by the crew, with Mr Johnston claiming that it was also not "...safe, legal or logical..." but, according to Mr Farrelly, he again refused to elaborate on why he felt it to be so. Mr Farrelly responded:

"Okay. It seems you guys do not want to co-operate tonight."

"I have real work for you which is legal, safe and logical and you are trained to do this work. So I have no interest in alternate work."

"Look, if the other three crews agree to work with six men, we will."

The crew cleaned up and left the site at approximately 12.00pm.

27 The AWU claim in these proceedings is for the employees to be compensated for the loss of earnings on Saturday, 20 January, 2007 and Wednesday, 21 February, 2007. Essentially, Mr Gorgievski emphasised the existing agreed arrangement between the AWU and BlueScope Steel over the manning of the paintline and his belief that to depart from that agreed position raised safety issues on the paintline. He pointed out that the paintline employees were ready and willing to work according to the agreed position on manning and that, in fact, the problem lay not with them but with the employees who declined to present themselves to work when they were recipients of the pre-paid overtime and therefore obliged to obey directions to attend work. Mr Sebbens has opposed the AWU claim, arguing that the employees on the paintline had refused a proper direction made to them on both days and that disentitled them to payment for work on those two days.

28 When Mr Farrelly describes the refusal of the crew to work according to the arrangements which he had proposed as a "...political position...", he is meaning an industrial stance by the employees. All employees who, on purely industrial grounds, refuse to perform work as directed must appreciate that their refusal deprives them of payment of any wages whilst their refusal remains in place. As I indicated in my unreported decision of Friday, 22 June, 2007 in Australian Workers Union v. BlueScope Steel Limited [Matter No.IRC 3417 of 2006 at p. 20] the obligation on an employer to pay wages is dependent upon the employee providing a service to the employer and no employer is obliged to pay employees for times when they are refusing duties which they are properly directed to perform.

29 The position was explained by Ludeke J - Deputy President of the Australian Conciliation and Arbitration Commission in the Masters, Mates and Engineers (Geelong) Tugboat Award (1970) 28 IIB 1176 in the following manner:

"...The right of the engineers to be paid was dependent upon their readiness to perform work properly required of them under their contract of employment..."

And in Electricity Commission of New South Wales v. Swieringa (1975) AR 504 the Full Bench of the former Commission (McKeon, Cahill and Dey JJ) commented (at p.514) that:

"...cases abound in this Commission and elsewhere which state categorically 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..."

That situation with strike pay is confirmed by S.143(1) of the State IR Act and S.507(2) of the 2005 Federal Workplace Relations (Work Choices) Act), both of which go so far as to make it an offence for an employer to pay any remuneration or provide any other financial benefit to an employee in respect of time spent by the employee in industrial action.

30 However, as indicated in Electricity Commission of New South Wales v. Swieringa, the direction must be lawful and reasonable, ie fair. Furthermore, industrial disputes over alleged safety issues are treated differently. In that respect S.143(3) of the State IR Act reads as follows:

"The Commission may, on the application of an industrial organisation of employees, authorise the payment of remuneration or the provision of financial benefits that would otherwise constitute an offence under this section. The Commission may, instead, order the employer to pay any such remuneration or provide any such benefit if it considers it appropriate in the circumstances…"

And S.143(4) deals with industrial action arising out of health and safety concerns by the employees, viz:

"The Commission may authorise or order an employer to do so:

(a) only if the applicant satisfies the Commission that the relevant industrial action was based on a reasonable concern for health or safety, and

(b) only to the particular employees whose health and safety caused that concern."

Whilst S.143(3) appears at first sight to be in very wide terms, it is confined by S.143(4) to safety issues alone: the word "only" in S.143(4) confines the Commission's jurisdiction to that extent. Furthermore, S.143(5) provides:

"For the purposes of this section, industrial action is not based on a reasonable concern for health or safety if the employees whose health or safety is alleged to be involved have engaged in industrial action instead of complying with a direction by the employer:

(a) to move to a specified safe place in the work place [ sic ] or to another suitable workplace, and

(b) to do other appropriate and available work there is required."

31 There are comparable provisions in Work Choices [S.420(1)(i)] which protect instances where:

"...action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety..." Mr Sebbens preferred in his submissions to rely on Work Choices in that respect. But for reasons I will outline shortly, as far as is relevant in this hearing, to my mind, there is no real distinction between Ss.143(4) and (5) of the State IR Act or S.420(1)(i) of Work Choices. 32 For there to be any entitlement to compensation for lost time under Ss.143(3)(4) and (5) of the State IR Act (or S.420(1)(i) of Work Choices) I must satisfy myself in these compulsory conference proceedings that the employees, individually or as a group, were genuine over their safety concerns, ie there must be "…a reasonable concern for health or safety…" on the part of the employees. It is not necessary to establish that each and every employee individually had such concerns over safety. The employees may act as a group, as they have on this occasion [Labor Council of New South Wales v. Axis Metal Roofing (2004) 131 IR 272 at pp.305 and 306 and Transport Workers' Union of New South Wales v. Chubb Security Services Limited (2005) 147 IR 199 at p.222]. 33 I note in that respect that S.420(1)(i) of Work Choices speaks of a single employee's concerns over occupational health and safety issues where Ss.143(4) and (5) of the State IR Act speak in the plural - "employees". But it seems to me that the entitlements which flow to employees from S.s.143(4) and (5) of the State IR Act or S.420(1)(i) of Work Choices have to be considered in the context in which they are placed - industrialaction. That in most cases would denote collectiveaction by employees, rather than any refusal of work by an individual employee. Moreover, it is a long established presumption for the construction of any legislative provision that words in the singular contained therein include the plural and vice versa - see for instance, S.21 of the 1897 Interpretation Act [Blue Metal Industries Limited v. Dilley (1969) 117 CLR 651]. 34 Nor is it necessary to establish that there was an actual safety problem on which the employees' refusal to work was based. But, as S.143(4)(a) stipulates, their concern must have been a reasonable one in all the circumstances. In my unreported decision of Thursday, 14 November, 2002 in the Caltex Australia Limited Dispute Case [Matter No.IRC 817 of 2002] I commented in that respect (at pp.15 and 16):

"...In terms of S.143(4)(a), for employees to receive payment for wages lost there must be '...a reasonable concern for health or safety...' on their part. It is not necessary, in my opinion, to establish that there was a genuine safety problem on which their refusal to work was based. But, as S.143(4)(a) stipulates, their concern must have been a reasonable one in all the circumstances... The test is subjective in that I must place myself in the position of the employees in determining whether or not they were genuine in their fears on safety grounds. The test is objective insofar as I am obliged to determine whether or not their fears were reasonable.

As McIntyre VP of the Australian Industrial Relations Commission indicated in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v. Ralph M Lee Pty Limited (1966) 68 IR 333 at p.343, the Commission is not '...bound to accept the belief of the employees, however sincere, that their concerns were reasonable...'. Otherwise, any irrational phobia by employees who behave like Chicken Little and panic that the sky is falling in would ground payment for wages lost due to a cessation of work..."

And the Full Bench of the Commission (Wright J - President, Kavanagh J and Connor C) in Transport Workers' Union of New South Wales v. Chubb Security Services Limited stated (at p.222):

"...It is therefore not necessary for there to be proof that there was a demonstrable risk to health or safety, it is only necessary to demonstrate a reasonable concern was so held by the group who took the industrial action. Such concern must be assessed from the perspective of an ordinary and reasonable person in the position of an employee of the relevant employer..."

35 Mr Johnston claimed in his evidence that the crew's concerns over the two options provided to them was essentially over workplace safety which I summarise as follows:

*As far as Option One was concerned, according to Mr Johnston, the members of the crew were concerned that the STA would lack the competence to perform the full range of duties required of an operator, ie in every station on the paintline. But Option One was always to confine the STA to the dedicated role ordinarily performed by the operator in the laboratory/pre-treatment area and he would not be engaged in any other station on the paintline. There does not appear to be any legitimate argument that can be mounted in this hearing that the STA would not be competent to perform the full range of duties of the operator in the laboratory/pre-treatment area.

As far as Option Two was concerned, Mr Johnston expressed the view that he saw the option as resulting in the operators performing work that was unfamiliar to them. It is apparently customary for the operators to work at particular work stations with which they are familiar but all of the employees on C crew on the shifts on Saturday, 20 January, 2007 and Wednesday, 21 February, 2007 were experienced operators and should have been capable of performing work at every station on the paintline.

36 I am satisfied that the employee's refusal to work was essentially based on industrial, not safety, concerns - their desire to ensure that there was no alteration made to the agreed manning levels for the running of the paintline or that a wages staff position (an operator) in the laboratory/pre-treatment station was lost to a salaried employee (an STA). The employees may have had a concern to preserve their existing manning levels against what they saw as a retrograde step by BlueScope Steel - "...the thin edge of the wedge..." as Mr Johnston described it in his evidence. It is also far from unusual in the industrial community for any wages employees to jealously guard against encroachments from salaried officers into work traditionally their responsibility. 37 However, I do not believe that a precedent of that nature would have been set on Saturday, 20 January, 2007 and Wednesday, 21 February, 2007. BlueScope Steel was simply attempting to address a particular problem that had arisen on two nights. In any event, the crews' concerns were not based on safety issues. I am satisfied that both Option One or Option Two, which the employees rejected, would have permitted the paintline to run safely and the employees would have appreciated that fact.

38 That having been said, I would have thought that the emphasis on the shifts on Saturday, 20 January, 2007 and Wednesday, 21 February, 2007 would have been to get the maximum production available. With the benefit of hindsight, BlueScope Steel may have been better served by adopting one of the proposals advanced by the crew and engage another operator on the two shifts on overtime, notwithstanding that it would represent double-counting of that overtime for the employee actually called in. That certainly would have permitted the paintline to run continuously and in the long run it would have even been cheaper than using an additional STA in the laboratory/pre-treatment station. Due to the fact that the STA was on a higher salary than the operator, the overtime to that operator would have consequently been less. In view of the fact that the annualised salary arrangements, and the concept of pre-paid overtime which was derived from it, were shortly to end, I do not see how any dangerous precedent could be established for BlueScope Steel, which appears to have been Mr Took's chief concern.

39 But equally, if the crew was able to find an employee to work only on the basis of additional overtime being paid to that employee (when they were already being remunerated for that work with the pre-paid overtime), it does not show a great deal of good faith on their part. A more flexible approach to this problem would have been in their interests as much as BlueScope Steel, I would think. Instead they lost wages at work.

40 Mr Gorgievski suggested in his submissions that there should be a review of the manning on the paintline. Insofar as I am informed that problems are still arising from time to time to find adequate staff to meet requirements on the paintline, I believe that this remains a fertile area for there to be further discussions between BlueScope Steel and the AWU - and for the employees to be reminded that they have certain obligations to work reasonable overtime. I am convinced that a rotating roster along the lines I have suggested earlier in this decision may go some way to overcoming this problem.

41 But, in the meantime, I am satisfied that the two options suggested to the crew by Mr Took and Mr Farrelly on Saturday, 20 January, 2007 and Wednesday, 21 February, 2007 were safe, lawful and, having regard to the difficulties BlueScope Steel was experiencing in manning the paintline at the time, a reasonable alternative which the employees should not have rejected out-of-hand. Mr Gorgievski's claim on behalf of the employees that they be compensated for the loss of earnings over the two days is based principally on what he sees is the obligations placed on BlueScope Steel by the agreement reached between the parties over the manning of the paintline and the barrier placed on there being less than seven men to man the paintline. But the agreement is predicated on the assumption that there will be seven men available on a particular shift. If that is not achieved, then BlueScope Steel is obliged to make such alternate arrangements outside the agreement, provided they are reasonable, fair and safe.

42 In those circumstances, I see no grounds for intervention in support of the employees in this hearing. The AWU claim made on their behalf is rejected.

Adam, Craig operator Farrelly, Mick paintline supervisor Halilovic, Ibrahim * operator Johnston, John operator Paniagua, Jorge* operator Texeira, Luis operator Took, Simon paintline operations manager Yates, Paul* operator

Evidence admitted from witness statement without the need for cross-examination.

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

[2002] NSWIRComm 1082

At a glance

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Judgment (100 paragraphs)

Cases Cited (7)