Australian Workers Union (Technical, Administrative Professional Staff Branch) v. BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1080

Industrial Relations Commission (NSW)|2006-02-27

CITATION: Australian Workers Union (Technical, Administrative Professional Staff Branch) v. BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1080

APPLICANT Australian Workers Union (Technical, Administrative Professional Staff Branch) PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited

CATCHWORDS: industrial dispute - steel industry - jurisdiction in arbitrated S.130 compulsory conference proceedings - operation of S.146A referral agreements - flexi-day arrangements - claim for flexi-days as part of a contract of employment - claim refused

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

Construction, Forestry, Mining and Energy Union v. Newcrest Mining Limited (2005) 139 IR 50 Kellogg (Australia) Pty Limited v. National Union of Workers (1998) 89 IR 391 CASES CITED: New England Area Health Service Disputes Case - unreported Nowra Coaches Case - unreported Teacher's Case - unreported

APPLICANT Nathan Rudd Australian Workers Union LEGAL REPRESENTATIVES:

RESPONDENT Michael Mead Australian Industry Group

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Australian Workers Union (Technical, Administrative Professional Staff Branch) and BlueScope Steel (AIS) Pty Limited

Dispute notification under S.130 of the Industrial Relations Act, 1996 re flexi-days for supervisors in the logistics department

1 Pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, the Technical, Administrative Professional Staff Branch of the Australian Workers' Union lodged a notification of a dispute with BlueScope Steel (AIS) Pty Limited concerning a claim by TAPS that BlueScope Steel provide flexi-days to staff employees engaged in its logistics department (formerly the warehousing and transport department). The matter was allocated to me and it was the subject of a conference before me on Wednesday, 2 November, 2005 (in Sydney) and a further mention for programming purposes on Tuesday, 6 December, 2005 (in the Commission's premises at 90 Crown Street, Wollongong).

2 As a background to this industrial dispute is the move to annualised salaries which BlueScope Steel introduced into its Port Kembla steelworks operations from early 2003 for both wages and salaried staff. The TAPS contends that there should be commonality of conditions of employment for both wages and salaried staff working the same roster, including entitlement to flexi-days, and that during the discussions between the AWU and BlueScope Steel management over the introduction of annualised salaries, there was agreement reached over the issue of flexi-days. An enterprise agreement between the AWU and BlueScope Steel for the wages staff confirms their entitlement for flexi-days. Staff officers signed individual contracts, however, and BlueScope Steel management claim that there was no agreement to provide them with flexi-days and that it was "bought out" in the agreement that was struck for their annualised salary.

3 Conciliation failed to settle this matter. I programmed it for arbitration, issuing the certificate of attempted conciliation required by S.135 and lodging it in the prescribed manner. The hearing was scheduled before me for Monday, 27 February, 2006 and Tuesday, 28 February, 2006 (in Wollongong). Mr Rudd represented the AWU in the hearing. He called two staff officers for BlueScope Steel as witnesses in the hearing: Mr Brad Leitch and Mr Greg Brown. Mr Mead represented BlueScope Steel in the hearing. He called two witnesses: Mr Mario Blasi, warehouse and distribution manager, and Mr Ricky Adams, warehouse operations co-ordinator. It had become necessary for me to vacate the second of those day - Tuesday, 28 February, 2006 - for other urgent matters. In any event, Mr Blasi was not available to give evidence on either Monday, 27 February, 2006 and Tuesday, 28 February, 2006 and it became necessary to set down a further day for the hearing - on Friday, 31 March, 2006 (in Wollongong) which was the only day left free to me in the short term in the light of current centralised listing arrangements by Registry staff flowing from Practice Direction No.17 for unfair dismissal claims.

4 Moreover, on Friday, 31 March, 2006 the parties were again not able to proceed due to the absence of Mr Blasi. Also to complicate matters further, the 2005 Federal Workplace Relations Amendment (Work Choices) Act, and the regulations to it, had come into effect on and from Monday, 27 March, 2006, creating some confusion over how this matter may be progressed to conclusion. Quite apart from the possible jurisdictional limitations that may now flow from Work Choices on cases of this type, Mr Mead has from the outset outlined a possible challenge to my jurisdiction to determine this matter in these S.130 proceedings and it was understood by Mr Rudd that jurisdictional challenge would be a matter he would need to address in his submissions.

5 The matter resumed before me on Monday, 8 May, 2006 (in Wollongong) and on Friday, 5 May, 2006 Mr Mead wrote to me to outlining a proposed programme for the remainder of the proceedings, which was not opposed by Mr Rudd. Mr Mead's letter records:

"...You will no doubt recall that on the last occasion that this matter was before the Commission, we foreshadowed that there may be some jurisdictional objections that the respondent wished to pursue in relation to the Commission's powers to resolve the dispute pursuant to the Industrial Relations Act, 1996. At that time we noted that the basis upon which any jurisdictional objection may be pursued was dependent upon the nature of evidence adduced by the respective parties. We maintain such a position, and accordingly have suggested to Mr Rudd a possible course of action for the presentation of submissions on questions of both jurisdiction and substantive merit as follows:

The respondent to file and serve any submissions on questions of jurisdiction by no later than Thursday, 11 May, 2006. 2. The applicant to file and serve submissions in reply on the question of jurisdiction and submissions in respect of the substantive merits of the application by no later than Wednesday, 17 May, 2006.

The respondent to file and serve submissions in reply in respect of the substantive merits of the application by no later than Friday, 19 May, 2006.

Either party to notify the Commission by Tuesday, 21 May, 2006 should a further hearing date be required for further oral submissions.

Whilst it is not envisaged that any oral submissions will be required, this facility is also available in the event that the Commission has any further questions arising from the filed written material..."

Mr Mead sought my leave to proceed in that manner. I grant it to him.

6 Mr Leitch commenced work with BlueScope Steel (then BHP Steel) in 1992 as an operator working a 4 x 12 hour rotating roster - 2 day shifts followed by 2 night shifts. He worked at the Unanderra site. He received flexi-days which were identified on his shift roster [F] and if he worked a flexi-day he was paid at appropriate overtime rates. Mr Leitch moved into a supervisory position in 1999 and his conditions of employment then became award free. He was engaged under what was described as a "hay point" system where rates of pay for specific positions were assigned set salaries which comprised compensation for overtime and penalty rates. In other respects the conditions of employment were identical to those applying to wages staff. Mr Leitch claimed in his evidence that he continued to work the same roster he had formerly worked as a wages employee. He continued to accrue flexi-days and usually worked it so that he could accrue overtime.

7 There are, in fact, 2 supervisors at the Port Kembla site and 5 supervisors located at the Unanderra site. The flexi-day concession had initially been available to both wages and salaried employees at the Unanderra site but the flexi-days were not available to wages or salaried staff employees at the Port Kembla site. Mr Brown, who works at the Port Kembla site, had therefore never received flexi-days. He had commenced work as an administrative officer in 1993 and was appointed as a supervisor in 1998.

8 In early 2003 BlueScope Steel proposed to move the employees at both the Port Kembla and Unanderra sites onto annualised salaries as part of a major restructuring of logistics operations dictated by operational needs. The annualised salary package for both wages staff and salaried staff, among other things, factored in 6 guaranteed hours of overtime each week. A consultative committee was set up comprising Mr Blasi, Mr Brown and representatives of the wages employees. According to Mr Blasi, Mr Brown was invited into the discussions as an observer to ensure that the process was transparent and that the supervisors were aware of the nature of the discussions with the wages employees. Mr Blasi asserts that at no time did he indicate that the supervisory staff would obtain identical conditions to the wages staff. But that is not Mr Brown's recollection.

9 According to Mr Brown, it was made clear by Mr Blasi that there would be a commonality of conditions between wages and salaried staff and Mr Brown believed that would mean that all employees - wages and salaried - would, among other things, receive an entitlement to flexi-days. Mr Brown communicated that information to other staff members. Mr Leitch also indicated in the written statement which formed the basis of his evidence in this hearing that he recalled the issue of flexi-days being raised with Mr Blasi, viz:

"...it was raised with him, words to the effect that it would not be a problem for wages employees to continue receiving their flexi-days as they had sufficient employees to do this. However, this would be difficult for staff as there were not necessarily enough employees. I recall that Mr Blasi replied words to the effect that this could be addressed with the relief supervisor and that it was intended that both Unanderra and Port Kembla site would be collapsed into a single site which would make rostering for the flexi-day easier. At no time do I recall Mr Blasi saying anything to the effect that the 6 guaranteed overtime hours, which the wages employees received, would buy out the flexi-day..."

10 It was Mr Brown's understanding that the Port Kembla site would close and that, consequently, the conditions of employment at the Unanderra site would become a standard, including the provision of flexi-days for the supervisors. In fact, neither the Port Kembla site nor the Unanderra site have closed and there appears no reason to believe that either of the sites will close in the future.

11 As far as the wages staff were concerned, an agreement was ultimately reached between BlueScope Steel and the AWU and formalised in an enterprise agreement in the middle of 2003. It is a term of that enterprise agreement [Clause 10, Work Arrangements] that the wages employees in work crews will stagger their accrued 38 hour roster days during the roster cycle each month to meet operational requirements and there is no designated rostered day off for the entire crew. In place of RDO's there is a "mutually agreed flexible shifts" system, ie flexi-days. The MAFS is described in the enterprise agreement as:

"...a mechanism to manage peaks and troughs in workload by moving some resources during quiet times to busier or more productive periods. Participation in MAFS is voluntary, provided operational requirements are met. This will aid in facilitating minimum hours to be worked..."

In the event that a wages employee is required to work on his flexi-day, he shall accrue time in lieu according to the MAFS.

12 Agreement was also reached between the supervisors and BlueScope Steel at that time. Mr Blasi is emphatic in his written statement that:

"...at no time did I state to supervisors that they would be entitled to identical conditions to wages employees. For me to state that would have been incorrect as wages staff are subject to an industrial instrument whereas supervisors were not. In particular, I stated that the MAFS system would not apply to them. I pointed out the reasons for this were due to the simple fact that the warehouse supervisor model did not have enough labour coverage to operate the MAFS system. I did, however, state that in the event that supervisors had worked excessive hours they may take time off, as applies to management staff. But at no time was there any discussion about supervisors having rights to rostered days off..."

13 The salaries and conditions of employment of the supervisors were not covered by an enterprise agreement. Instead, they were to be placed on individual contracts and letters of offer were completed for them to formalise their conditions of employment. I understand that the LOO's for each of the supervisors is in identical terms (which suggests to me that they could have instead taken the collective form of a separate enterprise agreement). But whilst general staff conditions - eg superannuation, annual leave, long service leave, sick leave, public holidays and conditions pertaining to the termination of employment - were consistent with steelwork standards, specific conditions of employment were actually covered by the LOO's which were developed to align all supervisors with the terms under which other members of steelworks management, including Mr Blasi, were engaged.

"...your department/site has transferred to annualised salaries. Your annual salary is made of your base rate for 38 hours and also includes payment for weekend penalties, shift allowances, annual leave loading, 162 hours public holidays for shift workers and an additional 6 hours overtime paid at penalty rates. You will be required to work these additional hours at times when such hours need to be worked to meet operational requirements..."

Also the LOO's permit the supervisors to take part in a bonus scheme - a short term incentive scheme based on the success of the operations in which the supervisors are engaged - and arrangements for a novated lease for a motor vehicle.

15 The LOO's acknowledged a change to the roster pattern for the supervisors from the middle of 2003 to meet operational requirements. Mr Blasi asserted in his written statement that he:

"...made it quite clear that the supervisors were vested with the responsibility to develop a new roster pattern that was not linked to that of the wages employees. I made it clear to the supervisors that the development of a new supervisor roster pattern was the sole responsibility of the supervisors and formed a condition of the LOO's. The intention of developing a separate roster was to move the supervisors away from crew management to shift management..."

To date the supervisors have not moved in that area and they remain working essentially the same roster as they had formerly worked, ie in line with the wages staff.

16 After the introduction of the annualised salaries, it became known to Mr Brown that salaried staff were not receiving the flexi-days that the wages staff were receiving. This was raised as a complaint with BlueScope Steel management and, according to Mr Brown, a small number of flexi-days was reimbursed but BlueScope Steel ultimately stopped doing so, asserting that the salaried officers were not entitled to flexi-days. Mr Adams had made enquiries concerning the flexi-days sought and, when he discovered the size of the concession, he investigated the terms of the LOO's and concluded that the salaried staff were not entitled to flexi-days.

17 According to Mr Blasi, during the negotiations over the annualised salaries he received no comments from the salaried staff over their wish to preserve an entitlement to flexi-days. Mr Blasi does not believe that the supervisors are entitled to flexi-days. He recorded in the written statement which formed the basis of his evidence in this hearing that:

"...part of the salary package included a component that was equivalent to 6 additional hours per week paid at penalty rates to offset any reasonable hours that were required to be worked. The additional hours were factored into salary arrangements in recognition that supervisors were required to cover 24 hours 7 days a week; thus there was no opportunity to take flexi-days. All time rostered to work or otherwise needed was to be covered by one of the 5 supervisors. The payment of additional hours was to offset the RDO's and any other overtime that was required to be worked. Historically, this had generated 50% of the overtime and would be covered by 12 of the additional hours factored into the salary per 28 day period..."

18 And he added that in the event that I were to determine that the supervisors were entitled to a flexi-day:

"...the practicality of operating a flexi-day system flies in the face of what I was trying to achieve, which was full coverage. The operation of flexi-day arrangements would require additional resources and was at no time a consideration in moving to this new work system... The logistics business will need to review the continued application of the salary packages. I say this as the operation of flexi-days is at odds with the operating model that I developed. It would be operationally impracticable to operate based on the current manning levels..."

Mr Adams expressed identical views in his witness statement.

19 It is with that complex background, that I now turn to examine the equally complex jurisdiction on which Mr Rudd must rely for a decision in his favour. Firstly, the arbitration of this matter was part heard before me when, on Monday, 27 March, 2006 Work Choices, and the regulations made under it, came into effect. Pursuant to S.146A(2) of the State Act, I may be empowered to determine a matter brought to my attention by a "referral agreement", viz:

"A party to a dispute to which this section applies may apply to the Commission for the exercise by the Commission of such functions with respect to the resolution of the dispute as may be specified in the referral agreement."

20 The parties have provided me with a S.146A(2) referral agreement in wide terms which are in accordance with Practice Direction No.18. The referral agreement nevertheless preserves Mr Mead's right to raise inherent jurisdictional arguments, ie jurisdictional arguments within the State Act (to which I will refer in more detail shortly in this decision). In particular, the referral agreement gives me such powers as are set out in S.136 of the State Act, which is the source of my jurisdiction in arbitrated S.130 proceedings.

21 Since this matter was part-heard when Work Choices came into effect, I am not convinced that a S.146A(2) referral agreement is strictly required in this hearing. Moreover, as I understood the position, S.146A(2) referral agreements empower members of the Commission to exercise additional functions conferred upon them by the parties to a dispute if such matters are referred to them under a common law collective agreement: it adds to the existing jurisdiction for the Commission and is not the sole source of the Commission's arbitral powers. As I understand the position, Work Choices and the regulations made under it still preserve a number of State matters, including the enforcement and compliance of existing rights and obligations under State laws. It appears to me that what the TAPS is intending to pursue by way of these S.130 proceedings is what it perceives, correctly or incorrectly, to be an existing right of the supervisors to flexitime arrangements - implied from the individual contracts of employment they hold with BlueScope Steel. Subject to what may ultimately flow from the High Court in the current challenge to Work Choices, I do not believe that I must rely on a S.146A(2) referral agreement to arbitrate such a claim heard in S.130 proceedings. 22 In support of that contention, I note that S.16(1) of Work Choices outlines the areas of State industrial law which are purportedly proscribed. The heading to S.16(1) gives me the key: it speaks of "...some State and Territory laws..." being excluded. It reads as follows:

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

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

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

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

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

The subsection that I have highlighted - S.16(1)(d) - is particularly important, in my opinion. As I indicated earlier in this decision, Mr Rudd is not seeking to vary an existing right for the employees he represents but simply to preserve what he sees as their entitlements already. Whilst S.16(1)(a) might appear to be in the widest possible terms, extending to proscribe all State industrial laws, because S.16(1)(d) is more confining, I believe that S.16(1)(a) should consequently be read down: in my opinion, this is a case where a specific legislative provision takes precedence over a more general legislative provision - generalia specialibus non derogant .

23 That having been said, the jurisdictional difficulties with this matter are not resolved. In a written outline of his submissions at the commencement of the hearing, Mr Rudd had sought "...directions/orders in settlement of the dispute...", ie to the effect that the staff employees (supervisors) in the logistics department receive the same flexi-day arrangements as the wages staff whom they supervise. On Wednesday, 22 February, 2006 BlueScope Steel wrote to Mr Rudd seeking more particulars of the relief sought by the AWU, suggesting to me, as it no doubt it did to Mr Rudd, a possible jurisdiction challenge to my arbitration of the matter. Mr Rudd responded with a letter dated Thursday, 23 February, 2006, indicating that he proposed to rely on S.136(1), viz:

"The Commission may, in arbitration proceedings, do any one or more of the following:

(a) make a recommendation or give a direction to the parties to the industrial dispute,

(d) make any other kind of order it is authorised to make (including an order on an interim basis)."

And he has confirmed that position in his subsequent written submissions on jurisdiction. 24 I am only authorised in proceedings of this nature to make recommendations or directions [S.136(1)(a)], awards [S.136(1)(b)], dispute orders [Ss.136(1)(c) and S.137] or "...any other kind of order..." that I am authorised to make [S.136(1)(d)]. S.136(1) is, in fact, limited by its terms and the question does arise whether I hold jurisdiction under it to arbitrate Mr Rudd's claim which he characterised in his written submissions as simply: "...a dispute in relation to what entitlements flow from the terms of contracts of employment..."

25 Firstly, dispute orders: in the first place, a dispute order is confined by S.137(1) to a limited range of matters. It reads as follows:

"The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings:

(a) The Commission may order a person to cease or refrain from taking industrial action.

(b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute.

(c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so.

(d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute."

26 In the second place, whilst the Commission is authorised by S.136(1)(d) to "...make any other kind of order it is authorised to make...", that begs the question: what other orders are so authorised? There are other sources of authorisation not relevant for current purposes, eg a stand-down order in S.126, the order for secret ballots in S.172, orders protecting right of entry of trade union officials under S.302 or orders for small claims in Ss.379 and 380. S.136(1)(d) is directed to those matters, to my mind.

27 S.175 does give some power to a member of the Commission in arbitrated S.130 compulsory conference proceedings to determine issues relating to the "...interpretation, application or operation..." of any particular instrument - in this case, the individual contracts that the salaried staff of BlueScope Steel signed, viz:

"The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument)."

In his evidence Mr Leitch has described the principle issue before me in this hearing as a question of interpretation of the LOO's that the supervisory staff signed off on. And Mr Rudd indicated in his written submissions, correctly in my view, that the employment contracts - the LOO's - under which the supervisory staff were engaged were properly categorised as "instruments" for the purposes of S.175.

28 But notwithstanding the provisions of S.175, as Mr Mead indicated in his written submissions, the interpretation of any document remains primarily a judicial function and the subject of declaratory relief, something which is reserved to the Commission in Court Session by virtue of S.154 [Kellogg (Australia) Pty Limited v. National Union of Workers (1998) 89 IR 391 at p.392]. Mr Mead has indicated in his written submissions that:

"...as a result of the manner in which the union has forwarded its case, what it is seeking from the company cannot be construed as anything other than a declaration as to the existing rights of staff employees flowing from their contracts of employment. Accordingly, this Commission, as currently constituted is jurisdictionally precluded from granting the orders sought..." 29 Mr Rudd acknowledges that limitation in his written submissions but believes that Mr Mead's argument in that respect is incorrect, viz: "...The union is seeking a remedy pursuant to S.136 to the effect that staff supervisors receive the provision of flexi-days. The dispute as notified and argued is not in the context of declaratory relief but rather an industrial dispute. This is an important distinction. The Commission's jurisdiction in making the orders/directions sought by the union in the arbitration proceedings falls under S.136. This requires an industrial dispute to initially exist, which occurred with the filing of the dispute under S.130..." But if S.136 stands alone in that respect - and I believe that it does - the jurisdiction to resolve an industrial dispute is confined to it. As I have indicated in my unreported decision of Wednesday, 23 May, 2001 in the New England Area Health Service Dispute Case [Matter No.IRC 3547 of 2000] and the Nowra Coaches Case [Matter No.IRC 6159 of 2002], S.175 is not the actual source of my jurisdiction - S.136(1) is. S.175 is facilitative only, to authorise me during any arbitrated proceedings, including those falling under S.130, to determine any question concerning the interpretation, application or operation of any particular instrument. 30 As far as any order under S.136(1)(d) is concerned, there are qualifying words - "...for the purpose of exercising its function in connection with a matter before it..." - which must impose some limits on the S.130 jurisdiction. In my opinion, for instance, those provisions would permit me, using S.175, to determine a question arising from any instrument insofar as it concerned an employee or a group of employees which could be mounted, say, as a small claim under Ss.379 and 380. But can S.130 proceedings be directed to some global issue - the entitlements of a group of employees to some improvement in their employment conditions, such as flexi-days - which is the nature of the TAPS claim? I believe the answer to that question is no. 31 Such a claim may presumably be mounted as an award claim in terms of S.136(1)(b) but, as I conclude from Mr Rudd's written submissions, he has not really done so - and, in the circumstances, there must be reals doubts now concerning the rights of TAPS to pursue a State award to provide for flexi-time arrangements for the supervisory staff it represents in this hearing. Certainly, there are jurisdictional issues which would arise for the AWU if the claim were pursued as a separate award - not the least of which is that it would have to be mounted as a special case under current wage fixation principles. These employees are presently award free: their employment conditions are set by the individual contracts that they have made with BlueScope Steel - the LOO's which they have accepted. That forms the foundation of their employment relationship, based as it was on an agreement they reached through the discussions that had taken place.

32 However, as Mr Rudd also pointed out in his written submissions, I am also authorised by S.136(1)(a) to "…make a recommendation or give a direction…" in settlement of any industrial dispute. To my mind, a recommendation after arbitrated S.130 compulsory conference proceedings is something of an anti-climax with me concluding the matter but allowing the parties to either adopt it or reject it and thereby possibly leaving the dispute alive. Nevertheless, the word "direction" in S.136(1)(a) carries more weight, in my opinion.

"A tribunal may generally give all such directions and do all such things as in its opinion will enable expense or delay to be reduced and will help to achieve a prompt hearing of the matters at issue between the parties and will contribute to the expeditious conduct of the proceedings and the just determination of the matter or dispute and the equitable disposal of proceedings."

Suggesting that Rule 84 is primarily concerned with relevant procedure for the resolution of an issue in dispute rather than the determination itself. Nevertheless, I believe that it is also something which is final, binding and may be the subject of appeal proceedings by any party disaffected by such a direction.

34 In the unreported decision of the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Connor C) in the Teacher's Case [Matter No. IRC 6326 of 1999] interlocutory directions were made at first instance under S.134(2), ie in the conciliation phase of an industrial dispute (and consequently ahead of the issuing of the S.135 certificate of attempted conciliation). Those directions nevertheless grounded an appeal, with respect to which leave was not granted. By contrast, in Construction, Forestry, Mining and Energy Union v. Newcrest Mining Limited (2005) 139 IR 50 at p.65 the Full Bench of the Commission (Walton J - Vice President, Boland and Staff JJ) observed that a recommendation (and by implication, a direction) made under S.134(2) was neither an award, part of an award, nor a binding instrument, ie it was no more than a part of the processes of conciliation.

35 But, in any event, this matter falls under S.136(1) and not S.134(2), ie in the arbitration phase of the dispute. The upshot of that position, to my mind, is that any decision taking the form of a direction that I make on a matter before me after I have issued a S.135 certificate of attempted conciliation and entered the arbitral phase of a dispute, is a final determination of the issue in dispute and, subject to a right of appeal, binding on the parties to the dispute.

36 But whilst I am satisfied that my reasoning on the operation of S.136(1)(a) still gives me the widest scope to settle industrial disputes, I am not satisfied that there are grounds for me to intervene in support of Mr Rudd's claim before me in this hearing. Much of Mr Rudd's argument in this hearing turns on what he perceives as inequities in the structure of the annualised salaries for the wages staff, on the one hand, and the salaries staff, on the other hand. He summarised the TAPS claim in his written submissions: "...The supervisors claimed they were entitled to the flexi-days which were initially provided for but then ceased... In addition to the claim by the union that the company is not providing flexi-days which was part of the agreement reached, the union claims it is an unfair situation where both wages and staff employees work the same rosters, receive the same penalties, except staff do not receive the flexi-days. It is further claimed that as a result of the restructuring by the company, the supervisors are working excessive hours without recourse for a flexi-day. This has impacted on the supervisor's family and social life..."

Mr Rudd suggests that the wages staff moved into annualised salaries and preserved their entitlements to flexi-days, whilst the salaried staff also moved into annualised salaries and did not obtain any benefit of flexi-days. 37 But ultimately the flexi-days provided to the wages staff by the MAFS is derived entirely from the enterprise agreement that the AWU entered into on their behalf. It is a clear condition of their employment. It is not a clear condition of employment for the supervisors. They signed off on their individual LOO's and must accept employment on those terms until their salary is open for review with BlueScope Steel. Those terms are spelled out clearly in the LOO's - and they do not include flexi-days.

38 In those circumstances, I do not see any grounds for me to intervene in support of the AWU and its claim for flexi-time arrangements for its members employed as supervisors in the logistics department of BlueScope Steel. I therefore propose to dismiss the matter on that basis.

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.

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