Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Australian Workers Union v BlueScope Steel
[2011] NSWIRComm 1006
At a glance
Source factsCourt
Industrial Relations Commission (NSW)
Decision date
2011-03-02
Source
Original judgment source is linked above.
Judgment (5 paragraphs)
BlueScope Steel (AIS) Pty Limited (respondent) File Number(s): IRC 1151 and 1194 of 2010
INTRODUCTION 1The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (commonly referred to as the Australian Manufacturing Workers Union) has lodged a notification of an industrial dispute with BlueScope Steel (AIS) Pty Limited. At issue is a final warning and suspension for four shifts of Mr Frank Drakos, a metal tradesman and AMWU member employed by BlueScope Steel in a separate section of the hot strip mill - Unanderra Coil Processing [UCP] - for his failure to follow safety requirements, ie not complying with full isolation procedure in accordance with the job safety and environmental analysis [JSEA] and the standard operating procedures [SOP] for that work. 2The matter was allocated to me. I set it down for a conference on Wednesday, 20 October, 2010, Tuesday, 30 November, 2010 and Tuesday, 7 December, 2010. Conciliation failed to resolve the matter and I programmed the matter for arbitration. 3BlueScope Steel had written to Mr Drakos on Tuesday, 12 October, 2010 informing him of his final warning and suspension, viz: "...This is to inform you that the company has investigated an incident involving yourself that occurred on Thursday, 30 September, 2010 at UCP. The incident occurred as a result of you knowingly and deliberately not following safety critical operating procedures. The findings have shown that you have been trained in, and breached the requirements of...UCP-GEN-C-006 Safe Access Critical Operating Procedure. This behaviour is in breach of the company's code of conduct and cardinal rules, hence is a dismissible offence. Your length of service and employee history has been taken into account. On this basis you will be issued with a final written warning and 4 shift unpaid suspension for unacceptable behaviour in the form of not following a safety critical operating procedure. Please be aware that...any future breach of critical operating procedures or behaviour of a similar kind will lead to further disciplinary action, which may include termination of your employment. Prior to you resuming your normal duties the company will arrange to have you complete a safe access refresher training course. Once this has occurred you will have a job procedure check [JPC] completed for Isolation, JSEA and Safe Access. The company would also like to take this opportunity to remind you that a company sponsored employee assistance programme [EAP] is available to all employees... I encourage you to take advantage of this EAP. Through this confidential, no-cost service you may also be referred to community based support services where appropriate..." 4Mr Len Bendall, an operator at the UCP and member of the Australian Workers Union, was also involved in the incident and the AWU has lodged a separate notification of a dispute concerning the warning notice and suspension he received. The letter which BlueScope Steel wrote to Mr Bendall on Tuesday, 12 October, 2010 was in identical terms to that received by Mr Drakos on that day and the penalty imposed on him was the same, ie a final warning and a four shift suspension. 5That AWU notification on behalf of Mr Bendall was the subject of conference before Grayson DP on Friday, 5 November, 2010, Friday, 19 November, 2010 and Friday, 3 December, 2010. It was not settled by conciliation and because it was related to the matter before me from the AMWU, it was referred to me for arbitration. I set it down for a mention and programming on Tuesday, 7 December, 2010. 6On Wednesday, 16 February, 2011 I attended an inspection of the UCP site which is in premises leased to BlueScope Steel. The UCP receives metal coils from the hot strip mill at Port Kembla and cuts those coils into strips according to the requirements of particular clients. There are two lines at the UCP: one line slits coils (the slitter) and the other line cuts coils to length. There are two mechanical tradesmen and one electrician in the UCP involved in performing preventative maintenance and repairing breakdowns of the lines. Mr Drakos is one of the mechanical tradesmen in the UCP. Mr Bendall was engaged on the slitter on the day of the incident - Thursday, 30 September, 2010 - and on the inspection I observed his work station and the area in which Mr Drakos worked on that day. 7The matters were to proceed to hearing on Monday, 28 February, 2011 and Wednesday, 2 March, 2011. All proceedings have been conducted in the Commission's premises at 90 Crown Street, Wollongong. In proceedings which preceded the inspection on Wednesday, 16 February, 2011 Mr Brotherson , representing BlueScope Steel in the proceedings, requested that the two matters be joined and heard together. That course was not opposed by the AMWU but the AWU at first sought that the matters be dealt with separately - the hearing of the claims made on Mr Drakos (the AMWU member) to take place on Monday, 28 February, 2011 and the hearing for Mr Bendall (the AWU member) take place on Wednesday, 2 March, 2011. 8The reason the AWU matter was allocated to me from Grayson DP in the first place was so that the two related matters could be heard together. It is sensible that they be heard together and in the proceedings before the inspection on Wednesday, 16 February, 2011 I determined that both matters would be dealt with together on both Monday, 28 February, 2011 and Wednesday, 2 March, 2011. 9In the hearing Mr Walkaden represented Mr Drakos and the AMWU and Mr Gorgievski represented Mr Bendall and the AWU. They jointly called Mr Drakos and Mr Bendall to give evidence in the hearing. Mr Walkaden does not dispute the breach of the isolation procedure by Mr Drakos, ie that he failed to perform a full isolation procedure, and that his conduct may warrant some disciplinary measure but he asserted that the penalty imposed on him was too harsh. Mr Gorgievski asserted that Mr Bendall's conduct did not justify a penalty being imposed on him, that BlueScope Steel management has not been consistent in its treatment of safety issues with other employees in the past and, in that light, the action taken against Mr Bendall was too harsh. Mr Brotherson called Mr Michael McPhan, the UCP manager, and Ms Michelle Rizovski, a team leader in the hearing. He argued that the penalty imposed on Mr Drakos and Mr Bendall was, in all the circumstances, fair and reasonable and I should decline to intervene in support of them. 10This industrial dispute was originally notified by the AMWU under s.130 of the Industrial Relations Act 1996 . BlueScope Steel is, of course, a trading corporate within the meaning of S.51(xx) of the Commonwealth Constitution and therefore now falling under the Federal jurisdiction - the federal Workplace Relations Amendment (Work Choices) Act 2005 and the federal Fair Work Australia Act 2009 which has replaced it [ New South Wales v Commonwealth of Australia (2006) 156 IR 1]. However, its Port Kembla steelwork operations are covered by a protocol by which industrial disputes are dealt with, initially by conciliation but ultimately, if necessary, by arbitration, by members of the State Commission. That procedure is now recognised under S.146B of the State IR Act (and Ss.738 and 740 of the FW Act). The AMWU notification over this industrial dispute was made initially under s.130 but it will now proceed by way of s.146B. The AWU notification concerning Mr Bendall was from the outset lodged under s.146B.