Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales v BlueScope Steel Limited

(b) The Award provides that any proposed change in business operations impacting on employees, needs to meet a fourfold test of being: safe; efficient; legal, and fair.

(c) The Company's proposal to change the taking of shower time is conceded by the Union to be legal and to have no safety implications.

(d) There is no efficiency gain(s) and the Company carries the onus to prove the efficiency test.

(e) The Company's proposal is unfair. The impacted employees will have their shower time reduced from 20 minutes to 10 minutes. However, other day workers on site will continue to receive shower time of 20 minutes. Further, the taking of the shower time at 3.30pm has been an established practice for these employees.

(f) The Union seeks an Order that the Company's proposed change is contrary to clause 36.4.1(c) of the Award and should not proceed. Further, the Union seeks an Order pursuant to section 380 of the Act , for monies deducted by the company from the pay of the impacted employees for not attending the tool-box meetings.

For the Company 17 Mr Dearden, for the Company, put the following in final submissions:

(a) The dispute impacts the MCL Mechanical Maintenance Day Workers. ("MCL" refers to Metal Coating Line).

(b) The Award does not provide for paid shower time.

(c) The Union has the onus to make out a case that the change should not be made: Australian Workers Union v BlueScope Steel (AIS) Pty Ltd [2006] NSWIRComm 318.

(d) The Union conceded that the change to the taking of shower time was legal and safe, but disputed it was efficient and/or fair.

(e) The change was fair. Other employees engaged in the MCL Mechanical Maintenance area (and other areas), accepted the change. No other employee in the MCL area receives any paid shower time.

(f) The need for an actual shower is disputed given that most of the work performed by the maintenance fitters is office based. Overalls and gloves are available to fitters to help them avoid getting dirty.

(g) The introduction of the tool-box meetings at 3.30pm has provided efficiency gains, not only for MCL area but for other departments that interact with this area.

(h) The Award, in any event, states that the parties recognise and accept that change is an inevitable and increasingly necessary part of the steel industry.

Union in Reply 18 Mr Walkaden put the following in reply: (a) The Company's claim of there being no or little need for shower time as most of the work performed by the fitters is office based, is rejected.

(b) As to the claimed efficiency gains by the Company, there was no evidence of efficiency gains by other departments that interact with the MCL area. There will unlikely be any efficiency gains by compelling the fitters to attend tool-box meetings, in lieu of the present shower-time arrangement.

(c) The Award provision concerning the inevitability of change can be put into effect, by the Company negotiating a change to the shower-time arrangement through Award negotiations.

CONSIDERATION 19 The Union filed a section 146A dispute notification against the Company because of a decision by its then Maintenance and Reliability Manager Metal Coating Lines (Mr Stephan Bergner) to defer the taking of the 3.30pm shower time by certain maintenance employees to the later time of about 3.40pm This deferment is so that certain maintenance employees (approximately 4 employees), can attend a tool-box meeting. 20 The maintenance employees have declined to attend that tool-box meeting for several months (since its introduction) on the basis that they have an entitlement to take their shower time at 3.30pm and not at a later time. 21 Because of their non-attendance at the tool-box meeting, the Company has been deducting approximately 10 minutes pay per day from the wages of those maintenance employees for several months. 22 Accordingly, the Union filed a small claim, in conjunction with the section 146A dispute notification, seeking an order from the Commission that the Company reimburse the maintenance employees for all deducted monies.

The Award and Managerial Change 23 The Union asserts that the Company's conduct in deferring the taking of shower time breaches certain principles contained in the Award. Clause 36.4.1(c) of the Award sets out a fourfold test concerning the proposed introduction of managerial change. That is, the proposed change must be: safe, efficient; legal; and fair. The Union conceded that the Company's decision to defer the taking of the shower time was safe and legal. However, the Union disputed that the decision was efficient and fair.

Onus 24 The Union carries the onus to make out a case that the shower time deferral change proposed by the Company, should not be made or should be offset by some compensation or by other adjustment in conditions of employment: AWU v BlueScope Steel (AIS) Pty Ltd [2006] NSWIRComm 318. That is, the Union carries the onus to show that the Company's proposal is not efficient or not fair, in order to prevent the tool-box meeting taking place at 3.30pm. 25 The Award is silent on the provision of shower time to employees.

Efficiency 26 The Union asserted that the proposed change to defer the taking of shower time in order to have a tool-box meeting, was not efficient. In doing so, the Union relied in particular upon evidence gained in the cross-examination of the Company called witness, Mr Barber, Mechanical Maintenance Co-ordinator. The witness statements of the Union members, affected by the Company's proposal, contained no information on the issue of efficiency in the context of the deferral of shower time/tool-box meetings. This is understandable in this sense, that as the employees have declined to attend the tool-box meetings, then they are not in a position to comment directly on the efficiency or otherwise of the 3.30pm tool-box meetings. 27 Under cross-examination from the Union advocate, Mr Barber gave evidence about tool-box meetings held marginally earlier than the 3.30pm tool-box meeting proposal. This was a 3.20pm tool-box meeting. Mr Barber deposed he introduced this earlier time slot for the maintenance employees, in order to show them that these meetings did not last long and were positive. However, he further deposed that these 3.20pm meetings were met with some resistance by the maintenance employees who were generally reluctant (attitude issue) to talk about the work completed by them. (Ex 5, para 31) 28 The Union sought to show through this evidence, that the 3.20pm tool-box meeting (and hence by inference the 3.30pm tool-box meeting) was not productive. Mr Barber responded that these meetings were not as productive as they could be but that the meetings still added efficiency where there was none before. Further, he stated that the indecision surrounding the shower time/tool-box meeting, now before the Commission, was the reason why the tool-box meetings of 3.20pm and 3.30pm were not as productive as they could be. (Tr 35, line 40 to Tr 37, line 28) 29 The Commission finds on the above evidence the Union has not made out its case that the Company's proposal to have a 3.30pm (or for that matter a 3.20pm) tool-box meeting is not efficient. The evidence of Mr Barber that there was still some productive/efficiency value in the tool-box meetings was not rebutted by the Union. The above evidence shows (as did the demeanour of the witnesses) that the employees are opposed to the tool-box meeting concept and its consequent 3.30pm impact on their long standing shower time practice - irrespective of whether they shower or not - and that attitude impacts on the efficiency of the tool-box meetings. Be that as it may, the Union could not show that there was no efficiency gained from the 3.20pm or 3.30pm tool-box meeting.

Fair 30 The Union claimed that the Company's proposal to defer the taking of shower time was unfair. The Union put forward two grounds in support of the claim: (a) the Company's proposal was unfair because the Company sought to alter a long standing custom and practice; and (b) was unfair because of the Company's discriminatory approach to the maintenance employees. That is, there were other employees in other departments who were not having their shower time altered at all. 31 The Commission will deal firstly with the custom and practice argument and the case law concerning that issue. 32 The convenient starting point for case law consideration on custom and practice is the judgement of Watson J of the then Industrial Commission of New South Wales: In re Australian Fertilizers Ltd And The Australian Workers' Union, New South Wales Branch [1983] AR 237 ("the AFL case"). 33 The AFL case considered a number of decisions on the issue of custom and practice. In particular, under the heading of "Usage or custom", Watson J extracted a passage of Beattie J from the Furnace Demolishers Case, which in turn had been approved by the Commission in Court Session in the Collective Responsibility Case. 34 That passage, inter alia, distinguished the concepts of "custom and practice" and "usage" and held that for a union claim to succeed, it needed to be shown that a usage existed rather than a custom and practice. (Something might be called a custom and practice but in reality be a usage).

35 The approach adopted by Watson J in the AFL case, was approved by a Full Bench of the Industrial Relations Commission of New South Wales in: NSW Nurses' Association & Ors and S.W. Sydney Area Health Service [1994] NSWIRComm 147 (8 December 1994) ("the Nurses case"). The Full Bench observed under the heading of "Consideration": "When a dispute arises about a practice which falls to the Commission to determine in arbitration, whether any alteration to the practice is appropriate and if so, what the change should be, are the questions which must be determined on the particular facts of the case. One of the factors in such a consideration, although not decisive of itself, is whether a particular practice is a "usage", as that term is properly understood". 36 The issue before the Full Bench concerned the imposition of car parking fees for various employees employed at Liverpool Hospital. The employees were opposed to this imposition which was a cost based decision by the hospital in the circumstances where the workforce was to double from 1500 to 3000 employees. The relevant union argued that the existing employees, who had had the benefit of free car parking for about 35 years, should continue to do so. 37 The Full Bench upheld the argument by the relevant union as to a longstanding practice and agreed that existing employees (as at a certain date) could continue to have free car parking. However, the Full Bench then stated that the free car parking would only continue for one more year. In deciding to bring that longstanding usage to an end, the Full Bench was mindful of the cost impact on the hospital of providing free car parking. That is, the Full Bench took into account the reasonableness of the usage. It was decided that it was unreasonable for the hospital to continue to provide free car parking in the given circumstances. 38 The case before this Commission has the Union arguing that the taking of shower time at 3.30pm is a longstanding custom and practice and is not therefore to be disturbed by the Company - by putting it back to say 3.40pm after the tool-box meeting of 3.30pm. The issue before the Commission is not about the Company seeking to abolish shower time but to put back the taking of shower time from 3.30pm to about 3.40pm. 39 Having considered the submissions and evidence concerning the Company's decision to introduce a 3.30pm tool box meeting and hence defer the taking of shower time by several minutes, the Commission has decided to reject the case advanced by the Union - and hence the underpayment claim. The Commission has decided to follow the "reasonableness" approach of the Full Bench in the NSW Nurses case. That is, in all the circumstances, it is reasonable for the Company to defer the taking of shower time in order to carry out the benefit of the tool-box meeting, which the Commission has already found meets the efficiency criterion. 40 In so deciding that way, the Commission stresses that its decision turns on the issue before this Commission and that is the Company's decision to defer the taking of shower time. The reasoning in this decision, surrounding deferment, only goes to deferment and not abolition of the shower time provision.

41 The Commission sets out below its reasoning concerning the Union's case as to usage and the Company's case surrounding clause 36.4.1(a) and (b) and the evidence as to non-usage of the shower time provision. 42 The evidence as to how long this custom and practice of a shower time at 3.30pm has been around was not precise. The evidence suggested a period of twenty plus years. The Commission takes the view that such a long standing practice had become a usage. 43 The Commission repeats that this shower time provision is not a matter contained in the award. It would seem that shower time was introduced by the Company many years ago to reflect the then existing circumstances. Mr Bergner deposed as to the origin of this issue as follows: "Historically shower and travelling time was permitted to accommodate the fact that 90% of people showered at work and took public transport home. Times have changed. I believe all Maintenance Fitters use their own transport which is parked less than 50 metres from their crib room". (Ex 6, para 42) 44 There were four Union called witnesses who gave evidence on the shower time issue. Two of those witnesses (Barbour and Bubb) work in the MCL department. One witness (Richardson) worked in the MCL department until recently (November, 2009). The fourth witness (Lancaster) works in the SMS department. 45 The first three witnesses named above gave evidence about the MCL department and their shower time practice. 46 Mr Barbour leaves work around 3.45pm . He does not shower at work. He drives home from the Company's car park. He spends 60% of his work time in the office and 40% of work time on the tools for which coveralls and gloves are available. (Ex 1 and Tr 6 to 10, line 37) 47 Mr Bubb leaves work around 3.40pm. On most occasions he does not shower at work. If he gets too dirty, he will shower at work. He drives home from the Company's car park. He spends 85% of his work time in the office and 15% on the tools. The use of overalls and gloves is available for work on the tools. Mr Bubb said the wearing of gloves was a requirement and generally he wore overalls. (Ex 2 and Tr 14 to 17, line 5) 48 Mr Richardson did not give clear evidence as to the time he left the plant. He only showers at work occasionally. He drives home from the Company's car park. He gave no evidence on his office/on the tools work ratio. (Ex 3, Tr 23 to 26, line 36) 49 The foregoing evidence shows that only 2 or the 3 witnesses actually use the shower facilities and then only occasionally. 50 The uncontested historical evidence of Mr Bergner was that the purpose of the shower time was public transport and "dirtiness" related. That is, the employees did not have cars and being dirty, it would not go down well with members of the public to be seated alongside of or using the already used passenger seats of dirty employees. 51 Given that the evidence showed that the employees had their own cars, then the above stated purpose has lost some of its justification. 52 However, the more telling evidence is that going to the "dirtiness" factor as it goes to the need for a shower. The evidence as to this factor is that a minor ratio of the work time is needed for being on the tools, rather than being a major part of the employee's job. And even when required to be on the tools, the employees have access to coveralls and gloves for protection against the "dirtiness" factor. This, in turn, leads to the compelling evidence as to the need for shower time and that is, that the two of three of the witnesses only occasionally use the shower facilities. 53 This evidence as to usage raises for consideration whether the usage argument can still be maintained by the employees and the Union to justify the continued access to shower time, let alone protesting about the shower time being deferred for several minutes. 54 The Commission's reading of the case law contained in the decision of Watson J in the AFL case, supports the proposition that a custom and practice can become a usage. It follows from the same decision, that arguably a usage loses its justification if not used. If you don't use it, you can lose it. In this case, the Company does not seek to take away the shower time provision. 55 The evidence as to these three witnesses was not the only evidence on shower time usage (or more correctly lack thereof) in the MCL department. The Commission was left with the impression that there may have been at least one employee who still showered at 3.30pm. 56 The Commission understood initially that the Union's claim for underpayment was directed towards four employees but at the end of the day's hearing, that number may have been seven employees - arising out of a query by the Commission to the Union on the extent of the claim. Accordingly, the Commission was not clear as to whether the evidence of the three named employees was the evidence of usage as to 3 out of 4 employees or 3 out of 7 employees. 57 The case advanced by the Company was based around clause 36.4.1(a) and (b) of the award, which state that the parties to the award recognise and accept that change in operational procedures are inevitable and necessary and such changes are directed towards the viability of the Company. The advocate for the Company also cross-examined the Union's witnesses on the usage (lack thereof) of the taking of shower time by the three employees and the extent of their "dirtiness" and use of their own vehicles parked in the Company's car park. 58 As well, the Company brought out evidence going to a fairness comparison, whereby these particular employees are provided with shower time during working time (and 3 employees do not utilise) but their contemporaries in other areas are not so provided in working time. 59 Having considered all of the evidence and submissions, the Commission finds it is reasonable for the Company to make the decision to defer the taking of shower time for the purpose of introducing a tool-box meeting. 60 The other ground put forward by the Union to support the taking of shower time at 3.30pm (and not later), is based on discrimination. That is, there are other employees in other departments who were not having their shower time altered at all. Evidence in support of this ground was given by Richardson and Lancaster. 61 It seems to the Commission that this argument is a two edged sword. If it is discrimination to alter the taking of shower time because employees in another department have not had such an alteration, then is it not discriminatory that some employees have shower time during working time but other employees do not? 62 The resolution to that issue, might be for the Company to abolish shower time for those employees who still have shower time, in order for all employees to be treated equally. If the Company sought to do so by way of a unilateral decision, then a defence to such a unilateral decision could be pursued on the basis of say, usage, where the employees are making use of shower time. 63 In any event, the Commission sees no merit in the discrimination argument given the facts of this case.

CONCLUSION 64 The Union notified this Commission of a dispute going to the Company's decision to defer the taking of shower time for certain employees in the MCL department. These employees had been accustomed for many years in having a shower time provision beginning at 3.30pm. The employees are paid ordinary time up to 3.50pm. That is, they have a benefit of showering during working time. 65 The Company's reason for deferring the shower time provision was in order to introduce a tool-box meeting that would last several minutes. This tool-box meeting has the effect of deferring the taking of shower time. 66 Certain maintenance employees objected to this infringement on their 3.30pm shower time provision and declined to attend the 3.30pm tool-box meeting. After a time, the Company decided to dock those employees each day for their several minutes absence from the tool-box meetings. 67 The Union seeks an order from the Commission directed at the Company that the concerned employees be reinstated all docked monies. 68 Having considered all of the evidence and submissions of the two parties, the Commission declines to make such an order. 69 The parties agreed that the Company's direction to defer the taking of shower time was to be considered against the award requirements for when the Company seeks to introduce "significant change". There is a fourfold test for such a proposed introduction: legal, safe, efficient and fair. 70 The Union conceded that only the last two named criteria were in issue - efficiency and fair. 71 The Commission found that there was an efficiency to be gained by the deferring of the shower time for the purpose of introducing the tool-box meeting. 72 The other criterion of fairness, had the Union mainly arguing that it was unfair to defer the taking of shower time from 3.30pm to a later time (of several minutes) because the 3.30pm shower time provision was a long standing custom and practice. The Commission accepted that this custom and practice was more than that and had become a "usage". Despite that finding, the Commission found, based on case law reasoning, that it was reasonable for the Company to defer the taking of the shower time provision for the purpose of holding a tool-box meeting, given all of the evidence before the Commission. 73 The Commission, of course, was only dealing with an issue going to the deferment of the taking of shower time and not with the abolition of the shower time provision. The reasoning in this decision, surrounding deferment, only goes to deferment and not abolition of the shower time provision (should that ever be an issue). 74 The Commission new closes the file for this matter.

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