BlueScope Steel Limited v. Australian Workers Union [2010] NSWIRComm 1020

CATCHWORDS: industrial dispute - steelworks - painting and finishing - tension leveller line and manual pack operations - day workers - conditions of employment - staggered meal breaks - opposition by employees - status quo preserved until the matter was arbitrated - possibility of flow on - decision rescinding the status quo

Industrial Relations Act 1996 Industrial Relations (Commonwealth Powers) Act 2010 LEGISLATION CITED: Federal Fair Work Act 2009 Federal Fair Work Amendment (State Referrals and Other Measures) Act 2010 Federal Workplace Relations (Work Choices) Act 2005

Australian Workers Union v. BlueScope Steel (AIS) Pty Limited (2006) 157 IR 93 BlueScope Steel Limited v. Australian Workers Union [2008] NSWIRComm 1044 Cepus v. Heggies Transport Pty Limited (1994) 52 IR 123 CASES CITED: Ermani Constructions Case (1988) 23 IR 346 Kingmill Australia Pty Limited v. Federated Clerks Union of Australia (2001) 106 IR 217 Shift Workers Case (1972) AR 633 South Eastern Sydney and Illawarra Area Health Service v. Health Services Union (2007) 165 IR 43 Tundish Repair Disputes Case [2007] NSWIRComm 1045

APPLICANT Ken Brotherson Duncan, Cotterill LEGAL REPRESENTATIVES:

RESPONDENT AND INTERVENORS Adam Hatcher

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

BlueScope Steel Limited and the Australian Workers Union

Notification under S.130 of the Industrial Relations Act, 1996 re staggered meal breaks for the tension leveller line and pack line operations

1 On Friday, 18 September, 2009, acting pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, BlueScope Steel Limited lodged a notification of an industrial dispute with the Australian Workers Union concerning the tension leveller line [TLL] and the manual pack [MP] of the Painting and Finishing Department at the Springhill site in Port Kembla. BlueScope Steel has merged the TLL and the MP and has facilitated continuous running of the line. It now seeks to stagger the meal breaks for TLL/MP operators. The operators are opposed to that change to their existing working arrangements and, in accordance with Clause 36.4 of the BlueScope Steel Limited - Springhill and CRM Employees Award, the status quo has been preserved until the matter is resolved in the State Commission. With its S.130 notification, BlueScope Steel seeks the lifting of the current status quo arrangements and proceed with the staggered meal breaks for the TLL/MP operators.

2 The merger of the TLL and the MP was itself opposed by the operators and the status quo arrangements of Clause 36.4 were invoked by the AWU with the proposal for its introduction. However, in an unreported decision of Thursday, 9 July, 2009 in BlueScope Steel Limited v. Australian Workers Union [Matter No.IRC 2234 of 2007] Macdonald C revoked the status quo, permitting the merger to go ahead. BlueScope Steel has merged the TLL with the MP, reduced manning from seven operator positions to a five operator structure and altered the operators from a day and afternoon shift roster to a Monday to Friday day work pattern. In accordance with Clause 11, Retention of Rates, of the BlueScope Steel Award, the operators retained the higher rates of pay (the penalty payments) available to them as shift workers for a period of six months. That period has now expired.

3 The dispute over the staggered meal breaks, the subject of the current S.130 notification by the AWU, has flowed out of the merger, however. The essential purpose of the merger was to facilitate continuous operation of the TLL/MP and the proposal to stagger the meal breaks also has that as its aim. In the process, the operators have now moved from the a paid crib break of 20 minutes which is counted as time worked [Clause 13.3.2] to a meal break of not less than 30 minutes nor more than 45 minutes which is unpaid [Clause 13.2.2]. Whilst the employees were prepared to stagger their meal breaks whilst they were engaged as shift worker - and apparently it is not uncommon in the steelworks for shift workers to have staggered meal breaks - they are resistant to have their unpaid meal breaks interrupted. At the present time the TLL/MP operations cease while the employees take a combined meal break.

4 The S.130 notification was initially allocated to McKenna C whose attempts at conciliation were unsuccessful. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and the Electrical Trades Union of Australia intervened in the proceedings. Trades staff employed by BlueScope Steel in the Port Kembla steelworks are also day workers and their concerns are directed to whether or not this decision may flow on to their conditions of employment. McKenna C issued the certificate of attempted conciliation required by S.135, lodging it in the prescribed manner, intending to proceed into arbitration. But her commitments as a dual commissioner in Federal Fair Work Australia necessitated her returning the file which was then reallocated to me for that arbitration.

5 I set this matter down for mention and programming on Tuesday, 9 February, 2010. Those proceedings and all subsequent proceedings were convened in the Commission's premises at 90 Crown Street, Wollongong. I scheduled the matter for arbitration in a hearing on Friday, 12 March, 2010 (which was subsequently vacated at the request of BlueScope Steel and with the concurrence of the AWU) and Tuesday, 13 April, 2010. Mr Brotherson represented BlueScope Steel in the hearing, calling Mr Simon Took, the operations manager of the Painting and Finishing Department, to give evidence in the hearing. Mr Hatcher represented the AWU and intervenors in the hearing - the AFMEPKIU and the ETU. Mr Hatcher called Mr Keith Armstrong, a tension level operator as a witness in the hearing.

6 Mr Armstrong described the TLL as a small production line - approximately 50 metres long - for the processing of coils. TLL operators put coils on the entry end of the line and remove them from the exit end, operating the leveller machine and inspecting strip surface for defects. In the MP area operators place strapping around coils and pack material prior to despatch. At present, the merged TLL/MP continuous operations comprise five operators. Two operators are required to man the TLL at all times. Another operator carries out manual pack tasks. A fourth operator is available for relief for breaks and any ancillary tasks that arise. A fifth operator provides annual leave relief.

7 Mr Armstrong indicated in a written statement which formed the basis of his evidence, that:

"....prior to the merger between the TLL and the MP, the employees in the area alternated between day and night shift. After the merger I continued as a shift employee on alternation between day and afternoon shifts. Whilst working in day and afternoon shifts on the TLL, I and the other employees had a staggered meal break. I was regularly called out during the meal breaks to assist other operators.

The reasons I got called out to the process during the meal break is because some of the processes require two or more operators. For example, if there is a weld break three stations need to be operated at one time. Another example is where I was called in to assist less experienced operators for strip inspection for defects, levelling setup, problem coils and other trouble shooting.

In or about early last year I and the other employees in the TLL/MP area were directed to work as day employees not day shift employees. When we started working day work I and all other employees took a combined meal break. In the TLL/MP area, the line stops when everyone takes their meal break. Therefore I never get called out during my meal break.

When I worked day shift on the TLL, I worked 7.6 hours in the day and received a paid meal break. I do not receive that paid meal break currently whilst working day work and will not receive it even if I have to take staggered meal breaks under the company's proposal. Under the company's new proposal, even though I will be at work for 8½ hours, I will not have the opportunity of a combined meal break with others and therefore lose the benefit of having a combined meal break. I also lose the benefit of a guarantee of not being called out during my meal break. Based on my experience working in the TLL/MP as a day shift worker, I may regularly have to work longer than 8 hours in a day but only be paid for 8 hours work.

Furthermore, I have to work longer than a day shift worker who has a staggered meal break. When I worked on the day shift, I only worked 7.6 hours in the day whilst having a staggered meal break. Even if I was called out during my meal break I did not have to work longer than 8 hours in the day. If I have a staggered meal break and get called out during my breaks I will end up working for longer than 8 hours in the day.

To my knowledge, there is no one in the entire BlueScope Steel operations that works day work who also has to take a staggered meal break. All employees that take staggered meal breaks get paid for their meal breaks. If I and the other employees in the TLL/MP area have to take a staggered meal break and not get paid for our meal break then we will be treated differently to all other workers at BlueScope Steel. We will be treated differently because no other employee who has a staggered meal break does not get paid for that meal break..."

8 Mr Took indicated in a written statement which accompanied his evidence in this hearing:

"....The manning levels proposed by the company for the merged work unit...were premised on a flexible structure which would maximise the efficiency of each of the work areas. It is this flexibility which makes the crib/rover position viable. The continuous operation of the TLL during day work hours requires employees working on the TLL to stagger their meal breaks... The opposition of the employees to the staggered meal breaks means that the efficiencies proposed by the merger of the 2 units...have not been fully realised.

The ability of the company to have continuous operations throughout day work time will provide an extra 2½ hours of running time of the TLL per week for the same operating cost. Currently any work that would otherwise be done during that 2½ hours must be done during overtime hours. The extra time available through staggered meal breaks during ordinary hours represents a 6¼ productivity increase for the same structural cost. The change proposed by the company will also allow for more meaningful utilisation of the relief/rover operator as originally envisaged. The change will provide an extra 2½ hours of meaningful work each week for the relief/rover. At present, this person is simply an extra during those hours..."

9 In written submissions Mr Brotherson indicated that:

"....the operator providing relief is additional and was for the express purpose of providing relief for the meal break of TLL operators, thus allowing the line to run continuously. Additionally, this operator has allowed the company to stagger the leisure day of the operators..."

10 Since BlueScope Steel is, of course, a trading corporate within the meaning of S.51(xx) of the Commonwealth Constitution, its industrial activities fall primarily under the 2005 Federal Workplace Relations Amendment (Work Choices) Act and the 2009 Federal Fair Work Australia Act which has replaced it. The BlueScope Steel Award has by a 2006 amendment to the State IR Act become an enterprise agreement and, as such a "preserved State agreement" [PSA] under Work Choices and Fair Work Australia. But a protocol has been established for BlueScope Steel operations in Port Kembla by virtue of which individual industrial disputes are referred to the State Commission for conciliation and/or arbitration in accordance with arrangements available following an amendment to the State IR Act in 2006 [S.146A] - subject to the established dispute settling procedure being followed.

11 Such a referral agreement, signed on behalf of BlueScope Steel, the AWU, the AFMEPKIU and the ETU has been completed for the current industrial dispute, viz:

"....The dispute concerns the company's proposal to stagger the meal breaks for day work operators at the tension leveller line/manual pack operation in the Painting and Finishing Department..."

12 However, effective from Friday, 1 January, 2010 complementary Federal and State legislation - the State Industrial Relations (Commonwealth Powers) Act and the Federal Fair Work Amendment (State Referrals and Other Measures) Act - came into operation and, among other things, from that date S.146A was repealed. It was replaced with an amendment to S.146B which authorises the State Commission to exercise functions in the resolution of industrial disputes under Federal enterprise agreements which contain a provision that authorises such industrial disputes to be referred to the State Commission for resolution. The amendment to S.146B does not necessarily refer to PSA's, however.

13 By virtue Ss.60 and 61 of the Federal Fair Work Amendment Act part heard matters or matters which commenced in the State Commission prior to Friday, 1 January, 2010 (of which the current S.130 notification is an example) are preserved. But Ss.60 and 61 do not apply to any matter which came before the State Commission by virtue of the repealed S.146A of the State IR Act. Nevertheless, the parties and intervenors before me in these proceedings are content to rely on the established protocol and for me to arbitrate over the matter in dispute and it is that protocol on which I rely in these proceedings for my jurisdiction.

14 That having been said, Clause 36, Procedure for Resolving Claims, Issues and Disputes, of the BlueScope Steel Award contains a comprehensive dispute settling procedure [DSP] for the orderly resolution of all industrial disputes at the Port Kembla steelworks. In particular, where changes described as "...significant in nature..." [Clauses 36.4.2(c) and 36.4.3] are being introduced a comprehensive consultation process is set up and the status quo is preserved, provided there is compliance with the DSP and there is no industrial action taking place. In that respect Clause 36.4.3(j) provides as follows:

"Where the consultation process concludes upon a party declaring to the other parties that it regards the consultation process as exhausted, and there is disagreement as to the change proposed, the change may be implemented forthwith unless a party to the consultation process gives notice to the other parties that it disputes the implementation of the change, and in that case the status quo will apply. Notice of disputing a change must first be provided to the other parties verbally within 24 hours after the declaration that the consultative process is exhausted, and followed up by written notice in accordance with S.36.4.3(k)."

15 The relevance of a conclusion that a particular change is significant is that, until any dispute over the change is resolved, ultimately in arbitrated proceedings before the Commission, the change may not be put into effect. Clause 36.4.3(o) provides in that respect:

"The status quo may be altered by recommendation or direction of the Commission in proceedings pursuant to S.130 of the Act or as the outcome of arbitration by the Commission." Mr Brotherson has sought in these arbitrated proceedings for me to make a direction under Clause 36.4.3(o) for the status quo arrangements to cease. Mr Hatcher opposes the changes which would flow from the revocation of the current status quo .

"A change is 'significant in nature'...if the change will have substantial effects on:

(i) the composition, operation or size of the workforce in a section or department of the operations of the company;

(iii) the availability of job opportunities for employees;

(ix) outsourcing of work (meaning the engagement on a permanent basis of another organisation to perform work which has previously been performed by employees of the company. In this respect outsourcing differs from the use of contractors to meet intermittent work load requirements or to provide specialist skills on a short term or as needs basis."

Mr Hatcher's submissions are based on the understanding that the proposed changes to the meal breaks for the TLL/MP operations are significant in nature . Whilst Mr Brotherson does not concede that the proposed change is significant in nature , BlueScope Steel has followed the procedure in place for such changes on this occasion, preserving for the present time the status quo , pending the outcome of this hearing.

17 Although I accept that initially the merger of the TLL and the MP to provide for continuous operations was a significant change: it involved both a change from shift work to day work and a reduction to the manning levels for the operations. To my mind, the requirement that any employees stagger meal breaks would arguably not be particularly significant. However, it does directly affect the hours of work of the employees and is therefore one of the issues identified in Clause 36.4.2.

18 Clause 36.4.1(c) provides the tests to be applied when any change is introduced in the Port Kembla steelworks, viz:

"In considering the desirability and business case for any proposed change, the tests to be applied are requirements for the change to be:

fair." I will refer to those tests in Clause 36.4.1(c) in more detail later in this decision.

19 In its ex tempore decision in Australian Workers Union v. BlueScope Steel (AIS) Pty Limited (2006) 157 IR 93 the Full Bench of the Commission (Wright J - President, Walton J - Vice President and McLeay C) emphasised the need (at pp.96 and 97), when managing a change in steelwork operations - in that instance a manning dispute - to rely on the actual terms of the relevant provisions of the BlueScope Steel Award - Clause 36 - which was designed to regulate such matters in considerable detail and not the established principles governing manning disputes at large. The Full Bench (at p.4) regarded it to have been an error of law and principle for such matters to be determined:

"...in accordance with what is described as a 'fundamental principle'. That principle was stated as the right of an employer to manage its operations as it deemed appropriate, provided the consequences of exercising such a right did not place an unjust or unreasonable burden on employees..."

20 In other words, the test for manning disputes where there has been a change in the operations of BlueScope Steel is not strictly dependent on any general principles that have been developed in the Commission concerning manning but on the "safe, efficient, legal and fair test" set out in Clause 36 of the BlueScope Steel Award. But as I indicated in my unreported decision of Tuesday, 17 July, 2007 in the Tundish Repair Disputes Case [Matter No.IRC 3577 of 2007 at p.6]: "...To my mind that does not mean that the AWU in this case must establish that a change that is being contemplated meets each and every one of the requirements of "safety", "efficiency", "legality" and "fairness". In my view, it would be absurd to suggest, for instance, that a change that is illegal but nevertheless efficient should still be permitted to occur: or permit a change that alone is unsafe to the employees. Each of the tests - safety, efficiency, legality and fairness - should be considered but any one of the tests may alone prove to be fatal to a proposed change. The Full Bench is not suggesting in Australian Workers Union v. BlueScope Steel (AIS) Pty Limited to read the 'safe, efficient, legal and fair test' as being cumulative: it is only emphasising the need to consider manning disputes in the context of Clause 36 rather than to otherwise rely on general principles relating to manning disputes..."

That having been said, I now consider the issue before me in this hearing in accordance with that test. Mr Brotherson has argued that BlueScope Steel has satisfied the test: Mr Hatcher submitted that it has not.

21 In a written outline of submissions, Mr Brotherson stated:

"...The safety of the employees will not be impacted by the staggering of the meal break in carrying out their work on the tension leveller line. The operation remains a two person operation at all times..."

In his written outline of submissions in reply Mr Hatcher indicated:

"...The proposed change to the company will lead to the result that during an employee's meal break operation continues. In such circumstances, the likelihood of an operator being called out during their meal break to assist operators is much higher. Such a possibility does not currently exist while the operators have a combined meal break. If employees are called out during their meal break, then it automatically flows that there is a higher risk of fatigue for those employees which also leads to a higher risk to safety..."

However, in his submissions in the hearing Mr Hatcher did not really stress his objections to the staggered meal breaks on safety grounds with any vigour, conceding that there was no strong argument he may make on that basis.

22 Issues of workplace safety are ordinarily not the exclusive province of members of the Commission in S.130 compulsory conference proceedings [the Ermani Constructions Case (1988) 23 IR 346 at pp.351, 352 and 353]. Primarily, that is a matter for the internal occupational health and safety bodies already in place in the steelworks, in conjunction with WorkCover. Nevertheless, issues concerning workplace safety are obviously important factors in many industrial disputes and, of course, the Commission would not be prepared to approve change to working arrangements if it believed those arrangements to be unsafe. I do not see any safety concerns with the proposal.

23 Mr Brotherson indicates in his written submissions:

"....The staggering of meal breaks is a highly efficient practice for the TLL/MP and would yield a 7% productivity increase without the need for capital or employee restructure. It would mean that, subject to the needs of the business, the company could operate the TLL for 8½ hours per day. In effect, the company maximises the utility of the TLL without any change to the work of the employees..."

As I indicated earlier in this decision, in his evidence Mr Took indicated that he has re-evaluated that productivity increase and re-assessed it at 6¼% instead of 7%, modifying Mr Brotherson's submissions to that extent.

24 Mr Brotherson also submitted in his written statement:

"....The imposition of status quo on staggered meal breaks for the TLL/MP operators means that the business is carrying an extra position that is not maximising the flexibility offered unless there is continuous running of the tension leveller line. In the absence of staggered meal breaks the relief position has no utility and unnecessarily adds to the cost of production..."

25 Mr Hatcher does not dispute that there may be a productivity increase for BlueScope Steel as a result of the staggering of meal breaks for the TLL/MP operators but he believes that if there are such productivity increases it would be likely at the expense of the TLL/MP operators. His written submissions record:

"....Such an increase occurs on the basis of the employees performing more work or at least the likelihood of performing more work. Hence the AWU refutes the submission that the change is necessarily more efficient as it does not gain greater productivity from the same amount of work from employees. It gains it from employees having a greater likelihood of performing additional work, that additional work being called out during their meal breaks..."

26 Mr Hatcher also spoke of the down-time which may arise for the MP when employees were on annual leave and relief was otherwise unavailable, which Mr Took conceded in his evidence must occur from time to time. That would not necessarily be consistent with greater efficiency in the TLL/MP operations. But, as I see the position, such down-time, if it occurred at all, is more a product of the reduced manning for the TLL/MP operations and not as a result of a proposal to stagger meal breaks. Furthermore, it appears to me to be trite that continuous operations of the TLL/MP would be a more efficient way for this part of the steelworks to operate and anything that presents a barrier in that respect, by its nature, would be less efficient.

27 Mr Brotherson asserts that the proposed change to provide for staggered meal breaks in the TLL/MP is not illegal. Mr Hatcher argues that, having regard to the prospect that the introduction of continuous operations for the TLL/MP may result from time to time on the operators being called back to work from their unpaid meal breaks, it would mean a contravention of Clause 13.2.2 of the BlueScope Steel Award, viz:

"On each day worked, Monday to Friday inclusive, not less than 30 minutes nor more than 45 minutes will be allowed to day workers for a meal and, except in the case of urgent breakdown work necessary to secure an immediate resumption of operations, will be allowed between the hours of 11.30am and 1.20pm." This part of the claim falls on a determination of the interpretation of Clause 13.2.2 - a matter which, as Mr Brotherson submitted, is open to me by virtue of S.175 [ Kingmill Australia Pty Limited v. Federated Clerks Union of Australia (2001) 106 IR 217, Cepus v. Heggies Transport Pty Limited (1994) 52 IR 123 and South Eastern Sydney and Illawarra Area Health Service v. Health Services Union (2007) 165 IR 43].

28 I do not believe that Clause 13.2.2 actually precludes staggered meal breaks as Mr Hatcher has submitted: it is silent on that issue. Provided the staggered meal break occurs for not less than 30 minutes between the hours of 11.30am to 1.20pm, there is nothing in Clause 13.2.2 to preclude staggered meal breaks for day workers. Of course, if an operator's meal break is interrupted with his being called to work on occasions which do not constitute an urgent breakdown, eg when a colleague asks him for assistance, which Mr Armstrong claims occurs from time to time, then his meal break would have to be extended to accommodate the time he has lost. (That would also be the position when his meal break is interrupted to attend an urgent breakdown.) And, if in the process, he works in excess of the times prescribed in Clause 22, Overtime, as his ordinary hours of work, or if any interruption to his meal break extends that meal break outside the span of 11.30am and 1.20pm, as Mr Brotherson indicated in his submissions, he must receive overtime for such time [Clause 22.1], ie time and one half for the first two hours and double time thereafter.

29 The essential argument by the AWU in these proceedings appears to me to centre on its concern that with staggered meal breaks in the TLL/MP operations there will be a greater likelihood that the operators will be called upon to perform additional work during periods which would ordinarily be regarded as meal breaks. In written submissions, the AWU indicates:

"....the change is grossly unfair. Firstly, the employees who are on the TLL/MP day work roster will be treated differently to any other employee on a day work roster by the respondent. No other employee on the day work roster has to have a staggered meal break. The change is also unfair because it increases the likelihood of an employee having to work through an unpaid meal break. It is grossly unfair to require employees to work through an unpaid meal break. That is highlighted by the distinction between shift workers who have staggered meal breaks but are paid for those meal breaks in recognition of the fact that they may have to work during those meal breaks. The proposed change is unfair because it increases the likely working hours for the employees in the TLL/MP area to be above 8 hours whilst they still only receive 8 hours pay. The change is unfair because it denies the employees the opportunity to have a combined meal break which is an opportunity afforded to all other day work employees..."

30 Mr Hatcher pointed out in his submissions that the TLL/MP operators had already lost a paid meal (or crib) break and shift penalties when they moved from shift work to day work and were now subjected to the imposition of greater flexibility in their meal breaks. Paid meal breaks and shift penalties arise to compensate shift workers for the disadvantages inherent in their work (the Shift Workers Case (1972) AR 633]. They are not therefore available to day workers. But I accept, as Mr Hatcher submitted, that the operators have now lost the higher incomes they had formerly received as shift workers. The period of retention of their higher earnings expired after six months. However, those issues were more a products of the change which has already taken place and, in my opinion, beyond the scope of this hearing which is confined to the issue of staggered meal breaks, which is the only issue before me in this hearing.

31 Mr Hatcher spoke of the social isolation and boredom which the TLL/MP operators suffered in their work. Mr Armstrong indicated that the operators were spread out in the TLL/MP and did not usually have contact with one another whilst at work. But the evidence before me suggests that not all of the operators actually do take their meal breaks, or all of their meal breaks, together. One employee apparently visits another part of the site and has his meal breaks with his former colleagues working there: some employees apparently purchase their lunch in the steelworks canteen, either not eating together with the other employees or limiting the time together: some employees smoke cigarettes away from the crib room for part of their meal breaks.

32 Mr Brotherson argues that the proposal for the reorganisation of the TLL/MP has to be considered in the context of the overriding agreement between BlueScope Steel, the AWU, the AFMEPKIU and the ETU for ongoing efficiencies within the Port Kembla steelworks. That agreement has resulted on the level of wage increases received by employees in the steelworks. It is confirmed by S.36.4.1(a) of the BlueScope Steel Award, viz:

"...The parties recognise and accept that change is an inevitable and increasingly necessary part of the steel industry...."

"...Change must be ongoing to ensure that the company remains viable and employees expectation concerning security of employment can be satisfied...."

But, as Mr Hatcher submitted, it is the test S.36.4.1(c), ie whether the change contemplated was safe, efficient, legal and fair, which actually governs these proceedings. Efficiency is only one of the matters for me to take into account, albeit a very important one, having particular regard to Ss.36.4.1(a) and (b), but it must be considered in the context of the other three matters - safety, legality and fairness.

33 Mr Hatcher also expressed reservations, no doubt chiefly on behalf of the AFMEPKIU and the ETU, of the prospect of flow on of the staggered meal breaks to other day workers. Trades staff have historically been employed as day workers in the steelworks. Mr Took in his evidence gave me the clear impression that in reaching his decision on the matter he was confining himself to the TLL/MP operations alone and had not taken into consideration other areas of the steelworks at all. My first reaction would be that the staggered meal breaks for the TLL/MP operators would probably be unsuitable for trades staff in the steelworks and unnecessary but, in any event, I am concerned only with the operations in question in these proceedings. The possibility for flow on would have to be considered by the parties, or the Commission, only if and when it may arise in future and what occurs in the TLL/MP provides no precedent for other parts of the steelworks.

34 In the circumstances, I consider that it is appropriate that the status quo over this issue be lifted and I make a direction to that effect under Clause 36.4.3(o). But I do so on the basis of the assessment of Mr Took that the number of occasions when operators will be called in to work on the meal break would be very rare. That, of course, is not Mr Armstrong's view and if he is proven to be correct, the situation may have to be reassessed. It is not fair that an employee would be called in other than on rare occasions on his meal break. Nor would it be in the interests of BlueScope Steel, or the efficiency of the operations, for it to rely on the employees whilst they are on their meal breaks. The proof of this particular pudding will be in the eating of it.

35 And, of course, an employee is not obliged to work whilst he is on his meal break. I would not wish to be taken as suggesting that the TLL/MP operators should not continue to help one another out, as Mr Armstrong suggested in his evidence was the case, and to go to the assistance of a fellow employee whilst they are on their unpaid meal break. But, apart from the urgent breakdown work necessary to secure an immediate resumption of operations which is contemplated in Clause 13.2.2, if they are directed to work in their schedule meal break by their supervisor in my opinion it is open to them to decline to do so.

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