Bluescope Steel Limited v The Australian Workers' Union, New South Wales - [2007] NSWIRComm 307 - NSWIRComm 2007 case summary — Zoe

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Bluescope Steel Limited v The Australian Workers' Union, New South Wales

[2007] NSWIRComm 307

Industrial Relations Commission (NSW)|2007-12-14|Before: Boland J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2007-12-14

Before

Boland J

Source

Original judgment source is linked above.

Judgment (68 paragraphs)

[1]

CITATION: Bluescope Steel Limited v The Australian Workers' Union, New South Wales [2007] NSWIRComm 307

[2]

PROSECUTOR / DEFENDANT: Bluescope Steel Limited PARTIES: DEFENDANT / PROSECUTOR: The Australian Workers' Union, New South Wales

[3]

INDUSTRIAL ACTION - Summons by employer alleging contravention of industrial instrument - Steel industry - Whether industrial organisation of employees directed employees to stop performing normal work and to attend stop work meeting - Meaning of directing - Summons by industrial organisation of employees alleging that direction by employer to an employee to go home on full pay was in contravention of an industrial instrument - Consideration of the terms of an industrial award - Whether award permitted an employer to direct an employee to go home on full pay in circumstances where employee's position was surplus to requirements - Medical restrictions applied to employee's employment - Whether employer contravened award by failing to consult - Summonses dismissed CATCHWORDS: INDUSTRIAL DISPUTE - Summons by employer alleging contravention of industrial instrument - Steel industry - Whether industrial organisation of employees directed employees to stop performing normal work and to attend stop work meeting - Meaning of directing - Summons by industrial organisation of employees alleging that direction by employer to an employee to go home on full pay was in contravention of an industrial instrument - Consideration of the terms of an industrial award - Whether award permitted an employer to direct an employee to go home on full pay in circumstances where employee's position was surplus to requirements - Medical restrictions applied to employee's employment - Whether employer contravened award by failing to consult - Summonses dismissed

[13]

2 The summons filed by Bluescope alleged that: The Australian Workers' Union, New South Wales (the Defendant ), on 31 January 2006 at the Springhill site, Springhill Road, Port Kembla in the State of New South Wales, did contravene the BlueScope Steel Limited - Springhill and CRM Employees Award 2004 (349 IG 293), by directing that employees of the Prosecutor should stop performing their normal duties and attend a stop work meeting contrary to clause 36, Procedure for Resolving Claims, Issues and Disputes of the said Award. The particulars of the charge(s) are: 1. On 31 January 2006, the Defendant directed that employees of the Prosecutor engaged in the various operating departments at the Springhill site stop performing their normal duties and attend a stop work meeting. 2. The stop work meeting related to the employment of a surplus employee from the Paintline, part of the Painting and Finishing Department of the Prosecutor's Springhill site. 3. The position of the employee referred to in point 2 above had become surplus in accordance with a decision of Commissioner O'Neill dated 14 December 2005 in matter number IRC 1206 of 2004. 4. The Defendant did not seek to have discussions with the Prosecutor as is required by clause 36, Procedure for Resolving Claims, Issues and Disputes of the said Award in the event that the Defendant took issue with the Prosecutor's management of the surplus employee. 5. The Defendant disregarded requests from managers of the Prosecutor not to convene the stop work meeting and to pursue the issue in question in accordance with clause 36, Procedure for Resolving Claims, Issues and Disputes of the said Award. 6. At approximately 11.30am on 31 January 2006, the Defendant convened the said stop work meeting. The meeting involved all production employees of the Prosecutor who were at work at Springhill at that time. 7. Normal production work in all operating departments across the Springhill site ceased for the duration of the stop work meeting. 8. Following the stop work meeting, the employees of the Prosecutor who had attended the stop work meeting, took strike action for the balance of the day shift on 31 January 2006.

[19]

Mr David John Brain was not at that time a superintendent nor acting in the position of superintendent within the meaning of sub-clause 36.3 of the said Award. 8. Mr David John Brain was not at that time the supervisor of Mr William Beaumont nor acting in the position of his supervisor within the meaning of sub-clause 36.3 of the said Award. 9. Further, or in the alternative, Mr William Beaumont: a. Did not, by his presence, constitute a hazard either to himself or to other employees, or to plant or equipment; b. Did not, by his presence, interfere with normal and orderly functioning of the Company's operations; and c. Was not, by his presence, prejudicial to discipline. 10. Further, or in the alternative, Mr David John Brain did not arrange for Mr William Beaumont to be interviewed by a superintendent at the commencement of Mr William Beaumont's next rostered shift of duty or another mutually arranged time, as required by sub-clause 36.3 of the said Award. Further particulars in respect of clause 36 11. The Defendant failed to engage in any consultation or any sufficient consultation within the meaning of clause 36.4 in respect of the decision to stand-down Mr William Beaumont and/or direct him to go home before implementing that decision, and in particular failed to engage in detailed communication, within the meaning of sub-clause 36.4.1(d), in respect of that decision before implementing it: a. The Defendant made the Direction without forewarning and without first engaging in consultation or detailed communication with Mr William Beaumont and/or his union; b. The Defendant wrote to Mr William Beaumont before 31 January 2006 as to his future employment without indicating that he might or would be stood down; c. On the day that Mr William Beaumont returned from annual leave he was immediately told that he was to go home; d. The Defendant made a decision to stand down Mr William Beaumont without first providing to Mr William Beaumont and/or the AWU an opportunity to be heard as to that matter and provide relevant information that might affect whether such a decision should be made; e. The Defendant did not ask Mr William Beaumont or the AWU for information or provide an opportunity to consult in respect of a potential decision to direct him to go home; f. The Defendant refused to consider any information that Mr William Beaumont tried to provide as to why such a course of conduct was not warranted or appropriate; g. Ultimately, following the notification of a dispute that came on for hearing and conciliation before Connor C, the defendant determined that Mr William Beaumont could in fact attend work; h. There was no reason why the Defendant could not have sought information from Mr William Beaumont and consulted with him and his union before issuing the Direction; i. The failure to consult, as particularised, was conduct likely to create rather than avoid industrial disputation, contrary to clause 36. 12. Immediately after the Defendant issued the Direction on 31 January 2006 Mr William Beaumont and his union representative stated that such conduct was contrary to the Award. 13. There was accordingly a dispute as to a change that concerned the interpretation or application of the Award, within the meaning of sub-clause 36.4.3(q). 14. Notwithstanding that there was a dispute as to whether the conduct was in accordance with the Award the Defendant reiterated that Mr William Beaumont was to go home and so failed to maintain the status quo, contrary to sub-clause 36.4.3(q).

[23]

13 It followed from this decision that the provisions of cl 34.4 - Security for Employees affected by workplace change, became applicable to Mr Beaumont. 14 Shortly after Commissioner O'Neill handed down his decision, Mr Beaumont commenced a period of annual leave. It would appear that nothing had been said to Mr Beaumont by Bluescope about his position being surplus prior to him commencing his leave. On 22 December 2005 Bluescope wrote to Mr Beaumont. The letter confirmed that Mr Beaumont was surplus and would be dealt with in accordance with cl 34.4 of the Award. The letter informed Mr Beaumont that there were currently no suitable alternate positions and confirmed a "commitment" to work with him to secure a realistic and suitable outcome. As the AWU submitted, nowhere in that letter did it refer to medical restrictions upon Mr Beaumont's capacity to perform certain tasks; nowhere in the letter did it state that he would not be able to attend work; and nowhere in the letter did it state that if Mr Beaumont attended work he would be sent home. As the AWU noted, to the contrary, the sixth paragraph of the letter told Mr Beaumont of new work arrangements making it necessary "to transfer you to a day work (5 days x 8 hours) roster". Mr David Brain, who was in the position of Acting Operations Coordinator in the Painting and Finishing Department at the time and who gave evidence in the proceedings, conceded that there was nothing in the letter that would have led Mr Beaumont to believe that he would not be working when he returned from leave. 15 Mr Brain attempted to speak to Mr Beaumont twice in the three days immediately before Christmas 2005, leaving a message on one occasion and on the other occasion the telephone was not answered. No attempt was made by him to contact Mr Beaumont after Christmas and prior to 31 January 2006. 16 On Friday, 27 January 2006 Mr Brain attended a meeting with Mr Steven Keyte, from Bluescope's Workers' Compensation Department, Ms Dianne Ford from the company's medical staff and Ms Jo Vaughan from Human Resources. Mr Brain said that the purpose of the meeting was to "fully understand the work which can be undertaken by Mr Beaumont, having consideration to his medical restrictions." Medical practitioners imposed those medical restrictions in 1992 and 1993. Mr Beaumont had suffered injuries to his back. He was declared by Dr Barry Bracken in 1992 to be "permanently unfit for work of a heavier nature" and that "He is unfit for any work requiring agility or with bending or stooping". It was stated in 1993 by Dr Don Page, "He [Mr Beaumont] remains unfit for work involving heavy lifting or bending and will remain indefinitely. He also remains permanently vulnerable to exacerbation of this back pain such that it may require surgical treatment in the future". 17 On 30 January 2006, the day before Mr Beaumont was to return to work from his period of leave, a meeting was held between Mr Brain, Ms Vaughan, Mr Grant Costello (Mr Beaumont's immediate supervisor) and Mr Sam Gerovasilis, Bluescope's Vice President of Metal Coating, Painting and Finishing. At that meeting those present considered the medical information. The decision was made, based on Mr Beaumont's medical restrictions and the unavailability of suitable work, that Mr Beaumont would be sent home when he arrived at work the next day. In this latter respect, Mr Brain stated: Following the meeting with Ms Vaughan, Mr Costello and Mr Gerovasilis I decided the most appropriate course of action would be to advise Mr Beaumont immediately upon his return from annual leave that the Company did not have any suitable alternative positions available for him at that time. Mr Beaumont would be instructed to remain at home, on full pay while the Company commenced his case management. This would avoid the possibility of Mr Beaumont sustaining any further injury. Mr Beaumont's case management would include outplacement assistance and attempts by the Company to locate a suitable alternative position for Mr Beaumont. 18 At approximately 7.00 am on 31 January, Mr Brain met with Mr Beaumont prior to him commencing work. Mr Beaumont was advised that having regard to his medical restrictions and the decision of O'Neill C, "there were currently no suitable alternative positions in the Company." Mr Brain further advised Mr Beaumont that Bluescope intended to manage his situation in accordance with cl 34.4 of the Award. Mr Brain then directed Mr Beaumont to go home on full pay. Mr Beaumont was provided with a letter setting out Bluescope's position. 19 Mr Beaumont expressed his dissatisfaction with the Company's position. He said that his condition had improved and that he was capable of working on the Paintline. Mr Brain advised Mr Beaumont that Bluescope would consider any further medical advice he was able to provide but that until that time the company would be in breach of its obligations under occupational health and safety law if it were to place Mr Beaumont on the Paintline. The meeting ended at about 7.45 am. 20 Mr Beaumont contacted Mr Branko Gorgievski, an elected official of the AWU. In response, Mr Gorgievski sought a meeting with Mr Brain and that took place, according to Mr Brain, at about 8.30 am on 31 January. 21 Mr Gorgievski stated that the company had never before sent an employee home upon being declared surplus. Mr Gorgievski noted that with the same injuries and restrictions Mr Beaumont had been working for more than 10 years without being at risk to himself or other employees. Mr Gorgievski identified there had been no earlier consultation with the AWU. Mr Gorgievski stated that there should be further discussions before implementing a decision to send Mr Beaumont home. Mr Brain declined to change his position regarding the direction to Mr Beaumont to go home on full pay. 22 Because of commitments before a member of the Commission on the morning of 31 January 2006, Mr Gorgievski was unable to stay at the Springhill site and so Mr Andrew Gorman, another AWU official, took over as the Union's representative on the site. Before Mr Gorman arrived, Mr Gorgievski said the word about what was happening had begun to filter out to other employees and there was agitation amongst the employees for a stop work meeting so that they might be advised of developments. 23 According to the evidence of Mr Ilce ('Ivan') Bosevski, a shift supervisor in the Painting and Finishing Department, Mr Gorman and Mr Gorgievski wanted a "threader inserted into the line". Mr Bosevski's affidavit evidence was that: After the private conversation, Mr Gorman left the emergency evacuation area outside the Paintline building, and Mr Gorgievski and Mr Beaumont approached me. Mr Gorgievski said words to the following effect: "I want a threader inserted into the line." I understood Mr Gorgievski's reference to a "threader" to be a reference to an instrument that is used to stop the Paintline in a controlled manner and reduce the damage caused by stopping the Paintline. If the line is stopped in an uncontrolled manner, approximately 2-2.5 tonnes of material is lost. A threader is normally used when the product on the line is changed or when there is a scheduled controlled line stoppage. The decision to use a threader is usually made by a Supervisor or Shift Technical Advisor in circumstances of a planned, authorised stoppage, or by a Supervisor in circumstances of an unplanned, unauthorised stoppage. Union delegates and officials do not have the authority to require threaders to be inserted on to the line. At that time there was no planned or authorised stoppage which would permit me to authorise the use of a threader. Accordingly, I replied to Mr Gorgievski in words to the following effect: "No, I can't authorise that at this point. I will have to talk to management." Mr Gorgievski then further insisted a threader be inserted on to the line, without explanation as to why he required the threader to be inserted, in words to the following effect: "We have to talk to our members. We have to have a threader. Whether you like it or not, we have to have a threader. If you have to get authority from your management then you must do that." I again refused Mr Gorgievski's request to put a threader on to the line.

[38]

30 Mr Gorman denied stating that he had instructed the operators to stop the line and denied stating that he had said that he had instructed "the guys" to attend a gate meeting. 31 In the cross examination of Mr Brain, the following exchange occurred: Q. [Y]ou say Mr Gorman said "I have instructed the operator to stop the line. I'll take responsibility"? A. Yes. Q. And you stand by those words, "I'll take responsibility"? A. Yes. Q. I put to you he at no stage said, Mr Gorman at no stage said that he had instructed people to stop the line? A. He was telling the operator to put the threader up and he told them he would take responsibility, so I'm not sure what you're getting at about "instructed", but that was an instruction, to my understanding. Q. I will put it to you this way: we have already dealt with the fact that Mr Gorman said, "I'll take responsibility, I'm authorising the threader to go up". What I am suggesting to you is that he didn't say those words to the effect of, "I'm instructed" or "I have instructed operators to stop the line"? A. No, the operator, I believe had already been instructed to stop the line before we got there. Q. If that instruction had been given, it was given not in your hearing? A. No, I don't believe so. 32 Mr Gorman gave evidence as to what he said in the entry end cabin and, in particular, what he said to the operator. His evidence was that during the conversation in the entry end cabin he was informed by Mr Beaumont that the exit end workers had already left their workstations and, accordingly, the Paintline was going to stop anyway and it was essential that a threader go up so that it stopped in a safe manner. Either Mr Brain or Mr Bosevski in that conversation had specifically stated to the entry end operator that he would be disciplined if he put a threader up. It was in those circumstances that Mr Gorman said that he was authorising the entry end operator to put the threader up. He said that, knowing that he did not have that authority, because in his view one had to go up for safety reasons and he did not want the entry end operator to have to take responsibility for doing that in the face of direct instructions not to do so and the threat of disciplinary action. 33 Mr Gorman was cross-examined as to whether he had gone to the Coupled Pickle Cold Mill (the CPCM) to request workers to attend the stop work meeting. His affidavit evidence was that: I walked into the CPCM. The employees of the Roll Shop stopped and asked what was going on. I said to them words to the effect of: BG: "Employees are holding a stop work meeting at the gate. The employees at the gate have requested that all employees on the plant attend the stop work meeting. I have been asked to tell you about the meeting and to tell you that they think that all employees on the plant should attend." I spoke to two operators at CPCM and they asked what the meeting was about. I told them what the meeting was about and they said that they had been told that they had to remain at the CPCM because the Supervisor would not let them go. I said words to the effect " I'm here because the employees called the meeting and they have requested everyone to be there. I have been asked to let you know what's going on and that the employees are requiring you to attend the meeting. " I then walked around the corner to the No. 3 MCL and spoke to the entry end operator and said much the same thing. The entry end operator said " I have to put up a threader. This coil will take about twenty minutes and then it will take fifteen minutes to put up the threader and then I'll be there. " I then left the No. 3 MCL operating and went back to my car and drove back to the meeting. I informed the meeting that I had spoken to people at the No. 3 MCL and that they had to put a threader up and would be there in about half an hour. The employees decided to hold the meeting back waiting for the MCL employees.

[43]

[97] In Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 110 ALR 449, (1992) 67 ALJR 170 the High Court stated at 170-1: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary `where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (citations removed) [98] The application of the Briginshaw principle means no more than that I should not lightly make a finding that the two Unions in this case are guilty of the alleged contraventions. That is, "a greater clearness of proof may be properly looked for" in this case than in cases where the consequences of contravention findings are not so serious: Sodeman v The King (1936) 55 CLR 192 at 216 per Dixon J. Meaning of "directing" in the summons 37 The AWU admitted that there was a stop work meeting on 31 January 2006 but denied that it, or its officers or employees acting on its behalf, directed employees to stop performing work and attend that stop work meeting. It was the AWU's case that the employees themselves, in the absence of any "direction" by Mr Gorgievski or Mr Gorman, called the stop work meeting. The AWU denied that it did not have discussions with Bluescope, and submitted the evidence was that it met with Mr Brain who made clear that there was no point having any further meetings.

[44]

The first issue is whether the AWU 'directed' that employees of Bluescope should stop performing their normal duties and attend a stop work meeting. Four days before the proceedings were about to commence and after the evidence in the proceedings had been filed, Bluescope advised the AWU that the meaning it intended to convey in relation to the word 'direct' was that set out in the definition of the word in the Macquarie Dictionary: 1. To guide with advice; regulate the course of; conduct; manage; control; and 2. To give authoritative instructions to; command; order or ordain (something): " I directed him to do it, or that he do it ." 38 In other words, Bluescope was leaving it open to contend that if it was not successful in proving that Mr Gorgievski or Mr Gorman gave authoritative instructions, or commanded, or ordered the employees to stop work and attend the stop work meeting, in the alternative it only had to prove that either or both of these officials "guided with advice", or somehow 'managed the situation', and that this was sufficient to make out the charge. 39 I do not accept that the use of the word 'directing' as it is to be understood in the context of the summons was meant to convey the meaning, "to guide with advice" or "to manage". To "guide with advice" is to, for example, advise someone of the location of something; to answer the inquiry, "Could you direct me to the train station?" Nor do I consider that the word 'directing', as it is used in the charge, contemplates a situation where the employees themselves may have, of their own accord, decided to stop work to attend a meeting and thereafter AWU officials 'managed' the process by ensuring that the Paintline stopped and that employees attended the meeting. 40 We are concerned here with the serious question of whether an industrial organisation of employees unilaterally directed its members, that is commanded, or ordered, or issued an authoritative instruction to them from the outset, to contravene an award provision - an offence that attracts a pecuniary penalty not exceeding $10,000. Given the seriousness of the consequences for an organisation that is found to have contravened s 357 of the Act, any summons alleging contravention of an industrial instrument must be framed with precision. I do not consider it was open to Bluescope to use a word in a charge that on a plain reading has a particular meaning and then, shortly before the proceedings are to be heard, to expand the meaning of that word by referring to a dictionary definition that happens to allow for the word to have more than one meaning. 41 If Bluescope had meant to capture in its charge a situation where members of the AWU had sought the advice of officials as to whether they should stop work and attend a meeting and the officials had offered that advice then the charge should have been framed accordingly by using words such as "advised" or "encouraged" or "incited". I note that in proceedings on 23 October 2007, Bluescope sought leave to amend the summons by adding the words "encouraging, inciting and organising" after the word "directing". Leave was refused, the application having been made far too late. Whether Mr Gorgievski directed employees to stop work 42 It is clear that only one or both of two officials of the AWU were in a position to direct employees to stop performing their normal duties and attend a stop work meeting: Mr Gorgievski and/or Mr Gorman. The only relevant evidence that bears on the question of whether one or both of these officials did issue the direction is, on the one hand, their own evidence and, on the other hand, the evidence of Mr Brain and Mr Bosevski. 43 It was Mr Gorgievski's evidence that employees told him that they were organising a stop work meeting and he told them that they should not do so, but rather further discussions should take place. In cross examination of Mr Gorgievski the following exchanges occurred: Q. Did you advise any of your members not to attend the stop work meeting? A. Yes. … Q. Whilst you were there, did you say to the employees you should not stop work, we should talk to HR first? A. Yes I did.

[49]

46 In any event, even if it be accepted that Mr Gorgievski said the words attributed to him, the words ("I want a threader inserted into the line") could not, on their own, be construed to be a direction to employees to stop performing their normal duties and attend a stop work meeting, especially when one considers Mr Gorgievski's uncontradicted evidence that employees told him that they were organising a stop work meeting and he told them that they should not do so, but rather further discussions should take place. Whether Mr Gorman directed employees to stop work 47 That leaves Mr Gorman. There is no doubt that Mr Gorman directed the entry end operator to put the threader up. Mr Gorman claimed that he did so in the knowledge that the exit end workers had already left their workstations and that the Paintline was going to stop anyway; it was essential, it was contended, that a threader go up so that the line stopped in a safe manner. Further, Mr Gorman claimed he was seeking to protect the entry end operator from disciplinary action in the event he inserted a threader contrary to Bluescope's directions. 48 Mr Gorman had no authority to give that instruction and he did so in the face of clear statements by Mr Brain that it should not be done. It was an arrogant and unjustifiable act of interference with the production process on Mr Gorman's part that he gave the instruction to the entry end operator. The appropriate and obvious course for Mr Gorman to have taken, if he was aware that the line was going to stop or was aware that a decision had already been taken by the employees themselves to stop work, was to advise Mr Brain of that fact and allow Mr Brain or Mr Bosevski to make any decision about the insertion of a threader. Mr Gorman should have advised the entry end operator to follow his supervisor's instructions and there would have been no issue of disciplinary action being taken against the operator. It was then incumbent upon Mr Gorman to make his best endeavours to ensure there was a return to work and an observance of the Award's disputes resolution procedure. Mr Gorman did none of this. 49 The critical question, however, is whether the instruction by Mr Gorman to the entry end operator to insert a threader amounted to "directing that the employees of [Bluescope] should stop performing their normal work and attend a stop work meeting contrary to clause 36 …" The weight of the evidence favours the conclusion that it was the employees themselves who decided to stop work and hold a stop work meeting. It seems to me that if the employees had determined of their own accord to call a meeting to hear about developments concerning Mr Beaumont and to stop work to attend that meeting, it is impossible to see how it could be the case that they were directed to do so by their union or the officials of that union. Moreover, there was no evidence that either Mr Gorgievski or Mr Gorman, in any literal sense, directed that employees stop work and attend a meeting. 50 It is true that Mr Gorman, in a misguided act of hubris, instructed one employee to perform a particular function that if carried out would have inevitably led to the line stopping and normal work ceasing. However, in light of the fact that employees had decided to stop work and were already leaving their place of work at the time Mr Gorman was instructing the entry end operator to insert the threader, and having regard to Mr Gorman's motives in giving the instruction, however ill-conceived they were, it could not be concluded that Mr Gorman was directing employees to stop work and to attend a meeting. It might be argued that Mr Gorman was, nevertheless, directing the entry end operator to stop work. Given the terms of the charge and the decision in Briginshaw, one could not accept that proposition. There was no direction to stop performing normal work, only to insert a threader; the operator did not insert the threader in any event; the charge referred to employees in a collective sense, not to an individual employee; and there was no evidence that Mr Gorman directed the entry end operator to attend a stop work meeting. 51 It may well be the case that Mr Gorman, in the knowledge that employees of their own accord had decided to stop work and attend a meeting, proceeded to organise matters to facilitate attendance at the meeting, albeit in a bullyboy fashion. But the charge did not allege that the AWU engaged in 'organising' the stoppage of work and attendance at the meeting. 52 It will be recalled that it was Mr Bosevski's evidence that after he had met with Mr Brain and Mr Gerovasilis, he received a mobile phone call from Mr Gorman in which it was alleged that Mr Gorman said words to the effect: "I have told the operators in the entry end to stop the line. I have authorised the threader". This was said to have occurred prior to the meeting in the entry end cabin. If it had been established that Mr Gorman had made this phone call prior to any decision by the employees themselves to stop work and hold a meeting, and that it was, in fact, Mr Gorman who was initiating a stoppage of the line for the purpose of conducting a stop work meeting, there may have been some basis upon which the charge could have been made out. But this was not so. That Mr Gorman may have said the words attributed to him makes no difference to my earlier findings regarding the exchange in the entry end cabin. There, Mr Gorman instructed the operator to insert a threader. If that had been done it would have inevitably stopped the Paintline. But that did not amount to a direction by Mr Gorman to employees to stop work and attend a meeting. In the mobile phone call, Mr Gorman allegedly said words that had the same meaning and intent as those words spoken by him in the entry end cabin. No different finding can be made between the two sets of utterances. 53 As to Mr Gorman's visit to the CPCM, there is no evidence that he directed the employees to stop work and attend the meeting. His evidence was that he was only conveying a message from the meeting that the employees at the meeting required the CPCM employees to attend. There was no evidence contradicting Mr Gorman's version of events. 54 In my opinion, Bluescope has failed to make out the charge because it has not been established on the evidence to the requisite standard that the AWU directed employees to stop performing their normal duties and attend a stop work meeting. I propose, therefore, to dismiss the summons. CONSIDERATION - AWU PROSECUTION

[52]

58 In addition, or in the alternative, it was submitted that cl 34.4 would have read into it an implied term that the employer shall not stand down an employee and/or direct that employee not to attend work. This term, it was contended, would be implied from the whole of cl 34.4 including, in particular, the express obligation to ensure employment security and the express obligation to act to improve workplace relations, trust and co-operation and from the absence of any express power to stand down. 59 Further, or in the alternative, counsel for the AWU submitted that where an employee is surplus, there is an implied term in cl 34.4 that the employer shall not stand down that employee and/or direct that employee not to attend work, at least before meeting with the employee and his or her union representative and exploring what alternatives or options were available. That term, it was said, would be implied from the whole of cl 34.4 including, in particular, the express obligation contained in cl 34.4.5 to meet with the employee and his or her union representative where an employee remained unplaced. 60 Mr I Taylor of counsel for the AWU submitted cl 34.4 would be rendered largely nugatory and, in particular, the obligation to provide "employment security" would be rendered nugatory, if it was open to the employer to take steps not set out in cl 34.4.4, namely, to send a surplus employee home with or without pay. Such conduct was entirely contrary to the concept of providing employment security and providing a proper opportunity for employees to find alternative suitable positions. 61 Undoubtedly, cl 34.4 is concerned with employment security for employees affected by workplace change. But there is nothing inconsistent with striving to ensure employees have employment security and directing them to go home on full pay whilst the employer undertakes its obligations under cl 34.4. Sending an employee home on full pay whilst the employer attempts to find alternative employment for an employee whose position is surplus to requirements is not something that adversely affects the employee's security of employment. The employee remains in employment on full pay. 62 Furthermore, cl 34.4.4 provides: 34.4.4 Subject to the terms of this Award, employment security is provided for the period of this Award subject to the provisions of this clause and the implementation of actions and undertakings provided for in this Award. Where employees are made surplus, the relevant Union/s will be advised and the following principles will apply: … (iv) Where no suitable positions are available:

[53]

· Each employee will be managed on a case by case basis. Employees will be required to participate in a career transition, retraining, job search or outplacement programs sponsored by the Company to maximise opportunities for alternative employment recognising that employees cannot be maintained as surplus indefinitely. 63 Mr Beaumont's position was surplus to requirements. He and the AWU were aware of that fact following the decision of O'Neill C in December 2005. I accept that Bluescope was genuinely unable to find suitable employment for Mr Beaumont prior to 31 January 2006, especially because of Mr Beaumont's medical limitations. That meant Mr Beaumont was surplus to requirements and no suitable positions were available. In that situation Bluescope was required to manage Mr Beaumont, not according to some general rule, but rather having regard to the particular circumstances of that employee. Mr Beaumont was advised that the company intended to manage his situation in accordance with clause 34.4 of the Award and, in the meantime, he was required to go home on full pay. 64 In the absence of a suitable position being available, and given the employer's concern about Mr Beaumont's medical limitations, whilst it was an unwise decision to send him home without first engaging in discussions with the AWU, it was not impermissible to do so. Where there is no work for an employee to perform, the provision in cl 34.4.4(iv) of the Award that "Each employee will be managed on a case by case basis" provides sufficient latitude to the employer to require the employee not to be at work whilst measures were being taken by the employer to find alternative suitable employment. Whilst a decision to send a surplus employee home might be an unusual course to follow, there is certainly no obligation on the employer under the Award to invent work. Any direction to go home would be on the basis that the employee was paid. Non-payment would certainly undermine the principle of employment security expressly provided for in cl 34.4 and would be inconsistent with the intent of that clause.

[56]

67 This approach may or may not have produced a solution. It may have been that in the absence of a flat-footed stand by Bluescope whereby it insisted that Mr Beaumont go home, with the Union's input other suitable work could have been found. It may have been the AWU could have convinced Mr Beaumont to produce updated medical opinions that showed whether he was, as he claimed, fit for work on the Paintline. It may have been, if disagreement prevailed, that the disputes procedure would have led to the matter being referred to the Commission without resort to industrial action. But whatever the result it would have demonstrated Bluescope's commitment to treat all employees with the utmost fairness. 68 As it was, Bluescope's decision to send Mr Beaumont home led to accusations by the Union that the company had failed to follow the proper Award procedures. What followed, predictably, was industrial action with a consequential loss of production and wages. The matter was notified to the Commission and Connor C recommended a position that had the effect of achieving a return to work by the striking employees and Bluescope finding work for Mr Beaumont to perform. Overall, an unproductive outcome for the company both in terms of industrial relationships and production output. 69 I find, nevertheless, that Bluescope did not contravene cl 34.4 of the Award. Whether Bluescope contravened cl 36.3.1 70 An alternative contention put by the AWU was that the decision to send Mr Beaumont home on pay amounted to standing him down. Clause 36.3.1 of the Award only permits an employee to be stood down in certain circumstances. It was the AWU's case that Mr Beaumont was stood down contrary to, and accordingly in breach of, the requirements of cl 36.3.1. That Award provision is in the following terms: 36.3.1 Stand Down - The Company has the right to stand an employee down for refusal of duty, malingering, inefficiency, neglect of duty or misconduct on the part of the employee. The Company may deduct payment for any day or portion of a day during which the employee is stood down, subject to the following: (a) Investigation - No employee may be stood down before an adequate investigation of the circumstances of the alleged offence has been made or before the employee has had an opportunity to state his or her case and present witnesses to the facts. This does not apply in the case of a group standing down. (b) Only Superintendent May Stand Down - Only the employee's superintendent may make a decision as to the standing down of the employee when the superintendent is on duty. (c) Limited Ability of Supervisor to Stand Down - The right of the employee's supervisor to stand down an employee is limited to situations where the employee's superintendent is not on duty. The supervisor can only stand down an employee for a period not exceeding the balance of the shift, and only in cases where the employee refuses duty or where the supervisor reasonably is of the opinion that the continued presence of the employee on the plant would be likely to: (i) constitute a hazard either to that employee or to other employees, or to plant and equipment; or (ii) interfere with normal and orderly functioning of the Company's operations; or (iii) be prejudicial to discipline. (d) Superintendent Interview Following Supervisor Standing Down - Where a supervisor stands an employee down, the supervisor will arrange for the employee to be interviewed by the superintendent not later than the commencement of the employee's next rostered shift of duty or another mutually arranged time. The superintendent, after reviewing the case, must inform the employee of his or her decision on the matter. (e) Appeal - An employee is entitled to appeal to the relevant Company human resources representative for his or her department, against any decision of a superintendent. Despite the appeal, the superintendent's decision takes effect pending the determination of the appeal. (f) Working in Other Departments - If an employee is working in a department other than his or her normal department, the employee may be stood down by the appropriate supervisor for that department, subject to the other part of this clause. 71 The AWU contended that cl 36.3.1 permitted an employee to be stood down by a superintendent or by an employee's supervisor and not otherwise. Mr Beaumont was stood down by Mr Brain. Mr Brain, it was submitted, was not a "superintendent". It was further submitted that the power in cl 36.3.1(c) was not being exercised because it was not an attempt to stand down Mr Beaumont only for the balance of the shift. Nor, it was submitted, was Mr Beaumont refusing to do his duty, nor was there a proper basis to conclude that Mr Beaumont constituted a hazard either to himself or to other employees, or that he would interfere with the normal and orderly functioning of the company's operations, or that his continued presence would be prejudicial to discipline.

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85 Clause 34.4.7 clearly applies to the circumstances involving Mr Beaumont. It would not appear there was any reliance by the AWU on cl 34.4.7 as being a provision that was contravened by Bluescope. Perhaps that was because it could not be successfully contended there was such a contravention. The difficulty referred to in cl 34.4.7 arose after Mr Brain directed Mr Beaumont that he should go home on full pay. Mr Gorgievski and later Mr Gorman then intervened on Mr Beaumont's behalf. There followed discussions between representatives of Bluescope and the relevant Union officials as contemplated by cl 34.4.7. Mr Brain and Mr Bosevski urged the Union representatives to follow the dispute settlement procedure as required by that clause. That did not occur because the employees resorted to industrial action. 86 The AWU complained that Bluescope refused to change its stance regarding its decision to send Mr Beaumont home. Indeed, that was so, but such a refusal did not constitute a breach of 34.4.7. I note that Bluescope was, however, prepared to hear further from Mr Beaumont as to whether his medical restrictions still applied to him. I am not aware that Mr Beaumont or the AWU took any further action in that regard. 87 Clause 34.4.7 refers to the dispute resolution procedures in clause 36 of the Award. Clause 36 contains procedures for resolving disputes. It sets out a general dispute resolution procedure in cl 36.2 "for resolving claims, issues and disputes", a procedure in cl 36.3 for dealing with disputes relating to the standing down of employees and summary dismissal, and a procedure in cl 36.4, which sets out processes for dealing with the introduction of change, which is either significant in nature, including outsourcing, or not significant in nature, and for resolving associated issues and disputes. 88 I do not consider that cl 36.4 has any application to the dispute involving Mr Beaumont. That provision is about the introduction of change. The dispute relating to Mr Beaumont was about whether he should be sent home on full pay or whether Bluescope should find him work to do. In my opinion, the reference in cl 34.4.7 to cl 36 as the relevant provision for resolving disputes arising out of the procedures in cl 34.4 is a reference to cl 36.2, and there is no need to resort to cl 36.4. In those circumstances, cl 36.4.1(d) does not apply. In any event, what cl 36.4.1(d) does is merely establish a principle concerning the management of change, namely, a commitment to consult and abide by dispute resolution procedures in the context of workplace change, whether that change be significant in nature, or not significant. 89 Clause 36.4.2(b) provides that: Changes which are not "significant in nature" shall be introduced in accordance with the principles set out in subclause 36.4.1 and the provisions of this award. Disputes in relation to such changes shall be dealt with in accordance with the procedures for resolving claims, issues and disputes provided in this award (emphasis added).

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The reference in cl 36.4.2(b) to "procedures for resolving claims, issues and disputes" is clearly a reference to cl 36.2 of the Award; the heading of cl 36.2 is "Procedure for Resolving Claims, Issues and Disputes". 90 Thus, even if the dispute relating to Mr Beaumont is regarded as one to which cl 36.4 applies, albeit a dispute that is not significant in nature, it stills leads to cl 36.2 as the relevant procedure for resolving the dispute. In those circumstances, if there was any contravention of Bluescope's obligation to observe a dispute settling procedure or failure to communicate or consult, it would be a specific provision in cl 36.2, not a general in-principle provision, such as that in cl 36.4.1(d), requiring parties to commit themselves to consult and to abide by dispute settling procedures in the Award. It was not contended by the AWU that Bluescope breached cl 36.2. 91 As to the AWU's reliance on cl 36.4.3(q), I have already expressed the view that cl 36.4 does not apply to the dispute relating to Mr Beaumont. Clause 36.4.3 is about "processes for introducing change which is significant in nature and for resolving associated issues and disputes". The dispute involving Mr Beaumont, an individual employee with a single issue, was not what I would regard as a dispute about change that is significant in nature having regard to the definition of "significant in nature" in cl 36.4.2(c). Nevertheless, it was contended that the dispute involving Mr Beaumont was a dispute about an issue associated with change of a significant nature and, therefore, cl 36.4.3(q) applied. In my opinion, even if it were accepted that cl 36.4.3(q) had application, it is a general provision that must give way to the specific provision in cl 34.4.7, which invokes the procedure in cl 36.2 of the Award. This interpretation, in my view, best serves the purpose of resolving disputes where employees are declared surplus to requirements. 92 Of course, it is arguable - only faintly - that the reference in cl 34.4.7 to cl 36 may be interpreted to be a reference to cl 36.4.3(q). However, I do not consider this is so. Clause 36.4.3 is concerned with processes for managing the introduction of change in the workplace that is significant in nature. Clause 36.4.3(q), on its plain and ordinary meaning and when read in the context of the clause as a whole, envisages an issue arising in the course of consultation about the proposed change that is associated with the change and which concerns the interpretation or application of an existing provision of the Award. Until the issue is agreed, or is the subject of interpretation by the Commission, the status quo is to prevail and no industrial action is to occur. That is to say, the change will not be implemented until the issue is resolved. 93 In the present case, the significant change sought by Bluescope to manning arrangements had been implemented by virtue of the orders made by O'Neill C on 14 December 2005. There was no basis for invoking the status quo - that is, Mr Beaumont resuming his duties as a forklift operator - because to do so would have been in contravention of the Commissioner's orders and directions. 94 In the course of proceedings Bluescope addressed the provenance and the history of the development of cl 36.4.3 of the Award, in particular, cl 36.4.3(q). The AWU was given leave to file supplementary written submissions in response to what Bluescope had put. Bluescope filed a short written submission in reply. 95 I have considered the supplementary submissions of the parties and they make no difference to the findings and conclusions I have recorded in this judgment. Clause 36.4.3 has no application to the dispute involving Mr Beaumont. 96 I find that Bluescope did not contravene cl 36.4 of the Award. ORDERS