Bluescope Steel Ltd (formerly known as BHP Steel Ltd) v The Australian... [2006] NSWIRComm 338 | Case summary

1 From late 2002 to mid-2003, the Commission was involved in firstly conciliating and then arbitrating a difficult manning and shift pattern dispute concerning the Uncoated Department at Bluescope Springhill Works located at Pt Kembla. The proposed change in manning affected employees working at the Coupled Pickled Coal Mill ("CPCM") in the Uncoated Department who were members of The Australian Workers' Union, New South Wales ("the AWU"). On 3 July 2003, Grayson DP issued a decision essentially approving orders sought by Bluescope that resulted in the reduction of production employees on each shift from 10 to 7 in number. The implementation of that decision left to be determined questions as to the method of selecting surplus employees and consequential issues as to how the work would be performed with reduced manning and how it might affect issues such as crib time. The decision of Grayson DP was reached after an arbitration hearing extending over 11 days dealing with a variety of issues, including the practicality of Bluescope's proposal, implications for the workforce as well as safety issues. 2 On the afternoon of the day that Grayson DP handed down his decision, members of the AWU employed in the CPCM took strike action in relation to which Bluescope notified the Commission of the existence of a dispute. The dispute was listed before Grayson DP for compulsory conference in the afternoon of 3 July 2003 and was relisted again in the afternoon of 4 July 2003 on the application of Bluescope. That notification followed the failure of employees to return to work contrary to a Recommendation made by the Deputy President. On 4 July 2003, Mr Gillespie (the Branch Secretary of the Pt Kembla South Coast and Southern Highlands Branch of the AWU) provided certain undertakings that bans and restrictions on the normal performance of work at the CPCM would be lifted. Despite that undertaking, on 7 July 2003, there was a refusal to work reasonable overtime leading Bluescope to seek to have the matter relisted before the Deputy President. Indications were given that, in the absence of cessation of industrial action, Bluescope would press for the issuing of dispute orders. However, the proceedings were adjourned until 10 July 2003. 3 On 8 July 2003, Bluescope sought an urgent relisting of the proceedings because of continuing difficulties with the refusal to work overtime and its effect on production. Bluescope indicated that, in the absence of cessation of industrial action, it would press its application for the making of dispute orders. The matter was listed before Grayson DP in Sydney on 8 July 2003 at 4.00 pm. Bluescope notified Mr Gillespie by facsimile of the listing and attached a copy of the dispute orders that would be sought at that hearing. No representative of the AWU attended that hearing. 4 At the resumed hearing before the Deputy President in the afternoon of 8 July 2003, a certificate of attempted conciliation was issued and the hearing continued to deal with Bluescope's application for dispute orders. At the conclusion of that hearing, the Deputy President issued the following dispute orders: The Industrial Relations Commission of New South Wales makes the following dispute orders under sections 137 and 138 of the Industrial Relations Act 1996: 1. From the time these orders take effect as specified in Order 2: (a) The Australian Workers' Union, New South Wales (the "Union"), its officers and employees, and its members employed by BHP Steel Limited at the Coupled Pickled Cold Mill ("CPCM") of the uncoated department located in its Springhill Works at Port Kembla in New South Wales, must immediately cease and refrain from taking any form of industrial action, including any strike, stop work meeting, ban, limitation or restriction on the performance of work; (b) the Union and its officers and employees must immediately cease and refrain from organising, encouraging or inciting any industrial action (including any strike, stop work meeting, ban, limitation or restriction on the performance of work) contrary to Order 1(a); and (c) the Union and its officers and employees must take all reasonable and necessary steps to ensure that Order 1(a) is complied with, including, but not limited to advising its members of these orders by 9.30 pm on Tuesday 8 July 2003. 2. Production employees employed by BHP Steel Limited in the CPCM in the Uncoated Department at the BHP Steel Limited's Port Kembla operations shall perform such work as BHP Steel Limited shall from time to time reasonably require and in particular, for the time being: (a) there shall be seven production employees (inclusive of inbuilt crib relief) employed on each shift to perform all work associated with the CPCM operations provided that there is a minimum line operating crew of six production employees while the plant is operating; and (b) ancillary to the line manning is the Raw Coil Co-ordinator, whose primary function is to manage feed stocks for the line and who will also assist in unloading of rakes and other forklift work in peak times as required provided the Raw Coil Co-ordinator is to be paid appropriately according to the work performed. 3. These orders will take effect on and from 6.30 pm on Tuesday, 8 July 2003 and shall remain in force for a period of three months. 4. For the purposes of service in accordance with the Industrial Relations Commission Rules 1996, without limitation to other means of service, these orders may be served on the Union and its officers, employees and members: (a) by facsimile to the registered office or Wollongong office of the Union; or (b) by handing a copy of these orders to an officer or employee of the Union. 5 On 26 August 2003, Bluescope (under its former title BHP Steel Ltd) applied for a summons under s 139 of the Industrial Relations Act 1996 claiming that the AWU had contravened the dispute orders made by Grayson DP on 8 July 2003 and had done so in the period from 21 July to 14 August 2003 and, in particular, on 23 July, 28 July and 14 August 2003. The application alleged that, on and from 21 July 2003, members of the AWU employed by Bluescope at the CPCM, Pt Kembla had failed to make themselves available to work reasonable overtime contrary to the dispute orders. This action had resulted in stoppages to normal operations on 24, 25 and 29 July 2003 and 1,5, 6, 7, 8 and 14 August 2003. There were allegations of a number of stopwork meetings, together with an allegation that the union and its officers and employees had not immediately ceased and refrained from organising, encouraging or inciting any industrial action contrary to the dispute orders; that the AWU and its officers and employees had not taken all necessary steps to ensure compliance with the dispute orders and that the AWU and its officers and employees had acted in contravention of the dispute orders. After the case had been programmed for hearing, it became apparent that there was an important issue arising in relation to the operation of the provisions of the Act dealing with dispute orders. That issue was to be decided by a Full Bench and, by consent of the parties, the matter was adjourned until the Full Bench had determined that issue. 6 When the matter was listed before the Court in August 2005, the parties announced that the AWU would consent to a finding of being in breach of order 1(b) of the dispute orders issued by Grayson DP on 8 July 2003, being a breach with respect of the organising, encouraging or inciting an industrial action by way of a stopwork meeting of employees, members of the union on 23 July 2003 and a further similar meeting on 28 July 2003. On the basis of that plea, Bluescope withdrew the remainder of the matters particularised in the Summons. Counsel for the AWU on that day placed on record an admission that the AWU, by organising a stopwork meeting which occurred on 23 July 2003 and, by further organising a stopwork meeting which occurred on 28 July 2003, had contravened paragraph 1(b) of the dispute orders made by Grayson DP. 7 On the hearing to receive evidence and submissions on penalty in relation to the accepted breaches of the dispute orders, Blusecope read affidavits of Andrew Lloyd, Gabriel Menna and John Penno. Mr Lloyd's affidavit, sworn as the solicitor for Bluescope, placed before the Court a number of the formal matters including notifications of dispute and the terms of the orders sought by Bluescope at various times. An Agreed Statement of Facts was tendered by the parties and is an Annexure to this judgment. 8 At the relevant time, Mr Menna had been employed by Bluescope as President, Springhill at the company's Springhill Works. Mr Menna stated that immediately after the CPCM manning decision was given by Grayson DP, operators at the CPCM engaged in strike action in protest at the decision. Between 8 July and 22 July 2003, the company had communicated at length with the operators and the AWU about the decision and issues arising from implementation of the decision. Mr Menna was personally involved in discussing these issues with the operators and Mr Gillespie. On 9 July 2003, an issue had arisen about crib breaks and there were further discussions with Mr Gillespie. Mr Menna was aware, from discussions with Mr Penno (then the Uncoated Manager) that the AWU had been provided with an assessment process to be used to identify surplus employees at the CPCM and that the company had received no response from the union. On 22 July 2003, Mr Penno informed him that an AWU notice had appeared in the CPCM concerning a four shift stopwork meeting to be held the following morning for all CPCM operators. After consulting with the company's internal advisers, Mr Menna sent a facsimile to Mr Gillespie at the AWU office advising that the meeting was in breach of the dispute orders and requesting him to cancel the meeting and to make alternative arrangements that did not interrupt the operation of the plant. Mr Menna did not receive any response to that facsimile. 9 On 25 July 2003, Mr Penno informed Mr Menna of a second AWU notice that had appeared in the CPCM regarding a stopwork meeting for all AWU members at the Springhill Works to take place on 28 July 2003 about CPCM and related issues. Mr Menna then sent another facsimile to Mr Gillespie at the AWU office in Wollongong advising that the meeting was in breach of the orders issued by Grayson DP and, in particular, expressing disappointment that the meeting of employees had been called when discussions between Mr Gillespie, CPCM employees and CPCM management had already been planned for later that same day. Mr Menna requested Mr Gillespie to cancel the meeting and to make alternative arrangements that did not interrupt the operations of the plant or were in breach of the dispute orders. The facsimile warned Mr Gillespie that, if the meetings proceeded or other action was taken in contravention of the dispute orders, the company reserved its right to take such action as might be appropriate without further notice. No response was received from the AWU. 10 Mr Penno, at relevant times, was the Uncoated Manager at Bluescope's Springhill Works. Mr Penno gave details of ongoing communication in relation to the implementation of the decision of the Deputy President. During the evening of 8 July 2003, he had discussions with Mr Gillespie who claimed that the new manning levels were unsafe and that there were a number of safety issues that had not been addressed. Although Mr Penno thought that particular issue had been raised and had been addressed in the arbitration proceedings, he agreed to further discussions, although he found out the next day that the CPCM had not operated that night. On 9 July 2003, an issue had arisen about working through the crib break and, again, safety issues were raised by Mr Gillespie. By this time, Mr Penno had satisfied himself that there were no genuine safety issues. 11 On 10 July 2003, a four crew meeting of CPCM employees was held on site. Mr Penno understood its purpose was to permit the AWU to speak to the members to ensure compliance with the dispute orders and to discuss other matters associated with the implementation of the Deputy President's decision. This meeting lasted for approximately 30 minutes and after the meeting there was an industrial conference with company staff, Mr Gillespie and AWU delegates. Bluescope agreed to pay employees who had been on day shift for attendance at this meeting as a sign of good faith in the progress towards implementation of the manning decision. 12 On 16 July 2003, the company provided the AWU with the operator assessment process to be used to identify surplus employees in the CPCM. The company received no response to its correspondence about this matter from the AWU. On 21 July 2003, Mr Penno had organised the CPCM to be stopped from 6.30 am to allow for the communication by shift staff to all operators of the results of the assessment process. In the afternoon of 22 July 2003, Mr Penno became aware of an AWU notice calling a four crew meeting of CPCM operators on the following day in the AWU offices in Wollongong. No one from the AWU or from CPCM employees had spoken to Mr Penno about this meeting. He tried to contact Mr Gillespie but was unable to do so. He was aware that Mr Menna had sent a facsimile to Mr Gillespie advising that the meeting was in breach of the dispute orders and requesting that the meeting not take place. 13 On 23 July 2003, Mr Penno was aware that there was no work being performed at the CPCM at 6.30 am and the work did not start until 9.30 am. Mr Gillespie later telephoned and arranged a meeting that day. At that meeting, Mr Gillespie advised that there would be another stopwork meeting the following Monday if the company did not deal with the issues. Mr Penno said that there was no need for another stopwork meeting and it was agreed that there would be another meeting with Mr Gillespie on 24 July 2003 to further discuss employees' concerns regarding the selection criteria for surplus operators. That meeting took place with representatives of the AWU and management and a number of matters were discussed. It was agreed that they would meet again on the following Monday, 28 July 2003 at 12.30 pm to further discuss the issues and that, in the meantime, the company would consider the matters that had been raised. 14 On 25 July 2003, Mr Penno went to the CPCM during the morning and saw an AWU notice calling another stopwork meeting of all members of the AWU at Springhill for 7.00 am on 28 July 2003. The purpose of the meeting was said to be to report on CPCM matters. At 6.30 am on 28 July 2003, Mr Penno arrived at the CPCM and noticed that work had stopped. He noticed a number of employees gathered in the carpark at approximately 7.15 am with work commencing at the CPCM after 8.00 am. 15 Mr Penno was cross-examined about the dispute orders sought by the company and issued some five days after the Deputy President's decision. As a result of that decision, production employees on shift were to be reduced in number from ten to seven and it was put to him that there was genuine opposition by employees, particularly as redundancies were necessary. While Mr Penno recognised those concerns, he did not agree that there were major changes to the work as the tasks would remain the same: how they were organised was to be changed. The union had argued that these changes would place excessive work requirements upon them and an issue had arisen as to how to take crib breaks under the 4 x 12 shift arrangement. 16 Mr Penno agreed that Bluescope attempted to implement the new manning scale on 8 July 2003, but he said there was to be a period of assessment and denied that was to take place without consultation. He disagreed with the proposition that he did not discuss the implementation or know how to implement the decision. He thought that had all been discussed before the Deputy President. He agreed that it had not yet been worked out when to take crib breaks. He accepted that, 10 days after implementation, the company issued detailed instructions on how the system was to operate. He accepted that a number of concerns were raised by employees, including safety. On 8 July 2003, there had been a refusal to work with the numbers then available because it was alleged to be unsafe to work with those numbers. Work was stopped and there was a discussion of issues and more issues were raised on 9 July 2003. He did not agree that this had occurred because there had been no discussion about the implementation of the new manning. Mr Penno did accept that the company did not sit down with the union to discuss the details of the implementation. He agreed that the company implemented the new manning scale before selecting the surplus employees or assessing where they might work or if they were needed to be made redundant. Mr Penno said that, at this stage, a number of issues had quickly arisen but assessments were being made about selecting surplus employees although the manning reductions had been implemented. The company had tried to implement the decision quickly but understood there was sensitivity regarding the loss of jobs. Ultimately, the company did not allow voluntary redundancy but selected people on the basis of the skills the company required. Mr Penno agreed that it was not until 18 July 2003 that detailed guidelines were issued regarding the implementation of the reduced manning. 17 It was put to Mr Penno that in some of the communications from the company to the AWU there was no indication that a reply was required or requested. It was put to him that, by 21 July 2003, when the employees were informed who was to be made surplus, two union delegates had been made surplus and a number of people were upset at this decision. He was aware that some in the workforce had a perception that the company had targeted the delegates. However, the men had been allowed to meet alone and discuss what had happened. Following that meeting, they provided the company with a document of issues to be discussed. 18 After the 21 July 2003 meeting of employees, Mr Gillespie and delegates had raised what was referred to as "remaining issues" and there were a number of such issues, including the process for selection of surplus employees. Many employees were unhappy with the whole arbitration. 19 In relation to the meeting on 28 July 2003, Mr Penno agreed that the union raised concerns about the use of 12 hour shifts and also surplus employees. There were issues of fatigue and 12 hour shifts being unsafe. Mr Penno said that they were discussed and addressed. It was put to Mr Penno that after the meeting of 28 July 2003, a number of problems had arisen and the union submitted that the employees were not coping with the job to be performed under the new manning and the company agreed to place an extra person on shift. The increase in manning to 8 resolved the issue and Mr Penno agreed that compromise could have ended the issue earlier. This extra manning had not been agreed to immediately but occurred a good while after the stopwork meetings. It was agreed that the use of the eighth person in the manning scale took a long while to come about but it finally ended the dispute. That dispute probably ended in 2004 and was no longer an issue. 20 For the AWU, affidavits sworn by Mr Gillespie and a union delegate, Mr Sukoski, were read. Mr Gillespie, as Branch Secretary, said that, after the decision by Grayson DP, there were safety concerns raised by the employees because of the reduced manning. Apart from how the work was to be performed with fewer people, there were issues of fatigue arising from the operation of 12 hour shifts and confusion as to when crib time could be taken. Mr Gillespie said he tried to address these issues in meetings with the company without calling a union meeting and had informed Mr Meena and Mr Penno that there were safety issues. The company did not seem to think there were safety issues but, on 10 July and 18 July 2003, had issued documents setting a timetable to assess the implementation of the decision of the Deputy President and then providing guidelines for implementing the decision. Mr Gillespie said that a meeting was necessary to discuss the implementation of the decision and, as there were four shifts working on the CPCM line, it was only a meeting of all shifts that would allow the members to discuss the issues together. Mr Gillespie said he needed to be informed by the employees themselves what they regarded as safety concerns and needed direction from the members as to what matters were to be raised with the company. The 28 July 2003 meeting of all Springhill Works' employees was called to report on the selection criteria for CPCM and seniority issues that would effect not only CPCM but all sections. A number of employees at the CPCM line had either been required to accept voluntary redundancy or had been transferred to other departments. It was felt by members that the company was using the selection criteria as an opportunity to get rid of people they did not like, such as union officials, two of whom were transferred from the CPCM line. After the stopwork meetings, there were ongoing discussions with the company about increasing the manning level. Eventually, in 2004, the company agreed to increase the online manning level from seven workers to eight. Mr Gillespie was not required for cross-examination. 21 Mr Sukoski was a union delegate during the dispute over manning levels on the CPCM line in 2003. Mr Sukoski said a number of safety concerns had to be addressed after the decision was made by the Deputy President to reduce the level of manning. The company had reduced the manning levels without actually deciding what work was to be done by each of the new workers under the new system and how problems were to be solved. The online crew had been reduced from ten people to seven and the shifts were 12 hour shifts. Mr Sukoski described the nature of the work involved and the effect of the reduced manning on that work. 22 The safety concerns raised were that people would be required to work much more quickly, take fewer breaks and rush their job. There was no indication when the crib break was to be taken and this had not been decided by the company. The issue was important because, when there were seven people on the line instead of ten and the line needed to be in continuous operation, care had to be taken about who was able to take a crib break during the 12 hour shift. There were people working more than five hours without a proper break. One employee was a diabetic and needed specific times to be known and set for his crib break. There were concerns about the removal of scrap bins and the unavailability of people to assist when there was a risk of injury in performing the work, there was a greasy area to work in, the welder's job was for two people but now had been reduced to one, the reshuffling of crews meant that people were working with each other for the first time and their work habits were unknown thus raising safety issues. There was a particular problem with the Mill One operator. The meeting of 23 July 2003 took place after there had been discussions between the union and the company about safety issues but with no resolution of those matters. A stopwork meeting was the only way all four crews could discuss these safety issues at the same time. The employees expressed their concern and stated they were under considerable stress in performing this work under the new regime. The meeting on 28 July 2003 was called to discuss selection criteria at the CPCM and seniority issues throughout the Springhill Works. Twelve employees of CPCM had been affected by the changes, either losing their jobs by voluntary redundancy or being relocated. The company's criteria for selection was supposed to be the selection of the best men but it seemed that the company was trying to remove people on other grounds with two union delegates being moved to other areas. Level 2 operators seemed to have been given preference over more experienced Level 3 operators. Seniority issues and the way in which workers were selected were of concern to the CPCM workers and all other Springhill Works' employees. Continuing negotiations over the manning levels eventually led to an increase in manning level from seven to eight in 2004. 23 In cross-examination, Mr Sukoski said that he had read the decision of Grayson DP, although not recently, but could not remember the decision dealing with the safety issues as a result of the reduced manning sought. He was aware that the union had not appealed the decision and accepted that the agenda for the meeting on 23 July 2003 raised no issue of safety nor did the meeting on 28 July 2003. He was aware that the union did not appeal the dispute orders. THE SUBMISSIONS 24 It was submitted for Bluescope that the two stopwork meetings were clearly in breach of the dispute orders made by the Deputy President. It was to be noted that the first meeting held on 23 July 2003 involved the department that was the subject of the actual arbitration, yet the stopwork meeting held on 28 July 2003 extended to the whole of the Springhill Works although it involved many people not affected by the arbitration decision. Nevertheless, that stoppage, insofar as it related to the CPCM, was in breach of the orders and the AWU accepted that was so. From the Agreed Statement of Facts, it was clear that Mr Gillespie organised the meetings and on both occasions, Bluescope, through Mr Meena, had attempted to contact Mr Gillespie, warning him that the meetings were in breach of the orders and seeking to have those meetings take place at a time that would not interfere with production and would not breach the dispute orders. The AWU had not replied to either request. Mr Gillespie had acted in clear defiance of the Commission's orders. 25 It was accepted that on neither occasion had the company notified a dispute although aware that stopwork meetings were to take place. It was submitted that there could be no criticism of Bluescope for doing so as they had been involved on three occasions prior to 8 July 2003 in proceedings before the Commission in an attempt to resolve issues arising from the arbitration. In those proceedings, the Deputy President had made strong recommendations but there continued to be industrial action although it was noted that, by 4 July 2003, Mr Gillespie had given an undertaking that there would not be any further stoppages of work. It was clear that this undertaking given by Mr Gillespie persuaded the Commission at that time not to make the dispute orders sought by Bluescope. 26 Despite the undertakings, further bans and limitations continued and were not lifted leaving Bluescope on 8 July 2003 to relist the matter and press its application for dispute orders. Mr Gillespie was informed of the hearing and that the company would seek those Orders, but he did not attend. Despite what had been put on behalf of the AWU, Bluescope had gone out of its way in an attempt to resolve the problems that the employees perceived to exist even prior to the implementation issues. The entire work of a shift had been lost and paid for on the evening of 8 July 2003 and that allowed the employees to meet and discuss their concerns. It was to be noted that many of the issues continued to be raised had been dealt with by the Deputy President in his decision. The union had not lodged an appeal against that decision. 27 There had been an exhaustive arbitration before the Commission and Bluescope's claim for a reduction in manning from ten to seven was found justified and permissible. Ultimately, an increase to eight had been agreed to by the company and the parties had been able to resolve their differences. The differences, however, were not resolved by having stoppages of the plant or indeed the whole of the Works. 28 A reference was then made to the decision of the Full Bench in Australian Workers' Union (NSW) v Bluescope Steel (AIS) Pty Ltd (2006) 151 IR 153 as to the assessment of penalties under s 139. Reference was also made to the Decision of Boland J in Bluescope Steet (AIS) Ltd v AWU and anor (No 2 ) [2005] NSWIRComm 210 as to the appropriate considerations when dealing with a breach of a dispute order. Boland J was influenced by a judgment of the Federal Court dealing with the penalty to be imposed for a breach of the provisions concerning freedom of association arising under the Workplace Relations Act 1996, but recast those considerations in light of the particular statutory regime applying under the Industrial Relations Act 1996. His Honour listed the following matters as relevant and appropriate to be considered in deciding upon a penalty for a breach of a dispute order: (a) the circumstances in which the relevant contravention took place (including whether the contravention was undertaken in deliberate defiance or disregard of the dispute order); (b) whether the person found to have been in contravention of a dispute order has previously been found to have engaged in conduct in contravention of an earlier dispute order (in this respect see s 139(4)(b), which provides for higher maximum penalties where there has been an earlier contravention); (c) the consequences of the conduct found to be in contravention of the dispute order; (d) the need, in the circumstances, for deterrence; (e) any relevant subjective factors including undertakings regarding future conduct. 29 In supporting the adoption of that approach, Bluescope noted that there were no relevant subjective factors in favour of the union in this case. Mr Gillespie, although he had sworn an affidavit for the purposes of the proceedings, had expressed no regret for his actions and had exhibited no contrition. He had proffered no undertaking that the union would not, nor would he as Branch Secretary of the union, participate in similar action again. That is precisely what might be expected to be contained in such an affidavit in these types of proceedings. Here, Mr Gillespie as the relevant union official knew the terms of the dispute orders and knew their effect, yet called stopwork meetings in circumstances where the employer asked him not to do so and specifically pointed out that such action was in breach of the dispute orders. Those warnings were ignored. These matters were relevant to the seriousness of the breach: there were no subjective features that would go to mitigating a significant penalty being imposed. 30 For the union, it was put that the stopwork meeting involving the whole of the plant did not involve a contravention of the dispute orders but that only the CPCM line stoppage was in contravention and that point was accepted by the company. The relevant consideration in this case was the nature of the industrial action itself compared to other circumstances where penalties had been imposed. Here, there was no strike action over a number of days but two stopwork meetings of comparatively short duration, namely, three hours and one and a half hours. The evidence disclosed that the number of persons involved was comparatively small, the key persons covered by the order involved no more than 12 in total and perhaps less. The Commission was not dealing with industrial action of a significant type. It was also important to recognise that the industrial action was constituted by stopwork meetings to enable employees to deal with their genuine concerns arising from the alteration to manning that had been introduced by the company. There was nothing in the evidence to suggest that the meetings were aimed at coercing the company into adopting some conduct that they would not otherwise have agreed to - the stopwork meetings were the means by which the concerns could be expressed, issues raised and information gathered for the purposes of further discussions with the company. The 28 July 2003 stopwork meeting dealt with selection criteria and seniority issues having wide implications and beyond the few workers engaged on the CPCM lines. Those concerns gathered from those meetings were then taken up with the company in the context of the dispute as a whole. The meetings took place for the purposes of advancing the negotiations and attempting to resolve outstanding issues with the company. There was no evidence that suggested that these meetings were intended to overturn the manning proposal which had been approved by the Deputy President and there was no evidence that these stoppages had caused any economic loss or damage to the employer. 31 It was clear from the evidence that the two meetings occurred in the context of a difficult dispute involving issues of great sensitivity to the particular employees. Mr Penno had accepted that the employees were concerned about changes in the operational practice of their plant and the potential effects on safety. There were also concerns about the loss of jobs as a result of the reduced number required to man the plant. Nothing in the evidence suggested that these concerns were other than genuinely held by the employees. It was to be noted that it was on 21 July 2003 that the employees had been notified of the outcome of the selection process and Mr Penno conceded that it caused a great deal of concern amongst employees: firstly, two union delegates appeared to have been selected as surplus, raising a feeling that they had been selected to be moved for improper reasons and secondly, the junior employees as compared to senior employees had been favoured for retention of their positions. 32 The concerns expressed by the employees were genuine concerns and these were recognised by the company in holding discussions with the union. It was also relevant that this difficult and sensitive dispute was not handled particularly well by Bluescope: they had prematurely introduced the seven man crew prior to detailed procedures being promulgated as to how the manning would work in practice. The company did not identify surplus employees before introducing the new manning but did so after the manning had started to be introduced and while the issues were trying to be resolved by discussion. The workforce was faced with this simultaneous position and it caused anger amongst them. After the event, a compromise was reached which appeared to address many of the concerns raised by the AWU in the first place. The AWU had continually stated, including before the Deputy President, why the proposal was unworkable and that position was partly vindicated by the compromise eventually reached long after the two stopwork meetings had taken place. If that compromise had been adopted earlier, it would have avoided the resentment amongst employees and made the stopwork meetings unnecessary: the compromise demonstrated that there was some legitimate basis for the concern the employees had raised during this period. 33 It was also relevant that a considerable time had now passed and this dispute had long been resolved. The Commission was not in a position where action had to be taken, to advance the resolution of the dispute or to bring about an end to the dispute. Those matters were not relevant to the current task facing the Commission. 34 The AWU had avoided a potentially lengthy proceeding by making appropriate concessions as to breaches on two occasions arising from the holding of the stopwork meetings. That was a matter that could be taken into account by the Court in mitigating the penalty and there was a real benefit in saved Court time by the concessions proffered by the AWU. It was accepted that those admissions and concessions may not have been made at the first available opportunity and were made at the beginning of the hearing but it was to be noted that the original Application for Summons by Bluescope included breaches on ten particular days and, by agreement, that was reduced to two particular days. In addition, following the approach of Boland J there was little role for general deterrence in the setting of an appropriate penalty. 35 As to subjective matters counsel had been instructed to inform the Court that the AWU regretted that it had contravened the dispute orders made by the Deputy President. The point made by Bluescope that no apology had been tendered by Mr Gillespie was not a significant point because it was the organisation that was proceeded against and it was the organisation that was apologising and expressing regret. The case was therefore one within a very low range of seriousness: there should be no penalty in light of the antiquity of the dispute which had long been resolved and whereby no real purpose would be served by imposing a penalty or, in the alternative, a penalty at the very low end of the scale only should be imposed. DELIBERATION 36 The evidence and submissions addressed by the parties had proceeded on the basis that the matter might be concluded at a later date having regard to an appeal filed by the AWU in relation to breaches found to have taken place concerning earlier dispute orders made in February 2003. Kavanagh J had imposed penalties in relation to that matter and the existence of the appeal left unresolved whether in the present case the lower penalty regime of $10,00 for the first day and $5,000 for each subsequent day of contravention would apply or the higher penalty provision applicable under s 139(4)(b) where a penalty had previously been imposed for contravention an earlier dispute order, namely a maximum penalty of $20,000 for the first day and $10,000 for each subsequent day on which the contravention continued. In late October 2003 the parties advised that the union's appeal against the penalties imposed by Kavanagh J had been discontinued and that they both accepted that the maximum penalty that could be applied to the contravention in the present proceedings was under the penalty regime contained in s 139(4)(b). The parties did not wish to present any further submissions.

Bluescope Steel Ltd (formerly known as BHP Steel Ltd) v The Australian Workers' Union, New South Wales.

At a glance

Court

Decision date

Before

Source

Judgment (21 paragraphs)

Parties

Cases Cited (3)

Cited By (4)