BlueScope Steel (AIS) Pty Ltd formerly known as BHP Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales and Ors - [2004] NSWIRComm 21 - NSWIRComm 1999 case summary — Zoe

NSWNSWIRComm

BlueScope Steel (AIS) Pty Ltd formerly known as BHP Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales and Ors

[2004] NSWIRComm 21

Industrial Relations Commission (NSW)|1999-12-03|Before: Boland J, Mr P

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1999-12-03

Before

Boland J, Mr P

Catchwords

12/02/2003
12/04/2003
02/05/2004 DATE OF JUDGMENT: 02/19/2004

Source

Original judgment source is linked above.

Catchwords

12/02/200312/04/200302/05/2004 DATE OF JUDGMENT: 02/19/2004

Judgment (148 paragraphs)

[1]

CITATION : BlueScope Steel (AIS) Pty Ltd formerly known as BHP Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales and Ors [2004] NSWIRComm 21 PROSECUTOR BlueScope Steel (AIS) Pty Ltd formerly known as BHP Streel (AIS) Pty Ltd

[2]

PARTIES : DEFENDANTS Australian Workers' Union, New South Wales Electrical Trades Union of Australia, New South Wales Branch Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch FILE NUMBER: IRC 2153, 2154, 2155 of 2003 CORAM: Boland J Enterprise Agreement - Steel industry - Prosecution for contravention - Application for recovery of civil penalty - Application for injunction - Sections 357 and 359 of Industrial Relations Act 1996 - Direction to attend stop work meeting - Dumping of hot metal - Held one defendant contravened enterprise agreement - Summonses against two other defendants dismissed - Proceedings adjourned for hearing re penalty and costs and injunction CATCHWORDS : Contravention of industrial instrument - Enterprise agreement - Steel industry - Prosecution for contravention - Application for recovery of civil penalty - Application for injunction - Sections 357 and 359 of Industrial Relations Act 1996 - Direction to attend stop work meeting - Dumping of hot metal - Held one defendant contravened enterprise agreement - Summonses against two other defendants dismissed - Proceedings adjourned for hearing re penalty and costs and injunction LEGISLATION CITED : Evidence Act 1995 Industrial Relations Act 1996 BHP Steel (AIS) Pty Ltd and Australian Workers' Union, New South Wales and others [2003] NSWIRComm 125 Briginshaw v Briginshaw (1938) 60 CLR 336 Higgins v Avoca Estate Agency Pty Ltd [1999] NSWIRComm, unreported, 3 December 1999 CASES CITED : John L Pty Limited v Attorney-General (NSW) (1987) 163 CLR 508 Stanton v Abernathy (1990) 19 NSWLR 656 Johnson v Miller (1937) 59 CLR 467 R v Saffron (1988) 17 NSWLR 395 HEARING DATES: 10/13/2003; 12/02/2003; 12/04/2003; 02/05/2004 DATE OF JUDGMENT: 02/19/2004

[27]

Objects of this Clause 9.1.1 One of the key pillars that supports the ability of the Companies to have an effective and efficient business is the ongoing compliance by the parties and all employees with the obligations in this clause in respect of hot metal arrangements and meeting urgent customer needs. 9.1.2 The commitment and compliance with the obligations prescribed in this clause are significant in that they recognise the paramount importance of satisfying the Companies' customers each and every day and the close linkage between customer satisfaction, business performance and employment security. In addition they recognise the importance of protecting the security and integrity of the Companies' assets and not wastefully destroying product. 9.1.3 The parties recognise that to achieve these goals and maintain secure employment, they must manage their differences without allowing these differences to result in the destruction of product or major disruption to the Companies' customers. 9.1.4 The parties understand that only by satisfying customers and developing markets can the Companies deliver the desirable benefit of ongoing security of employment. 9.1.5 The obligation to comply with the arrangements contained in this clause in respect of hot metal and meeting urgent customer needs does not restrain, or seek to restrain, the taking of industrial action which does not result in non-compliance with those obligations. The parties are however committed to working together to provide a workplace where issues are resolved without recourse to industrial action. 9.1.6 The obligations imposed by this clause apply to all parties and all employees at all times, regardless of the reasons for or the nature or the extent of industrial action (i.e. whether limited to a particular part or parts of the Companies' operations or involving the whole of such operations). 9.1.7 The obligations imposed by this clause require that employees covered by this Agreement perform as directed the necessary work (for the purposes of this clause) which is part of their usual duties and are not to be taken as requiring 'staff' employees to undertake such work instead of employees covered by this Agreement. 9.1.8 The hot metal arrangements provided for in this clause are designed to preserve the interests of those engaged in the taking of industrial action by requiring that the Companies not deal with slabs produced (in the sense of further processing and dispatching the slabs) until the industrial action ceases except as provided for in sub-clause 9.3.6. 9.1.9 Similarly, the proposal for the meeting of urgent customer needs does not require all product to be distributed but rather only that part of it requiring urgent dispatch and subject to the provision of information and appropriate consultation as specified in this clause. 9.2 Compliance with this Clause and Linkage with Employment Security 9.2.1 There must be strict compliance by all parties with the terms of this Agreement concerning hot metal arrangements (sub-clause 9.3) and meeting urgent customer needs (sub-clause 9.4) during the course of any industrial action. There must be no breaches of these provisions. 9.2.2 The taking of steps during the course of any industrial action in breach of these requirements would be a serious matter and one requiring significant and urgent attention in any dispute resolution processes. Any breach would be a paramount consideration for the Commission in the exercise of its powers under the Act as to industrial disputes. 9.2.3 A breach of the provisions concerning hot metal arrangements (sub-clause 9.3) and meeting urgent customer needs (sub-clause 9.4) may result in the removal (in part or whole) of the employment security provisions specified in clause 8 of this agreement. Any such removal shall not relieve the employees concerned of their obligations to comply with the requirements of this clause 9. 9.2.4 An application to remove the benefits of security of employment from any employees may be made by the relevant Company by notification under the Act of an industrial dispute. The Companies shall bear the onus of making out a case for such removal. The determination of such an application shall be governed by the considerations referred to by the Commission in the Recommendation of Walton J - Vice President, dated 13 May 2002, particularly at paragraph 95. The Commission's determination shall be binding on the parties. 9.3 Hot Metal Arrangements 9.3.1 Plant operations will continue at normal production rates unless there is industrial action, which extends more than 8 hours, in one of the following major departments and where that action would prior to this Agreement have resulted in the dumping of hot metal. The major departments are: Blast Furnaces, Rail Operations, BOS and Slab Caster. 9.3.2 Recognising that this provision is designed to avoid destruction of product and not to retain normal operations in the event of industrial action in one of the above areas, the Blast Furnaces will, where the industrial action in one of the major departments referred to in sub-clause 9.3.1 runs for more than 8 hours, operate at a reduced level. That level will be nominally 90% of full production level - that being the level necessary to maintain stable furnace operations and to return to normal operating levels immediately after the industrial action. 9.3.3 All iron that is at the BOS at the time the industrial action commences will be processed as normal. 9.3.4 Slabmaking operations will be sufficient to ensure that there is no hot metal dumped as a result of industrial action. Generally it is expected that this will require consistent 2-machine casting on any 2 machines as may be required. It is noted that, where possible, generally No. 2 and No. 3 machines would be utilised. 9.3.5 Slabs will be processed to the extent necessary to ensure the integrity of the product. 9.3.6 Subject to subclauses 9.3.3, 9.3.5 and 9.3.7 all slabs produced during the course of industrial action shall be stored at locations selected by the Company and will not be further handled, dispatched or processed until the actual cessation of the industrial action, provided that slabs shall be further handled (but not dispatched or processed) to the extent necessary for reasons of safety or to enable effect to be given to the objects of this Clause and the requirements of this sub-clause 9.3. 9.3.7 Slabhandling operations will ensure that slab is stacked in the Slab Yard or as directed by the company in an efficient and effective way. Where the industrial action is in the Slab Yard area, slab will still be produced and that slab will be stacked and stored in an effective and efficient way as directed by the Company. 9.3.8 The parties' commitment to "no dumping of iron" requires that support functions necessary to sustain the safety and operating integrity of the blast furnaces, however provided, will continue through the industrial action. 9.3.9 No employee or union will direct or encourage any employee or contractor in an associated area to take action that may have the effect of circumventing the intent and operation of these arrangements - namely that Blast Furnaces continue to operate and hot metal is not dumped in the event of industrial action. 9.3.10 The Company shall provide the Unions each day with a list of the location of all slabs stored in accordance with these hot metal arrangements during the course of industrial action.

[34]

19 Robert William Heycott is the prosecutor's Production Control and Scrap Supply Manager. He has been employed by the prosecutor for 21 years and has professional qualifications in metallurgy, computing and logistics. Mr Heycott explained aspects of the steel making process and observed in his affidavit that: Due to the need to maintain continuous casting by the Slab Caster, the Steelmaking process must be scheduled to ensure exact timing of ladle delivery to each of the 3 casters in the Slab Caster. … 10. The Company utilises 31 operating torpedo ladles. The Company can also place hot metal in hot metal pots. The maximum hot metal which the Company could hold by these means is approximately 3,000 tonnes. However, from a practical point of view, an amount of 1,600-2,000 tonnes is the most which can be comfortably held at any one time. As indicated above, any hot metal produced by the blast furnaces which exceeds the ability to be held in torpedo ladles will need to be dumped. This is to ensure there are sufficient torpedo ladles to receive hot metal from the blast furnaces. The torpedo ladles can be insulated to allow hot metal to be held for up to 36 hours. However, desirably, this would never be for more than 16 hours. However, all of this must be placed in the context of normal blast furnace output (ie both Nos 5 and 6 blast furnaces) being approximately 600 tonnes per hour. Hence, any interruption to normal work of more than a 2-3 hours will place the Company in a position of dumping hot metal. If hot metal needs to be dumped, it is taken from the Blast Furnaces to "21 area" by locomotive and does not reach the BOS. 11. It is the Hot Metal Coordinator who determines when there is a need to dump. This will occur when there are not enough torpedo ladles to accept blast furnace output rate. 12. In the afternoon of 20 February 2003 I was telephoned by my second in charge, Bob Glasgow. He made me aware of a written union notification calling a full stop work meeting at 7.30 am on Friday, 21 February 2003. At the time, I was in Melbourne, returning from a visit to Western Port. He told me he had been involved in Slabmaking management meetings, and that the managers would meet with Slabmaking employees to communicate the Company's expectation that employees would abide by the no dumping requirements of the Enterprise Agreement during the stop work meeting. … 14. At about 3.30 am on 21 February 2003, I was telephoned by my Process Coordinator on shift, Dave Wyper. Mr Wyper told me that Andy Gillespie and a number of Rail Operations delegates had been involved in discussions on the plant. I was told by Mr Wyper the outcome of those discussions. I was made aware a black ban had been imposed on the placement of torpedo ladles at the Hot Metal Weighbridge. … 18. … on the night shift of 20 February i.e morning of 21 February 2003, the Company dumped hot metal on 3 occasions for "industrial" reasons totalling an amount of 1,248 tonnes of hot metal dumped. … 21. … on the day shift of 21 February 2003, the Company dumped hot metal on 3 occasions for "industrial" reasons totalling an amount of 1,114 tonnes of hot metal dumped.

[50]

28 Mr Staff explained his involvement in the events on the day and evening preceding the stop work meeting as follows: 8. On Thursday, 20 February 2003, I saw a copy of the combined unions' notification about a Steelworks wide stop work meeting to be held at 7.30 am on Friday 21 February 2003. A copy of the notification I saw is annexed ... I cannot remember where I saw the notice. However, as a result of it, the Superintendents for Slabmaking (that is, me, Gerry Mahoney, Peter Chandler, Ross Schuback and Gerry Whelan) met with Ray Peters, Manager Slabmaking. We decided to come in at the beginning of night shift on 20 February 2003 and speak to our respective night shift crews (who were rostered from 11.20 pm on 20 February 2003 to 7.20 pm on 21 February 2003) to ensure that in accordance with the BHP Steel Port Kembla Operations, Enterprise Agreement 2002 (the EA ), they understood they would be expected to continue to process metal throughout the night shift leading up to the commencement of the stop work meeting. 9. I went home in the afternoon of 20 February 2003 and then returned to work at about 10.45pm. Once at work, I arranged for the BOS Furnace area night shift crew (that is, shift 2) to meet with me in the crib room. 10. Wayne Felton, BOS Furnace Supervisor, and I met with the night shift crew at about 11.20pm. All of the night shift crew rostered to work that day were present. I asked if they had seen the notification of the stop work meeting. Most said, "No". I could not see any copies of the unions' notice in the crib room. I held up a copy of the notice … and gave a copy to one of the employees and asked him to read it aloud so everyone would know what the situation was. He did so. I reminded the employees of the obligations under the EA about not dumping hot metal. I said we would expect them to work their shift, and for day shift to also work to ensure that hot metal would be processed in accordance with the EA. 11. As a result of my discussion with the night shift crew, I understood that they were prepared to work their shift and continue to process hot metal. I then left for home. It was about 11.55pm. 12. At about 2.00 am on Friday 21 February 2002, Mr Felton telephoned me at home. We had a short conversation. He telephoned me twice more at 5 minute intervals giving me updates. 13. At this point I decided to go into work to ensure that my crew was not being harassed or intimidated into doing something they did not want to do. 14. I arrived at the BOS Furnace area at about 2.30am. I met Mr Felton at the BOS office and we then went to the No. 2 Control Room. There were 2 staff and one operator there. They said to me words to the effect of: "Everything's going okay. We're all right." 15. Mr Felton then went to the Hot Metal Weighbridge. Mr Felton called me on the PA from the Weighbridge and told me that Andy Gillespie and two other people were there (that is, in addition to the one operator in the mule cabin who operates the mule, which is part of the Hot Metal Weighbridge). 16. I immediately went down to the Hot Metal Weighbridge. I met with Mr Felton. We went in to the mule cabin (which is, in effect, a small office/control room) together. Andy Gillespie, Bill Collins, a Rail Operations delegate, and someone else I assumed was also a Rail Operations delegate were present. I recognised Andy Gillespie from his photograph in the local newspaper. I had not met him before. I was able to identify Bill Collins because his name was on his hard hat. I already knew that someone of that name was a Rail Operations delegate. I introduced myself to Andy Gillespie, Bill Collins and the other delegate. They did not reciprocate and introduce themselves. There was then a discussion to the following effect: Andy Gillespie said in a matter of fact tone: "The BOS has to stop pouring hot metal." I said: "The BOS will continue to use the hot metal as per the EBA. The EBA was signed off and agreed to." Andy Gillespie then started talking about the Commission hearing of 20 February 2003. He said: "There were no directives from the hearing. Grayson said the company had no right to keep operating during the stop work meeting. That means hot metal will be dumped." I said: "From the information I have, there was a recommendation that all hot metal should be processed during the meeting as normal." Andy Gillespie: "I was at the hearing; you weren't. What would you know. It's 3 in the morning, so just stop pouring hot metal so everyone can go home and get some sleep. I don't have time to debate it." I said: "I have all night. You don't have permission to be on my plant." Mr Gillespie: "I have a right to come onto the plant and talk to people any time I like. I do not have to get permission from some kind of shift superintendent." I asked Mr Gillespie: "Who asked you to come in and what's the issue?" He did not respond to my question. However, he again said: "I have the right to access this site any time. You don't know anything about right of access." I said: "Do you have some identification - I don't know you. You don't have permission to be on my plant." Andy Gillespie pointed to the AWU symbol on his shirt and said: "That's my right of entry, now you fuck off." I again said to Andy Gillespie: "This is my plant. You do not have permission to be here." Mr Gillespie responded: "This isn't your plant. You're just a number." Mr Felton then said: "My people want to stay at work as per the agreement. I support that." Andy Gillespie said words to the effect of: "What do you want, a medal?" 17. The ensuing conversation involved repetition of what had already been said. For my part, I repeated to Andy Gillespie that he did not have permission to be on the plant and for his part, Andy Gillespie repeatedly told me to "fuck off." 18. Mick Crehan (BOS Hot Metal Attendant) then arrived at the Hot Metal Weighbridge. Andy Gillespie and the two Rail Operations delegates walked outside the mule cabin and joined him. Mr Felton and I followed. I was concerned that Mick Crehan would be put under pressure to stop pouring hot metal from the torpedo ladles on the Hot Metal Weighbridge, so I said to Mick Crehan words to the effect of: "Do you want to talk to these guys or not?" Mick Crehan said: "I just want to hear what they have got to say." 19. Mr Felton and I stood about 2 metres apart from Mick Crehan, Andy Gillespie and the two Rail Operations delegates while they spoke. 20. Shortly afterwards, Andy Gillespie and the two Rail Operations delegates left the Hot Metal Weighbridge. They headed in the direction of the external traffic lights. 21. Steve Bosinovski (another mule operator) then arrived at the mule cabin. He had been on a crib break. I said to him words to the effect of: "I will be staying around for the rest of the night. Wayne and myself will be down from time to time to make sure everything's all right. I won't let you be harassed or intimidated in any way." Steve Bosinovski said words to the effect of: "That's okay. We'll continue to pour any metal that's on the Weighbridge." 22. At 3.30 am I became aware of reports that the Rail Operations employee may have placed a ban on continued use of the Weighbridge. It was at that point unclear to me what this meant, but in any event shortly thereafter I was advised that the Rail Operations employees were ceasing delivery of hot metal to the Weighbridge. 23. At about 4.17am the BOS Furnace area finished processing the last heat and tapped it out. The plant was then idle. 24. Later that morning, at about 6.00am, I prepared handwritten notes of what had occurred on the night shift 20/21 February 2003. A copy of my handwritten notes is annexed ... 25. At about 10.00am on 21 February 2003, I arranged for my handwritten notes to be typed and made some additions to them at this time consistent with my recollection and knowledge. A copy of my typed notes is annexed …

[54]

32 Mr Felton corroborated Mr Staff's version of events of the evening of 20 February. In particular, he said: 15. At approximately 1.00 am on 21 February 2003, I was contacted by Mr Steve Bosinoski, operator 3 (mule operator) who said to me words to the following effect: There are two rail operation union delegates in the mule cabin with me. They want to know why the BOS is going to continue to operate during a stop work meeting which was contrary to the union's direction. They've taken my name down. 16. I was concerned that Mr Bosinoski was being intimidated and so I went down to the mule cabin. The time was 1.12 am. I saw Mr Bosinoski with two employees from the Rail Operations Department, Mr Lelio Petinga and Mr Bill Collins. I had a discussion with Mr Collins, in the presence of Mr Bosinoski and Mr Petinga, in words to the following effect: I asked: What are you doing? Mr Collins showed me the notice from the unions advising of the stop work meeting. I recognised this notice as the same as the notice I had seen at Port Kembla Steelworks on 20 February 2003, a copy of which is annexed … Mr Collins asked: Why are you operating during the stop work meeting? I replied: A decision was made by my people at the start of shift that they would abide by the EBA and process all hot metal. Mr Collins and Mr Petinga appeared annoyed at my response. Mr Collins replied: I want to talk to them and the union delegate. I then said: A ladle treatment delegate has already spoken to them after he had a conversation with Andy Gillespie and their original decision to process the hot metal had not changed. Mr Collins then said: Hot metal won't be placed on the weighbridge then from around 4.00 am. Mr Collins and Mr Petinga then left the mule cabin. 33 Additionally Mr Felton said that: 26. At approximately 4.00 am, I was advised by Mr Staff that the employees in the Rail Operations Department had refused to shunt any more hot metal onto the weighbridge. I contacted Mr Johnston and asked him: What's going to happen to the hot metal? Mr Johnston replied: The Acting Superintendent is coming in to speak to my people 27. The hot metal that had been delivered to the weighbridge was processed by the operators on my shift. Although Mr Collins said hot metal would not be placed on the weighbridge from about 4.00am, in reality no hot metal was delivered from about 2.30 am on 21 February 2003. 28. Later that morning, I typed a record of the discussions that night. Annexed … is a copy of my record of the nights incidents which I had typed.

[57]

36 Mr Whelan deposed that: 8. At about 6.00pm on 19 February 2003 I met with the Slabmaking maintenance employees on the afternoon shift and reminded them of their obligations under the BHP Steel Port Kembla Operations Enterprise Agreement 2002 (these employees were rostered to work day shift on Friday 21 February 2003). I said words to the effect of: "We cannot dump, we have to keep making steel and that includes maintenance." 9. At about 7.20am on 20 February 2003, I telephoned Mr Tomlins. We had a discussion about the maintenance changes. In the course of the discussion I said words to the effect of: "You and Wayne have been set up with the stop work meeting tomorrow as the decision for the meeting has already been made. You've been given the bums rush by Andy. I have seen the flyers. They have already been printed, and that's before the delegates have had their meeting." He replied in words to the following effect: "I haven't got one of the flyers but I know what's going on." Later that day, I wrote notes in my notebook of my discussion with Mr Tomlins. A copy of the notes of my discussion with Mr Tomlins that I wrote in my notebook are annexed to this affidavit … On or about Friday 21 February 2003, after the stop work meeting had occurred, I wrote further notes in my notebook of my discussion with Mr Tomlins. A copy of these further notes that I wrote in my notebook are annexed to this affidavit ... 10. Between about 10.30pm and 11.30pm on Thursday 20 February 2003, I met with the Slabmaking maintenance employees on afternoon shift and night shift and advised them of the requirement to continue to produce steel under the terms of the Enterprise Agreement. The maintenance employees in BOS and Caster agreed and understood that they had to be there at work. 11. On Friday 21 February 2003, the maintenance day shift employees attended the Slabmaking Department ready to perform work except for one employee who attended the stop work meeting. Two shift electricians who had attended for work then left the Slabmaking Department as production had stopped.

[58]

37 Gerard Francis Mahoney is employed by the prosecutor as Casting and Slab Manager. The company has employed him since 1981 and in his present position (under various titles) since 1995. Mr Mahoney is responsible for the whole of the slab casting operations, which involves about 100 operators, members of the AWU, and about 16 staff employees in supervisory positions. In describing the events of 20 February Mr Mahoney deposed as follows: 9. On Thursday, 20 February 2003, I saw a union handbill about the stop work meeting to be held at 7.30am on 21 February 2003. I saw the handbill in the BOS canteen window. A copy of the handbill is annexed to this affidavit … 10. Between 4.00pm and 5.00pm on Thursday, 20 February 2003, the BOS management team met again to discuss the union handbill. It was decided that all BOS superintendents would attend night shift (commencing at 11.20pm) and speak to the Shift 2 crews about complying with the EBA and not dumping hot metal. 11. On Thursday, 20 February 2003, I went home between 6.30pm and 7.00pm and then returned to work at about 11.30pm. I first went to the dispatch and turntable aisle pulpits of the Slab Caster (which are effectively 2 small adjoining control rooms) and spoke to 2 operators, Tony Veleski and Todor Dimovski. I said to them words to the effect of: "There's a stop work meeting planned tomorrow, but as far as this department is concerned, the agreement we have with you is that the casting process will continue and no hot metal will be dumped." Both said words to the effect of: "If the slabs keep coming, we'll continue to cast." 12. After speaking to Mr Valeski and Mr Dimovski I went to the Casting Floor crib room. About 6 operators were present, including Mark Everett, Steve Thistlethwaite, Vic Upeski, John Bleatas and Archie Reinfrank. Once again, I said words to the effect of: "There's a stop work meeting planned tomorrow, but as far as this department is concerned, the agreement we have with you is that the casting process will continue and no hot metal will be dumped." 13. I had a discussion with the operators. At the conclusion of the discussion I was satisfied that the operators would continue to cast slabs as long as the supply chain kept going. 14. I telephoned Ray Peters. I left a voicemail message for him to the effect of: "I believe my people will continue to cast metal as long as the metal continues to arrive." 15. I then went home. By that time it was about 12.45am on 21 February 2003.

[64]

41 In his second affidavit Mr Hillier deposed that he recorded onto a compact disk a "discussion which had itself been recorded on the Company's voice recording system of the Rail Transport Communication system from 3.32 am on Friday 21 February 2003." In his second affidavit Mr Hillier said as follows: 6. The compact disk which is exhibited to me … records a discussion between Bill Collins, Frank Aquilina and David Piccirillo. Mr Collins and Mr Aquilina are employed by the Company in the Rail Operations Department as locomotive drivers. Mr Piccirillo is employed by the Company in the Rail Operations Department and was employed in the position of Rail Transport Shift Supervisor, a staff supervisor role, on the night shift of 20 February 2003. Typically, the communications between the Rail Transport Shift Supervisor located in the Road Controllers' office and the locomotive driver would be for the purpose of allocating road movements for the locomotive. 7. On the night shift of 20 February 2003, Mr Piccirillo was based in the Road Controllers' Office at Port Kembla Steelworks. I know Mr Collins to be a delegate of The Australian Workers' Union, New South Wales in the Rail Operations Department and have had dealings with him in that capacity for about 6 years. Each of Mr Collins, Mr Aquilina and Mr Piccirillo were rostered to work on the night shift of 20 February 2003 ie the early morning of Friday, 21 February 2003. 8. The discussion recorded on the two way radio is to the following effect: David Piccirillo Sorry ah Bill William Collins [indistinct] . . . loco Frankie got David Piccirillo Frank's got 27 William Collins I just be happy if he has only one ladle on William Collins 27 Frankie David Piccirillo And I think Joe just told him their on 1c ah Billy William Collins Andy just asked me tell him just in case he was a bit gibberish about it. I'll check what he wants . . . [indistinct] . . Frank Aquilina 27 control David Piccirillo 27 Frank Frank Aquilina East side of 5 to the auto David Piccirillo East side down to the auto road right 27 Frank Aquilina East side of 5 to the auto - road right - thanks William Collins 27 Frankie Frank Aquilina 27 William Collins Yeah I don't know if you know we've, eh black banned the weighbridge and theyv'd asked for one ladle only - can you just shove one ladle in there while they make the pot Frank Aquilina Could you repeat that please Bill William Collins Yeah there's a black ban on weighbridge as from ½half an hour ago but their asking for one ladle to make a pot - so we'll load one ladle on the weighbridge - one ladle only Frank Aquilina Yeah that's what we've got now ah Bill William Collins Good stuff mate - after that we don't get any more metal over to the dump after that Frankie Frank Aquilina Righto 9. I am able to identify the voice of Mr Collins because I have worked with him in my roles within the Company's Human Resources Department and Rail Operations Department and have had dealings with him for about 6 years. Mr Collins also has a very distinctive accent. I am able to identify the voice of Mr Piccirillo because I have worked closely with him over the last 12 months or so (since I commenced in the Rail Operations Department in about June 2002). I am able to identify Mr Aquilina because he was referred to by name ie "Frank" and he is the only person of that name who works in the Hot Metal Area. As noted above, each of Mr Collins, Mr Aquilina and Mr Piccirillo were rostered at work on the night shift of 20 February 2003 ie the early morning of Friday, 21 February 2003.

BlueScope Steel (AIS) Pty Ltd formerly known as BHP Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales and Ors

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (148 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (7)

Cited By (1)