Electrical Trades Union of Australia v. BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1065

Electrical Trades Union of Australia v. BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1065 - NSWIRComm 2005 case summary — Zoe

[45]

"It's important for you to understand that if you lose your driver's licence that could affect the company's ability to find work for you to complete." In his evidence Mr Kelly was not able to recall any incident where an employee has lost his job as a result traffic infringements within the steelworks. The statement made by Mr Kelly was interpreted by the employees as a threat of dismissal in the steelworks which Mr Kelly claimed he had not meant to convey. However, to my mind, the words used by Mr Kelly are open to the interpretation that the employees apparently placed on them. It is those words which appear to me to have been the spark which ignited the industrial action that followed. Much of the problem with this matter could have been resolved if Mr Kelly had been more careful in his choice of words. But any confusion over the matter could more easily have been resolved if the employees did not seem bent on adding to the problem rather than working through it in an orderly fashion. 24 Mr Gentle highlighted the fact that in the previous month there had been four instances where drivers were going the wrong way on the same road. They were not suspended and he questioned why Mr Di Puglia and Mr Dickson should have been singled out for suspension on this occasion. It is a claim by Mr Tomlins in this hearing that BlueScope Steel has not adopted a consistent approach to safety issues of this kind and that Mr Di Puglia and Mr Dickson received penalties which were not provided in earlier incidents. 25 From that point the issue escalated into an industrial confrontation between the electrical trades personnel and BlueScope Steel management to almost unmanageable proportions. I have to say the conduct of both sides added nothing to the resolution of the issue in dispute. I appreciate that the employees believed they had a genuine grievance on behalf of Mr Di Puglia and Mr Dickson and a concern that the 10 point driving demerit scheme in operation internally by BlueScope Steel on roads in the steelworks, which the employees regarded as arbitrary and unfair, may possibly be used against them in disciplinary measures subsequently taken against them. But it would clearly have been better if they had brought those concerns through the ETU to the attention of the Commission by way of a S.130 notification rather than embarking on what appears to me to be a form of industrial action which complicated the resolution of the matter and led to loss of wages by them which they are now seeking to recover.

[78]

39 In that light, I now turn to discuss the principle issues that remain in dispute between the parties, which I am satisfied are linked. Firstly, it should go without saying that issues of workplace safety are fundamental to work in the steelworks and the employees must accept that any safety guidelines laid down by BlueScope Steel management in that connection, including the 10 point demerit system for driving on internal roads, is ultimately in their interests to establish a safer working environment. The employees should appreciate the need for safety and ensure that they work always in a safe manner. But I do not regard safety concerns as primarily a disciplinary matter and that does not make the 10 point demerit system for driving a proper basis for dismissal of an employee alone, as the employees seem to believe Mr Kelly had been implying in his comment to them on Tuesday, 27 July, 2004. 40 That is especially the case since driving demerit points are given for parking infringements which may have nothing to do with workplace safety at all. I accept that some parking infringements may have an ingredient of workplace safety involved with them, such as parking in an area which makes difficult access for large vehicles or ambulances for emergencies at the steelworks. But many parking infringements should have no element of safety attached to them. And the fact that parking infringements incur a higher number of demerit points [6] than failing to give way [5], overtaking in a dangerous manner [5], failing to stop at a stop sign [5], failing to secure a load [4], exceeding the required speed by in excess of 15km per hour [3] and careless driving [2] is surprising to me and suggests that the demerit driving system should be reviewed. This case has highlighted what I believe are anomalies in the driving demerit system which BlueScope Steel management should take up with Serco in an effort to provide a less arbitrary and more rational approach to driving safety at the steelworks.

[79]

41 BlueScope Steel management should assess a range of factors when it considers the termination of an employee. As far as the Commission is concerned, I would expect BlueScope Steel to properly weigh up a range of issues in considering whether or not to dismiss an employee. Essentially, BlueScope Steel management must always act fairly, both substantively and procedurally, in dismissing an employee - they must give their employees a "fair go", to use the time honoured expression supported by Sheldon J of the former State Industrial Commission in Re Loty and Holloway and the Australian Workers' Union (1971) AR 95 at p.99. After all, dismissal is the ultimate disciplinary step for an employer to take and, even where there are grounds for the termination of an employee's services or to otherwise discipline an employee, it remains open to the Commission to examine the severity of the steps taken in the light of an employee's otherwise satisfactory employment record [Pacific Power v. Crump (1993) 48 IR 296 at p.302]. 42 Mr Tomlins has suggested in his submissions that BlueScope Steel management has not adopted a consistent approach to safety breaches involving traffic infringements on the steelworks site in the past. In some cases where there was a traffic infringement on an internal steelworks road there was no unpaid suspension at all. I have to say that the evidence before me in this hearing in that respect is somewhat equivocal and Mr Dearden has submitted that I should reject it. I propose to do so. Each case should be considered in the light of its own facts and not with reference to some other incident. Moreover, in the light of the current attitude of BlueScope Steel management to safety matters in general at the steelworks, it appears to me that considerably greater emphasis is now being placed on the need to eliminate any safety breaches by employees. There can be no argument over that development. The strong emphasis now placed on safety issues by BlueScope Steel management in its cardinal rules on safety is, of course, in the interest of the employees themselves who benefit from it with a safer working environment.

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