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

LEGISLATION CITED: Industrial Relations Act 1996

Australian National Airlines Commission v. Robinson (1977) VR 87 Clark v. Pittwater RSL Club Limited (1998) 84 IR 309 Electricity Commission of New South Wales v. Swieringa (1975) AR 504 Furnace Demolishers Case (1960) AR 670 Kellogg (Australia) Pty Limited v. National Union of Workers (1998) 89 IR 391 CASES CITED: Re Loty and Holloway and the Australian Workers' Union (1971) AR 95 Mackie v. Weinholt (1880) 5 Qld SCR 211 Masters, Mates and Engineers (Geelong) Tugboat Award (1970) 28 IIB 1176 Pacific Power v. Crump (1993) 48 IR 296 Teacher's Case (unreported)

HEARING DATES: 02/08/2005; 02/09/2005; 04/19/2005; 04/26/2005; 05/23/2005

APPLICANT Warwick Tomlins Electrical Trades Union of Australia LEGAL REPRESENTATIVES:

RESPONDENT Aaron Dearden Blake Dawson Waldron

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Electrical Trades Union of Australia and BlueScope Steel (AIS) Pty Limited

Dispute notifications under S.130 of the Industrial Relations Act, 1996 re disciplinary action over alleged safety breach

1 On Tuesday, 3 August, 2004 a notification of an industrial dispute was lodged for and on behalf of BlueScope Steel (AIS) Pty Limited under S.130 of the 1996 Industrial Relations Act when electrical service employees, members of the Electrical Trades Union of Australia, commenced an indefinite strike. The industrial action was taken following the suspension of two electrical trades employees (Mr Tony Di Puglia and Mr Des Dickson) for allegedly breaching road safety rules, ie driving in the wrong direction on a road on which they were not permitted to drive - Coal Prep Road. The matter was allocated to Bishop C who on Wednesday, 4 August, 2004 convened compulsory conference proceedings in the Commission's premises at 90 Crown Street, Wollongong and recommended that the employees resume work. They did so. She also directed the ETU to lodge a separate S.130 notification over its claims on behalf of the two electrical trades employees, which it has done.

2 The S.130 notifications by BlueScope Steel and the ETU came before Bishop C on Wednesday, 11 August, 2004 and Wednesday, 8 September, 2004 (also in Wollongong). She had issued certificates of attempted conciliation but she did not proceed into arbitration. On an application made under S.173 on behalf of BlueScope Steel, the matters were reallocated to me for arbitration. I set the matters down for a mention on Tuesday, 28 September, 2004 (in Wollongong), essentially for programming purposes. I directed the parties to file and serve their evidentiary material and programmed the matters for hearing on Tuesday, 8 February, 2005, Wednesday, 9 February, 2005, Tuesday, 19 April, 2005, Tuesday, 26 April, 2005 and Monday, 23 May, 2005 (in Wollongong). The hearing was accompanied by an inspection of a part of Coal Prep Road on Tuesday, 8 February, 2005.

3 Mr Tomlins represented the ETU in the proceedings. He called Mr Di Puglia and Mr Dickson to give evidence in the hearing. He also called Mr Barry Gentle, another electrical trades staff member (an instrument fitter) employed by BlueScope Steel (and an ETU delegate at the site) as a witness in the hearing. Mr Dearden represented BlueScope Steel in the hearing. He called three witnesses to give evidence in the hearing: Mr Vince De Santis, the bulk operations manager, Mr Milco Stojanoski, the electrical services manager, and Mr Kenneth Kelly, the instrumentation co-ordinator.

4 Whilst the matter had been set down for hearing, I believed that there was scope for further conciliation of the issues in dispute which I considered was a more productive manner to proceed in the circumstances. The conciliation had reached a stage on Tuesday, 8 February, 2005 where the parties sought that I adjourn the matters until Wednesday, 9 February, 2005 for them to consider their respective positions overnight. I had taken the view that further conciliation was appropriate essentially for two reasons, viz:

1. I accepted that industrial action by the electrical trades staff of BlueScope Steel was atypical for them and, consequently, there appeared to me to be a better prospect of resolving the issues in the interests of both parties in an informal manner which would not necessarily be possible in arbitrated proceedings.

2. I had formed the impression that because of the delay of several months that had arisen with advancing this matter to arbitration, to ventilate the issues in dispute again in formal proceedings may be simply a case of raking over dead coals.

Nevertheless, my further attempts at conciliation were unsuccessful. It is a matter of regret to me that the matter proceeded to arbitration because I believed that the issues in dispute were always capable of being addressed more effectively in conciliation than the more formal manner dictated by arbitration. Nevertheless, the parties have left me no choice. That having been said, I now turn to examine the evidence in this hearing.

5 On Monday, 19 July, 2004 Mr Di Puglia drove an electrical services vehicle along Coal Prep Road to attend to work at the steelworks. Mr Dickson accompanied him in that vehicle. Their task on that day had been the removal of a valve at a site adjacent to the gas holders, a job scheduled by the cryogenic plant strategist and allocated to them by a supervisor. They had performed an initial job safety environmental analysis for that job and the authority to work planner had been signed out to them. They drove from Coke Ovens Road and left into Coal Prep Road, across a railway line. They were reported to BlueScope Steel management for having driven the wrong way on Coal Prep Road.

6 After Coal Prep Road crosses a railway line, it turns sharply to the right, goes through a bend and extends for approximately one kilometre in a straight line to the sinter plant. On the right side of Coke Ovens Road there are signs to indicate that there is no left turn into Coal Prep Road and that, in any event, access to that road is denied to any employee who has not been inducted for coal handling roads. There is comparable signage on Coke Ovens Road on the same side of the road for traffic coming the other way, ie on the opposite side of Coke Ovens Road to the entry to Coal Prep Road. Immediately after the railway line, and before the road turns to the right, there are similar signs in place on both sides of the road. At the time of the incident there were two signs on both sides of the road: a sign denying access to drivers who were not inducted on coal handling roads and below it signs which indicated that the road goes only one way. When Coal Prep Road turns to the right there are further signs to indicate that the road is one way and designating the road as a heavy vehicle road.

7 The site adjacent to the gas holders where Mr Di Puglia and Mr Dickson were working on Monday, 19 July, 2004 is off a brief arm that extends from the left of Coal Prep Road shortly after the railway crossing and the road signs. To access the site the two employees entered Coal Prep Road, albeit only briefly, and exited it going the wrong way. According to Mr Dickson in his evidence there is another access to the gas holders (not known to Mr Di Puglia evidently) but Coal Prep Road is the more direct approach.

8 Mr Di Puglia and Mr Dickson claim that they did not observe any of the "no entry" signs which indicated that Coal Prep Road was one way and they did not know that to be the case. They had observed the sign which denied entry to employees who were not inducted to coal handling roads. Neither Mr Di Puglia nor Mr Dickson were inducted to drive on coal handling roads but, since they were only travelling a short distance down the road and to the left of the signs, they did not believe that there was a real safety issue involved. They both believed that the restriction that only drivers who had been inducted for coal handling applied from the area beyond the place where they were working but the fact remains that they had, in fact, entered a road clearly signposted as having restricted access.

9 Mr Di Puglia had earlier that day travelled alone along Coke Ovens Road in the opposite direction and observed the sign precluding a right hand turn into Coal Prep Road unless inducted for coal handling. He indicated in his evidence in this hearing that at that time he had:

"...wondered to myself if we would be allowed to go into the area and if the current inductions were sufficient. After some thought, I concluded that we were only going a short distance down the road and our induction should be okay to be there..."

I am nevertheless satisfied that to enter Coal Prep Road without the appropriate induction to coal handling does represent a safety issue of some substance and BlueScope Steel is correct in treating the incident seriously.

10 That is especially the position since approximately one month prior to this incident electrical services employees had been re-inducted under the BlueScope Steel road traffic code. That re-induction had been advanced in the light of a driving incident when an electrical services vehicle had been driven by another employee (Mr Alan Kadwell) the wrong way around a roundabout - and for which he received an unpaid suspension of 6 shifts. BlueScope Steel management believed that it was necessary to refresh employees over safety issues and, in particular, make them again familiar with road and rail rules for the steelworks. 11 Subsequently, as part of a "Stop for Safety" programme arranged by BlueScope Steel for presentation to all employees worldwide, the electrical services department held meetings with different groups of employees from Friday, 9 July, 2004 to Friday, 16 July, 2004. In those circumstances, BlueScope Steel management regarded the incident involving Mr Di Puglia and Mr Dickson, which occurred almost contemporaneously with the "Stop for Safety" meetings, with some concern. 12 Mr Lew Troman, a supervisor in the instrument shop, had received a complaint that an electrical services vehicle had driven the wrong way down Coal Prep Road and his investigations later revealed that Mr Di Puglia and Mr Dickson had been the occupants of the vehicle. He spoke to Mr Di Puglia later on Monday, 19 July, 2004 and at midday on Tuesday, 20 July, 2004 brought the matter to the attention of Mr Kelly who instructed Mr Troman to arrange a meeting with Mr Di Puglia and Mr Dickson.

13 Mr Kelly met Mr Dickson first. Mr Troman and Mr Craig Bramble, the electrical services occupational health and safety committee member were also in attendance at the meeting. In the meeting Mr Dickson conceded that he had driven on Coal Prep Road on Thursday, 15 July, 2004 (with Mr Peter Marskell, a supervisor whom I understand was occupying a new role with BlueScope Steel and was not therefore familiar with the job at hand) to check out a work site. Mr Dickson had seen the sign which denied access to the road to all employees except those inducted to coal handling and he had discussed it with Mr Marskell. Because they were travelling only a short distance beyond the sign, they both elected to drive past it. To that extent, Mr Marskell, the more senior employee, must take the chief responsibility for the breach in safety on that occasion.

14 Mr Dickson indicated in his evidence in this hearing that he and Mr Marskell both believed that the signs related to the coke ovens which was beyond the area in which they were working. Mr Kelly recalled Mr Dickson saying words to the following effect at the meeting:

"I admit I drove the wrong way down the road. I didn't see the sign. If I saw the one way sign I would not have done it. I knew I wasn't inducted but we weren't going very far down the road."

The interview concluded with Mr Kelly informing Mr Dickson that he would speak to Mr Di Puglia and would be investigating the matter further.

15 Mr Di Puglia made similar comments to Mr Kelly in his meeting which immediately followed the meeting with Mr Dickson. Mr Di Puglia confirmed to Mr Kelly that he had not known that Coal Prep Road was a one way road, that he had not seen the signs indicating that fact, that he had driven the wrong way on the road and that he had driven past the sign which indicated he was denied access to it, which he had seen. He told Mr Kelly that, since he was travelling only a short distance along that road, he and Mr Dickson thought that it would not have been a problem to drive on the road. Mr Di Puglia claimed that he had not driven on Coal Prep Road before that incident. Mr Kelly informed Mr Di Puglia at the conclusion of the meeting that there would be further investigation over the incident and BlueScope Steel management would consider what further action would take place over it.

16 On Wednesday, 21 July, 2004 Mr Kelly and Mr De Santis interviewed Mr Marskell. Mr Kelly recorded the gist of that interview in the witness statement which provided the basis of his evidence in this hearing, viz:

"...Mr De Santis asked Mr Marskell if he had seen the sign denying entry unless the employee was inducted on coal handling roads or the one way signs. Mr Marskell said that he did not see the one way signs but he admitted he had seen the sign denying entry to an employee not inducted to coal handling roads. Mr Marskell said he discussed the sign with Mr Dickson and both agreed that because they were only travelling from 20 to 40 metres down Coal Prep Road they could ignore the sign. Mr Marskell also said that he was a passenger and was not paying any great attention to where Mr Dickson was driving him..."

Mr Marskell was sent home on pay for 24 hours and Mr De Santis told Mr Marskell that he wanted him to think about what had occurred and that BlueScope Steel would be considering what further disciplinary action it would take over the matter as far as he was concerned. I understand that Mr Marskell received a 5 day unpaid suspension which he has not challenged.

17 In the afternoon of Wednesday, 21 July, 2004 Mr De Santis and Mr Kelly again met Mr Dickson, Mr Di Puglia and Mr Gentle. Mr De Santis emphasised the seriousness of the incident. Mr Kelly claimed that Mr Dickson admitted that "...technically what we did was wrong...". Mr Di Puglia did not speak. Mr De Santis suspended both Mr Di Puglia and Mr De Santis with pay for 24 hours, indicating that a further meeting would take place whilst BlueScope Steel considered what further action to take. The paid suspension of Mr Di Puglia and Mr Dickson was extended until Monday, 26 July, 2004 to allow further investigation of the matter.

18 A further meeting took place on Monday, 26 July, 2004 and Mr De Santis spoke in the following terms:

"...I told you the company was going to investigate this incident further. We have spoken to several people... I have also driven to Coal Prep Road... It is my view you should have seen the one way road signs. They are clear and unmistakable. However, I am more concerned that you deliberately drove into Coal Prep Road after you had seen the induction signs. Your actions were wrong. You have both admitted you knew you were not inducted on Coal Prep Road. You have both completed the road and rail re-induction and you have been to the recent 'Stop for Safety' meetings. You both are aware of the Alan Kadwell incident and you know the Division's approach to a matter like this. I have given some thought to the disciplinary action I am going to take against you. I have considered your explanations and I have taken into account your employment with the company and your employment records. Accordingly I have determined that both of you will be suspended without pay for the rest of the week..."

Ultimately, the two employees received a 4½ day unpaid suspension therefore. They also had the incident recorded against them on their history cards. 19 For driving offences on internal roads for the Port Kembla steelworks there is a 10 point demerit system akin to the system in place for any driver on a public thoroughfare. That system is derived from policy decisions of BlueScope Steel but it is administered for the steelworks by Serco. Mr Di Puglia, the driver of the vehicle, received 6 demerit points. If any steelworks employee accrues 10 or more demerit points it deprives him of the right to drive on the steelworks site. That does not, of course, deprive an employee from driving his vehicle on a public road: the scheme administered by Serco is internal to the steelworks only. The loss of points according to the scheme administered by Serco may also be regarded as a matter which finds its way to disciplinary action for BlueScope Steel employees - but not necessarily, as I understand the position, to dismissal. That is an issue which I will discuss later in this decision as it appears to me to have been a significant factor in the industrial action which was to follow.

20 Mr Dickson recorded in the affidavit which formed the basis of his evidence in the hearing that:

"...our intent was always to do the job safely and that included the driving. It was not our intent to breach road rules and we did not do it intentionally. We also indicated that the sign indicating one way traffic is on the right hand side of the road when coming from the gas holders and your concentration when driving there is on the road, the rail crossing and the job of turning in..."

"...there was no deliberate breach of rules by either Mr Dickson or myself and I believe the penalty was too harsh. I understand that there have been other breaches with only a points penalty applied and can't see why a penalty consistent with that was not applied to us..."

21 Both Mr Dickson and Mr Di Puglia have a previous unblemished employment record. They both indicate that they did not intentionally travel the wrong way up Coal Prep Road: they simply did not see any of the signs that informed them that the road was one way and that access to it was prevented from Coke Ovens Road. I am satisfied that those signs were clear. And, as Mr Dearden suggested in his cross-examination of the two employees, it would be no defence to a traffic violation on a public thoroughfare that the driver did not see a particular road sign. 22 Moreover, Mr Dickson and Mr Di Puglia both knew that Coal Prep Road was denied to employees without proper induction and they chose to enter it, albeit only briefly. They both claim that they were acting on the mistaken belief that the Coal Prep Road was only restricted to them if they drove to the right beyond the bend and they were not intending to do so. But the large vehicles which drove along Coal Prep Road would not stop at the bend. They would travel along the whole of that road and the whole of that road is therefore out of bounds for any employee not inducted to drive along it.

23 At midday on Tuesday, 27 July, 2004 Mr De Santis convened a meeting of all the electrical services employees to explain the circumstances surrounding the suspensions of Mr Di Puglia, Mr Dickson (and Mr Marskall). During that meeting Mr Kelly claimed that he stressed to the employees that:

"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.

26 On Friday, 30 July, 2004 (whilst Mr Di Puglia and Mr Dickson were on suspension) the employees in the electrical services department held a stop work meeting which, according to Mr Gentle, became fairly heated. The employees voted to impose a ban on overtime and on driving vehicles. The resolution of the stop work meeting was to the effect that the bans would be lifted when the suspensions were removed from the history cards of Mr Di Puglia and Mr Dickson and when BlueScope Steel management:

"...changes its attitude to minor infringements without the gross over reaction it has shown with recent events or when a suitable resolution is reached..." The employees also sought further clarification of Mr Kelly's statement concerning the effect of driving infringements on their employment.

27 During the weekend - Saturday, 31 July, 2004 and Sunday, 1 August, 2004 - no overtime was worked by the electrical trades staff. Mr Stojanovski indicated in his evidence that the failure of the electrical trades staff to work overtime was of particular concern to BlueScope Steel because there was a planned shutdown of the packaging products at that time and a 96 hour maintenance programme was scheduled. That type of maintenance programme is arranged every twelve months and, as far as electrical trades staff were concerned, major maintenance work which had not been performed for several years was required by them. 28 In the morning of Monday, 2 August, 2004 the employees convened a second stop work meeting which resolved to lift the ban on overtime but they continued to refuse to drive vehicles in the course of their employment. At an informal gathering the employees informed Mr Kelly that driving:

"...was not part of our job description, so we don't have to do it. The company can arrange for supervisors to drive us or get contractors in. They can drop us around the steelworks..."

29 Not all electrical trades staff drove in the course of their duties. According to Mr Gentle, it is essentially the work that the electricians are called upon to perform which dictated whether or not they drove: some employees did not require to drive in the performance of their duties whilst other employees were required to do so. According to Mr Dickson, those that have driven in the past, were content to do so until the problems they perceived arose over the too rigorous application of the 10 point driving demerit scheme. It was no doubt as convenient to the electrical trades staff to drive themselves as it was for BlueScope Steel management to permit them to do so. In those circumstances, to place a ban on driving was a case of the employees cutting off their noses to spite their face, in my opinion.

"If you are not prepared to drive, then we consider you to still be on strike. Your day to day duties require you to drive. It's an accepted normal part of your roles and that is what the company requires you to do now."

Mr De Santis then spoke to the employees in the following terms:

"I want you guys to lift the ban on driving. I know you are concerned about the action taken against Mr Di Puglia and Mr Dickson and I want you to know the company is willing to discuss your concerns but that can't happen until you return to your normal duties first. You guys have been driving vehicles for over 30 years. You can't just stop doing that overnight..."

A sensible approach, in my opinion, but one that went begging. The informal meeting deteriorated as, according to Mr Kelly, the employees became loud and aggressive, with many employees yelling and swearing at Mr De Santis.

31 In his affidavit Mr Gentle claimed that, in particular, Mr Zoran Mojanovski, an electrical trades employee, was:

"...chased through the instrument workshop and asked to drive on the plant. He refused and was threatened with refusal of duty and an entry being made on his history card. Nobody else was asked to drive and they were all driven onto the plant by supervisors or contractors..." A further meeting of the employees later on Monday, 2 August, 2004 resolved that they cease work. I set that resolution out in full as it summarises the employee's attitude to the issue, viz:

"...As a result of recent events relating to management's reaction to driving infringements on site, a gate meeting was held at 9.00am. The majority of the group expressed feeling unsafe and uneasy driving on the plant, but are still willing to fulfil their duties in the trade they are employed in, providing transport is provided them as driving is not a trade related task.

The resulting reaction from management is that so long as tradespeople were not willing to drive, they are effectively '...on strike...', as driving has been an accepted part of work traditionally. Management have stated that they will not provide transport and that personnel would not be paid, affecting a standing down action, unless they are willing to return to work as per the existing arrangement prior to any action being taken. This would open the way for discussion with the union and that there could be no discussion during any industrial action as per the enterprise bargaining agreement....

The employees ceased work whilst the ETU held further discussions with BlueScope Steel and pursued its claim before the Commission.

32 In the morning of Tuesday, 3 August, 2004 a further gate meeting was convened by the electrical trades staff and following it an industrial conference between BlueScope Steel and the ETU took place. The ETU representative at the meeting was Mr John Thornton, an ETU organiser. He confirmed that the employees, concerned over the disciplinary action taken against Mr Di Puglia and Mr Dickson, were continuing to refuse to drive vehicles. BlueScope Steel management continued to press that the employees drive the vehicles as part of their job. Mr De Santis offered:

"If the employees return to work and resume driving, then BlueScope Steel is willing to review the suspensions and the disciplinary action taken against Mr Di Puglia and Mr Dickson."

"Unless the company withdraws the requirement for employees to drive, then your offer won't secure a return to work. The guys are too worked up."

33 A further gate meeting occurred and the ban on driving remained in place. Mr De Santis was informed by a representative of the employees that "...supervisors or contractors can drive around the steelworks...". Mr De Santis stated that:

"Unless you lift your bans and cease your strike, the company will seek a listing of this dispute in the Commission today and let them decide." Following another gate meeting in the car park, the employees collected their personal items and left to go home, apparently without giving any formal response to BlueScope Steel management of their industrial action.

34 In the morning of Wednesday, 4 August, 2004 a further gate meeting of the employees resolved to retain the ban on driving. Mr Gentle conveyed that resolution to Mr De Santis who responded to him:

"If the employees' position has not changed, then neither has the company's. The matter is listed in the Commission." The employees again left the site and went home. Bishop C recommended a resumption of work in conference proceedings before her on Wednesday, 4 August, 2004 and the employees resumed work later that day. They have also recommenced driving and have continued to drive on site since that time.

35 Mr Tomlins has sought that BlueScope Steel remove the warning notices placed on the files of Mr Di Puglia and Mr Dickson, rescind the 6 demerit points placed on Mr Di Puglia's driving record within the steelworks, pay Mr Di Puglia and Mr Dickson for all time lost during their suspension and pay to the employees all time they lost whilst they had ceased work. He has also sought a determination from me that there is no compulsion on the electrical trades staff to drive vehicles as part of their contract of employment. It is important to consider those claims in the context of what I have jurisdiction to determine in arbitrated proceedings initiated under S.130.

36 For instance, any determination of the duties and responsibilities of the electrical trades staff of BlueScope Steel and whether, in particular, they include driving to and from particular work sites, is essentially a declaration of rights and by virtue of S.154 declaratory relief is reserved for a Full Bench of the Commission, viz:

"(1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed.

(2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought." Hungerford J in Kellogg (Australia) Pty Limited v. National Union of Workers (1998) 89 IR 391 confirmed that position when he stated (at p.392) that:

"…although the arbitration was before the Commission, moved by Kellogg pursuant to S.136(1)(d) of the Act to '…make any other kind of order it is authorised to make…' in relation to the dispute, it was clear that the relief sought arose in the dispute proceedings but was in the nature of a declaration as to the right of Kellogg to implement its proposals having in mind the provisions of the award. By reason of S.154 of the Act, relief of that nature is exclusively within the declaratory jurisdiction of the Commission in Court Session…"

Notwithstanding those comments, however, as a matter of public policy, I would consider that my powers to resolve any industrial dispute should not be fettered in any way. The issue of whether driving forms a part of the work of the electrical trades personnel of BlueScope Steel was a serious dispute between the parties and I believe I should be able address it in this decision.

37 Moreover, in terms of S.136(1)(a) I am authorised in arbitrated S.130 proceedings to:

"...make a recommendation or give a direction to the parties to the industrial dispute..."

In my opinion, my jurisdiction under S.136(1)(a) to give a "direction" provides a very wide power to resolve industrial disputes of this kind. I note that Rule 84 provides as follows:

"A tribunal may generally give all such directions and do all such things as in its opinion will enable expense or delay to be reduced and will help to achieve a prompt hearing of the matters at issue between the parties and will contribute to the expeditious conduct of the proceedings and the just determination of the matter or dispute and the equitable disposal of proceedings."

Rule 84 is therefore primarily concerned with procedure for the determination of an issue in dispute rather than the determination of the issues themselves. 38 Nevertheless, I believe that a direction by a member of the Commission - especially one made under S.136(1)(a) - is something which is final and binding on the parties. For instance, in the unreported decision of the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Connor C) in the Teacher's Case [Matter No. IRC 6326 of 1999] interlocutory directions made at first instance under S.134(2), ie in the conciliation phase of an industrial dispute (and consequently ahead of the issuing of the S.135 certificate of attempted conciliation), still grounded an appeal (with respect to which leave was not ultimately granted). The upshot of that position, to my mind, is that any decision taking the form of a direction that I make on a matter before me, especially after I have issued a S.135 certificate of attempted conciliation and entered the arbitral phase of a dispute, is a final determination of the issue in dispute and, subject to a right of appeal, binding on the parties to the dispute.

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.

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.

43 As I indicated earlier in this decision, Mr Di Puglia and Mr Dickson have an unblemished employment record, however. Naturally enough, they wish to preserve it. As such, the penalty imposed on them - 4½ days unpaid suspension to both employees, the 6 driving demerit points from Serco for Mr Di Puglia (which is more than half of the 10 points which would deprive him of the right to drive on the steelworks site) and a warning notice placed on the history cards of both employees - was excessive, in my opinion. 44 There has apparently been a certain amount of confusion surrounding this matter. I accept, as Mr Dearden submitted, that each steelworks employee is ultimately responsible for his own safety and should not perform work which he is not authorised to perform. But the problem for Mr Di Puglia and Mr Dickson, in fact, arose with the allocation of work to them in the first place. If neither of them was inducted to drive on Coal Prep Road, they should not have been allocated that work in the first place and BlueScope Steel management should ensure in future that work is only allocated to employees who are inducted to perform it. Nevertheless, any confusion over the matter in the past should now be resolved in everybody's interests. Coal Prep Road is clearly out of bounds to employees who are not inducted to coal handling roads. That must now be appreciated by all BlueScope Steel employees - and since the incident involving Mr Di Puglia and Mr Dickson on Monday, 19 July, 2004 has not apparently been repeated, it would appear to me that the employees now understand this.

45 It appears to me that Mr Dickson was following the approach of a supervisor (Mr Marskell) on Thursday, 15 July, 2004 when he entered Coal Prep Road and Mr Di Puglia was adopting the approach possibly suggested by Mr Dickson when he entered Coal Prep Road on Monday, 19 July, 2004: it was a domino effect. It may have been better for the signs to have been placed at the start of Coal Prep Road rather than after the railway lines because the fact remains that any driver would have to already be some distance in Coal Prep Road before he saw the signs and to back a vehicle out from of the road at that point across a railway line and into Coke Ovens Road would itself be a fairly hazardous course of action. But there are other signs in the area to indicate that the road was one way and that access was denied from Coke Ovens Road and it is surprising and disappointing to me that Mr Di Puglia and Mr Dickson did not see them - or were prepared to ignore them.

46 Whilst I was informed by Mr Dearden in the hearing that the loss of driving demerit points does not necessarily amount to a disciplinary measure, the evidence suggests that it may be a factor which BlueScope Steel would weigh up when it considers the dismissal of an employee. Mr Kelly alluded to that when at the meeting with the electrical trades staff on Tuesday, 27 July, 2004 he indicated the importance that employees not lose demerit points in the scheme administered by Serco - "...if you lose your driver's licence that could affect the company's ability to find work for you to complete...". Serco acts independent of BlueScope Steel. It would be necessary for BlueScope Steel to take up the number of demerit points Mr Di Puglia received with Serco. I believe it should do so.

47 Whilst I support the approach that BlueScope Steel has taken to safety issues in general at the steelworks, I emphasise that driving is not the primary function of members of the BlueScope Steel electrical trades staff and therefore loss of points on an internal demerits system is not, in my opinion, as significant as a ground for dismissal as, say, a transport worker whose principal work is, in fact, driving. But those comments raise the second dispute between the parties - whether the employees are obliged to drive as part of their duties.

48 Mr Tomlins argued that driving was not in the job descriptions for the electrical trades staff. He asserted that they had formerly been content to drive for their own convenience and that of BlueScope Steel management. An employee is not under any obligation to obey an order which involves him in doing work which he has not been employed to perform [Mackie v. Weinholt (1880) 5 Qld SCR 211 and Clark v. Pittwater RSL Club Limited (1998) 84 IR 309 at p.311]. But it seems to me that driving is an ancillary function for the electricians, especially since they have been driving to and from particular work sites at the steelworks for some considerable time already - since 1968, according to Mr Dearden's written submissions - and, according to BlueScope Steel management, are continuing to do so now, notwithstanding the ETU claim before me in these proceedings. Mr Kelly claimed in the written statement which formed the basis of his evidence that:

"...during the 38 years that I have been employed by the company, employees in the electrical services department have driven motor vehicles, or equivalent, at the steelworks as part of their normal duties. At no time have employees ever objected to driving motor vehicles..."

There may be some dispute in the evidence over the length of time that the electrical trades personnel have driven electrical services vehicles in the course of their employment: there is no dispute that they have done so for some considerable time. Mr De Santis claimed in his evidence that driving by electricians was "...part of the culture..." at the steelworks.

49 Past practices are factors in determining the duties of a particular line of work. As Beattie J of the former Commission commented in the Furnace Demolishers Case (1960) AR 670 at p.681:

"…an award does not necessarily contain all the terms of the contract of employment between an employer and employee bound by it. They may agree on additional terms and, moreover, a usage in a particular trade or occupation may become part of the contract and binding on the parties..."

I am satisfied that driving for the BlueScope Steel is a practice or "usage" in that context and the employees, or at least some of them, are obliged to drive as part of their duties.

50 And, consequently, and finally, because of the refusal of the employees to drive for a period of time and, indeed, leave the work site over two days - on Tuesday, 3 August, 2004 and Wednesday, 4 August, 2004 - it follows that their refusal following directions from BlueScope Steel management was tantamount to a strike by them and deprives them of payment for such times. Employees who refuse to perform work as directed must appreciate that they may as a consequence deprive themselves of payment of any wages whilst their refusal remains in place.

51 The position was explained by Ludeke J - Deputy President of the Australian Conciliation and Arbitration Commission in the Masters, Mates and Engineers (Geelong) Tugboat Award (1970) 28 IIB 1176 in the following manner:

"...The right of the engineers to be paid was dependent upon their readiness to perform work properly required of them under their contract of employment..."

And in Electricity Commission of New South Wales v. Swieringa (1975) AR 504 the Full Bench of the former Commission (McKeon, Cahill and Dey JJ) commented (at p.514) that: "...cases abound in this Commission and elsewhere which state categorically that in order to be entitled to payment of the wage which the terms of the employment prescribe, an employee must be ready and willing and able to perform in accordance with the lawful and reasonable directions of his employer the service for which he contracted, and that any failure on his part to do just that of itself, and so long as the failure continues, disentitles him to such payment..."

Indeed, S.143(1) now makes it an offence for BlueScope Steel to make such a payment to employees engaged in industrial action - and I am satisfied that the conduct of the electrical trades staff when they continued their refusal to drive falls under that category, viz:

"An employer who pays any remuneration or provides any other financial benefit to an employee in respect of time spent by the employee in engaging in industrial action is guilty of an offence."

52 Apart from one isolated incident, it is not altogether clear from the evidence that any member of the electrical trades staff would have actually been called upon to drive a vehicle in the course of his employment whilst the ban on driving was in place. The only evidence in that respect came from Mr Gentle who asserted that one employee was, in fact, "...chased through the instrument workshop and asked to drive on the plant...". On the evidence before me in this hearing, BlueScope Steel management had not actually requested any other employee to drive. But, in my opinion, that is not the point. The electrical trades staff were making it a condition of their employment that they not drive. It was they who were indicating to BlueScope Steel management that they were refusing to do something which they had formerly performed. They were altering the terms of their employment to that extent. 53 In Australian National Airlines Commission v. Robinson (1977) VR 87 the Full Bench of the Supreme Court of Victoria (Young CJ, Menhennitt and Griffith JJ) considered the circumstances of a airline pilot who presented himself for work with the prospect that he may cease work as part of an industrial campaign orchestrated at that time by the Australian Federation of Airline Pilots and, consequently not work for his return flight in breach of his service contract. The Full Bench rejected that, in those circumstances, he was, in fact, ready and willing to perform his contract of employment and denied him remuneration for the period of the threat of industrial action, commenting (at p.93) that:

"...even if he had been provided with an aircraft to fly to Hobart, it did not follow that he would be prepared to return it to Melbourne as scheduled... In those circumstances, the plaintiff failed to show, in our opinion, that he was ready and willing to perform his contract... It is not decisive that no strike had by then been called. The plaintiff was, in effect, indicating that he was only ready and willing to perform his contract if a new term were added enabling him to stop work for 24 hours if instructed by the executive of the Federation to do so..."

Therefore, according to that reasoning, which I adopt, it does not matter that the employees may not have actually been called upon to drive on the relevant days. The fact is they may have been and their employment was conditional upon that obligation on their part.

54 Nevertheless, since not all of the electrical trades staff drive during the course of their employment for BlueScope Steel, or are required to do so, the prohibition on payment of wages in S.143(1) does not, in my opinion, apply across the board. Mr Dearden has suggested in his submissions that the ban on driving was taken collectively by the electrical trades staff and, consequently, I should look on it in that light. But those employees whose duties did not involve driving, eg work in the instrument workshop, were from Monday, 2 August, 2004 not refusing to perform their ordinary duties and therefore it was not correct that BlueScope Steel management regarded them as all being on strike. Whilst no doubt those employees who did not drive still took part in the stop work meeting on Monday, 2 August, 2004 and their vote was counted as part of the decision of the employees at the meeting, it is trite to say that decision by the group of employees at no time meant that they were themselves refusing any part of their work. Nor were they refusing work on Tuesday, 3 August, 2004 and Wednesday, 4 August, 2004 up to the time of compliance with the recommendation of Bishop C and the electrical trades staff returned to work. The electrical trades staff who were not required to drive may indeed have left the site with the other employees who were on strike but they did so because BlueScope Steel had indicated that they would not be paid - incorrectly, as far as they were concerned at least. Outcome

55 In those circumstances, I make the following directions in terms of S.136(1)(a) for the resolution of this industrial dispute:

(i) that the formal warnings placed on the personal history cards of Mr Di Puglia and Mr Dickson be converted into notations of the incident which have no relevance as a disciplinary measure for them;

(ii) that BlueScope Steel appeal to Serco for the 6 point demerit points against the internal driving record of Mr Di Puglia to be reduced to 2 points only;

(iii) that the period of unpaid suspension for Mr Di Puglia and Mr Dickson be reduced from 4½ days to 1 day;

(iv) that the electrical trades staff continue to drive employment services vehicles throughout the steelworks in accordance with instructions and past practice; and

(v) any claim for payment for lost time by the employees whilst they maintained their ban on driving and ceased work is rejected: except to the extent that those members of the electrical trades staff who do not ordinarily drive in the course of their employment shall be paid for all time lost by them on Monday, 2 August, 2004, Tuesday, 3 August, 2004 and Wednesday, 4 August, 2004.

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