Robert Wilson v BlueScope Steel

Respondent John Williams BlueScope Steel (AIS) Pty Limited File Number(s): IRC 27 of 2011

INTRODUCTION 1Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [ss.83 to 90] of the Industrial Relations Act 1996 , the Australian Workers Union has lodged an application on behalf of its member, Mr Robert Wilson, who since 1975 has been engaged as an operator by BlueScope Steel (AIS) Pty Limited at the Illawarra Distribution Centre but whose services were terminated on Saturday, 15 January, 2011 because of his current inability to perform the essential requirements of the job, ie to drive a heavy vehicle. There are currently restrictions imposed on Mr Wilson in that respect following a drink driving offence. The AWU accepts that, as the matter presently stands, Mr Wilson may not be returned to his previous position in driving a heavy vehicle but it asserts that he should be transferred to another area of the steelwork operations where he may still be gainfully employed. Alternatively, it has sought monetary compensation to Mr Wilson. 2The matter has been allocated to me and I set it down for a preliminary hearing on Wednesday, 9 February, 2011 and Tuesday, 1 March, 2011. Those proceedings and all subsequent proceedings were conducted in the Commission's premises at 90 Crown Street, Wollongong. Conciliation failed to settle the matter. I programmed it for arbitration, issuing directions for the filing of the necessary evidentiary material and programming the matter for a further mention on Wednesday, 20 April, 2011 and ultimately for a hearing on Friday, 27 May, 2011. In the hearing Mr Phillips represented Mr Wilson and the AWU and Mr Williams represented BlueScope Steel. 3The matter did not proceed to hearing, however. Mr Phillips informed me that Mr Wilson had contacted him shortly before the hearing to inform him that he was unwell and would not be able to attend the proceedings. Mr Phillips sought an adjournment of the hearing. Mr Williams , who required Mr Wilson for cross-examination, sought that I dismiss the matter. In the circumstances, however, I believed that to do so would be to deny Mr Wilson his right to have the application made on his behalf by the AWU heard, ie it was an issue of natural justice. In those circumstances, I adjourned the hearing until Tuesday, 21 June, 2011. 4Whilst BlueScope Steel is, of course, a trading corporate within the meaning of s.51(xx) of the Commonwealth Constitution, industrial disputes (including claims of unfair dismissal) have not been dealt with under the federal Workplace Relations Amendment (Work Choices) Act 2005 and the federal Fair Work Australia Act 2009 which has replaced it [ New South Wales v Commonwealth of Australia (2006) 156 IR 1]. The Port Kembla steelwork operations of BlueScope Steel are covered by a protocol by which industrial disputes, including claims of unfair dismissal, are dealt with, initially by conciliation but ultimately, if necessary, by arbitration, by members of the State Commission. That procedure is now recognised under s.146B of the State IR Act (and ss.738 and 740 of the FW Act). The AWU has also lodged a s.146B application to accompany the Part 6 application it lodged on Mr Wilson's behalf. 5That s.146B application is I believe necessary. I regard it as fairly settled that a dispute between an individual dismissed employee and his former employer, on its own, would not constitute an industrial dispute [ Roberts v Mona Vale District Hospital (1975) 2 NSWLR 132]. Unfair dismissal claims heard under Part 6 are heard as a separate code of jurisdiction [ Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (1992) 45 IR 39 at p.49]. But what gives the dismissal of an employee the status of an industrial dispute is the involvement of a trade union acting on behalf of that dismissed employee, as is the position in these proceedings. As I indicated in my decision of Wednesday, 11 April, 2007 in J ovanovski v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 at para 6: "...The question remains whether the dismissal of an individual employee constitutes, on its own, an industrial dispute in that respect. I do not believe that it does. What, in fact, gives it the character of an industrial dispute is the involvement of the (trade union) and its notification of the matter..."