It was also around this time that Mr Andrews held discussions with internal stakeholders (such as Ms Greening, Mr Martin Aicken, Senior ER/HR Advisor, and Mr Greg Baldock, Manager Hotmills), as to whether or not the Respondent could justify increasing the personal leave anniversary accrual to 100 hours (per the AWU Proposal). Mr Andrews identified that neither the 90 hours nor 100 hours anniversary accrual proposals for personal leave accrual under the 8D:10A Roster were acceptable. In this regard, in order to be compliant, both anniversary accrual options would need to be managed on a case-by-case basis for each employee, to ensure that each employee received their statutory entitlement of 10 days personal/carer's leave per year. The Respondent considered that such case-by-case assessment would require considerable human resources input, be inefficient, and be susceptible to mistakes, overall increasing business and transactional costs. There may also (or likely will be) legacy issues associated with such an accrual process moving forward. In short, the Respondent considered that the 8D:10A Roster was simply no longer a viable option for the Respondent to implement (or leave on the table as a Roster Change proposal for further consultation).[42]

(m) All Crew Meeting (26 May 2025) - On 26 May 2025, Mr Andrews received an email from Mr Klein asking for the Respondent to give its final position on the AWU Proposal concerning the 8D:10A Roster. Prior to responding to that email,[43] Mr Andrews stopped operations and called a meeting of relevant employees in attendance at work (being only Crews 1 and 2). He advised the employees present that the Respondent had made a final decision to go with (or implement) the 8D:8A Roster (in accordance with the terms of the Agreement and the Departmental Agreement).[44] This was the only Roster Change option left from the initial four different rosters that had been considered in the early stages of the CMs. However, when further consultation was requested from a couple of employees about a nine hour day shift, and nine hour afternoon shift, roster (9D:9A Roster), the Respondent ultimately agreed to further consider same and come back with its position.[45] The Respondent made its position clear that for its part, consultation was continuing, and that a further consultation meeting was to occur the next day on the 9D:9A Roster (on 27 May 2025, being CM11).[46]

(n) CM11 (27 May 2025) - Mr Andrews confirmed that the Respondent had made a final decision to go with (or implement) the 8D:8A Roster. Mr Andrews also made comparisons between the 8D:8A Roster and the 9D:9A Roster (to demonstrate what the Respondent considered to be benefits of the 8D:8A Roster as compared to the 9D:9A Roster,[47] and to raise concerns as to the likely unviability of the 9D:9A Roster (for many of the same reasons that the 8D:10A Roster was no longer viable)).[48] Both the Applicant and the employees present (as Mr Klein had done at CM10 on 13 May 2025) advised that they had no further questions on the 8D:8A Roster, and no further comments or feedback to provide in respect of the 8D:8A Roster. The Applicant advised the Respondent that it considered a 'dispute' had now arisen as to the Roster Changes, i.e. it did not agree to the 8D:8A Roster being implemented. The Respondent agreed (offered) to go away and further consider the 9D:9A Roster and come back to the CM on same if it was a viable option (i.e. if the Respondent's concerns with the 9D:9A Roster could be overcome, or otherwise resolved, to the Respondent's satisfaction).[49] The employee representatives present agreed to same.[50] The 8D:10A Roster was removed (by the Respondent) as a roster option for further consultation purposes.[51]

(o) Implementation Letter (28 May 2025) - Having further considered the 9D:9A Roster post CM11, Mr Andrews determined that it could not be implemented satisfactorily.[52] The Respondent's concerns, which had already been raised with employees in respect of other Roster Change options (namely the 8D:10A Roster), and the conditions that would need to attach to the 9D:9A Roster (previously rejected by employees as unacceptable), remained. Comfortable in his analysis of, and conclusions concerning the SELF test (in relation to the 8D:8A Roster),[53] Mr Andrews issued a letter notifying relevant employees of the impending implementation of the 8D:8A Roster commencing on 17 July 2025.[54] Mr Andrews also emailed the AWU advising that having considered the 9D:9A Roster post CM11, it was not viable for the Respondent, and that no proposal would be made by the Respondent in respect of same.[55]

(p) AWU Dispute Notification (30 May 2025) - the AWU filed a dispute with the Commission on 30 May 2025.[56]

[19] In making my findings in this matter, I have preferred the evidence of Mr Andrews to that of Mr Klein, for the following reasons:

(a) Mr Andrews was present at all of the CMs, and was proactive in driving the consultation process. He prepared the PowerPoint slides (PPS) for each meeting, and put forward discussion points to keep consultation meetings focused.[57] Such discussion points would then be raised at the consultative meetings, and PPS thereafter updated.[58] No other witness did these things.

(b) In my view, the matters discussed at each of the CMs are most accurately and contemporaneously reflected in the PPS presentations that were being updated (after each CM), and otherwise maintained by Mr Andrews (along with Ms Greening). CM representatives were sent a copy of these PPS after each CM to review, correct or add to (during the CM, or via contact with Mr Andrews).[59] I find that there is no sustainable suggestion on the evidence that the PPS do other than properly reflect the matters discussed and the consultations (as to those matters) that occurred at each CM.[60]

(c) Mr Klein's recollection of events is not as crisp or as accurate as Mr Andrews' evidence.[61] Mr Andrews' evidence is also consistent, or more consistent, with relevant documentation (including the PPS). During his evidence, when Mr Klein was unable to recall what occurred, he reverted to the contents of the PPS.[62]

(d) Rather than give evidence as to what occurred at some CM meetings, Mr Klein approached his answers by cloaking them in ambiguity, and/or by splitting hairs as to whether the 8D:8A Roster was mentioned, discussed, or indirectly referred to whilst on another topic (e.g. welding fume safety).[63] To the extent that there is any ambiguity as to whether or to what extent the 8D:8A Roster was discussed at a CM, my preference is to accept the evidence of Mr Andrews (by reference to the PPS, as updated after each CM)).

[20] Clauses 36.1, 36.2, 36.3 and 36.6 of the Agreement read:

36.1 Principles concerning the management of change including Outsourcing

The parties agree to the following key principles concerning the management of change:

(a) The parties recognise and accept that change is an inevitable and increasingly necessary part of the steel industry.

(b) Change must be ongoing to ensure that the Company remains viable and employee expectations concerning security of employment can be satisfied.

(c) In considering the desirability and business case for any proposed changes the tests to be applied are requirements for the change to be:

• safe;
• efficient;
• legal; and
• fair.

(d) The parties will enable early genuine consultation to facilitate the timely and efficient implementation of change, where it satisfies the test above.

(e) The parties commit to consult and abide by the dispute settling procedures provided in this Agreement in the event that proposed changes are not agreed. In support of this commitment there will be both detailed communication and strong reinforcement by the Company and Unions in respect of these procedures. At the conclusion of the processes, including dispute settlement if required, the change will be able to be implemented with no resort to industrial action.

(a) All parties being prepared to put forward considered views in respect of desired improvements and alternatives as to how such improvements could be achieved;

(b) An opportunity being given to all affected parties to fully understand the nature and impact of those views;

(c) Employee's and their unions will be given an opportunity to contribute to problem-solving and decision making, and input into the change, before any final decision on implementation of changes is made by the Company;

(d) Fair consideration being given to the issues and concerns raised by the parties before any final decision on implementation of change is made;

(e) A process that is fair, genuine and comprehensive.

A change is a "significant change" if the change will have substantial effects on:

(a) the composition, operation or size of the workforce in a section or department of the operations of the Company;

(c) the opportunities for promotions of employees;

(h) outsourcing of work (meaning the engagement on a permanent basis of another organisation to perform work which has previously been performed by employees of the Company. In this respect outsourcing differs from the use of contractors to meet intermittent work load requirements or to provide specialist skills on a short term or as needs basis).

36.6 Process for introduction of change which is "significant change" and for resolving associated issues and disputes

The provisions of this subclause set out the terms and order of the procedure which shall govern the introduction and management of significant change.

(a) When the Company has an idea or concept which could result in a significant change, the Company will commence a consultation process by notifying in writing employees and their union of the idea or concept that could be implemented. The written communication will outline the idea or concept and the possible effects that the idea or concept could have on employees.

(b) A consultation team will then be established to consider the idea or concept and any issues arising from that idea or concept. The team will discuss the idea or concept using interest based problem solving techniques. The consultation team will include representatives of the Company and representatives of employees and unions nominated by the relevant employees.

(c) The consultation process will consider of all aspects of the idea or concept. As a priority, the consultation will consider the impacts on employees and what steps are to be put in place to manage the impacts on employees.

(d) Consultation will not limit any party from proposing alternative ideas that may result in the objectives of the business being achieved.

(e) The Company is not under any obligation to disclose commercially sensitive information.

(f) A decision by employees or the unions not to participate brings the consultation process to an end.

(g) When consultation is concluded, the Company will advise and provide written notification to employees and the relevant unions what change is intended to be implemented, the arrangements to manage the impact of the change, the date the change will commence, the impact the change will have on employees, and what steps are to be put in place to manage the impact that the changes will have on employees.

(h) Where agreement is reached on a change, the change may be implemented immediately and the terms of the agreement will be documented.

(i) For any workplace change (including the number or composition of employees engaged on any task), the consultation process may provide for the change to be introduced on a trial basis by agreement. There should be a discussion between the parties as to how the trial arrangements should be implemented. An appropriate monitoring system will be established to ensure that the proposed changes are safe, efficient, legal and fair. The period of the trial will be determined in advance, with a return to the working arrangements that existed immediately prior to the proposed change in the event that it is shown that the trial fails the safe, efficient, legal and fair test.

(j) Where there is disagreement on the change to be implemented, a party to the consultation process must give written notice to the other parties that it disputes the implementation of the change. Given that consultation has already taken place, the written notice of the party disputing the change will include a copy of that party's application referring the matter to the Fair Work Commission in accordance with the steps in the Dispute Settlement Procedure.

(k) FWC shall make such procedural directions for the conciliation or arbitration of the matter. So far as is practicable, the matter will be determined by the FWC within a period of 35 business days (Monday to Friday) from the day the Company notified its final decision on the change. The parties shall ensure strict compliance with such directions.

(l) Once a matter is referred to FWC, implementation of the change will not be implemented by the Company until either:

(ii) a period of 35 business days has elapsed from the day the Company notified its final decision on the change (unless either party has sought and been granted by FWC an interim order to reduce or extend this period);

(m) A union may apply to FWC for an interim order restraining the implementation of the change. Such an interim order will be made only if FWC is satisfied that:

(i) the matter cannot be determined within the period of 35 business days;

(ii) there is an arguable case that the change is not safe, legal, efficient and fair; and

(iii) the balance of convenience favours the grant of the interim order.

(n) An interim order restraining the final implementation of the change may also be made by the FWC if the parties agree or FWC considers that a trial of the change should take place before the matter is arbitrated.[64]

Interpretation of consultation provisions of the Agreement

[21] The principles as to the interpretation of enterprise agreements are set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union v Berri Pty Ltd[65] and James Cook University v Ridd.[66]

[22] Various decisions of the Commission have considered the operation and application of clause 36 of the Agreement (including its former iterations). From these decisions, I distill the following principles:

(a) "In order for [the] consultation mechanisms to operate successfully, they require parties to participate in the processes genuinely in accordance with the commitments that they have made to each other ... On BlueScope's side, that means that consultation cannot be treated simply as a requirement to be ticked off prior to the implementation of predetermined workplace changes of a significant nature, and requires a bona fide effort to involve employees and their union in the development of the changes necessary to meet the business's commercial challenges. On the part of employees and their unions, it requires approaching consultation about change on the basis of the understandings identified in clause [36.1](a) and (b), namely that "change is an inevitable and increasingly necessary part of the steel industry" and that "Change must be ongoing to ensure that the Company remain[s] viable and employee expectation concerning security of employment can be satisfied". That means that employees and unions must constructively engage with any issues raised by BlueScope during the consultation process, actively seek the information necessary to permit such constructive engagement to occur, and advance positive proposals to assist BlueScope to make the changes necessary to meet developing circumstances. Consultation is not to be approached on the basis of it simply being an opportunity to develop and advance arguments as to why no change should be implemented."[67]

(b) When determining whether or not meaningful consultation has occurred, one is to consider not only the substance of the consultations that have occurred, but also whether the acts done or conduct engaged in is consistent with the procedural requirements in clause 36 (which conditions the exercise of the Respondent's ability to implement change).[68]

(c) It is the union and/or relevant employees who bear the onus of establishing that the status quo is to be maintained, and/or that any relevant changes sought by the Respondent should not be made, or should be offset via some other adjustment (being an adjustment permitted by the terms of the Agreement).

(d) The foregoing onus in (c) (upon the union and/or relevant employees) extends to any claim that relevant changes are not safe, efficient, legal or fair (SELF test, per clause 36.1(c) of the Agreement).[69] Any determination as to the satisfaction of the applicable requirements under clause 36.1(c) of the Agreement is to be arrived at on the basis of "substantial compliance" (not "strict compliance").[70]

(e) One is to approach questions of "legality" on the basis that "a change will be "legal" if it is not illegal - that is, if it is not positively prohibited by any enforceable legal requirement."[71]

(f) There is no suggestion in any of the Commission decisions that a failure to properly comply with clause 36 of the Agreement renders consultations that have occurred to date irrelevant, or that the consultation process needs to start again ab initio. Rather, the decisions convey that the Commission is able to resolve what issues or items have been exhausted for consultation, and/or where (specifically) further consultation is required.

Did the Respondent comply with the consultation requirements set out in clause 36.6 of the Agreement prior to deciding the significant change to the rostered hours for employees in the WPD?

[23] The evidence identifies that the 8D:8A Roster was a key shift pattern for consultation. Indeed, the Respondent was upfront (from CM2) that its preference was for the 8D:8A Roster to be implemented.[72]

[24] There is nothing wrong or unusual about a party to a consultation process having an upfront preference for a particular outcome. The fact that a preference exists as to a particular outcome does not mean that consultations are, or ultimately become, tainted or pre-determined. Indeed, at CM9 (29 April 2025) Mr Andrews advised employees that despite the Respondent having a preference for the 8D:8A Roster, if a majority of employees supported the 8D:10A Roster (per the 8:10 Proposal, including the 90 hour accrual of personal/carer's leave), the 8D:10A Roster would be almost immediately implemented per clause 36.6(h) of the Agreement.[73] It follows that I reject any contention that the consultation process was in any way undermined by the Respondent's transparency as to its preferred Roster Change solution. Any contention in that regard is disposed of by reference to the informal vote, and the formal vote.

[25] It is apparent to me, having regard to the totality (including content) of the consultations between CM1 and CM9 (ending on 29 April 2025), that the position prior to the formal vote (occurring on 7 May 2025) was that employees were voting 'between' the final version of the 8D:8A Roster (including as per the 8:8 Proposal),[74] and the 8D:10A Roster (including as per the 8:10 Proposal).[75] The Respondent at this time (29 April 2025) clearly communicated that it wanted to implement the 8D:8A Roster, and that the only thing stopping that from happening would be if a majority of employees (>66%) voted in favour of the 8D:10A Roster on 7 May 2025.[76] In other words, the consultation process had reached a point in time that employees needed to make a choice between one of two alternatives, and they now had 7 days to consider the matters already discussed and raised during the last 3 months of consultation meetings to do so.

[26] Post the formal vote, consultation in respect of the 8D:8A Roster ended at the behest of the Applicant and relevant employees as early as CM10 (on 13 May 2025).[77] I accept the evidence of Mr Andrews that post the formal vote, the position between the Respondent and the Applicant (and relevant employees) essentially became one of 'negotiation' around conditions to be attached to the 8D:10A Roster. In this regard:

(a) the Respondent's position was as set out in the 8:10 Proposal;[78] and

(b) the Applicant's position was set out in the AWU Proposal.[79]

[27] Interlayered with the foregoing position of the parties is the 9D:9A Roster, which was raised by relevant employees (for the first time) during the All Crew Meeting on 26 May 2025.[80] I use the term for the 'first time' here because whilst a 9 hour shift (or a roster with a 9 hour shift component, being the 8D:9A Roster) had been considered during CM4 (25/2/2025),[81] the 9D:9A Roster itself had not been specifically consulted upon prior to CM11.

[28] Mr Ivanovski's evidence is that the 8D:8A Roster was not discussed in detail during the CMs, yet he is (at the same time) able to identify what he considers to be the deficiencies with that roster pattern.[82] Mr Taylor's evidence is to similar effect. In other words, despite asserting that the 8D:8A Roster was not discussed in detail (or adequately consulted upon), Mr Taylor, like Mr Ivanovski, is well versed in and aware of what he considers to be the deficiencies with the 8D:8A Roster pattern.[83] I reject the Applicant's contention that the consultation process has resulted in, or identifies, a failure by the Respondent to understand or appreciate the position of relevant employees in respect of the 8D:8A Roster. On the evidence before me, relevant employees (themselves) understand what the 8D:8A Roster involves. They have had every opportunity to put their concerns about the impact of the 8D:8A Roster to the Respondent during the consultation process, and have done so. There is nothing in the evidence before me, as to the 8D:8A Roster, that was not previously put to the Respondent as part of the consultation process, and engaged with by the Respondent during same.

[29] Both Mr Ivanovski and Mr Taylor consider that there has been sufficient consultation around the 8D:10A Roster.[84] However, they both also consider that further consultation should occur around personal/carer's leave accruals under the 8D:10A Roster.

[30] Neither Mr Ivanovski, nor Mr Taylor, make any mention of the 9D:9A Roster in their evidence in chief. In their reply evidence, via reply to Mr Andrews' evidence, neither of them express any specific preference for the 9D:9A Roster, or identify any confusion (on their part) as to the 9D:9A Roster, or the conditions to be attached to same (being conditions to which they have been privy to since CM5 (4 March 2025), evidence of which was filed in these proceedings prior to the Applicant's reply evidence). Notwithstanding this, Mr Ivanovski and Mr Taylor both request that further consultation be had on the 9D:9A Roster.

[31] It is appropriate to pause here to recognise that by CM11 (26 May 2025), the Respondent had come to identify that the 8D:10A Roster was no longer viable (from its perspective) for implementation due to issues associated with the accrual and payment of personal/carer's leave.[85] I note that the same issue (as to personal/carer's leave anniversary accruals and payments) plagues the 9D:9A Roster, in that such a roster will require one 8 hour shift every four week period for each crew (so as to reconcile the total work hours to be worked across each 8 week period).[86] There is also potentially an issue with the 9D:9A Roster as to a second crib break.[87]

[32] Both parties agree (or accept) that personal/carer's leave under the Agreement is accrued (upfront at each employee annual anniversary date) at the equivalent (in hours) of 10 days per annum, and is paid on the basis of the hours that would have been worked on the specific shift (or day) taken as personal/carer's leave. In other words, if a personal/carer's leave day is taken to which an 8 hour shift occurs, 8 hours personal/carer's leave is deducted, whilst if a personal/carer's leave day is taken to which a 10 hour shift occurs, 10 hours personal/carer's leave is deducted. The position of the parties appears to be wholly consistent with the requirements of clauses 24.2.1, 24.2.2, and 24.3.1 to 24.3.3 of the Agreement, and more beneficial than the NES,[88] however, I form no concluded view and make no findings as to the correctness of the parties' position on personal/carer's leave accrual and payment. Rather, I adopt the parties' position for the purposes of resolving this dispute.

[33] It is apparent that both the 8:10 Proposal, and the AWU Proposal, in relation to personal/carer's leave anniversary accruals (i.e. 90 hours v 100 hours), suffer from the same potential concerns.[89] In this regard:

(a) personal/carer's leave accrues (upfront) upon each anniversary of employment, at 10 normal working shifts per annum (24.3.1 and 24.3.2). Accrued leave accumulates, and may be taken (or used) in subsequent years of service;

(b) under the Agreement (unlike the NES),[90] where an employee's normal working shifts are different, e.g. 8 hours and 10 hours, the employee is to be paid for the shift length taken as personal/carer's leave. If an employee was to take 10 eight hour shifts off as sick leave in a twelve month period (i.e. 80 hours), the 90 hour accrual would provide the employee with 10 extra hours of personal/carer's leave accrual (i.e. beyond what they are entitled to under the Agreement). Conversely, if an employee was to take 10 ten hour shifts off as sick leave in a twelve month period (i.e. 100 hours), the 90 hour accrual would provide the employee with 10 less hours of personal/carer's leave accrual (i.e. below what they are entitled to under the Agreement). A top up would need to occur. There are a multitude of different outcomes (in terms of accruals and payments) where a mixture of 8 and 9 or 10 hour shifts are taken as personal/carer's leave in a 12 month period. In some cases, at 90 hours of accrual, employees will over accrue, in other cases there will be a shortfall. The situation does not change if employees accrue 100 hours of personal/carer's leave upfront, other than there being no downside for employee accruals. Personal/carer's leave that is not used accrues from year to year, and record keeping obligations in respect of such accruals continue from year to year. An employee who only takes 10 days of personal/carer's leave when 8 hour shifts are worked, will end up with 20 personal/carer's leave hours beyond what they are entitled to under the Agreement (which carry forward into further years of employment);

(c) whatever the consultation obligations under the Agreement are, they do not mandate (or require) an outcome whereby employees become entitled to personal/carer's leave accruals beyond those set by the Agreement. Nor does the implementation of change under the Agreement mandate (or require) a best case scenario result. Consultation under the Agreement does not continue until such time as agreement can be reached, or all issues are resolved to the satisfaction of everyone.

[34] The only real answer to the issue facing the parties as to the accrual of personal/carer's leave on a differential hours roster is for the Respondent to keep manual records (outside of its existing electronic payroll and record keeping system), such that personal/carer's leave accruals for each individual employee are manually tracked, with adjustments made upwards and downwards when sick leave is taken, or via some form of other manual reconciliation system. But there are three problems with this approach:

(a) the terms of the Agreement require personal/carer's leave to accrue (upfront) upon each anniversary of employment;

(b) any reconciliation system would need to run in perpetuity, given that accrued personal/carer's leave accumulates, and can be taken in subsequent years of employment. Different employee commencement and anniversary dates make management and maintenance of proper and accurate records more complicated and time consuming;

(c) the Respondent has rejected any outcome whereby it would need to run a manual reconciliation system for personal/carer's leave accruals. Understandably, the Respondent considers that a reconciliation system as to personal/carer's leave in respect of each of its employees would not only require excessive administrative work and support, but potentially run into difficulties in terms of complying with its obligations under the Act and FW Regulations, and likely create legacy issues.[91]

[35] It is hardly unreasonable for an employer who does not wish to entertain a rostering arrangement that would give rise to the use of multiple record systems, or continual manual adjustments, or complicated legacy accruals, to reject that rostering arrangement.

[36] The AWU contends that consultation provisions under clause 36 of the Agreement have not been complied with because the evidence establishes that:

(a) consultation was predominantly focused on the 8D:10A Roster, and the 8D:8A Roster was never the subject of genuine consultation;

(b) the consultation process had not concluded when the Implementation Letter was issued (as the AWU was still waiting to hear from Mr Stuart Andrews in relation to the Respondent's position on the AWU Proposal for the 8D:10A Roster, and consultation on the 9D:9A Roster had not concluded);

(c) despite agreement being reached in relation to significant aspects of the 8D:10A Roster, the proposal ultimately presented departed significantly from the matters that were agreed at that time; and

(d) this departure was done as a direct consequence of employees not accepting the proposal as put and in retaliation for the rejection of the proposal.[92]

[37] Clause 36.2 of the Agreement defines "genuine consultation" for the purposes of the Agreement. I do not accept that the evidence establishes or otherwise supports the contentions made by the AWU at (a), (c) or (d) of the foregoing paragraph. In brief, I find that the evidence establishes that:

(a) whilst consultation was predominantly focused upon the 8D:10A Roster, the 8D:8A Roster was (or has been) the subject of genuine consultation. Further consultation in respect of the 8D:8A Roster (itself) is not required. The Applicant and relevant employees reached this same conclusion at CM10 and CM11.

(b) I do not accept that any agreement was reached in relation to so-called 'significant aspects' of the 8D:10A Roster. The 8:10 Proposal was not put forward until after the Informal Vote. The only issue that became significant during consultations in respect of the 8D:10A Roster was that of personal/carer's leave accruals. Irrespective of any dispute about personal/carer's leave accruals, the 8D:10A Roster was (has been) the subject of genuine consultation.

(c) The Respondent's decision to remove the 8D:10A Roster as a Roster Change option did not come about as a direct consequence of employees not accepting the 8:10 Proposal, or in retaliation for the rejection of same. Rather, the Respondent's decision in this regard was based upon it:

1. gaining an awareness that its own 90 hour accrual proposal was either inconsistent with the terms of the Agreement (as to accrual amount at employee anniversary), and/or overly burdensome, and costly to manage; and

1. reaching the conclusion that the AWU Proposal would involve employees (potentially, or likely in many cases) accruing more personal/carer's leave than they are entitled to under the Agreement (by up to 20 hours per year).

[38] The 9D:9A Roster was raised as a Roster Change option by employees, and consulted upon at CM11. Mr Andrews went away after CM11 to further consider if it was a suitable and viable alternative to the 8D:8A Roster (primarily because it had the same personal/carer's leave accrual problems to the 8D:10A Roster). Mr Andrews' conclusion that the 9D:9A Roster was not a suitable or viable option (for the Respondent) meant that there was no utility in engaging in further consultations about same.

[39] I make the following ultimate findings as to whether or not the Respondent has complied with the consultation requirements set out in clause 36.6 of the Agreement (prior to deciding the significant change to the rostered hours for employees in the WPD):

(a) The Respondent, and the consultation process itself, has complied with clauses 36.6(a) to (d) of the Agreement. The consultation process has considered all aspects of the 8D:8A, 8D:10A, and 9D:9A Rosters as to the impacts of these rosters on employees, and any steps that can be put in place to manage the impacts upon employees.

(b) Save for (c) below, there has been "genuine consultation" (as defined at clause 36.2 of the Agreement) in respect of Roster Change options (including the 8D:8A, 8D:10A, and 9D:9A Rosters). In this regard:

1. all parties to the consultation process have put forward considered views in respect of desired relevant improvements and alternatives;

1. opportunity has been provided for all affected parties to fully understand the nature and impact of each other's views;

1. relevant employees and the Applicant has been given an opportunity to contribute to problem-solving and decision making, and input into the change, before any final decision on the implementation of changes was made by the Respondent;

1. fair consideration was given by the Respondent to the issues and concerns raised by relevant employees and the Applicants before the Implementation Letter was issued; and

1. overall the consultation process has been fair, genuine and comprehensive.

(c) To the extent that the consultation process involves the problematic accrual of personal/carer's leave on the 8D:10A and 9D:9A Rosters, I do not consider consultation to have concluded. Whilst it is not at all clear how this issue can be resolved to the satisfaction of all parties, I do not consider that it has been the subject of proper consultation in that the Applicant and relevant employees did not have, prior to the Implementation Letter, the opportunity to contribute to problem-solving as to this issue. Whilst any consultation on this issue may well amount to nought, I consider it appropriate that it occur.

[40] On the basis of my findings in the foregoing paragraph, I do not consider this to be a case in which consultation needs to restart from the beginning, be at large, or trawl over matters previously consulted upon. In other words, any further consultation is only necessary to the extent that it goes to the potential to resolve the Respondent's concerns in relation to the accrual of personal/carer's leave under the 8D:10A and 9D:9A Rosters. If such concerns cannot be resolved after one, perhaps two, further consultation meetings, the only Roster Change option to be implemented is the 8D:8A Roster in accordance with clause 36.6(g) of the Agreement.

Does the decided significant change meet the requirements of clause 36.1(c) of the Agreement, namely does the change meet the requirements of the Agreement's safe, efficient, legal and fair (SELF) test?

[41] Save for the dispute around consultation under clause 36 of the Agreement, the Applicant does not suggest that the roster changes are unable (for whatever reason) to be implemented.[93]

[42] Mr Andrews analysis of the SELF criteria in relation to the 8D:8A Roster is as follows:

(i) minimises employee exposure to harmful welding fume as it offers the lowest exposure of all roster options (noting that this is a legislative requirement);

(ii) reduces risk associated with fatigue (reduced shift duration and reduced potential for team leaders to work more than 16-hours a shift);

(iii) allows for higher ratio of time spent with leadership team, which improves safety culture;

(i) provides acceptable availability for plate receival and product despatch;

(ii) allows for appropriate preparation and timing of maintenance down days while also providing opportunity for commissioning and consultation between operators and maintainers;

(iii) demonstrated historical performance with standardised roster pattern;

(iv) increased 'sprint capacity' (potential to have overtime shifts);

(v) provides repeatable operating hours without significantly shortened weeks;

(i) minimises employee exposure to harmful welding fume;

(ii) shift allowance is in line with Departmental Agreement and personal leave accrual is in line with the Agreement;

(i) provides Friday afternoon rostered day off (as desired by employees);

(ii) provides Monday rostered days off (allows for extended weekends);

(iii) has the lowest PPE requirement (as desired by employees); and

(iv) allows for 06:00/ 14:00/ 22:00 start/ finish times to be maintained (as desired by employees)."[94]

[43] I find that none of the evidence detracts from Mr Andrews' analysis of the SELF test (noting that it is the Applicant that bears the onus of demonstrating that the 8D:8A Roster does not pass the SELF test).[95] On the basis of this finding, I adopt Mr Andrews analysis of the SELF test, and find that the 8D:8A Roster (as proposed by the Respondent in the 8:8 Proposal) meets the SELF test. Specifically, I reject the Applicant's contentions that the 8D:8A Roster is so unfair as to warrant it not being introduced because of applicable shift allowances, the number of RDOs over a roster cycle, and/or the absence of a second crib break. These outcomes flow from the terms of the Agreement, the terms of the Departmental Agreement, and the rostered hours that are worked. They are not in and of themselves unfair (in this case) simply because other roster patterns (and hours worked) produce different or better outcomes. The 8D:8A Roster not only satisfies clause 36.1(c) of the Agreement, but it is consistent with clauses 36.1(a) and (b).

I consider that further consultation is only necessary to the extent that it goes to the potential to resolve the Respondent's concerns in relation to the accrual of personal/carer's leave under the 8D:10A and 9D:9A Rosters. If such concerns cannot be resolved after one, perhaps two, further consultation meetings, the only Roster Change option to be implemented is the 8D:8A Roster in accordance with clauses 36.6(g) of the Agreement.

The Respondent has otherwise complied with the consultation requirements set out in clause 36.6 of the Agreement prior to deciding the significant change to the rostered hours for employees in the WPD. More specifically, the consultation process has considered all aspects of the 8D:8A, 8D:10A, and 9D:9A Rosters as to the impacts of these rosters on employees, and steps that can be put in place to manage the impacts upon employees.

The 8D:8A Roster (as proposed by the Respondent in the 8:8 Proposal) meets the SELF test. The 8D:8A Roster not only satisfies clause 36.1(c) of the Agreement, but it is consistent with clauses 36.1(a) and (b). Having regard to clause 36.1(d) of the Agreement, the parties now have an obligation to implement any change in a timely and efficient manner.

[46] The parties are of course at liberty to request the further assistance of the Commission in relation to this dispute at any time.

Ms Sandra Doumit, Senior Legal Officer, appeared for the Applicant (The Australian Workers' Union (AWU)).

Ms Jessica Tinsley, Special Counsel, accompanied by Ms Alice DeBoos, Partner, Kingston Reid lawyers appeared (with permission) on behalf of the Respondent (BlueScope Steel (Ais) Pty Ltd).

[1] The Agreement applied to BlueScope and its relevant employees at the time that this dispute was filed on 30 May 2025. The AWU is covered by the Agreement. The Agreement was replaced by the BlueScope Port Kembla Steelworks & Springhill Enterprise Agreement 2025 ( [2025] FWCA 2535, AE529896), covering the AWU. The terms of the 2022 and 2025 enterprise agreements are the same as they concern the resolution of this dispute.

[2] Applicant's Submissions at [1]; Court Book / Digital Hearing Book (CB) p.94. Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [5.7] (CB, p.605). Respondent's Submissions, 7 August 2025, at [6]-[8], CB, p.587.

[3] Respondent's Submissions, 7 August 2025, at [5], CB, pp.587-588. Transcript, PN707, and PN864-PN865.

[4] Transcript, PN667-PN673, PN929-PN951, and PN1004-PN1005.

[5] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [2.3]-[2.14] (CB, pp.600-602), [4.3] (CB, p.604), [5.4] (CB, p.605), and [10.1] (CB, p.614). Respondent's Submissions, 7 August 2025, at [6]-[8], CB, p.587. Transcript, PN863.

[8] CB, p.673-674. Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [8.8], CB, p.611.

[9] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [2.15], CB, p.602.

[12] Mr Hutchings no longer works for the AWU.

[13] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [4.1]-[4.8], CB, pp.603-604, including Annexure SA-4, CB, pp.696-704 (no reference to rosters in the slide presentation). I reject Mr Klein's recollection of CM1: see and compare Exhibit AW-1, Shane Klein Statement, 14 July 2025, at [19]-[21], CB, p.114, and Exhibit AW-2, Shane Klein Reply Statement, 13 August 2025, at [5], CB, p.1545. Transcript, PN342-PN345 (Mr Andrews' evidence is consistent with Mr Joshua Taylor's evidence). Mr Ivanovski did not attend this CM, or is not sure if he attended.

[14] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [5.5]-[5.6], CB, p.605. Transcript, PN674-PN677, and PN680. At this CM, the Respondent also raised plate repair work as an upskilling opportunity (CB, p.749). For the 8:8 Proposal (being 8D/8A M-F roster, and reducing 3 crews to 2 crews)), see CB, p.781.

[15] Ibid, at [5.8]-[5.15], CB, pp.606-607. Annexure SA-5, CB, pp. 705-731 (especially at pp.715-716 and 720-721). Transcript, PN674-PN677, and PN680.

[18] Ivanovski did not attend this CM, or is not sure if he attended.

[23] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [7.1]-[7.8], CB, pp.609-610. Annexure SA-7, CB, pp.765-800 (especially at pp.788-794). Mr Klein did not attend CM4: Transcript, PN87-PN88.

[24] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [8.1]-[8.16], CB, pp.610-612. Annexure SA-8, CB, pp.801-873 (especially at pp.820-836). Ivanovski did not attend this CM, or is not sure if he attended.

[26] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [9.1]-[9.6], CB, p.613. Annexure SA-10, CB, pp.801-873.

[29] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [10.1]-[10.10], CB, pp.614-615. Annexure SA-11, CB, pp.900-962 (especially at pp.947-959). Transcript, PN513.

[31] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [11.1]-[11.8], CB, pp.615-616. Annexures SA-12-SA-14, CB, pp.963-1263 (especially at pp.1245, 1246-1257, and 1263).

[32] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [12.1]-[12.4], CB, p.617. Annexure SA-15, CB, pp.1264-1267. Transcript, PN869.

[34] This provides for the least number of RDOs of all roster patterns consulted upon: CB, pp.1436 and 1460.

[35] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [13.2], CB, p.617.

[38] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [15.1] -[15.8], CB, pp.619-621. Mr Ivanovski did not attend this CM, or is not (himself) sure if he attended.

[40] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [14.2(a)], CB, p.618. Transcript, PN818, PN826 and PN915.

[41] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [15.9] -[16.1], CB, p.621.

[42] Ibid, at [15.8]-[15.12], CB, p.621.

[43] Ibid, at [16.6], CB, pp.622. Annexure SA-22, CB, p.1404.

[44] The Applicant was not notified about the All Crew Meeting: Transcript, PN841.

[46] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [16.2]-[16.6], CB, pp.621-622.

[49] Exhibit R1, Stuart Andrews Statement, 7 August 2025, Annexure SA-22, CB, p.1404.. Transcript, PN848-PN853.

[50] Ibid, at [17.1] -[17.7], CB, pp.622-623.

[52] Transcript, PN848-PN860. CB, p.1466.

[53] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [18.1] -[18.5], CB, pp.623-624. Clause 36.1(c) of the Agreement. See also, CB, p.1467-1468, and 1519.

[54] A copy of the Implementation Letter (28 May 2025) is found at CB, pp.26-27.

[60] Note, Exhibit AWU4, Joshua Taylor Reply Statement, 12 August 2025, at [5], CB, p.1535. Transcript, PN168

[61] Transcript, PN59-PN69; compare inconsistent evidence as to 8D:8A Roster at PN78 (other employee proposal not on table for consultation, with PN61 (not an employee suggestion). Compare: Exhibit AWU4, Joshua Taylor Reply Statement, 12 August 2025, at [5], CB, p.1535.

[62] See, for example, Transcript PN118-PN131.

[63] Ibid, PN92-PN131, PN136-139, PN146-PN184 (especially at PN163), and PN185-PN201,

[64] CB, pp.165-168. Transcript, PN929-PN951, and PN1004-PN1005.

[65] [2017] FWCFB 3005, at [114].

[66] [2020] FCAFC 123; (2020) 278 FCR 566, at [65].

[67] Australian Workers' Union v BlueScope Steel Limited [2016] FWC 3848, Hatcher VP, at [47] (direct quote).

[68] Ibid, at [34]-36], and [55]-59].

[70] Ibid. See also Australian Workers' Union v BlueScope Steel (AIS) Pty Ltd [2021] FWCFB 5030, at [15].

[71] Australian Workers' Union v BlueScope Steel Limited [2016] FWC 3848, Hatcher VP, at [55]-[56].

[74] See paragraph 18(i) of this decision.

[75] See paragraph 18(j) of this decision.

[76] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [13.1]-[13.4] and [13.8]-[13.9], CB, pp.617-618.

[77] Transcript, PN185-PN201 and PN539. See also paragraph [18(n)] of this decision.

[78] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [13.1]-[13.4], CB, pp.617-618.

[79] Being, firstly, a final document to be signed off on by both parties with a clause that states any changes agreed upon in the Agreement will flow through in the applicable shift arrangement document, and secondly, the placement of RDOS to occur by mutual agreement). Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [14.2(a), (b) and (c)], CB, p.618. Transcript, PN818, PN826 and PN915.

[82] Exhibit AWU5, Michael Ivanoski Statement, 14 July 2025, at [8]-[9], and [14]-[17], CB, pp.108-109.

[83] Exhibit AWU3, Joshua Taylor Statement, 14 July 2025, at [7]-[10], [18]-[20], and [30]-[33], CB, pp.103-104, and 106.

[84] Exhibit AWU5, Michael Ivanoski Statement, 14 July 2025, at [10] and [16], CB, pp.108-109. Exhibit AWU3, Joshua Taylor Statement, 14 July 2025, at [20], [22], and [29]. CB, pp.104-106.

[85] See paragraph [18(l)] of this decision. In other words, where the number of hours in a shift varies up and down across a roster period (e.g. 8 hour shifts one week, and 10 hour shifts the following week).

[87] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [17.6], CB, p.623.

[88] See Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Known as the Australian Manufacturing Workers Union (AMWU) (2020) 271 CLR 495; [2020] HCA 29.

[90] See Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Known as the Australian Manufacturing Workers Union (AMWU) (2020) 271 CLR 495; [2020] HCA 29.

[91] Record keeping obligations in respect of leave accruals and payments are set out under s.535 of the Act, and Subdivision 1 of Division 3 of Part 3-6 of the Fair Work Regulations 2009 (FW Regulations). These obligations rest squarely upon the employer. A failure by an employer to strictly comply with the record keeping requirements under the Act and FW Regulations is a strict liability offence, that carries fines of up to 600 penalty units (see Item 29 of the Table found at s539(2), and s.557A of the Act).

[94] Exhibit R1, Stuart Andrews Statement, 7 August 2025, at [15.3], CB, pp.619-620.

[95] Australian Workers' Union v BlueScope Steel Limited [2016] FWC 3838, at [35] and [36].

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