Bluescope Steel (Ais) Pty Ltd formerly known as BHP Steel (Ais) Pty Ltd v Australian Workers' Union, New South Wales and Ors [2004] NSWIRComm 21 (19 February 2004)

Last Updated: 25 February 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

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

FILE NUMBER(S): IRC 2153, 2154, 2155

HEARING DATE(S): 13/10/2003, 02/12/2003, 04/12/2003, 05/02/2004

DECISION DATE: 19/02/2004

PARTIES:

PROSECUTOR

BlueScope Steel (AIS) Pty Ltd formerly known as BHP Streel (AIS) Pty Ltd

DEFENDANTS

Australian Workers' Union, New South Wales

Electrical Trades Union of Australia, New South Wales Branch

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

PROSECUTOR

Mr R J Buchanan, QC with Mr P C Coleman of counsel

Solicitor: Mr A Morris

Blake Dawson Waldron

DEFENDANTS

Australian Workers' Union, New South Wales

Mr R Corish of counsel

Solicitor: Maurice May & Co

Electrical Trades Union, New South Wales Branch

Ms R Mifsud

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch

Mr I Morrison

CASES CITED: BHP Steel (AIS) Pty Ltd and Australian Workers' Union, New South Wales and others [2003] NSWIRComm 125

Briginshaw v Briginshaw (1938) 60 CLR 336

Higgins v Avoca Estate Agency Pty Ltd [1999] NSWIRComm, unreported, 3 December 1999

John L Pty Limited v Attorney-General (NSW) (1987) 163 CLR 508

Stanton v Abernathy (1990) 19 NSWLR 656

Johnson v Miller (1937) 59 CLR 467

R v Saffron (1988) 17 NSWLR 395

LEGISLATION CITED: Evidence Act 1995

Industrial Relations Act 1996

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: BOLAND J

Thursday 19 February 2004

Matter No IRC 2153 of 2003

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

Application under section 357 of the Industrial Relations Act 1996

Matter No IRC 2154 of 2003

BlueScope Steel (AIS) Pty Ltd formerly known as BHP Steel (AIS) Pty Ltd v Electrical Trades Union, New South Wales Branch

Application under section 357 of the Industrial Relations Act 1996

Matter No IRC 2155 of 2003

BlueScope Steel (AIS) Pty Ltd formerly known as BHP Steel (AIS) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch

Application under section 357 of the Industrial Relations Act 1996

JUDGMENT

[2004] NSWIRComm 21

1 The Australian Workers' Union, New South Wales ("AWU"), Electrical Trades Union of Australia, New South Wales Branch ("ETU") and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch ("AFMEPKIU") have been charged with contravening a provision of an industrial instrument. A pecuniary penalty not exceeding $10,000 is sought to be imposed on each of the defendants pursuant to s 357 of the Industrial Relations Act 1996. The prosecutor is BlueScope Steel (AIS) Pty Ltd, formerly known as BHP Steel (AIS) Pty Ltd. In the event a penalty is imposed the prosecutor seeks the granting of an injunction against each of the defendants pursuant to s 359 of the Act and costs.

2 Section 357 of the Act is in the following terms:

357 Civil penalty for breach of industrial instruments

(1) If an industrial court is satisfied that a person has contravened a provision of an industrial instrument, it may order the person to pay a pecuniary penalty not exceeding $10,000 (a civil penalty).

Note. Section 21 of the Interpretation Act 1987 provides that the expression “contravene” in an Act includes a failure to comply.

(2) Proceedings for a civil penalty may be instituted:

(a) by an inspector or any other person authorised by this Act to institute proceedings for offences, or

(b) by an employer bound by the industrial instrument concerned, or

(c) by an industrial organisation concerned in the industry to which the proceedings relate.

(3) Proceedings for a civil penalty may be instituted within 6 years after the contravention.

(4) To avoid doubt, the rules of evidence apply to proceedings for a civil penalty.

(5) Evidence given in proceedings for the recovery of money under Part 2 is not admissible in proceedings for a civil penalty.

(6) In any proceedings for a civil penalty, the industrial court may award costs to either party and assess the amount of those costs. Costs cannot be awarded against the prosecutor except in the circumstances in which costs can be awarded against the prosecutor in criminal proceedings.

(7) The following provisions apply to contraventions of industrial instruments and to proceedings for a civil penalty for such a contravention in the same way as they apply to criminal proceedings for an offence against this Act:

(a) Sections 400–403.

(b) The provisions of any Act relating to the recovery of penalties imposed for an offence.

(c) Any provision of this or any other Act relating to criminal proceedings that is applied to this section by the regulations (whether with or without modification).

3 Section 359 of the Act is in the following terms:

359 Injunction to restrain further contraventions of industrial instruments

(1) The Commission in Court Session may, on the imposition of a civil penalty under this Part by it or another industrial court, grant an injunction to restrain the person from committing further or other contraventions of the industrial instrument concerned.

(2) Such an injunction may be granted on application or on the Commission’s own initiative.

(3) A person who disobeys such an injunction is guilty of contempt of the Commission and may be dealt with accordingly.

Note. Section 180 deals with proceedings for contempt.

4 The charge against the AWU and the particulars of the charge were in the following terms:

The Australian Workers' Union, New South Wales (the Defendant), on 21 February 2003 at Port Kembla Steelworks, Five Islands Road, Port Kembla in the State of New South Wales, did contravene the BHP Steel Port Kembla Operations Enterprise Agreement 2002 (EA 02/259) by holding a stop work meeting of employees of the Prosecutor while directing that the said agreement not be observed and that hot metal would be dumped and interfering with the delivery of hot metal from the Blast Furnaces to Steelmaking of the Prosecutor's Port Kembla Steelworks contrary to clause 9 of the said agreement.

The particulars of the charge(s) are:

1. On or about 20 February 2003 the Defendant subscribed to a handbill to employees of the Prosecutor concerning a stop work meeting at 7.30 am on Friday, 21 February 2003 with the directions "You are to cease work at the commencement of day shift on Friday, in time to attend the meeting" and "There will be no supply agreement in place during the stoppage. In other words, hot metal will be dumped ...".

2. On 21 February 2003 the Defendant held a stop work meeting of employees of the Prosecutor at Wollongong Showground, Crown and Harbour Streets, Wollongong in the State of New South Wales.

3. On 21 February 2003 the Defendant's official and delegates interfered with the delivery of hot metal from the Blast Furnaces to Steelmaking of the Prosecutor's Port Kembla Steelworks.

4. On 21 February 2003 hot metal was dumped at the Prosecutor's Port Kembla Steelworks.

5 The charge against the ETU and the particulars of the charge were in the following terms:

Electrical Trades Union of Australia, New South Wales Branch having a registered office at Level 5, 370 Pitt Street, Sydney in the State of New South Wales (the Defendant), on 21 February 2003 at Port Kembla Steelworks, Five Islands Road, Port Kembla in the State of New South Wales,

did contravene the BHP Steel Port Kembla Operations Enterprise Agreement 2002 (EA 02/259) by holding a stop work meeting of employees of the Prosecutor while directing that the said agreement not be observed and that hot metal would be dumped contrary to clause 9 of the said agreement.

The particulars of the charge(s) are:

1. On or about 20 February 2003 the Defendant subscribed to a handbill to employees of the Prosecutor concerning a stop work meeting at 7.30 am on Friday, 21 February 2003 with the directions "You are to cease work at the commencement of day shift on Friday, in time to attend the meeting" and "There will be no supply agreement in place during the stoppage. In other words, hot metal will be dumped ...".

2. On 21 February 2003 the Defendant held a stop work meeting of employees of the Prosecutor at Wollongong Showground, Crown and Harbour Streets, Wollongong in the State of New South Wales.

6 The charge against the AFMEPKIU and the particulars were in the same terms as that alleged against the ETU.

7 The injunctions sought against each of the defendants were essentially in the same terms. The form of injunction sought against the AWU was as follows:

The Industrial Relations Commission of New South Wales in Court Session, having imposed a civil penalty upon you following the hearing of the application by BHP Steel (AIS) Pty Ltd having a registered office at Level 11, BHP Steel Centre, 120 Collins Street, Melbourne in the State of Victoria and having a principal place of business at Five Islands Road, Port Kembla in the State of New South Wales (the Prosecutor) alleging that you,

on 21 February 2003 at Port Kembla Steelworks, Five Islands Road, Port Kembla in the State of New South Wales,

did contravene the BHP Steel Port Kembla Operations Enterprise Agreement 2002 (EA 02/259) by holding a stop work meeting of employees of the Prosecutor while directing that the said agreement not be observed and that hot metal would be dumped and interfering with the delivery of hot metal from the Blast Furnaces to Steelmaking of the Prosecutor's Port Kembla Steelworks contrary to clause 9 of the said agreement.

AND now, being of the opinion that your act or default justifies the granting of injunction pursuant to section 359 of the Industrial Relations Act 1996.

I therefore order that you are perpetually restrained from committing any further or other breaches of the said BHP Steel Port Kembla Operations Enterprise Agreement 2002 (EA 02/259).

8 Each of the defendants denied the alleged contraventions occurred and opposed the granting of injunctions.

Background facts

9 The prosecutor operates a large steel making plant at Port Kembla in the State. Each of the defendants is a registered organisation of employees under the Industrial Relations Act. Each of the defendants has members who are employees of the prosecutor. Of the three defendants the AWU has by far the largest representation of the employees at the prosecutor's Port Kembla plant.

10 The charges allege that each of the defendants contravened the BHP Steel Port Kembla Operations Enterprise Agreement ("the EA") on 21 February 2003. In relation to the AWU it was alleged that it held a stop work meeting of employees of the prosecutor while directing that the EA not be observed and that hot metal would be dumped and, further, that the AWU interfered with the delivery of hot metal from the blast furnaces to steel making at the plant contrary to cl 9 of the EA. The charge of interference was not alleged against either the ETU or the AFMEPKIU.

11 The EA was approved by the Commission on 11 July 2002. Its nominal term was from 6 December 2001 until 5 December 2003. The parties to the EA were the prosecutor and each of the defendants. Clause 4.1 provided that:

This Agreement is intended to, and shall be interpreted so as to give effect to the Recommendation of the Commission (Walton J, Vice President) published on 13 May 2002 in matter no. 8095 of 2001 which forms the basis of the settlement of the enterprise agreement negotiations which occurred between the parties in 2001 and 2002 in respect of the Port Kembla operations of the Companies.

12 Clause 5 provided for increases to wages and allowances. Subject to the terms of the EA, cl 8.4 provided for employment security for the period of the EA. Clause 9 of the EA was central to the issues in these proceedings. It is necessary to set out subcll 9.1, 9.2 and 9.3 in full:

9. REGULATION OF DISTURBANCES TO PRODUCTION AND SUPPLY

Objects of this Clause

9.1.1 One of the key pillars that supports the ability of the Companies to have an effective and efficient business is the ongoing compliance by the parties and all employees with the obligations in this clause in respect of hot metal arrangements and meeting urgent customer needs.

9.1.2 The commitment and compliance with the obligations prescribed in this clause are significant in that they recognise the paramount importance of satisfying the Companies' customers each and every day and the close linkage between customer satisfaction, business performance and employment security. In addition they recognise the importance of protecting the security and integrity of the Companies' assets and not wastefully destroying product.

9.1.3 The parties recognise that to achieve these goals and maintain secure employment, they must manage their differences without allowing these differences to result in the destruction of product or major disruption to the Companies' customers.

9.1.4 The parties understand that only by satisfying customers and developing markets can the Companies deliver the desirable benefit of ongoing security of employment.

9.1.5 The obligation to comply with the arrangements contained in this clause in respect of hot metal and meeting urgent customer needs does not restrain, or seek to restrain, the taking of industrial action which does not result in non-compliance with those obligations. The parties are however committed to working together to provide a workplace where issues are resolved without recourse to industrial action.

9.1.6 The obligations imposed by this clause apply to all parties and all employees at all times, regardless of the reasons for or the nature or the extent of industrial action (i.e. whether limited to a particular part or parts of the Companies' operations or involving the whole of such operations).

9.1.7 The obligations imposed by this clause require that employees covered by this Agreement perform as directed the necessary work (for the purposes of this clause) which is part of their usual duties and are not to be taken as requiring 'staff' employees to undertake such work instead of employees covered by this Agreement.

9.1.8 The hot metal arrangements provided for in this clause are designed to preserve the interests of those engaged in the taking of industrial action by requiring that the Companies not deal with slabs produced (in the sense of further processing and dispatching the slabs) until the industrial action ceases except as provided for in sub-clause 9.3.6.

9.1.9 Similarly, the proposal for the meeting of urgent customer needs does not require all product to be distributed but rather only that part of it requiring urgent dispatch and subject to the provision of information and appropriate consultation as specified in this clause.

9.2 Compliance with this Clause and Linkage with Employment Security

9.2.1 There must be strict compliance by all parties with the terms of this Agreement concerning hot metal arrangements (sub-clause 9.3) and meeting urgent customer needs (sub-clause 9.4) during the course of any industrial action. There must be no breaches of these provisions.

9.2.2 The taking of steps during the course of any industrial action in breach of these requirements would be a serious matter and one requiring significant and urgent attention in any dispute resolution processes. Any breach would be a paramount consideration for the Commission in the exercise of its powers under the Act as to industrial disputes.

9.2.3 A breach of the provisions concerning hot metal arrangements (sub-clause 9.3) and meeting urgent customer needs (sub-clause 9.4) may result in the removal (in part or whole) of the employment security provisions specified in clause 8 of this agreement. Any such removal shall not relieve the employees concerned of their obligations to comply with the requirements of this clause 9.

9.2.4 An application to remove the benefits of security of employment from any employees may be made by the relevant Company by notification under the Act of an industrial dispute. The Companies shall bear the onus of making out a case for such removal. The determination of such an application shall be governed by the considerations referred to by the Commission in the Recommendation of Walton J – Vice President, dated 13 May 2002, particularly at paragraph 95. The Commission's determination shall be binding on the parties.

9.3 Hot Metal Arrangements

9.3.1 Plant operations will continue at normal production rates unless there is industrial action, which extends more than 8 hours, in one of the following major departments and where that action would prior to this Agreement have resulted in the dumping of hot metal. The major departments are: Blast Furnaces, Rail Operations, BOS and Slab Caster.

9.3.2 Recognising that this provision is designed to avoid destruction of product and not to retain normal operations in the event of industrial action in one of the above areas, the Blast Furnaces will, where the industrial action in one of the major departments referred to in sub-clause 9.3.1 runs for more than 8 hours, operate at a reduced level. That level will be nominally 90% of full production level – that being the level necessary to maintain stable furnace operations and to return to normal operating levels immediately after the industrial action.

9.3.3 All iron that is at the BOS at the time the industrial action commences will be processed as normal.

9.3.4 Slabmaking operations will be sufficient to ensure that there is no hot metal dumped as a result of industrial action. Generally it is expected that this will require consistent 2-machine casting on any 2 machines as may be required. It is noted that, where possible, generally No. 2 and No. 3 machines would be utilised.

9.3.5 Slabs will be processed to the extent necessary to ensure the integrity of the product.

9.3.6 Subject to subclauses 9.3.3, 9.3.5 and 9.3.7 all slabs produced during the course of industrial action shall be stored at locations selected by the Company and will not be further handled, dispatched or processed until the actual cessation of the industrial action, provided that slabs shall be further handled (but not dispatched or processed) to the extent necessary for reasons of safety or to enable effect to be given to the objects of this Clause and the requirements of this sub-clause 9.3.

9.3.7 Slabhandling operations will ensure that slab is stacked in the Slab Yard or as directed by the company in an efficient and effective way. Where the industrial action is in the Slab Yard area, slab will still be produced and that slab will be stacked and stored in an effective and efficient way as directed by the Company.

9.3.8 The parties' commitment to "no dumping of iron" requires that support functions necessary to sustain the safety and operating integrity of the blast furnaces, however provided, will continue through the industrial action.

9.3.9 No employee or union will direct or encourage any employee or contractor in an associated area to take action that may have the effect of circumventing the intent and operation of these arrangements – namely that Blast Furnaces continue to operate and hot metal is not dumped in the event of industrial action.

9.3.10 The Company shall provide the Unions each day with a list of the location of all slabs stored in accordance with these hot metal arrangements during the course of industrial action.

13 It is clear that industrial action is not prohibited by the terms of the EA. It is equally clear, however, especially from the provisions of 9.2 and 9.3 of the EA, that "there is to be no hot metal dumped as a result of industrial action" and that no employee or union will direct or encourage any employee or contractor to take action that would have the effect of circumventing the requirements of the EA that hot metal not be dumped in the event of industrial action. Further, plant operations are to continue at normal production rates unless there is industrial action, which extends more than 8 hours.

14 In Notification under s 130 by BHP Steel (AIS) Pty Ltd of a dispute with the Australian Workers' Union, New South Wales and others [2003] NSWIRComm 125 the Full Bench, in interpreting certain provisions of the EA, made the following observation at [4]:

4 The enterprise agreement resulted in and constituted the legally binding arrangements between the employers and employees and their unions at the Steelworks. However, the obligations which come about in such circumstances are not confined to merely legal considerations. The Commission will ensure parties give solemn adherence to the terms of industrial arrangements whether in the form of consent awards or enterprise agreements and will not countenance manoeuvring by parties designed to extricate themselves from good faith bargains: Re Broken Hill Commerce and Industry Consent Award (No. 2) [2002] NSWIRComm 309 at [33]. The operation of this principle is even more significant in the present case where the agreement of the parties (which derives from their own direct agreement and their agreement to be bound by recommendations made by the Commission) constitutes the resolution of significant industrial issues affecting a very substantial corporation employing many employees and where the resolution of the issues in dispute is very much connected to the interests of the citizens of the Illawarra. There are, therefore, powerful public interest considerations in favour of requiring strict adherence to the terms and spirit of the enterprise agreement.

15 After referring to cl 9 of the EA the Full Bench observed at [7]:

7 It is not necessary to analyse this provision in detail. However, it will be seen immediately that the agreement provides substantial measures to ensure that, in the case of industrial disputation, the operations of the company will be maintained so as to prevent the destruction of product through the dumping of hot metal. The arrangements do not prevent the taking of industrial action per se but strike a balance between the interests of the applicant employer (by ensuring that its employees perform necessary work to prevent the dumping of hot metal) and the interests of union members by ensuring that the employer recognises the rights of those participating in the industrial action (by not dealing with, in the sense of processing or dispatching, slabs produced during the industrial action). The significance of the provisions is well illustrated by cl9.2 which establishes a link between the avoidance of the destruction of product and security of employment provisions.

Evidence for the prosecutor

16 Mr R J Buchanan QC with Mr P C Coleman of counsel appeared for the prosecutor. Mr Buchanan tendered the following documentary material: a certified copy of the rules of the AWU, a certified copy of the EA; a tax invoice issued by the Wollongong Sportsground Trust to the AWU in relation to the hire of "WIN Stadium" from 7.00 am to 10.00 am on Friday 21 February 2003; a notice by the prosecutor to the Australian Securities and Investments Commission dated 17 November 2003 advising of the change of name to BlueScope Steel (AIS) Pty Ltd; and, correspondence between the ETU and the solicitors for the prosecutor, Blake Dawson Waldron, where the ETU demanded that the prosecutor discontinue proceedings on the grounds that the action by the prosecutor had not been directed against the "proper Industrial Organisation". It was said in the ETU's letter that "the logo on the flyer announcing the mass meeting was that of the "CEPU", a separate entity to the ETU. Further, the ETU claimed in its letter the ETU had no members "in the area that looked after the Diesels" and that its members were "therefore not involved in the dumping process in any way, nor do we have any influence in the dumping of metal by other Union members." The prosecutor's solicitors declined to withdraw the proceedings against the ETU.

17 In relation to the AWU's Rules, Mr Buchanan referred in particular to the following:

Rule 5, sub rule (27): "Officer" means a member holding any elected position in or on behalf of the Union and includes members of the Union who are members of committees and delegates representing the Union who have been approved by the relevant Branch or Branch Executive on other bodies together with employed Organisers, Industrial Officers and Research Officers.

Rule 64, sub rule (1): In the event of a dispute arising on any job or at any place of employment which cannot be settled amicably, the members involved shall by their delegate or other representative and before taking any action in furtherance of the dispute, notify the State Secretary or the relevant Branch Secretary or some full-time Officer of that Branch.

Rule 64, sub rule (2): Subject to any directions concerning the dispute given by the State councillor Branch Executive, the members involved shall comply with all directions of the Officer of the Branch or of the Union who has been notified of or who is handling the dispute.

18 The prosecutor tendered nine affidavits. Two of the deponents, namely Mr Lloyd and Mr Hillier, were not required for cross-examination. David Andrew Lloyd is a solicitor and partner with Blake Dawson Waldron. Mr Lloyd deposed that he had been provided with a video tape recording part of WIN Television 6.00 pm nightly news broadcasts for Thursday 20 and Friday 21 February 2003. The videotape was exhibited. The Court viewed the videotape. In his affidavit Mr LLoyd deposed:

4. The video tape contains footage of a meeting of delegates of the Defendants to these proceedings. The footage shows three people behind a table at this meeting. I identify those people to be Warwick Tomlins (seated on left), Andy Gillespie (standing in middle and addressing the meeting) and Wayne Phillips (seated on right).

5. The video tape also contains footage of a stop work meeting of employees of BHP Steel. The footage shows the meeting being addressed by two people who are each standing under umbrellas. I identify those people to be Andy Gillespie (who is standing under a red and white umbrella) and Warwick Tomlins (who is standing under a black umbrella with the logo "ETU" on it).

6. I am able to identify Andy Gillespie, Wayne Phillips and Warwick Tomlins because I have had regular dealings with each of them since about 1994 in numerous matters before the Industrial Relations Commission of New South Wales in Wollongong and in Sydney. I have been present at such matters before the Commission as a solicitor representing BHP Steel or its related companies.

19 Robert William Heycott is the prosecutor's Production Control and Scrap Supply Manager. He has been employed by the prosecutor for 21 years and has professional qualifications in metallurgy, computing and logistics. Mr Heycott explained aspects of the steel making process and observed in his affidavit that:

Due to the need to maintain continuous casting by the Slab Caster, the Steelmaking process must be scheduled to ensure exact timing of ladle delivery to each of the 3 casters in the Slab Caster.

...

10. The Company utilises 31 operating torpedo ladles. The Company can also place hot metal in hot metal pots. The maximum hot metal which the Company could hold by these means is approximately 3,000 tonnes. However, from a practical point of view, an amount of 1,600-2,000 tonnes is the most which can be comfortably held at any one time. As indicated above, any hot metal produced by the blast furnaces which exceeds the ability to be held in torpedo ladles will need to be dumped. This is to ensure there are sufficient torpedo ladles to receive hot metal from the blast furnaces. The torpedo ladles can be insulated to allow hot metal to be held for up to 36 hours. However, desirably, this would never be for more than 16 hours. However, all of this must be placed in the context of normal blast furnace output (ie both Nos 5 and 6 blast furnaces) being approximately 600 tonnes per hour. Hence, any interruption to normal work of more than a 2–3 hours will place the Company in a position of dumping hot metal. If hot metal needs to be dumped, it is taken from the Blast Furnaces to "21 area" by locomotive and does not reach the BOS.

11. It is the Hot Metal Coordinator who determines when there is a need to dump. This will occur when there are not enough torpedo ladles to accept blast furnace output rate.

12. In the afternoon of 20 February 2003 I was telephoned by my second in charge, Bob Glasgow. He made me aware of a written union notification calling a full stop work meeting at 7.30 am on Friday, 21 February 2003. At the time, I was in Melbourne, returning from a visit to Western Port. He told me he had been involved in Slabmaking management meetings, and that the managers would meet with Slabmaking employees to communicate the Company's expectation that employees would abide by the no dumping requirements of the Enterprise Agreement during the stop work meeting.

...

14. At about 3.30 am on 21 February 2003, I was telephoned by my Process Coordinator on shift, Dave Wyper. Mr Wyper told me that Andy Gillespie and a number of Rail Operations delegates had been involved in discussions on the plant. I was told by Mr Wyper the outcome of those discussions. I was made aware a black ban had been imposed on the placement of torpedo ladles at the Hot Metal Weighbridge.

...

18. ... on the night shift of 20 February i.e morning of 21 February 2003, the Company dumped hot metal on 3 occasions for "industrial" reasons totalling an amount of 1,248 tonnes of hot metal dumped.

...

21. ... on the day shift of 21 February 2003, the Company dumped hot metal on 3 occasions for "industrial" reasons totalling an amount of 1,114 tonnes of hot metal dumped.

20 Kenneth John Brotherson is a solicitor and partner with Blake Dawson Waldron. His affidavit addressed a dispute notification pursuant to s 132 of the Act by the prosecutor and filed with the Industrial Registrar on 20 February 2003 in relation to the stop work meeting planned for the following day. The matter was listed in Wollongong in the afternoon of 20 February before Deputy President Grayson. Mr Brotherson represented the prosecutor in the proceedings. Exhibited to Mr Brotherson's affidavit were:

(i) The dispute notification;

(ii) The transcript of proceedings before Grayson DP;

(iii) A union notice (AWU, AMWU and CEPU) advising delegates of an urgent meeting called for Wednesday 19 February at 4.00 pm and Thursday 20 February at 7.30 am. The meeting was said to be in relation to the "Company's plans to outsource production roles and major parts of the BHP plant" and a "Report on attempt by BHP to recover costs from Mr Jose Filipe.

(iv) The union notice calling the stop work meeting.

(v) Correspondence regarding workplace change.

21 The union notice was in the following terms:

ALL COMBINED STEEL UNIONS MEMBERS

By decision of the delegates a

STOPWORK MEETING

HAS BEEN CALLED

FRIDAY 21 FEBRUARY

7.30 AM

At Wollongong Showground

You are to cease work at the commencement of day shift on Friday, in time to attend the meeting.

AGENDA:

To hear a report on outsourcing of production and other operations at BHP.

This meeting is of utmost importance and the matter is vital to your future

There will be no supply agreement in place during the stoppage. In other words, hot metal will be dumped and no supply out of warehouses will take place.

AUTHORISED:

AWU Logo AMWU Logo CEPU Logo

A. Gillespie W. Phillips W. Tomlins

22 The transcript of the proceedings before Grayson DP reveals that the prosecutor was concerned at the prospect of having to dump hot metal in the event the stop work meeting went ahead on 21 February as foreshadowed in the union notice. In the proceedings Mr Brotherson said:

But the issue of the dumping of hot metal will certainly arise and will arise prior to the commencement of the meeting and that arises due to the operational requirements of the steelworks and if I can describe it in this way, your Honour, for a stopwork meeting that commences at 7.30am the company in that case being BHP Steel (AIS) Pty Limited, would need to slow the amount of hot metal being taken to the BOS from 1.30am this morning and to totally stop the taking of any further hot metal by 3.30am this morning and in slowing the movement of hot metal from 1.30 that doesn’t mean production is turned back, it simply means that amount of hot metal not going to the BOS will go to the dump and from 3.30 all hot metal that is subsequently produced would go to the dump. So that from 1.30am this morning, or tomorrow morning I should say, the company will be dumping hot metal to accommodate this proposed meeting.

Now, that dumping of hot metal would then continue throughout the duration of the stoppage and until such time as the company had some clarity of when there would be a return to work when it could again commence placing hot metal in ladles for processing through the BOS.

The effects of the dumping of hot metal are ones which I don’t think we need to go into any great detail on at this point in the proceedings. The Commission’s well aware of the impact that is as a lost production, environmental impact and of course the effect on blast furnace stability.

There is one aspect at this point in time that is of concern to the company and that is that number 5 blast furnace has been shut down, on my instructions, for a period of almost twenty-four hours and is due to come back on line sometime late this afternoon. It would need to be, if I can use the term, nursed for a period of time to ensure that it moves back into a stable and viable operating condition.

23 The stop work meeting appears to have been called because of a view on the part of the three unions that, in breach of its obligations under the EA to consult with unions and employees before implementing workplace change, the prosecutor had made a decision to implement changes that involved the outsourcing of certain work at the steel making plant to contractors. In the proceedings before Grayson DP the prosecutor denied this was the case and tendered a letter from the prosecutor's Vice President of Human Resources dated 20 February 2003 that "the considerations of outsourcing some parts of the business were not final decisions" and that the "possible changes in the future" that had been communicated to employees in the Slabmaking Department in two memos from the Manager, Slabmaking dated 11 February 2003, were "part of the very early stages of consultation."

24 Mr Andrew Gillespie, the Branch Secretary of the Australian Workers' Union, Port Kembla, South Coast and Southern Highlands Branch, appeared in the proceedings before Grayson DP together with Mr Warwick Tomlins, an official of the ETU and Mr Wayne Phillips, Organiser for the AFMEPKIU.

25 Mr Gillespie insisted before Grayson DP that the stop work meeting planned for the next day would proceed. He submitted that hot metal would probably go to the dump "anyway" because Number 5 Blast Furnace had only come back onto line that afternoon after programmed maintenance and would probably in the initial stages produce "bad metal". Mr Tomlins said it was "important to have the meeting with the workforce tomorrow" and that he was concerned the prosecutor was planning large-scale outsourcing. Mr Phillips said he did not believe there had been appropriate consultation and that in respect of the stop work meeting "it is too late to stop it and ...I'm not keen to stop it anyway ... because its just gone too far."

26 In concluding the proceedings, Deputy President Grayson said:

HIS HONOUR: I can at this stage indicate to you, Mr Brotherson and to the union parties that subject to anything further you need to say about the background to the notification it is the Commission’s firm view that those charged with the leadership of the unions here today and the respective members, workers, employees of the steel industry companies in the Illawarra should under no circumstances take strike action or any other form of industrial action. It is as was observed by the Full Bench the other day in so many ways counterproductive to the lives of working men and women and to the productivity of the company that they rely upon for their employment.

I understand and acknowledge legitimate concerns on the part of those working men and women with respect to the security of their employment, there is and will remain for so long as this Commission exists I imagine, an open invitation to approach the Commission in any circumstances giving rise to those concerns and to seek the Commission’s assistance in the resolution of those concerns. That is the fundamental proposition underpinning the enterprise agreement between the parties and it is a fundamental proposition to which great respect ought be accorded. I’ve heard today nothing that would persuade me that the parties have lost sight of or are blind to those fundamental propositions.

To the extent that the unions appear to be committed, and I understand the practicalities of that, to a stopwork meeting tomorrow at 7.30am it is to be hoped that all reasonable attempts will be made to keep it as short as is absolutely necessary and to ensure in the process that the obligations incumbent upon the parties are observed closely and respectfully. Those are the Commission’s strong recommendations to the parties. It seems to me appropriate in all the circumstances that the Commission as presently constituted be notified as soon as possible after the stopwork meeting tomorrow in writing by facsimile transmission the outcome of that meeting. If it’s possible to formulate a joint notification to that effect it would be better but alternatively, the direction will apply to each of the parties here at the bar table.

The matter will then in the circumstances be adjourned until 2pm tomorrow in Sydney whereupon the Commission, perhaps not as presently constituted, will review the programming of the matter.

27 Wayne Roger Staff is employed by the prosecutor as Superintendent BOS [Basic Oxygen Steelmaking] Furnaces Slab Making at the Port Kembla plant. He has been employed by the prosecutor in various roles since 1987 and in his current role since 1 June 2002. Mr Staff explained in succinct terms in his affidavit the process of steel making as follows:

3. Steelmaking is a continuous and time sensitive process. Put simply, the steelmaking process involves hot metal from the Blast Furnaces being transferred into torpedo ladles that are transported by rail to the Hot Metal Weighbridge that is located in the BOS Furnaces area.

4. When the hot metal arrives at the Hot Metal Weighbridge, the hot metal in the torpedo ladles is poured into a Hot Metal Pot which is delivered to the BOS furnace by overhead crane.

5. Hot metal (and scrap) is charged into the BOS furnace. Oxygen is blown into the furnace converting the hot metal to liquid steel. The liquid steel is then tapped into a ladle which is transferred to the Steel Treatment Area.

6. The Steel Treatment Area adjusts the temperature and chemistry of the steel after which the ladle is transferred to the casting machine where the casting process begins. The casting process converts the liquid steel into steel slabs by way of a continuous casting process.

7. Once the hot metal is transferred into a hot metal pot and charged into the BOS Furnace, the steel in the system must be processed through the stages outlined above.

28 Mr Staff explained his involvement in the events on the day and evening preceding the stop work meeting as follows:

8. On Thursday, 20 February 2003, I saw a copy of the combined unions' notification about a Steelworks wide stop work meeting to be held at 7.30 am on Friday 21 February 2003. A copy of the notification I saw is annexed ... I cannot remember where I saw the notice. However, as a result of it, the Superintendents for Slabmaking (that is, me, Gerry Mahoney, Peter Chandler, Ross Schuback and Gerry Whelan) met with Ray Peters, Manager Slabmaking. We decided to come in at the beginning of night shift on 20 February 2003 and speak to our respective night shift crews (who were rostered from 11.20 pm on 20 February 2003 to 7.20 pm on 21 February 2003) to ensure that in accordance with the BHP Steel Port Kembla Operations, Enterprise Agreement 2002 (the EA), they understood they would be expected to continue to process metal throughout the night shift leading up to the commencement of the stop work meeting.

9. I went home in the afternoon of 20 February 2003 and then returned to work at about 10.45pm. Once at work, I arranged for the BOS Furnace area night shift crew (that is, shift 2) to meet with me in the crib room.

10. Wayne Felton, BOS Furnace Supervisor, and I met with the night shift crew at about 11.20pm. All of the night shift crew rostered to work that day were present. I asked if they had seen the notification of the stop work meeting. Most said, "No". I could not see any copies of the unions' notice in the crib room. I held up a copy of the notice ... and gave a copy to one of the employees and asked him to read it aloud so everyone would know what the situation was. He did so. I reminded the employees of the obligations under the EA about not dumping hot metal. I said we would expect them to work their shift, and for day shift to also work to ensure that hot metal would be processed in accordance with the EA.

11. As a result of my discussion with the night shift crew, I understood that they were prepared to work their shift and continue to process hot metal. I then left for home. It was about 11.55pm.

12. At about 2.00 am on Friday 21 February 2002, Mr Felton telephoned me at home. We had a short conversation. He telephoned me twice more at 5 minute intervals giving me updates.

13. At this point I decided to go into work to ensure that my crew was not being harassed or intimidated into doing something they did not want to do.

14. I arrived at the BOS Furnace area at about 2.30am. I met Mr Felton at the BOS office and we then went to the No. 2 Control Room. There were 2 staff and one operator there. They said to me words to the effect of:

"Everything's going okay. We're all right."

15. Mr Felton then went to the Hot Metal Weighbridge. Mr Felton called me on the PA from the Weighbridge and told me that Andy Gillespie and two other people were there (that is, in addition to the one operator in the mule cabin who operates the mule, which is part of the Hot Metal Weighbridge).

16. I immediately went down to the Hot Metal Weighbridge. I met with Mr Felton. We went in to the mule cabin (which is, in effect, a small office/control room) together. Andy Gillespie, Bill Collins, a Rail Operations delegate, and someone else I assumed was also a Rail Operations delegate were present. I recognised Andy Gillespie from his photograph in the local newspaper. I had not met him before. I was able to identify Bill Collins because his name was on his hard hat. I already knew that someone of that name was a Rail Operations delegate. I introduced myself to Andy Gillespie, Bill Collins and the other delegate. They did not reciprocate and introduce themselves. There was then a discussion to the following effect:

Andy Gillespie said in a matter of fact tone:

"The BOS has to stop pouring hot metal."

I said:

"The BOS will continue to use the hot metal as per the EBA. The EBA was signed off and agreed to."

Andy Gillespie then started talking about the Commission hearing of 20 February 2003.

He said:

"There were no directives from the hearing. Grayson said the company had no right to keep operating during the stop work meeting. That means hot metal will be dumped."

I said:

"From the information I have, there was a recommendation that all hot metal should be processed during the meeting as normal."

Andy Gillespie:

"I was at the hearing; you weren't. What would you know. It's 3 in the morning, so just stop pouring hot metal so everyone can go home and get some sleep. I don't have time to debate it."

I said:

"I have all night. You don't have permission to be on my plant."

Mr Gillespie:

"I have a right to come onto the plant and talk to people any time I like. I do not have to get permission from some kind of shift superintendent."

I asked Mr Gillespie:

"Who asked you to come in and what's the issue?"

He did not respond to my question. However, he again said:

"I have the right to access this site any time. You don't know anything about right of access."

I said:

"Do you have some identification – I don't know you. You don't have permission to be on my plant."

Andy Gillespie pointed to the AWU symbol on his shirt and said:

"That's my right of entry, now you fuck off."

I again said to Andy Gillespie:

"This is my plant. You do not have permission to be here."

Mr Gillespie responded:

"This isn't your plant. You're just a number."

Mr Felton then said:

"My people want to stay at work as per the agreement. I support that."

Andy Gillespie said words to the effect of:

"What do you want, a medal?"

17. The ensuing conversation involved repetition of what had already been said. For my part, I repeated to Andy Gillespie that he did not have permission to be on the plant and for his part, Andy Gillespie repeatedly told me to "fuck off."

18. Mick Crehan (BOS Hot Metal Attendant) then arrived at the Hot Metal Weighbridge. Andy Gillespie and the two Rail Operations delegates walked outside the mule cabin and joined him. Mr Felton and I followed. I was concerned that Mick Crehan would be put under pressure to stop pouring hot metal from the torpedo ladles on the Hot Metal Weighbridge, so I said to Mick Crehan words to the effect of:

"Do you want to talk to these guys or not?"

Mick Crehan said:

"I just want to hear what they have got to say."

19. Mr Felton and I stood about 2 metres apart from Mick Crehan, Andy Gillespie and the two Rail Operations delegates while they spoke.

20. Shortly afterwards, Andy Gillespie and the two Rail Operations delegates left the Hot Metal Weighbridge. They headed in the direction of the external traffic lights.

21. Steve Bosinovski (another mule operator) then arrived at the mule cabin. He had been on a crib break. I said to him words to the effect of:

"I will be staying around for the rest of the night. Wayne and myself will be down from time to time to make sure everything's all right. I won't let you be harassed or intimidated in any way."

Steve Bosinovski said words to the effect of:

"That's okay. We'll continue to pour any metal that's on the Weighbridge."

22. At 3.30 am I became aware of reports that the Rail Operations employee may have placed a ban on continued use of the Weighbridge. It was at that point unclear to me what this meant, but in any event shortly thereafter I was advised that the Rail Operations employees were ceasing delivery of hot metal to the Weighbridge.

23. At about 4.17am the BOS Furnace area finished processing the last heat and tapped it out. The plant was then idle.

24. Later that morning, at about 6.00am, I prepared handwritten notes of what had occurred on the night shift 20/21 February 2003. A copy of my handwritten notes is annexed ...

25. At about 10.00am on 21 February 2003, I arranged for my handwritten notes to be typed and made some additions to them at this time consistent with my recollection and knowledge. A copy of my typed notes is annexed ...

29 Wayne Stephen Felton is employed by the prosecutor in the position of BOS Furnace Supervisor at the Port Kembla plant. The company has employed him for 39 years and as Furnace Supervisor since 1978. He is responsible for overseeing the processing of iron into steel on the operating floor of the BOS plant.

30 Mr Felton explained that:

9. Once the hot metal from the torpedo ladles is placed into a hot metal pot, the steel making process cannot be stopped. The hot metal is processed through the Steelworks system into a final product.

10. Also, there is no facility at the Steelworks to return the hot metal from the hot metal pot into a torpedo ladle. Therefore, once hot metal is accepted by operators in the BOS plant at the weighbridge, and placed in the hot metal pots, it cannot be dumped.

31 Mr Felton deposed in his affidavit that:

11. I am familiar with clause 9.3, Hot Metal Arrangements, of the Enterprise Agreement. Because the acceptance of iron at the BOS plant is critical to ensure that hot metal is not dumped, and the operators in the BOS plant are the first operators involved in the pouring of hot metal, I have had a number of discussions with employees on my shift about the operation of clause 9.3.

32 Mr Felton corroborated Mr Staff's version of events of the evening of 20 February. In particular, he said:

15. At approximately 1.00 am on 21 February 2003, I was contacted by Mr Steve Bosinoski, operator 3 (mule operator) who said to me words to the following effect:

There are two rail operation union delegates in the mule cabin with me. They want to know why the BOS is going to continue to operate during a stop work meeting which was contrary to the union's direction. They've taken my name down.

16. I was concerned that Mr Bosinoski was being intimidated and so I went down to the mule cabin. The time was 1.12 am. I saw Mr Bosinoski with two employees from the Rail Operations Department, Mr Lelio Petinga and Mr Bill Collins. I had a discussion with Mr Collins, in the presence of Mr Bosinoski and Mr Petinga, in words to the following effect:

I asked:

What are you doing?

Mr Collins showed me the notice from the unions advising of the stop work meeting. I recognised this notice as the same as the notice I had seen at Port Kembla Steelworks on 20 February 2003, a copy of which is annexed ...

Mr Collins asked:

Why are you operating during the stop work meeting?

I replied:

A decision was made by my people at the start of shift that they would abide by the EBA and process all hot metal.

Mr Collins and Mr Petinga appeared annoyed at my response. Mr Collins replied:

I want to talk to them and the union delegate.

I then said:

A ladle treatment delegate has already spoken to them after he had a conversation with Andy Gillespie and their original decision to process the hot metal had not changed.

Mr Collins then said:

Hot metal won't be placed on the weighbridge then from around 4.00 am.

Mr Collins and Mr Petinga then left the mule cabin.

33 Additionally Mr Felton said that:

26. At approximately 4.00 am, I was advised by Mr Staff that the employees in the Rail Operations Department had refused to shunt any more hot metal onto the weighbridge. I contacted Mr Johnston and asked him:

What's going to happen to the hot metal?

Mr Johnston replied:

The Acting Superintendent is coming in to speak to my people

27. The hot metal that had been delivered to the weighbridge was processed by the operators on my shift. Although Mr Collins said hot metal would not be placed on the weighbridge from about 4.00am, in reality no hot metal was delivered from about 2.30 am on 21 February 2003.

28. Later that morning, I typed a record of the discussions that night. Annexed ... is a copy of my record of the nights incidents which I had typed.

34 Gerard John Whelan is employed by the prosecutor as Maintenance and Development Manager Slabmaking at the Port Kembla works. The company has employed him since 1965 and in his current position (under various titles) for about 15 years. Mr Whelan is responsible for maintenance employees and maintenance equipment in Slabmaking and the support organisations of training and administration. The maintenance section of the Slabmaking Department is responsible for ensuring the reliability of all equipment and Mr Whelan is responsible for about 120 maintenance employees.

35 Mr Whelan said that on 19 February 2003 he arranged to have a meeting with Mr Wayne Phillips to discuss the memos referred to earlier in this judgment concerning workplace change in the prosecutor's slab making operations. At Mr Phillip's office Mr Whelan said he saw "a pile of flyers ... that referred to a combined unions' stop work meeting on Friday 21 February 2003 at the Wollongong Showground." Mr Whelan had a discussion with Mr Phillips regarding the meeting. Mr Whelan reported his discussion at the weekly Slabmaking management meeting at approximately 2.30 pm on 19 February.

36 Mr Whelan deposed that:

8. At about 6.00pm on 19 February 2003 I met with the Slabmaking maintenance employees on the afternoon shift and reminded them of their obligations under the BHP Steel Port Kembla Operations Enterprise Agreement 2002 (these employees were rostered to work day shift on Friday 21 February 2003). I said words to the effect of:

"We cannot dump, we have to keep making steel and that includes maintenance."

9. At about 7.20am on 20 February 2003, I telephoned Mr Tomlins. We had a discussion about the maintenance changes. In the course of the discussion I said words to the effect of:

"You and Wayne have been set up with the stop work meeting tomorrow as the decision for the meeting has already been made. You've been given the bums rush by Andy. I have seen the flyers. They have already been printed, and that's before the delegates have had their meeting."

He replied in words to the following effect:

"I haven't got one of the flyers but I know what's going on."

Later that day, I wrote notes in my notebook of my discussion with Mr Tomlins. A copy of the notes of my discussion with Mr Tomlins that I wrote in my notebook are annexed to this affidavit ... On or about Friday 21 February 2003, after the stop work meeting had occurred, I wrote further notes in my notebook of my discussion with Mr Tomlins. A copy of these further notes that I wrote in my notebook are annexed to this affidavit ...

10. Between about 10.30pm and 11.30pm on Thursday 20 February 2003, I met with the Slabmaking maintenance employees on afternoon shift and night shift and advised them of the requirement to continue to produce steel under the terms of the Enterprise Agreement. The maintenance employees in BOS and Caster agreed and understood that they had to be there at work.

11. On Friday 21 February 2003, the maintenance day shift employees attended the Slabmaking Department ready to perform work except for one employee who attended the stop work meeting. Two shift electricians who had attended for work then left the Slabmaking Department as production had stopped.

37 Gerard Francis Mahoney is employed by the prosecutor as Casting and Slab Manager. The company has employed him since 1981 and in his present position (under various titles) since 1995. Mr Mahoney is responsible for the whole of the slab casting operations, which involves about 100 operators, members of the AWU, and about 16 staff employees in supervisory positions. In describing the events of 20 February Mr Mahoney deposed as follows:

9. On Thursday, 20 February 2003, I saw a union handbill about the stop work meeting to be held at 7.30am on 21 February 2003. I saw the handbill in the BOS canteen window. A copy of the handbill is annexed to this affidavit ...

10. Between 4.00pm and 5.00pm on Thursday, 20 February 2003, the BOS management team met again to discuss the union handbill. It was decided that all BOS superintendents would attend night shift (commencing at 11.20pm) and speak to the Shift 2 crews about complying with the EBA and not dumping hot metal.

11. On Thursday, 20 February 2003, I went home between 6.30pm and 7.00pm and then returned to work at about 11.30pm. I first went to the dispatch and turntable aisle pulpits of the Slab Caster (which are effectively 2 small adjoining control rooms) and spoke to 2 operators, Tony Veleski and Todor Dimovski. I said to them words to the effect of:

"There's a stop work meeting planned tomorrow, but as far as this department is concerned, the agreement we have with you is that the casting process will continue and no hot metal will be dumped."

Both said words to the effect of:

"If the slabs keep coming, we'll continue to cast."

12. After speaking to Mr Valeski and Mr Dimovski I went to the Casting Floor crib room. About 6 operators were present, including Mark Everett, Steve Thistlethwaite, Vic Upeski, John Bleatas and Archie Reinfrank. Once again, I said words to the effect of:

"There's a stop work meeting planned tomorrow, but as far as this department is concerned, the agreement we have with you is that the casting process will continue and no hot metal will be dumped."

13. I had a discussion with the operators. At the conclusion of the discussion I was satisfied that the operators would continue to cast slabs as long as the supply chain kept going.

14. I telephoned Ray Peters. I left a voicemail message for him to the effect of:

"I believe my people will continue to cast metal as long as the metal continues to arrive."

15. I then went home. By that time it was about 12.45am on 21 February 2003.

38 Keith Garnet Hillier is employed by the defendant as Rail Transport Manager (Materials and Mills) at the Port Kembla works. He has had various roles since commencing with the company in 1985 and was appointed to his current position in April 2003.

39 In his first affidavit Mr Hillier said that at about 2.00 pm on 20 February 2003:

5. I spoke to Bill Collins and John Karasu outside the Rail Operations building. Mr Collins and Mr Karasu are Rail Operations employees and delegates of the AWU in this area. A conversation occurred in words to the following effect:

Mr Collins said:

"What's happening tonight with the stop work meeting on Friday."

I said:

"It is my understanding that the BOS and the Caster crews are living up to their obligations under the Enterprise Agreement and will continue working."

6. Mr Collins said:

"The Union and Andy Gillespie have said that metal will be dumped. The people at the BOS and Caster have to go on strike because the union have said so. They don't have any option."

I said:

"Everyone has a choice and from what I know the BOS and Caster guys have made a personal choice to continue working."

Mr Collins said:

"They are all in the Union. They have to do what the Union says."

Mr Karasu said:

"If they do work, we will have to take the appropriate actions."

Mr Collins said:

"I will inform Andy Gillespie of this."

Mr Collins and Mr Karasu then left.

40 In relation to 21 February Mr Hillier deposed as follows:

7. At about 2.00am on 21 February 2003, I received a telephone call at home from Michael Johnston, Shift Manager Rail Operations. As a result of what he told me, I asked him to go to the BOS Weighbridge and find out what was going on and to call me back.

8. At about 2.45am, I received a call at home from Michael O'Loughlin, Vice President Human Resources. He said that there were some problems with Rail Operations and asked me to go into work and investigate the matter.

9. At 3.30am, I went to the Rail Operations office and spoke to Mr Johnston. Mr Collins was also in the office. I had a conversation with Mr Collins in words to the following effect:

I said:

"What's happening?"

He said:

"We've put a ban on taking hot metal to the weighbridge. Andy Gillespie has been in and told us that we aren't to take any more metal to the weighbridge. The BOS and Caster guys have to attend the stop work meeting. Andy Gillespie has said we will stay out until they attend the meeting."

I said:

"Are you prepared to take ladles to the weighbridge so the Caster can finish its sequence."

He said:

"No, we have agreed to take one more ladle to fill the pot. That's it. We will then take the metal to the dump."

I said:

"Why are you doing this?"

He said:

"The unions have said we are having a stoppage and we will dump metal and that's what we are going to do. Everyone is going to stop work. We will stay out until they do."

He then left the office.

10. At about 5.30am, I sent an email to Company Human Resources Managers describing the events on 20 and 21 February 2003, a copy of which is annexed ...

11. At about 10.30am on 21 February 2003 I witnessed the Rail Operations employees returning to work after the stop work meeting.

41 In his second affidavit Mr Hillier deposed that he recorded onto a compact disk a "discussion which had itself been recorded on the Company's voice recording system of the Rail Transport Communication system from 3.32 am on Friday 21 February 2003." In his second affidavit Mr Hillier said as follows:

6. The compact disk which is exhibited to me ... records a discussion between Bill Collins, Frank Aquilina and David Piccirillo. Mr Collins and Mr Aquilina are employed by the Company in the Rail Operations Department as locomotive drivers. Mr Piccirillo is employed by the Company in the Rail Operations Department and was employed in the position of Rail Transport Shift Supervisor, a staff supervisor role, on the night shift of 20 February 2003. Typically, the communications between the Rail Transport Shift Supervisor located in the Road Controllers' office and the locomotive driver would be for the purpose of allocating road movements for the locomotive.

7. On the night shift of 20 February 2003, Mr Piccirillo was based in the Road Controllers' Office at Port Kembla Steelworks. I know Mr Collins to be a delegate of The Australian Workers' Union, New South Wales in the Rail Operations Department and have had dealings with him in that capacity for about 6 years. Each of Mr Collins, Mr Aquilina and Mr Piccirillo were rostered to work on the night shift of 20 February 2003 ie the early morning of Friday, 21 February 2003.

8. The discussion recorded on the two way radio is to the following effect:

David Piccirillo Sorry ah Bill

William Collins [indistinct] . . . loco Frankie got

David Piccirillo Frank's got 27

William Collins I just be happy if he has only one ladle on

William Collins 27 Frankie

David Piccirillo And I think Joe just told him their on 1c ah Billy

William Collins Andy just asked me tell him just in case he was a bit gibberish about it. I'll check what he wants . . . [indistinct] . .

Frank Aquilina 27 control

David Piccirillo 27 Frank

Frank Aquilina East side of 5 to the auto

David Piccirillo East side down to the auto road right 27

Frank Aquilina East side of 5 to the auto - road right – thanks

William Collins 27 Frankie

Frank Aquilina 27

William Collins Yeah I don’t know if you know we’ve, eh black banned the weighbridge and theyv'd asked for one ladle only – can you just shove one ladle in there while they make the pot

Frank Aquilina Could you repeat that please Bill

William Collins Yeah there’s a black ban on weighbridge as from ½half an hour ago but their asking for one ladle to make a pot – so we’ll load one ladle on the weighbridge – one ladle only

Frank Aquilina Yeah that’s what we've got now ah Bill

William Collins Good stuff mate – after that we don’t get any more metal over to the dump after that Frankie

Frank Aquilina Righto

9. I am able to identify the voice of Mr Collins because I have worked with him in my roles within the Company's Human Resources Department and Rail Operations Department and have had dealings with him for about 6 years. Mr Collins also has a very distinctive accent. I am able to identify the voice of Mr Piccirillo because I have worked closely with him over the last 12 months or so (since I commenced in the Rail Operations Department in about June 2002). I am able to identify Mr Aquilina because he was referred to by name ie "Frank" and he is the only person of that name who works in the Hot Metal Area. As noted above, each of Mr Collins, Mr Aquilina and Mr Piccirillo were rostered at work on the night shift of 20 February 2003 ie the early morning of Friday, 21 February 2003.

42 The Court has listened to the recording of the conversation referred to by Mr Hillier. The transcription in Mr Hillier's affidavit of what was said accords with the conversation on the compact disk although without the aid of the transcription I would not have been able to discern the whole of the conversation because of the poor quality of the recording.

Evidence for the AWU

43 Mr R Corish of counsel appeared for the AWU. An affidavit of Andrew Gillespie was read. As earlier mentioned, Mr Gillespie is the Branch Secretary of the AWU in Port Kembla, having been elected as an organiser in 1970. Prior to 1970 Mr Gillespie worked in the steelworks. Mr Gillespie said that on 19 February he attended a delegates' meeting. The meeting was called, he said, following complaints from members at the BOS Maintenance and Slab Caster Departments that arrangements were being made to outsource maintenance without any consultation with the workforce or the unions.

44 Mr Gillespie said that at the delegates' meeting the issue of outsourcing was considered important because the EA had just been finalised before the Commission. The delegates, he said, passed a resolution that there should be a meeting of all steel workers to consider the ramifications of what that the company was proposing without consultation with either the workforce or the unions. The delegates' decision, he said, was unanimous. Mr Gillespie deposed that a stop work meeting was arranged for 21 February 2003 at Wollongong Showground. He exhibited a copy of the meeting notice with his affidavit. Mr Gillespie also referred in his affidavit to the proceedings before Grayson DP on 20 February 2003.

45 Mr Gillespie said that the stop work meeting took place and a copy of the minutes of the meeting was exhibited with his affidavit. He said he and Mr Phillips addressed the meeting and Mr Tomlins chaired the meeting. Following the meeting Mr Gillespie said a return to work took place immediately. Mr Gillespie contended that the prosecutor had not complied with cl 9 of the EA.

46 In his oral evidence in chief Mr Gillespie said that in the proceedings before Grayson DP he had given an undertaking that the stop work meeting "would be as short as possible" because "we thought if the meeting was an hour and a half to two hours we thought there would be no need to dump metal." Mr Gillespie said that he had checked the number of ladles the previous evening and considered there were sufficient available in which to store any hot metal while the meeting took place. Mr Gillespie indicated that there were no "bans placed on any part of the hot metal process that evening or in relation to the morning of 21 February."

47 In the examination in chief of Mr Gillespie the following exchange took place:

Q. You were not at the time aware of the hot metal arrangements within the enterprise agreement. Is that right?

A. Yes I was.

Q. Is that something that you took into account when you planned the stop work meeting?

A. Yes we did.

Q. The flyer that has been tendered by the prosecution refers to the dumping of hot metal?

A. Yes it does.

Q. After the proceedings before Grayson DP what in your mind was the status of the risk of the dumping of hot metal?

A. Well the issue about dumping of metal and the meeting is that if the meeting was of short duration there would be no need to dump metal at all. It would only be if the meeting took a decision to prolong the meeting or for a stoppage that may or may not involve dumping metal but for a short stop work meeting and report back meeting over the issues that we had to report back we would think that we were reasonably sure that there would be no dumping of hot metal.

Q. Was there a stop work meeting?

A. The meeting commenced on time and the meeting was finished by eight o’clock.

48 In the cross-examination of Mr Gillespie on 4 December 2003 the following exchange took place in relation to the direction in the handbill that hot metal would be dumped:

Q. What do the words "hot metal will be dumped" mean?

A. In other words, it means that no - it's a phrase that applies to the EPA and our members know it as the nondumping of metal. And, in other words, we're saying that the metal will be held over or whatever it is. So, in other words, it's just applying what the industry talks all about, so that people understand that everybody is to come to the meeting. Nothing more, nothing less.

Q. You say the words "hot metal will be dumped" means hot metal will not be dumped, do you?

A. No, it didn't mean that at all. Because what we were saying to the people quite clearly is that everybody was to attend the meeting. It was intended the meeting was only of short duration. We weren't viewing that any metal would need to be dumped for that matter. That was just to advise our members of the position that we were in.

Q. Do you not accept that these are clear instructions about two things: Firstly, that during the meeting at least there would be no supply out of warehouses, and, secondly, that during the meeting hot metal would be dumped?

A. Supply out of the warehouse actually took place during the meeting.

Q. That wasn't my question. Do you not accept that there were two ingredients: One, there would be no supply out and that hot metal would be dumped?

A. No, we didn't expect - the night shift would finish at 7:30. The company would be advised that whatever was urgent coming out of the warehouse, the meeting was to be of short duration. And, in fact, at that point in time no request by them prior, to continue to have stuff out of the warehouse, and because the short duration of the meeting, it was anticipated no metal would be dumped.

49 A further exchange occurred in cross-examination relating to Mr Gillespie's role in preventing metal being delivered over the weighbridge and whether he had imposed a ban, as follows:

Q. I suggest to you it is a falsehood that you agreed to putting more metal over the weighbridge?

A. The company rang when I was on the way home. Well, actually, the company didn't ring. Bill Collins rang from the rail operations and said the company wanted more ladles over the weighbridge to complete a cast - sorry, that wasn't the word. The word that was used was to finish a pot off. I said, "Well, give it to them". And then we had the conversation about well, that gives them more metal ladles then. Now, yes, the company requested through the BOS I think to Mick Johnson, and from Mick Johnson, who was the traffic controller, then to Mr Collins and Mr Collins rang me.

Q. Apart from finishing that one pot, to which you agreed one more ladle, you knew that the company wanted to continue receiving metal at the ladles, didn't you?

A. The company wanted to receive metal at the ladles on the basis they wanted to continue to cast out with a slab caster, yes.

Q. And you knew that?

A. I knew that.

Q. And you said that wasn't going to happen?

A. Mr Staff made that comment and I said yes. They had time - what should've happened is the ladles would cease casting from the weighbridge in time for everybody to attend the meeting.

Q. And because Mr Staff did not agree to that, and neither did the employees who worked under his supervision, you directed that--

A. I don't know about the employees under his supervision. That's not true.

Q. Well, let's stay with Mr Staff at the moment. Because that was not accepted by Mr Staff you directed that after one more ladle, with the exception of one more ladle to finish the pot, there would be no more metal delivered to the weighbridge. That's so, is it not?

A. No.

Q. You deny that, do you?

A. Yes.

Q. Was metal able to be delivered to the weighbridge?

A. What I said to Mr Collins was one more pot or cast to finish the cast, or whatever the completion of the cast was to fill the pot or the cast. I said if it's one, if it's two, then it doesn't matter. But finish the cast. Because they need about an hour and 40 minutes to run out. So if it wasn't the one, it was the one after. If it was two, then it would have been two. So, leaving that aside, I've just simply said that whatever it takes to finish that cast, because the caster would then run out at whatever time and give the blokes time to make the place safe and attend the meeting.

Q. There was to be no more metal apart from what was required to finish that cast, do you accept that?

A. I accept that.

Q. And that was because you directed there was to be no more?

A. I didn't direct that at all.

Q. Did you not say there will be no more metal delivered to the weighbridge?

A. The decision of the members was that everybody attend the meeting - the delegates. And on behalf of them I am simply saying there will no more metal over the cast into the weighbridge, to allow the caster to tail out and to complete the cast in plenty of time, in time to attend the meeting. Yes, that's what was said.

Q. Said by you to Mr Staff?

A. Yes.

Q. There was to be no more casting?

A. Yes.

Q. When he did not accept that position--

A. I did not say “casting” to Mr Staff.

Q. There would be no more metal?

A. Yes.

Q. When he did not accept that position you took steps to prevent metal being delivered?

A. No. I said to him there won't be any from the time it needs to clean up. As a matter of fact, during the discussion with Mr Staff I asked him how long it would - the time the slab caster needed to tail out the metal, because I was in contact with the slab caster delegates during the night and the rail operations and the BOS people. And the BOS people were telling me how long it takes to run out and how long it would take to go through the caster, so.

...

Q. And the way to ensure that there would be no casting, or the casting would cease, was to direct that there be no deliveries to the weighbridge after what was required to make up the pot?

A. Or whatever.

Q. You agree with that, don't you?

A. I agree that you'd have to stop putting metal over the weighbridge at a certain time to allow people to attend the meeting.

Q. And the way that was accomplished was to put a black ban on the metal?

A. There was no ban, no black ban placed on the weighbridge by me.

Q. You directed metal not be delivered, did you not?

A. No, I said give them the pot. I did not put a black ban on the weighbridge. The word black ban was never used by me at any time, either that night or subsequently after or before.

Q. Leaving aside the use of the word "ban", you directed that after what was required to make up the pot no further metal was to be delivered prior to the stop work meeting?

A. I said to my members that to ensure them - when they asked me to make up the cast I said, “Yeah, make up the cast if they need it or they need more. But at end of that make sure that people, the slab caster, tails out in time to get to the meeting.” Tail out time is about an hour and 40 minutes.

Q. In order for that to happen you had to stop delivery to the weighbridge?

A. At the appropriate time.

Q. Yes and that happened, did it not?

A. The delivery of metal to the weighbridge did cease, yes.

Q. At your direction?

A. At the direction of the delegates.

Q. At the direction of the delegates meeting you say?

A. Yes.

Q. But given effect to by you early on the morning of 21 February?

A. Yes, and I said to the rail operations delegates and everyone else that they just continue to give metal, but make sure the people - as I said to Mr Staff - that people are ensured to be out of there at the end of tail out time, for people to attend the meeting, or stop casting. That takes about an hour and 40 minutes, sometimes 2 hours.

Evidence for the ETU

50 Ms R Mifsud, the ETU's legal officer, appeared for the ETU. Ms Mifsud tendered the affidavit of Warwick Tomlins. Mr Tomlins was not required for cross-examination. In his affidavit Mr Tomlins, whilst acknowledging that the stop work meeting took place on 21 February 2003, denied that the ETU had contravened the EA in the manner alleged by the prosecutor.

Evidence for the AFMEPKIU

51 Mr I Morrison appeared for the AFMEPKIU. He tendered the affidavit of Wayne Phillips. Mr Phillips was not required for cross-examination. Mr Phillips acknowledged that the stop work meeting did take place but that it was authorised by earlier delegates' meetings. In his affidavit Mr Phillips said:

Prior to these meetings with the Delegates but after that of the three Union Officials ... the AWU prepared bundles of Notices for the union members ... This was done so that the unions could quickly communicate the details of the "Stop Work" meeting.

It is important to note that these notices were not distributed until after the Delegates meeting of the 20th February 2003.

52 Mr Phillips acknowledged that the "AMWU" is a party to the EA and that the "AMWU logo" and his name appeared on the stop work meeting notice. Nevertheless, he deposed that "the AMWU has no members who are involved or can be involved in the dumping of hot metal as alleged."

Consideration

53 In Higgins v Avoca Estate Agency Pty Ltd ([1999] NSWIRComm, unreported, 3 December 1999), Wright J, President identified the elements of an offence under s 357(1) of the Act as follows:

1. That there was at the relevant time an industrial instrument.

2. That the defendant was a person bound by the industrial instrument.

3. The defendant has contravened (which includes failure to comply with) a provision of the industrial instrument.

I respectfully agree with his Honour.

54 The sanction for breach of s 357 is a "civil penalty" and there was no issue about this in the proceedings. Section 140 of the Evidence Act 1995, which embodies the principle laid down in Briginshaw v Briginshaw (1938) 60 CLR 336, provides that in civil proceedings the civil onus applies. Section 140(2) of that Act provides:

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

55 Mr Corish submitted that having regard to the nature and seriousness of the allegations and the fact that serious sanctions may flow as a consequence of adverse findings, the Court must be satisfied of the breach beyond a degree greater than the "merest balance of probabilities". I accept this to be the case.

56 As to the first element of the offence, the evidence was that the EA was in force at the time of the alleged contravention. Section 8 of the Act defines "industrial instrument" as:

In this Act, industrial instrument means an award, an enterprise agreement, a public sector industrial agreement, a former industrial agreement, a contract determination or a contract agreement.

57 As to the second element of the offence, I am satisfied that each of the defendants was bound by the EA. So much is clear from cll 3 and 14 of the EA. There was an issue in the proceedings over whether the ETU was implicated given that the handbill calling the stop work meeting did not refer to the ETU but rather the CEPU. In this respect, I note that Mr Tomlins is an official of the ETU and he signed the EA on behalf of the ETU. Further, it is Mr Tomlin whose name appears on the handbill. In the letter referred to earlier in the judgment from the ETU to the prosecutor's solicitors dated 14 November 2003 the letterhead reads, "Electrical Trades Union, NSW Branch" whilst at the foot of the letter there appears the logo of the "Communications Electrical Plumbing Union, NSW Electrical Division Branch" or "CEPU". In the proceedings before Grayson DP on 20 February 2003 Mr Tomlin was representing the ETU. In March 2003 a flyer headed "Steel Industry Update" was under the logos of the AWU, AMWU and CEPU but on the second page the flyer was said to be authorised by, amongst others, "W Tomlins ETU".

58 The interchangeable use of both logos and names would appear to derive from the fact that the ETU is an organisation registered under the Industrial Relations Act 1996 (NSW) and at the same time has a connection, albeit unexplained, with the CEPU, which is a registered organisation under the Workplace Relations Act 1996 (Cth). In any event, I am satisfied to the necessary standard that Mr Tomlin, representing the ETU, authorised the handbill.

59 In relation to the third element of the offence Mr Buchanan submitted the evidence fell into two principal areas. Firstly, the conduct of the three unions concerning the handbill issued jointly by the three defendants and secondly, the conduct of Mr Gillespie, an officer of the AWU and two AWU delegates in the early hours of 21 February 2003.

60 The contravention alleged by the prosecutor in its opening submissions was a breach of the whole of cl 9 of the EA where it could be said an obligation arose to comply with that clause. Mr Buchanan referred specifically to cll 9.1.3, 9.1.7, 9.2.1 and 9.3.9. A focus of Mr Buchanan's case was on an alleged contravention of cl 9.3.9 of the EA, which provides that:

9.3.9 No employee or union will direct or encourage any employee or contractor in an associated area to take action that may have the effect of circumventing the intent and operation of these arrangements – namely that Blast Furnaces continue to operate and hot metal is not dumped in the event of industrial action.

61 I will go in more detail to the provisions of cl 9.3.9 shortly. However, it is readily apparent that the intent of cl 9, when read as a whole, is amongst other things, to ensure that hot metal is not dumped in the event that industrial action occurs. Nothing, in my opinion, could be clearer.

62 The prosecutor alleged that the three defendants, by the authorisation and issuing of the handbill to employees employed by the defendant directed or, alternatively, encouraged those employees to take industrial action that had the effect of causing hot metal to be dumped on 21 February 2003. Further, that Mr Gillespie and two AWU delegates, namely Mr William Collins and Mr Lelio Petinga, in the early hours of 21 February 2003 took action in accordance with the direction in the handbill to ban the delivery of hot metal to the weighbridge thereby leading to the dumping of hot metal in contravention of the EA.

63 Mr Corish for the AWU contended that the handbill was a direction to attend a stop work meeting and not a direction or encouragement to "take action" within the meaning of cl 9.3.9. He submitted that the effect of the handbill was superseded or nullified by the proceedings before Grayson DP where the AWU agreed that any stop work meeting would be as short as possible and that, in those circumstances, the prosecutor was on notice that there would be no need to dump metal but rather it could be held in ladles for the duration of the meeting, which was expected to be 1 ½ to 2 hours.

64 Mr Corish further submitted that the summons as framed did not allege a contravention by publication or subscription to the handbill but rather the contravention was alleged to be the holding of a stop work meeting, which was not a breach of the EA. He referred to the wording of the summons alleging that the contravention was by the holding a stop work meeting of employees while directing that the said agreement not be observed and that hot metal would be dumped. Mr Corish said there was no evidence that at the stop work meeting there was any direction given to dump hot metal.

65 Mr Corish further submitted that cl 9.3.1 of the EA provides that " Plant operations will continue at normal production rates unless there is industrial action, which extends more than 8 hours ..." He submitted that the industrial action commenced when the handbill was circulated, which was well over eight hours before Mr Gillespie's "legitimate intervention" in the early hours of 21 February when he took action to ensure that the state of the plant - which involved interruption to normal production rates - was such as to allow employees to attend the meeting scheduled for 7.30 am but in circumstances where Mr Gillespie had checked the capacity of the ladles and had satisfied himself there was sufficient capacity to hold any hot metal for the duration of the meeting.

66 The ETU and AFMEPKIU submitted that:

§ There was no real involvement in the dispute notified the Grayson DP by either the ETU or AFMEPKIU.

§ It had not been established that at any stage members of the ETU or AFMEPKIU refused to perform any work as required.

§ No members of the ETU or AFMEPKIU could have had any real impact on the dumping of hot metal.

§ In relation to the handbill it is the custom and practice for all three unions to have their names on any documents distributed to employees. However, neither the ETU nor AFMEPKIU had any influence or role in the decision making process to dump metal or not.

67 The circumstances leading to the issuing of the handbill were described in Mr Phillip's evidence. Messrs Gillespie, Tomlins and Phillips were concerned about a number of issues that had come to their attention, including what they understood to be the prosecutor's plans to outsource certain work without consulting with the three defendants. The three officials decided to hold a meeting of delegates from the three unions to consider the issues. It may well have been the case that the union officials felt under some pressure to hold a meeting of delegates, especially if their members felt their jobs might be under threat from outsourcing arrangements. However, I note that whilst the officials' concern related, in part, to proposals that might impact on the Slabmaking Department, employees in that area were prepared to keep working on 21 February and not attend the stop work meeting.

68 In any event, the decision to call a delegates' meeting to authorise a stop work meeting was taken without any request on the part of the unions for management to explain what it was contemplating by way of outsourcing arrangements. One would have thought that before calling a stop work meeting it would have been useful to discover first hand just what the company was planning. An alternative first step to calling the delegates' meeting and one wholly consistent with the procedure in cl 12 of the EA, was to firstly consult with representatives of management of the prosecutor and if that did not resolve the matter, refer it to the Commission. It is difficult to understand why the three officials found it necessary to resort, almost in knee-jerk fashion, to industrial action in those circumstances, especially when Mr Gillespie had been advised by Mr O'Loughlin on 20 February 2003 of the company's position on two of the issues given rise to the unions' concerns that should have had the effect of alleviating that concern to a considerable degree. It is even more difficult in the circumstances, to understand the necessity for directing that hot metal be dumped unless the explanation is that it was done in retaliation against what the unions perceived to be a failure by the company to consult or as a reminder to the company of the power the unions at the workplace. Whatever the explanation it is not a relevant consideration in determining whether a contravention has occurred.

69 It was apparently the practice of the three unions to act as one under the title "Combined Steel Unions". The delegates' meetings were held on 19 and 20 February and the three officials attended these meetings. Mr Phillips deposed that prior to the meetings with the delegates but after the three officials had met, the AWU "prepared bundles of Notices for the union members". The notices were the handbills that are the subject of the charge. Mr Phillips said that the delegates "determined and authorised" that a stop work meeting take place at 7.30 am on 21 February 2003 at Wollongong Showground, consistent with the information on the handbill. The handbill was subsequently distributed within the prosecutor's plant.

70 Mr Corish submitted that the handbill was merely a direction to attend the stop work meeting and that the words "hot metal would be dumped" were nullified by the proceedings before Grayson DP on 20 February 2003 and the company's understanding from those proceedings that the meeting would only be of short duration. What seems to be said is that even though at no stage did Mr Gillespie articulate it, the company should have gotten the message that as the stop work meeting was not going to take long, it should have taken steps to hold the hot metal in ladles until the meeting was over and normal production could have resumed without the need to dump hot metal. However, in the proceedings before Grayson DP there was no indication from any on the unions as to how long the meeting would last other than there was not going to be a recommendation at the meeting to engage in "prolonged stoppages" and that if the meeting was to go any longer than two to two and a half hours the unions would "review" the question of supply "as per the enterprise agreement". Supply, according to the handbill, included the supply of hot metal. Apparently, Mr Gillespie was indicating that if the meeting went longer than expected the unions would review whether or not they would agree to supply being reinstated.

71 The unions had the opportunity during the proceedings before Grayson DP, especially after his Honour reminded them of the obligations regarding hot metal under the agreement, to state in unambiguous terms that it was not their intention that hot metal be dumped and that they would cooperate in avoiding that possibility in accordance with their "solemn" obligations under the EA. No such statement was made. I also note that in the record of proceedings before Grayson DP when there was discussion about the dumping of hot metal Mr Gillespie stated that because of a blast furnace just coming back onto line there would be "bad metal" going to the dump and metal going into the ladles would probably go to the dump "anyway". This would suggest a state of mind that it did not matter that if metal went to the dump because of industrial action because probably it would be bad metal. In any event, I do not accept the contention that the proceedings before Grayson DP nullified the words of the handbill that "hot metal would be dumped".

72 As to Mr Corish's contentions regarding the framing of the summons, the requirement at common law is that an information must identify the essential factual ingredients of the offence charged. That is, the information must specify the time, place and manner of the defendant's acts or omissions: Johnson v Miller (1937) 59 CLR 467, John L Pty Limited v Attorney-General (NSW) (1987) 163 CLR 508, Stanton v Abernathy (1990) 19 NSWLR 656 at 666 and R v Saffron (1988) 17 NSWLR 395 at 445. The information in this case, as amplified by the particulars, are wholly sufficient in describing the offences and in enabling the defendants to meet the charges against them.

73 Mr Corish submitted that the allegation in the summons should be read as alleging a contravention of the EA by the holding of a stop work meeting during which directions were given that hot metal would be dumped. He said that the holding of a stop work meeting was not a contravention of the EA and there was no evidence of a direction being given at the meeting to dump hot metal. I cannot accept Mr Corish's contentions in this respect. The particulars make it clear that what was being alleged was that on 20 February the defendants subscribed to a handbill concerning a stop work meeting to be held on 21 February, the handbill included the words "hot metal will be dumped" and a stop work meeting was subsequently held the next day at 7.30 am.

74 It is clear from the evidence that employees in the slab casting and furnace sections of the plant indicated to their supervisors that, notwithstanding the direction to attend the stop work meeting and to dump hot metal, they would continue to work and that, in accordance with the EA, no hot metal would be dumped. This attracted the attention of AWU delegates in the rail operations area who advised the company that "The people at the BOS and Caster have to go on strike because the union have said so." Mr Gillespie was contacted and he came to the plant in the early hours of 21 February 2003, obviously for the purpose of enforcing the directions contained in the handbill. This was achieved by the placing of a ban on taking hot metal to the weighbridge and it being said by Mr Collins that employees attending the meeting would stay on strike until all relevant employees attended the meeting. This evidence is derived from the affidavits and oral evidence of witnesses for the prosecutor and was unshaken during cross-examination. In most cases the prosecutor's witnesses had made contemporaneous notes about the events that occurred on 20 and 21 February and the content of these notes was not effectively challenged in cross-examination.

75 It was the AWU's case that Mr Gillespie had satisfied himself that there were enough ladles available to hold hot metal for the duration of the stop work meeting and, therefore, there was no need to dump hot metal. Mr Gillespie said that he inquired of his delegate Mr Collins between about 3.00 am and 4.00 am on 21 February 2003 about the capacity of the hot metal ladles. The witnesses for the prosecutor said that there was no such capacity, and if there had been, hot metal would not have been dumped. The difficulty in accepting Mr Gillespie's version is three-fold:

1. From the outset, according to the handbill, there was an intention to dump hot metal;

2. At no stage did Mr Gillespie say to representatives of the prosecutor on 20 or 21 February that there was capacity to store hot metal for the duration of the stop work meeting, nor did he suggest it could be stored, nor did he say there was no need to dump hot metal;

3. Mr Collins was the same person who is recorded in a conversation on the morning of 21 February as saying there was a black ban on hot metal over the weighbridge, that there could be one more ladle over the weighbridge and after that the hot metal would go to the dump. Mr Collins was not called by the AWU to corroborate Mr Gillespie's claim that he talked to Mr Collins about the capacity to store hot metal.

76 As to the submission that Mr Gillespie's presence at the plant in the early hours of 21 February was for the purpose of "legitimate intervention", such a submission, in light of all of the evidence, strains credulity beyond breaking point and I do not accept it. Mr Gillespie was present on the plant for the purpose of ensuring his members complied with the directions on the handbill.

77 Mr Gillespie denied that he imposed a ban on hot metal going to the weighbridge and that he never used the term "ban". Whether or not Mr Gillespie used that term, it is disingenuous of him to contend that no ban was placed on hot metal going to the weighbridge.

78 The particulars of the charge against the AWU alleged that:

On 21 February 2003 the Defendant's official and delegates interfered with the delivery of hot metal from the Blast Furnaces to Steelmaking of the Prosecutor's Port Kembla Steelworks.

79 The reference to the "Defendant's official" was a reference to Mr Gillespie. The reference to two delegates was a reference to Mr William Collins and Mr Lelio Petinga, AWU delegates in rail operations. Mr Collins is clearly implicated and by his words and actions in the early hours of 21 February 2003 he actively interfered with the delivery of hot metal leading to the metal being dumped in contravention of cl 9 of the EA. Mr Petinga accompanied Mr Collins in the latter's various discussions with the company's supervisors and in discussions with other employees but there was no evidence that Mr Petinga so much as uttered a word in the course of Mr Collins' remonstrations with others. I could not be satisfied to the requisite standard that Mr Petinga interfered with the delivery of hot metal in the manner alleged.

80 I consider that by:

1. the actions of Mr Gillespie in subscribing to the handbill; and,

2. the subsequent interference in the delivery of hot metal from the blast furnaces to steelmaking by Mr Gillespie and the AWU delegate in rail operations, namely Mr William Collins, in order to enforce the directions in the handbill by the placing of a ban on hot metal going to the weighbridge on 21 February 2003,

the AWU contravened cl 9 of the EA and, in particular, cl 9.3.9. Clause 9.2.1 of the EA requires "strict compliance" with the terms of cl 9.3, stating that "There must be no breaches of these provisions". The actions of the AWU that led to the dumping of hot metal on 21 February were in knowing disregard of its obligations under the EA. The lost margin to the company as a consequence of the dumping of the metal was A$420,992.

81 The ETU and AFMEPKIU submitted that they did not have members who were in a position to carry out any alleged direction or encouragement to stop supply, thereby leading to the dumping of hot metal. Therefore, it was submitted, it could not be said they directed employees to take industrial action that may have had the effect of causing hot metal to be dumped because their members had no capacity to influence such an event. Further, it was submitted, they had no power to direct members of the AWU.

82 It is undoubtedly the fact that by subscribing to the handbill the ETU and AFMEPKIU directed - or at the very least, encouraged - employees to take action in the same way as the AWU gave a direction. Clause 9.3.9, however, provides that a mere direction to take certain action is not sufficient; there must be a consequence and that is that the action which has been directed or encouraged "may have the effect of circumventing the intent and operation of these arrangements", namely, to avoid hot metal being dumped in the event of industrial action.

83 As I have already noted, the ETU and AFMEPKIU contended that any alleged direction or encouragement could not have had the effect of circumventing the provisions of cl 9 of the EA because their members had no influence over the operations associated with dumping of hot metal. This could not be entirely correct because a strike by maintenance staff could obviously impact on whether hot metal would be dumped if there was a break down during the strike. However, I understand the ETU and AFMEPKIU submissions to have been in the context of the events of 20 and 21 February 2003.

84 Clause 9.3.9, however, provides that no employee or union is to direct or encourage employees to take action that "may have the effect ..." The use of the word "may" in cl 9.3.9 indicates that any direction or encouragement of action that creates the possibility that the intent or operation of cl 9 might be circumvented, constitutes a breach of the EA. In the AWU's case, given that the members of that union were in a position where they could cause the hot metal to be dumped, there cannot be any doubt that the AWU's direction to take action not only may have had the effect of producing that result but, in fact, did so.

85 In the case of the ETU and AFMEPKIU, there was no evidence that the direction in the handbill relating to the dumping of hot metal was carried out by members of the ETU and AFMEPKIU. Indeed, the evidence was to the contrary. Further, I am satisfied the ETU and AMWU were not in a position to direct members of the AWU to the extent it could be concluded that such a direction may have had the effect of causing hot metal to be dumped.

86 The question then arises as to whether, by subscribing to the handbill, the ETU and AFMEPKIU encouraged employees to take action that may have had the effect of circumventing the provisions of the cl 9 of the EA. In relation to the members of the ETU and AFMEPKIU, if it were found (as it has been) that these defendants were not in a position to direct their members to the extent it could be concluded that such a direction may have had the effect of causing hot metal to be dumped, it logically follows that the two unions were not in a position to encourage their members in this respect.

87 Could it be held, then, that in subscribing to the handbill and displaying solidarity with the AWU as members of the "Combined Steel Unions", the ETU and AFMEPKIU encouraged members of the AWU to take the impugned action? There was no evidence that members of the AWU were encouraged to take action that may have had the effect of causing hot metal to be dumped by virtue of the fact that the ETU and AFMEPKIU subscribed to the handbill. Whilst it might be thought that by the ETU and AFMEPKIU joining with the AWU in subscribing to the handbill this would, in itself, encourage members of the AWU to take the impugned action, I am not satisfied to the necessary standard that on the balance of probabilities this was the case. It may be thought that the ETU and AFMEPKIU could never be found guilty of contravening the EA in circumstances where there was a direction or encouragement at a meeting of the combined steel unions to dump hot metal. I do not consider this follows from my findings in these proceedings. Whether the ETU and or AFMEPKIU contravened cl. 9.3.9 would very much depend on the particular circumstances at the time.

Conclusions

88 I am satisfied that pursuant to s 357 of the Industrial Relations Act 1996 the Australian Worker's Union, New South Wales contravened a provision of an industrial instrument, namely, clause 9 of the BHP Steel Port Kembla Operations Enterprise Agreement 2002(EA 02/259), in the manner charged and particularised in the summons in matter No. IRC 2153 of 2003, except in so far as the charge and particulars seek to implicate Mr Lelio Petinga.

89 I am not satisfied that the Electrical Trades Union, New South Wales Branch contravened a provision of an industrial instrument, namely, clause 9 of the BHP Steel Port Kembla Operations Enterprise Agreement 2002 (EA 02/259), in the manner charged and particularised in the summons in matter No. IRC 2154 of 2003. The summons is dismissed.

90 I am not satisfied that the Automotive, Food, Metals, Printing and Kindred Industries Union, New South Wales Branch contravened a provision of an industrial instrument, namely, clause 9 of the BHP Steel Port Kembla Operations Enterprise Agreement 2002(EA 02/259), in the manner charged and particularised in the summons in matter No. IRC 2155 of 2003. The summons is dismissed.

Directions

91 Matter No. IRC 2153 of 2003 is listed for directions at 9.30 am Monday 1 March 2004 when a date will be fixed for hearing as to penalty and costs and as to whether or not the Court should grant an injunction pursuant to s 359 of the Industrial Relations Act 1996 to restrain the AWU from committing further or other contraventions of the BHP Steel Port Kembla Operations Enterprise Agreement 2002 (EA 02/259).

92 Matter Nos. IRC 2154 and 2155 of 2003 are listed for directions at 9.30 am Monday 1 March 2004 when a date will be fixed for hearing as to costs.

LAST UPDATED: 24/02/2004