Australian Workers Union v. BlueScope Steel Limited [2010] NSWIRComm 1059 (3 December 2010)

Last Updated: 10 December 2010

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Australian Workers Union v. BlueScope Steel Limited [2010] NSWIRComm 1059



FILE NUMBER(S):
IRC 122

HEARING DATE(S):
09/11/2010, 17/11/2010

DATE OF JUDGMENT:
3 December 2010

PARTIES:
APPLICANT
Australian Workers Union

RESPONDENT
BlueScope Steel Limited

CORAM:
Connor C


CATCHWORDS: industrial dispute - steelworks - paintline operations - agreement to operate the paintline in a modified fashion with reduced manning - toolbox meeting aborted - alleged refusal of two employees to attend a toolbox meeting to implement a modified plan for work with reduced manning - warnings given - no justification for intervention - suggestions made for modifying existing agreement under which work with reduced manning is performed.

LEGAL REPRESENTATIVES

APPLICANT
Branko Gorgievski
Australian Workers Union


RESPONDENT
Aaron Dearden
Duncan Cotterill Lawyers


CASES CITED:
Australian Workers Union v. BlueScope Steel Limited [2005] NSWIRComm 1194
Australian Workers Union v. BlueScope Steel Limited [2010] NSWIRComm 1001
BlueScope Steel Limited Paintline Manning Dispute Case [2008] NSWIRComm 1070

LEGISLATION CITED:
Industrial Relations Act 1996


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: CONNOR C

Friday, 3 December, 2010

Matter No IRC 122 of 2010

Australian Workers Union and BlueScope Steel Limited

Notification under S.130 of the Industrial Relations Act, 1996 re warnings given to operators on the paintline

DECISION

[2010] NSWIRComm 1059

Introduction

1 Pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, the Australian Workers Union lodged a notification of an industrial dispute with BlueScope Steel Limited concerning warning notices placed on the files of two employees on the No.3 paintline [CPL 3] of the Painting and Finishing Department [PFD] of its Springhill operations - Mr Josef Pleli and Mr Bradley O'Hare. The warning given to Mr Pleli (which is in similar terms to the warning given to Mr O'Hare) is in the following terms:

"...This disciplinary note has been given...for refusal to comply with a reasonable request from a supervisor. On Tuesday, 9 February, 2010...a line delay occurred due to an issue relating to manning at CPL 3. At the start up toolbox (meeting) the employee refused to take part in the development of the shift plan unless the crew were all in one place (ie a line stop). Josef was provided with several opportunities to comply with the request, including:

(a) an overview of the proposed plan at the toolbox;

(b) a discussion of the proposed plan to highlight potential points of conflict with the plan;

(c) any discussion of the shift plan that did not involve a line stop for toolboxing purposes.

Josef refused to comply with the request or pro-offer any alternative proposals not involving a line stop and this behaviour is deemed as unacceptable and outside of the expectations under Manufacturing Excellence.

Josef is notified that the above behaviour has resulted in a warning and that any re-occurrence will result in escalation of the level of discipline up to dismissal. I also note a number of warnings and final warnings on your history file and, although this incident is not serious enough to warrant dismissal, I encourage you to consider this in your ongoing interactions with PFD company officers..."

2 The matter came before Grayson DP for conference on Friday, 26 February, 2010, Thursday, 8 April, 2010, Friday, 23 April, 2010 and Friday, 18 June, 2010. Conciliation had not succeeded in resolving the issue in dispute. The file was allocated to me. All proceedings before Grayson DP and subsequently before me were convened in the Commission's premises at 90 Crown Street, Wollongong.

3 I set the matter down for a mention and a conference for further conciliation on Tuesday, 29 June, 2010. That further attempt at conciliation before me also failed. I issued the certificate of attempted conciliation required by S.135, lodging it in the prescribed manner, and programmed the matter for arbitration in a hearing on Wednesday, 4 August, 2010. But that hearing was vacated at the request of the AWU, and with the concurrence of BlueScope Steel, and rescheduled for Wednesday, 22 September, 2010. The hearing of Wednesday, 22 September, 2010 was also vacated. Ultimately, I set the matter down for a further conference on Wednesday, 20 October, 2010 and ultimately a hearing on Tuesday, 9 November, 2010 and Wednesday, 17 November, 2010.

4 Mr Gorgievski represented the AWU in the hearing, calling Mr Pleli and Mr O'Hare to give evidence. Mr Gorgievski argued that the warnings given to Mr Pleli and Mr O'Hare were not warranted and that, in fact, they were only acting within the terms of an agreement reached between the AWU and BlueScope Steel, as they understood it. That agreement had been brokered in earlier proceedings before me. I will discuss it in more detail later in this decision as I believe it to be fundamental to the resolution of the matter before me in this hearing. Mr Dearden represented BlueScope Steel in the hearing, calling Mr Steven Day, a shift team leader for the paintline operations of BlueScope Steel (whose directions to Mr Pleli and Mr O'Hare led to the warnings given to them). Mr Dearden argued that the directions given to the two employees by Mr Day were reasonable and were consistent with the agreement reached over manning between BlueScope Steel and the AWU.

5 I have always understood that the agreement which had been reached between the parties was of a temporary nature - and as the evidence before me in this hearing has revealed, it is often honoured more in its breach. It appears to me to have been appropriate for the parties to confer further over it with a view to modify it to meet current needs and I had directed that the AWU and BlueScope Steel do so with a view to reassessing and, if necessary, altering the agreement. Some discussions have, in fact, taken place between the parties in that respect but they have been unable to finalise their negotiations to date.

Background

6 The paintline is ideally a continuous operation. Initially, following an unreported decision of O'Neill C on Wednesday, 14 December, 2005 in Australian Workers Union v. BlueScope Steel Limited [Matter No.IRC 1206 of 2004], manning levels for the continuous operations on the paintline were reduced from 13 operators on each crew to 9 operators . The line now operates continuously with 8 operators in a crew on each shift but it can still operate continuously with 7 operators if 8 operators are not available for a particular shift for any reason. But the line cannot run continuously if less than 7 operators are available for any shift.

7 Nevertheless, the line may also run with less operators - 5 or 6 - on certain agreed conditions, ie that the line will stop for crib and other necessarily operational issues. There are, in fact, 5 work stations which must always be manned - the entry point, the coater room (with 2 operators), the laboratory/pre-treatment area and the delivery area. And when heavy gauge galvanised product is being processed, an acknowledged more complex operation, a minimum of 6 operators is required. The line may not run at all with less than 5 operators.

8 During 2008 and 2009 financial constraints applying generally throughout the community, and the steel industry in particular, led to a substantially reduction in throughput in the paintline. There are apparently a number of factors influencing the amount of product being processed - capacity of the paintline, the amount of product arriving to be processed but, principally, what orders have been received. In any event, for much of 2008 and 2009 paintline throughput has been curtailed to some extent.

9 It was in that light that BlueScope Steel and the AWU entered into lengthy discussions with a view to putting in place some interim arrangements to accommodate the reduced level of product being processed. Temporary arrangements have been required in those circumstances and the paintline operators had for the most part accepted them. Nevertheless, there were still issues in dispute over manning of the paintline. In particular, the position of rover on the paintline has been the subject of some disputation.

10 On Tuesday, 29 January, 2008 BlueScope Steel had lodged a S.130 notification of an industrial dispute with the AWU over its proposal to abolish a position of rover on each of the crews on the paintline. The matter came before Grayson DP for a conference on Friday, 1 February, 2008. It had been suggested that a 6 month trial of the new manning arrangements would be put in place. That suggestion was ultimately adopted and the file was then allocated to me to oversight.

11 The AWU subsequently indicated that it was the intention of the employees to opt out of the trial, essentially because they had formed the view that the manning levels in the trial were unsafe and unfair to the paintline operators. I reconvened the proceedings for a further conference on Friday, 4 July, 2008 and I was informed at that time that the paintline employees had formed the view that the arrangements in the trial were no longer workable. The AWU argued that the trial should be abandoned and the employees revert to the previous shift arrangements - 9 employees per shift. Since the AWU believed that the change proposed was a significant one, it argued that the status quo should be preserved in that respect until the arbitration of the matter in accordance with the provisions of the BlueScope Steel Limited Springhill and CRM Employees Award [Clause 36.4.3(j)] and the terms of the trial itself.

12 Nevertheless, the trial remained in place until the matter could be further discussed in proceedings before me on Monday, 7 July, 2008. Those proceedings were adjourned until Tuesday, 15 July, 2010 to give BlueScope Steel the opportunity to consider a proposal advanced from the AWU. The parties were unable to reach an agreement over the matter and on Tuesday, 15 July, 2008 I programmed the matter for arbitration. However, for my part, I regarded it as unfortunate that the trial was being abandoned, making my opinion clear in the proceedings on Monday, 7 July, 2008 and Tuesday, 15 July, 2008. Ultimately, the hearing of the matter was scheduled for Monday, 15 September, 2008 and Tuesday, 16 September, 2008 but that did not eventuate.

13 On Friday, 18 July, 2008 the AWU again requested a further urgent conference concerning this matter and I reconvened those proceedings at midday on Friday, 18 July, 2008. I was informed that in the afternoon the paintline operators were intending to cease work. I saw no benefit from such industrial action and it did not eventually occur. Ultimately, in the proceedings before me on Tuesday, 19 August, 2008 a compromise position was reached between the parties and they finalised their position in documents which were provided to me to form part of the file. I finalised the matter with an ex tempe decision dated Tuesday, 19 August, 2008.

14 The agreement described in my decision involved certain guidelines [Attachment 2], viz:

"....When faced with reduced manning, it is possible to run the paintline in a modified system of work to facilitate some production for the company and full payment for those at work. The specific schedule on a night will always determine exact details of how the line will operate. The crew would need to meet to develop a plan to run in the modified fashion. Some guidelines to manage the workload for the crew to deliver successful operation can be summarised below:

For 6 or 5 man operation:

* combined stop for crib;

* 2 colours to be run with threaders on either side;

* line does not start until the paint is already on the landing;

* no forklifts movements during production (not possible with 5 men anyway);

* bin to be squashed/changed at threader time;

* rover to be based at exit for unforeseen circumstances when line is running;

* the dual paint changes to be carried out on the threader and all paint drums would then be brought to the landing and ready for the next colour before the line is started again.

The company will not request the crew to run the line with 4 men, alternative work would be found for these 4 men.

These are reasonable guidelines, which will allow the company to gain some production in low manning situations and ensure that no operators are taken off pay for refusing to run the line in a reasonable manner..."

On that basis, the trial was brought to an end. As I indicate later in this decision the words I have emphasised above in the agreement struck between BlueScope Steel and the AWU - and it is their agreement - appears to now be the point of contention.

15 The current manning arrangements for the operation of the paintline, in accordance with the agreement of the parties, is for it to run continuously when 7 or 8 employees present themselves for work on any shift. If 5 or 6 operators are present on any shift, the paintline will not operate continuously but will do so with combined stops for crib and the other conditions contained in the agreed guidelines. If only 4 operators present themselves for work, the paintline will not run at all but the employees will be found alternate duties.

16 However, a further industrial dispute arose over the paintline operations and the interpretation of the terms of the agreement reached. The AWU notified the dispute to the Commission under S.130. The matter was allocated to me and I set it down for a series of conferences and ultimately arbitration in a hearing on Wednesday, 16 December, 2009 and Monday, 11 January, 2010. I concluded the matter with my unreported decision of Friday, 5 February, 2010 in Australian Workers Union v. BlueScope Steel Limited [Matter No.IRC 114 of 2009].

17 The AWU contended that it was a term of the agreement reached between the parties that there was an obligation in cases where less than 7 operators present themselves for work to call in other employees (on overtime) to make up the number of employees to run the line continuously. It argued the agreement between the parties was predicated on the basis that the line would only run with the reduced manning if, after making an effort to call in additional staff, the management was unable to do so. BlueScope Steel maintained that the management had the right at all times to decide to run on such reduced numbers and that there was nothing in the agreement reached which obliged it to do so.

18 In my decision I commented (at pp.12 and 13) that:

"...the agreement does no more than outline what the arrangements are if and when there is insufficient operators on a shift to man the paintline to operate continuously. It does not really set out whether or not BlueScope Steel management is under an obligation to man up on any particular shift where for one reason or another there is insufficient employees available to run the paintline continuously. I do not believe that there is such an obligation... It is, of course, customary industrial practice for an employer to determine how a business will ultimately be run - in this case, whether to run the paintline continuously or not. That will primarily be determined by how many orders there are and the relationship between the paintline operations and the rest of the steelworks and whether there is actually product available to be processed.

In my opinion, BlueScope Steel may continue to run the paintline as it choses, provided it imposes no unfair or unsafe burden on the employees and provided at the present time it follows the guidelines in Attachment 2. The operators do not have the right - either under the agreement reached or according to ordinary industrial practice - to dictate whether the paintline must always run continuously. That is a matter for BlueScope Steel management, dependent upon its particular requirements at the time..."

However, I had also indicated in my decision (at p.11):

"....Clearly, the paintline operators are experienced operators and the guidelines in Attachment 2 seems to me to suggest they should be instrumental in working together with BlueScope Steel management to determine how best to run the paintline when it runs with reduced manning. The guidelines provide as follows: '...The crew would need to meet to develop a plan to run in the modified fashion...'. That suggests to me that the paintline operators do have a role in how the paintline may run when there is reduced manning..."

19 The interpretation of those comments seem to have led to the current industrial dispute.

The Current Incident

20 At the commencement of each shift the team leader conducts a toolbox meeting of the paintline operators. On the night shift of Tuesday, 9 February, 2010 [A Crew] the line was short 2 employees on annual leave and sick leave. Only 5 employees presented themselves for work on their shift. Mr Pleli had been called in on overtime but a further operator was not obtained and, with a crew of 6 operators, the line could not run continuously. Mr Day prepared a shift plan. It involved Mr Pleli being assigned to work in the coater room.

21 Mr Pleli claimed that he had no objection in going to that work station. However, some confusion appears to have arisen over the plan when Mr Day approached Mr Pleli and Mr O'Hare and one other operator - Mr Lou Ivanovski - for a tool box meeting. Mr Brett Dutton, a technical advisor for the paintline on the crew - a staff officer - was also present at the work station and was available for discussions with Mr Day concerning the running of the line. According to Mr Day, Mr Pleli and O'Hare stopped him. According to Mr Pleli and Mr O'Hare, they did not. Mr Day claimed that Mr Pleli said words to the following effect:

"Before you go on with any of that, are you going to stick to the agreement?"

22 Mr Day had not seen the agreement at that time. Mr O'Hare handed him a copy of it. Mr Day again attempted to commence the toolbox meeting and he claimed that Mr Pleli stopped him again, asking him:

"Are you going to honour the agreement? The whole crew has to be here."

Mr Day replied:

"I think it's reasonable for the shift plan to be communicated via toolbox meetings on most occasions, especially with 6 men (as opposed to 5) at work. The rover should be located wherever the workload is."

23 Mr Day indicated that it was his intention to honour the agreement reached but he claimed that Mr O'Hare and Mr Pleli insisted that the whole crew had to be present to consider the plan. Mr O'Hare asserted that Mr Day was abusive to Mr Pleli. Mr Day denies that claim.

24 Mr Day pointed out:

"Having a crew meeting will mean stopping the line."

Mr Pleli allegedly shrugged his shoulders and stated:

"Whatever!"

And Mr O'Hare responded:

"According to the official ruling from the Commission, the whole crew needs to meet."

25 Mr Day floated the idea of taking a crew representative to each of the toolbox meetings with him but that proposal was rejected by Mr Pleli and Mr O'Hare who indicated that such an arrangement was not in the agreement. Ultimately, Mr Day was required to put a threader in the line and he did so - against the wishes of the rest of the crew, according to Mr Day. That was particularly the case with the employees on the crew who had to clean up (unnecessarily) each time the line was stopped and restarted.

26 It is Mr Pleli's claim, contained in a written statement which provided the basis of his evidence in this hearing, that at no time had he refused to work at the coater room, provided the crew had no objection to him doing so. He further added in his written statement that:

"....at no time did I say that all the crew had to be in one place for a shift plan to be developed. I told Mr Day that he could talk to each operator individually so that everyone was in agreement on how the line would be run for that shift. It was Mr Day's decision to put a threader in place in order to hold a crew meeting and a plan was developed for that shift..."

27 And Mr O'Hare recorded in his written statement that:

"...at no time did I refuse to take part in the development of the shift plan and at no time did I say that the line should be stopped for a crew meeting. Mr Day did not believe the line had to stop. He asked me, as the crew's representative, to walk the line with him and ask individuals for their input on running the line. I felt uncomfortable with his request and declined to do that, stating that he was capable of asking the crew himself. At no time did I say that the crew had to be in one place for a meeting on how the line was going to run. Mr Day finally contacted the entry operator, instructing him to place a threader on the line so that we could have a meeting. We never once asked for the line to stop. That was his decision..."

28 In the subsequent combined meeting of the crew Mr Day modified the plan following agreement with the crew - something he claimed could have been worked out at the aborted toolbox meeting.

Conclusion

29 Bearing in mind the fact that the tool box meeting which Mr Day attended with his shift plan at the commencement of the night shift on Tuesday, 9 February, 2010 already involved three of the six operators on that shift - Mr Pleli, Mr O'Hare and Mr Ivanovski - (and Mr Dutton) - it would not have been a difficult or time consuming task for Mr Day to address the remaining operators who were not present individually. Notwithstanding the claims made by both Mr Pleli and Mr O'Hare to the contrary, they seem to have been suggesting by their conduct that the crew had to meet together to approve of the shift plan and that would necessarily have meant that the line had to stop. When Mr Pleli shrugged his shoulders and said: "Whatever!" - and I accept that he did say that - he was clearly inviting Mr Day to stop the line. Mr Day had no other option, in the circumstances.

30 Mr Pleli and Mr O'Hare seem to be relying in that respect on an excessively strict wording of the agreement which the parties reached between BlueScope Steel and the AWU in Attachment 2 - "...the crew would need to develop a plan to run (the line) in a modified fashion...". However, it was certainly not the intention of BlueScope Steel management for those words in the agreement to mean that the paintline had to stop for the entire crew to be the sole arbiter of how the line should run when there is less than standard manning. Commonsense suggests to me that when the agreement reached between the parties indicated that "...the crew would need to meet to develop a plan to run in the (line) in a modified fashion..." and when in my decision of Friday, 5 February, 2010 in Australian Workers Union v. BlueScope Steel I indicated (at p.18) that the paintline operators "...should be instrumental in working together with BlueScope Steel management to determine how best to run the paintline when it runs with reduced manning...", it was not being suggested that the crew would need to meet together to determine how to do so, only that they should be consulted - as Mr Day was attempting to do.

31 To put the conduct of Mr Pleli and Mr O'Hare in its best light, they were simply acting on a misunderstanding of the agreement. Notwithstanding Mr Gorgievski's strenuous defence of them, it seems to me more likely that they were scanning the agreement and my decision to find any excuse to legitimatize their somewhat unhelpful position. They seem to have had an eccentric industrial agenda of their own, as Mr Day suspects, which, in my opinion, ran counter to the best interests of the crew. They were apparently acting on their perception that the employees had a right to direct how the line was to run and BlueScope Steel management had no right to develop a plan in the first place until the crew, as a whole, rubber stamped it. Not only is that inconsistent with the agreement reached, as I understand it, it would fly in the face of acceptable industrial practice. Their role was to act together with their supervisor to develop a plan in consultation with him. Their conduct was unacceptable and I therefore see no grounds to intervene in support of them in this hearing.

32 However, as I indicated earlier in this decision, I emphasise that the agreement reached between the parties was their agreement in the first place - not something that flowed out of an arbitrated decision of this Commission. It was also designed to be of a temporary nature only. The issue before me in this hearing is confined to consider the warning notices given to Mr Pleli and Mr O'Hare but I have to say that it would appear to me that the guidelines in Attachment 2 for modified operations of the paintline with reduced manning are honoured more in the breach and, as Mr Day indicated in his evidence, he has often found it necessary to depart from them. He has done so, always in consultation with the crew on the paintline for particular shifts - which is quite proper. Clearly the guidelines need modification.

33 I therefore direct the parties into further discussions to consider variation to those guidelines to reflect what the evidence before me suggests is actually taking place on the paintline and the observations I have made concerning them in this decision.





P J CONNOR
Commissioner









LAST UPDATED:
3 December 2010