BlueScope Steel (AIS) Pty Ltd v The Australian Workers' Union

[2013] FWC 3171

[2013] FWC 3171

FAIR WORK COMMISSION

DECISION

Workplace Relations Act 1996
s.709 - Application to FWC to have a dispute resolution process conducted (Div 5)

BlueScope Steel (AIS) Pty Ltd
v
The Australian Workers' Union
(DR2012/404)

COMMISSIONER BULL SYDNEY, 28 JUNE 2013

Alleged dispute about a change in working arrangements - change that will affect the operation and size of workforce - significant change - consultation requirements - safety issues.

[1] This matter concerns a dispute application which was lodged by BlueScope Steel (AIS) Pty Ltd (BlueScope) on 14 December 2012, for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a dispute resolution procedure in a workplace instrument. The workplace instrument is known as the BlueScope Steel (AIS) Pty Ltd - Port Kembla Steelworks Employees Award 2006 (the Award).

[2] Sections 738 and 739 of the Fair Work Act 2009 (the Act) allow the Commission to deal with a dispute where the relevant enterprise agreement makes such provision however described.

[3] The Award is said to be an enterprise agreement for the purposes of the Act as a result of transitional provisions dating back to 2006 1 and was last varied by this Commission (as the Australian Industrial Relations Commission) on 27 February 2009.2

[4] In determining this matter s.739(5) proscribes the Commission from making a decision inconsistent with the Act.

[5] The matter was subject to conciliation before the Commission and whilst a resolution on one aspect of the dispute (associated with the removal of the automated Hot Car operator position) has now been reached, a dispute concerning whether BlueScope is able to reduce each shift crew at Coke Plant 1, at its Port Kembla Steelworks by two operator positions per crew remains outstanding for the Commission to determine.

[6] The Australian Workers’ Union (AWU) a named party to the Award has invoked the status quo provisions which are contained at subclause 36.4.3(j) of the Award.

“(j) Where the consultation process concludes upon a party declaring to the other parties that it regards the consultation process as exhausted, and there is disagreement as to the change proposed, the change may be implemented forthwith unless a party to the consultation process gives notice to the other parties that it disputes the implementation of the change, and in that case the status quo will apply. Notice of disputing a change must first be provided to the other parties verbally within 24 hours after the declaration that the consultative process is exhausted, and followed up by written notice in accordance with 36.4.3(k).”

[7] At subclause 36.4.3(o) the conditions for removing the status quo are provided:

“(o) The status quo may be altered by recommendation or direction of the Commission in proceedings pursuant to section 130 of the Act, or as the outcome of arbitration by the Commission”

(my emphasis)

[8] The parties agree that proceedings in this Commission fall under the above subclause enabling this Commission to arbitrate the dispute. 3

[9] The AWU invoked the status quo provision under the Award by writing to BlueScope on 12 December 2012, opposing the changes. 4

[10] The AWU in initiating the status quo provisions under clause 36.4 − Introduction of Change Including Outsourcing,of the Award have effectively prevented BlueScope from implementing their proposed changes unless the matter is determined by the Commission in BlueScope’s favour.

[11] The parties requested that a site inspection of the relevant work site be conducted. This occurred with all parties attending on the morning of 4 April 2013, where the operations of Coke Plant 1, at the Port Kembla Steelworks in Wollongong, were inspected.

Background

[12] BlueScope has proposed a change in the working arrangement at its Coke Plant 1 Operations at its Port Kembla Steelworks. The site operates 24 hours a day, 7 days a week. There currently exist 40 operator positions at Coke Plant 1, four crews of ten, on a rotating roster.

[13] The 10 operator positions per crew, consists of a shift bogey of seven operator positions comprising:

• 2 x Charger operators − one on each Battery;
• 2 x Ram Car operators − one on each Battery Ram Car;
• 3 x General Purpose operators (GPOs) − 1 on No.5 Battery and 2 on No.6 Battery;

and 3 x Relief positions used to cover leave and other absences.  5

[14] This is an agreed position on manning following the AWU’s agreement to the removal of the Hot Car operator position at No.5 Battery. A Battery being a series of oven chambers 6 with heating walls on either side where a combination of fuel and air are combusted to heat the ovens. BlueScope operate three Coke Batteries - No.5, 6, and 7. Battery No’s 5 and 6 are collectively known as Coke Plant 1.

[15] The Hot Car on Battery 5 was automated in December 2012 and the Hot Car on Battery 6 in October 2007. The Hot Car is used to catch hot coke as it leaves the oven and carries it to the quencher.

[16] BlueScope have sought a further reduction of operator positions per crew having determined that there are currently two positions per shift crew which are surplus to operational requirements. The two positions are a GPO position and a relief operator position. The issue in dispute between BlueScope and the AWU is the removal of these positions from each crew. 7

[17] The removal of these two positions will result in each shift crew consisting of eight positions per crew. According to BlueScope, the composition of the proposed crew for the Coke Plant 1 would be assigned as follows:

2 x Charger operators - one on each Battery,

2 x Ram Car operators - one on each Battery Ram Car,

2 x GPOs across the Coke Plant; and

2 x Relief positions to cover leave and other absences.

[18] The dispute has been brought to the Commission pursuant to clause 36.4 - Introduction of Change Including Outsourcing, of the Award. Subclause 36.4.1 of the Award sets out the principles concerning the management of change at the workplace and at subclause 36.4.2 of the Award the process for the introduction of change is set out.

[19] The Award allows for two types of change − changes that are significant in nature and a change that is not significant in nature. For the purposes of this dispute, the proposed change is subject to the process of a change that is significant in nature. This process is outlined at subclause 36.4.3 of the Award.

[20] As part of the process, BlueScope issued two letters outlining its intention to review the working arrangements at the Coke Plant 1 Operations. Letter 1 dated 7 June 2012, was intended to inform the affected employees that BlueScope was intending to consult on a significant change related to working arrangements and manning, prompted by the automation of the No.5 Battery Hot Car.

[21] An additional letter − Letter 2 8 dated 11 December 2012, was sent to inform all affected employees that BlueScope intended to implement the changes, and set out the nature of the changes, the date for the introduction of the changes, the impact the changes will have on employees and the steps that are to be put in place to manage the impact on employees.

[22] In addition to the two letters sent to the affected employees BlueScope has held eight consultation meetings with employees and their representatives along with other informal communications. 9 The purpose of the meetings was to discuss the proposed changes, the objectives of the changes and the impact on employees. The milestones in the review process were also put forward and discussed.

[23] On 12 December 2012, the AWU wrote to BlueScope stating that it did not agree to the changes proposed and invoked the status quo arrangements. 10

[24] BlueScope submits that as the AWU has invoked the status quo, it has essentially stopped BlueScope from implementing the proposed changes. Pursuant to sub clause 36.4.3(o) of the Award which states that the status quo may be altered by recommendation or a direction of the Commission in proceedings, BlueScope now requests a direction from the Commission to revoke the status quo.

[25] The test by which the proposed changes are to be assessed are those which are identified in sub clause 36.4.1(c) of the Award:

“36.4 Introduction of Change Including Outsourcing

36.4.1 Principles concerning the management of change

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

(a) ...

(b) ...

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

safe;

efficient;

legal; and

fair.

(d) ...

(My emphasis)

Submissions

BlueScope Steel

[26] BlueScope was represented by Mr Ken Brotherson a solicitor. No objection was taken to his appearance and leave was granted for Mr Brotherson to appear on behalf of BlueScope. Mr Brotherson called three witnesses who gave evidence and tendered witness statements:

• Mr Landon Ronay - Operations Manager.
• Mr David Brian Roberts - Battery Team Leader.
• Mr Troy Dean Subotic - Mechanical Team Leader.

[27] The evidence of these witnesses went to the need for the proposed changes, the consultation that had occurred with the relevant employees, the data analysis exercise undertaken and issues of safety and efficiency arising from the proposed changes.

[28] BlueScope argue that financial imperatives at its Port Kembla Steelworks (Steelworks) have required it to undertake sustained efforts to reduce costs and increase its competitiveness across all areas of its operations. Losses over the last few years have resulted in major changes including the closure of one blast furnace and significant employee redundancies.

[29] It is said that the current manufacture of steel slab and hot rolled coil is uncompetitive at Port Kembla with what is produced offshore. The Steelworks is operating well below its capacity, in part due to reduced domestic demand for steel. 11 Further, BlueScope’s coke making operations have been adversely impacted by lower profit margins for export coke.

[30] One efficiency measure undertaken has been the automation of the Hot Car on No.5 Battery which occurred in December 2012. Together with this measure a wider review to identify cost savings at Coke Plant 1 was carried out.

[31] The review included a data analysis to track workloads and utilisation of GPO’s on each shift at Coke Plant 1. The data was collected over a period of 52 days between August and September 2012. The Shift Team Leader and the Shift Controller undertook this exercise.

[32] Employees although requested by BlueScope to participate in the data analysis exercise declined to do so. The data recorded for each task included the time and duration of the task, who performed it and the nature of the task. Over 2,000 tasks were documented in this exercise.

[33] The review identified that one GPO position per crew and one relief operator per crew was surplus to operational requirements. It was submitted that the analysis identified an average utilisation of GPO’s excluding meal breaks and machine relief time of 56% utilisation on weekday day shifts and 25% utilisation on other shifts.

[34] To account for any potential under-recording during the data collection period an uplift of 33% was applied which increased the utilisation figures to an average of 75% on weekday day shifts and 33% for other shifts.

[35] BlueScope submit that the reduction by one of the GPO positions can be achieved by:

• standardising job rotation across all shift crews;
• redistributing duties among the Coke Plant 1 Operations team positions due to the significant under-utilisation of a number of positions; and
• adopting a more flexible response to workload management. 12

[36] In BlueScope’s view the existing ratio of three relief operators for seven positions is said to be excessive. With the removal of the Hot Car operator position and one GPO position, three relief operator positions are no longer required. There is only a need for two relief operators to provide relief capacity to the remaining six operators.

[37] The consultation process commenced in June 2012, with advice to employees and the AWU and consultation continued until the dispute application was lodged in the Commission by BlueScope in December 2012. It was said by BlueScope that information concerning the proposed changes was also communicated to relevant employees through key message boards.

[38] BlueScope submitted that it has complied with the consultation obligations under the Award.

[39] During the consultation phase BlueScope proposed that the new work arrangements be trialled, however, the relevant employees did not agree to a trial prior to the automation of the No.5 Battery Hot Car.

[40] In respect of the tests to be applied at sub clause 36.4.1 of the Award which concern the management of significant change, BlueScope state that these tests have been met in the following manner:

Safe: Following a risk assessment no risk to health and safety was identified. The proposed reduction in crew numbers will still be sufficient to safely manage any emergency scenarios that may arise.

Efficient: The results of the data analysis project demonstrate an efficiency gain, whereas maintaining the existing crew numbers results in employee under utilisation.

Legal: All obligations under the Award including those relating to consultation have been complied with.

Fair: The proposed changes will address existing unfairness at the Coke Plant 1 operations in respect of unequal workloads by ensuring all positions rotate equally and allowing employees the same opportunity to develop and use their skills.

[41] BlueScope referred to the decision of Conner C, in the case of BlueScope Steel Limited v Australian Workers Union, Electrical Trades Union and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of the New South Wales Industrial Relations Commission, 13 to support its conclusions on the tests above.

[42] In response to the AWU argument that continual restructuring has resulted in an unfair reduction in crew numbers, BlueScope state that at present less people are doing less work and producing less coke. 14

[43] It should be noted that while BlueScope argue that the relevant operators are underutilised, no criticism is made of the skill level or the work ethic of the operators.

[44] While the BlueScope proposal results in positions lost, for those remaining operators, their earnings and career path options are not affected.

[45] The direct savings from all of the proposed changes including the loss of the Hot Car Operator position at Battery No.5 is estimated at $1.5 million per annum for the life of the plant. 15

[46] BlueScope state that the reasons for the proposed reductions in positions justify the change and meet the tests imposed under the Award. As such, the status quo restriction brought into play by the AWU should be lifted by a direction of the Commission to allow the proposed changes to occur.

Australian Workers’ Union

[47] The AWU was represented by Ms Judith Teesdale a Legal Officer with the AWU. Ms Teesdale called four witnesses to support the Union’s position, all of whom tendered a witness statement:

• Mr David Andrew Bevan - Level 4 Operator.
• Mr James David Smith - Battery Officer.
• Mr Paul Anthony Vahl - Battery Operator.
• Mr Grant Ronald Cadger - Battery Operator.

[48] The witnesses for the AWU were critical of the data analysis undertaken by BlueScope which in their view did not capture all the tasks carried out by operators. The general view held by these employees was that with the increased utilisation rates there will be a detrimental effect on production, safety and risk management. 16

[49] The AWU opposed the reduction of the positions for the following reasons:

• The procedure under section 36.4 of the Award had not been complied with.
• The proposed reduction does not satisfy the criteria for assessing such change under the Award, in compliance with section 36.4.1.
• The objects of the Fair Work Act 2009 do not support the change.

[50] The AWU further submit that BlueScope have contravened the Award by not satisfying the tests of safe, efficient, legal and fair. 17

[51] It was submitted that BlueScope had already decided on the reduction of the work numbers prior to commencing any consultation. It is argued that clause 36.4.3 of the Award requires BlueScope to not only consult employees, but to discuss their concerns and consider other options. It was further submitted that the requirements of the “Task Brief” referred to at 36.4.3(c)(iii) of the Award were not adhered to as it did not sufficiently prepare criteria for appraisal of the idea and the impact the idea may have on employees.

[52] In respect of the data analysis, as this was proposed before the Hot Car on Battery No.5 had become fully automated, it was not seen as beneficial for employees to participate until this occurred. It is argued that BlueScope unreasonably refused to defer the data analysis or conduct a further data analysis after the full automation of the Hot Car.

[53] The AWU generally criticised the validity of the data analysis on the basis that data was only collected on 39 days over the 52 day period and that the tasks recorded were not modelled on the actual work performed.

[54] By reducing the number of operators it was submitted that this would create inefficiency due to the additional work load of operators. As employees will be required to rotate through positions it was argued this would lead to the potential of more mistakes occurring.

[55] It was put that as the proposed changes were not submitted to the Occupational Health and Safety Committee the employees views and concerns about safety were not given due consideration. Further, no documentation concerning the Risk Assessment was provided to employees despite their safety concerns. It was alleged that BlueScope provided no evidence that they had complied with s.79 of the Work Health and Safety Act 2011 (NSW).

[56] It was said that less operators will impact on emergency operating procedures and place employees under pressure with increased workloads. For example, in cases of excessive wet weather there are more occurrences of blocked surge bins and block charges.

[57] The AWU highlighted the previous restructures at BlueScope resulting in employee redundancies, arguing that the continual reduction of employee numbers has created job instability and placed the remaining employees under enormous stress. It is said that the removal of further positions with the remaining employees to undertake this work without recompense is unfair and unjust. 18

Conclusion and Determination

[58] There was much evidence given by the witnesses for both parties in this matter. I have considered all that has been put before the Commission in arriving at my conclusion.

[59] BlueScope submits that the AWU bears the onus of making a case for the retention of the status quo or to establish that BlueScope should not be allowed to proceed with the proposed changes. In support of this position, BlueScope relied upon an authority of the New South Wales Industrial Relations Commission, involving the same two parties to this dispute AWU v BlueScope Steel (AIS) Pty Ltd 19. At paragraph 21 of the decision the Full Bench said:

“Our decision should not be taken as suggesting that the onus of making out a case for the retention of the status quo or resisting changes on grounds which rely on the principles in clause 36.4.1 (c) falls on the Company. Such an approach would constitute error. The onus in such cases falls upon the Union to make out a case that the changes proposed by management should not be made or should be offset by some compensation or other adjustment in conditions of employment.”

[60] In my view this position is correct. It is for the party arguing that the status quo should remain to make out their case. Although I accept the proposition that the AWU are not required to demonstrate that BlueScope have not meet all four of the Award tests and that failure to meet one or a number of the tests may be sufficient to demonstrate that the business case for the proposed changes has not been made out. 20

[61] The Award itself at sub clause 36.4.1(a) reflects the parties’ acknowledgement that workplace change is a fundamental aspect of maintaining a viable steel industry. Sub clause 34.4.4 the Award states that changes in operations will be ongoing and may lead to employees being made surplus. There are various options available to employees under the Award should this occur.

[62] All employees are required to perform tasks and functions within their skill, competencies and the requirements of their role. Dependent on ensuring the best possible work models are put in place, systems of work will almost invariably be subject to change. Provided what is directed and required of an employee is within the scope of their role and is safe to do so, such directions will generally be held to be lawful and reasonable.

[63] An examination of Full Bench decisions of this Commission and its predecessors demonstrates a general disinclination to interfere in legitimate management decisions. A Full Bench of the Australian Industrial Relations Commission in Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales 21 (XPT case) in addressing managerial prerogative said:

“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.”

[64] This concept was recently followed by a Full Bench in the matter of Transport Workers' Union of Australia v Qantas Airways Limited; Q Catering Limited 22at (36) and again at (81) when stating:

“The determination of how to engage labour, the extent to which contractors are utilised and the numbers of employees to be engaged in various categories are classically regarded as matters properly to be determined by the management of an enterprise.”

[65] For the purposes of considering the desirability and business case for any proposed change under the Award, sub clause 36.4.1 of the Award states that the tests to be applied are requirements for the change to be safe, efficient, legal and fair.

[66] Whilst I have made reference to general Commission precedent above in respect of an employer’s right to manage its business, the Award provisions under which this dispute is brought before the Commission provides clear guidelines on what the parties have agreed are to be the determining factors. This issue was the subject of appeal in AWU v BlueScope Steel (AIS) Pty Ltd 23.

[67] In the decision in first instance DP Grayson upheld the right of BlueScope to manage its operations as it deemed appropriate provided the consequences of exercising such a right did not place an unjust or unreasonable burden on employees. The Full Bench held that this was an error in law and principle because the conclusion failed to address the requirements of clause 36.4.1. Clause 36.4.1 of the Award has remained unaltered since the 2006, Full Bench decision.

[68] As the Award is clear in its terms as to what tests are to be applied, it is not permissible in this case to simply rely on the principles generally applying in industrial relations jurisprudence. Although in respect of the “fairness” and “efficiency” test I have had regard to what is generally accepted in the above decisions as the right of the employer to manage its business as it sees fit, provided it is not unjust or unreasonable.

[69] In specifically addressing the tests under the Award I have arrived at the following conclusions:

Safe

[70] The issue of safety appears to be a belated one. The AWU’s correspondence 24 to BlueScope of invoking the status quo makes no reference to any safety concerns. The changes were said to be opposed on the basis that:

• they will result in a restriction on employees taking leave;
• employees already work in a flexible manner; and
• cost savings can be achieved through a reduction of staff members at the Coke Plant operations.

[71] A failure to consult in accordance with the Award was also not raised as an issue when the status quo provisions of the Award were invoked. That is not to say these arguments cannot at a later time, be raised.

[72] I am unable to see the direct relevance of s.79 of the Work Health and Safety Act 2011 (NSW) which requires a person conducting a business (BlueScope) to allow access to information concerning hazards and the associated risks at the workplace and the health and safety of the workers at the workplace be provided to the Health and Safety Committee. This is because there was no accompanying evidence that the Health and Safety Committee ever requested any relevant access or that access to such information was denied by BlueScope. BlueScope and its employees have an ongoing obligation to comply with all safety legislation including the Work Health and Safety Act 2011 (NSW).

[73] Site inspections revealed that the coke making work environment can be unpleasant and physically arduous. Employees are subject to high temperatures due to the coke making process. The Batteries are by their nature required to reach internal temperatures of around 1200 degrees centigrade, employees although are not exposed to these temperatures but the oven tops may reach up to 60 degrees. Employees undertaking their full range of tasks cannot escape the coke dust and dirt that is associated with the coke making process.

[74] The evidence of the BlueScope witnesses who are all experienced in Coke plant operations is that the proposed reduction in manning will allow the crew to manage the plant safely while allowing sufficient breaks for meals, fatigue and heat stress.

Efficient

[75] BlueScope’s proposed crew reduction will require a redistribution of the duties of the No.5 GPO across other positions, together with a full rotation on all crews across Batteries and machines. This requirement would appear to be consistent with clause 34.4 of the Award which requires all employees to perform such work as BlueScope may, from time to time reasonably require.

[76] Despite the reservations raised by the AWU to the data analysis exercise undertaken by BlueScope, there is clearly an under utilisation of the Coke Plant 1 operators which has necessitated the proposed removal of a GPO position and relief operator position from each crew.

[77] The additional tasks identified as not recorded by the AWU in the data analysis by the AWU witnesses were limited and in short in duration and would fall comfortably in the 33% uplift included by BlueScope for such purposes.

[78] The extent of the underutilisation of operators was for all intents and purposes confirmed by the AWU witness Mr Smith in cross examination by Mr Brotherson commencing at PN2093 and finishing at PN2113 of the transcript:

“Isn't it the case that on number 5 battery then, pushing blocks operate about every approximately three hours?---That's correct.

But the actual time to push a block averages at the moment about 85 minutes, correct?---At the moment, yes.

That leaves an hour and a half from the end of the pushing of a block to the start of the next block on average, correct?---At the moment, yes.

During that one and a half hour gap currently you would agree that the ram driver and the charger driver effectively are idle until the next push, correct?---That's correct.

You would have to agree with me that given that could occur three or four times a shift, depending on the sequence and timing of blocks, that does provide a lot of spare time for the ram driver and the charger driver on number 5 battery, correct?

---Correct.

It's appropriate isn't it that given someone is being paid for 12 hours per shift that the company might look to utilise some of that spare time, correct?---I don't think so.

But you accept that at most under the roster arrangements an operator might be afforded three 30 minute breaks in a shift?---Yes.

So that's an hour and a half. So again if we think there is an hour and a half between each push, there is still a considerable amount of under-utilisation of those operators, correct?---At the moment, yes.

So if the company seeks to have those operators at times perform some of the tasks currently done by the number 5 GPO, such as sweeping benches which might take on some estimates 10 minutes, on another estimate we have heard perhaps 25 minutes, there is some capacity to undertake that work, isn't there?

---Yes.

Again, if we look at the GPO role on number 6 battery and number 6 battery it operates in two hour blocks?---That's correct.

That is two hours operating the machines and then two hours off?---That's correct.

During those two hours off those persons currently relieve themselves in the crib room?---We've got other duties besides that, yes.

But a large part of that time is spent in the crib room?---I wouldn’t comment on that because I worked my last night shift two days ago and I spent very little time in the crib room.

That was a day when there was a sticker?---That's correct.

Stickers don't occur every day do they?---Not every day they don't, no.

Indeed we have looked at statistics during these proceedings and I put to you that the average might be somewhere between two to two and a half per month over a couple of years?---(Indistinct) mate.

Can I put to you do you have any evidence to contradict that?---I haven't.

So if we take the day that you had a sticker where I think you might work harder than the normal day, if it's not a day where there's a sticker, some of that time between pushing blocks, more of that is going to be spent in a crib room, isn't it?

I can't comment on that because I've got to be upstairs doing - digging out the coal.

So you say you always have something to do and you're always 100 per cent occupied do you?---I'm always on call.

I understand you're always on call, the question I put to you is are you saying you are always 100 per cent fully occupied?---No.

Therefore there is time for certain other duties to be assigned and that can occur on both number 6 battery where we've discussed that gap between the blocks and you have already acknowledged there is actually quite a bit of time on number 5 battery, correct?---At the present time there is, yes.”

[79] The proposed ability of employees to operate between No.5 and No.6 Batteries and on the various machines as directed by BlueScope will allow the reduction of the positions to function effectively without imposing undue hardship on the remaining employees or create additional safety concerns that cannot be managed as proposed by BlueScope.

[80] The proposed changes are in my view directed at genuine efficiency measures by increasing the utilisation of crew members.

Fair

[81] The AWU were highly critical of BlueScope’s data analysis exercise, a process the employees themselves did not participate in, as it was their view being carried out prematurely. Even accepting the AWU’s position that the data analysis exercise should have been delayed, once advised by BlueScope that it was proceeding, the decision by employees not to participate in recording their tasks undertaken reduces the effective criticism that the process did not capture all the tasks performed.

[82] In any event, I accept the BlueScope position that the automation of the Hot Car on the No.5 Battery has had negligible impact on the No.5 Battery GPO and no impact on the work of the No.6 Battery GPO’s or the work of the Ram and Charger Driver on No.5 Battery. 25

[83] There no doubt will be occasions when due to weather and unforeseen operational events such as carbonised ovens, additional maintenance or project work, the reduced manning will create pressures on employees that BlueScope will need to manage. However, it cannot be reasonably expected that BlueScope should maintain a manning level that results in significant under utilisation of its workforce for these isolated events. The evidence of Mr Roberts illustrates this point in response to the AWU’s questioning of whether the manning reduction was an exercise in efficiency. Mr Roberts’s response was that a need to call two or three employees in on overtime a couple of times a year was more efficient than employing four extra persons over a year. 26

Legal

[84] I am not persuaded that that BlueScope’s proposal fails any test of legality. The procedures required to be followed by BlueScope and in particular those relating to consultation appear to have been complied with, at least in substance, if not in form. The witness statement of Mr Ronay contains an Annexure LR1 27 which lists in a comprehensive fashion the meetings, discussions and communications undertaken with the relevant employees, AWU representatives and AWU officials.

[85] The concerns raised by the employee witnesses for the AWU while no doubt genuinely held, tendered towards hypothetical and worse case scenarios regarding workloads and safety and a wish to create the ideal response to each one of these situations.

[86] I accept on the evidence of BlueScope supervision that the relevant roles do not perform safety critical functions relating to gas work and that if emergency situations arise adequate contingency plans are in place to promptly deal with them. This in any event would appear to be an obligation that must be met under the relevant safety legislation.

[87] I am unable to see that the proposed changes sought by BlueScope have occurred in a manner that is not consistent as argued by the AWU, with object 3(f) of the Act which states:

“Achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action.”

[88] There was no sustainable evidence that BlueScope have undertaken the consultation process other than on a fair and good faith basis.

[89] As the onus rests with the AWU, I am not satisfied that the evidence presented to the Commission demonstrates that the proposed changes are unsafe, inefficient, illegal or unfair. I therefore direct, pursuant to subclause 36.4.3(o) of the Award that the status quo which has been in place be revoked with BlueScope having the right to implement its proposed changes in respect of the downsizing of the operator positions at Coke Plant 1 together with the resulting change to working arrangements.

COMMISSIONER

Appearances:

Mr Ken Brotherson solicitor for BlueScope Steel (AIS) Pty Ltd

Ms Judith Teesdale for the Australian Workers’ Union

Hearing details:

2013.

Wollongong:

4 & 5 April.

Sydney:

19 April.

 1   Transcript at PN64

 2   AG870527 PR985478

 3   Transcript at PN64

 4   Exhibit A3

 5   Transcript at PN16

 6   A coke oven is a tall, long narrow chamber where coke is heated in the absence of oxygen to create coke. Inside each oven is gas fuelled heating

 7   Transcript at PN26

 8   Exhibit A4

 9   Originating application Form F10 - lodged 14 December 2012

 10   Exhibit A3

 11   Applicant’s outline of submissions at 15-17

 12   See Witness Statement of L Ronay at LR3 page 30 for specific details

 13 [2008] NSWIRComm 1039

 14   Transcript at PN526

 15   Exhibit A5 Witness Statement of L Ronay at 36

 16   See for example Exhibit R5 Witness Statement of D Bevan, Response to Applicants Witness Statements.

 17   AWU outline of submissions

 18   AWU outline of submissions

 19 [2006] NSWIRComm 318

 20   See BlueScope Steel (AIS) Pty Limited v Australian Workers Union [2007] NSWIRComm 1045 (17 July 2007)

 21 (1984) 295 CAR 188 at 191

 22   [2012] FWAFB 6612

 23 [2006] NSWIRComm 318

 24   Email dated 12 December 2013 Exhibit A3

 25   Transcript at PN2637

 26   Transcript at PN1190

 27   Exhibit A5

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