Construction, Forestry, Mining and Energy Union v BlueScope Steel (AIS) Pty Ltd T/A BlueScope Steel

[2017] FWC 2851

[2017] FWC 2851

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union
v
BlueScope Steel (AIS) Pty Ltd T/A BlueScope Steel
(C2016/7229)

COMMISSIONER MCKENNA SYDNEY, 30 MAY 2017

Alleged dispute about any matters arising under the enterprise agreement.

[1] The Construction, Forestry, Mining and Energy Union (“CFMEU”) made an application to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (“the Act”) about changes that had been proposed by BlueScope Steel (AIS) Pty Ltd T/A BlueScope Steel (“BlueScope”) to its operations within the Refractory Services Department (“refractory”) at a worksite in Port Kembla, New South Wales.

[2] It is common ground the dispute is of a type which the Commission may determine pursuant to the disputes procedures in the relevant industrial instrument, namely, the BlueScope Steel Port Kembla Steelworks Agreement 2015 (“Agreement”). It is also common ground that the dispute concerns proposed changes that are “significant in nature” within the meaning of cl.35.2.2(c) of the Agreement. The relevant clause extract in dispute reads:

“35.2 Introduction of Change Including Outsourcing

35.2.1 Principles concerning the management of change

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

(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. …”

[3] The matters now before me for determination have had some considerable background, which need a short summary. As addressed in the evidence and submissions, and as was otherwise reasonably widely publicised, BlueScope has undertaken restructuring, including significant redundancies and labour cost-cutting measures. The evidence indicated that, over the course of various meetings associated with the proposed changes, employees and or their unions, or both, raised, among other concerns, concerns about safety arising from the changes to work processes proposed by BlueScope for operations in the refractory. As matters were not resolved, the CFMEU lodged the present dispute which was initially allocated to Riordan C. The Australian Workers’ Union intervened in the proceedings and supports the submissions of the CFMEU. A hearing commenced before Riordan C on 1 February 2017. That matter adjourned part-heard, and Riordan C assisted the parties in conciliation. On 2 February 2017, a statement was issued by Riordan C attaching terms of (partial) settlement. That statement read:

“[1] The parties to this dispute have negotiated the attached Terms of Settlement.

[2] The Fair Work Commission (FWC) has provided some assistance in conciliating the outcome.

[3] The FWC, as presently constituted, congratulates the parties on reaching this settlement. It proves that when parties adopt a pragmatic and common sense attitude towards dispute resolution that the need for arbitration is significantly reduced.

[4] This settlement, appropriately, resolves the majority of the issues in this dispute yet maintains the opportunity for further proceedings in relation to:

(i) any safety issue associated with the tasks identified in paragraph 6;
(ii) any dispute in relation to the employees who are made redundant; and
(iii) any on-going disagreement in relation to the use of external resources for peak intermittent work.

[5] The attached Terms of Settlement are binding on the parties as if they were a Decision of the FWC.”

[4] As part of the arrangements that were agreed, a trial was to be implemented of the safety aspects associated with refractory work concerning the torpedo ladle gunning task, torpedo clean skin repairs, and torpedo ladle patching. Relevantly, the terms of settlement noted that “the only remaining contested requirement under the Agreement is safety”.

[5] The two-week period of the trials commenced on 7 February 2017. In email correspondence dated 23 February 2017, the solicitors for BlueScope advised as to matters including that BlueScope’s stated position was that there was no safety issue that had been identified that prevents the changes to the work practices being implemented.

[6] The trial results, effectively, were not agreed. One witness described that there was, in fact, “significant disagreement” – and that disagreement also had as its background the concern the CFMEU had communicated to BlueScope about what it considered to amount to alleged hindrance and obstruction by management as to certain matters related to the proper conduct and supervision of the trials. This was denied in the evidence of BlueScope which gave the particular witness’s own perspective as to what had occurred as to one of the other witnesses acting in a way which was characterised as allegedly being disruptive and as to the contentions concerning the purported exclusion.

[7] Certain matters were the subject of a report to Riordan C on 24 February 2017. With a view to attempting to further assist the parties to resolve the remaining matters, Riordan C conducted a site inspection on 3 March 2017 and demonstrations of the work occurred. The evidence for BlueScope indicated that while the company did not necessarily accept at least one component of the recommendations that were to result from the inspection by Riordan C as being what it considered objectively operationally necessary, it was nonetheless prepared to accept the recommendation “in the interests of resolving matters”. As matters transpired, the recommendations made by Riordan C were not accepted by the employees.

[8] The further recommendation issued by Riordan C, dated 27 March 2017, compendiously describes what occurred:

“The Fair Work Commission (FWC) conducted an inspection of the Refractories Department on Friday, 3 March 2017 to look at the 3 remaining work scenarios that were in dispute between the parties,

In an attempt to resolve the dispute, the FWC, as presently constituted, verbally recommended an outcome on each scenario based on the issues raised by the parties during the inspection. These recommendations were rejected by the employees.

As a result, I felt it was inappropriate to continue to arbitrate the matter – the CFMEU and AWU agreed. BlueScope asked for a further conciliation – which was conducted on 24 March 2017.

The attached document identifies the position of the parties.

I strongly recommend the proposed outcomes to the parties. Additional ideas have been raised by both parties which warrant further discussion and consideration within this framework.

I am of the view that the application of a modicum of common sense and courtesy (which are necessary ingredients of a harmonious industrial relationship which have been non-existent from both parties for a period of time) will result in a safe and productive outcome for all concerned.”

[9] The application is now before me for arbitration as to the balance of the matters stemming from the parties’ agreement of 2 February 2017. The extant matters arising for determination are agreed between the parties to be as follows:

“Question for arbitration

The Company will retain the current procedures for calling on additional resources (employees/contractors) as and when required. As such the only outstanding matters for determination [are] whether, in accordance with the [Agreement], there are any new safety issues that arise from reduction of people used to complete the following tasks that prevent the implementation of the following changes:

1. Torpedo patching:

(a) Barrel Patch – 2 people instead of 3 people;

(b) Ramp Patch – 2 people instead of 3 people.

2. With further modifications to enable line of sight the Torpedo ladle gunning task using 6 people instead of 7 people.

3. Torpedo clean skin repairs will [use] 6 people instead of 7 people (4 inside and 2 outside) with one of the two outside positions holding a level 4 classification.”

[10] Evidence and submissions were heard by me on 22-23 May 2017 in relation to the extant matters for determination. Evidence was given in the case for the unions by a CFMEU organiser (David Kelly) and three employees of BlueScope who perform the relevant refractory work and who have also each had close involvement in work safety-related matters (Greg Wall, Dave Dellapina and Garry Webster). Evidence was given in the case for BlueScope by Paul Cugaly, Refractory Manager, Refractory Services; Christopher Brown, Health & Safety Professional, Slabmaking; and Caleb Leeming, Ironmaking/Projects Team Leader, Refractory Services.

[11] There is sharp dispute about the safety aspects of the proposed reorganisation of the work in question. The written outlines of submissions of the unions and BlueScope distilled and characterised matters in the summary that follows.

The case advanced by the unions

[12] The unions submitted the dispute concerns an entitlement that exists in the Agreement in relation to consultation. As a consequence of certain matters that were the subject of an agreement of 2 February 2017, the submissions were limited to specified tasks and safety. Specifically, in that regard, the unions submitted that BlueScope’s proposed changes are not “safe” as required by cl.35.2.1(c) of the Agreement.

[13] The unions submitted the change proposed by BlueScope is clearly “significant change” within the meaning of the Agreement and that the principles concerning the management of change in cl.35 of the Agreement are thereby engaged, including the requirements in cl.35.2.1(c) as it concerns proposed changes being “safe”. The unions submitted they acknowledged the cases indicate they bear the onus of proof in regard to these proceedings, but the responsibility for ensuring the safety of the change remains with BlueScope. To comply with cl.35.2.1(c) of the Agreement, the unions submitted, BlueScope must not merely have turned its mind to, or considered, the safety implications; it must actually have ensured the change is safe.

[14] The unions submitted that they did not seek that BlueScope be held to an impossible standard, in circumstances where no work process, however cautious, can guarantee the safety of workers in all eventualities. Rather, the unions submitted that the appropriate test for a requirement for the change to be safe is that: (a) the proposed process is no less safe than the existing process; (b) the proposed process is not in conflict with current BlueScope policy in relation to safety; and (c) the proposed process is not in conflict with any relevant legislation, external safety standards or the recommendations of qualified external consultants, observers or regulators. In so submitting, the unions relied on cases including The Australian Workers’ Union v BlueScope Steel (AIS) Pty Ltd[2015] FWC 4259. An additional requirement, the unions submitted, is that BlueScope has actual knowledge of the safety of the proposals, and be able to provide evidence of this knowledge. It is not sufficient to ignore or brush-off legitimate questions around safety, and, if raised, BlueScope must be able to show the concern was considered and the steps taken to assess and deal with matters. The unions referred to the evidence as to safety-related matters, including from witnesses who had many years of experience and training in dealing with workplace safety, specifically in relation to bricklaying in an industrial context, and the concerns they each raised about the changes that do not meet such requirements.

[15] The unions submitted that based on the witness evidence adduced, the proposed two-person patching process is unsafe for a variety of reasons, including manual handling; fatigue; slips, trips and falls; and, in particular, emergency response times.

[16] The unions made criticism of certain of the evidence adduced by BlueScope, as that evidence concerned matters including, but not limited to, frequency of a hazard; key elements of a formal risk assessment; and fatigue management policy. The unions submitted that, based on the evidence raised as key safety concerns by the three bricklayer witnesses, the Commission could not be satisfied that BlueScope has adequately turned its mind to the interrelated problems of manual handling; fatigue; and slips, trips and falls.

[17] The unions submitted that the evidence of its witnesses was that the only known test of emergency response procedures for the new processes was a failure, and that no new test had been undertaken. Although BlueScope had subsequently (in these proceedings) argued that it had corrected the flaws detected in the safety drill, BlueScope had not, to the best of the knowledge of the CFMEU’s witnesses, performed any additional testing. The unions submitted that certain evidence was instructive on this point, whereby witnesses called in the case for BlueScope posited that the original drill was successful, but also that it was effectively sabotaged by the employees involved, or by limitations inherent to any drill. The unions submitted those witnesses called by BlueScope were unable to adequately quantify which of the delays were due to which problems. Moreover, the witnesses called by BlueScope could not explain why BlueScope will not repeat the exercise, beyond one witness’s assertion that a new drill might cause unnecessary “stress” to the employees involved – although that witness also conceded that employees are currently stressed by an emergency response process in which they have no confidence. Moreover, there was evidence that the risk assessment for two-person patching was completed in September 2016, and had not been updated despite the mock emergency drill and the changes flowing from that – which was submitted to be further evidence that BlueScope has not adequately responded to information provided by employees.

[18] On the basis of such evidence, the unions submitted that BlueScope is aware of a safety hazard and has not taken adequate steps to assess its proposed controls. As a result, the Commission cannot be satisfied that the safety requirement is met.

[19] The unions submitted that the proposed six-person torpedo ladle cleanskin process is unsafe, due to issues with slips, trips and falls; monitoring bricksaw operation; conflicts with the controlled space procedures; and the significant risk of workers being trapped in the controlled space during an emergency; as well as other reasons set out in evidence. In support of this submission, the unions drew attention to aspects of the evidence as to matters including the issue of controlled space procedures, safe lifting procedures and egress from the ladle. The evidence, the unions submitted, pointed to a clear conflict with other existing policies: workers on the outside of the ladle must be available at all times to install a ladder should egress be required in accordance with the controlled space policy; the ladder requires two individuals to lift in accordance with the standard procedure. Should one worker on the outside of the ladle become unable to move the ladder, through injury or for some other reason, the remaining worker is left with the choice of breaching the controlled space policy and leaving workers unable to exit the ladle during the emergency response, or breaching the standard procedure and risking further injury.

[20] The unions pointed to aspects of the evidence concerning matters relating to the weight and characteristics of a ladder or ladders used at the workplace and noted here is no proposal to perform any kind of specific assessment or training in single person ladder installation. The unions submitted that it was a significant concern that the effect of the evidence would involve contravening health and safety policy as to ladders during an emergency; and that no known controls are proposed by BlueScope to deal with this eventuality – beyond suggesting that, as a low probability event, it is not worth preparing for. The unions submitted it is clear that the Commission cannot be satisfied the safety requirement is met for this reason alone.

[21] The unions submitted that BlueScope continued, even during the hearing, to modify the proposals. The proposal that the mezzanine-level lockers be cleared was not made available to the employees or to the Commission, at this point in time. For example, one of the witnesses was unaware of the proposal to clear the mezzanine level during the cleanskin operation until matters were put in cross-examination; this matter does not appear in the evidence of any of the witnesses called by BlueScope, and no assessment of safety has apparently been completed. Until those assessments are completed and shared with all parties, the unions submitted, the Commission cannot be satisfied that the safety requirement is met.

[22] The unions submitted that the proposed six-person torpedo ladle gunning process is unsafe, due to issues with monitoring a confined space, material collapse in a confined space, frequent stopping and starting of the reed gun (itself a hazard), as well as other reasons set out in evidence.

[23] BlueScope had offered, following the trials conducted with the assistance of Riordan C, to substantially modify the job allocations during the gunning process. The unions submitted all the assessments made regarding the safety of the procedure were, however, completed while a substantially different job allocation was proposed. If further assessments have been completed by BlueScope, they have been made available to neither the Commission nor the employees; and this was characteristic of the pattern throughout. Until those assessments are completed and shared with all parties, the Commission cannot be satisfied that the safety requirement is met.

[24] The unions submitted that certain evidence about the frequencies of particular tasks occurring leads to the conclusion that these numbers have been set without reference to the affected employees, by assumptions that ignore the changes in pace and tasking over the course of a shift. The unions submitted that if the time available to perform activator checking is lowered, BlueScope has not provided any evidence as to whether it could be safely completed; and the evidence of the CFMEU’s witnesses is that it could not.

[25] Further, the unions’ submissions continued, proposed controls, such as the agitator in the barrels, have not yet been implemented, and some have been abandoned entirely or replaced. The unions submitted that certain evidence from BlueScope’s witnesses was also “underwhelming” – that is, the use of a siren (in lieu of clear sheeting to assist with line-of-sight) has been tested only by management and not with employees; and the full extent of the training provided in the use of the siren is a note in employees’ Job Safety Environment Analysis (“JSEA”). At the same time, the positioning of workers outside the ladle to ensure line-of-sight communication was dismissed as a minor, low-frequency event. This is not a reasonable approach, the unions submitted, to the assessment of safety in the context of a high-pressure industrial environment.

[26] The unions were critical of what they characterised as BlueScope appearing to attempt to damage the credibility of the CFMEU’s witnesses by suggesting that they withheld information and failed to adhere to their own safety responsibilities by not reporting issues promptly. Not only was this denied in turn by each of those witnesses, but their separate descriptions of reporting problems to their supervisors, safety officers and managers in different contexts threw significant doubt on BlueScope’s claim to have maintained a progressive and complete record of problems encountered during the trials, and more generally. In any case, the question of when safety concerns were reported is irrelevant to whether or not they actually exist – and these employees have been consistent in their reports of safety hazards for more than a year.

[27] All the witness statements relied on by the unions dealt with the safety concerns raised by the inefficiency of particular processes proposed in the restructure. The unions accepted that it is ultimately within the power of management to determine the levels of production in the facility. Nonetheless, the statements of the employees make it clear that they believe the inefficiencies required by the proposed procedures will have the effect of slowing production to the point where the refractory may struggle to meet relevant targets. As all three employee witnesses called by the CFMEU have previously experienced, a failure to meet required outputs results in pressure from other areas of the mill to speed production – which, in turn, leads to increased overtime and associated fatigue and stress injuries; and the risk of workers rushing by failing to adhere to safe procedures and processes.

[28] The unions submitted that the proposed changes to patching, cleanskin and gunning processes should not be permitted to proceed, as the Commission cannot be satisfied that they meet the test of safety required by cl.35.2.1(c) of the Agreement.

The case advanced by BlueScope

[29] BlueScope submitted that in its decision to change certain work practices in the refractory operations it has complied with the requirements for the introduction of change in the Agreement and maintains the change satisfies the required tests in cl.35.2.1(c) of being, among other matters, “safe”.

[30] Here, it was submitted by BlueScope, the unions bear the onus of establishing a change does not satisfy one or more of the required criteria and should not be allowed to proceed: BlueScope Steel (AIS) Pty Ltd v The AWU & Ors [2015] FWCFB 5615, but the unions have not discharged that onus.

[31] BlueScope noted that cl.35.2.1 of the Agreement does not prevent or hinder workplace change; rather, it establishes principles and processes for implementing change. BlueScope’s submissions described a timeline of the matters that had unfolded since July 2016 upon commencing the process required by clause 35.2.3 of the Agreement, including as to the consultation preceding the lodgement of the dispute with the Commission. BlueScope’s outline of submissions referred, in some detail, to financial matters in the context of such matters having arisen in formulating the proposed changes.

[32] BlueScope noted that, in short, its proposed change was: six workers instead of seven for the torpedo ladle gunning task; six instead of seven for cleanskin ladle repairs; and two instead of three for a barrel patch and a ramp patch. BlueScope referred to cases which had considered manning disputes as they involved the exercise of managerial discretion, and criteria including safety: BlueScope Steel Pty Limited v AWU [2007] NSWIRComm 1045 and BlueScope Steel Limited v AWU, ETU & AMWU [2008] NSWIRComm 1039.

[33] The Commission, BlueScope submitted, is not itself required to determine whether the change is safe. On the contrary, the submissions continued, the Commission is permitted to rely on the expertise of BlueScope officers and prevent the change being implemented only if it is satisfied the change is unsafe: BlueScope Steel Limited v AWU [2010] NSWIRComm 1020.

[34] BlueScope submitted there can be no suggestion, and nor is there any suggestion, it has been dismissive of safety issues. BlueScope is subject to the Work Health and Safety Act 2011 (NSW) “which it is committed to complying with and has a very good record of doing so” – being a matter acknowledged, for example, in AWU, CFMEU AMWU v BlueScope Steel (AIS) Pty Ltd[2015] FWC 6512 at [7].The improvements in the work practices are safe, BlueScope submitted. Supporting this proposition were the risk assessments undertaken and the controls put in place. Moreover, reviews of the emergency procedures did not identify any further risk to health and safety.

[35] BlueScope submitted that greater efficiency does not mean a task is less safe. Based on what was before the Commission, it would be contrary to the general principles for the Commission to find that the changes proposed are not safe. Here, BlueScope conducted a number of risk assessments and distributed the assessments for review during the work team and consultation meetings; and also undertook a desktop emergency exercise, provided training on emergency response, and conducted a mock emergency call and a mock emergency exercise. The risk assessments and emergency exercises did not identify any risk to health and safety arising from the change.

[36] The terms of settlement arising from the earlier proceedings before Riordan C required the parties to identify and resolve any safety issues that arose during the trial. Any safety issues that were identified were agreed to be reported by employees, discussed, and, as far as possible, resolved at the time. BlueScope maintained a progressive and up-to-date record of the number of times these tasks were performed, and any safety issues that arose as a consequence of operating with one fewer person.

[37] BlueScope submitted that this particular record is significant for a variety of reasons because it was the agreed record for any safety issues that might arise. It was a “living document” for all parties to make contribution. It was intended to ensure all actual safety concerns were recorded and dealt with. In this context, BlueScope submitted it was notable that the vast majority of the purported safety concerns identified in the evidence were not included in that record. BlueScope elaborated upon this by submitting that a significant number of the safety claims now relied on by the unions do not arise as a consequence of the reduction of one person undertaking the task. For example, the claim that the risk of trips and slips from walking across the uneven ground inside the ladle is a risk that has always existed and does not depend on the number of people undertaking the work; and there are long-standing controls that continue to apply in dealing with this risk. BlueScope submitted that a number of the safety claims in the unions’ case “suffer from exaggeration” and, it was further submitted, it is apparent the employees had, from the outset, opposed all the changes because not a single concession was made by employees about any of the changes since the changes were raised in July 2016.

[38] BlueScope submitted the safety issues that were identified in the trials were resolved by controls being put in place, e.g., with wetbox gunning a safety issue was identified about how the forklift driver was safely to remove gloves. BlueScope submitted also that I should have regard to the recommendations made by Riordan C at the time when the dispute was before him, given his extensive earlier involvement in the matter.

[39] BlueScope submitted that the proposed changes satisfy the safety requirement of the Agreement and there is no evidence to “realistically suggest otherwise”. The unions, it was further submitted, had failed to discharge their onus to establish the changes do not satisfy the requisite test of “safe” under the Agreement. In all the circumstances, the Commission should find that the changes can be implemented.

Consideration

[40] It is a self-evident proposition that workplace safety is a matter of most fundamental importance. Where workplace safety is not treated with the seriousness it demands, the outcomes can involve otherwise potentially avoidable injuries or fatalities, or both. Workplace safety laws operate so as to apply obligations to employers and employees (and others) alike; and there is a legislated expectation, an expectation appropriately acknowledged by all participants in these proceedings, as to the need for mutual commitment to occupational health and safety arrangements and obligations.

[41] Regrettably, aspects of what was before me in this case suggest that some of the expressions of acknowledged mutuality may not actually have been met, or at not met as well as might have been expected. Regrettably also – and putting aside the parties’ obligations under the Agreement and relevant workplace safety legislation – aspects of what was before me suggest that more commitment and cooperation could have been shown, on both sides, to resolve what is, at its core, a dispute concerning workplace safety in relation to proposed changes.

[42] It was not supported on the evidence that BlueScope has adopted an approach in which it has been essentially largely or entirely derelict in any aspect of its workplace safety obligations, as the unions seemed to suggest. Equally, it was not supported on the evidence that the concerns of the employees and unions essentially are largely or entirely without foundation or mere exaggeration, as BlueScope seemed to suggest. The criticisms directed by the parties at each other were mostly, it seemed to me, overstated; but there were at least some elements which were established in the respective parties’ cases. I respectfully share the views expressed by Riordan C in his final recommendation, where he wrote:

“I am of the view that the application of a modicum of common sense and courtesy (which are necessary ingredients of a harmonious industrial relationship which have been non-existent from both parties for a period of time) will result in a safe and productive outcome for all concerned.”

[43] In the evidence before me, there was issue, for instance, even as to appropriate naming (e.g. a “go-to man” as against a “floater”), putting aside disagreement about the substantive issue as to the scope of work undertaken in the designated role. The unions contended that BlueScope’s responses to safety issues associated with the changes are still unknown or unclear, or became known only during the course of the proceedings. There is some substance to this contention. Matters concerning work safety should, of course, be the subject of responsive changes.

[44] Even around the date of the hearing, arrangements or re-arrangements in connection with the proposed changes appeared to be something of a work in progress, or, perhaps more accurately, the subject of safety-related refinement; and here it appears that the employee witnesses learned of some of BlueScope’s further proposed refinements only during the course of the proceedings. For example, Riordan C had recommended consideration of the installation of clear panelling in connection with line-of-sight issues as between workers. As it happens, the installation of the panelling was not structurally feasible; however, for reasons unknown, it appears BlueScope did not communicate this to employees or otherwise provide an explanation as to why the panelling would not be installed. Another involves BlueScope’s decision to provide workers with sirens to effect communication as a consequence of the proposed reduction to manning. On one view of it, it appears to be a reasonable safety-minded alternative, but it also appears the reason for this alternative approach concerning the use of sirens was not actually or effectively communicated to employees. While it seems to be the case that no “training”, as ordinarily understood, may have been needed to press a button on a siren, it remains unanswered why BlueScope did not conduct a meeting, or similar, to communicate why the arrangements with sirens were to be effected and why BlueScope sought otherwise to rely on the employees’ completion of JSEA forms, seemingly in response to the lack of its own evidence as to having communicated such matters to employees. That is not, it seems to me, consistent with what might ordinarily be hoped for or expected of BlueScope concerning the implementation of the arrangements involving the use of sirens; but with equal force and effect, it also seems to me the employees simply should not have signed-off the JSEA forms and only then subsequently come before the Commission indicating their concern about a lack of understanding of what was entailed in siren usage. It is also unclear why a test-run or test-runs were not undertaken with employees to trial the siren arrangements, despite my consideration of the evidence as to why this did not occur.

[45] Despite my observations that BlueScope might have done more to communicate with the relevant employees and the unions about aspects of the changes, I acknowledge that, under the Agreement, the requirements around consultation are relevantly different where proposed change is not “significant in nature”; and some of the matters about which the unions raised issue could not be so characterised – such as the relocation of certain items within the workplace.

[46] The evidence indicated that for a range of reasons, and as one witness put it, that the workplace/the tasks involve a “high risk environment”. The union parties, their members and BlueScope, must now, for they are required to do so, put aside the past fractious approach that emerges from the evidence that was before me and properly adopt a cooperative and responsive approach that is demanded of them.

[47] In this regard, true it is that not all matters now raised in the proceedings by the unions as giving rise to concern about changes were noted or raised during the recording process that had been agreed in conjunction with the trialling of operations. The concerns that were known then to employees should have been formally recorded by them or by the unions, or both, as had been agreed; but, equally, that is not to say the unions were precluded in the proceeding before me from raising matters additional to those which were formally recorded pursuant to the agreement initially reached. Workplace safety imperatives do not operate according only to such constraints, even though they were agreed matters as to the operation of the trials, and reporting or recording. Safety is a matter involving dynamics, responsiveness and refinement, regardless of any agreed timeframe and mechanisms thereto; and being matters which I am bound to consider, and have considered in determining the dispute.

[48] The aphorism that change is hard seems very much to apply here. I have carefully weighed the evidence and submissions and, in the conclusions that follow, I reiterate my comments in the proceedings that I consider this case involves a heavy burden, in matters as to what – putting aside issues as to burden of proof and the like – prospectively may be, or may not be safe, given that what is sought is the Commission’s imprimatur concerning changes BlueScope contends are safe but which the unions, on the other hand, contend are less-safe or unsafe, or both.

[49] I have also considered the matters raised in the unions’ case about what might be characterised as “expected output” issues in circumstances where tasks would be undertaken with fewer personnel, and associated fatigue-related matters. The evidence of one witness accurately characterised BlueScope’s proposed changes as having as a “key feature … proposals that common tasks can be performed with fewer workers.” Another witness’s evidence was that by reducing the workforce’s capacity to meet targets, BlueScope is knowingly creating a situation where, at some point, workers will be required to “cut corners on safety”. To similar effect, another witness referred to the “likelihood of employees cutting corners and behaving unsafely is increased” by the proposal of BlueScope. I do not consider I ought accept this characterisation: management and workers each have their own responsibilities, and BlueScope and its employees - emphatically - are not to consider that they are to engage in any cutting of corners on safety either through the imposition of unworkable expectations concerning work performance or by any sense by employees that it would be acceptable for them to cut corners in relation to safety. Moreover, the evidence for BlueScope indicated: “Employees are not expected to work faster or take shortcuts”, and in the conclusions I have reached I have taken this evidence into consideration as well as other evidence and submissions.

[50] It is also appropriate I should note in this decision that I am not influenced, in any way, in the conclusions reached about the financial considerations described in BlueScope’s case even though such matters were addressed in some detail. These matters are, shortly stated, irrelevant to the “safe” issue arising for determination before me. Even if the financial-related considerations were more squarely before me, considerations as to safety of workers could not properly, or for a moment, appropriately be considered in the context of some type of sliding scale of cost-benefit analysis for BlueScope. The matter before me arising for determination, and that is the paramount consideration given workplace safety imperatives in relation to the workers concerned, is whether the changes proposed by BlueScope are “safe” within the meaning of the Agreement.

[51] Given the overarching operation of laws concerning workplace safety, the proposed changes and practical implementation are required to be safe, even if there is some suasion in the unions’ submissions that, at least in some respects, they potentially at least may be less-safe – being what I accept is an inevitable corollary to having one fewer person involved in the performance of the relevant tasks, including, but not limited to, having one less person on hand to attend or assist in the event of exigencies involving accident or injury; ladder lifting/placement; and the inevitable greater concentration of work when there is a reduction in employee numbers performing at least certain aspects of work tasks. On the other hand, I accept the submissions for BlueScope that some of the arrangements proposed would actually constitute an enhancement or an improvement in terms of workplace safety on what would otherwise exist but for the change and that other matters relied upon by the unions do not arise as an incident of the proposed change.

[52] Based on my consideration of the evidence and submissions, I am not satisfied the unions have discharged the onus that lies in this matter. Thereby, the proceedings are determined on the following bases:

1. Torpedo patching:

(a) Barrel Patch – 2 people instead of 3 people;

(b) Ramp Patch – 2 people instead of 3 people.

There are no new safety issues to prevent the changes.

2. With further modifications to enable line of sight the Torpedo ladle gunning task using 6 people instead of 7 people.

The enabling of line-of-sight by the installation of clear sheeting, as suggested by Riordan C, was not structurally feasible. There are no new safety issues to prevent the change.

3. Torpedo clean skin repairs will [use] 6 people instead of 7 people (4 inside and 2 outside) with one of the two outside positions holding a level 4 classification.

There are no new safety issues to prevent the changes.

[53] In closing, I reinforce that as with any changes to the manner in which work is performed it will be the responsibility resting upon all concerned to properly discharge the workplace safety obligations, and appropriately to monitor, report and properly consult – effectively and responsively – as to any initial issues any other issues which may emerge from time-to-time.

[54] The proceedings are now concluded.

COMMISSIONER

Appearances:

T Fischer for the Construction, Forestry, Mining and Energy Union.

D Hancock and Z Duncalfe for The Australian Workers’ Union.

A Dearden, solicitor for the respondent.

Hearing details:

2017.
Sydney:

May 22, 23

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<Price code C, PR593171>