The Australian Workers' Union v BlueScope Steel (AIS) Port Kembla

[2015] FWC 710

[2015] FWC 710 [Note: An appeal pursuant to s.604 (C2015/293) was lodged against this decision - refer to Full Bench decision dated 27 March 2015 [[2015] FWCFB 1798] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

The Australian Workers' Union
V
BlueScope Steel (AIS) Port Kembla

(C2014/5994)

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-New South Wales Branch

V

BlueScope Steel (AIS) Port Kembla

(C2014/1556)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - New South Wales Divisional Branch;

V

BlueScope Steel (AIS) Port Kembla
(C2014/1528)

COMMISSIONER RIORDAN SYDNEY, 30 JANUARY 2015

s.739 Application to deal with a dispute

[1] The Australian Workers Union, Port Kembla Branch (AWU); the Australian Manufacturing Workers Union (AMWU) and the Communications Electrical and Plumbing Union, Electrical Division, NSW Divisional Branch (CEPU) have all lodged dispute notifications in relation to a suite of changes proposed by Bluescope Steel (AIS) Pty Ltd (Bluescope) to the operation of its Plate Mill Department at its Port Kembla Steelworks.

[2] Mr Howell, of Counsel, sought leave to appear for the Applicant Unions. Mr Ken Brotherson from Hall and Wilcox Lawyers sought leave to appear for Bluescope. Leave was granted in accordance with section 596(2) of the Fair Work Act, 2009 (the Act).

[3] Witness statements were provided by:

• Mr Paul Bessant - Level 5 Senior Operator at the Plate Mill and Delegate of the AWU ;



• Mr Tim Kanga - Level 4 Operator at the Plate Mill and Delegate of the AWU;



• Mr Sam Gerovasilis - Manager Hot Mills at the Port Kembla Steelworks;



• Mr David Fairley - OHS Manager at the Port Kembla Steelworks; and



• Mr David Otsyula - Plate Processing and Despatch Manager at the Port Kembla Steelworks.

[4] It was agreed between the parties that none of the witnesses would be required for cross-examination on the basis that this matter basically turned on the interpretation of a number of the provisions of the Bluescope Steel Port Kembla Steelworks Agreement 2012 1 (the Agreement).

[5] This decision deals only with the proposal to introduce twelve hour shifts to sections of the Plate Mill. The other outstanding issues will be dealt with by arbitration at another time.

[6] The Plate Mill currently operates as a 5 day, 24 hour operation, with the majority of employees working an 8 hour, 3 shift system, Monday to Friday. (it is actually Sunday night shift to Friday afternoon shift).

[7] A small minority of employees already work a 7 day, 12 hour shift system.

[8] The current roster provides for 120 hours of production per week. This allows a production capacity in excess of 325,000 tonnes of steel plate in a year.

[9] With declining demand (expected to be 233,000 tonnes in 2015), Bluescope no longer requires that high level of production. As a result, employees have been required to take leave in order to not exceed consumer demand. It is acknowledged that such remedial action is unsustainable and unfair.

[10] As a result of the projected and real decrease in demand, Bluescope has proposed to alter the shift roster and hours of work system for employees to suitably meet the required production objectives.

[11] There are a number of provisions in the Agreement that are relevant in these proceedings:

“5. No Extra Claims

Parties to this Agreement will not make any further claims prior to the nominal expiry date of the Agreement. This does not however prevent the implementation of change or raising and progressing of issues where provided for by the terms or processes of this Agreement.

13. Hours of Duty

13.1 Full-time Employees - Ordinary working hours will be an average of 38 hours per week over the full cycle of the relevant work roster. Ordinary working hours will not exceed:

13.1.1 Eight hours during any consecutive 24 hours, or up to twelve hours during any consecutive 24 hours where there is agreement between the Company and the majority of employees concerned in the relevant work area; or

13.1.2 152 in 28 consecutive days;

except in the case of rostering arrangements which provide for the weekly average of 38 ordinary hours to be achieved over a period which exceeds 28 consecutive days.

35.1 Procedure for Resolving Claims, Issues and Disputes

35.1 Dispute Resolution Procedure

35.1.1 This procedure applies with respect to disputes about matters arising under this Agreement and in relation to the National Employment Standards.

35.1.2 At all stages of the procedure, a party to the dispute may appoint another person, organisation or association, which may include a Union, to accompany or represent them in relation to the dispute.

35.1.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors. The relevant supervisor will take all reasonable steps to reply to the employee as soon as possible. If the reply cannot be given by the end of the next ordinary working shift, a progress report will be given.

35.1.4 If the matter is not resolved according to clause 35.1.3 above, the
matter will be referred to the appropriate line manager who will attempt to resolve the matter. The relevant line manager will take all reasonable steps to reply to the employee as soon as possible. If the reply cannot be given by the end of the next ordinary working shift, a progress report will be given.

35.1 .5 If still unresolved, the matter will be referred to the appropriate Departmental Manager for review. The Departmental Manager will take all reasonable steps to reply to the employee as soon as possible. If the reply cannot be given by the end of the next ordinary working shift, a progress report will be given.

35.1.6 If the matter remains unresolved following the review, then the matter will be referred to Human Resources.

35.1.7 If still unresolved, the matter will be referred to the Fair Work Commission (FWC) by either party for resolution, which will include conciliation and, if necessary, arbitration. The parties will abide by the outcome of such proceedings, subject to any right of appeal from any such decision of FWC.

35.1.8 If the matter goes to arbitration before FWC, FWC may exercise its procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.

35.1.9 From the time a dispute first starts to when it is resolved, work shall continue as directed by the Company.

35.1.10 This clause 35 does not apply to an issue that would genuinely place at risk the health and/or safety of the employee(s) concerned. In such cases the Company may direct employees to perform alternative work.

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:

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

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

(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) The parties commit to consult and abide by the dispute settling procedures provided in this Agreement in the event that proposed changes are not agreed. In support of this commitment there will be both detailed communication and strong reinforcement by the Company and Un ions in respect of these procedures. Subject to any disagreement being dealt with in accordance with agreed procedures, and in the case of significant change 35.2.3, the change will be able to be implemented.

(e) All parties share an intent that there be "zero industrial action" and to that end will actively ensure that employees, delegates and officials will, on each and every occasion where a dispute arises and is not resolved, follow the applicable dispute settling procedure and not take industrial action.

35.2.2 Processes for introduction of Change

(a) Where changes are "significant in nature", as defined in this subclause, they shall be the subject to the processes set out in 35.2.3.

(b) Changes which are not "significant in nature" shall be introduced in accordance with the principles set out in subclause 35.2.1 and the provisions of the Agreement. Disputes in relation to such changes shall be dealt with in accordance with Clause 35.1 Procedure for Resolving Claims, Issues and Disputes.

(c) A changes is "significant in nature" for the purposes of this clause if the change will have substantial effects on:

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

(ii) the skills required of employees;

(iii) the opportunities for promotions of employees;

(iv) the security of employment of employees;

(v) the hours of work of employees;

(vi) the location of work of employees;

(vii) shift pattern changes; and

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

(d) Where a change is otherwise provided for in this Agreement it will not be regarded as significant in nature for the purposes of this clause.

35.2.3 Processes for introducing change which is significant in nature and for resolving associated issues and disputes

(a) The provisions of this subclause set out the terms and order of the procedure which shall govern the introduction and management of change which is significant in nature.

(b) A change will be determined to be significant where it meets the definition as set out in clause 35.2.2(c).

(c) Consultation will commence in relation to workplace change as defined when:

(i) the Company has developed an idea regarding a workplace change that, if implemented, would result in a change which is significant in nature, and

(ii) the idea has been developed sufficiently as to justify the time and effort required to allocate resources and to develop a working proposal, and

(iii) a "Task Brief" bas been prepared in at least broad terms that includes the:

● objectives of the change;

● issues that may arise if the change was progressed to implementation;

● criteria for appraisal of the idea;

● impact the idea may have on employees, customers and the business; and

● milestones in the review process.

(d) Consultation will commence with a notification in writing to employees and their unions (letter 1) as to the broad objectives of the change and the possible effect the change is likely to have on employees.

(e) Consultation is the process through which employees contribute to problem-solving and decision making. It provides for employee and union input before Company management finally decides on action affecting its employees.

(f) Employees and their unions will be provided with the opportunity to comment and input into the proposed change. This will not limit any party from proposing alternative ideas that may result in the objectives of the business being achieved.

(g) The consultation process must be fair, comprehensive and genuine.

(h) Following consideration of all aspects of the change, including consultation with employees, the Company will advise employees and the relevant unions in writing (letter 2) as to whether or not the Company will proceed with the introduction of the change. The advice will include:

(i) confirmation on the introduction of the change (as finally determined) and the nature of that change;

(ii) the date of the introduction of the change;

(iii) the impact the change will have on employees; and

(iv) what steps are to be put in place to manage the impact that the changes will have on employees.

(i) A decision by employees or the unions not to participate m such discussions brings to an end the consultation process.

(j) Where agreement is reached as to a change, the change may be implemented immediately and the parties are to promptly record the terms of the agreement in writing.

(k) Where there is disagreement as to the change to be implemented, a party to the consultation process must give written notice to the other parties that it disputes the implementation of the change and must follow the Procedure for Resolving Disputes as per clause 35.1.7. Where a matter is referred to FWC as part of the disputes procedure, implementation of the change will be subject to the outcome of such proceedings, during which time the status quo will remain.

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

(m) Definition:

For the purposes of clause 35.2, the term Workplace Change does not include:

Matters that involve the requirement for employees to work in accordance with the reasonable direction of the Company; normal day to day operations and work within the employee's recognised skills, competence, training and safe working practices.

Company decisions regarding significant capital investment, business growth etc. In these circumstance the Company is to provide the information in writing to employees and their unions as referred to in points (i) to (i v) of clause 35.2.3(h).

35.2.4 Nature of Consultation

Consultation involves:

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

(b) An opportunity being given to all affected parties to fully understand the nature and impact of those views before any final decision on implementation of changes is made by the Company;

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

[12] It has been acknowledged by the Unions that Bluescope has complied with its consultation obligations under the Agreement.

Contentions

[13] The Unions contended that:

[14] a) the legal maxim of “generalia specialibus non derogant” which basically means that the specific provisions of an agreement take precedence over any general provisions, basically means that the clause 13.1 of the Agreement applies to the exclusion of the general provisions of section 35.2 when it comes to Bluescope capacity to move employees from 8 hour shifts to 12 hour shifts. That by giving the words in clause 13 their normal and ordinary meaning, Bluescope can only introduce 12 hour shifts in the Plate Mill by agreement. The Unions have identified this as a threshold issue;

b) the no extra claims commitment (clause 5) applies to both parties and that this proposal is an extra claim on the part of Bluescope;

c) if the Union’s are wrong in relation to the pre-eminence of clause 13, that the onus of proof in relation to ensuring that the change is safe, efficient, legal and fair in accordance wuth clause 35.2.1c falls to Bluescope;

d) the Agreement abolishes the concept of managerial prerogative;

e) the proposed changes are unfair and unsafe as they will have a dramatic and detrimental effect on the lives of the workforce, the majority of whom have worked in the Plate Mill for more than a decade; and

(f) the FWC has limited jurisdiction to deal with this matter by arbitration.

[15] Bluescope contended that:

a) clauses 13 and 35 can be read and operate together, ie, they are not mutually exclusive and that the two provisions have co-existed and operated in the Agreement for many years;

b) the significant change provisions expressly identify three of the resultant factors of the Bluecope proposal, namely:

i) the size, operation and composition of the workforce;

ii) the hours of work of employees; and

iii) shift pattern changes

c) the onus of proof in relation to the test of safe, efficient, legal and fair falls to the Unions following a decision of a Full Bench of the NSW Industrial Relations Commissioner in AWU v Bluescope Steel (AIS) Pty Ltd 2.

d) in cases of Award or Agreement interpretation, where ambiguity exists, the history of the provision is relevant in identifying the meaning of the provision; and

e) there are sound business reasons for the proposed shift changes that go to the on-going viability of the Plate Mill in both an economic and operational sense.

Legal Precedent

[16] Mr Brotherson advised me of the well trodden path of interpretation precedent ie, Kucks v CSR Limited 3, Short v FW Hercus Pty Ltd4, Amcor and the summary provided by Vice President Lawler in Watson & Ors v ACT Department of Disability Housing and Community Services5. These cases remain relevant today.

[17] Mr Howell referred me to the recent decision of the Full Bench of the FWC in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 6. This decision also provides a summary of the processes to be followed when interpreting Agreements:

“1. The Acts Interpretation does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”

[18] Mr Brotherson accepted that the principals of interpretation remain the same as a result of this decision.

[19] Mr Howell also referred me to the recent decision of a Full Bench of the FWC in DL Employment Pty Ltd v Australian Manufacturing Workers' Union 7 specifically to paragraph 51:

“[51] This interpretation of clause 2.E(h) gives it an operation which is consistent in purpose with two other provisions of the Darrell Lea Agreement. The first is the no extra claims provision in clause 2.F. That provision is to be read as having the same effect as the no extra claims provision considered by the Federal Court (Bromberg J) in Marmara v Toyota Motor Corporation Australia Limited and on appeal by the Federal Court Full Court (Jessup, Tracey and Perram JJ) in Toyota Motor Corporation Australia Limited v Marmara, namely prohibiting “a proposal made by a party to the Agreement to materially change the terms and conditions of employment set out in the Agreement other than in a manner already provided for by the Agreement” (but not to the extent of excluding the capacity of parties to seek a variation of the agreement under ss.207 or 208 of the FW Act).”

Consideration

[20] In determining this matter, I have taken into account all of the evidence and submissions that have been presented by the parties.

[21] It is accepted by the parties that the legal maxim “generalia specialibus non derogant” is an aid to construction. In Purcell v Electricity Commission of NSW the High Court said:

“...in the result, agreeing as we do with the construction given to s 60(3), (5) and (7) by the Court of Appeal, we have no need to consider so much of the appellant’s argument as was based upon the maxim generalia specialibus non derogant. The maxim applies only where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation...” 8

[22] Clause 13 is quite specific. There must be an agreement between Bluescope and a majority of affected employees who approve of the changed hours of work. I have been invited to find in the Unions favour on this issue, which would finalise the matter at this point. However, such a finding would be premature.

[23] The significant change provisions (clause 35.2) have an important purpose in the Agreement, for example, changes that are deemed to be significant are provided with an exemption from the no extra claims clause. Also, these types of changes require extensive consultation where Bluescope is required to share market sensitive and confidential information with its employees to substantiate any proposed action. The authors of the Agreement had the foresight to include Clauses 35.2.1 (a) and (b) which clearly identify that change is inevitable in the steel industry and that Bluescope must continue to change in order to remain commercially viable and meet the employees’ expectations in relation to employment security. I have taken this into account.

[24] The onus of proof is an issue which has been raised by the parties. I acknowledge the decision of the NSW IRC Full Bench in AWU v Bluescope Steel 9 where they said:

“21 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. This approach gives full recognition to the requirements of cl 36.4.1(b) of the award...”

[25] I do not expect that employees will have the necessary financial acumen to make this assessment. I have taken this into account.

[26] The statutory obligation to provide a safe workplace in accordance with the Work Health and Safety Act 2011, is an obligation of the employer. It is not possible for Bluescope to abrogate that responsibility via an enterprise agreement or a restructuring process. The statutory obligation remains with Bluescope. However, if the Unions assert that the proposed changes are unsafe then they must prove their assertion to be true.

[27] The issue of efficiency must be balanced across both parties. The proposition of a “fair go all round” necessitates this requirement. It would be difficult for any employee to make an objective assessment on the requisite efficiency of a proposal from their employer. I have taken both of these issues into account.

[28] The fact is that, 12 hour shifts have been in existence at Bluescope for the last 15 years. I accept the evidence of Mr Fairley that the introduction and operation of 12 hour shifts has not resulted in any apparent deterioration in Bluescope’s safety performance or employee fatigue. I note that Bluescope has a “Managing Fatigue During Shiftwork” Policy and applies the Safe Work Australia guidelines for managing fatigue at the workplace. I have taken this into account.

[29] The demand for steel plate from Port Kembla is predicted to drop by 20-30% over the coming years. At the moment, Bluescope has too much productive capacity in the workplace. I accept the evidence of Mr Otsyula that Bluescope has looked at a variety of options to facilitate a desired outcome. I accept the evidence that daily start up and shut down of the furnances, as proposed by the Unions, would be detrimental to the long term viability and efficiency of the furnaces and the quality of the finished product. I have taken this into account.

[30] I accept the evidence that employees in the Plate Mill have worked under the 8 hour shift system for many years and that they have structured their lives accordingly. I have taken this into account.

[31] The Agreement identifies 10 public holidays in clause 23. I note that three of those days always fall on a Monday (Easter Monday, Queens Birthday and Labour Day). I also note the state wide practice that any other public holiday that falls on a Saturday or Sunday would normally result in the following Monday being declared as a public holiday by the NSW Government. I have taken into account the submissions of Bluescope that they will not be providing any additional holidays or remuneration as part of their proposed Tuesday - Thursday shift system.

Conclusion

[32] I find that the Dispute Resolution Procedure gives the FWC sufficiently broad powers to deal with this matter by arbitration.

[33] Clause 13.1 is a specific clause that deals with hours of work. I am obligated to apply the ordinary meaning of those words. In doing so, I accept that 12 hour shifts can only be introduced by agreement between the Company and a majority of affected employees. However, to blindly turn away from the other relevant provisions of the Agreement would be to participate in an act of industrial ignorance not contemplated by the authors and proponents of the Agreement.

[34] The Plate Mill is in financial trouble. Currently it has to deal with the conundrum of falling demand for its product and excess capacity. The Unions propose to do very little about the problem or make changes which are not cost effective and which are detrimental to the efficient running capacity of the plant.

[35] I do not accept the argument that Clause 13 and Clause 35.2 are mutually exclusive. To do so would undermine the integrity of the No Extra Claims clause and the Introduction of Change clause. The parties have been well aware of the pressures of globalisation for many years. I am aware that the industrial parties toured the world inspecting overseas steelworks on more than one occasion witnessing firsthand the efficiency pressures that would eventually befall the Australian Steel Industry. To now attempt to ignore the provisions that were deliberately inserted into the Agreement to meet these challenges cannot be supported. I find that the operation of clauses 13 and 35.2 of the Agreement are not mutually exclusive or inconsistent. The decision in DL v AMWU supports the notion that changes to the terms and conditions of employment can only be made if contemplated by the provisions of the Agreement. I find that clause 5 and clause 35.2 provide the capacity for Bluescope to propose this change.

[36] However, in finding that clause 35.2 is a relevant consideration in these proceedings, I am of the view that Bluescope must substantiate the need to introduce these significant changes, otherwise, in applying the rules of interpretation, the primacy and specificity of clause 13 must apply.

[37] I find the evidence of Mr Gerovasilis and Mr Otsyula to be quite compelling. I accept that the market demand for steel plate has decreased significantly. As such, the requirement to restructure the Plate Mill is fundamental to the survival of the Plant. Bluescope cannot be expected to produce steel knowing that it will be surplus to requirements. No company could justify such a situation. The management would appropriately be labelled as being incompetent if it allowed such a situation to continue. The practice of standing down employees or forcing them to take unwanted leave is not an acceptable HR practice. These employees are full time permanent employees of Bluescope. They are entitled to 38 hours of work per week in accordance with their Agreement. They are entitled to take their leave at a convenient time rather than at short notice and dependent upon the fluctuating need for production. An appropriate restructure of the Plate Mill is therefore essential. I find that Bluescope has substantiated the onus requirements in relation to the issue of significant change and the necessity to restore the Plate Mill to an efficient and viable operation.

[38] The decision to introduce change must satisfy the test that the changes sought are safe, efficient, legal and fair.

[39] I concur with the decision of the NSW IRC Full Bench that it falls to the Unions to prove that the proposed changes fail this test.

[40] Notwithstanding the issues raised earlier in relation to Bluescope’s obligations under the WHS Act, the Unions must prove that the changes are unsafe. I do not accept the argument in relation to the increased fatigue of employees creating an unsafe workplace. I accept the expert evidence of Mr Fairley and find that the proposed changes are not unsafe.

[41] It is difficult for any employee to substantiate an argument in relation to inefficiency. Bluescope’s proposal reduces the workforce to an appropriate level to meet and identified production standard and output. I accept that employees may not agree with these production levels but, with respect, that is not their decision to make. Management have the right to run their plant in a manner that they have determined. To continue with the current shift roster would be grossly negligent and unprofitable.

[42] The only identified illegality is in relation to a breach of the Agreement which I have dealt with previously. I cannot find any illegality in relation to the proposed changes.

[43] The question of fairness presents a plethora of issues and problems:

a) Bluescope have proposed no compensation for public holidays that fall on days outside of the days that an employee is rostered to work. I find this proposition to be unfair. Currently, an employee in the Plate Mill will work 48 weeks a year at 38 hours per week. They will receive 9 public holidays, with Easter Sunday being the tenth public holiday. This means that an employee in the Plate Mill would work 1752 hours per year but be paid for 1824. (48 weeks x 38 hours per week = 1824). For the basis of the calculation, I am assuming that employees will take their 4 weeks of annual leave each year.

Under the Bluescope proposal of 4 days and 3 nights per fortnight, with 2 RDO’s every 6 weeks, an employee works 1824 hours per year, with no compensation for any Public Holidays that fall on a Monday and Friday (night shift) or are substituted on either of those days. There are many ways to resolve this scenario to ensure fairness. I direct the parties to confer on this issue and negotiate a satisfactory solution. I draw the parties attention to clause 27.2 of the Agreement. A report back Conference on this issue will be listed in two weeks.

b) The proposed 4 day / 3 night roster is unique in the Steelworks. I do not accept that the proposed roster is either the best or fairest outcome for employees. I note the provisions of clause 13.1.2 which identifies that the averaging of hours should be over a 4 week cycle. I accept that extensions can be provided for in the Agreement but the proposed rostering arrangements are not agreed and, in my view, place an unnecessary burden on employees. I prefer the option of the 3 day / 3 night roster, which was discussed during the conciliation process and the subject of a Recommendation. This roster allows for the 38 hour week to be averaged over a 4 week cycle. The additional hours can be made up via an extra shift within those 4 weeks or by utilizing some lateral thinking in relation to the public holiday issue mentioned above. I find that the 3 day / 3 night roster to satisfy the fairness test of clause 35.2.1(c).

c) The Unions identified the length of time that the current shift roster has been in place and the disruption that any changes to that roster would cause the families of these employees as an issue for consideration. I agree.

It is an important issue. In a perfect world it would be a compelling argument. The work/life balance is vitally important in the 21st century. However, Bluescope is not proposing this change to simply upset the employees of the Plate Mill or to prove that they are a heartless organisation. Bluescope have proposed this change in an attempt to maintain its commercial viability and continue the employment security of its employees in an industry which is faced with increasing competition from imported product. In my view, it is far more important to deal with issues which have an impact on job security in comparison to the capacity of an employee to coach the local netball team.

[44] I find that BlueScope’s proposed alteration to the hours of work for its employees in the Plate Mill to be safe, efficient, legal and fair.

[45] I direct the parties to confer on the implementation of the 3 day / 3 night roster and the issue of compensation for public holidays. A Conference will be convened on 13 February 2015 at 1.30pm in Wollongong to deal with any outstanding issues.

COMMISSIONER

<Price code C, PR560534>

 1   [2013] FWCA 5308

 2 [2005] NSWIRComm 318

 3 (1996) 66 IR 182

 4 (1993) 40 FCR 511

 5   [2008] AIRC 291

 6   [2014] FWCFB 7447

 7   [2014] FWCFB 7946

 8 60 ALR 652

 9   [2005] NSWIRCComm 318

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