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

[2016] FWC 6303

[2016] FWC 6303

FAIR WORK COMMISSION

DECISION

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

The Australian Workers' Union
v
BlueScope Steel (AIS) Pty Ltd
(C2016/4266)

VICE PRESIDENT HATCHER SYDNEY, 19 SEPTEMBER 2016

s.739 - Application to deal with a dispute - Shane Buckman – final warning letter

[1] The Australian Workers’ Union (AWU) has lodged an application pursuant to s.739 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the BlueScope Steel Port Kembla Steelworks Agreement 2015 (Agreement). The dispute, as described in the application, concerned disciplinary action taken by BlueScope Steel (AIS) Pty Ltd (BlueScope) against one of its employees, Mr Shane Buckman, who was covered by the Agreement. The action was taken in respect of Mr Buckman’s unauthorised use of a BlueScope truck during a crib break for personal purposes. Mr Buckman was stood down, unpaid, for four shifts, and given a final written warning. The AWU contends on a number of bases that Mr Buckman did not misconduct himself, should not have been stood down and should not have received a final warning.

[2] The Commission has power under s.739 to deal with a dispute only to the extent that it is authorised to do so by, relevantly, a term in the applicable enterprise agreement which provides a procedure for dealing with disputes. The relevant term to that effect in the Agreement is clause 35.1, Dispute Resolution Procedure, which is contained in clause 35, Procedure for Resolving Claims, Issues and Disputes. The scope of the operation of that dispute resolution procedure is prescribed as follows:

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

[3] The dispute was initially listed for a conciliation conference before me on 8 July 2016. However at the outset BlueScope raised a jurisdictional challenge to the conduct of the conference. That being the case, the parties were directed to file written submissions on the jurisdictional issue so that it could be determined prior to any further step being taken in the dispute resolution process.

[4] BlueScope contends that the dispute, insofar as it concerns the final written warning issued to Mr Buckman, is beyond the scope of operation of subclause 35.1 and that the Commission is therefore not authorised to deal with it. BlueScope submitted that this aspect of the dispute plainly did not arise from the NES, nor did it not arise from the Agreement because no provision of the Agreement related to the issuing of warning letters generally or the subject matter of the warning letter issued to Mr Buckman. BluesScope conceded that the Commission was authorised to deal with that aspect of the dispute concerning the stand-down of Mr Buckman, since the standing-down of employees for disciplinary reasons was specifically dealt with in subclause 35.3.1 of the Agreement.

[5] The AWU submitted that the Commission was authorised to deal with the entirety of the dispute on two bases:

(1) It had been a practice at the site for many years that the relevant truck could be used by employees for personal purposes with the approval of the Team Leader. In this case the final warning letter referred to Mr Buckman having obtained the approval of his Team Leader before using the truck. Such use was said by BlueScope to be unauthorised because Mr Buckman did not adequately explain to his Team Leader what the truck was to be used for (which turned out to be the cartage of bricks without adequate load restraints). There had not previously been any requirement to explain specifically what the truck was to be used in obtaining authorisation from the Team Leader, and the assumption of such a requirement in Mr Buckman’s case constituted a workplace “change” to which clause 35.2 applied. The consultation procedures and the criteria for the implementation of change (including change which was not significant in nature) in clause 35.2 were not complied with in the case. A dispute about the imposition of disciplinary action which arose from the failure of BlueScope to comply with subclause 35.2 was one which arose out of that provision of the Agreement.

(2) Alternatively, it was sufficient for part of the dispute to be able to be characterised as being “about matters arising under this Agreement” in order for the Commission to be authorised to deal with the entirety of the dispute. Since it was clear that the stand-down of Mr Buckman for alleged misconduct was a matter arising under the Agreement (either because it involved a denial of the rates of pay otherwise payable to him under the Agreement, or because it arose under subclause 35.3.1), the entirety of the dispute was within jurisdiction. The AWU referred in this connection to Hay Point Services Pty Ltd v CFMEU. 1

[6] I consider that the first submission advanced by the AWU, although replete with ingenuity, is devoid of substance. Assuming in the AWU’s favour that the past practice to which it refers existed, and has been subject to a change of the nature alleged, I do not consider that the dispute involving Mr Buckman is one which arises under clause 35.2 of the Agreement. Clause 35.2 is concerned with “change” of a certain character, not any change in the workplace whatsoever. Clause 35.2.3(t) defines “Workplace Change” (which expression is used interchangeably with “change” in clause 35.2) in the following way:

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.

[7] I consider that the change which the AWU contends has occurred - that is, a change to the manner in which permission is to be sought for personal use of the truck - is properly characterised as a matter of “normal day to day operations” and is therefore not one to which clause 35.2 applies. Were it otherwise, every change no matter how trivial would have to be the subject of consultation and would potentially be challengeable under clause 35.1.

[8] The AWU’s second submission has more substance. In Hay Point Services Pty Ltd v CFMEU the Full Bench considered a submission that a dispute which raised a number of issues was, in respect of some but not all of those issues, not a “dispute related to a matter arising under the Agreement”. 2 The Full Bench said:

“[10] Mr Wood submitted that Fair Work Australia has jurisdiction to deal with the relating matters but not the non-relating matters.

[11] We do not accept that submission. The dispute is a dispute about the introduction of the new Policy. HPS concedes that the dispute as to some of its aspects relates to a matter arising under the Agreement. That is clearly so and the concession is properly made.

[12] To seek to dissect the dispute into several components is highly artificial and, in our view, untenable. Given that the dispute, or at least part of it, relates to a matter arising under the Agreement, the disputes resolution process in clause 22 is enlivened. That process allows the parties to refer the dispute to Fair Work Australia if the parties have been unable to resolve their differences. The process requires Fair Work Australia, as a first stage, to attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation. It is only if the dispute is unable to be resolved in the first stage that Fair Work Australia is able to arbitrate and make a binding determination.

[13] It is trite to say that during the first stage no binding determination can be made by Fair Work Australia.

[14] We see no jurisdictional impediment to the matter progressing to the first stage. During that stage the nature of the dispute might change as agreement is reached on some aspects or other aspects are clarified or restated, as is typically what occurs during conciliation or mediation. As was said, albeit in relation to different legislation, ‘[i]f the functions of an industrial conciliator were circumscribed by the ambit of a prospective or actual dispute, they would lack the flexibility and sophistication exhibited even by the conciliation processes of primitive tribal societies’ [R v Bain; Ex parte Cadbury Schweppes Australia Ltd [1984] HCA 9; (1984) 159 CLR 163 per Brennan & Deane JJ].”

[9] Specific aspects of a “dispute” the subject of an application under s.739 which concerns issues so disparate and disconnected that it is, in fact, an aggregate of a number of discrete disputes some of which are about matters arising under the Agreement and some of which are not might properly be the subject of a jurisdictional challenge at the outset before conciliation has commenced. However that is not the case here. The dispute essentially concerns whether Mr Buckman misconducted himself in a way which justified the disciplinary action taken by BlueScope against him. The issues of the stand-down and the final warning letter cannot readily be dissected into separate components (to borrow the language of Hay Point Services) because they both arose from a single substratum of facts - that is, they both arose from Mr Buckman’s alleged unauthorised use of BlueScope’s truck for personal purposes.

[10] The first sentence of clause 35.3.1 of the Agreement specifies the circumstances in which BlueScope may stand down an employee as follows:

“The Company has the right to stand an employee down for refusal of duty, malingering, inefficiency, neglect of duty or misconduct on the part of the employee.”

[11] The clause goes on to provide that an employee may only be stood down without pay subject to there being, among other things, a proper investigation, an opportunity for the employee to be heard, and an entitlement to an internal appeal.

[12] A conclusion on BlueScope’s part that Mr Buckman misconducted himself was a (relevantly) pre-requisite for the exercise of the power in clause 35.3.1 to stand him down. A dispute which centrally questions whether BlueScope had a proper basis to conclude that Mr Buckman did in fact engage in any misconduct in his use of the BlueScope truck is therefore necessarily one about a matter which arises under clause 35.3.1. That is the case irrespective of the fact that same conclusion founded the final warning letter which was issued to Mr Buckman. In that context it would be entirely artificial to treat the final warning letter as a matter severable from the identified dispute to which clause 35.1 applies, since it is simply a manifestation of that dispute.

[13] If the dispute is ultimately the subject of arbitration, and the AWU is able to satisfy the Commission that Mr Buckman did not engage in any misconduct in his use of the BlueScope truck, a question may then arise as to whether the Commission has the power to require the final warning letter to be withdrawn. However that does not provide any proper basis to attempt to sever the issue of the final warning letter from the dispute the subject of the application at this early stage before conciliation has even occurred.

[14] For these reasons, BlueScope’s jurisdictional challenge is rejected. Arrangements will shortly be made for the conduct of the dispute resolution process in accordance with clause 35.1 of the Agreement.

VICE PRESIDENT

 1   [2012] FWAFB 9173

 2   Ibid at [7]

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