The Australian Workers' Union v BlueScope Steel Limited

[2011] FWA 2389

[2011] FWA 2389

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

The Australian Workers’ Union
v
BlueScope Steel Limited
(C2010/753)

COMMISSIONER RYAN MELBOURNE, 19 APRIL 2011

Alleged dispute concerning the payment of sick leave.

[1] On 3 December 2010 the Australian Workers Union (AWU) filed an application for FWA to deal with a dispute in accordance with the dispute settlement procedure in the BlueScope Steel Western Port Certified Agreement 2004 - 2007 as varied and extended in 2008 (the Agreement).

[2] The dispute was identified as being in relation to a decision of BlueScope Steel Ltd (BlueScope) to stop paying sick leave to an employee.

[3] A conference was held on 9 December 2010, a report back telephone conference was held on 23 December 2010 and a further conference was held on 1 February 2011 but without successfully resolving the issue in dispute. A hearing of the matter in dispute was held on 28 February 2011.

[4] Whilst the conferences failed to resolve the issue in dispute a positive outcome of the conferences was that BlueScope continued to pay the worker at the centre of the dispute, Mr Pourre, whilst the matter was being dealt with. Part of the arrangement was that Mr Pourre would be paid out of his accumulated leave entitlements on the basis that if the matter was resolved in his favour then his accumulated leave entitlements would be restored.

Background to the Dispute

[5] Mr Pourre has been employed at the Western Port Steel Mill for over 23 years and at the time the dispute arose he was employed as an operator on the Pickle Line at the Western Port Steel Mill. Part of the duties previously performed by Mr Pourre was the operation of a crane.

[6] Mr Pourre suffered an illness in 1999 which affected his left eye causing a visual field defect which has impeded his vision. In May 2010 Mr Pourre took 4 days of sick leave 1 and underwent surgery on his eye to remove pressure. However during the period from 1999 to May 2010 the evidence discloses that Mr Pourre continued to be employed at the Western Port Steel Mill and was part of the fire team. Mr Pourre was required to undergo yearly medicals by BlueScope as part of his employment. As Mr Pourre described it in the following extract from transcript where he was being examined-in-chief by the AWU:

“PN61 What impact has that had on your ability to perform your duties?---Well, I had to wear a patch for about - and a tinted glass on one side for about two or three years and seen the company specialist. The impact on my duties was with the company restriction put on my eye - the works doctor - and sometime I like to help them and they told me if I do their job it's like a cardinal safety rule. You break the cardinal safety rule, they can sack you, so that's why I haven't come near the place.

PN62 So the impact that you felt as a result of your illness was that BlueScope would restrict you from---?---Yes, the works doctor give me a restriction every year when I got a medical. I get a full medical every year through the fire crew, which goes to HR and then goes to my medical file.

PN63 You've had several medical examinations and reports since the issue of your eyesight was raised with BlueScope, haven't you?---Yes, I have.”

[7] Separately from the issues in this dispute it appears that there may have been other proceedings before the Magistrates Court in relation to Mr Pourre’s illness. Under cross examination from BlueScope Mr Pourre gave the following evidence:

“PN112 Mr Pourre, in relation to how the matter was raised and why the meetings were set in place, I put to you that in a magistrate's hearing you raised your concerns about your ability to perform the inherent requirements of the role. As a duty of care, the workers compensation department raised that with us. Subsequently you advised that you had had a further operation in May, Mr Pourre. Is that correct?--That's correct.

PN113 In May you had a further operation and we put to you that we weren't sure where your prognosis was and what your ability to perform the role was and therefore we would like to arrange, with your agreement, to obtain medical opinion. You provided that agreement to seek medical opinion, did you not, Mr Pourre?---If I did, I did, yes, but what - the statement you read me about WorkCover is not quite exactly what you said. The statement was - when your solicitor asked the judge - and I explained to him that I had restriction placed by the company, but then your solicitor told the judge that I'm still performing my duties 100 per cent requirement and safely. If you're going to read the statement, you might as well read the lot.

PN114 Mr Pourre, what I was trying to ascertain there was why we had begun meeting with you and why we had begun the process of the meeting, and that was really to understand what your current condition was and your ability to perform the inherent requirements of the role?---Well, like I said to you at the first meeting, why now? Why not in 99, when my eye was at worst, and you couldn't answer it.

PN115 After you advised us that you had further surgery in one - - -?---To improve the eye, which you got notice. Three weeks prior to the operation you got notice that I was getting an operation to improve the eye.

PN116 So I put to you, as a duty of care we wanted to get an understanding from the medical practitioners to understand your ability to safely perform the inherent requirements of the role?---Well, compared to 99 or compared to after the operation?

PN117 There had been a number of surgeries along the way?---To improve the eye and all - - - ”

[8] On 17 July 2010 Mr Pourre was stood down from his employment at the direction of BlueScope until such time that it could be established to BlueScope’s satisfaction that Mr Pourre could safely carry out all of the tasks he had previously been doing.

[9] Mr Pourre was required to attend a medical examination arranged by BlueScope and Mr Pourre was entitled to seek his own medical examination.

[10] On 3 October BlueScope determined that Mr Pourre would be placed on sick leave.

[11] This decision was made after a meeting between BlueScope and Mr Pourre on 29 September 2010 2. Prior to that meeting Blue Scope had obtained a medical report from a Dr West as to Mr Pourre’s fitness to resume work. At the meeting on 29 September Mr Pourre supplied to Blue Scope an unsigned copy of a letter from Dr Mark Walland which was obtained by Mr Pourre and was in response to the opinion of Dr West.

[12] I note that a meeting also took place between Mr Pourre and BlueScope on 31 August 2010 but no details were given about this meeting. 3

[13] Having placed Mr Pourre on sick leave on 3 October 2010 BlueScope then met with Mr Pourre on 25 October 2010 and advised him that as from the 6 December 2010 BlueScope would cease to make payments to Mr Pourre under the discretionary leave provisions of the Agreement. Confirmation of the meeting of the 25 October was conveyed to Mr Pourre in writing dated the same day. 4 (Exhibit A1)

[14] Although BlueScope did not implement its decision on 6 December 2010 but delayed it to a later date the intention of BlueScope to cease paying discretionary sick leave payments to Mr Pourre under clause 14 of the Agreement was the trigger for this dispute.

[15] In an email to FWA dated 1 February 2011 Ms Cooper, Human Resources Business Partner for BlueScope at Western Port acknowledged that Mr Pourre was still continuing to receive payments:

“As Mr Pourre has had nearly 20 weeks paid personal leave/sick pay, and the medical reports and worksite assessment report conclude that Mr Pourre has significant visual disability which prevents him from performing confidently and safely the tasks for which he was originally employed.

Commissioner, in accordance with the BlueScope Steel Western Port Certified Agreement we are continuing to seek the ability to cease discretionary sick leave payments.”

The Contentions of the Parties

[16] The AWU in its written Submissions filed on 1 March contended as follows:

15. For the reasons outlined below, the AWU submits that due to Mr Pourre's compliance

with the relevant requirements of the Agreement, BSL is not entitled to unilaterally

determine that it will cease paying sick leave to Mr Pourre, and that Mr Pourre has an

ongoing entitlement to sick leave.

[17] At Paragraphs 17 to 20 inclusive and 21 the AWU outlines in their submission how Mr Pourre came to be on discretionary sick leave. The remainder of the submission goes to issues as to why the withdrawal of the discretionary sick leave should not have occurred.

[18] BlueScope in its reply submissions filed on 3 March 2010 contended that:

“7. Given the circumstances that it was BlueScope that directed Mr Pourre not to attend work because of his illness, BlueScope decided to pay Mr Pourre his full rate of pay during this initial period he was absent because of his illness until such time as the medical reports confirmed his status. On 3 October 2010 Mr Pourre's rate of sick pay was reduced to the normal rate of sick pay. It is not disputed between the parties that, at least from 3 October 2010, Mr Pourre was receiving a discretionary sick leave benefit pursuant to clause 14 of the Agreement.

8. On 25 October 2010 Mr Pourre was advised by letter (exhibit AWU 4 to the submissions of the AWU) that BlueScope was giving notice under clause 14.8 of the Agreement that it was ceasing to provide him with the discretionary sick leave on 6 December 2010.

And

54. The AWU claim that Mr Pourre was stood down on full pay from 17 July 2010. It submits that Mr Pourre only commenced receiving a sick leave entitlement from 3 October 2010. The reason Mr Pourre was not at work from 17 July 2010 related to his illness and his inability to remain at work safely.

55. It is disingenuous to claim that the 2 months and 17 days pay Mr Pourre received while not working (17 July 2010 to 3 October 2010), was not due to his illness, and therefore BlueScope are not entitled to consider this period as part of the time Mr Pourre received the discretionary sick leave.

56. Further, the rate of pay Mr Pourre received during this 2 months and 17 days, was the normal rate of pay rather than the base rate of sick pay. This was to take into account the unusual circumstances that it was BlueScope who put Mr Pourre on sick leave. It was put to Mr Pourre that he was in fact on sick leave. His mistaken understanding does not alter the fact that up to 6 December 2010 Mr Pourre had received 4 months and 16 days of paid sick leave, of which 2 months and 17 days were paid at a higher rate (which equates to approximately 6 months at the sick leave rate).”

[19] The remainder of the submission provides the justification for BlueScope withdrawing the discretionary sick leave payments.

[20] In a Reply Submission filed on 7 March the AWU contended:

“42. The Agreement does not provide that where an employee is requested to cease work by BSL because BSL suspects that he may not be able to safely perform his duties, then that employee is to be considered on sick leave - such a circumstance is not contemplated by the sick leave clause, which explains why Mr Pourre was stood down on full pay instead.

43. BSL submits that it elected to pay Mr Pourre at his normal rate of pay to take into account the unique circumstances, whereby BSL put Mr Pourre on sick leave. However, these circumstances did not change -at the time BSL decided that Mr Pourre was to be paid at normal rate, he was still being required by BSL to take sick leave. BSL’s explanation does not accord with its actions and it should be inferred that the change in the rate of pay arose because at that time, BSL decided to put Mr Pourre on sick leave, and not before.

44. In any event, Mr Pourre was not advised that he was on leave until October 2010. There was no mistaken understanding -the evidence of Mr Poun'e was that he was told that he was being stood down on full pay and no evidence to the contrary has been provided by BSL.” 5

[21] BlueScope filed a further reply submission on 9 March 2011.

The Agreement and the Award

[22] Clause 4 of the Agreement provides as follows:

4. RELATIONSHIP TO AWARDS

4.1 Non Trades Employees

This Agreement shall be read and interpreted in conjunction with the BHP Steel Products Division Western Port Award 1998.

4.2 Trade Employees

This Agreement shall be read and interpreted in conjunction with the BHP Steel Products Western Port Tradespersons Award 1998 and the Metal, Engineering and Associated Industries Award 1998.

4.3 General

4.3.1 Where the Agreement is silent on rates of pay, conditions, allowances and other matters pertaining to the employment relationship, the relevant Award specified in this clause shall apply.

4.3.2 In the event of any inconsistencies in respect of this Agreement of rates of pay, conditions, allowances or other matters between this Agreement and the relevant Award specified in this clause, this Agreement shall take precedence to the extent of the inconsistency.

4.3.3 Existing over award payments and conditions of employment shall continue to apply as if they were a term of this Agreement except where the expressly stipulated terms of this Agreement provide otherwise.

The parties recognise and accept that where employees no longer continue to perform duties for which they had been receiving an allowance, the payment of that allowance shall cease.

If an employee accepts a position on a Tour of Duty and it is expected that they will return to their normal duties at the completion of that tour, then any allowances that they were receiving prior will be paid for the duration of the Tour of Duty.

4.3.4 The Company and the Union agree that this Agreement provides the basic arrangements under which all non-trades and trades employees shall be employed.

4.3.5 Any non-trade or trade employee commencing his or her employment with the Company after the date on which this Agreement comes into operation shall be employed in accordance with the terms of this Agreement.

4.3.6 Any new facilitative arrangement, listed in Clause 2.2 of the Metal, Engineering and Associated Industries Award 1998 and introduced as a result of the award simplification case, shall not be used during the life of this Agreement without prior formal agreement between the Company and the Union.

[23] The combined operation of clauses 4.1 and 4.3.1 and 4.3.2 is that, in the case of Mr Pourre’s employment, his terms and conditions of employment are those specifically set out in the Agreement and, where the Agreement is silent, the terms and conditions of the BHP Steel Products Division Western Port Award 1998 (the Award). This was the agreed position as between the AWU and BlueScope.

[24] In the case of personal leave the Award will have work to do in providing an entitlement if the Agreement is “silent” on the matter.

[25] Clause 14 of the Agreement appears on its face to provide a comprehensive entitlement to personal leave. Thus as the Agreement is not “silent” on the subject of personal leave then there would appear to be no room for the operation of clause 7.2 - Personal Leave of the Award. Even if it could be argued that clause 7.2 of the Award may have some work to do in relation to some aspects of personal leave clause 4.3.2 of the Agreement makes clear that clause 14 of the Agreement will prevail over any inconsistent provision of clause 7.2 of the Award. In the present matter I only need to have regard to the provisions of clause 14 of the Agreement and not to clause 7.2 of the Award.

The operation of Clause 14

[26] Clause 14 of the Agreement is as follows:

“14. DISCRETIONARY SICK LEAVE ARRANGEMENTS

14.1 Sick Leave is to be regarded as an insurance which aims to protect employees unable to attend work because of personal illness or injury.. The Western Port discretionary sick leave arrangements provide an employee with significant benefits. In accepting the benefits that such a scheme can provide, both parties shall agree to work closely together to improve the general work force absenteeism during the term of this agreement. In exceptional circumstances, sick leave may be up to a maximum of 12 months after taking into account the employee’s employment history, illness/injury and prognosis.

14.2 Employees are expected to report to work punctually and regularly and carry out all designated duties until the prescribed finishing time. Attendance is a fundamental and important job requirement and a high standard is expected. In the event of an absence an employee is expected to comply with the arrangements detailed below.

14.3 When an employee is unable to attend work because of either personal illness or injury (not covered by Worker's Compensation) or as a result of pressing personal and/ or domestic necessity, then that employee will be paid their ordinary base rate (ie excluding compulsory rostered overtime, shift and weekend penalty rates) if:

14.3.1 The employee advises the Company of the absence (as far as possible prior to the beginning of the shift).

14.3.2 Reasonable proof of the illness or other appropriate supporting evidence is provided.

The Company may exclude this requirement on up to 3 separate occasions whilst an employee is in the excellent, good or fair category. An employee may be required to attend an appointment with the Works’ Doctor or other specialist as referred by the Works’ Doctor, if requested to do so.

14.3.3 The employee agrees to co-operate in an interview with the crew leader on resuming work.

14.3.4 During the course of the absence and until the return to fulltime work the employee agrees to participate in periodic reviews and adhere to Return To Work plans.

14.4 Where the considerations in Clause .14.3 (above) are not met then payment will be at the discretion of the Company.

14.5 The following standard will apply with regard to these arrangements. All absences will be tracked against a rolling 12 month period.

0-1 shifts absent per annum Excellent

2-4 shifts (per annum) Good

5-7 shifts (per annum) Fair

8-9 shifts (per annum) Poor

10+ shifts (per annum) Unsatisfactory

This standard applies to an 8 hour day or 12 hour shift, whichever is applicable. Where a serious illness is diagnosed (eg broken limb or cardiac arrest) and the employee is under supervision of the Works’ Doctor and participating in a return to work plan, then that absence will be excluded from the above standard.

14.6 There is potential for these arrangements to be abused. The company maintains records of absences and patterns. In the event of such abuse being suspected or identified (eg. pattern of absences), then it will be handled according to general performance management procedures and at the employee’s request the relevant union representative will be involved.

14.7 Nothing in these arrangements prevents the Company from taking what it deems to be appropriate disciplinary action at any point where it has concerns over the performance or conduct of an employee or the bonafide of an absence.

14.8 Long-term absences will be managed via a process aimed at caring for employees. The Company will work with the employee and any other relevant parties to ensure the employee returns to work as early as possible. The process may involve the following:

• Where an employee is absent or incapacitated for 20 days or more (actual or predicted), a Return To Work Program (RTWP) will be developed. This will apply regardless of the origin of condition (ie. work related or non-work related).

• The individual may choose to involve their union delegate (or other representative) at any stage of this process.

• All parties recognise the individual’s right to privacy throughout an extended absence.

• The BSL doctor may seek permission from the employee or his/her union delegate or representative to discuss any medical condition with the employee’s treating doctor so a RTWP and any ongoing treatment can be structured in the most effective manner.

• All cases of extended sick leave will be reviewed on a monthly basis. Reviews will focus on the effectiveness of the RTWP in facilitating the return of the employee to fulltime work.

• If an employee is unable to adhere with the RTWP, they are required to advise their supervisor and Western Port medical staff so that the causes may be addressed.

• In cases where an employee refuses permission for the Company doctor to discuss their medical condition with the treating doctor or is not adhering to the RTWP, separate discussions with the employee and his representative may be held.

• If the Company contemplates any changes to an employee’s payment or conditions of employment, this will be discussed with the employee and his/her union delegate or representative. Once a decision is made, the relevant union will be advised prior to the employee being notified of the decision. Any changes will be advised to the employee and the relevant union in writing with 4 weeks notice.”

[27] Quite clearly the purpose of clause 14 of the Agreement is to provide employees with the possibility of obtaining paid personal leave for much longer periods than they would have been entitled to under the Award or under the NES. Clause 14 of the Agreement provides for the possibility of an employee obtaining up to 12 months paid personal leave.

[28] The trigger for activating clause 14 is as stated in clause 14.3:

“When an employee is unable to attend work because of either a personal illness or injury...or as a result of pressing personal and/or domestic necessity...”

[29] If this trigger occurs then an employee will be entitled to paid leave, which in certain circumstances provided for in clause 14, could extend up to 12 months.

[30] Both the AWU and BlueScope made extensive and detailed submissions on the interpretation of clause 14. I have considered all of the submissions made.

[31] BlueScope contended that clause 14 is in addition to the basic personal leave provisions of the Award and it is a combination of both the Award and the Agreement that provide an employee’s entitlement to sick leave. As I have identified above I find that an employee’s entitlement to sick leave/personal leave is found only in clause 14 of the Agreement.

[32] Even though clause 14 doesn’t mention the basic entitlement to sick leave that was contained in clause 7.2 of the Award this cannot be taken to mean that clause 14 of the Agreement makes no provision for a basic entitlement to sick/personal leave. I am aware that the Agreement was first made at a time before personal leave was introduced as a statutory entitlement in the Workplace Relations Act and the Fair Work Act. When the Agreement was made employees entitlements to sick leave at Western Port Steel Mill were contained in the Award. The Agreement replaced the Award and in doing so provided for an increased entitlement to sick/personal leave.

[33] Clause 14.1 makes clear that there is an upper limit on the amount of sick leave that can be granted, namely 12 months. However what is not clear is how that upper limit is calculated. Having regard to the overall structure of clause 14 and its purpose it appears that the proper construction to be placed upon the sentence, “In exceptional circumstances, sick leave may be up to a maximum of 12 months after taking into account the employee’s employment history, illness/injury and prognosis.” is that the upper limit is in relation to a single illness or injury.

[34] There is nothing in clause 14 which suggests that the phrase “In exceptional circumstances” should be read or understood in any particular manner. The phrase should be given its ordinary meaning. “Exceptional” means ‘forming an exception or unusual instance; unusual; extraordinary” and “Circumstance” means ‘an incident or occurrence’.(Macquarie Concise Dictionary) Thus the ordinary meaning of “exceptional circumstances” means an incident or occurrence that is unusual or extraordinary. Any illness or injury which gave rise to the possibility of an employee needing 12 months sick/personal leave in order to recover and to return to work would of itself meet the test of being an exceptional circumstance.

[35] Having said this I am of the considered view that the sentence in clause 14.1 which reads: “In exceptional circumstances, sick leave may be up to a maximum of 12 months after taking into account the employee’s employment history, illness/injury and prognosis.” has other work to do. The phrase underlined provides a clear statement that the entitlement of employees to paid sick/personal leave is not an absolute or unfettered right. The phrase points to some of the rights (subject to statutory limitations) that BlueScope have to deal with each employee who claims sick leave. These rights include, the right to take disciplinary action against an employee for abuse of the provisions and the right of BlueScope to treat the employment relationship as ended due to frustration by reason of the nature of the employees illness or injury.

[36] There is only one qualifier in clause 14 which relates to the entitlement of an employee to paid sick/personal leave and that is found in clause 14.4. Where an employee meets the requirements set out in clause 14.3 and in particular the specific requirements in 14.3.1, 14.3.2, 14.3.3 and 14.3.4 then an employee will be entitled to be paid sick/personal leave. However where the requirements of clause 14.3 are not met then, and only then, is payment of sick/personal leave at the discretion of BlueScope.

[37] Whilst the structure of clauses 14.3 and 14.4 draw a clear distinction between discretionary and non-discretionary payment of sick/personal leave this does not mean that the non-discretionary sick/personal leave must be paid if claimed. The payment of sick/personal leave is non-discretionary under clause 14.3 only in the sense that if the several requirements in clauses 14.3.1 to 14.3.4 inclusive are met then sick/personal leave will be paid. However the very language of each of the requirements in clause 14.3 means that either the employee or BlueScope can argue about whether or not a requirement has been met. The Dispute Resolution Procedure in clause 4 of Part C of the Agreement provides the mechanism for resolving disputes as to whether or not a requirement in clause 14.3 has been met.

[38] Clause 14 also provides 3 other checks and balances on the use of sick/personal leave. The first check and balance is provided by clause 14.5 which makes clear that all absences will be tracked by BlueScope. The second check and balance is provided by clauses 14.6 and 14.7 which specifically permit Blue Scope to take disciplinary action against employees in relation to abuse of the sick/personal leave system. The third check and balance is provided by clause 14.8 which provides a comprehensive mechanism to deal with long term absences. Each of these other checks and balances may give rise to disputes between employees and BlueScope and again the provisions of the Dispute Resolution Procedure in clause 4 of Part C of the Agreement provides the mechanism for resolving such disputes.

Consideration of the Issues relating to Mr Pourre

[39] In the present matter Mr Pourre was stood down from his employment. Mr Pourre was directed to go home and not to attend work.

[40] BlueScope conceded quite properly that as this stand down was at its direction then Mr Pourre was entitled to be paid his full rate of pay. (refer to para ] [18] above where I quote from the BlueScope Submission) However, BlueScope made this concession only for the period between 17 July 2010 and 3 October 2010, when Blue Scope placed Mr Pourre on paid sick leave under clause 14 of the Agreement. Whilst BlueScope have conceded that Mr Pourre was properly paid his full pay from the period 17 July 2010, when he was stood down, to 2 October 2010 it is clear from the submission of BlueScope that it considers that for the whole period from 17 July 2010 onwards that Mr Pourre was on discretionary sick leave 6.

[41] The evidence of Mr Pourre was very clear, he did not at any time since July 2010 apply for sick leave.PN164 and PN165 Mr Pourre was also very clear in that he wanted to work and was ready to work (PN76) and that he was able to safely return to work (PN143 and PN144).

[42] No evidence was given on behalf of BlueScope as to why Mr Pourre was stood down on full pay on 17 July 2010 or placed on paid sick leave on 3 October 2010. However the material before me and the submissions of BlueScope permit me to try and join the dots together to find the hidden picture.

[43] When Mr Pourre was stood down on 17 July 2010 BlueScope did so on the basis that they wanted confirmation that after his May eye operation Mr Pourre was able to perform his duties safely. BlueScope required Mr Pourre to attend a medical examination conducted by a medical professional of BlueScope’s choosing and Mr Pourre was invited to undergo a medical examination by a medical professional of his choosing. By 25 September 2010 BlueScope had received the opinion of their medical professional and Mr Pourre had submitted an unsigned opinion from his medical professional. The opinion provided to BlueScope from their medical professional opined that Mr Pourre was not capable of performing all of the duties he had been performing prior to his eye problems. It appears that BlueScope did not consider that the unsigned letter from Mr Pourre’ medical professional countered the opinions of BlueScope’s medical professionals. On that basis it appears that BlueScope on 3 October 2010 converted Mr Pourre from receiving full pay to receiving sick pay only.

[44] I am of the considered view that the critical issue in this matter is that posed by the reply submissions of the AWU filed on 7 March 2011 at paras 42 to 44 inclusive and the response from BlueScope as contained in their response submission filed on 9 March 2011 at para 55.

[45] The issue that can be distilled from these competing submissions is: Did BlueScope have the capacity to stand down Mr Pourre on 17 July 2010 and to treat him as being on sick leave?

[46] Clause 18 of the Agreement provides BlueScope with a limited right to stand down employees without pay in circumstances where there is a disruption to electricity supplies. Neither party sought to place any reliance on this clause. Apart from clause 18 there is nothing in the Agreement which would specifically permit BlueScope to stand down employees either with or without pay.

[47] Whilst BlueScope clearly has common law rights in relation to standing down employees on full pay or treating the contract of employment as ended due to frustration these rights are necessarily subject to any statutory limitations which may apply.

[48] For the purpose of the present matter I am prepared to accept that BlueScope has the right to stand down Mr Pourre on full pay whilst BlueScope satisfies itself as to Mr Pourre’s capacity to work in accordance with his contract of employment.

[49] I do not consider that BlueScope has the capacity to force Mr Pourre onto sick leave on the basis that BlueScope did not accept Mr Pourre’s claim that he is capable of performing his duties. Mr Pourre attended work and was prepared to work in accordance with his contract of employment. Mr Pourre claimed that he was capable of working, although he did admit that he may not have been capable of performing all of the duties he performed prior to his eye illness. As clause 14.3 of the Agreement is predicated upon an employee being “unable to attend work” it is clear that clause 14.3 cannot be relied upon by BlueScope where Mr Pourre attended for work but was then stood down by BlueScope.

[50] Many of the elements of the case run by BlueScope suggest, without explicitly saying so, that BlueScope was dealing with a potential frustration of the contract of employment caused by Mr Pourre’s medical condition. As BlueScope contended in para 17 of its final response submission filed on 9 March 2011:

“What is clear is that Mr Pourre will not be able to ever do all the inherent requirements of the job he was employed to do.”

[51] Whilst this submission hints at the common law concept of frustration nothing was put to FWA as to what constituted the contract of employment of Mr Pourre. Even if BlueScope were minded to argue that the contract of employment of Mr Pourre was being frustrated by him that was not the basis upon which he was stood down on 17 July 2010. At the very least BlueScope considered Mr Pourre to be employed and employable by them on that day. The issue raised by BlueScope at that time was that BlueScope wanted to satisfy itself as to Mr Pourre’s capacity to work.

Conclusion

[52] The issues raised in the original notification of the dispute to FWA are misplaced. I find that there is no dispute involving Mr Pourre which relates to the Mr Pourre’s right or entitlement to be paid continuing sick leave payments under clause 14 of the Agreement. This is so because I find that once BlueScope exercised its right to stand down Mr Pourre on full pay as from 17 July 2010, then it was obliged to keep paying him his full pay for the entire period of the stand down or permit him to return to work as he wanted.

[53] If BlueScope formed the view at any time that Mr Pourre was incapable of performing the inherent requirements of his employment, it had several options which include, but are not limited to, the following:

• BlueScope could have proposed an alteration to the inherent requirements of the work they wished him to perform and if Mr Pourre agreed then an agreed variation to the contract of employment would have resulted.
• BlueScope could have treated the contract of employment and the employment relationship brought to an end because of their perception that Mr Pourre “will not be able to ever do all the inherent requirements of the job he was employed to do.”
• BlueScope could have proposed to Mr Pourre that he apply for and take sick leave under clause 14 until BlueScope was satisfied as to his capacity to work or until another option was considered.

[54] The very fact that there were other options available to BlueScope to deal with the issue of Mr Pourre strengthens my view that once BlueScope exercised their right to stand down Mr Pourre on full pay as from 17 July 2010 then they were obliged to keep paying him his full pay for the entire period of the stand down.

[55] BlueScope will, consistent with its undertakings to FWA in relation to this matter, have to recredit all of the sick leave, annual leave or long service leave that was utilised to continue to pay Mr Pourre while this matter was dealt with.

Further Observations

[56] I am very concerned about the conduct of Mr Pourre and the AWU in this matter. Whilst Mr Pourre had the right to challenge the medical opinions obtained by BlueScope in relation to Mr Pourre’s capacity to do his work that right came with the responsibility to do so in a timely manner.

[57] It is very clear that BlueScope has had genuine concerns as to Mr Pourre’s capacity to do his work and have had genuine concerns as to the health and safety of persons who may be affected by Mr Pourre’s work. In that regard Blue Scope have been more than reasonable in permitting both Mr Pourre and the AWU to present medical opinions which support Mr Pourre’s claim as to his fitness to work. Much of the delay in this matter can be directly attached to the slowness of Mr Pourre and the AWU in obtaining the medical opinions they sought to rely on.

[58] It is unreasonable to expect BlueScope to continue to stand down Mr Pourre on full pay. The matter at the heart of this dispute, namely Mr Pourre’s capacity to work (and to work safely) at Western Port Steel Mill needs to be resolved. It is possible that the matter will be resolved through BlueScope taking unilateral action consistent with its view that “Mr Pourre will not be able to ever do all the inherent requirements of the job he was employed to do.” It is also possible that the matter may be resolved between the parties agreeing to other arrangements. However given that the underlying issue as to Mr Pourre’s capacity to work has not yet been resolved I invite the parties to seek my assistance in resolving that issue.

COMMISSIONER

 1   Transcript of proceedings at PN159 to PN165

 2   Exhibit A1

 3   Transcript of proceedings at PN142

 4   Exhibit A1

 5   Insert paras 42 to 44 of AWU reply

 6   Para 555 of BlueScope submissions filed 3 March 2011

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