The Australian Workers' Union v SSX Services Pty Ltd and OneSteel Recycling Pty Ltd

[2015] FWC 2217

[2015] FWC 2217 [Note: An appeal pursuant to s.604 (C2015/3708) was lodged against this decision - refer to Full Bench decision dated 1 July 2015 [[2015] FWCFB 3964] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.526—Stand down

The Australian Workers’ Union
v
SSX Services Pty Ltd and OneSteel Recycling Pty Ltd
(C2015/1557)

COMMISSIONER RYAN MELBOURNE, 9 APRIL 2015

Application to deal with a dispute involving stand down.

[1] On 4 February 2015 the Australian Workers Union (AWU) filed with the Commission an application made under s.526 of the Act in which the AWU alleged that the standing down of a group of employees by each of SSX Services Pty Ltd and OneSteel Recycling Pty Ltd at their Laverton site in circumstances which were not permitted by s.524 of the Act.

[2] The application was listed for conference on 5 February 2015 but this was adjourned to 6 February 2015 at the request of the Respondents due to the unavailability of the General Manger. The matter was not settled at the conference. The application was then listed for arbitration on 11 February 2015. The Applicant was represented by Mr D Victory of Maurice Blackburn and the Respondents were represented by Mr A Pollock of Herbert Smith Freehills. Evidence in the proceedings was given by Mr Terrill, Senior Shop Steward for the Applicant at the Respondents’ Laverton site, Mr Condon, Bar Mill Operator at the Laverton site and by Mr Murphy, General Manager for the Respondents’ Laverton site and by Mr O’Connell, Rolling Mills Manufacturing Manager at the Respondents’ Laverton site.

Background to the Application

[3] The Applicant and the Respondents commenced bargaining for an enterprise agreement in August or September 2014 to replace the existing workplace agreement which had commenced in 2005 but had reached its nominal expiry date in September 2014. In or about October 2014 the Applicant applied for and was granted a Protected Action Ballot Order. The subsequent ballot was successful and commencing in November 2014 the Applicant and the Respondents’ employees commenced taking protected industrial action.

[4] As is often the case the Applicant sought to use the ability to take protected industrial action to achieve the greatest impact on the Respondents’ business whilst having the least impact on the Respondents’ employees. Mr Murphy gave a succinct overview of this:

“12. Since 5 November 2014, the AWU has issued the Respondents with approximately 30 notices of intended industrial action encompassing approximately 276 notified stoppages of work and other bans on the performance of work. Of these 276 notified instances of industrial action, approximately 150 have been either withdrawn or not taken.”  1

[5] One of the forms of protected industrial action which was notified to the Respondents and was actually taken concerned the stoppages of the performance of all work in the Rod Mill on days that most of the normal Rod Mill crew were rostered off duty but covering the same days when Bar Mill employees could work in the Rod Mill.

[6] The Respondents’ response to this form of protected industrial action was not to transfer any Bar Mill employees to the Rod Mill when the Rod Mill employees were not at work due to engaging in protected industrial action. The Bar Mill employees on these occasions were kept working in the Bar Mill producing product. By early December 2015 the Bar Mill had produced sufficient extra stock that the Respondents no longer wanted the Bar Mill employees to be working in the Bar Mill on the days that the Respondents had planned for Bar Mill employees to work in the Rod Mill but on which days the Rod Mill employees had intended to take protected industrial action by withdrawing their labour. The Respondents then stood down the Bar Mill employees on these days.

Relevant Legislation

[7] The relevant provisions of the Act are as follows:

“524 Employer may stand down employees in certain circumstances

(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:

(a) industrial action (other than industrial action organised or engaged in by the employer);
(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;
(c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

(2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:

(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and
(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.

Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.

Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).

(3) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period.”

526 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part.

(2) The FWC may deal with the dispute by arbitration.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with the dispute only on application by any of the following:

(a) an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1));

(b) an employee in relation to whom the following requirements are satisfied:

(i) the employee has made a request to take leave to avoid being stood down under subsection 524(1) (or purportedly under subsection 524(1));

(ii) the employee’s employer has authorised the leave;

(c) an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (a) or (b);

(d) an inspector.

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.”

Relevant Authorities

[8] Each of the parties took the Commission to a number of decisions which in the context of a stand down provision considered the meaning of words or phrases similar to “stand down an employee during a period in which the employee cannot usefully be employed”.

[9] The Respondents accepted that they bore the onus of establishing that there was no useful work that the employees could have done. 2

Consideration

[10] To put the issues raised by this application in context it is necessary to provide a more detailed description of the operations at the Respondents’ Laverton site.

[11] Mr Murphy provided a picture of the overall operations at Laverton.

“The Respondents' operations at Laverton

3. The Respondents operate a steel manufacturing facility at Laverton in Victoria. The Respondents employ around 310 employees across various functions including manufacturing and recycling. The Respondents form part of the broader Arrium Steel business.

4. The Laverton manufacturing facility consists of a Bar rolling mill (Bar Mill) and a Rod rolling mill (Rod Mill). The Bar Mill manufactures straight length product, while the Rod Mill manufactures coiled product.

5. The production demand at Laverton is determined by the Arrium Steel Sales and Operational Planning (SOP) process. To give effect to this process, a series of monthly SOP meetings occur that review the changes in (amongst other things) demand forecast, production loadings, manufacturing mill scheduling and production results. The intent of this process is to determine a customer demand forecast with an 18 month horizon (in order to structure manufacturing so that product is manufactured and delivered to customers at the lowest cost). This process also ensures that inventory is managed within specific financial constraints. Controlling inventory is a critical financial driver for the business.

6. Once the monthly SOP is determined, the production rolling volumes within each mill's roll cycle are adjusted. This subsequently determines the required billet feed production schedule. Billet is the precursor material that is fed into the reheat furnace in order to manufacture rod and bar products.

7. The Laverton manufacturing facility produces finished saleable product on a 'Make to Stock' basis which is set out in a market offer to wholesale customers. The market offer details our roll cycle and product types - essentially, the market offer informs our customers of the types of products they can order, when they can order them and our minimum order quantities. The 'Make to Stock' inventory levels are closely managed in line with variations in production facility supply and customer demand. The Laverton facility also manufactures finished saleable product on a 'Special Customer Order' basis. This constitutes approximately 5 per cent of Laverton's production.

8. The roll cycle for the bar mill operates on an 8 week rotation (that is, different products are rolled in a defined order over an 8 week period which is subsequently repeated). Given that our market offer is based on the defined roll cycles, we cannot simply alter a cycle to produce a different product 'out of sequence' without significantly impacting our market offer (in turn impacting our ability to provide customers with product as required).

9. We operate the Rod Mill with a 2 shift crew arrangement and the Bar Mill with a 3 shift crew arrangement. Depending on the particular SOP plan for Rod Mill and Bar Mill products, and Rod Mill and Bar Mill inventory, we may schedule Bar Mill crew transfers to the Rod Mill in order to operate additional Rod Mill shifts (Bar to Rod Shifts). Bar to Rod Shifts occur on a regular basis (typically one shift in every 1 to 2 weeks). 3

[12] Mr Condon gave evidence as to the details of the work arrangements at Laverton:

“Bar Mill Operations

4) The Bar Mill operates from 6am Monday to 6am Saturday. Bar mill operators work 12 hour shifts. The shift pattern is 2 days on 1 day off, 2 nights on then 4 days off, 3 days on then 2 days off then 3 nights on then 4 days off. The three crews of operators are called A Crew, B Crew and C Crew.

5) At any one time there are 15 Operators employed at the Bar Mill on each shift. In addition there supervisor and a superintendent. A fitter and a shift electrician are also employed for each shift.

6} In the Bar Mill, there are specified areas and jobs for operators to do that include Rougherman, Main pulpit, Finisher, Roller and three Rollshop operators.

7) At the finishing end there is a lab man (sometimes two people do this job) and Straightener Operator (there are sometimes two people doing this job too).

8) The others tasks are, cold sheer operator, raker, bundler and stacker operator and tagman.

Rod Mill

9) Rod Mill operates from 6am to 6pm Monday to Thursday morning at 6am or night at 6pm to fit in with rostering requirements.

10) Only 12 Operators work at the Rod Mill at any one time.

11) If the Rod Mill is behind schedule or there is a large demand for Rod Mill stock sometimes Bar Mill employees are required to go and work in the Rod Mill.

12) When this happens only nine Bar Mill operators move from the Bar Mill to the Rod Mill. They are joined by three Rod Mill employees who are familiar with the critical tasks needed to operate the Rod Mill.

13) This leaves 6 Bar Mill employees remaining at the Bar Mill. That is not enough to operate the Bar Mill safely.

14) The six remaining Bar Mill employees perform a number of tasks when the other Bar Mill operators are at the Rod Mill:

a) Changes for the next campaign, this is where the Bar Mill machinery is changed so that it goes from producing one type of product to a different type. For example, changing from BD 20 product to Angles.

b) Setup for changes for the next campaign. This is where operators setup machinery ready for a change. For example, in the above example, after the change is made from BD 20 to Angles operators can do setup for whatever is going to follow Angles.

c) Create spare boxes for the setup;

d) Tensile testing, this involves testing the product. The product can't be released unless it has been tested.

e) Warehouse quality assurance work, this involves testing product in the warehouse. Onesteel often brings in contractors to do this work.

f) Maintenance on the Bar Mill. If there are no orders so there is no need for Change or setup there is always maintenance that needs to be done, for example;

i) Maintenance on the headscrews on the stands on the Mill;
ii) Maintenance on rest bars;
iii) Maintenance on entry and delivery boxes for the Mill;

15) The maintenance aspect of Mill operations is often overlooked because the other tasks take priority. However because the Mill uses so much water and because of the force with which the steel moves through and exits the rollers there is often maintenance work to be done. This work is important because proper maintenance can help to prevent breakdowns and lost time.” 4

[13] Whilst Mr Condon identified the general process of having Bar Mill employees transfer to the Rod Mill, Mr Murphy gave the following evidence as to the frequency of such transfers:

“PN710: Mr Victory: So before I take you to it, you'd agree, wouldn't you, that employees in the bar mill don’t always transfer to the rod mill, do they?---Mr Murphy: Only when we do the rod – only when we do the bar to rod transfers.

PN711. Yes. That only happens sometimes on Thursday and then sometimes on Friday?---Historically, before all the industrial action, we’d average sort of a shift a week or a shift every two weeks.

PN712. Yes?---And it would depend on the demand put on the Laverton mill with a mix between bar need and rod need.

PN713. So you'd agree then with what I'm putting to you that you don’t always transfer people from the bar mill to the rod mill?---Only when there’s a - - - 

PN714. Only when there’s a need?---Only when there’s a need, yes.”

[14] Mr Terrill introduced through his witness statement the production schedule for the Bar Mill for the period 2 February 2015 to 19 February 2015 (Attachment GT-2 to ExhibitA1) and explained the production schedule as follows:

“Production schedule

12) OneSteel management produce a production schedule for about every two week period. The Production Scheduler sends an email to staff enclosing a copy of that production schedule. The production schedule is worked out taking into account the warehouse stock levels and upcoming customer orders. If there is product that is scheduled to be made, that means that there is a requirement for the stock, either because of a particular order, or to replenish stock in the warehouse.

13) Annexed hereto and marked GT-2 is a copy of the production schedule for the period 2 February 2015- 19 February 2015 (the production schedule). It is current as of 10.22am on Thursday, 5 February 2015.

14) The production schedule shows that from 6.00am Thursday 5 February to 6.00am Friday 6 February, and from 6.00pm Friday 6 February to 6.00am Saturday 7 February, management intended that members of the Bar Mill crew would work in the Rod Mill. From 6.00am Friday 6 February to 6.00pm that day management intended that the Bar Mill Crew would work in the Bar Mill producing 659 tonnes of BD20 bars.

15) That would have meant that the workers would have been allocated as follows:

TIME WORKER ALLOCATION

6am Thursday- 6am Friday 9 workers in Rod Mill

6 workers in Bar Mill

6am Friday- 6pm Friday 0 workers in Rod Mill

15 workers in Bar Mill

6pm Friday- 6am Saturday 9 workers in Rod Mill

6 workers in Bar Mill

16) However, work didn't occur like this for the reasons set out below.” 5

[15] On 28 January 2015 the Applicant gave notice to the Respondents of 18 forms of protected industrial action to be taken on 4 February 2015 and 5 February 2015. On 2 February 2015 the Applicant gave notice to the Respondents of 23 forms of protected industrial action to be taken on 6 February 2015, 7 February 2015 and 8 February 2015. Relevant to this application the following forms of protected industrial action were notified to the Respondents:

A stoppage of the performance of all work for all Relevant Employees engaged to work in the Rod Mill, except for the Rod Mill Roll and Guide Shop Operator, for a period twenty-four (24) hours between the hours of 6:00am on Thursday, 5 February 2015 and 6:00am Friday, 6 February
A stoppage of the performance of all work for all Relevant Employees engaged to work in the Rod Mill, except for the Rod Mill Roll and Guide Shop Operator, for a period twenty-four (24) hours between the hours of 6:00am on Friday, 6 February 2015 and 6:00am Saturday, 7 February.

[16] In giving the above notice of protected industrial action the Applicant was very aware that the roster for the Rod Mill meant that the Rod Mill employees would not normally be rostered to work on Thursday or Friday as the normal weekly roster for the Rod Mill ended at 6am on Thursday.

[17] The practical effect on the Rod Mill employees was that this particular form of protected industrial action would only operate as a ban on overtime being worked by Rod Mill employees on Thursday 4 February 2015 or Friday 5 February 2015.

[18] In relation to the Bar Mill employees the protected industrial action notified in relation to a ban on work in the Rod Mill would only have a direct impact on a Bar Mill employee if the Bar Mill employee was transferred to the Rod Mill during the period of the protected industrial action. In such a circumstance the Bar Mill employee would, if they supported the notified protected industrial action, need to engage in the protected industrial action and leave the site for the period of the protected industrial action.

[19] What actually occurred in relation to the Bar Mill employees who could or would have been transferred to the Rod Mill during the periods of protected industrial action notified in relation to a ban on work in the Rod Mill was that the Bar Mill employees were kept working in the Bar Mill.

[20] Both Mr Murphy and Mr Connell gave evidence in relation to the use of the Bar Mill employees to work in the Rod Mill and how Bar Mill employees were selected for transfer to the Rod Mill. Evidence was also given by both in relation to how the Respondents acted in relation to the notices of protected industrial action involving bans on the performance of work in the Rod Mill.

[21] Bar Mill employees have a general expectation that they can and will be transferred to the Rod Mill to operate the Rod mill on occasions on Thursdays, Fridays or Saturdays when the Rod Mill is not operating according to the normal Monday to Thursday roster for the Rod Mill.

[22] Out of the 15 Bar Mill employees only 9 are ever transferred at the one time to the Rod Mill to produce Rod Mill product. Although the Rod Mill requires a crew of 12 to operate the Respondents requires that 3 Rod Mill employees work overtime shifts on the Thursdays, Fridays or Saturdays that 9 Bar Mill employees are transferred to work in the Rod Mill. The Respondents will not allow the 9 Bar Mill employees to work in the Rod Mill without the 3 Rod Mill employees who are referred to as the “babysitters”.

[23] The selection of which 9 out of the 15 Bar Mill employees are to be transferred on any given occasion to the Rod Mill is left to the Supervisor of the shift.

[24] The Applicant has only given notice of a stoppage on the performance of all work in the Rod Mill for a full day on those occasions when the Respondents had given notice that they intended to operate the Rod Mill on a Thursday, Friday or Saturday using 3 Rod Mill employees on overtime and 9 Bar Mill employees on transfer. Approximately 80% of the notices of protected industrial action of a stoppage on the performance of all work in the Rod Mill for a full day have been carried out.

[25] Once a notice of protected industrial action of a stoppage on the performance of all work in the Rod Mill for a full day has been given then Mr Terrill tells Mr O’Connell somewhere close to when it is about to occur whether the protected industrial action is going ahead or has been cancelled.

[26] If the protected industrial action is not to go ahead then the 3 Rod Mill employees who have been rostered to work overtime shifts come to work without the Respondents having to contact them. Equally if the protected industrial action is to go ahead the 3 Rod Mill employees rostered to work overtime simply do not attend work.

[27] If the protected industrial action comprising a ban on the performance of all work in the Rod Mill does go ahead then the Bar Mill employees are not transferred to the Rod Mill and are kept working in the Bar Mill.

[28] On Wednesday 4 February 2015 at about 1.30pm Mr Terrill told Mr O’Connell that the planned protected industrial action of a ban on the performance of all work in the Rod Mill for 24 hours from 6am Thursday to 6am Friday would go ahead. Mr O’Connell told Mr Terrill that ‘if the Rod Mill protected industrial action proceeds as communicated then this will result in the stand down of the whole Bar Mill crew once useful work in the Bar Mill is completed.’

[29] On Thursday 5 February 2015 the Bar Mill employees who commenced work at 6am worked in the Bar Mill on production work until about 4pm when they were stood down.

[30] At about 8.30am on Thursday 5 February 2015 Mr O’Connell convened a meeting with the Bar Mill employees and advised them that they would be stood down once useful work had been completed.

[31] Mr O’Connell used a pre-prepared script for both the meeting on Wednesday 4 February 2015 with Mr Terrill and for the meeting with Bar Mill employees on Thursday 5 February 2015. 6

[32] Once Mr O’Connell was told by Mr Terrill on Wednesday 4 February 2015 that the protected industrial action would go ahead the Respondents would have expected that the 3 Rod Mill employees who were rostered to work an overtime shift on Thursday 5 February 2015 would not be attending work on the Thursday. Certainly by Thursday morning at 8.30am Mr Connell, Mr Murphy and the Respondent knew that the 3 Rod Mill employees who were rostered to work overtime on Thursday had not attended work and therefore that work in the Rod Mill could not proceed without them.

[33] Mr O’Connell’s script for his meeting with the Bar Mill employees at 8.30am on Thursday 5 February 2015 contained the following:

“What will prevent the stand downs?
Run the rod mill with the bar crews and the rod mill guys on overtime - this will prevent the stand downs.”

[34] However as at 8.30am on Thursday 5 February 2015 the Respondent could not have run the Rod Mill with 9 Bar Mill Crew given that the 3 Rod Mill crew rostered to do an overtime shift were engaged in protected industrial action and were not at work.

[35] At no time did the Respondent ask the Bar Mill employees if they intended to engage in the protected industrial action of not working in the Rod Mill for the designated times.

[36] It appears from the evidence that at no time was any specific Bar Mill employee directed to go to the Rod Mill and work there.

[37] The protected industrial action taken on Thursday 5 February and Friday 6 February which comprised a ban on work in the Rod Mill was but a repeat of similar protected industrial action taken over a period of months.

[38] Prior to Thursday 5 February 2015 the response from the Respondent to the taking of protected industrial action of banning the performance of work in the Rod Mill on days that the Rod Mill would not normally work was the same. The evidence shows that the Respondent did not transfer the Bar Mill employees to the Rod Mill but rather kept them in the Bar Mill producing product.

[39] The Respondents referred to the protected industrial action of “a stoppage of the performance of all work for all Relevant Employees engaged to work in the Rod Mill, except for the Rod Mill Roll and Guide Shop Operator, for a period twenty-four (24) hours” as being a Bar to Rod Ban.

[40] However the industrial action was not a ban on the transfer of Bar Mill employees to the Rod Mill but was a ban on the performance of all work in the Rod Mill for designated periods of time.

[41] It is the perceived “Bar to Rod Bans” that the Respondents were responding to rather than the actual protected industrial action being taken.

[42] There is no evidence that any Bar Mill employee refused a direct request from the Respondents to transfer from the Bar Mill to the Rod Mill.

[43] If such a request had been made and not complied with then the Bar Mill employee would not have been engaging in protected industrial action but would have been engaging in unprotected industrial action. This must be so because at no time did the Applicant give notice of an intention to take protected industrial action comprising a ban on the transfer of employees from the Bar Mill to the Rod Mill.

[44] If Bar Mill employees had been specifically requested to transfer from the Bar Mill to the Rod Mill then either of two outcomes would have occurred. Firstly if the transferring Bar Mill employees supported the notified protected industrial action then the Bar Mill employees would have refused to work in the Rod Mill and would have left the workplace as was their right in taking protected industrial action. If however the transferred Bar Mill employees did not support the notified protected industrial action then the Bar Mill employees could have performed such work as was possible and such work as was directed by the Respondent in the Rod Mill. It does not appear that any meaningful production work could have occurred in the Rod Mill in such circumstances given the absence of the 3 Rod Mill employees rostered to work overtime shifts at that time.

[45] In his witness statement, Mr Terrill conceded that at the meeting of Bar Mill employees convened by Mr O’Connell at 8.30am on Thursday 5 February 2015 that Mr O’Connell “said to all workers if you don’t now cross over to the Rod Mill, you will be stood down.” 7 Given that Mr O’Connell’s own evidence was that only 9 of the 15 Bar Mill employees were needed to transfer to the Rod Mill there is nothing in the evidence which identifies how any individual Bar Mill employee at that meeting could have understood that Mr O’Connell was directing that individual employee to transfer to the Rod Mill.

[46] As I have noted earlier on each occasion that the Applicant took protected industrial action being a “ stoppage of the performance of all work for all Relevant Employees engaged to work in the Rod Mill, except for the Rod Mill Roll and Guide Shop Operator, for a period twenty-four (24) hours....” the Respondents, knowing that the three Rod Mill employees who were rostered to work an overtime shift would not be attending, simply did not transfer any Bar Mill employees to the Rod Mill but rather kept those Bar Mill employees in the Bar Mill and then used the full Bar Mill crew to produce product in the Bar Mill.

[47] The consequence of having the Bar Mill operate on days that were not in the production schedule meant that the Bar Mill was producing stock in advance or producing extra stock.

[48] I accept the evidence of Mr Murphy that over the period in which employees have been entitled to take protected industrial action and have taken the protected industrial action of engaging in a “stoppage of the performance of all work for all Relevant Employees engaged to work in the Rod Mill, except for the Rod Mill Roll and Guide Shop Operator, for a period twenty-four (24) hours..” that the subsequent extra production through the Bar Mill has meant that the Respondent no longer has useful work for Bar Mill employees other than that work which is set out in the production schedule for the Bar Mill. I have carefully considered the evidence of Mr Condon and Mr Terrill for the Applicant and the evidence of Mr Murphy and Mr O’Connell for the Respondent. It is clear from that evidence that whilst the Applicant’s witnesses genuinely believed that there was useful work for the Bar Mill employees to do on both Thursday 5 February and Friday 6 February 2015 the reality was very different. Whilst work could have been created for the Bar Mill employees to do, such as running the Bar Mill production line to produce Angles, such work was not scheduled to be done on either 5 or 6 February 2015 and to have the Bar Mill employees do such work would not have been useful employment for the Respondent. The range of non production tasks which the Applicant contended were available either weren’t available or would not constitute useful employment for the Respondent.

[49] The overproduction in the Bar Mill is due entirely to the fact that the Respondents chose to keep Bar Mill employees in the Bar Mill at times that they could have been directed to work in the Rod Mill. The Respondents chose not to direct Bar Mill employees to transfer to the Rod Mill at times that the protected industrial action of a “stoppage of the performance of all work for all Relevant Employees engaged to work in the Rod Mill, except for the Rod Mill Roll and Guide Shop Operator, for a period twenty-four (24) hours...” was occurring.

[50] The evidence in this matter is sufficiently strong so as to reasonably satisfy the Commission that as at 4pm on Thursday 5 February 2015 and all day on Friday 6 February 2015 the Bar Mill employees could not be usefully employed.

[51] The issue which was not addressed by either party to the proceedings was the requirement in s.524(1) that the stand down of employees was because of one of the circumstances set out in paragraphs 524(1)(a), (b) or (c).

[52] The Respondent simply did not address this issue in their written or oral submissions.

[53] The Commission is aware of one authority which dealt with the issue of the causal link between industrial action being taken and the standing down of employees. In AMWU v Toyota Boshoku Australia P/L 8, Gay C addressed the issue of the causal link required in s.524(1):

“[121] It was put in the alternative, that for there to be a valid application of the statutory right, if there be no immediate temporal proximity, there must be a direct causal link between the industrial action and the reason for an employee being unable to be usefully employed. I have understood this argument to require that such a direct link not be accompanied by employer options or collateral, tangential, employer design. Such intruding influences would serve to break the necessary link between the industrial action as causing an employee not being usefully employed.

[122]....... It seems axiomatic to me that there must be a direct causative link between the industrial action and the consequential state of employee non-usefulness.......

[123] I am also of the view that delay, and certainly any appreciable delay, in declaring or determining that the employees are not usefully employed as a consequence of industrial action, the occasion of which is receding in time, will require very close scrutiny. This is because in such a case one will need to be vigilant to the possibility that the provision is not being put to a use for which it is not intended. Whether one is mindful of the precepts that emerge from the industrial cases of the past and adverted to by Ms Keating, or applies the provision as if Australia has had no influential federal jurisprudence in such a specialist area as stand downs, will ultimately be a matter for each judicial or quasi-judicial officer dealing with such a case. For my part I have regarded the earlier cases relied upon as a source of principled consideration, notwithstanding the different statutory backdrop. Each case will of course turn on its own facts and merit.

[124] It is necessary, in my view, that one be persuaded, to a level of confident satisfaction (but always within the civil test), that the cause of an employee being unable to be usefully employed is, in truth, ‘because of’ the industrial action in question. Where, as in this case, there is a passage of time, from industrial action to stand down, one will naturally be on guard to ensure that no other reason, no other influence or purpose is permitted to intrude by adding weight to the s.524 considerations or which reflects some other motive as the real or contributory reason.”

[54] Whilst the matter before Gay C concerned a stand down that was not contemporaneous with the industrial action, the conclusions reached by Gay C as to the nature of the causation of the stand down is directly relevant to the present matter.

[55] In the present matter there is clearly a causal link between the taking of protected industrial action in the form of a “stoppage of the performance of all work for all Relevant Employees engaged to work in the Rod Mill, except for the Rod Mill Roll and Guide Shop Operator, for a period twenty-four (24) hours...” and the standing down of the Bar Mill employees on the 5 February 2015 and 6 February 2015 but is the causal link direct or indirect?

[56] Can the Commission be persuaded, to a level of confident satisfaction (but always within the civil test), that the cause of an employee being unable to be usefully employed is, in truth, ‘because of’ the industrial action in question?

[57] In the present matter the answer to that question is: No.

[58] In the present matter there is clearly a temporal connection between the taking of the protected industrial action of a “stoppage of the performance of all work for all Relevant Employees engaged to work in the Rod Mill, except for the Rod Mill Roll and Guide Shop Operator, for a period twenty-four (24) hours..” and the standing down of the Bar Mill employees. But in many respects identifying a temporal connection is to do no more than note that the stand down occurred at the same time that the protected industrial action was being taken.

[59] The reason for the stand down of the Bar Mill employees was that the Bar Mill employees could not be usefully employed for the period of the stand down. The reason why Bar Mill employees could not usefully be employed as from 4pm on Thursday 5 February 2015 was because the Respondent had operated the Bar Mill on a number of shifts when the Respondent had intended that the Bar Mill would not be operating and producing product.

[60] There is no narrative as to why the Respondent operated the Bar Mill on days when the Respondent intended that the Bar Mill would not operate and that 9 of the 15 Bar Mill employees would be transferred to the Rod Mill. But it is the fact that the Respondent operated the Bar Mill on days when the Respondent intended that the Bar Mill would not operate and that 9 of the 15 Bar Mill employees would be transferred to the Rod Mill that led to the situation arising on 5 February 2015 that all useful employment of the Bar Mill employees in the Bar Mill had been done and that there was no useful employment for the period of the stand down.

[61] In the absence of both the narrative as to why the Respondent operated the Bar Mill on days when the Respondent intended that the Bar Mill would not operate and that 9 of the 15 Bar Mill employees would be transferred to the Rod Mill and evidence and submissions to support any such narrative, then the most that can be said is that the Commission only has before it “inexact proofs” and “indirect inferences” of a causal link between the stand down of the Bar Mill employees and the protected industrial action of a “stoppage of the performance of all work for all Relevant Employees engaged to work in the Rod Mill, except for the Rod Mill Roll and Guide Shop Operator, for a period twenty-four (24) hours..”. The Commission does not “feel an actual persuasion of” the existence of a direct causal link between the stand down and the protected industrial action.

Conclusion

[62] The standing down of Bar Mill employees on Thursday 5 February 2015 and Friday 2015 was not a stand down within the meaning and operation of s.524 of the Act. Whilst the stand down occurred during a period that the Bar Mill employees could not usefully be employed by the Respondent the stand down did not occur because of the taking of protected industrial action being a “stoppage of the performance of all work for all Relevant Employees engaged to work in the Rod Mill, except for the Rod Mill Roll and Guide Shop Operator, for a period twenty-four (24) hours from 6am Thursday 5 February 2015 to 6am Friday 6 February 2015 and from 6am Friday 6 February 2015 to 6am Saturday 7 February 2015.”  9

Observation on Procedural Fairness during Proceedings

[63] The application in this matter was filed on at 4.12pm on 4 February 2015 after the Applicant had been advised by the Respondent of the Respondent’s intention to stand down the Bar Mill employees on 5 February 2015. The application was initially listed for a conference at 3.30pm on Thursday 5 February 2015 but this was cancelled and the conference relisted for 3.30pm on Friday 6 February 2015.

[64] By the time the conference was held the Respondent had already stood down Bar Mill employees on both Thursday 5 February 2015 and Friday 6 February 2015. The conference failed to resolve the application and the parties agreed to have the application arbitrated at the earliest possible time as both the Applicant and Respondent expected a repeat of the events of 5 and 6 February 2015 to occur on 12 and 13 February 2015 when the Respondent intended to run the Rod Mill using 3 Rod Mill employees on overtime and 9 Bar Mill employees. The Applicant advised that protected industrial action would be taken on both the 12 and 13 February in the form of a “stoppage of the performance of all work for all Relevant Employees engaged to work in the Rod Mill, except for the Rod Mill Roll and Guide Shop Operator, for a period twenty-four (24) hours.”

[65] The application was listed for arbitration at 9.00am on Wednesday 11 February 2015.

[66] At the conclusion of the hearing on 11 February 2015 the Commission advised the parties that an extempore decision would not be issued and that the Commission would reserve its decision. However, given the position of the parties in relation to their proposed actions for 12 and 13 February 2015 the Commission advised the parties as to the thinking of the Commission as at the closing of the case. The Commission said to the parties:

“I don’t intend to give an ex tempore decision. It’s too difficult a matter to do justice to but I have a reasonably clear view as to where I may be going, I put it no higher than that. And what I say now, it can’t be read as being the decision I will issue but this is indicative of the thinking I’m at, at this point of time, and if my thinking at this point of time ends up being in the decision, I’m giving you pretty good guess at what’s going to be there.”  10

[67] The thinking of the Commission was then elaborated on. 11

[68] Whilst the Commission was detailing what was then in the mind of the Commission Mr Pollock became visibly agitated whilst sitting at the Bar table and it was clear that Mr Pollock wanted to rise to his feet to address the Commission. The Commission concluded its comments with the following:

“I know you want to jump to your feet, Mr Pollock, but it’s gone beyond the point for submissions.” 12

[69] Mr Pollock did then address the Commission in terms which clearly complained of a lack of procedural fairness being accorded by the Commission to the Respondents. The transcript at PN1385 to PN1408 details the exchange between Mr Pollock and Commission.

[70] The Commission was firm in its position that procedural fairness had been accorded to both the Applicant and the Respondent to run the cases that they wanted to run. The Commission was frankly surprised by the position adopted by Mr Pollock at PN1385 to PN1408. Mr Pollock is an experienced lawyer in the field of labour law and industrial law and has appeared before the Commission on numerous occasions in a wide range of matters.

[71] The key questions put to the Respondent’s witnesses in relation to the issue of a causal link between the stand downs and the protected industrial action were put by the Commission. On each occasion that the Commission asked a series of questions of the Respondents witnesses the Commission specifically invited counsel for both the Applicant and the Respondent to ask further questions of the witness in relation to anything arising from the questions put to the witness by the Commission.

[72] The issue of the causal link between the stand downs and the protected industrial action was always going to be an issue that the Commission had to address simply because the language of s.524 requires that there be a causal link between the stand down and the industrial action.

[73] Whilst this issue should have been agitated by counsel for both the Applicant and the Respondent, their avoidance of the issue did not relieve the Commission from an obligation to explore the issue.

[74] If the Commission acts in a way which effectively runs a party’s case then the Commission can quite rightly be criticised for doing so. The obligation on the Commission is to give each party a proper opportunity to run the case the party wants to run. That obligation was met in the present matter.

[75] Prompting Mr Pollock to address the Commission on the causal link between the stand down and the protected industrial action and inviting Mr Pollock to lead further evidence in relation to the causal link between the stand down and the protected industrial action would be tantamount to the Commission providing direct assistance to the Respondents to assist the Respondents to make up for deficiencies in their case.

[76] After the Commission had given an indication of the Commissions thinking on the application Mr Pollock put to the Commission the following:

“Commissioner, what we would have proposed would simply have been an opportunity to address these matters through, at the very least, submissions or to lead some short additional evidence on this question.” 13

[77] To have acceded to Mr Pollock’s request at that point of time would have amounted to the Commission having alerted Mr Pollock to the weakness of the case he had run for the Respondents and then specifically assisting Mr Pollock to address those weaknesses. Such a course of conduct goes well beyond providing a proper opportunity for a party to run the case it wants to run.

COMMISSIONER

Appearances:

D. Victory for The Australian Workers’ Union

A. Pollock for the Respondents

Hearing details:

2015.

Melbourne:

February 11.

 1   Exhibit R1 para 12.

 2   Transcript at PN130, PN136 and PN138.

 3   Exhibit R1 paras 3-9.

 4   Exhibit A1 paras 4-15.

 5   Exhibit A1 paras 12-16.

 6   Exhibit R2.

 7   Exhibit A1 para 27.

 8   [2012] FWA 1135.

 9   Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 361 and 362.

 10   Transcript at PN1368.

 11   Ibid at PN1369 - PN1384.

 12   Ibid at PN1384.

 13   Ibid at PN1402.

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