Industrial Relations Commission of New South Wales CITATION: Australian Workers' Union v. BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1126 APPLICANT Australian Workers' Union PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): 1531 of 2005 CORAM: Connor C industrial action - change to method of work - stop work meeting to discuss alleged safety issue - refusal to work as directed - legitimate concern over safety - need for consultation over safety issues - claim for payment for wages deducted from employees attending meeting granted CATCHWORDS: Industrial Relations Act 1996 Occupational Health and Safety Act LEGISLATION CITED: 2000 Australian National Airlines Commission v. Robinson (1977) VR 87 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v. Ralph M Lee Pty Limited (1996) 68 IR 333 Caltex Australia Limited Disputes Case (unreported) CASES CITED: Csomore v. Public Service Board of New South Wales (1986) IR 275 Electricity Commission of New South Wales v. Swieringa (1975) AR 236 Labor Council of New South Wales v. Axis Metal Roofing (2004) IR 272 HEARING DATES: 07/19/2005; 08/01/2005 DATE OF JUDGMENT: 08/24/2005 APPLICANT Andrew Gorman Australian Workers' Union LEGAL REPRESENTATIVES: RESPONDENT Jack de Flamingh Blake Dawson Waldron DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 24 August, 2005 Matter No IRC 1531 of 2005 Australian Workers' Union and BlueScope Steel (AIS) Pty Limited Dispute notification under S.130 of the Industrial Relations Act, 1996 re payment for safety meeting DECISION [2005] NSWIRComm 1126 Preliminary 1 A notification of an industrial dispute under S.130 of the 1996 Industrial Relations Act has been lodged by the Australian Workers' Union. The industrial dispute concerns slab handling operations of BlueScope Steel (AIS) Pty Limited. BlueScope Steel had deducted wages from employees for attending a stop work meeting arranged through the offices of the AWU on Wednesday, 2 March, 2005. The AWU contends that the wages should not have been deducted from 12 employees for their attendance at the stop work meeting, which it described as a "safety meeting". BlueScope Steel considered the "safety meeting" to be tantamount to industrial action and refused to pay the employees who took part in it for the time that they attended it - a little over one hour. 2 The matter came before me for a conference on Monday, 4 April, 2005 and Monday, 11 April, 2005. Conciliation failed to settle the matter. I issued the certificate of attempted conciliation required by S.135, lodged it in the prescribed manner and programmed the matter for arbitration in a hearing on Tuesday, 19 July, 2005 and Monday, 1 August, 2005. Mr Gorman represented the AWU in the hearing. He called two BlueScope Steel operators as witnesses in the hearing: Mr Karl White and Mr Philip Carter. Mr White is an AWU delegate for the slabhandling operators. Mr de Flamingh represented BlueScope Steel in the hearing. He called three witnesses to give evidence: Mr David Scott, the casting operations and slab handling manager, Mr Steve Westra, a slab handling team leader, and Mr Paul Cassar, the slab handling technical co-ordinator. All proceedings with this matter were convened in the Commission's premises at 90 Crown Street, Wollongong. The Issue in Dispute 3 The slabmaking department is housed in a building of approximately 500m in length with an entry and exit for locomotives at the east and west ends of the building. Traffic lights - red and green - are provided to regulate locomotive access into and out of the building. Formerly, the control of those traffic lights was the responsibility of the despatch operator in the despatch pulpit. When a locomotive arrived at the building, it was met with a red traffic light and it would not proceed until the driver of the locomotive was given clearance. The driver of the locomotive contacted the despatch operator who in turn informed the crane driver. As a safety precaution, cranes do not operate over the railway aisle whilst a locomotive shunt is in progress. Once the crane driver confirmed that the crane was stationary, the despatch operator changed the traffic light from red to green to permit access into the building to the locomotive. 4 I understand that there have been some incidents which prompted BlueScope Steel management to consider modification of the arrangement. On Tuesday, 19 August, 2003 Mr Cassar had carried out the necessary risk assessment. He had been assisted in that process by two operators involved in the operations. The modifications involved the relocation of the traffic light controls from the despatch pulpit to the M4 pulpit which Mr Cassar believed was a safer method, eliminating the possibility of miscommunication between the locomotive driver, the despatch operator and the crane driver. The matter had apparently been raised and discussed at the occupational health and safety committee and no safety problem found with it. 5 A series of e-mails, described as "24 hour feedbacks", are forwarded out daily by shift co-ordinators to operators, providing information over issues that have arisen in operations or would be occurring shortly. A series of those "24 hour feedbacks" confirmed the changes to be made to the traffic signals and one such e-mail outlined the changes in some detail, viz: "...The main reason for the change is to reduce the risk of incident in the turntable aisle relating to traffic light control switching. The activity currently involves four groups of people - slabhandling (M4) operators, turntable aisle crane drivers, caster pulpit operators and rail operations personnel. The aim of the change is to reduce the number of groups involved as is the case for the other traffic roads in the caster area by removing the caster pulpit operator's involvement..." Some of those notices found their way onto notice boards but Mr Carter indicated in his evidence that such notices were often covered up by other matters - postcards and other bits of information relating to the employees - and were not always visible or looked at by the operators. 6 The operators have apparently expressed some concern over the safety implications of the modifications. For the afternoon shift on Sunday, 27 February, 2005 the crew engaged on slabhandling operations notified Mr White that they believed there was a problem with the shunting lights being located at the M4 work station. Mr White in turn took the matter up with Mr Westra. Mr White claimed that the matter had been taken further with senior management by Mr Westra but the employees had received no response by Wednesday, 2 March, 2005 when the modifications were to be put in place. According to Mr Westra the concerns which Mr White had raised with him had not centred on safety but Mr White indicated in the written statement as a basis for his evidence that, since no training had been provided to the operators and no system had been put in place, the operators had believed that the system was unsafe and that was the issue he had raised with Mr Westra. 7 Mr Carter also indicated in his evidence that his chief area of concern had always been what he perceived to be the lack of training over the new system. He raised the matter with Mr White who called a meeting of the 12 operators on the shift in the crib room. Some work still continued in the slabhandling department and not every operator attended the meeting. Some operators attended the meeting briefly. BlueScope Steel has paid all employees who either did not attend the meeting or attended it only briefly. 8 Mr de Flamingh suggested that Mr Carter had the right to raise the matter directly with his supervisor and not involve Mr White as AWU delegate. That is certainly one avenue that he could have explored. But the fact that he raised it with Mr White, as AWU delegate, was also an option for him. That meant that the issue in dispute was co-ordinated through Mr White, and later Mr Gorman. I see Mr White's calling of the meeting as a perfectly legitimate function of a trade union delegate and Mr Gorman's involvement in the meeting consistent with his role as an AWU organiser. The activities of Mr White and Mr Gorman on this occasion should not have presented the problem that BlueScope Steel management seems to have been suggesting by their subsequent conduct over this matter. 9 Simply because a meeting is co-ordinated through the AWU does not necessarily denote industrial action per se. Some employees, especially those from non-English speaking backgrounds, would no doubt be more comfortable in talking through their trade union representatives rather than one-on-one with their supervisors. Direct communication between individual employees and their supervisors is important and those lines of communication should not be hindered, of course. But collective meetings of the employees arranged through the AWU delegates are also of value in communicating any changes to work, I would think. 10 I have formed the impression that there is sometimes an attempt by some representatives of BlueScope Steel management to take the AWU out of the loop in issues of this kind wherever that is possible. I consider that to be bad industrial practice. Many industrial disputes may be nipped in the bud if a proper dialogue was established between BlueScope Steel management and trade union officials rather than avoiding such contact. I believe that it would be more appropriate in any issue in dispute, including alleged safety issues, to work through AWU delegates and officials rather than attempt to ignore them. At the same time, the first response to any initiative by AWU members should not be a strike or other form industrial action. I am convinced that most issues in the BlueScope Steel operations would move more smoothly, in everybody's interests, if the AWU and BlueScope Steel management worked together on issues rather than against one another. 11 In any event, on Wednesday, 2 March, 2005, as the modifications to the traffic controls were being made, Mr White, as AWU delegate, took the matter up again with Mr Westra who recalled the conversation he had with Mr White, viz: Mr White: We are not going to do the switching of the lights for M4. It is unanimous from all shifts and we want them controlled from the pulpit. Mr Westra: The modifications are going in today and will be ready to use on afternoon shift today. We cannot go back as the wiring has been disconnected from the pulpit. Mr White: If this goes in, we are not going to use the lights. Mr Westra: I would consider that a refusal of duty and I would have to deal with that as it arose. Mr White: Well, all the crew is in the crib room. This is a big issue and you need to come over and talk about it. 12 Mr White had, in fact, called the meeting in the crib room he described to Mr Westra at approximately 3.30pm on Wednesday, 2 March, 2005 to discuss the issue with the operators. 12 employees - the majority of employees on the shift - remained in the crib room for a little over an hour, during which time no work was performed. At first Mr Westra, and later Mr Cassar and Mr Scott, joined them. Mr White also called Mr Gorman and he attended the meeting as well. 13 Whilst the meeting may have been described by Mr Gorman as a "safety meeting", it was not authorised by BlueScope Steel and I consider that it is appropriately categorized as a stop work meeting, albeit that it extended only for little over an hour. Mr White had informed Mr Westra that the employees had not accepted the new traffic light control procedure and would not be working according to it. Mr Westra correctly described that conduct as a refusal of duty. That made the meeting in the crib room industrial action, notwithstanding the fact that, according to Mr White, Wednesday, 2 March, 2005 was a "down day", ie slabs were not being cast, and the computers for the slab casting operations were off line at the time - from 2.00pm to 5.00pm. 14 BlueScope Steel management contend that there was still other work for the operators to perform. Whilst it was conceded by Mr de Flamingh that the computer system was not operating at the time, that should not have brought all work in the slabcasting operations to a halt. In particular, it is suggested that there were slabs that could be scarfed. Slabs are scarfed as part of quality control. That work involves skimming approximately 2mm off each end of the slab. If a slab requires scarfing, once it has been cast it is placed in a waiting line and marked according. Mr Westra claimed that there were eleven slabs marked and waiting for scarfing at the time of the meeting in the crib room. Mr Westra initially asked the employees: "Why are the slabs not being scarfed?" And Mr Cassar and Mr Scott also raised that issue with the employees in the crib room. 15 When Mr Cassar arrived in the crib room he did not know who Mr Gorman was and Mr Gorman informed him: "The boys invited me on site because they have a safety concern with the M4 controls." Mr Cassar recalled an operator, whom he is not now able to identify, saying: "We are concerned because we haven't had any training and we haven't been consulted on the change." Mr Cassar explained: "The consultation was initiated at the risk assessment in August, 2003 where the operators were represented and I have communicated to you, through 24 hour feedbacks what has been happening. I also did presentations at each team meeting in November last year showing the views from the monitors and how the system would operate. I have written and posted instructions on how the system will operate and I have told you that once all the bugs in the system are sorted out I will put the instructions into standard procedure format. I intend to stay on site to-day and train the operators on afternoon and night shift on how to use the new controls in the M4 pulpit." Mr Cassar claimed that Mr Gorman replied: "The blokes are not happy with the responsibility of giving rail access into the building and they do not want to be held accountable for anything that might happen. I want a written statement that the blokes won't be responsible before they will agree to operate the lights." It was Mr Westra who responded: "We can't write a letter for every possible scenario that might come up. We won't write a letter for you." 16 When Mr Scott arrived he also joined Mr Westra and Mr Cassar in the crib room. He had discussions with Mr Gorman over whether the change in the location of the traffic light controls constituted a significant change to the duties of the operators, suggesting to me by that comment that additional remuneration for the operators was being pressed by Mr Gorman for consideration by BlueScope Steel. One operator also questioned whether the remuneration for the operators would remain the same. Mr Scott pointed out: "That is not a matter related to safety. I don't believe an increase in money is required as the operators already do the task of giving the green light in the despatch aisle." 17 One employee then highlighted one particular area of concern: "I am worried about not being in the M4 cabin when traffic arrives calling for the green light." Mr Cassar replied: "The rail operations department have been made aware of the changes and have accepted that there may be some small delays until the M4 operator returns to the cabin." 18 Mr Gorman questioned whether BlueScope Steel had followed the correct consultation procedure and the operators in the meeting continued to argue that there had been a lack of proper consultation over the changes. Mr Carter said: "The consultation process could have been handled better." Mr Scott disputed that assertion, responding: "I disagree. I believe the consultation has been done well." 19 Mr Gorman also expressed concern over the accountability of the employees for their actions when switching the traffic lights. Questions of accountability and responsibility are issues which have cropped up several times in recent disputes before me involving BlueScope Steel employees in the steelworks. It appears to me to be a general concern of employees that any safety breach may lead automatically to disciplinary action against them. In part, the concern of the operators in this case appears to relate to possible disciplinary action which could be taken against the operators should there be a breach of some kind in the new arrangements. In that light, the employees' concern to ensure that they fully understood the requirements of the modified system with the traffic lights is perfectly understandable. 20 I appreciate that in the past breaches of safety in the steelworks operations have sometimes led to disciplinary action for the employees - warnings on an employee's personal file, suspensions and even dismissals. Whilst, of course, it is appropriate that both BlueScope Steel management and its employees take safety in the steelworks seriously and, in certain cases, breaches of safety justify disciplinary action and even dismissal, I question whether it is always appropriate for safety breaches to be so closely linked with disciplinary action. The unfortunate consequences of such a linkage may be to send safety breaches "underground" and to put employees in the position that they are reluctant to perform any new duties for fear that they will incur some disciplinary action in the result or to report to BlueScope Steel management any safety issues they suspect for fear of getting one of their fellow workers into trouble. Safety issues are always best addressed by training and proper consultation of the employees concerned. And, as I see the evidence, that is essentially what the employees in the meeting in the crib room on Wednesday, 2 March, 2005 were chiefly seeking. 21 The operators subsequently agreed to return to work on two conditions, viz: (i) that BlueScope Steel management provide a "Standard Operating Procedure" for the new process for operating the traffic light controls; SOP's are formal written procedure for any process in the steelworks; and (ii) that additional training be provided to all M4 operators. Mr Scott explained that Mr Cassar had already prepared a written procedure for the operation of the new arrangements for the traffic light controls which would in due course be transferred into an SOP. Also Mr Cassar was to remain on site during the afternoon and night shift to train the operators on that day. The employees resumed work at 4.45pm and have since that time continued to operate the traffic light controls without incident, although Mr White has suggested that there had still been problems in the new system. He spoke in his evidence of instances where steam from the slabs on wet days obliterated vision from the M4 pulpit but no doubt that was also a problem under the previous traffic signal control procedure when the work was co-ordinated through the despatch pulpit. Conclusion 22 Employees who refuse to perform any work they are directed to perform must appreciate that their refusal may deprive them of payment of wages whilst their refusal remains in place [Electricity Commission of New South Wales v. Swieringa (1975) AR 236 and Australian National Airlines Commission v. Robinson (1977) VR 87]. In Csomore v. Public Service Board of New South Wales (1986) IR 275 Rogers J of the State Supreme Court indicated (at p.281) that: "...unless an employer waives the usual requirement of a contract of employment that an employee perform the full range of work properly assigned to him or unless the award under which the employee works makes a contrary provision, payment of wages is conditional upon performance by the employee of the full range of work assigned or, at least, a readiness and willingness to do so..." That is to say, the refusal of an employee or a group of employees to perform any work which they are properly directed to perform is tantamount to a strike. The obligation to pay wages is essentially dependent upon the employee providing a service to the employer and no employer is obliged to pay employees for times when they are refusing to perform work required of them. 23 That position is confirmed by S.143(1) which goes so far as to make it an offence for an employer to pay any remuneration or provide any other financial benefit to an employee in respect of time spent by the employee in industrial action, viz: "An employer who pays any remuneration or provides any other financial benefit to an employee in respect of time spent by the employee in engaging in industrial action is guilty of an offence." Under Ss.143(2) and (3), however, the Commission may still authorise payment of such "strike pay" where it considers it appropriate to do so but in view of the strict wording of S.143(1), I expect that to be a very rare occurrence. 24 And it is in that light that S.143(4) should be considered. S.143(4) deals with one particular situation - industrial action arising out of health and safety concerns by the employees - where such payment may, in fact, be authorised or ordered by the Commission, viz: "The Commission may authorise or order an employer to do so: (a) only if the applicant satisfies the Commission that the relevant industrial action was based on a reasonable concern for health or safety, and (b) only to the particular employees whose health and safety caused that concern." 25 I understand that all operators may from time to time be called upon to man the M4 pulpit and, therefore, for the purposes of S.143(4)(b) they may all have been affected by the new arrangements for the traffic light controls. Mr de Flamingh argued in his submissions that the effect of S.143(1)(b) was to confine any entitlement to recoup lost wages to the employee actually engaged on the new traffic controls on the day in question, ie Wednesday, 2 March, 2005. But, in my opinion, the restriction from S.143(1)(b) should not be confined in that manner. As Mr Gorman indicated in his submissions, any of the operators could have actually been brought in to replace the employee assigned that work on that particular day. It was appropriate that all employees on the shift have the amended procedure clarified in case that situation arose. 26 The issue before me therefore centres around S.143(4)(a) - whether the employees had a "...reasonable concern for their health or safety...". McIntyre VP of the Australian Industrial Relations Commission indicated in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v. Ralph M Lee Pty Limited (1996) 68 IR 333 at p.343, the Commission is not necessarily: "…bound to accept the belief of the employees, however sincere, that their concerns were reasonable…" Industrial action based on an irrational fear by a group of employees should not be protected by S.143(4). The concern must be "reasonable". But there does not need to be an actual safety problem. 27 Ultimately, it would appear to me that the modifications in the procedure for the traffic signal controls were not, in fact, unsafe. That much is clear to me from the fact that the employees have now adopted the modified procedure without any further complaint of substance and the new system has been in place for some little time without incident. But as I indicated in my unreported decision of Thursday, 14 November, 2002 in the Caltex Australia Limited Disputes Case [Matter No.IRC 817 of 2002], that is not the point of S.143(4). What must be established is only that there was a "...reasonable concern for health or safety..." on the part of the employees. In his submissions Mr Gorman conceded that the new procedure was safe but he also pointed out that it was not the new traffic signal control procedure itself which concerned the employees but what they believed to be the lack of training for the new system of work. He emphasised that the locomotives were not "Tonka toys" and it was appropriate that the employees took the new procedure seriously. I agree. 28 In Labor Council of New South Wales v. Axis Metal Roofing (2004) 131 IR 272 at p.301, Walton J explained that the exception in S.143(4) should be considered in the context of collective industrial action, ie a strike, which would otherwise be proscribed. It is a decision of the group, ie all the AWU members in the crib room, and not the individual members of that group which should be assessed as either "reasonable" or "unreasonable". His Honour commented (at p.301) that: "...it follows that the relevant inquiry is not the subjective motivation of particular employees, but whether the relevant industrial action was based on the bona fide concern for health or safety, that is, whether there was a bona fide belief that there was a health or safety risk..." 29 Mr White was emphatic in his evidence that safety issues were the principal issue discussed at the meeting in the crib room on Wednesday, 2 March, 2005, although he conceded that some employees at the meeting discussed a range of other issues concerning the new arrangements for the traffic lights. Nevertheless, Mr Westra and Mr Scott do not believe that the meeting was really over safety issues at all. Mr Westra goes so far as to suggest that he could not recall safety issues being raised in the meeting and Mr Scott does not believe that the employees had really raised genuine safety concerns in their meeting. He indicated in his written statement that: "I do not believe any genuine issues of safety, necessitating a stoppage of work, was raised by the operators during the meeting on Wednesday, 2 March, 2005.... The scenario raised by Mr Gorman was unchanged from the pre-existing situation, and not related to the new procedure. Issues such as rate of pay, delays to rail operations and criticisms of consultation do not represent safety issues..." But Mr Cassar recalled in his written statement that at the meeting Mr Gorman had put the matter of concern squarely to him - "...the boys invited me on the site because they have a safety concern with the M4 controls...". 30 I also disagree with Mr Scott that criticisms over lack of consultation were not properly considered in the context of safety concerns by the employees. Proper consultation with the employees involved in any process is fundamental to ensuring a safe working environment. I note in that respect that S.15 of the 2000 Occupational Health and Safety Act requires consultation, viz: "Consultation under this Division is required: (a) when risks to health and safety arising from work are assessed or when the assessment of those risks is reviewed, and (b) when decisions are made about the measures to be taken to eliminate or control those risks, and (c) when introducing or altering the procedures for monitoring those risks (including health surveillance procedures), and (d) when decisions are made about the adequacy of facilities for the welfare of employees, and (e) when changes that may affect health, safety or welfare are proposed to the premises where persons work, to the systems or methods of work or to the plant or substances used for work, and (f) when decisions are made about procedures for consultation under this Division, and (g) in any other case prescribed by the regulations." In my opinion, it would have been more appropriate for the change to the traffic signal controls to have been ventilated in meetings in which a substantial number of employees affected by the change took part. Issuing e- mails and placing information on notice boards is a somewhat ad hoc approach to the issue and, in my opinion, is no substitute for face-to-face contact with the employees in meetings or with AWU officers representing them. 31 In my opinion, the slabhandling operators' concern over the modification to the traffic lights was both genuine and reasonable. No doubt, as Mr Scott suggested in his evidence, there were a range of issues discussed in the meeting in the crib room which were not strictly safety issues, eg whether there would be any increase in responsibility for the operators or an entitlement to additional remuneration. But I am satisfied from the evidence that the central issues discussed concerned safety. Employees had raised their concerns earlier with Mr Westra but those concerns had not been answered to their satisfaction. Mr Carter complained in his evidence that he believed the employees were simply "...taken for granted..." by BlueScope Steel management when they introduced new methods of work. I believe that the employees were entitled to have the changes explained to them and the meeting in the crib room provided a suitable forum for that to occur. And once that the matter was explained to them, they resumed work. 32 S.143(5) provides: "For the purposes of this section, industrial action is not based on a reasonable concern for health or safety if the employees whose health or safety is alleged to be involved have engaged in industrial action instead of complying with a direction by the employer: (a) to move to a specified safe place in the work place [ sic ] or to another suitable workplace, and (b) to do other appropriate and available work there is required." I note that BlueScope Steel management had informed the employees that there was other work for the employees to perform, eg scarfing of slabs and Mr de Flamingh suggested that such work fell under S.143(5)(b), thereby denying the employees payment for the meeting in the crib room. 33 It is not altogether clear from the evidence whether the operators had actually been directed to scarf slabs. It appears to me that no such direction was actually made and, consequently, there was no refusal to perform that other work. Mr Westra, Mr Cassar and Mr Scott simply "suggested" that such work was available to them to perform. But in any event, it would appear to me that the meeting in the crib room, which Mr Gorman described - accurately enough in my opinion - as a "safety meeting" (albeit that it was not authorised by BlueScope Steel and involved a work stoppage) was a suitable forum in which to ventilate the employee's concerns over the new arrangements with the traffic lights and to discuss them fully with BlueScope Steel management as the new procedure was being put into operation. That was the most important issue at the workplace at that time, I believe - not the scarfing of slabs. It was preferable to take the opportunity that the meeting in the crib room provided to discuss the matter as the modifications to the traffic lights were actually being made and that would not have been achieved if the employees had being directed to other activities at the time. 34 In those circumstances, I believe that the employees are entitled to payment for the time they spent in the crib room on Wednesday, 2 March, 2005 and I make an order to that effect in accordance with Ss.143(3) and (4). P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.