Industrial Relations Commission of New South Wales CITATION : BHP Steel (AIS) v Australian Workers' Union, NSW [2002] NSWIRComm 302 PARTIES : BHP Steel (AIS) Australian Workers' Union, NSW FILE NUMBER: IRC 597 of 2002 CORAM: Grayson DP Dispute proceedings - conciliation unsuccessful - application by notifier for variation of award as to rates of pay for Refractory Installers - dispute as to quantum - changes in work value - some agreed - others alleged - 1995 restructure as datum point - whether each and every change should be considered as relevant for purpose of work value principle - test of signficant net addition applied - changes in the nature of improved productivity and efficiency recently recognised in two-stage pay increase prescribed by BHP enterprise awards CATCHWORDS : Held, work value tests met by certain changes and not by others - award varied - pay increases retrospectively ordered LEGISLATION CITED : Industrial Relations Act 1996 s 15 s 17 s 130 Australian Workers Union, NSW v Construction, Forestry, Mining and Energy Union, NSW - IRC 01/458 (Walton J, Vice President), 8 August 2001, unreported Construction, Forestry, Mining and Energy Union, NSW v Australian Workers' Union, NSW - IRC 02/2586 (Walton, J Vice President), 8 August 2001, unreported BHP Billiton v Australian Workers Union & Others, IRC 01/8095 (Walton, J Vice President), 13 May 2002, unreported CASES CITED : BHP Steel (AIS) Pty Limited - Port Kembla Restructured Refractory Employees Classifications Rates of Pay Award, IRC 95/967 (Hungerford J), 18 May 1995, unreported BHP Steel (AIS) Pty Limited - Port Kembla Restructured Ironworkers Classifications Rates of Pay Award, IRC 95/1918 (Hungerford J), 12 December 1995, unreported State Wage Case 1989 (1989) 35 IR 183 State Wage Case 2002 (2002) 114 IR 81 HEARING DATES: 06/20/2002; 06/27/2002; 07/01/2002; 10/23/2002; 11/07/2002 DATE OF JUDGMENT: 12/05/2002 Mr D Lloyd, solicitor Blake Dawson Waldron LEGAL REPRESENTATIVES: Mr D Anderson Australian Workers Union, NSW JUDGMENT: - 42 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Coram: Grayson, DP Thursday, 5 December 2002 Matter IRC 597 of 2002 BHP STEEL (AIS) v AUSTRALIAN WORKERS' UNION, NSW Notification by BHP Steel (AIS) pursuant to s 130 Industrial Relations Act 1996 DECISION NSWIRComm 302 Introduction 1 This matter commenced by way of a notification on 4 February 2002 by BHP Steel (AIS) Pty Ltd (the Company) to the Industrial Registrar of a dispute pursuant to s 130 of the Industrial Relations Act 1996 (the Act). The notification stated: "For some time BHP [Steel] and employees engaged as Bricklayers and Assistants in the Refractory Services Department of the Port Kembla Steelworks have been negotiating a new restructured system of work. Substantial progress has been made in relation to the new restructured system of work, however, issues remain outstanding concerning rates of pay. On 4 February 2002 the employees imposed certain bans and limitations on the performance of work. These bans and limitations are adversely affecting the operations of the Refractory Services Department and various production departments." 2 The notification also stated that the employees are employed under the BHP Steel (AIS) Pty Ltd – Port Kembla Steelworks Employees Award published 23 March 2001 (323 IG 245), as varied (the 2000 Award) and that the persons affected by or involved in the dispute are the Construction, Forestry, Mining and Energy Union (New South Wales Branch) (the CFMEU), The Australian Workers' Union, New South Wales (the AWU) and BHP [Steel]. The notification sought that the Commission convene a compulsory conference in relation to the dispute as soon as practicable. 3 The matter was first listed for compulsory conference on 7 February 2002, and was subsequently listed on numerous further occasions. 4 As a result of conciliation of the dispute, the matters requiring determination were narrowed to essentially the appropriate rate of pay for employees employed in restructured Refractory Installation Assistant classifications at the Port Kembla Steelworks having regard to the work value changes, which are agreed to have taken place since 1995 (the datum point). The Refractory Installation Assistants (or Refractory Installers as the parties propose they will now be known) are represented by the AWU. 5 Matters concerning the appropriate rate of pay for employees employed in restructured Refractory Installation Bricklayer classifications at the Port Kembla Steelworks ultimately became and remain the subject of a separate application by the CFMEU (IRC 4451 of 2002). As a result of that separate application, the CFMEU ceased to play a further role in these proceedings. Applications for Variation of the 2000 Award 6 On 29 May 2002 the Company filed in these proceedings an application to vary the 2000 Award in relation to Refractory Installation Assistants. The application sought increased rates of pay for the classifications of Refractory Installation Assistant – Level 3 and Refractory Installation Assistant – Level 4. The application relied upon the following grounds, reasons and particulars: E. Grounds and reasons: 1. In 1995 a restructured system of work was established for refractory installation assistants employed by the Company at the Refractory Services Department of the Port Kembla Steelworks. 2. Since 1995, in respect of employees employed in the classifications of Refractory Installation Assistant – Level 3 and Refractory Installation Assistant – Level 4 there have been changes in the nature of the work, skill and responsibility required of these employees. 3. Having regard to these changes, it is appropriate to vary the award to increase the rates of pay for the classifications of Refractory Installation Assistant – Level 3 and Refractory Installation Assistant – Level 4. 4. A dispute exists between the Company and the respondent unions in relation to the appropriate increase in the rates of pay for the classifications of Refractory Installation Assistant – Level 3 and Refractory Installation Assistant – Level 4. 5. The Company and the respondent unions seek that the Commission arbitrate the appropriate rate of pay for the classifications of Refractory Installation Assistant – Level 3 and Refractory Installation Assistant – Level 4. 6. The application complies with the Industrial Relations Act 1996 and the wage fixing principles set out in the State Wage Case – May 2001. 7. For such other reasons as to the Commission appear sufficient. F. Particulars: 1. The Company claims that the appropriate rate of pay for the classification of Refractory Installation Assistant – Level 3 is $577.10 per 38 hour week, ie Level 10 on the Company's divisional wages structure, and the appropriate rate of pay for the classification of Refractory Installation Assistant – Level 4 is $615.20 per 38 hour week, ie Level 12 on the Company's divisional wages structure. The Company effectively claims that the rate of pay for the classification of Refractory Installation Assistant – Level 3 be increased from Level 9 to Level 10 on the Company's divisional wages structure, and that the rate of pay for the classification of Refractory Installation Assistant – Level 4 be increased from level 11 to Level 12 on the Company's divisional wages structure. 2. The respondent unions claim that higher rates of pay are appropriate for the classifications of Refractory Installation Assistant – Level 3 and Refractory Installation Assistant – Level 4. 3. The Company contends that the rates of pay claimed by it for the classifications of Refractory Installation Assistant – Level 3 and Refractory Installation Assistant – Level 4 are appropriate having regard to the changes in the nature of the work, skill and responsibility required of the employees employed in these classifications." 7 In response to the Company's application, the AWU sought an increase in wage rates of 3 levels on BHP Steel's divisional wages structure. Thus it may be seen that the parties differ as to the quantum of increase in rates of pay which ought flow from the agreed changes in the nature of work, skill and responsibility of employees concerned. Arbitration 8 The arbitration commenced on 20 June 2002, at which time the Company opened its case and tendered various documents relied upon. These were: · Exhibit A – an agreement and undertakings between the AWU and CFMEU which were recorded before the Commission in the course of demarcation proceedings (IRC 01/458 and 01/2586, 8 August 2001) and which explained that the parties had agreed that the AWU would have membership coverage of employees at BHP Steel who are Bricklayers Labourers and Refractory Installation Assistants and the CFMEU will not. In addition, it was agreed that the CFMEU would have membership coverage of employees at BHP Steel who were Bricklayers and Refractory Installation Bricklayers and the AWU will not. · Exhibit B – the 2000 Award which contains the present Refractory Installation Assistant classifications at 323 IG 303 under the heading "Refractory Services Department". · Exhibit C – a table detailing the award rate of pay for each of the 16 levels on BHP Steel's divisional wages structure, including the rates incorporating the increases effective on 6 December 2001 and 6 December 2002 arising out of the recommendation of Walton J, Vice-President dated 13 May 2002 in matter IRC 01/8095. It was noted by the Company in opening that each of the numerous restructured production (or ironworker) classifications at the Port Kembla Steelworks are remunerated by a rate of pay contained on the 16 level divisional wages structure. · Exhibit D – a summary identifying the 33 decisions of the Commission concerning restructured classifications and rates of pay for production employees (or ironworkers) at the Port Kembla Steelworks in the period from 1993 to 2000. · Exhibit E – the decision of Hungerford J dated 18 May 1995 in IRC 95/967 approving the 1995 restructure in Refractory Services at the Port Kembla Steelworks which established the existing restructured Refractory Installation Assistant classifications and rates of pay (the datum point for the purposes of these deliberations). · Exhibit F – the 1995 Restructured Refractory Employees Award published on 25 August 1995 (287 IG 709), as varied. This award was subsequently incorporated into the 2000 Award (see clause 3.1 of the 2000 Award). · Exhibit G – the BHP Refractories Restructure January 1995, which detailed the agreement between BHP Steel and the AWU concerning the restructured system of work that would apply to Refractory Installation Assistants and attached agreed position descriptions for the restructured classifications. · Exhibit H – a document entitled "Refractory Services Work Value Claim – 2002 Agreed Position Document", which detailed certain changes that were agreed between the parties as constituting significant changes since the 1995 restructure affecting the Refractory Installation Assistant classifications of Level 3 and Level 4. The document also detailed other changes that the AWU alleged constituted significant changes since the 1995 restructure but which were not agreed to by BHP Steel as constituting significant changes. Again, these alleged significant changes only affected the Refractory Installation Assistant classifications of Level 3 and Level 4. 9 By consent, the hearing on 20 June 2002 was adjourned to enable the Commission to conduct site inspections, which were conducted on 27 June and 1 July 2002. 10 Following the inspections and again by and with the consent of the parties, the Commission attempted further conciliation in relation to the dispute concerning the appropriate quantum of increased rates of pay. The proceedings were then listed for report back on 18 July, 8 and 29 August, and 19 September 2002 during which period the AWU and its members, with the Commission's assistance, considered their position in the bargaining process. Unfortunately, attempts to conciliate the dispute were unsuccessful and the arbitration was listed for further hearing on 23 October 2002. The parties were directed to file and serve witness statements in advance of this date. Amendment to Application 11 At the outset of the further arbitration on 23 October 2002, the Company sought and was granted leave, without objection from the AWU, to vary the schedule to its application which contained the variations sought to the 2000 Award. 12 Significantly, the amended application sought the creation of two additional classifications unique to the Cast House Floor and remunerated at a higher rate than was contemplated by the application initially filed. 13 The amended schedule, stated: AMENDED SCHEDULE BHP STEEL (AIS) PTY LTD – PORT KEMBLA STEELWORKS EMPLOYEES AWARD 2000 1. Delete the table of classifications and rates of pay for Refractory Services appearing under the heading 5. Refractory Services Department in Table 1 – Restructured Ironworker Rates of Pay, of Part C, Monetary Rates – Restructured Classifications, of the award published 23 March 2001 (323 IG 245), as varied: Refractory Services Refractory Installation Assistant – Level 1509.50529.90 Refractory Installation Assistant – Level 2550.50572.50 Refractory Installation Assistant – Level 3563.60586.10 Refractory Installation Assistant – Level 4595.90619.70 and insert the following table of classifications and rates of pay instead: Refractory Services Refractory Installer Level 1509.50529.90 Refractory Installer Level 2550.50572.50 Refractory Installer Level 3577.10 (operative from the beginning of the first pay period to commence on or after [insert decision date])600.20 Refractory Installer Level 3 – Cast House Floor595.90 (operative from the beginning of the first pay period to commence on or after [insert decision date])619.70 Refractory Installer Level 4615.20 (operative from the beginning of the first pay period to commence on or after [insert decision date])639.80 Refractory Installer Level 4 – Cast House Floor631.60 (operative from the beginning of the first pay period to commence on or after [insert decision date])656.90 Note: The above rates of pay incorporate the increases in rates of pay arising out of the recommendation of Walton J, Vice-President dated 13 May 2002 in matter no IRC 8095 of 2001. 2. This variation shall come into force from the beginning of the first pay period to commence on or after [decision date]. 14 The second column would apply from the first pay period commencing on or after 8 December 2002, and the first column would apply for any relevant period prior to this date. Evidence 15 The Company called Trevor Wright, Superintendent Refractory Installations, to give evidence. Mr Wright's witness statement (Exhibit K) relevantly stated: 1. I am employed by BHP Steel (AIS) Pty Ltd ("BHP Steel") at the Refractory Services Department of the Port Kembla Steelworks in the position of Superintendent Refractory Installations. I have been employed in this position since July 2001. I have been continuously employed by BHP Steel for approximately 25 years in a range of operational and refractory related roles. For the last 15 years I have been involved in refractory roles at Port Kembla. 2. In my current role I manage the installation of refractories by employees of BHP Steel at the Port Kembla Steelworks. Reporting to me are the 12 supervisors in Refractory Services who supervise the work of the Refractory Installation Bricklayers and Refractory Installation Assistants employed in Refractory Services. Currently there are 39 bricklayers and 37 assistants. I report to the Manager Operations Services, Oscar Gregory. What are Refractories? 3. Refractories are a brick or concrete like lining used in the iron and steel making process. Refractory Services are responsible for applying refractories to the various production equipment and units at the Port Kembla Steelworks. The refractory serves a number of purposes from heat containment and heat protection to containing liquid metal in the production of iron and steel. Organisation of Refractory Services 4. For operational purposes, Refractory Services is divided into two sections, Ironmaking and Steelmaking. The main services provided by each section within the Port Kembla Steelworks can be summarised as follows: (a) Ironmaking Section – provides services to a range of operating departments, including: · Ironmaking – installation of refractories to the troughs in the cast house floors of the No 5 and No 6 Blast Furnaces, and to the Torpedo Ladles. A Casting Shop is operated as part of providing these services. · Mills – installation of refractories to the furnaces in the Hot Strip Mill and Plate Mill. (This involves a relatively small amount of work.) (b) Steelmaking Section – installation of refractories to production units like the steel ladles, hot metal ladles, tundishes, vacuum degasser and BOS furnaces. Types of Refractories and Work of Refractory Services' Employees 5. At Port Kembla Steelworks, two broad types of refractories are used, namely: (a) refractory bricks – the bricks are of various sizes ranging from a standard house brick size up to large blocks, and are applied either dry or with mortar; (b) monolithics – are concrete like substances that are used in three forms, namely: · castable – is a high temperature concrete. Water is mixed with the dry material and mixed in a special mixer and then poured into a job as required. The raw materials used are different to ordinary concrete. · gunning – is a similar material to the castable, but a different method of installation is used. The dry or mixed raw material is fed into a machine which then pumps the material out through a rubber hose so that it can be sprayed onto the job as required. · ramming – is again a similar material to the castable, but in a form like plasticine. The method of installation is by a pneumatic rammer or by hand ramming small amounts with a hammer. 6. Within Refractory Services, the bricklayers install bricks, and both the bricklayers and assistants install monolithics (in any of the three forms). In addition, both the bricklayers and the assistants perform various multiskilled tasks and process measurement work. 7. Over the last 25 years there has been an ongoing reduction in the tonnes of brick refractories used by Refractory Services and a corresponding increase in the tonnes of monolithics refractories used by Refractory Services. The current proportion of tonnes of bricks installed compared to tonnes of monolithics installed is approximately 33% bricks to 67% monolithics. I estimate that the use of bricks will continue to decline from the current proportion of total refractories used from 33% to between 15% to 20%, over the next 5 to 10 years. I estimate that the proportion of monolithics used will increase correspondingly. In the future there will always be jobs requiring brick refractories to be installed, although this will be minor when compared to the total tonnage of refractory material required. 8. This trend is explained by the advantages of using monolithics over bricks, namely that monolithics are more cost effective, are able to be installed more quickly, can have a longer life and are able to be repaired more easily. 9. Operators (or ironworkers) in some departments of the Port Kembla Steelworks also perform some refractory installation work. For example, operators in the Slab Caster (Operator 2's) install monolithic refractories in tundishes (that are used in the steelmaking process) as one of their tasks as part of the restructured system of work that is in place at the Slab Caster. Teamwork System 10. Refractory Services' employees work in teams depending on the requirements of particular refractories installation jobs. The number of employees comprising a team and the composition of bricklayers and assistants on a team is flexible and fluid. A team can typically number from 2 employees up to 7 employees. The system of teamwork at Refractory Services is very important in enabling the department to meet the operational needs of its customers, namely the operating departments within the Port Kembla Steelworks that use refractories. 11. Refractory Services' employees also routinely interact with employees of the operating departments at the Port Kembla Steelworks, in particular, operators (or ironworkers) and supervisors in those departments. Refractory Contractors 12. BHP Steel also engages contractors to perform some refractories installation work at the Port Kembla Steelworks on a job to job basis, for example, on major maintenance projects or to supplement in-house labour. Refractory contractors are presently engaged approximately 30 times a year. A job typically lasts anywhere from 1 day to 3 weeks. The main contractors engaged are Andrecco Hurll and AGi.RI. AGi.RI have installed the majority of refractories in the Coke Ovens in recent years. 13. Refractory Services coordinates the activities undertaken by these contractors. Refractory Services' employees work from time to time with the employees of contractors in relation to refractory installation jobs being undertaken. Refractory Services employees work with contractor's employees and their supervision to ensure the work is done safely, on time and to the required quality standards of BHP Steel. Refractory Services Restructure 14. In 1995 BHP Steel reached agreement with Refractory Services' employees and both the CFMEU and the AWU for a work restructure of Refractory Services. The agreement is exhibit "G" in these proceedings. The work restructure resulted in numerous changes to the work of Refractory Services' employees. Generally speaking, the restructure resulted in a substantial overlap in the work of bricklayers and assistants, with most duties, functions and responsibilities common to bricklayers and assistants (the exception being bricklaying). Much of these changes are documented in the agreement itself. My understanding of the major changes made at the time were: (a) Monolithics installations performed by bricklayers – Prior to the restructure, more distinct roles existed between bricklayers and assistants, with bricklayers performing brick installations and assistants performing monolithics installations. Arising out of the restructure, monolithics are installed by both bricklayers and assistants. (b) Multiskilling – Arising out of the restructure, Refractory Services' employees perform multiskilled tasks like operation of forklifts and bobcats, pendant crane driving, oxy cutting, welding and use of explosive power tools. (c) Process measurement – Arising out of the restructure, Refractory Services' employees perform process measurement work, such as condition measurement and monitoring to check the life expectancy of a refractory. Refractory Services Workplace Review 15. From early 2000 to late 2001, Refractory Services undertook a workplace review. For this purpose various working parties of Refractory Services' managers and employees meet on an ongoing basis. The workplace review process was able to reach agreement on a number of changes to the system of work for Refractory Services' employees but stalled due to issues concerning remuneration increases. 16. The working party process was able to develop principles to apply to any new system of work and new position descriptions that incorporate changes in work, skill and responsibility since the 1995 restructure. Although the principles and new position descriptions were not formally accepted by Refractory Services' employees and the unions, the position descriptions reflect the work employees are largely now performing (although not all employees are currently trained or required at this time to perform all work tasks contained in the position descriptions) and the principles operate as a matter of practice (other than new shift systems). The position descriptions are MFI F in the proceedings. The principles are MFI G in the proceedings. BHP Steel's Position in these Proceedings 17. Arising out of the conciliation process in these proceedings, BHP Steel seeks the introduction of 2 new classification levels – Refractory Installer Level 3 – Cast House Floor and Refractory Installer Level 4 – Cast House Floor. Generally employees in these classifications would perform the cast house floor associated work in addition to the other work required by the Level 3 and Level 4 classifications respectively. 18. BHP Steel's position is summarised in the document entitled "Refractory Services – Work Value Claim – Refractory Installation Assistants - 2002", which is annexed and marked "A". 19. BHP Steel claims the following rates of pay for the classifications (by reference to the Company's divisional wages structure): Classification Level on Company's Divisional Wages Structure Refractory Installer Level 3 Level 10 (increased from Level 9) Refractory Installer Level 3 New classification at Level 11 – Cast House Floor Refractory Installer Level 4 Level 12 (increased from Level 11) Refractory Installer Level 4 New classification at Level 13 – Cast House Floor Changes in Work, Skills and Responsibility 20. Exhibit H tendered in the proceedings identifies various agreed work value changes since the 1995 restructure. Based on this exhibit I have prepared a document that explains the nature of each change. This document entitled "Refractory Services Work Value Claim – 2002 Agreed Position Document" is annexed and marked "B". 16 Annexure A to Mr Wright's witness statement set out the Company's position as reflected in the Amended Schedule of Variation. Annexure A stated: Refractory Services – Work Value Claim – Refractory Installation Assistants – 2002 Summary · In February 2002 the Company concluded, following representations from employees, that there was a differential between the work value described for the generic RIA positions across the department and the work value described for the RIAs working on the Cast House Floor. · This differential is based on the additional knowledge, skills and accountabilities required to perform, and be responsible for, the draining of troughs, its associated duties and the integral nature of the operation with Blast Furnace (casting) operations including support to Blast Furnace Operators. Issues · Originally (in late 2001) the Company had made a work value assessment for RIA's based on the Position Descriptions developed by the coordination team, that contained all types of work conducted by RIA's. · This work value assessment recognised aspects of this Casthouse Floor work, along with other work functions, as contributing to a significant change for in the work value of RIA's across the Refractories Department. The work value of the Casthouse Floor was, at least in part, recognised and rewarded in the proposed increase in wages for all RIA's in the Department, in that sense it did not recognise the differentiation between the Casthouse floor and other sections. Proposal After considering the issues, the following proposal has been developed:- · The offer for RIA's across the department should remain as previously offered and is detailed below. · New Classifications are described in new position descriptions, which are attached. · Competency based accreditation requirements are required to be prepared for Casthouse Floor RIA classifications. · These new Casthouse Floor Position Descriptions should be considered as part of the current work value case being dealt with through the IRC. · RIA's from across the department will continue to be required, under direction, to assist in the activities on the Casthouse Floor as required, and the proposed wage increase for all RIA's is recognition of this. · The position descriptions for RIA's have been modified to reflect this. · Competency based assessments and maintenance of skills would be part of the accreditation requirements for these new classifications. Proposal RIA Level 3 current Weekly Hourly Level 9 Over award rate $162.20Award rate Award rate $14.8316Over award rate $563.60 $4.2684 To RI Level 3 Weekly Hourly Level 10 Over award rate $168.90Award rate Award rate $15.1868Over award rate $577.10 $4.4447 And RI Level 3 Cast House Floor (CHF) Weekly Hourly Level 11 Over award rate Award rate $175.70Award rate $595.90 $15.6816Over award rate $4.6237 Total Weekly Increase From current RIA level 3 Award Over Award Total RI level 3 $13.50 $6.70 $20.20 RI (CHF) level 3 $32.30 $13.50 $45.80 RIA Level 4 current Weekly Hourly Level 11 Over award rate Award rate $175.70Award rate $595.90 $15.6816Over award rate $4.6237 To RI Level 4 Weekly Hourly Level 12 Over award rate Award rate $175.70Award rate $615.20 $16.1895Over award rate $4.6237 And RI Level 4 Cast House Floor Weekly Hourly Level 13 Over award rate Award rate $186.20Award rate $631.60 $16.6210Over award rate $4.9000 Total Weekly Increase From current RIA level 4 Award Over Award Total RI level 4 $19.30 $0 $19.30 RI (CHF) level 4 $35.70 $10.50 $46.20 Principles The following principles should be applied in establishing how to implement the introduction of these changes. · The creation of new classifications is recognition that RIA's are attaining extra skills and knowledge specific to work on the casthouse floor. Prerequisite to these levels are all the existing arrangements and requirements applying to RIA Level 3 and 4 classifications (eg Level 4 by invitation) · To qualify for these new classifications, RIA's will need to be accredited in the skills required, and be able to demonstrate competency and experience in applying these skills on the casthouse floor over a nominated minimum period of time (for example 3 months). · The number of people accredited into each of these classifications must make business sense (ie safety, business need, etc) · RIA's will only be accredited where they have the opportunity and willingness to retain currency in the knowledge and required skills. (Practicality dictates that personnel will need to be based in the Ironmaking and Mills Section for this to happen)." 17 It is noted that this annexure refers to relevant over award rates as does Exhibit C. However, the Commission is not asked to further consider these over award rates, it being agreed between the parties that the relevant over award rate follows the level of award rate on the divisional wages structure. As Exhibit C shows, the parties have previously agreed the appropriate award and over award rate of pay for each of the 16 levels of the divisional wages structure. The issues for determination in these proceedings relate to the appropriate level of each classification on the divisional wages structure. This approach is said to be consistent with the 33 previous decisions of the Commission listed on Exhibit D. 18 Annexure "B" to Mr Wright's statement commented upon each of the changes that had been agreed by the parties as constituting significant changes since the 1995 restructure. Annexure "B" stated: Refractory Services Work Value Claim - 2002 [BHP Steel Response to] Agreed Position Document Refractory Installation Assistant Level 3 Nature of changes · Activity specific to the Blast Furnace Casthouse Floors · Currently a core team of both RIAs and RIBs are involved in assisting in this process. The core team is frequently supplemented from other crews from within the Ironmaking and Mills Section. · Currently there is only one RIA (level 4) who has the skills and competency to take the overall responsibility for managing and coordinating this activity. All other RIAs involved in this activity assist in tasks under direction of the Level 4 RIA or RIBs Draining BF troughs · The process of draining a trough involves managing a range of tasks from the planning and coordination of the drain, securing the area, setting up the ladles and dedusting systems in readiness for opening the punch-out, opening the punch-out and monitoring the process to completion. · The Company believes that assisting in these tasks requires some specific skills and understanding of the process, and recognises this as part of the work value increase offered across the board to all Level 3 RIAs. The basis for this proposal is that it is expected that all RIAs could be asked to assist in the draining of troughs as part of their routine work. · Further, the Company proposes that where RIAs are trained and accredited to take on the overall responsibility for draining the troughs (ie not just assisting or working under direction), along with a range of other activities specific to work on the casthouse floors, as described in the proposed position descriptions for the "Refractory Installer Level 3 – Casthouse Floor", then these additional skills, knowledge and responsibility should be recognised by the creation of new classifications and the higher rates as outlined in the proposal document. · Note that the Company's proposal also includes the creation of further classification – "Refractory Installer Level 4 – Casthouse Floor", which also defines a number of skills and responsibilities specific to the casthouse floor, and seeks to recognise this again with the higher rates as outlined in the proposal document. · The proposal outlines the principles that would apply in establishing and implementing the new casthouse floor classifications. The Company believes that the number of Casthouse floor positions would need to be based on the business' needs at the time, and restricted to ensure that the positions retain currency in the knowledge and skills required. · These activities apply across the department. Condition monitoring · Condition monitoring ranges from assessing the condition of refractory lined units from simple visual assessment, to using a range of measures (including thermocouples, core drilling and use of lasers) to determine wear, quality and dry-outs · The development of the skills and techniques used in condition monitoring are varied from area to area, and individual to individual. However the expectation is that the L3 RIAs will be increasingly involved in the techniques for condition monitoring and participate in the interpretation of the results with their Level 4s and supervision. · Historically, while part of the 1995 restructure, the role of condition monitoring was largely done by RIBs, but in this review the trend and expectation is for RIAs to be increasingly involved in these activities. · These activities apply across the department. Reading drawings · As a general rule the RIAs have minimal involvement in reading drawings, however, most refractory application and installation areas are covered by drawings, and their use is frequently the same as for SOPs, ie that they are used as a reference in training and knowledge development, and can be referred back to when considering change or issues associated with the unit. · This is another area where the best examples are on the casthouse floor, where the drawings are used largely to reference former positioning, runner slopes etc to ensure the units are set correctly, and for the positioning of thermocouples. This has traditionally been done by the Level 4 RIAs but it is believed that the Refractory Installer Level 3 Casthouse Floor positions will need to be directly involved in this kind of activity. · Again the skills for reading of drawings are more likely to be required by Level 4 RIAs, but it is believed that the development of these skills will assist the Level 3 RIAs in developing the knowledge to better perform some the roles agreed to in the 1995 restructure, eg assessing the condition of units, interpretation of repair requirements, preparation of SOPs and training of less experienced employees. Refractory Installation Assistant Level 4 Nature of changes · These tasks are restricted to a specific activity in the Ironmaking and Mills Section · The management of trough covers is a role in which an individual has the responsibility for the day-to-day management and planning of trough cover service and repair cycles. Management of trough covers · The activity applies to an individual (and his relief) rather than applying across the board to all L4 RIAs · The job involves coordination of cover changes from the furnace, arranging their transport to the repair yards and the advice of the types of repairs required, and their handling prior to getting back in service. · This is a new role, and was introduced to help better manage the fleet of covers required on the blast furnace casthouse floors. The aim of the role is to ensure the availability of the units to meet the furnace needs. · These activities apply mainly in the Ironmaking and Mills Section. · The types of reports generated vary. Producing reports to customers · Routine reports are generally in the form of hand over sheets that detail the scope of work completed, and instructions of the requirements for brining the units back in service. Again this is predominantly done for casthouse floor activities. · Plans and Schedules are generated to advise the customers of repair schedules. Level 4 RIAs participate in these tasks typically as part of a team, involving the Level 4 RIBs and supervision. The overall responsibility for the plan remains with the supervisor. · Shutdown reports, are generated by L4 RIAs for customers across the Plant. These reports are more technical in nature, summarising the activities undertake during shutdowns. The RIAs performing the work are responsible for generating the reports and for the content and quality. Sign off process 'unit fit for use' · These activities apply across the department · The types of sign off, like the report activities vary from section to section. At the completion of work a Level 4 RIA may take the responsibility for their work, and release the units back to operations as fit for service. This is formalised by handover sheets and/or the sign off of the Authority to Work form once the work is completed in most areas." 19 Also tendered through Mr Wright was Exhibit M, which was a document that commented upon the other changes which the AWU alleged constituted significant changes since the 1995 restructure but which were not agreed to by BHP Steel as constituting significant changes. 20 The AWU called 3 witnesses to give evidence, Kim Murphy, Terry Orange and Shane Buckman. Statements of evidence of Mr Murphy, Mr Orange and Mr Buckman were tendered and marked respectively Exhibit 1, Exhibit 2 and Exhibit 3. The content of these statements in tabular form is set out at paragraph 30 below. 21 Each witness was subject to cross-examination. 22 The hearing on 23 October 2002 was then adjourned for the filing of written submissions and presentation of oral submissions on 7 November 2002 and the Commission acknowledges at this point, the assistance of the parties in that regard in gathering and focusing with the clarity upon matters material to these deliberations. Applicable Principles 23 It is agreed between the parties that the matter should be determined in accordance with the work value changes principle of the State Wage Case 2002 (2002) 114 IR 81. Principle 6 of Annexure "B" – Wage Fixing Principles provides: 6. Work Value Changes (a) Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification. In addition to meeting this test a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award structure but also against external classifications to which that structure is related. There must be no likelihood of wage leapfrogging arising out of changes in relative position. These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this principle. (b) In applying the Work Value Changes principle, the Commission will have regard to the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed. (c) Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification, or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole. (d) The time from which work value changes in an award should be measured is the date of operation of the second structural efficiency adjustment allowable under the State Wage Case 1989 . (e) Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this principle. (f) Where the tests specified in (a) are met, an assessment will have to be made as to how that alteration should be measured in money terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work. (g) The expression ' the conditions under which the work is performed' relates to the environment in which the work is done. (h) The Commission will guard against contrived classifications and over-classification of jobs. (i) Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other principle of these principles, will not be taken into account under this principle." Agreed Significant Changes in Work 24 The parties have agreed on certain significant changes in work since the 1995 restructure. These are confined to the Refractory Installation Assistant classifications of Level 3 and Level 4. The agreed changes are: Refractory Installation Assistant – Level 3 · draining blast furnace troughs; · condition monitoring; · reading drawings. Refractory Installation Assistant – Level 4 · management of trough covers; · producing reports to customers; · sign off process "unit fit for use". 25 Work associated with condition monitoring, written drawings, and sign off process "unit fit for use" apply across the Refractory Services Department. Work associated with draining blast furnace troughs and management of trough covers are limited to employees in the Ironmaking Section. Work associated with producing reports to customers applies mainly at the Ironmaking and Mills Section. 26 The Company relied upon the evidence of Mr Wright set out above detailing the nature of these changes in work, and to the relevant parts of the evidence of the AWU witnesses confirming the changed work. 27 The Company further submits that the "significant net addition to work requirements" test is satisfied in relation to these agreed changes in work. Other Non-Agreed Work Changes 28 The AWU alleged in Exhibit H certain other changes in work, which were not agreed to by the Company as constituting significant work changes since the 1995 restructure. Some but not all of these were the subject of evidence by the AWU's witnesses. 29 Set out below in tabular form for convenience, is the Company's analysis of the statements of evidence of the AWU witnesses, which depict whether the union's alleged work changes are encompassed within the 1995 restructure, or which otherwise comments upon the relevance, or lack of it as the Company would have it, of the work changes to the current work value assessment. 30 The incorporation into these reasons of this tabular form of analysis in particular, the commentary as to whether the changes alleged by the AWU relevantly reflect work value change, is not to be read as an analysis with which, in all respects, there is agreement between the parties. Rather, as I have said, it is a convenient reflection of their respective positions. STATEMENT OF EVIDENCE OF KIM MURPHY (Exhibit 1) Content of Statement1995 Restructure (see Position Descriptions contained in Exhibit G)Relevant to Current Work Value Assessment 1. I have been employed at BHP for 27 years and have worked with Refractory Services for that time. My current position is Level 4 RIA.–– 2. The duties and responsibilities I perform presently are: - Furnace inspections in regards to Refractory Integrity.RIA L4 – Duties · Determines more detailed scope of demolition within their area of expertise. · Is responsible for ensuring the quality and quantity of work performed on the job, by themselves and others.– - Assess repairs to be made, ie boilers, furnaces of mills around the plant.RIA L4 – Duties · Determines more detailed scope of demolition within their area of expertise. · Is responsible for ensuring the quality and quantity of work performed on the job, by themselves and others.– - Reports on installations that have been performed during shutdowns for other departments, records and data.–Agreed significant change in work – producing reports for customers (see paragraph 24 above and Exhibit H). - Attending pre and post shutdown meetings. Consulting in strategies, solutions and troubleshooting.L3 RIA – Relationships · Liaises with customer departments, supervisors and employees. RIA L4 – Internal Training · Problem solving and decision making. · Presentation skills.– - Supervise contractors.RIA L4 – Duties · Is responsible for ensuring the quality and quantity of work performed on the job, by themselves and others. · Arranges for outside services, and the transport and supply of materials.See comments of BHP Steel in Exhibit M, page 2 "Supervising of Contractors". - Heading job safety analysis meetings.L4 RIA – Basic function to supervise the activities of the RIA's – the JSA meetings are part of the plant job safety management system to help in ensuring the safety of employees. RIA L4 – Duties · Ensures OH&S and environmental standards are adhered to.– - Paying contracts by way of receipting invoices.–See comments of BHP Steel in Exhibit M, page 2 "Arranging payments of contracts". 3. I personally manage the Visa cards for one of the departments, and its entitlements with the responsibilities of accounting for all purchases made.–See evidence of Mr Murphy pp34-35 of transcript – similar to paying bills at home. - Ordering of department clothing issues previously done by a staff position.RIA L4 – Duties · Arranges for outside services, and the transport and supply of materials.– 4. Along with another RIA, we write and create standard operating procedures.RIA L3 – On the Job Training · Preparation of Standard Operating Procedures. – Duties · Assists with the preparation of Standard Operating Procedures.– 5. The above jobs were previously performed by staff supervisors but in recent times, after the last restructure, have been taken over by RIA's Level 4. No recognition has been given to the increased skills and responsibilities in monetary terms.–– STATEMENT OF EVIDENCE OF TERRY ORANGE (Exhibit 2) Content of Statement1995 Restructure (see Position Descriptions contained in Exhibit G)Relevant to Current Work Value Assessment 1. I have worked with BHP since 1976. I worked for 8 years as a Blast Furnace Operator until 1984, and for 10 years as a Blast Furnace Skuller. My current position is Level 4 RIA.–– 2. The Skullers were transferred over to the Refractories department in late 1993, still working under the Blast Furnace skill level system.–– 3. After the commissioning of No. 6 Blast Furnace the skullers were requested to take over the draining of the Blast Furnace troughs. These troughs contain 60 to 70 tonnes of liquid iron and slag.–– 4. The draining of troughs has always been a Blast furnace production operator's task. The 4 remaining skullers from the Blast Furnace were trained by the Blast Furnace staff and operators.–– 5. After we were trained and skilled to take over the trough drains we asked the company for payment for taking over this ex-production job. The company then made us a up to Level 4 from the current Level 3.–– 6. In 1995 the Refractories department went to a skill levels system. The skullers then moved into the refractories level system in 1997.–– 7. In the process of slotting the skullers into the refractories level system there was no provision for the hot metal handling work of draining troughs. I was placed into the position of Level 4, RIA, as of my position as a leading hand. The remaining skullers slowly left the casthouse floor and moved into other areas of the refractories department and went back to level 3 RIA. The crew was supplemented by men from the department and advertising within the works. It was my role to training the crew in the trough operation without extra payment for this hot metal work job.–Agreed significant change in work – draining blast furnace troughs (see paragraph 24 above and Exhibit H). 8. Other skills taken on after the restructure include the use of radio controlled equipment on the casthouse floors. This includes the overhead cranes and the machines to set-up the casthouse floor for normal operation, the use of the casthouse floor workstation to operate and control the casthouse dust extraction system. I can be called by Blast Furnace Shift Supervisor to make decisions on the state of the Blast Furnace troughs and decide what action to take.RIA L2 – Internal Training · Pendent crane driver certified. RIA L3 – Crane chaser certified. · The use of radio control is a means of operating equipment not a new skill. _ Agreed significant change in work – draining blast furnace troughs (see paragraph 24 above and Exhibit H). 9. With the introduction of Shotcrete a scope of knowledge was required. There was a requirement to understand the operation of these specialised concrete pumps, working with pumps, the hazards connected with the pump, and the method in which shotcrete refractory is applied to the trough. The crew were only given minimal instruction on the use of this equipment. The crew itself refined and modified this equipment to give the best possible results from the shotcrete equipment and increase the working life of the troughs. I have been trained in level 2 lockout to carry out my duties on the casthouse floor to comply with the new isolation regulations in BHP.Level 3 RIA – On the Job Training · Operation of pumps and injection equipment.See comments of BHP Steel in Exhibit M, page 2 "Shotcreting". Part of BHP Steel's OH&S Policy and safe work systems throughout Port Kembla Steelworks. See comments of BHP Steel in Exhibit M, page 1 "Signing of authority to work" and "Level 2 lockout". 10. I represent the department at the Blast Furnace program shutdown meeting to make decisions on behalf of the department.Level 3 RIA - Relationships · Liaises with customer departments supervision and employees. Level 4 RIA – Relationships · Other shift employees/ supervision in customer departments. · Customer department's supervision/ employees. · Service department's supervision/ employees. · Transport department's supervision/ employees'.Agreed significant change in work – draining blast furnace troughs (see paragraph 24 above and Exhibit H). 11. In the last three years the refractories department has lost at least 6 RIA's out of the department which in turn has left me with a much smaller crew to carry out the same duties.–– STATEMENT OF EVIDENCE OF SHANE BUCKMAN (Exhibit 3) Content of Statement1995 Restructure (see Position Descriptions contained in Exhibit G)Relevant to Current Work Value Assessment 1. I have been an employee and worked at BHP Refractory Services since 9 September 1996, and recently became workplace consultant and union delegate.–– 2. During this 6 year period I have witnessed and partaken in a large change in departmental duties and culture (Trade Assistants and Bricklayers) this being a change in percentage of installation practices, i.e. actual brickwork done by tradesmen to monolithics and castables performed by assistants.–– 3. I am presently a Refractories Assistant, Level 3, and have been for approximately 4 to 5 years, during which time I have gone from being an assistant to tradesman to a recognized refractory installer of numerous and various monolithic materials and methods, as well as extending job repertoire and responsibilities, ie taking part in SOP's, modifying techniques and equipment, accreditations in gas watching, standby person, dealing with hazardous materials, shotcreting as well as overseeing and consulting with contract fabricators and their duties. All this and more being part of the goodwill of employees and the respect they have for their jobs.RIA L3 - On the Job Requirements · Preparation of Standard Operating Procedures. – Duties · Assists with the preparation of Standard Operating Procedures. RIA L3 - On the Job Requirements · Preparation of Standard Operating Procedures.See comments of BHP Steel in Exhibit M: · Gas watching. · Hazardous and toxic material handling. · Shotcreting. · Supervising of contractors. 4. I say that the proposal by the Company in relation to the work place review has been incorrectly assessed and is open to bias due to a selection only system. I state that the proposal offered is unfair and a deliberate attempt by the Company to divide and segregate the workers of the Refractory department. –– 5. Furthermore, I see this attempt to only recognise the change of one specific area or crew to be quite insulting, as each crew has its own unique, extensive knowledge and skills that demand the same recognition.–– 6. A large reduction in employee numbers has also meant exposure to longer harder periods of work in very testing and demanding conditions, adding further stress to the individual and their health.–– 7. This change in Assistants roles has been quite meteoric and has been recognised by the Company in their last proposal by changing the title from Trade's Assistant to Refractory Installer. However, there is not monetary gain bar the absolute minimum on the Company's pay matrix that was originally offered.–– 8. On behalf of the members I represent as Delegate, we ask that the proposal be rejected and arbitrated.–– Consideration 31 The Company submits that the Commission should on balance, regard only the agreed changes referred to in paragraph 24 above as significant net additions for work value purposes. The various other work changes alleged by the AWU should not be considered as such having regard to the evidence generally and in particular to the analysis set out in paragraph 30 above. Other changes relied upon by the AWU are either encompassed within the 1995 restructure, or represent relatively minor evolutionary developments of duties, functions and responsibilities that form part of the 1995 restructure, or form part of plant-wide developments in OH&S policy and practices. To consider these changes in the context of these deliberations would be contrary to the Work Value Principle. On balance, I am inclined to agree and in so saying, I bear in mind and give due weight to the earnest assertions of the AWU in this regard. 32 The Company further submits that it is appropriate that the proposed additional Cast House Floor classifications be awarded by the Commission as part of the work value considerations. 33 Whilst all Level 3 and Level 4 Refractory Installation Assistants in the Ironmaking section can be required to assist in the Cast House Floor work in the blast furnaces from time to time, the principal work associated with draining blast furnace troughs and the management of trough covers is limited to employees trained in the requisite additional skills who perform the work on a routine basis. This group of employees is necessarily limited based on business needs and so as to maintain currency of skills. 34 The creation of the proposed new Cast House Floor classifications is appropriate having regard to the Work Value Principle. 35 The parties agree that it is appropriate that the classification of Refractory Installation Assistant be changed to Refractory Installer. This is consistent with the nature of the employees' work, ie performing refractory installations in their own right in addition to assisting Refractory Installation Bricklayers. 36 The Company relies upon the comparison that can be made between the Refractory Installation Assistant – Level 3 classification and the Slab Caster Operator 2 classification. The Company relies upon the decision of Hungerford J of 12 December 1995 in IRC 95/1918, which determined the appropriate rate of pay for the Slab Caster Operator 2 classification to be Level 10 on the divisional wages structure. In that case, Hungerford J rejected a claim by the AWU that the rate of pay be increased to Level 11 as a result of changes in work. These included developments in the application of refractories by Slab Caster Operator 2's to tundishes. 37 In relation to this comparison, the Company alludes to Mr Wright's unchallenged evidence and submits that the comparison supports the appropriateness of the rate of pay proposed for the classification of Refractory Installation Assistant – Level 3 increasing from Level 9 on the divisional wages structure to Level 10, in line with the Slab Caster Operator 2. 38 The Company further submits the appropriate rates of pay for the Refractory Installation Assistant classifications having regard to the evidence of changes in work, skill and responsibility should be as follows: Classification Level on Company's Divisional Wages Structure Refractory Installer Level 3 Level 10 (increased from Level 9) Refractory Installer Level 3 New classification at Level 11 – Cast House Floor Refractory Installer Level 4 Level 12 (increased from Level 11) Refractory Installer Level 4 New classification at Level 13 – Cast House Floor 39 The basis of the company's proposition in that regard may be summarised in the following way. There are some significant changes that apply across the Refractory Services Department to all Level 3's and Level 4's, eg condition monitoring, reading drawings and sign off process "unit fit for use". In addition, employees in the Ironmaking section have exposure to the cast house floor work at the Blast Furnaces from time to time (even if not on a routine basis). Accordingly, an increase is appropriate for all employees. 40 The nature of the changes in work, skill and responsibility performed in whole or part by all employees justifies an increase of one level for both Level 3's and 4's. The basic function of Level 3's (ie working without supervision, performs the full range of Refractory Installation Assistant duties) and Level 4's (ie performs the full range of Refractory Installation Assistant duties, and also supervises the activities of other Refractory Installation Assistants) has not changed (see existing position descriptions contained in Exhibit G). The changed work involves some additional skills, knowledge and responsibility which employees use when performing refractory installations. These are best described as evolutionary changes which extend some of the work changes introduced by the 1995 restructure having regard to continuous improvement in products and equipment, rather than involving fundamentally different work requirements eg condition monitoring, reading drawings, producing reports to customers and sign off process "unit fit for use". They involve only a relatively small proportion of an employee's working time, including those employees who assist in cast house floor work on a non-routine basis. 41 Some additional significant changes only apply to employees performing cast house floor work in the Blast Furnaces on a routine basis. There is a clear differential in the work value described for the generic Refractory Installation Assistant Level 3 and 4 classifications across the Department and the work value described for the Refractory Installation Assistants (Level 3 and 4) regularly working on the cast house floor. This differential is based on the additional knowledge, skills and accountabilities required and the responsibility for the draining of troughs, the management of trough covers, their associated duties and the integral nature of the operation within Blast Furnace (casting) operations including support to Blast Furnace operators. Accordingly, it is appropriate that employees performing this work on a routine basis receive additional remuneration. The employees performing this work on a regular basis are necessarily limited due to business needs and the need to maintain current skills etc. Whilst not all employees will routinely perform the work, those that do should be appropriately remunerated by a higher wage rate. 42 There presently exists a relativity between the Refractory Installation Assistant Level 3 and Level 4 classifications of two levels on the divisional wages structure, ie presently Level 9 and Level 11 respectively. The Company proposes that this relativity be maintained, ie at Level 10 and Level 12 respectively. In addition the higher Level 3 Cast House Floor classification would fall between Level 3 and Level 4 (ie Level 11 on the divisional wages structure), reflecting a work value greater than Level 3 but less than Level 4. Further the higher Level 4 Cast House Floor classification would be one level above the Level 4 rate of pay (ie Level 13 on the divisional wages structure). 43 The quantum of increases in award rates of pay (per week) proposed by the Company is documented in Annexure A to Mr Wright's witness statement, ie Refractory Installer Level 3 ($13.50), Refractory Installer Level 3 – Cast House Floor ($32.30), Refractory Installer Level 4 ($19.30) and Refractory Installer Level 4 – Cast House Floor ($35.70). I note again the agreement between the parties that employees are also entitled to the relevant over award rates applicable to each level of the divisional wages structure. 44 I am satisfied that the need to maintain relativities on the divisional wages structure (ie the relevant internal award structure), and to avoid the likelihood of wage leap-frogging arising out of changes in a relative position has been met by the Company proposal and further, that comparison of Refractory Installation Assistant – Level 3 classification with Slab Caster Operator 2 classification which has previously been arbitrated by the Commission, is appropriate in all the circumstances. 45 The ability of Refractory Installation Assistants to progress through the classification structure in either the Steelmaking or Ironmaking and Mills sections to Level 4, and to receive wage increases accordingly is also noted. 46 I am furthermore mindful in concluding as I have, of the wage increases afforded to all BHP Steel employees via successive Steel Industry Agreements and the recent Enterprise Agreement for ongoing commitment to improvements in productivity and efficiency. These increases are documented in Exhibit C. 47 On balance, I am persuaded that the increased rates of pay and alterations to the classification structure proposed by the Company represent a just and equitable acknowledgment of work value change and an appropriate measure of that change in money terms. 48 I am further persuaded, given the protracted course of the proceedings and the commendable, albeit ultimately unsuccessful efforts of the parties to reach a consent position on all matters in issue, that the interests of justice and equity would again be well served by an exercise of the Commission's discretion as to retrospectivity. I note in that regard the company's proper acknowledgment, when taken by the Commission to the issue in the course of the debate, that operative dates are governed by s 15 of the Act, notwithstanding its primary submission that rates of pay ought be prospectively increased. 49 Accordingly, I order pursuant to s 17 of the Industrial Relations Act 1996 that the BHP Steel (AIS) Pty Ltd - Port Kembla Steelworks Employees Award 2000 published 23 March 2001 (323 IG 245) as varied, be further varied from the date of filing of the company's initial application (viz 29 May 2002) in the terms prescribed by the company's amended application save as to operative date. 50 These proceedings are thus concluded. 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.