Industrial Relations Commission of New South Wales CITATION : AWU, NSW v BHP Steel [2004] NSWIRComm 218 PARTIES : Australian Workers' Union, New South Wales Branch BHP Steel (now known as BlueScope Steel) FILE NUMBER: 3616 of 2003 CORAM: Grayson DP CATCHWORDS : Industrial dispute, new safety gloves issued by employer, new gloves cut-resistant but prone to become slippery when moist, employees sought return of old gloves pending resolution of slipperiness concerns, old gloves provide dirt barrier only and not cut-resistance, employer declined employee request, alternative gloves and systems of work trialled and/or discussed, employer requested employee participate in Job Safety Analysis (JSA) process, JSA part of overall safety management system within steelworks, process is inclusive and consultative, employees perception of process outcome as being predetermined had no basis in objective fact, union official attended workplace, acrimonious and abusive conduct, refusal by employees to participate in JSA process, employees stood down for refusal to participate in JSA, union application for reimbursement of lost wages declined LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 2000 HEARING DATES: 05/06/2004; 05/07/2004; 06/18/2004; 07/20/2004 DATE OF JUDGMENT: 08/03/2004 AUSTRALIAN WORKERS' UNION Mr A Gillespie, Port Kembla Branch Secretary LEGAL REPRESENTATIVES: BLUESCOPE STEEL Limited Ms L Dean, solicitor Blake Dawson Waldron JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Coram: Grayson DP Date: 3 August 2004 Matter No IRC 3616 of 2003 AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES BRANCH AND BHP STEEL Notification under section 130 by the Australian Workers' Union, New South Wales Branch of a dispute with BHP Steel (now named BlueScope Steel) re: safety - use of gloves in the painting and finishing department/pack line DECISION [2004] NSWIRComm 218 1 In this matter, the Commission is asked by the Australian Workers' Union (AWU) for whom Port Kembla Branch Secretary, Mr. A. Gillespie appeared, to order payment of 10 hours15 minutes wages lost to each of six night shift workers on the coil pack line of the Painting and Finishing Department (PFD) at the Port Kembla Steelworks. 2 The loss of wages occurred as a result of a decision by BlueScope Steel to stand workers down for the remainder of a 12-hour night shift for refusing a direction to participate in a Joint Safety Analysis (JSA). 3 The JSA forms part of a safety management system within the steelworks and is described in the information literature distributed throughout the steelworks in this way: - The JSA is used to help the team working on a job to identify hazards, and put controls in place, to protect themselves and others on the job or nearby. 4 It was contended by BlueScope for whom Ms L. Dean, solicitor, appeared, that the direction was lawful and reasonable and that the refusal by employees in question warranted the decision to stand them down without pay for the remainder of the shift. I am inclined, after due consideration and for the following reasons, to agree with that contention. 5 The matter commenced with the lodgement of a dispute notification by the AWU and proceeded thereafter by way of compulsory conference during which conciliation was attempted without success. The matter was then listed for hearing with directions for filing and service of evidence given in the usual way. A series of postponements then occurred initially due to non - compliance by the AWU with directions earlier given and more recently, with the intervention of Full Bench proceedings culminating in the making of major enterprise awards covering the Port Kembla steelworks (Matter No. IRC 400, 2167 and 2543 of 2004). Evidence was ultimately taken in May 2004 and the Commission's decision was reserved following receipt of final written submissions on 20 July 2004. 6 In the course of the hearing, evidence was taken from the following witnesses: - For the AWU: - Mr Paul Taylor, Coil Pack Line Operator Mr Mark Dean, AWU delegate For BlueScope: - Mr Peter Jones, Day Shift Supervisor - Painting and Finishing Department. Mr Grant Costello, Night Shift Supervisor - Painting and Finishing Department. Mr Sam Gerovasilis, Manager - Painting and Finishing Department Mr John Burrows, Safety Co-ordinator - Painting and Finishing Department. 7 By way of background, the dispute had its genesis in a decision by BlueScope to replace a vinyl safety glove with a new Kevlar cut-resistant safety glove. The vinyl glove which had been in use for a number of years, acted only as a dirt barrier and did not provide adequate protection against the risk of injury by laceration, a risk which is not disputed and which was readily apparent to the Commission during an inspection of the workplace conducted in the course of the proceedings. 8 The evidence, in particular the evidence of Safety Co-ordinator Burrows on behalf of the employer, indicated the extent of the consultative process and trialling which preceded the issue of the new cut resistant glove across the whole of the Painting and Finishing Department (PFD) of which the coil pack line is one section or part. 9 The process included but was not limited to a site wide review by the Springhill works OH&S Committee which recommended the use of the new glove. In fairness to the coil pack line employees, however, it may be observed at this point, as the evidence suggests, that not every individual employee was consulted personally and/or made aware prior to the issue of the new glove, of the decision to replace the old glove. 10 As much may be accepted for the purpose of this decision without in my opinion, derogating from the employer's contention as to the adequacy of the processes giving rise to the issue of the new glove to the pack line employees. 11 Further and again in fairness to the pack line employees, it is not disputed that the issue of cut-resistant gloves was and remains an appropriate occupational health and safety initiative. Indeed, Kevlar cut-resistant gloves were ultimately accepted by the AWU and its members a day or so after the dispute began and have remained in use since. 12 The difficulty was that the cut-resistant gloves initially issued to pack line employees on the day in question were prone to become slippery when moist. The evidence indicated that such difficulties were experienced on the pack line where coolant or lubricating oil is applied to the metal components being handled by employees. This occurs at certain parts of the pack line namely stations 7 and 9. 13 The problem was raised by employees and was the subject of ongoing discussion throughout the day shift such discussion initially involving shift supervisor Jones and then at a later stage, safety co-ordinator Burrows and department manager Gerovasilis and it is clear enough from the evidence that the discussions fell short of achieving a resolution of the matter by the time the day shift finished. The matter then spilled over to involve the incoming night shift crew with employees continuing to press on the one hand, for a return of the old vinyl gloves until such time as more satisfactory cut-resistant gloves could be found and management continuing to insist on the other hand, that employees could not be permitted to go back on the line without adequate cut protection. 14 Various alternatives such as wearing the cut-resistant glove with the old vinyl glove over the top and wearing a different type of cut resistant glove sourced at short notice from another part of the works (the Coupled Pickle Cold Mill) were trialled. 15 In the meantime, AWU Port Kembla Branch Secretary Gillespie was called in and arrived at the workplace at or about the time the different gloves were being trialled at stations 7 and 9 on the pack line. The trial was part of the Job Safety Analysis (JSA) process to which earlier reference has been made and in which pack line employees had been asked to participate. The evidence suggests that prior to Mr Gillespie's arrival, employees were for a time participating albeit reluctantly given what they regarded as a foregone conclusion in terms of the outcome of the JSA process. 16 Towards the end of the day shift, pack line employees had retired to the crib room and were refusing to participate, or further participate, as the case may be, in the JSA process. It is appropriate to observe, at this point, that there was a contest in the evidence and therefore a certain obscurity as to whether the PFD manager, Mr Gerovasilis in response to a question from pack line operator Mr Taylor, indicated that the outcome of the JSA process was a foregone conclusion in that no matter what the outcome of the JSA process might be, employees on the pack line would still be required to wear the newly issued gloves. 17 The AWU evidence suggests a clear and earnestly held perception in the minds of workers that the JSA process would not resolve their concerns and that they would be no further advanced in their quest for more effective safety gloves by participating in the process. 18 Against that, the BlueScope evidence suggests that such a perception in the minds of workers had little or no basis in fact and that among other things, Mr Gerovasilis answered a hypothetical question he was asked by Mr Taylor by dealing hypothetically with that question. At no time did he convey or intend to convey an impression that the outcome of the JSA process was a foregone conclusion or that the company approached the process in other than an objective and open-minded manner. 19 Evidence given by Mr Gerovasilis and supported by other BlueScope witnesses describes the sequence of events leading to the stand-downs in this way: - I went down to the crib room and told the crew that they could not continue using the blue vinyl gloves because they were not safe. I discussed the Painting and Finishing Department's injury rates resulting from cuts, highlighting the dangers of using the wrong gloves and explained that this was why we had to make the change. I then asked the crew to please participate in the JSA as a means of finding the best outcome for the people from a safety perspective. An operator (to the best of my recollection, it was Paul Taylor) then asked me a hypothetical question to the effect of: What if the JSA shows that the green glove is the only glove we can use? I responded to the effect of: Well hypothetically then we would need to use the glove, and the JSA process would then solve any other related safety issues like 'slipperyness'. I went on to say that possible outcomes that we could explore could include changing the schedule in the short term to eliminate the need to use the cut-free glove, or look at using teamwork to solve the problem by perhaps getting two people to lift the steel components differently, or look at maybe using a combination of gloves where we would wear the cut-free glove under the preferred blue glove. I went on to say that the Company's safety requirements were that employees will use a cut-free glove when handling steel components and it was not necessarily just wanting to use the cut-free green glove. It just happens that the green cut-free glove is one of the preferred gloves. Around this time I asked John Burrows if there were any other cut-free gloves on site that could be trialled. John said that the CPCM were using cut-resistant gloves and went to get some for us to trial. When John came back he had about 6 different pairs of Kevlar cut-free gloves and the guys agreed to come out to the line at stations 7 and 9 and trial the gloves. We then proceeded out onto the line and the crew commenced trialling the various cut-free gloves so we could assess the 'slipperyness' factor as part of the JSA. About this time, Andy Gillespie of the AWU arrived and stopped the trial taking place. Andy Gillespie told me that I was "a pig headed stubborn manager", that I "had poor management skills", I was "fucking stupid" and to "fuck off". This was now shift change and a new crew came onto the line. I attempted many times to calm Andy down, and help him understand that the Company policy is that employees need to wear cut-free gloves when handling steel components to prevent cuts. I requested the new crew to participate in the JSA to resolve the issue and Andy Gillespie said words to the effect of: The JSA is not worth anything. and requested time to talk to the crew. I attempted to follow Andy Gillespie and the crew into the crib room to discuss the glove issue. Andy told me to leave so he could have a meeting with his guys and said words to the effect of: You're not invited so fuck off. When I refused to leave and challenged Andy's swearing at me, Andy again told me to "fuck off" and led the crew outside to hold a meeting. At approximately 7:00 pm, Andy Gillespie returned and told me: We've had a meeting and they will not participate in the JSA as they believe you will manipulate it and the only outcome will be that they have to wear the gloves. I replied that we have not even started the JSA process with the this crew and anything could come out of it, including changing the schedule so as not to pack export coils and eliminating the use of stations 7 and 9, or changing the practice so as to have 2 guys handle the pie crust and so slowing down the line to accommodate this or even use a combination of gloves. I explained that we needed to have the JSA to work through this process and these other options. Andy then said words to the effect of: I will instruct the members not to participate in a JSA. Approximately half an hour later, Andy returned and said words to the effect of: I have given the crew advice not to do a JSA. I accuse you of manipulating the JSA. At approximately 8:15 pm I went down to the crib room to request the crew to come to the conference room and do the JSA. I explained the JSA will explore all possible ways to solve people's concerns. The crew were told that they were expected in the conference room. I then left. By approximately 8:35 pm no one had turned up at the conference room so I returned to the crib room. Grant Costello, the night shift supervisor, was also with me and he handed around copies of page 16 of BHP's OH&S Management system (Standard 5 Hazard and Risk Management). Grant then commenced to ask each person in the group: Are you going to participate in the JSA? The first person answered "no" and was told words to the effect of: You are stood down without pay for refusal to participate in a JSA. 20 As the following extract from the transcript reveals, when Mr Gerovasilis was taken in evidence to the JSA process contemplated by the Company he explained it this way: Q. Can I show you a document, which is exhibit 1, Mr Gerovasilis can you identify that as the job safety analysis sheet that is used in the Painting and Finishing Department, used in your area? A. Yes, I can. Q. And in particular the last page, if you would look at the third page of that document, could you just explain in brief terms what the three steps are in the JSA process? A. Okay. Basically if you have got a situation which is non standard or we haven't got a standard operating procedure, the expectations that exist across all the operating teams is that we get the appropriate work team together, and that could involve operations people, maintenance people and engineering personnel as well as technical. What they will do then is breakdown the specific job into the key steps of that job. Whether it is an operational task or whether it is a maintenance task. Once they have broken down the job into the core steps the group then spends some time in trying to assess the potential hazards of each one of those steps. Once we have identified all the hazards in those steps the main purpose then is to work as a group to try and figure out how to minimise the hazard or the risk that has been identified. There is a number of ways that we can do that by changing work, eliminating work, introducing PPE equipment, or whatever. Once we have identified all the hazards that we can put in place if people are then comfortable we can usually move on from there, but if there is a serious or a complex initiative or an issue we can then go and do a more formal risk assessment of each one of those, particular final hazard controls. Q. Right. Now can we turn to, just for a moment, the 1 July, and the particular incident relating to the use of the green Kevlar gloves on stations 7 and 9? A. Yes. Q. How would the JSA process have worked had employees been prepared, or how could it have worked had employees been prepared to participate in it? A. All right. A way that it would have been applied would have been like this, the Company had a standard where we had to use a cut free glove. Let us just say that the best glove we had on the day was the green glove, and we said that we wanted it applied at all work stations on the Pack Line. Then let us say that the operators, given their experience, identified that on stations 7 and 9 there is a concern about the green glove being slippery. The JSA process then would have been "Well let us assess the use of the green glove at stations 7 and 9", and we would have gone through, based on the schedule that night, we would have gone through "Well what are all the basic job steps that the operator needs to perform?" and we might have, I am not an operator or an experienced one, but we might have said "Picking up an oily bit of outside steel protection is hard to hold or slippery" or whatever. Once we identified all those steps we then would have gone over to the potential hazards, and the hazard may have been that if it is slippery it would have dropped onto the floor and we might have damaged the component, which is a cost issue. Or the component was slippery and I dropped it and it maybe bounced and cut the operator on the shin, which is a serious safety concern. Or, it slipped and I cut my forearm, so there would have been say a number of hazards identified like that. Once we identified all those hazards we then would have gone to the next step and said, "Well what controls can we put in place?" There is an array of things that would have applied there, for example if we found that the slipperiness of the steel component with the green glove was a very serious concern, we might have decided to take the export product off the Pack Line that night. So in other words eliminate the need to handle that component. So you eliminate the risk if you can. Q. So that is changing the schedule of the production? A. Yes, yes. Q. Is that a difficult task? A. No, no. The supervisor on every shift has authority to change the schedule and it is a simple phone call to Logistics to enact that. Let us say that is one possible course of action. In working with the operational people let us say that one of the hazards was that we would have dropped the component and damaged it. What we might have been able to do is say "Well can the work team perhaps lift the component differently rather than holding it like this, that they perhaps cradle it so that you take the slipperiness factor out and you don't drop the component". It would have meant that the crew would have had to have worked together to lift the component, but they work in a rotation model anyway so that is another possible outcome. Another outcome may have been that the oiliness of the steel component, we might have talked to the engineers and said "Well for a short period of time could we perhaps throttle back the lubricant on that product so that we affect the oiliness of the product. Another example could have been that we might have been able to turn the oil off altogether. Another example could have been that there is other cut free gloves on the site and I do know that one of the down sides of those is that they might have allowed some oil ingress, but we might have been able to use a combination of gloves to minimise the hazard or risk to people and plant. That is an example of how that process would have worked had it been allowed to progress. 21 It is important to note here that Mr Gillespie does not deny using the intemperate words attributed to him and it is not disputed that the words were used in close proximity to and within the direct hearing of the AWU members he had come to the steelworks to represent that night. 22 Whether Mr Gillespie's acrimonious and abusive conduct towards Mr Gerovasilis was the sole or ultimate cause of the refusal by pack line employees to participate in the JSA process is to a large extent, a matter for conjecture because none of the six night shift employees who were stood down were called to give evidence. Nevertheless, I am bound to observe that such conduct by a union official particularly a union official of the experience and seniority of Mr Gillespie must be regarded by any objective test, as anachronistic and out of touch with contemporary standards of industrial relations practice. 23 On the evidence as it stands, however, each of the six employees on the night crew were invited to attend the conference room and participate in the JSA process and each was aware of the consequence of refusal. It may well be although again it is a matter for conjecture, that a more moderate approach by Mr Gillespie that night would have assisted in resolving rather than intensifying the differences between the employees and their employer but be that as it may, it is appropriate to observe that employees in their own right need to be acutely aware of the provisions of section 20 (2) of the Occupational Health and Safety Act 2000 which are as follows: 20. Duties of Employees (1) (2) An employee must, while at work, co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person. 24 Clearly by its terms the above provisions of the OH&S Act 2000 are designed to compliment the employers general duty to ensure the health, safety and welfare at work of employees (section 8) by requiring employees to co-operate with their employer's OH&S initiatives and there is no reason to think that employees who fail to observe their obligations in that regard may not be vulnerable to the punitive sanctions of the OH&S Act in appropriate cases. 25 Having said that, it was and will continue to be entirely appropriate for employees to raise legitimate concerns about safety but having done so in the circumstances of this dispute, it makes no sense to refuse to participate in a consultative process then initiated by the employer which I am comfortably satisfied, was designed to explore all possible means of resolving those concerns. 26 I do not accept and do not see the relevance of Mr Gillespie's submission that the employer's action in seeking the participation of employees in the JSA process, was in some way an attempt to turn a safety issue into an industrial issue. Plainly, there may be elements of both as there were in this case but the simple fact is that the employer's action in seeking the participation of the employees in the JSA process was lawful and reasonable and should not have been resisted in my opinion. 27 On the positive side, and as earlier observed a style of Kevlar glove with a non-slip palmar surface was obtained, provided to and accepted by employees on the shift commencing at 6:30 am the following day thus resolving the dispute except for the issue of lost wages presently the subject of these proceedings. 28 I am of the view after careful consideration of the competing arguments, that it would be inappropriate to grant the relief sought by the AWU. 29 The AWU application is dismissed accordingly. 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.