Industrial Relations Commission of New South Wales CITATION: BlueScope Steel (AIS) Pty Limited v. Australian Workers' Union [2005] NSWIRComm 1031 APPLICANT BlueScope Steel (AIS) Pty Limited PARTIES: RESPONDENT Australian Workers' Union FILE NUMBER(S): 2055 and 2175 of 2004 CORAM: Connor C steelworks - blast furnace operations - reduction in manning - heat stress - fatigue - medical assessments of employees - industrial action - dispute orders - new technology - skilled employees - trial of proposals - monitoring committee - onus of proof in manning disputes - occupational health and safety - WorkCover inspections - compliance with improvement notices - award variation - reopening of award within nominal term - industrial calendar CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000 Re Cram, ex parte New South Wales Colliery Proprietors Asociation Limited (1987) 61 ALJR 401 Ermani Constructions Case (1988) 23 IR 346 Homebush Abattoir Case (1965) at 149 CASES CITED: State Wage Case (2004) 132 IR 190 Soaking Pits Dispute Case (1955) AR 663 Soap and Candle Makers Case (1946) AR 264 HEARING DATES: 03/07/2005; 03/08/2005; 03/09/2005 DATE OF JUDGMENT: 04/08/2005 APPLICANT Ken Brotherson Blake Dawson Waldron LEGAL REPRESENTATIVES: RESPONDENT Andrew Gorman Australian Workers' Union DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 8 April, 2005 Matter Nos IRC 2055 and 2175 of 2004 BlueScope Steel (AIS) Pty Limited and the Australian Workers' Union, New South Wales Dispute notifications under S.130 of the Industrial Relations Act, 1996 re manning levels in the blast furnaces of the Port Kembla steelworks DECISION [2005] NSWIRComm 1031 Introduction 1 BlueScope Steel (AIS) Pty Limited has proposed the reduction of shift operator positions in the blast furnaces of the Port Kembla steelworks and two separate notifications under S.130 of the 1996 Industrial Relations Act have come before me in that connection, viz: (i) a notification lodged by the Australian Workers' Union on behalf of the operators who are opposed to the reduction in manning levels; and (ii) a notification lodged for and on behalf of BlueScope Steel concerned over industrial action by shift operators over the issue of manning levels. 2 The blast furnaces are, of course, central to the steelmaking operations of BlueScope Steel. There are two blast furnaces at the steelworks - No.5, (commissioned in 1974 and relined in 1991) and No.6 (commissioned in 1996) - producing approximately five million tonnes of molten iron each year. They are refractory lined and cooled vessels in which iron ore, coke, limestone and sinter are smelted. Metallic iron is extracted from iron ore by a process known as reduction. Air is preheated in stoves to about 1,200C and blown into the furnace through tuyeres which are spaced around the lower section of the furnace. The coke is ignited in that manner, producing carbon monoxide which creates the chemical reaction required to reduce the iron oxide in the ore. As gases pass upwards through the layers in the burden column, and the blast furnace temperature increases to from around 1,200C to 1,500C, they react with the adjoining ores to reduce the oxides to form molten iron and slag in a process which takes approximately eight hours. 3 Molten iron and slag is extracted from the furnaces via a taphole located at the bottom of each furnace. When the molten iron exits the furnace its temperature is approximately 1,500C. The molten iron and slag extracted from the taphole travel along a refractory lined and covered trough. Occasional blockages in the troughs are cleared by timbering, ie jamming a lengthy sapling, kept slightly moist, into the trough to free the blockage. The molten iron separates naturally from the slag - the molten iron falls to the bottom of the troughs and the slag floats on top - and proceeds to a separate runner by means of a skimmer. The molten iron is then poured into torpedo ladles and the slag proceeds to the slag pits or to the granulator. That process takes place on the casthouse floor where the majority of the work of the operators occurs. Both blast furnaces are monitored from a control room and during each shift operations are directed from there. 4 There has been 96 operators (AWU members), 24 shift trades personnel and 31 staff members engaged by BlueScope Steel in its blast furnace operations. The workforce is split equally between the two furnaces. Each furnace has 45 operators and 12 shift trades personnel. The blast furnaces have operated in the past with five crews of nine operators, two shift trades personnel and three staff members on a continuous 12 hour rotating shift basis. The employees are paid an annualised salary, including a component representing overtime (six hours each week) to cover occasions when operators rostered off duty may be called in to meet requirements. In practice, each crew has a standby roster but I understand the incidents of overtime for the blast furnace is not great. Each operator is on standby every nine rostered days - which changes to eight days under the BlueScope Steel proposal. 5 Operators are either assigned by a roster prepared by the crews to either casting duties or inspection. Two operators have in the past been assigned to inspection duties on each shift and may perform other additional duties dictated from the control room to meet blast furnace requirements. Casting involves a range of activities. The main activities are: (i) pre-cast checks to ensure that plant is armed and operational, sufficient stocks of consumables are available and communications are ready; (ii) drilling-out: drilling a hole into the side of the furnace to tap the molten iron; and (iii) monitoring the casting as it feeds into torpedo ladles. There are also general cleaning duties on the casthouse floor. There are three casthouse floors at each blast furnace which operate in rotation. BlueScope Steel seeks to have two casthouse floors in service at all times. 6 The nine operators in each crew comprise eight operators and one relief employee to cover absences for annual leave. The manning levels - nine operators - for the blast furnaces has been stable since 1996 when an agreement was reached between steelworks management and the AWU over the general operations of the blast furnaces - presumably to coincide with the commissioning of No.6 blast furnace. The operators work in teams and the rosters are ordinarily worked out in those teams to meet particular work requirements. The agreement reached between the parties at that time was codified in Clause 46, Blast Furnace Team Work Redesign Agreement, of the BlueScope Steel (AIS) - Port Kembla Steelworks Employees Award which sets out the team structure [Clause 46.5], viz: "The structure for the shift teams is as follows: One operations engineer, one process controller, one systems controller, one electrical tradesperson, one mechanical tradesperson, nine process operators (including one annual leave relief." 7 BlueScope Steel proposes the reduction of one operator position per shift, ie eight operators, including the annual leave relief, in place of the nine operators at present. To achieve that it is necessary to vary Clause 46. Mr Brotherson proposes to leave the appropriate manning levels for the blast furnace operators open-ended, ie to replace the existing provision for nine operators per shift with a provision that sets manning levels at "...an appropriate number of process workers...". That would mean that any future variation to the manning levels for the blast furnaces would follow the standard consultation provisions applying generally throughout the Port Kembla steelworks. Those consultative provisions flow from Clause 36, Procedure for Resolving Claims, Issues and Disputes, of the BlueScope Steel Award, ie manning disputes would be resolved by consultation during which time the status quo would be preserved, subject to certain conditions [Clause 36(4)]. The AWU is opposed to the reductions of the existing manning levels for the blast furnace operations. The History of the Proceedings 8 The S.130 notification by the AWU was allocated to me and I set it down for a conference on Monday, 19 April, 2004 and Tuesday, 11 May, 2004 (in the Commission's premises at 90 Crown Street, Wollongong). The S.130 notification by BlueScope Steel was allocated initially to Grayson DP but was subsequently re-allocated to me to be dealt with at the same time as the S.130 notification by the AWU. Further mentions of both matters occurred on Monday, 24 May, 2004 (in the Albion Park Court House) and Monday, 7 June, 2004 and Tuesday, 13 July, 2004 (in Wollongong). Notwithstanding that the existing manning levels of nine operators per shift was an existing State award provision and thereby strictly binding on the parties, I recommended a trial of the current BlueScope Steel proposal for eight operators and, to assist in that trial, I also recommended that a monitoring committee comprising representatives of BlueScope Steel management and the employees be set up to oversight it. 9 At that time I adjourned the proceedings for a mention on Tuesday, 5 October, 2004 (in Wollongong). However, on Monday, 26 July, 2004 the AWU sought that I re-list the matters urgently. I reconvened the proceedings on Thursday, 29 July, 2004 (in Sydney). Mr Gorman, who has represented the AWU and the shift operators in the blast furnace, has consistently indicated his support for the trial but the operators held some concerns over occupational health and safety issues. Indeed, Mr Ian Lancaster, a WorkCover inspector, had raised a number of issues relevant to heat stress for the consideration of BlueScope Steel management and there had been a response to those issues. Mr Lancaster had also spoken to me privately on Monday, 2 August, 2004 to confirm that his interest did not touch on the question of manning at all. He saw no problems with the trial going ahead. In fact, he welcomed it as a means of exploring the safety issues which represented his area of interest. 10 But there were further problems in the trial going ahead. An e-mail dated Wednesday, 14 July, 2004 authorised by the AWU indicated that a motion has been passed unanimously by the shift operators that they "...will not be involved in a manning reduction trial...". That e-mail indicated further that my recommendation for the trial to commence: "...is just that, a recommendation. It is not a binding decision of the operators. To-day we informed the company that we will not be participating in the proposed manning trial..." I was disappointed with that approach. My recommendation that the employees take part in the trial and that it be monitored by them through the monitoring committee was for their benefit, aimed at giving them a level of input into the manning proposals that BlueScope Steel management was advancing. The concern of the employees on safety grounds, which I understood to be at the heart of their objection to the manning proposal, was being effectively addressed through the involvement of Mr Lancaster. 11 In fact, at the request of BlueScope Steel I reconvened the proceedings on Tuesday, 3 August, 2004 (in Sydney) to be informed that the employees proposed to cease work. Mr Gorman was not available but I arranged a teleconference to contact him. Mr Dearden, who appeared in the proceedings for BlueScope Steel at that time, submitted that I should make dispute orders under S.137(1)(a) restraining further industrial action. Because Mr Gorman was not able to give any undertaking that a strike would not occur, I found it necessary to issue the certificate of attempted conciliation required by S.135, lodge it in the prescribed manner and proceed into arbitration, issuing dispute orders sought by Mr Dearden which were to remain in force until Wednesday, 13 October, 2004. (My original orders were in error in that respect, recording the expiry date as Wednesday, 10 October, 2004, which was, in fact, a Sunday and I rectified that error with a supplementary decision.) 12 In my decision of Tuesday, 3 August, 2004 I indicated (at pp.3 and 4) that: "...in arbitrated proceedings I cannot force the employees to take part in a monitoring committee to oversight the trial but, in my opinion, it is clearly in their interests to be involved in the process in that manner. I would also expect that the parties would liaise with Mr Lancaster. It, of course, goes without saying that there should be continuous operations for the blast furnace which are such an integral part of the steelworks operations that any problems in production in that area must have a significant impact across the whole steelworks..." Ultimately, the trial did, in fact, go ahead without any further industrial action and the monitoring committee met regularly and I understood was achieving the purpose for which I intended it. 13 The employees nevertheless remained opposed to the manning levels advanced by BlueScope Steel and, consequently, the issue in dispute required arbitration. I received a request from Mr Dearden that I re-list the matters for programming. I set them down for mention for that purpose on Tuesday, 21 September, 2004 (in Sydney), but for the convenience of the parties, I adjourned the matters for a further conference on Tuesday, 28 September, 2004 (in Wollongong). I had allocated three days for the hearing of these matters on Monday, 7 March, 2005, Tuesday, 8 March, 2005 and Wednesday, 9 March, 2005. But until the matter was resolved in arbitration, I had recommended in the proceedings on Tuesday, 28 September, 2004 the extension of the trial. I had been influenced in that decision by my understanding that Mr Lancaster was content that the trial continue during the hotter months, ie up to February, 2005, so that the heat stress assessment during that period may be taken into account. 14 However, on Thursday, 7 October, 2004 the shift operators met and carried the following resolution: "…That the employees cannot accept Commissioner Connor's recommendation that the manning trial is to continue. Therefore...at the end of the order we will be demanding the ten employees return to shift. If this does not happen, further action will be taken..." Also a petition by the employees addressed to me expressed concern over safety issues with the new manning. 15 To that extent, whilst I am concerned if there are any unresolved safety issues, I was still persuaded that the trial should continue and I made a direction to that effect pursuant to S.136(1)(a) in proceedings on Friday, 8 October, 2004 (in Sydney). I also extended my existing dispute order under S.137(1)(a) to Monday, 8 November, 2004 when the matters resumed again before me. However, I directed the parties to raise with Mr Lancester both the questions of safety in general, and heat stress and manning in particular. I was anxious to ensure that BlueScope Steel did not move ahead if WorkCover had indicated any concern over the matters that arose in the trial. 16 I subsequently received confirmation of the position taken by WorkCover in a memorandum dated Wednesday, 10 November, 2004 from Mr Brett Jurmann, a WorkCover inspector (who had obviously taken over from Mr Lancaster). Mr Jurmann's concern centred on consultation arrangements in place to address any occupational health and safety concerns. He referred to S.15(f) of the 2000 Occupational Health and Safety Act which requires consultation: "...when decisions are made about procedures for consultation under this Division..." Mr Jurmann reported in his memorandum that: "…an undertaking was given by me to provide for more thorough scrutiny of the consultation that has occurred to date. BlueScope asked for four weeks to respond. I replied that two weeks should be adequate..." Representatives of the blast furnace employees who had met Mr Jurmann conceded that a form of consultation had taken place but there had not been consultation about who was to represent them, what form of consultation would be most effective, how they would be involved in the risk assessment process and feedback on their concerns of risks posed by manning reduction. It was claimed to Mr Jurmann that of the sixty tasks undertaken by the operators only six had risk assessments made. 17 And Mr Jurmann identified several tasks for BlueScope Steel to establish compliance with the consultation code of practice which Mr Jurmann outlined in a separate e-mail to BlueScope Steel. Essentially, as I see them, those tasks may be summarised as identifying (i) where any alterations to manning levels may have occupational health and safety implications; (ii) the most effective method to ensure the active involvement with the employees (and the AWU representing them) in the processes put in place; and (iii) a mechanism put in place to evaluate the consultation arrangements. Mr Jurmann insisted on a record to be kept of the consultations. He also proposes those persons involved in the process have proper training to ensure effective representation of the workgroups. He wished to ensure that arrangements were in place for the referral of any occupational health and safety matters to the occupational health and safety committee structure for its attention. 18 Mr Jurmann concluded his e-mail that: "...it is my opinion that if BlueScope Steel can provide satisfactory responses to those questions posed by me that they will have met their consultation obligations under the Occupational Health and Safety Act and the supporting code of practice..." As I see it, the issues he raises are all inter-related - and, in my opinion, should all have been effectively addressed through the monitoring committee that I have recommended and which had been in operation. However, on Thursday, 23 December, 2004 I reconvened the proceedings for what I intended to be an interim examination of the issue and whether the trial should continue until the hearing on Monday, 7 March, 2005, Tuesday, 8 March, 2005 and Wednesday, 9 March, 2005. 19 Events overtook my intentions in that respect, however. The interim hearing on Thursday, 23 December, 2004 was abandoned. On Wednesday, 22 December, 2004 Mr Jurmann placed an improvement notice on BlueScope Steel, expressing the opinion that it was contravening S.8 of the Occupational Health and Safety Act and requiring that situation to be remedied before 4.00pm on Monday, 31 January, 2005. (The improvement notice indicates Friday, 12 November, 2004 but that is obviously an error.) The improvement notice records that: "...The employer does not have an OHS consultative process as prescribed by the OHS Regulations, 2001 Chapter 3. In particular: 1. Although OH&S consultation arrangements are in place for OH&S matters, the employer has not consulted with the employees as to whether these arrangements will be suitable for consultation over workplace changes occuring for manning levels. 2. Persons nominated as being workplace representatives had not been trained in effective representation..." And directing that BlueScope Steel take the following measures to rectify the matter: "...1. You must consult with the employees as to whether the existing OH&S committee is to represent them in the workplace change of manning levels. 2. You must ensure that persons who then represent the workers receive accredited training for effective representation. 3. You must assess the tasks of the blast furnace operators to see if changes in manning levels create risks. 4. Your attention is drawn to the Code of Practice: Occupational Health and Safety Consultation. 5. Your attention is drawn to Chapter 3 of the Occupational Health and Safety Regulations 2001..." It has given me concern that, whilst arguments are flowing over the constitution and make up of the proper consultation processes, I was receiving no information from WorkCover actually directed to identifying the safety of the employees working the new manning arrangements. That was always my chief area of concern - and that of the employees, as I understood their position. 20 I would have thought that the monitoring committee I had set up, with proper liaison with the occupational health and safety committee, would have provided a suitable forum for any workplace safety concerns with the blast furnace to be addressed effectively. I would have expected that all members on that monitoring committee would be both representative of the workforce effected by the changes in manning and have the proper training to meet the requirements of the position occupied. If they did not, as I indicated during the aborted proceedings on Thursday, 23 December, 2004 they should be replaced on the monitoring committee. 21 But because the improvement notices placed on the blast furnace operations of BlueScope Steel were confined to the appropriate mechanisms for proper consultation, I was left to assume there to have been no safety problem with the BlueScope Steel manning proposals as far as WorkCover was concerned. The argument to date had been one of form over substance, in my view. Therefore, whilst BlueScope Steel addressed issues in the current improvement notice, I believed that the trial should go ahead. In the light of Mr Jurmann's improvement notice, there was no reason why the trial should not continue, at least until Monday, 31 January, 2005, the deadline in Mr Jurmann's improvement notice. I directed that to occur and it did so. I am informed that the improvement notice was, in fact, withdrawn by Mr Jurmann on Friday, 28 January, 2005. At the time of the hearing there remains an existing improvement notice concerning blast furnace operations but that is related to sulphur dioxide and not a matter relevant for my consideration in this hearing. The Proceedings 22 The substantive hearing of this matter remained on Monday, 7 March, 2005, Tuesday, 8 March, 2005 and Wednesday, 9 March, 2005. It was accompanied by an inspection of the operations in the steelworks blast furnaces which I found very helpful. Mr Brotherson represented BlueScope Steel in the hearing. He called four witnesses to give evidence in the hearing: Mr Julio Nascimento, formerly the blast furnace operations manager but now the operations manager for No.5 blast furnace, Mr Brian Kelly, formerly the blast furnace business engineer but now a process engineer for No.5 blast furnace, Mr Graeme Heriot, a shift team leader for blast furnace No.6, and Ms Sally Jones, the manager of occupational hygiene services for BlueScope Steel. Mr Gorman represented the AWU in the hearing, calling two operators as witnesses: Mr James Heslehurst (the No 5 blast furnace) and Mr Risto Tancevski (the No.6 blast furnace). I should record that, despite the argument between the AWU and BlueScope Steel over the manning issue, the proceedings before me continued in a refreshingly constructive manner which highlighted to me the team spirit which exists in the blast furnace operations of BlueScope Steel. 23 As Mr Brotherson indicated, before the Commission will ordinarily intervene in the manning levels proposed by any employer, it must be satisfied that those manning levels act unfairly (or unsafely) in some way against the employees who work in accordance with them. And it should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business shall be effectively conducted [Re Cram; ex parte New South Wales Colliery Proprietors Association Limited (1987) 61 ALJR 401]. In the Homebush Abattoir Case (1965) AR 149 Beattie J of the former State Industrial Commission commented to that effect, viz: "...It is not the Commission's practice to interfere with decisions as to the number of employees to be employed on particular tasks unless it is satisfied that the manning which an employer proposes places an unreasonable burden on an employee..." 24 Ordinarily, the onus to move the Commission in that respect rests upon the party asserting that the manning levels pressed by the employer are unfair, ie Mr Gorman in this hearing. In the Soaking Pits Dispute Case (1955) AR 663 Richards J of the former Commission summarised the position as follows (at p.665): "… Prima facie , the company has the right to manage its business in its own way and is entitled to exercise its own discretion in the manning of its plant. In order to obtain an order against the company in relation to the manning decided upon by it on a case of this kind, the union carries the onus of establishing that the work which the employee is called upon to perform on his shift is more than a fair shift's work under the conditions in which the work is performed …" But on this occasion, it is Mr Brotherson who is seeking to alter the status quo by removing a prescription for nine operators which has been in existence for some considerable time. The existing manning is presently enshrined in Clause 46 of the BlueScope Steel (AIS) Award which is still within its nominal term. It is BlueScope Steel's application to vary Clause 46 - and consequently the onus rests on Mr Brotherson to satisfy me that the manning proposal BlueScope Steel is advancing is fair and safe and, consequently, he should be permitted to present his evidence and arguments ahead of Mr Gorman . That is the way the hearing proceeded before me. (By agreement of the parties, Mr Heslehurst and Mr Tancevski remained in the hearing room from time to time to assist Mr Gorman in presenting his arguments.) The Trial 25 Mr Kelly's evidence relates to the trial and the role of the monitoring committee of which he was a member. So too was Mr Heslehurst. The monitoring committee produced a form (an "issue sheet") for operators to complete during the trial outlining areas of concern. Shift team leaders would discuss any such concerns directly with the operators and would then forward the completed "issue sheet" to the monitoring committee for discussion and to Mr Nascimento, Mr Gorman, for the AWU, and Mr Heslehurst who has maintained an active interest in the manning proposal and, in particular, its implications for workplace safety. 26 In fact, during the trial 69 separate issues were raised by the operators through the "issue sheets". Some of those complaints concerned standard practices for the blast furnaces and did not strictly fall within the scope of the trial. Mr Kelly extracted 15 issues which, in his opinion, did raise safety concerns. Some of those concerns I summarised as follows: (i) heat stress caused by longer periods of time on the casting room floor; (ii) deterioration in inspection standards due to one inspector being used instead of two inspectors; or (iii) difficulties in meeting unexpected emergencies or absences from work of an operator, eg to attend appropriate meetings or accompany another employee to the ambulance station due either to an injury or a drug or alcohol test. 27 Mr Kelly completed a risk assessment on those 15 issues. He was satisfied that those issues fell within the acceptable risk range. Mr Kelly is also a member of the occupational health and safety committee for the blast furnaces and he has brought issues from the monitoring committee to the occupational health and safety committee. Mr Kelly recorded in an affidavit which forms the basis of his evidence in this hearing that: "...the occupational health and safety committee and the monitoring committee have been a positive influence on the company's proposal. Based on my experiences in these committees, I believe the company proposal is reasonable and provides for a safe and efficient system of work. During the trial a number of issues have been raised by operators and they have been addressed with the introduction of improvements to the overall operation of the blast furnaces. The trial has strengthened my view that the company proposal is safe and does not impose an unfair burden on operators..." 28 In a written statement that formed the basis of his evidence in this hearing Mr Heslehurst has expressed concerned over Mr Kelly's risk assessments, viz: "...Management have made claims regarding the amount of work that they have put into risk assessments. Unfortunately, they have kept it a big secret from the operators..." Mr Heslehurst indicated in his evidence that the operators only moved into the trial with reluctance and he claims in his written statement that: "...there have been several instances of intimidation, some more subtle than others. How could operators feel that they were safe whenever they raised an issue that they may be treated unfavourably when management decided who they were going to get rid of? There have been many issues regarding fatigue to the operators during the trial. The fact that these issues have been raised many times is evidence that management have been unable or unwilling to address the issues successfully. There have been many issues regarding the unfair workload that has been imposed on the operators since the manning trial started. Management's stock answer is always the same: prioritise or call other operators in. If we need to call people in then we do not have sufficient numbers to start with..." I have to say that that allegation of intimidation sits oddly with what I perceived to be a fairly friendly working environment, albeit a fairly uncomfortable one at times. And the fact remains that 69 issues were, in fact, raised during the trial - hardly a negligible figure and one which suggests that the employees found no problem in bringing issues of concern forward - as they had every right to do. 29 Mr Heslehurst believes that the new manning levels do not take into account unexpected events, such as the shut down of the blast furnaces and power failures. Those events did not occur during the trial period but that does not mean that they will not occur in the future. Nevertheless, the procedure which BlueScope Steel wishes to apply in the blast furnaces, following what I regard as fairly standard procedure, is that if additional work arises, the operator raises it firstly with his team leader who either prioritises the work to be performed or calls in other employees to assist. I see no problems with that procedure. 30 Mr Heslehurst also takes the view that inspections continue to be a major problem for the operators during the trial. He claimed in his evidence that some of those inspections were not completed because inspectors were called away to perform work on the casthouse floor. It has been BlueScope Steel's view that not all of the areas to be inspected required two employees - a view not shared by Mr Heslehurst who believes that to inspect some areas of the site alone is unsafe. To assist in the inspections, a check list has been prepared for the employees to follow and that, in the view of BlueScope Steel management, has made the inspection process simpler for the employees. 31 Since much of the emphasis of the trial was directed to heat stress, I would have thought that the emphasis of the trial would have always lay with the casthouse floor which is conceded by Mr Brotherson to be a hot place in which to work. That, in fact, goes without saying. Ms Jones ultimately has the responsibility for overseeing occupational hygiene services and activities for the Port Kembla steelworks of BlueScope Steel and, in response to a request from Mr Nascimento and a WorkCover requirement, she undertook an initial heat stress assessment for casthouse floor operators at both No.5 and No.6 blast furnaces between Saturday, 8 May, 2004 and Friday, 28 May, 2004. The purpose of the study was to assess the potential for the development of heat related disorders for the operators performing casting duties during the trial. 32 Ms Jones indicated in an affidavit that: "...During the assessment, monitoring was conducted for eleven 12 hour shifts, incorporating 21 casthouse floor operators at both blast furnaces. The majority of assessments were undertaken during day shift as ambient temperatures and activity was believed to be higher during day shifts. However, after commencing the initial monitoring, consultation with blast furnace operators identified that their concerns extended to night shift and therefore the sampling regime was adjusted to incorporate a night shift at each blast furnace..." That heat stress assessment was aborted when the employees rejected the trial. A second heat stress assessment was conducted from Tuesday, 3 August, 2004 to Thursday, 28 October, 2004 to evaluate the impact of the new manning proposals introduced in the trial. Ms Jones recorded in her affidavit that during the second heat stress assessment period: "...the collection of health data was extended to ensure more comprehensive information, which included more frequent measurement of tympanic membrane temperature and heart rate, primarily at the beginning and end of each casting period, as well as the monitoring of fluid intake and urine output... Site inspections were undertaken...for the purpose of observation and interpretation of results..." The third heat stress assessment was conducted over the summer months - December, 2004 to February, 2005 - and the results provided to me as a separate exhibit in the hearing. The results established to the satisfaction of those persons collating and examining the information that there was no evidence of heat stress. That finding was consistent with the two previous surveys. Issues 33 Mr Nascimento indicated in an affidavit which supported his evidence that: "...the company position, which I support, is that the proposed change to operator numbers can be implemented without placing any undue burden on operators or creating any safety issue. The proposed change will result in improved utilisation of operators and savings to the company of approximately $1,000,000.00..." That view is shared by Mr Kelly and Mr Heriot. It is not shared by Mr Tancevski and Mr Heslehurst. 34 Mr Tancevski, for instance, recorded in his written statement that: "...a blast furnace operator's life is not one of glory. We are arguably compensated for some of the conditions we endure, such as heat, shift work, dust, manual labour, all of which take their toll. But it is felt...that as the blast furnace age, separate issues will constantly arise. Currently - or should I say prior to the trial - it was felt...that the situation was manageable and safe. With the manning cuts the situation will change and safety quite positively could become affected..." 35 Mr Nascimento described the proposal by BlueScope Steel for reduced manning in his affidavit in the following manner: "...The company's proposal is that there will still be six operators assigned to casting and one assigned to inspections. The six operators will rotate through the four operator casting positions. The operators on rotation into the fifth position are able to take a rest break or complete other miscellaneous tasks. The operator that rotates into the sixth position will assist with inspections. The company's assessment is that on average each operator will still have over four hours each shift of rest breaks and other general housekeeping duties. This is more than adequate in my opinion. The training, technology and processes the company has in place at the blast furnaces allows a safe and efficient system of operation with crews made up of eight operators (seven operators per shift plus one relief operator). Operators themselves have responsibility for distributing or prioritising the shift's work. The company's proposal does not seek to change this flexibility except that the operators will now need to distribute the work between one less operator. If operators have concerns about the distribution or prioritisation of the work then the shift team leader can be consulted to assist. The shift team leader has the opportunity to consult with his total workforce and other work groups. The shift team leader will prioritise work according to the needs of the business. Where necessary, the shift team leader can decide on what work can be delayed and what work needs to have extra labour called in for. The company proposal does not require any operator to acquire additional skills. The company proposal is based on the assessment that there is sufficient spare capacity within the existing operator numbers to allow the reduction of one operator per crew at each furnace, without placing any undue burden or compromising safety... Under the auspices of the Commission, the company has been trialling shift crews of seven working operators since August, 2004. The experience from the trial confirms to me that there is sufficient capacity among the seven operators per crew to perform the required tasks that occur on a day to day basis at each of the blast furnaces... Should work or circumstances require additional operators, the shift team leader has a discretion to call in additional operators. Again, experience during the trial period, is that this rarely occurs..." 36 Mr Heriot described the working arrangements for the new manning proposals, as he experienced them in his crew during the trial, in his affidavit, viz: "...The trial meant that each crew had to modify the way they have previously worked (ie with one less operator). For example, my crew worked with six casting operators and two inspectors. The casting operators worked in pairs, taking turns on alternate casts. When they were not casting, they would complete other tasks and occasionally assist the inspectors. The two inspectors would conduct routine inspections and other tasks and assist with some casting tasks, such as the drill out when raw oxygen is required and during higher workload periods. During the trial, my crew has worked a 6 + 1 pattern where the six casting operators worked as before but during non-casting times, they are required to do some routine inspections, and make themselves available to assist the designated inspector as required. The inspector does the same tasks as before with some assistance from the casting operators, when he needs to have someone accompany him. This has also meant that the level of heat operators are exposed to compared to before the trial is similar..." There remains a certain amount of flexibility between different crews as to how they work out the new manning arrangements, however, and each crew is permitted to develop its own approach within the manning levels now set. 37 There are a number of factors which, in the view of BlueScope Steel management, have made a reduction in manning levels for blast furnace operations feasible both from the point of view of workload and heat stress. To start with, casts now appear to be fewer but of longer duration. According to Mr Heriot, this means that there is less time on the casthouse floor during a cast. That is because while a ladle is being filled, it is not necessary for the process to be monitored at all times. Experienced operators may leave the casthouse floor from time to time. Mr Tancevski is less than enthusiastic with that suggestion from Mr Heriot, claiming that employees who leave a ladle unattended have been threatened with dismissal in the past. Nevertheless, if there are now fewer, but longer, casts, than occurred ten years ago, it must follow that there is more "down time" than had formerly been the case. 38 Mr Tancevski has also raised in his evidence a number of extra duties which he believes that blast furnace operators now perform but Mr Brotherson suggested in his cross-examination of Mr Tancevski that those additional functions do not necessarily add a great deal to the work of the operators. Some of the work of the employees - the preparation of key performance indicators for the team, for instance, is conducted in the crib rooms which are air conditioned and, consequently, away from the heat of the casthouse floor. Recently (partly I understand from input from the trial) large fans have been placed on the casting room floor and supplies of cool water have been made readily available to the employees to assist in alleviating any discomfort from the heat of the furnaces. 39 Mr Nascimento suggested in his evidence another reason justifying the proposed reduction in manning levels in the blast furnaces - new technology. Since 1966 when the current manning levels were set there has been significant improvements in the use of technology and investment of capital at the blast furnaces which has led to improvements in the production processes. Pre bars are no longer used in drilling operations; drill bars are now much lighter to handle, drill tips have been improved with tungsten and cooled with water mists to improve the drilling out operations; gun clays have produced better drilling out reliability. During the inspection I was shown hatches in the casting room floor from which the employees may monitor the flow of molten iron and slag. The hatches were an invention of the employees and they serve to reduce access to heat from the molten metal on the casting room floor. Mr Heriot also spoke in his evidence of the process analysis model [PAM] which has been introduced to assist the control room to better monitor furnace conditions, producing a more consistent operating environment on the casthouse floor. 40 Mr Tancevski indicated in his evidence that PAM was not always reliable and he regards new technology in the blast furnaces in general with a more jaundiced eye. He comments in the written statement which forms the basis of his evidence that: "...technology, which was introduced to assist the operators, has since been taken away because it did not work or was inappropriate, eg the taphole face cleaner, which was to alleviate operator exposure to heat on clean ups, never worked and was never used. It was dismantled and removed in 2004... Ladle weighing systems and ladle identification systems have either not worked properly since inception or are no longer used. Ladle level detection was supposed to alleviate the time an operator had to spend on the blast furnace floor and assist in filling torpedo ladles so that the operator would only have to do intermittent checks and then towards the end of filling of the ladle supposed alarms would activate to alert operators of the levels in the ladles. This does not work and the current practice is for one operator to monitor the level of the ladle during the entire cast, rarely leaving the ladle... A temperature and sample machine was trialled, which would reduce exposure to heat, etc. This has since been removed and never returned. Bar loaders were introduced to alleviate some manual handling... These loaders have never worked properly and are not used..." It is to be expected that, on the basis of trial and error, some new technology which is tried will simply not work: no reason for it not to be tried, however. But I am satisfied that overall the introduction of new technology has had an impact on the work of the operators and the tasks that they now perform with the blast furnaces differs to some extent from what occurred in 1996 when the current manning levels were set. 41 Mr Nascimento has also indicated that currently the workforce in the blast furnaces is highly skilled, making possible the speedy resolution of problems as they arise. He points out in his written statement that: "...operator training in blast furnace operations account for 11.6% of time spent at work (excluding training during the normal course of a shift). This focus has been to ensure that the skill level of blast furnace operators is maximised. As a result, operators now have a greater understanding of the blast furnace process, can recognise problems and take earlier corrective/preventative action to ensure a smooth and efficient production flow. Overall, operators are better equipped to handle emergency situations and workloads. Generally, operators are more highly skilled than the operators that existed in 1996. Aside from training, the blast furnaces recruitment strategy since 1996 has been to fill vacancies created by existing employees with employees who are capable and willing to work at a minimum of Operator 3 level. This has resulted in a workforce which in turn has led to a more efficient operation... The effect of having a more highly skilled workforce is that operators work more efficiently and various operator casting duties are completed more quickly..." Conclusion 42 Mr Gorman's argument in this hearing is that the manning levels proposed by BlueScope Steel for the blast furnace operations are both unfair (because they place excessive demands on the employees concerned) and unsafe (due to heat stress or fatigue from the increased workload). Essentially, as far as occupational safety is concerned, the ultimate responsibility lies with the management of BlueScope Steel. All employers have a common law duty of care to provide a safe working environment and a safe system of work for all of their employees. As Mr Brotherson indicated in his submissions, that duty of care is absolute and it is complimented by S.8(1) of the 2000 Occupational Health and Safety Act, viz: "Every employer shall ensure the health, safety and welfare at work of all his employees." Responsibility for workplace safety falls initially on occupational health and safety committees duly formed and, in this case, the monitoring committee I set up, to oversight the workplace safety of the blast furnace operations of BlueScope Steel. WorkCover inspectors also have an oversighting role over occupational health and safety to ensure that safe systems of work are in place and, in the proper case where they believe there are safety concerns at a particular work site, to take the necessary steps by way of improvement notices for the rectification of the problem and, if necessary, prosecution where that is not carried out properly. 43 It is not my function in any proceedings before me to assess whether or not any particular work is safe. Any safety issues are not the province of members of the Commission in S.130 compulsory conference proceedings [the Ermani Constructions Case (1988) 23 IR 346 at pp.351, 352 and 353]. And in this hearing I must rely on the findings of the monitoring committee, the occupational health and safety committee and WorkCover in any dispute over safety issues. I am satisfied that occupational health and safety concerns have been effectively addressed by BlueScope Steel management and there are no reasons, on occupational health and safety grounds, ie essentially over heat stress and fatigue, to stand in the way of the manning proposals for the blast furnace operations of BlueScope Steel management. 44 Nor do I believe, on the basis of the evidence before me in the hearing, that there is any unfairness for the operators in the manning proposals. Notwithstanding the views to the contrary expressed by Mr Tancevski and Mr Heslehurst, I am satisfied that, for the most part, the trial has been a success and it reveals that the manning levels proposed by BlueScope Steel are achievable and would not operate unfairly to the employees. The trial has been in existence for seven months prior to the hearing and there do not appear to me to be any real issues which show major flaws in the manning levels proposed. During that time there has been no increase in overtime; absenteeism levels for the employees, which may possibly have been an indicator of workplace fatigue, have remained stable - indeed, there has been an improvement in that respect: there has been no deterioration of the very satisfactory safety record for the blast furnaces, with no lost time due to a workplace injury and only one injury requiring medical attention. All of those indicators point to the manning levels operating effectively and I see no reason that the trial cannot now be confirmed as the current manning for the blast furnaces. 45 As Mr Brotherson indicated in his submissions, that would not be possible unless Clause 46 of the BlueScope Steel Award is varied. Unless there are good and cogent reasons to do so, the general policy of the Commission has been not to reopen a State award during its nominal term [the Soap and Candle Makers Case (1946) AR 264]. The BlueScope Steel Award is well within its nominal term. But the size and complexity of the steelworks operations at Port Kembla, and the manner in which BlueScope Steel has addressed issues of this nature in the past, suggests to me that the Commission should be prepared to adopt a policy of addressing specific issues which occur in particular departments of the steelworks as they arise from time to time rather than always at the time that the whole BlueScope Steel Award is being negotiated. The strict division of the industrial calendar into the settled rights phase (when an award may not be varied) and the non-settled rights phase (when it may be varied) is not something which I believe is totally suitable for an enterprise as large and complex as the Port Kembla steelworks. In my opinion, it is much to be preferred that the parties be left to address particular problems in identified parts of the steelworks as and when they arise from time to time. And in this case I am satisfied that the grounds have been made out to vary the BlueScope Steel Award in the manner suggested by Mr Brotherson. 46 Whilst the trial, and the monitoring committee which flowed from it, got off to a rocky start, I believe that it has served a useful purpose. What has impressed me during the hearing has been the strong emphasis on teamwork on which the blast furnace operations so clearly depend. I would suggest that the monitoring committee not be immediately disbanded therefore. I see a benefit in it continuing, at least for the time being, to provide a forum to ventilate areas of concern that may still arise from time to time. 47 But the simple fact remains that the variation proposed by BlueScope Steel to Clause 46 of the BlueScope Steel Award - to set manning levels at "...an appropriate number of process workers..." and subject future changes in manning levels in the blast furnace to the standard consultation provisions for the steelworks - would permit the AWU as well as BlueScope Steel to at any time seek further changes to manning levels on the basis of changed circumstances. The BlueScope Steel proposal cuts both ways in that respect. It seems to me that it is not in the employees interests, anymore than it is in the interests of BlueScope Steel, to rigidly set manning levels in the BlueScope Steel Award, inconsistent with other departments in the Port Kembla steelworks. I believe that it is more appropriate for me to set those manning levels, as the proposed variation suggests, at "...an appropriate number of process workers..." to give greater flexibility in the manning levels for the benefit of both sides in the future. 48 However, at this time to vary Clause 46 of the BlueScope Steel Award in the manner sought by Mr Brotherson in this hearing indirectly takes this matter outside the AWU interests which are all that is before me. Clause 46 also sets the manning for each blast furnace for one electrical tradesperson (affecting the Electrical Trades Union of Australia) and one electrical tradesperson (affecting the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union). BlueScope Steel's concern is currently directed only to the blast furnace operators, members of the AWU, but it also has an indirect affect on the ETU and the AFMEPKIU who have an interest in Clause 46 of the BlueScope Steel Award too. In the circumstances, I direct BlueScope Steel to bring this matter to the attention of the ETU and the AFMEPKIU prior to the settlement of the variation to the BlueScope Steel Award. 49 At first sight, the proposed variation of the BlueScope Steel Award sought by Mr Brotherson in this hearing would appear to raise considerations under the Special Case principle of the current wage fixation principles [2004 State Wage Case (2004) 132 IR 190 at p.214]. As such, it would be a matter primarily for a Full Bench. In the proceedings before me neither party raised that issue. They were content to rely on the trial that I had recommended and their respective positions stand or fall on that trial and the evidence before me in this hearing and not on the technicalities which flow from the Special Case principle. Furthermore, whilst the outcome of this decision is to marginally reduce the manning levels for the blast furnace operators, the proposed variation to the BlueScope Steel Award, in fact, has the effect of freeing up the issue of manning levels, setting them at "...an appropriate number..." and permitting the parties to pursue the manning issues in the blast furnace at any time through the customary procedure with BlueScope Steel operations. I do not believe that looked at in that light, the claim mounted on behalf of BlueScope Steel in this hearing raises considerations under the Special Case principle. 50 The BlueScope Steel Award shall therefore be varied in accordance with the application made by Mr Brotherson in this hearing effective on from the date that settlement of the variation is effected. In the meantime, the arrangements for the trial, and the manning levels flowing from it, will continue . 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