Industrial Relations Commission of New South Wales CITATION: Blue Circle Southern Cement Limited v. Australian Workers Union [2008] NSWIRComm 1076 APPLICANT Blue Circle Southern Cement Limited PARTIES: RESPONDENT Australian Workers Union FILE NUMBER(S): IRC 950 of 2008 CORAM: Connor C CATCHWORDS: industrial dispute - cement industry - refusal of employees to perform work in loading rail wagons - attempts at conciliation - referral agreement - application for declaratory relief - obligations of employees to comply with reasonable directions from management LEGISLATION CITED: Industrial Relations Act 1996 Federal Workplacwe Relations Amendment (Work Choices) Act 2005 Anthony v. New South Wales Fresh Food and Ice Company Pty Limited (1946) AR 64 Automatic Fire Sprinklers Pty Limited v. Watson (1946) 72 CLR 435 Clark v. Pittwater RSL Club Limited (1998) 84 IR 309 Electricity Commission of New South Wales v. Swieringa (1975) AR 504 Kellogg (Australia) Pty Limited v. National Union of Workers (1998) 89 IR 391 CASES CITED: Mackie v. Weinholt (1880) 5 Qld SCR 211 Masters, Mates and Engineers (Geelong) Tugboat Award (1970) 28 IIB 1176 New England Health Service Dispute Case - unreported Ottoman Bank v. Chakarian (1930) AC 277 Soaking Pits Dispute Case (1955) AR 663 State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1 HEARING DATES: 25/08/2008, 03/09/2008, 12/09/2008, 16/09/2008 DATE OF JUDGMENT: 2 October 2008 APPLICANT Nick Chadwick Chadwick Workplace Law LEGAL REPRESENTATIVES: RESPONDENT Andy Gillespie Australian Workers Union DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 2 October, 2008 Matter No IRC 950 of 2008 Blue Circle Southern Cement Limited and the Australian Workers Union Notification of an industrial dispute under S.130 of the Industrial Relations Act, 1996 by Blue Circle Southern Cement Limited re refusal of employees to load trains Referral of an industrial dispute under S.146A of the Industrial Relations Act, 1996 by Blue Circle Southern Cement Limited and the Australian Workers Union DECISION [2008] NSWIRComm 1076 Background 1 Pursuant to the provisions of S.130 of the Industrial Relations Act, 1996 a notification has been lodged for and on behalf of Blue Circle Southern Cement Limited concerning a dispute between the company and the Australian Workers Union. BCSC operates a cement manufacturing plant and packaging works at Maldon on a continuous basis - 24 hours a day, 7 days a week. There is a total of 108 employees engaged at the Maldon site. 21 employees are engaged in the packaging and despatch section, responsible for mixing, packaging and despatch of packaged products and bulk cement and 24 production shift employees are engaged to manufacture cement. 2 The industrial dispute arose out of a new contract that BCSC has completed for the supply and transport by rail of an alternative cement blend for the silver mine of Endeavour Operations Pty Limited in Cobar - the CBH Endeavour Mine - on a trial of twelve months. That contract requires BCSC to supply approximately 1,000 tonnes of cement blend to the mine each week. The first consignment of cement blend to the mines was loaded on Saturday, 16 August, 2008 and Sunday, 17 August, 2008. BCSC has entered into a subcontracting arrangement with Pacific National who will be responsible for all locomotive driving and shunting on site but BCSC remains responsible for the loading of the trains, which will involve a maximum of two employees. For logistic reasons the rail wagons for the new contract must be loaded at weekends and BCSC intended that the production employees be engaged in the loading of rail wagons at such times - between 12.00noon each Saturdays and 5.00pm on Sundays each week. They have refused to do so. BCSC management insist that the production staff perform the work of loading the rail wagons. 3 The S.130 notification by BCSC came initially before Grayson DP who on Monday, 30 June, 2008 carried out an inspection and conference on the site. Following those proceedings, Grayson DP proposed that BCSC outline its position in a letter to the AWU and that the Maldon employees of BCSC hold a meeting of both shifts to discuss the matter. BCSC confirmed its position in a letter dated Tuesday, 1 July, 2008 to the AWU by Mr Chadwick, who represented BCSC in the proceedings. That letter proposed as follows: * that generally, the loading of trains in connection with the Cobar contract had priority: to that end, employees responsible for the loading of rail wagons would be advised to do so by BCSC but in the event that additional operators employed in either the packaging and despatch section or the production shift section were required to assist in wagon loading, a team leader would not be disciplined for making genuine and reasonable operational decisions to meet this priority; * that in the event that an employee from either the packing and despatch section or the production shift section was required to undertake rail loading duties on a train bound for Cobar and that employee leaves an existing job or task to perform the rail loading duties, such employee would not be criticised for prioritising his work to load the train; * that the loading of trains on a weekend in connection with the Cobar contract would be the shared/concurrent responsibility of the packing and despatch employees and the production shift employees; * that it was not anticipated by BCSC that the requirement for packing and despatch employees and production shift employees having the shared/concurrent responsibility of loading trains to service the Cobar contract would adversely impact upon the ability for production shift employees to take annual leave; and * that BCSC was willing to consult with the AWU and all employees on an ongoing basis for the purposes of monitoring the work associated with the loading of rail wagons for the Cobar contract. 4 When BCSC management ultimately handed that letter to Mr Peter Wise, a shift team leader and AWU delegate at the Maldon site of Blue Circle, he ripped it up. It appears that Mr Wise believed that he was being taken out of the loop and that the letter had been delayed and was provided to other staff but not to him. That was not a particularly constructive act on Mr Wise's behalf to resolve this industrial dispute, particularly since the letter appeared to me to have addressed what BCSC understood at that time to be the concerns of the employees. And the two shift meeting of the Maldon employees of BCSC which Grayson DP proposed did not occur and BCSC requested that the proceedings be reconvened urgently. 5 In the absence of Grayson DP on annual leave, the matter was reallocated to me and I set them down for a conference on Monday, 7 July, 2008 in the Commission's premises at 90 Crown Street, Wollongong. In those proceedings I issued a statement which reinforced the proposal of Grayson DP for a meeting of the employees to be convened with a recommendation of my own to that effect, indicating that I would reconvene the proceedings on Friday, 11 July, 2008 to have reported to me the outcome of the meeting. 6 In those proceedings on Friday, 11 July, 2008 (also in Wollongong) I was informed that the BCSC production employees had held their meeting on Wednesday, 9 July, 2008 but they had collectively confirmed their view that the work under the new contract fell outside their range of duties and that they remained committed in refusing to perform that work. The AWU representative in the proceedings before me on Friday, 11 July, 2008 asserted that alternate arrangements - the use of despatch staff on weekend overtime - would resolve the matter but that was not acceptable to BCSC. I adjourned the proceedings for a further mention and programming to resolve this matter by arbitration on Monday, 14 July, 2008, issuing the certificate of attempted conciliation required by S.135 and arranging for the matter for to be arbitrated. The Proceedings 7 There has been some delay in the arbitration which has concerned me but I stress that that delay is through no fault of either party. To begin with, I had scheduled the arbitration of the matter on Monday, 25 August, 2008 and Tuesday, 26 August, 2008 (in Wollongong). In those proceedings Mr Chadwick represented BCSC and Mr Gillespie represented the AWU. The arbitration on that day did not occur, however. In view of the nature of this particular industrial dispute, I considered it constructive to further explore conciliation on Monday, 25 August, 2008 and I did so, issuing a statement which concluded as follows: "What Blue Circle is seeking in these proceedings is the following: (i) that Blue Circle at the Maldon works has the right to direct employees to perform work that is within their skills, competence and training, consistent with their classification level within the Blue Circle Award; ii) that the loading of cement blend into rail wagons falls within the skills, competence and training of employees who are classified and at the grade of Level 9 and above in the Blue Circle Award; and (iii) that employees of Blue Circle who are employed as production shift employees at the Maldon site are to perform rail loading work, as directed, by Blue Circle. Whilst what Blue Circle is seeking goes somewhat further than the issue before me and speaks in general terms, I am confined in these proceedings to the one issue before me - the loading of the rail wagons. I am referring specifically to (i) above, which in any event is not open to any real challenge. Employees would be obliged to perform work within their skills, competence and training, consistent with their classification level under the Blue Circle Award. It is my understanding that production shift employees at the Maldon works will be required to load the rail wagons. Where there are fewer than six production shift employees available for any weekend shift, the team leader shall have the discretion to make genuine and reasonable operational decisions to cease cement mill production, being Cement Mills No. 2 and 3 and the slag dryer. The undertakings provided by Blue Circle concerning rail loading in the letter dated Tuesday, 1 July, 2008...will continue to apply. I would expect the employees to perform that work and I recommend that the employees accept the work on that basis. Mr Gillespie has given an undertaken to convene a meeting of the employees on Tuesday, 26 August, 2008 and that he will recommend this proposal to them at that meeting. The outcome of the meeting will be communicated immediately thereafter..." 8 The matter resumed before me for a mention on Wednesday, 27 August, 2008 (in Sydney). Notwithstanding my recommendation (and Mr Gillespie's support for it) the meeting of the production employees resolved to continue its refusal to perform the work of loading the rail wagons - an issue which Mr Chadwick highlighted in his submissions and which, as I will record later in this decision, he directed me to take into account in my decision. I was very disappointed that the employees had adopted that view. I never believed that this matter should have required arbitration, but it appears that is the only course open to resolve this outstanding matter. 9 I set the matter down for that arbitration in a hearing which commenced on Wednesday, 3 September, 2008 (in Sydney) and extended to Friday, 12 September, 2008 and Tuesday, 16 September, 2008 (in Wollongong). In the hearing Mr Chadwick called three members of the senior management of BCSC as witnesses in the hearing: Mr Warren Angel, the human resources manager, Mr Peter Turner, the manager of packaging and despatch and Mr Keith Godfrey, the production manager. Mr Chadwick sought a declaration to the following effect: (i) that BCSC has the right to direct employees to perform work that is within their skills, competence and training, consistent with their classification level within the Blue Circle Award; (ii) that the loading of cement blend into rail wagons at the Maldon works of BCSC is within the skills, competence and training of employees who are classified and paid at the grade of Level 9 and above in the Blue Circle Award; (iii) that the instruction by BCSC to production shift employees at the Maldon works to perform rail loading work is fair, safe, reasonable and lawful; and (iv) that BCSC employees who are employed as production shift employees at the Maldon site are to perform rail loading work, as directed, by BCSC. Mr Gillespie called Mr Wise to give evidence in the hearing. 10 Initially, the hearing on Wednesday, 3 September, 2008 was adjourned to continue on Friday, 5 September, 2008 (in Wollongong). However, the proceedings on Friday, 5 September, 2008 had to be abandoned at short notice to the parties. Mr Gillespie was directed by Grayson DP to attend to other urgent business before him on that day and unfortunately it became necessary to adjourn the hearing again. Mr Gillespie was able to move another commitment he had on Friday, 12 September, 2008 and the hearing continued on that day and extended to Wednesday, 17 September, 2008 (in Wollongong). I acknowledge with thanks the assistance of the parties in making the necessary arrangements to bring this outstanding matter to a conclusion. Jurisdiction 11 BCSC is, of course, a trading corporation within the meaning of S.51(xx) of the Commonwealth Constitution and, as such, the restrictions flowing from the 2005 Federal Workplace Relations Amendment (Work Choices) Act would ordinarily represent a barrier to this matter being determined in the State industrial jurisdiction [State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1]. The Maldon employees of BCSC are covered by the BCSC Southern Cement Limited (State) Award which, by virtue of a 2006 amendment to the State IR Act was converted into an enterprise agreement (and as such becomes a "preserved State agreement" or PSA under Work Choices). For this matter to proceed to arbitration, therefore, it will be necessary for the parties to complete an agreement under S.146A of the State IR Act. That has occurred. 12 Essentially, in these proceedings, the parties have sought that I determine whether or not the task of loading the rail wagons for the new Cobar contract falls properly within the range of work ordinarily expected of them. In doing so, it becomes necessary for me to have regard to relevant provisions of the BCSC Award which covers the production employees and other documents, such as position statements, which outline the duties of the employees. That would mean that the parties are seeking declaratory relief and that is the nature of the orders sought by Mr Chadwick in this hearing. 13 Declaratory orders have customarily been regarded as a judicial function and, as such, reserved by S.154 of the State IR Act to the Commission in Court Session alone, viz: "(1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought." 14 Hungerford J commented in that respect in Kellogg (Australia) Pty Limited v. National Union of Workers (1998) 89 IR 391 at p.392 that: "…although the arbitration was before the Commission, moved by Kellogg pursuant to S.136(1)(d) of the Act to '…make any other kind of order it is authorised to make…' in relation to the dispute, it was clear that the relief sought arose in the dispute proceedings but was in the nature of a declaration as to the right of Kellogg to implement its proposals having in mind the provisions of the award. By reason of S.154 of the Act, relief of that nature is exclusively within the declaratory jurisdiction of the Commission in Court Session…" 15 Whilst S.175 of the State IR Act does contemplate interpretation of various instruments in the course of S.130 proceedings (or any other proceedings before non-judicial members of the Commission) that jurisdiction is confined "...for the purpose of exercising...functions in connection with a matter before it...". As such, I do not regard it as a source of jurisdiction to interpret any industrial instrument. It does not stand alone but in conjunction with some other identified head of jurisdiction for arbitration. 16 And, as I understood the position, in the past there were considerable restrictions in that respect in S.130 proceedings. As I indicated in my unreported decision of Wednesday, 23 May, 2001 in the New England Health Service Dispute Case [Matter No.IRC 3547 of 2000 at p.6]: "...The key to my jurisdiction under S.136(1)(d) is the words of the provision itself - that such an order must be one that I am authorised to make ... Such authority must be found in some other part of the 1996 Act as, for instance, it is found for a stand-down order in S.126, the order of secret ballots in S.172 or orders for small claims in Ss.379 and 380. If such authority for an order of interpretation is not found in S.175, as I have concluded is the case, it does not assist in that respect... The Commission may, for instance, make an order for reinstatement under S.84(1) or S.137(1) and, in the process, using S.175, interpret any instrument relevant to that order. But it may not make an order of interpretation to stand alone since there is no authority for it..." 17 But that situation has now changed substantially, in my opinion. S.146A, and the terms of the referral agreement that has flowed from it in this case, now provide a further source of jurisdiction. As I understand the position, S.146A actually provides jurisdiction to the member of the State Commission to, in a sense, do whatever the parties agree that he may do and the jurisdictional uncertainties which formerly existed no longer arise. The Work in Question 18 BCSC has from Saturday, 16 August, 2008 and Sunday, 17 August, 2008 been supplying cement blend under the Cobar mine contract. For safety reasons, two BCSC employees are required for the task of loading the rail wagons. Until this matter is decided, BCSC is engaging despatch staff on weekend overtime, as was previously proposed by the AWU. BCSC employees are required to inspect the rail lines, hand over radios to the Pacific National locomotive driver and assistant upon entry on site to ensure proper communication and direct the positioning of the rail wagons under the load spout. The BCSC will then lower the drawbridge to the rail wagon and open the hatch and lower the load spout to the hatch. The correct bin for loading is selected by touching the appropriate button on a touch screen computer. Loading takes approximately 40 minutes. Once the rail wagon is full, the automatic loading will stop and the load spout must be raised and the hatch closed. The drawbridge is also raised from the wagon and the computer reset to repeat the process for the next wagon. There are approximately 22 wagons per train. Midway through the loading of the rail wagons, a sample is to be taken to test for quality. 19 Currently production staff at the BCSC Maldon site unload rail wagons which is acknowledged to be part of their ordinary duties, which they have been performing for many years and which they are prepared to continue. In performing that task, the employees inspect the rail lines and measure the storage shed to determine whether there is sufficient room available to store the raw material, ensuring that there are no personnel in the storage shed. A load position [C7] shuttle runs the length of the storage shed. It is set to the desired position and set the load position [C7] shuttle to the desired position. The employee then contacts the central control room operator to confirm belt scales are set for the correct product and sets the diverter gate to ensure product is being sent to the selected storage shed. The correct drives on the equipment - "clinker to store or limestone to store", "unloading sequence" and "feeder control switch" - are started and the employee guides the rail wagon into the correct unloading position using lights. The wagon doors are then opened and the product released. At least three or four times during the unloading the employee walks the length of the material handling system to check for any spillages or other conveying issues. Upon completion, the computer is then shut down. 20 Mr Godfrey indicated in his evidence that he regarded the function of unloading the rail wagons (which the production staff already perform) and the loading of the rail wagons (which they have refused) as comparable. Indeed, in Mr Godfrey's opinion, the tasks required to load the rail wagons is simpler. BCSC has claimed that the refusal of the production employees to load the rail wagons is tantamount to a refusal by them to perform a reasonable and lawful direction given to them. Mr Chadwick submits in the hearing that the task of loading rail wagons is part of the ordinary duties of the production employees and that the task is within their skills, competence and training. Submissions 21 Mr Chadwick argued that the refusal of the production shift employees at the Maldon site of BCSC to load the rail wagons for the CBH Endeavour Mine contract amounted to a refusal by them to perform a reasonable and lawful instruction, that the task was part of their ordinary duties and within their skills, competence and training and it was fair and reasonable for them to perform that work. He claimed that the task of rail loading was not a foreign task for the production employees and did not constitute a variation to their employment. Mr Chadwick pointed out in his submissions that the S.146A referral agreement on which my jurisdiction relies specifically refers, among other things, to S.134(2), viz: "During conciliation proceedings, the Commission may make a recommendation or give a direction to the parties to the industrial dispute. Failure to comply with any such recommendation or direction may not be penalised but may be taken into account by the Commission in exercising its functions under this Act." Mr Chadwick has therefore argued that in my decision on the matter I should bear in mind that the employees rejected the recommendations I made in my statement of Monday, 25 August, 2008 to resolve this industrial dispute. 22 Mr Gillespie argued that the work of loading the rail wagons as part of the new contract BCSC had with the Cobar mines fell outside what was ordinarily part of the duties of the production staff at the Maldon site and they were therefore under no obligation to perform that work. The refusal of the production employees to carry out the new task of loading the rail wagons for the Cobar contract on the weekends is primarily based on the employees' concern that excessive demands will be placed on them in performing that additional task. In his evidence Mr Wise explained the objections of the production employees to perform the task of loading the rail wagons. In short, Mr Wise asserts that the operators would not be able to effectively perform this work safely without placing other essential work on the weekends in jeopardy or leaving other essential work incomplete for the incoming shift after the weekend. He believes that the extra work load placed on the operators would be unfair and unreasonable for them, placing undue pressure on them. Conclusion 23 In any employment contract there are mutual obligations falling on both employers and employees. It is the obligation of the employee to perform all work reasonably given to him by the employer and the obligation on the employer to pay wages for that work. The payment of wages is essentially dependent upon the employee providing a service and no employer is obliged to pay employees for times when they are refusing to perform work required of them [Automatic Fire Sprinklers Pty Limited v. Watson (1946) 72 CLR 435 at pp.465 and 466]. And in the Soaking Pits Dispute Case (1955) AR 663 Richards J of the former Commission expressed the following view (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…" 24 The position was also explained by Ludeke J - Deputy President of the Australian Conciliation and Arbitration Commission in the Masters, Mates and Engineers (Geelong) Tugboat Award (1970) 28 IIB 1176 in the following manner: "...The right of the engineers to be paid was dependent upon their readiness to perform work properly required of them under their contract of employment..." And in Electricity Commission of New South Wales v. Swieringa (1975) AR 504 the Full Bench of the former Commission (McKeon, Cahill and Dey JJ) commented (at p.514) that: "...cases abound in this Commission and elsewhere which state categorically that in order to be entitled to payment of the wage which the terms of the employment prescribe, an employee must be ready and willing and able to perform in accordance with the lawful and reasonable directions of his employer the service for which he contracted, and that any failure on his part to do just that of itself, and so long as the failure continues, disentitles him to such payment..." 25 But it must be appreciated that the rights of management to direct employees to perform work is not an unqualified right. In the industrial context, there are three exceptions to that right of management, viz: (i) an employee is not under any obligation to obey an order which involves him in doing work which, according to his contract of employment, falls outside what he has been engaged to perform [ Mackie v. Weinholt (1880) 5 Qld SCR 211 and Clark v. Pittwater RSL Club Limited (1998) 84 IR 309]; (ii) an employee is under no obligation to obey an order which involves him in doing an illegal act or places him in a situation where his own safety or the safety of others may be affected [ Ottoman Bank v. Chakarian (1930) AC 277]; and (iii) an employee is not required to perform any work, eg excessive overtime, where that request is not reasonable in all the circumstances [ Anthony v. New South Wales Fresh Food and Ice Company Pty Limited (1946) AR 64 at p.78]. 26 I would have thought that the letter dated Tuesday, 1 July, 2008 forwarded to the AWU on behalf of BCSC, and which Mr Chadwick has reaffirmed in the hearing, would have relieved the production employees of BCSC of any concerns they may have concerning their workload. No employee can be expected to perform two jobs at the same time, of course. Whilst the loading of the rail wagons for the Cobar mine contract is to take priority, the responsibility falls on BCSC management to organise what work remains to be performed fairly and reasonably among its employees. There is no evidence before me to suggest that the loading of the rail wagons could not be performed fairly, reasonably or safely by the Maldon production employees of BCSC and, as Mr Chadwick asserted in his submissions, the onus rests on Mr Gillespie to provide such evidence - not on BCSC to adduce evidence that the work in question is unfair, unreasonable or unsafe to the employees. 27 Also the work required of the production employees at the Maldon site of BCSC has to be considered in the context of the agreed roles based structure [RBS] which was introduced by agreement in 2000 at the site. The stated objectives of the RBS was: "....to have a motivated and competent workforce which has significant input and control over its area of work. This control will involve the authority and responsibility for maintenance co-ordination, raw material procurement, involvement in continuous improvement and the safe and efficient operation of their areas of plant..." And with respect to shift roles generally, the RBS provides: "...Key aspects of shift roles are as follows: * accountability and responsibility of the role, including ownership of the role itself; * flexibility and a co-operative approach between and within shifts to achieve works requirements; * each shift crews will organise its labour to meet day-to-day shift operations; and * allocation of labour to meet production and industry requirements will occur through consultation and assistance between management and shifts..." 28 Mr Turner indicated in his evidence that the RBS recognised "rail unloading" as part of the accountabilities/responsibilities for production shift employees and they have performed that work for many years - but he conceded that "rail loading" was not recorded in the RBS for production employees. That function had historically been performed by the stock house employees since 2000 when the RBS came into operation. 29 However, Mr Chadwick argues in written submissions that: "...it was never intended that the list of job functions outlined in the RBS would be exhaustive. The job classifications must be read as a whole, consistent with the RBS but not strictly and narrowly in line with the accountabilities and responsibilities as set out when the RBS document was drafted and negotiated in 2000..." 30 And, in particular, Mr Chadwick drew my attention to the provisions of Clause 10(1), Working as Directed, of the Blue Circle Award, viz: "(a) To avoid any doubt, BCSC may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training, consistent with the classification structure of this award and provided that such duties are not designed to promote deskilling. (b) To avoid any doubt, BCSC may direct an employee to carry out such duties and use such tools and equipment as may be required, provided that the employee has been properly trained in the use of such tools and equipment. (c) Any direction issued by BCSC shall be: (i) consistent with BCSC's responsibilities to provide a safe and healthy working environment; and (ii) carried out in a safe manner and in accordance with BCSC's safety systems." 31 The contracts of employment under which the production staff at the Maldon site of BCSC are engaged have to be read in the context of the RBS and Clause 10(1)(a), Working as Directed, of the Blue Circle Award, both of which emphasise greater flexibility in the performance of work, provided that work falls "...within the limits of the employee's skill, competence and training, consistent with the classification structure of this award and provided that such duties are not designed to promote deskilling...". I am satisfied that the work of loading the rail wagons falls properly within the range of duties that would be expected of them. Insofar as any training may be required by the production staff to perform that work - which I would anticipate to be minimal - I regard that as ancillary to the task itself and note, in particular, that Clause 10(1)(b) appears to provide for that training and Mr Wise expressed no objection to training for the work if I assessed it to be part of their work. Outcome 32 It is my understanding that what is envisaged by BCSC is that ordinarily a production employee will be called upon as relief to load the rail wagons when there is a full contingent of employees on the weekend (5 employees plus a relief employee), which appears likely to occur every weekend. But there may also be other occasions where from time to time BCSC may require production employees to perform that work on the weekend and BCSC is anxious to ensure that they do not meet any resistance from the employees at such times. Two employees only are required for this task. In those circumstances, I have to say that the amount of industrial heat this issue has generated appears to me to be totally out of proportion to the issue itself. 33 Mr Wise claimed in the written statement which formed the basis of his evidence in this hearing that BCSC: "....has not fully discussed this matter with the shift operators. Rather the company have made a demand on the operators without proper and thorough negotiations... The company did put a proposal but it was not a proposal for discussion. We were told what was going to happen, rather than negotiate a position..." That leads me to have the suspicion that at least a part of the resistance of the operators to the proposed new work associated with the loading of the rail wagons on the weekend was the manner in which this matter was explained to them - as a fait accompli . 34 Mr Angel rejects that assertion by Mr Wise, however. He points out that as far back as Monday, 17 March, 2008 a plant notice had been issued to all Maldon employees which spoke of the new contract with the Cobar mine and, in particular, indicating that: "....in addition, we will be seeking to train employees from yard services, production and dry mix operations to carry out weekend rail out of loading product... 35 To my mind, neither Mr Angel nor Mr Wise appear have addressed the proposed new work with the rail wagons in the proper manner. When an employer consults his staff over any issue, he takes on board what they have to say in his deliberations before any decision is made. Consultation means discussions, examining a range of options and working together to achieve a desired objective. It does not mean simply a manager directing his employees a certain way on a take-it-or-leave-it basis. Nor does it mean employees having the right to control the agenda and reject anything advanced for discussion by the employer and, in the case of Mr Wise, ripping up documents which fall into his hands. 36 I note in that respect the stated objective of the RBS is to give the BCSC workforce "...significant input and control over its area of work..." and "...the authority and responsibility for maintenance co-ordination, raw material procurement, involvement in continuous improvement and the safe and efficient operation of their areas of plant...". That suggests to me a higher level of consultation between BCSC management and its employees but it does not mean that the employees have to right to dictate what is to occur. I also note that the letter dated Tuesday, 1 July, 2008 which Mr Chadwick provided to the AWU also ensures that BCSC is "...willing to consult with the AWU and all employees on an ongoing basis for the purpose of monitoring the work associated with the loading of rail wagons for the Cobar contract..." 37 It would therefore seem to me to be appropriate that beyond what is customarily the case with the weekend work of loading the rail wagons by production employees, ie the regular weekend relief work, BCSC should confer in advance with the employees for any other occasions where production staff may be called in to load the rail wagons. That consultation is contemplated in the RBS and is no more that common industrial practice, I would think. 38 That having been said, I nevertheless conclude that the production staff are obliged to perform the work of loading the rail wagons and I make an order to that effect. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.