Industrial Relations Commission of New South Wales CITATION: Notification under section 130 by the Australian Workers' Union, New South Wales (Port Kembla Branch) of a dispute with BlueScope Steel (AIS) Pty Ltd re stand-down of employee at Slab Yard [2007] NSWIRComm 1036 APPLICANT The Australian Workers' Union, New South Wales (Port Kembla Branch) PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Ltd FILE NUMBER(S): IRC 309 of 2007 CORAM: McKenna C CATCHWORDS: Industrial dispute - crane operating accident - disciplinary action against employee - union disputed severity of disciplinary outcomes - union contended disparity occurred in disciplinary outcomes for employee and supervisor - no cause to intervene to recommend reimbursement of wages lost by employee during unpaid suspension - company advised to consider carefully the outcomes of the supervisor's performance/remuneration review to address perception that it applies differing standards - premature to make any further recommendation - matter adjourned pending supervisor's review - leave to relist LEGISLATION CITED: Industrial Relations Act 1996 s130 HEARING DATES: 10/05/2007 DATE OF JUDGMENT: 30 May 2007 APPLICANT Mr A Gillespie, AWU LEGAL REPRESENTATIVES: RESPONDENT Mr A Mayne, BlueScope DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES McKENNA C 30 May 2007 Matter No IRC 309 of 2007 NOTIFICATION UNDER SECTION 130 BY THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES (PORT KEMBLA BRANCH) OF A DISPUTE WITH BLUESCOPE STEEL (AIS) PTY LTD RE STAND DOWN OF EMPLOYEES AT SLAB YARD STATEMENT [2007] NSWIRComm 1036 1 On 26 December 2006, John Anthony, who is employed by BlueScope Steel (AIS) Pty Ltd as a Level 3 Operator, was involved in a crane operating accident while lifting slabs. Mr Anthony maintains the accident was caused by some form of mechanical or electrical fault with the crane. The accident damaged the crane/platform, with the result that it was difficult to manoeuvre the door. Potentially, at least, there was other structural damage that was not immediately visible. 2 BlueScope has certain procedures in place that employees are required to follow in the event of such accidents, being procedures with occupational health and safety purposes. Those procedures were not followed. In short, Mr Anthony reported the accident and underwent drugs and alcohol testing. Mr Anthony then resumed lifting operations - even though he considered the earlier accident had been caused by faulty mechanics or electrics within the crane, and the crane itself was now also structurally damaged. Mr Anthony undertook at least some of the post-accident crane operations at the request or direction of his supervisor (whose name was not disclosed in the proceedings) in circumstances where the supervisor knew there had been an earlier accident. The reason why there was such a disregard for standard occupational health and safety procedures was not elaborated in the proceedings, other than a suggestion there may have been concerns about disruption to production in the hot strip mill. 3 The incidents on 26 December 2006 subsequently came to the attention of Scott Russell, the responsible manager, who, after further inquiries, decided to take the following action concerning Mr Anthony. First, Mr Anthony was suspended for two days without pay. Second, Mr Anthony received a warning, which was noted on his history card. Third, Mr Anthony was informed that he would not be permitted to resume crane driving duties until he underwent certain competency training and testing. 4 On 15 March 2007, the Australian Workers' Union, Port Kembla Branch filed a dispute notification under s130 of the Industrial Relations Act 1996 concerning the disciplinary action taken against Mr Anthony. As a result of the parties' negotiations since that date, they have reached agreement on a sunset date for the warning given to Mr Anthony. The parties have also reached agreement on the form of "refresher" training that Mr Anthony will undertake. However, the parties are at an impasse concerning payment for the period of the suspension, with a suggested compromise on part-payment ultimately failing to resolve the remaining dispute. The parties have agreed that instead of pressing the issue of the AWU's claim for payment to a fully arbitrated hearing, they would rely simply on submissions in conciliation and accept the Commission's recommendation. As such, no evidence was adduced in the proceedings. 5 Mr A Gillespie, for the AWU, submitted that the initial accident was not the fault of Mr Anthony - who has attributed the cause of the accident to a temporary mechanical or electrical fault. Although the AWU conceded that Mr Anthony should not have operated the damaged crane after the accident, the AWU submitted that the disciplinary outcomes were nonetheless too severe in all the circumstances. In this respect, the AWU noted that Mr Anthony was an employee of 41 years' satisfactory service with BlueScope, of which the better part of the past decade had involved a good crane driving record. The AWU adverted to outcomes for crane operators who had been involved in other accidents, submitting that the penalties on Mr Anthony had been much more onerous in the scheme of things. The principal thrust of the AWU's submissions was, however, that BlueScope had been unfair to Mr Anthony when the actions against him were considered in the context of the comparatively more lenient treatment of the supervisor who was closely involved in the occupational health and safety breaches on 26 December 2006. 6 BlueScope attributed the accident to driver error, as the inspecting engineers could find no evidence of any defect when an inspection of the crane was undertaken as part of a subsequent investigation into the accident. In any event, Mr A Mayne, for BlueScope, submitted that the principal concern was not the initial accident itself, but, rather, Mr Anthony's post-accident conduct in resuming crane operations contrary to the procedures that properly should have been followed. BlueScope conceded that the supervisor should not have directed Mr Anthony to continue to operate the crane following the accident and that the supervisor was also at fault for having done so. BlueScope submitted that the outcomes it determined as being appropriate for Mr Anthony were reasonable having regard to the safety breaches following the accident, particularly as Mr Anthony was such an experienced crane operator. BlueScope submitted that its different treatment of the supervisor and Mr Anthony was also appropriate because the supervisor was new and inexperienced in his role. The supervisor had been counselled and a notation was placed on his history card; and his involvement in the events on 26 December 2006 will also be taken into account in his next performance/remuneration review. 7 I turn now to my consideration of the matter. On Boxing Day 2006, Mr Anthony was involved in a crane driving accident. The cause of the accident is disputed, and cannot be determined by me on the basis of the contested submissions of the parties. In any event, it appears the more significant concern for BlueScope was the post-accident operation of the damaged crane, contrary to established occupational health and safety procedures in which Mr Anthony was fully trained. As to that, two employees - an experienced crane driver and a more senior ranking employee charged with the responsibility for his supervision - engaged in the joint enterprise of resuming lifting operations with a structurally damaged crane following an accident that the driver considered was caused by an unrectified electrical or mechanical failure. The seriousness of this breach of procedures cannot be overstated, being systems put in place by BlueScope to protect health and safety at the workplace - in a heavy industry notoriously beset by injuries and fatalities when safe systems of work are not in place or when systems fail. There is really no acceptable excuse for an experienced crane driver and his supervisor to disregard reasonably-required safety procedures, as occurred on 26 December 2006. 8 BlueScope has an award-based entitlement to effect unpaid suspensions in certain circumstances (see c136.3 - Stand Down of Employees and Summary Dismissal). I am satisfied that the failure by Mr Anthony to follow appropriate post-accident procedure amounted to a "neglect of duty" within the meaning of c136.3.1 of the award. That is, Mr Anthony was obliged to follow certain post-accident procedures - but failed to adhere to that duty in as much as he resumed operations in a structurally damaged crane which he considered also had an electrical or mechanical fault that had been the cause of an earlier accident. As to other award-specified prerequisites, it appears an investigation was taken within the meaning of cl36.3.1(a) (even though the AWU disputed the adequacy and fairness of that investigation) and Mr Russell was authorised to effect the stand-down. The parties also submitted that the appeal process contemplated in c136.3.1 of the award had been undertaken before the dispute notification was filed. As such, the stand-down appears to have been effected within the parameters of the award. 9 Having considered the parties' submissions, the circumstances of this case would not lead me to recommend that BlueScope should reimburse Mr Anthony for the two days' wages lost during the suspension. The suspension, and the length of it, do not seem objectively unreasonable when considered in the context of the manifest neglect of safety procedures by a properly trained crane operator in resuming operation of a crane with possible accident-causing electrical or mechanical faults, visible structural damage and possible damage that was not visible. I should note that if the circumstances of this matter had involved a suspension for refusing a direction to operate the crane after an accident, I would, without hesitation, have recommended reimbursement of any lost remuneration. 10 Apart from the period of unpaid suspension, Mr Anthony has suffered further financial losses in potential overtime earnings, while negotiations were continuing between the AWU and BlueScope as to the type of training that should be undertaken before his resumption of crane driving duties. BlueScope modified its initial approach in this respect, following representations from the AWU that WorkCover alone was the appropriate accreditor. The subsequent overtime payment losses appear to be a corollary to the length of time that the parties' discussions took in reaching agreement on the form of training, rather than being indicative of arbitrary unfairness in the decision that further training was necessary. In this respect, there is, again, nothing objectively unreasonable about expecting an employee to undertake retraining when the employee has demonstrably failed to observe proper procedures. Indeed, it would have been quite remiss of BlueScope, in terms of its occupational health and safety obligations as an employer, not to re-instruct Mr Anthony (and his supervisor) in the appropriate procedures, and the need for adherence to those procedures, in the wake of the events on 26 December 2006. 11 Although I have not been satisfied that the Commission should recommend reimbursement of Mr Anthony's remuneration for the two days' unpaid suspension, I accept the AWU's submission there are reasonably-based grounds to support a perception that BlueScope applied one set of standards to Mr Anthony and another, more lenient, set of standards to his supervisor. 12 There is disagreement between the parties about the detail of some of the events on and following 26 December 2006, but there is no dispute concerning the core incidents, namely, that Mr Anthony was involved in a crane driving accident and then both Mr Anthony and his supervisor failed to follow the proper post-accident procedures. Even though both Mr Anthony and his supervisor simultaneously participated in fundamental failures concerning occupational health and safety procedures following the accident, BlueScope determined to deal with the employees quite differently. BlueScope's submission that the outcomes were different because the supervisor was comparatively inexperienced does not satisfactorily address the differences in approach. The fact is the supervisor was the more highly-ranked employee, and was responsible for the appropriate supervision of employees on the shift. Instead, the submissions indicated, the supervisor himself participated in a breach of procedures or directed Mr Anthony in his breach of procedures, or both. 13 To recap on the outcomes, Mr Anthony was given a contemporaneous punishment of a two days' unpaid suspension; he was contemporaneously removed from crane driving, pending a requirement that he undergo further testing or training, or both (which collaterally resulted in losses in potential overtime earnings while discussions continued about the nature of the requirements in this respect); and he was given a contemporaneous warning that was noted on his history card. In contrast, the supervisor was not suspended without pay; he was not removed from any duties; and he was not required to undergo any further retesting or retraining pending a resumption of his usual duties. 14 BlueScope submitted there had, however, been three outcomes for the supervisor. First, the supervisor was counselled (as to this, the AWU submitted the supervisor was not counselled until some time after mid-March 2007 - and only as a tardy response to the filing of this dispute notification): Second, BlueScope's submissions indicated a "notation" had been made on the supervisor's history card (as to this, the AWU noted that Mr Anthony received a "warning" on his history card). Third, BlueScope submitted the supervisor's conduct on 26 December 2006 will be taken into account in his upcoming performance/remuneration review. 15 The AWU submitted, without demur from BlueScope, it was not until the proceedings on 10 May 2007 that the AWU first became aware that the incidents on 26 December 2006 will be taken into account in the supervisor's performance/remuneration review. The parties' submissions concerning the review represented a significant and unexpected development in terms of the arguments about the relative treatment of the two employees. That is, it may be the case that the supervisor, in the end, has a practical "punishment" equal to, or greater than, those imposed on Mr Anthony. 16 As things stand, considering the outcomes to date, there are, unarguably, grounds to support the AWU's submission that markedly different outcomes have been applied by BlueScope to Mr Anthony and his supervisor following their joint involvement in breaches of occupational health and safety procedures on 26 December 2006. Of course, it will not always be the case that the same set of circumstances will necessarily demand the same disciplinary response for different employees: what is fair, reasonable and appropriate will depend on the circumstances of each case. Nonetheless, BlueScope's treatment of employees who engage in the same or similar breaches should be reasonably even-handed and proportionate, and be seen as such. 17 If BlueScope wishes to address the perception that it has differing standards for different classes of employees, it will need to consider carefully the outcome of the supervisor's performance/remuneration review. I appreciate that the details of an individual employee's review are matters which need to be handled with privacy considerations in mind. Equally importantly, the way BlueScope responds as an organisation to individual employees' breaches of occupational health and safety imperatives would seem to demand a high level of transparency - if for no reason other than to reinforce to all employees, irrespective of their rank, the seriousness with which individual occupational health and safety obligations must be taken. 18 The principal submission from the AWU was that there had been inequitably different treatment of two employees in terms of BlueScope's responses to breaches by each of them of the company's occupational health and safety procedures, but it emerged in submissions only on 10 May 2007 that the events would be assessed as part of the supervisor's performance/ remuneration review. In circumstances where the decision of BlueScope concerning the supervisor's upcoming review is yet to be made, it obviously would be premature to attempt to determine whether any ultimate imbalance in the treatment of the two employees was so unfair and inequitable as to demand any further recommendation. As Mr Mayne submitted, the review may have outcomes for the supervisor which are at least equal to, or more adverse than, the outcomes BlueScope determined as being appropriate for Mr Anthony. 19 In those circumstances, I propose to stand the matter over pending the outcome of the review with leave to seek a relisting on the application of either party. 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.