Industrial Relations Commission of New South Wales CITATION: BlueScope Steel Limited v. Australian Workers Union [2008] NSWIRComm 1070 APPLICANT BlueScope Steel Limited PARTIES: RESPONDENT Australian Workers Union FILE NUMBER(S): IRC 90 of 2008 CORAM: Connor C CATCHWORDS: industrial dispute - steelworks - paintline - reduction in manning - rover positions - trial period concluded - matter settled by conciliation - agreement reached - matter discontinued LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 19/08/2998 EXTEMPORE JUDGMENT DATE : 19 August 2008 APPLICANT Mark Davis BueScope Steel Limited LEGAL REPRESENTATIVES: RESPONDENT Branko Gorgievski Australian Workers Union DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Tuesday, 19 August, 2008 Matter No IRC 90 of 2008 BlueScope Steel Limited and the Australian Workers Union Notification of an industrial dispute by BlueScope Steel Limited under S.130 of the Industrial Relations Act, 1996 re reduction of rover position on the paintline Referral of a matter under S.146A of the Industrial Relations Act, 1996 by BlueScope Steel Limited and the Australian Workers Union DECISION [2008] NSWIRComm 1070 Background 1 BlueScope Steel Limited lodged a notification of an industrial dispute with the Australian Workers Union on Tuesday, 29 January, 2008. The dispute concerned a manning issue. It was proposed to abolish a position of rover on each of the crews on the paintline. The matter came before Grayson DP for a conference on Friday, 1 February, 2008. Those proceedings and all subsequent proceedings concerning this matter were convened in the Commission's premises at 90 Crown Street, Wollongong. A protocol has been developed for the BlueScope Steel operations whereby industrial disputes are referred to the State Commission under S.146A of the 1996 Industrial Relations Act and a S.146A referral agreement has been completed by the parties in that respect. 2 In the proceedings before Grayson DP on Friday, 1 February, 2008 it had been suggested that a six month trial of the new manning arrangements would be put in place. The file was then allocated to me and I set it down for a further conference on Monday, 11 February, 2008 in which the parties identified the features of the trial and I recommended that the trial of the new manning along the following comprehensive lines: * The trial will be conducted over a period of six months. It will commence on and from Sunday, 17 February, 2008; * The crews will comprise of 8 operators who will self-relieve for annual leave. The expectation is for 7 operators to maintain continuous operation: one operator (swinger) shared across the 4 crews, will provide extra annual leave coverage: fixed termers will be directed to continue to follow their individual training plan: they will not form part of the crew numbers. If crew shortages that are unable to be filled arise, the fixed term operators may be required to cover the work; * Operations will continue to be carried out in accordance with the No.3 paintline restructure document: all operators will work to the full extent of the five level employee model outlined in the document; * A system of monitoring will be implemented to record key measures of the safety, efficiency and fairness of the proposed change: the impact of the seven-man operation on the key measures will be analysed, the key business measures including: (i) safety: first priority reporting near misses, incidents or accidents (ii) quality: prime (tonnes) (iii) production: output (tonnes) to plan (iv) operation delays: unplanned and planned (minutes) (v) crew management: crib breaks, operator rotation; The key measures will be collated on a crew-by-crew basis and reviewed at ongoing consultative meetings which will address any issues as they arise on the implementation and operation of the proposed change: a review of before and after trial production outputs will be completed prior to the finalisation of the trial and the shift team leader, in consultation with the crew, will have responsibility for effectively implementing the trial on the crew, manage crew operations, ensure data is collected as per the agreed measures and setting priorities for each shift: he will be accountable for administering the company operations; * The current 5 positions currently manned to continue to be covered at all times: the operators assigned to particular stations will not be required to perform the work of the rover position; * A final consultative meeting will be held in the last week of the trial to determine the level of success of the trial and confirm any agreed outcome. If the trial is agreed to be successful, then the implementation will be confirmed as permanent: any employee affected by this change will be deemed to be surplus from the end of the trial; * If there is a disagreement between BlueScope Steel and the AWU on any of the four tests - safe, efficient, legal and fair - the status quo will apply until the matter is determined by the decision of the Commission. As I have emphasised above, the employees had the opportunity to opt out of the trial at any time. The AWU has now indicated its intention to do so, essentially because it has formed the view that the manning levels in the trial are unsafe and unfair to the paintline operators. 3 I set the matter for further mention on Monday, 7 July, 2008 (for a progress report on the position) and on Tuesday, 19 August, 2008 (to coincide with the end of the trial). However, I reserved the right of either party to seek a more urgent reconvening of the matter if that was required and on Thursday, 3 July, 2008 Mr Gorgievski, representing the AWU in the proceedings, requested that I reconvene the proceedings ahead of the programme that I had set down. I set the matter down for a conference on Friday, 4 July, 2008. 4 I was informed that the paintline employees have formed the view that the arrangements in the trial were no longer workable and Mr Gorgievski argued that the trial should be abandoned as unworkable, unsafe and unfair to the employees. Mr Gorgievski proposed that the parties revert to the previous shift arrangements - 9 employees per shift - and that, since the change proposed was a significant one, the status quo be preserved in that respect until the arbitration of the matter in accordance with the provisions of the BlueScope Steel Limited Springhill and CRM Employees Award [Clause 36.4.3(j)] and the terms of the trial itself. 5 Nevertheless, the parties reached an accommodation for the weekend of Saturday, 5 July, 2008 and Sunday, 6 July, 2008 and reserved further discussions in the proceedings on Monday, 7 July, 2008 before me, as had originally been intended. Mr Gorgievski proposed in those discussions that the rover position on the day shift be retained, making a crew of 9 employees on that day shift, where he considered the bulk of the work was needed. The rover would be available to provide assistance in all aspects of the operation, as needed. Mr Davis, representing BlueScope Steel in the proceedings, needed more time to evaluate this proposal but was reluctant to make any commitment at that time concerning the level of manning proposed by the AWU. I adjourned the proceedings for further conference on Tuesday, 15 July, 2008. 6 On Monday, 7 July, 2008 the AWU wrote to BlueScope Steel giving formal advice that it was no longer prepared to continue the trial, viz: "....At a meeting on Friday, 27 June, 2008...the company was advised of the employees' position that for the last four months they had persevered with unworkable procedures and practices. Despite trying to work through the issues, it came to a point where they could no longer persist working in these situations because it put so much pressure and fatigue on the employees that it had become a situation where it was a case of an accident waiting to happen. The company was advised that the trial would cease on account of safety concerns... We now seek that the status quo remain until the matter can be determined by the Commission..." And in the afternoon of Tuesday, 8 July, 2008 Mr Gorgievski requested that I reconvene the proceedings urgently. I arranged for that to occur on Tuesday, 8 July, 2008. According to Mr Gorgievski , BlueScope Steel management has asserted its rights to amend the shift arrangements for the paintline to meet operational demands. That right has to be qualified by the provisions of the BlueScope Steel Award and, in particular, the status quo arrangements confirmed by the trial. 7 I adjourned the proceedings until Tuesday, 15 July, 2008 to allow the parties to hold further discussions concerning this matter. I regarded it as unfortunate that the trial was being abandoned in this manner. Mr Gorgievski had claimed that the trial was producing problems from the outset for the employees but, in fact, the issue that seems to have been the catalyst for the abandonment of the trial by the paintline employees arose only recently. I would think that it is possible that the existing trial arrangements may be modified rather than throwing the baby out with the bathwater. 8 Nevertheless, the parties have been unable to reach an agreement over the matter and on Tuesday, 15 July, 2008 I programmed the matter for arbitration. I have treated the initiating document for these proceedings by BlueScope Steel as a notification under S.130, issuing the certificate of attempted conciliation required by S.135 and lodging it in the prescribed manner. I had set the matter down for a further mention and programming which occurred on Tuesday, 19 August, 2008. Ultimately, for hearing of the matter was scheduled for Monday, 15 September, 2008 and Tuesday, 16 September, 2008. However, on the status of the negotiations over this matter I commented in the proceedings on Tuesday, 15 July, 2008 that: "....ultimately, it means if I cannot reach agreement and the trial ends, the matter proceeds... I just don't think, if I have no other choice but to abandon everything after this length of time, that's in either party's interests. I would like to see if we can move ahead but clearly the way forward would be, if I can't reach agreement, for me to programme the matter for arbitration..." What clearly is needed is a compromise position with this matter and the suggestions already made by Mr Gorgievski would, in my opinion, provide a solid basis for further discussions to reach such a compromise position. 9 On Friday, 18 July, 2008 the AWU again requested a further urgent conference concerning this matter and I reconvened those proceedings at midday on Friday, 18 July, 2008. I am informed that in the afternoon the paintline operators were intending to cease work over this position. But the employees must understand that the S.146A referral agreement over this matter on which my jurisdiction relies is dependent upon their following the established dispute settlement procedure [DSP] for the Port Kembla steelworks. It does not matter that the S.146A referral agreement is already signed by the parties. It is simply voided by industrial action. 10 In any event, ultimately, in the proceedings before me on Tuesday, 19 August, 2008 the compromise position which I had suggested earlier was reached between the parties and they finalised their position in a document which was provided to me to form part of the file. The rover positions on the paintline are to be reduced to 4 positions - one on each crew - and the annual leave relief (the 'swinger") position is to be abolished. The appointment is to be made of a day work rover on a 5 day x 8 hour roster on certain conditions. 11 I attach that relevant document to this decision. On that basis, the trial is concluded, I grant BlueScope Steel leave to discontinue this matter in accordance with Rule 138 and vacate the dates set aside for the hearing of this matter. 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.