Industrial Relations Commission of New South Wales CITATION: O'Connor v. BlueScope Steel (AIS) Pty Limited [2009] NSWIRComm 1075 APPLICANT Australian Workers Union PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): IRC 924 and 1220 of 2009 CORAM: Connor C CATCHWORDS: dismissal of employee - steelworks - referral agreement for an industrial dispute - claim of unfair dismissal of employee - collision and damage to crane - failure of employee to report damage to crane - issues of safety - application for reinstatement refused Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000 Federal Workplace Relations Amendment (Work Choices) Act 2005 Federal Fair Work Australia Act 2009 Australian Workers Union v. Transfield Services (Australia) Pty Limited [2008] NSWIRComm 1120 Corbeski v. BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1170 CASES CITED: Farrugia v. BHP Steel Limited - unreported Jovanovski v. BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1 Vehicle Builders Employees Federation of Australia v. Toyota Manufacturing Australia Limited (1987) 24 IR 74 HEARING DATES: 22/09/2009, 06/10/2009 DATE OF JUDGMENT: 12 November 2009 APPLICANT Andrew Gorman Australian Workers Union LEGAL REPRESENTATIVES: RESPONDENT Aaron Dearden Duncan Cotterill Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 12 November, 2009 Matter No IRC 924 and 1220 of 2009 Christopher O'Connor and BlueScope Steel (AIS) Pty Limited Application by the Australian Workers Union under S.84 of the Industrial Relations Act, 1996 Notification of an industrial dispute by the Australian Workers Union under S.130 of the Industrial Relations Act, 1996 Referral of an industrial dispute under S.146A of the Industrial Relations Act, 1996 by the Australian Workers Union and BlueScope Steel (AIS) Pty Limited DECISION [2009] NSWIRComm 1075 Introduction 1 Mr Christopher O'Connor was employed as a crane driver by BlueScope Steel (AIS) Pty Limited in its logistics operations. His services were terminated on Thursday, 18 June, 2009 after 11 years of employment for alleged serious misconduct - causing damage to an overhead crane, failing to report it and thereby leaving the crane in an unsafe condition which put other employees at risk. Mr O'Connor is a member of the Australian Workers Union which lodged an application on his behalf pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, seeking his reinstatement in employment. 2 The matter was allocated to me and I set the matter down for a preliminary hearing for conciliation on Tuesday, 21 July, 2009. Those proceedings and all subsequent proceedings were convened in the Commission's premises at 90 Crown Street, Wollongong. Conciliation failed to resolve the matter. I programmed it for arbitration on Tuesday, 15 September, 2009. Complimenting the Part 6 application for Mr O'Connor, the AWU has also lodged a notification of a dispute under S.130. I set that matter down for a mention on Monday, 24 August, 2009 and issued the certificate of attempted conciliation in accordance with S.135, lodging it in the prescribed manner, joining it with the Part 6 application. 3 The matter was originally set down for a hearing on Tuesday, 15 September, 2009 but on a request by the AWU I adjourned the proceedings for hearing on Tuesday, 22 September, 2009 and Tuesday, 6 October, 2009. Mr Gorman represented Mr O'Connor and the AWU in the hearing, calling him to give evidence. Mr Dearden represented BlueScope Steel in the hearing. He called three witnesses to give evidence in the hearing: Mr Geoff Davis, a contractor working as logistics operations manager, Mr Nathan Kempton, an electrical maintenance co-ordinator, and Mr John Williams, a human resources advisor for the BlueScope Steel supply chain and logistics. 4 The S.130 notification confirms the jurisdiction of the State Commission to deal with the matter. By virtue of the 2005 Federal Workplace Relations Amendment (Work Choices) Act, the State unfair dismissal jurisdiction is excluded for employees of trading corporations within the meaning of S.51(xx) of the Commonwealth Constitution, ie BlueScope Steel in this hearing [State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1]. Those restrictions have been adopted by the 2009 Federal Fair Work Australia Act. But, by a 2006 amendment to the State IR Act [S.146A] the State Commission may be empowered to exercise any functions conferred upon it. BlueScope Steel and the trade unions representing its employees, including the AWU, have adopted a protocol by which such a S.146A referral agreement is provided for individual industrial disputes. A S.146A referral agreement has been provided to me in the following brief terms: "...The alleged unfair dismissal of Christopher O'Connor..." 5 It is a combination of Ss.130 146A and Part 6 which provides me with the necessary jurisdiction to deal with this matter - see, for instance, my unreported decision of Wednesday, 11 April, 2007 in Jovanovski v. BlueScope Steel (AIS) Pty Limited [Matter Nos. IRC 2430 and 3487 of 2007 at p.4], viz: "...Whilst an unfair dismissal - essentially a dispute between an individual dismissed employee and his employer - is clearly an industrial matter [S.6(2)(e)]...to my mind it lacks the necessary ingredient to make it an industrial dispute which ordinarily denotes a number of employees acting collectively through their trade union. That must mean that Part 6 applications per se are not industrial disputes and, to my mind, are not therefore something which, on their own, can be covered by a S.146A(2) referral agreement..." The S.130 notification establishes this matter as an industrial dispute , and forms the basis of the S.146A agreement. The Part 6 application provides the range of remedies for Mr O'Connor (and commits him to those remedies alone). The Incident 6 Mr O'Connor and two other employees had been involved in the morning of Wednesday, 10 June, 2009 in unloading trucks by forklifts and crane. Mr O'Connor conceded that when he was using the crane [Crane 111] to lift coils from the truck to an area where he could move them by forklift, he accidentally bumped the crane end-stop - but, he claimed, the accident was in his opinion not sufficient to cause the damage to the crane subsequently alleged against him. Before he ceased work for his lunch he became aware that there were no other trucks waiting in the holding area and all the rail work had been performed. 7 Mr O'Connor claimed that he was unwell that day. He had commenced work with a migraine headache and he asked the other two employees on his shift if they could manage without him. He claimed that they both replied: "If you are sick, go home." He spoke to Mr Ricky Adams, the site manager of the stainless warehouse and asked him if he may leave the site. Mr Adams ultimately permitted him to do so. Mr O'Connor then visited a medical centre and was informed by the medical practitioner who attended to him that he should "...go home and have a quiet 48 hours..." 8 At midday Mr Davis received a telephone call on his mobile telephone from Mr Ricky Adams, the site manager of the stainless warehouse of BlueScope Steel informing him that Crane 111 had been badly damaged and was not working. Mr Adams had called in crane maintenance to look at it. Mr Davis asked Mr Adams if the damage had been reported and Mr Adams replied: "Yes. It was reported at 11.15am this morning. The operator came to perform a cross-travel motion and the crane wouldn't work. The operator reported some kind of explosion from the crane." Mr Davis informed Mr Adams that he would attend the site and he arrived there at approximately 12.30pm and, since Mr Davis is not inducted in the area, he was escorted into the warehouse by Mr Adams. 9 Mr Davis was concerned that there had been no earlier report of any such incident. He became more concerned when he observed mechanical debris in Mr Adams's desk which he recognised to be broken dog clamps and bolts from the crane which he had concluded had been dislodged and fallen to the ground after a collision with the crane, raising in his mind serious occupational health and safety issues. Mr Adams pointed to a large piece of debris which Mr Davis recognised as a piece from the catenary runner of the crane. Mr Adams said: "That piece was found 20 metres away on the ground from where the crane was." 10 Mr Davis recorded in the written statement which formed the basis of his evidence in this hearing: "...I was surprised that such a large piece of debris was able to travel such a distance and concluded that the collision must have been significant to send a piece of debris that size and weight to travel across the warehouse floor... A short time after this I went to inspect Crane 111 itself and the damage. When I arrived at Crane 111 I noticed that the first two rows of coils that were underneath where the crane had collided with the end-stops were covered in dust and chunks of debris. It was apparent the dust and dirt had been dislodged from the railing on the roof of the warehouse from the force of the collision. This indicated to me that the force of the collision was severe..." The Investigation 11 Mr Adams had called Mr Kempton on the telephone to come and inspect the damaged crane. Mr Kempton recalled Mr Adams saying on the telephone: "The crane driver has found bits and pieces on the floor from the crane. Can you come over and have a look at it? It was raining bolts." Mr Kempton, Mr Adams and Mr Glen Oates, the cranes mechanical maintenance supervisor, inspected the damaged crane together. In a written statement Mr Kempton described the damage he observed on his inspection, viz: "....When we arrived at Crane 111 I could see, looking up from the floor that the catenary cables were not sitting correctly... Also when I approached Crane 111 I noticed pieces of crane machinery which had fallen to the ground. This was consistent with what Mr Adams had described to me during our telephone discussion. From my initial observations it was apparent Crane 111 was very badly damaged... When I approached the driver's cabin I noticed that the metal chair in the driver's cabin had fallen over and was lying outside the door. Mr Oates and I picked up the chain and put it back in the cabin and locked out the crane's main switch. I proceeded to the lower deck which is between the cabin and the bridge where I saw on the adjacent deck that some of the electrical panel doors were open, indicating a severe impact had occurred forcing them open. These doors have a locking device which keeps them closed and would require a significant impact to force these open... Once on the bridge (top of the crane) I could see that the catenary cables were lying on the floor of the bridge and were missing some trolleys. I immediately knew it would take at least two days to repair these, provided that the cables were not damaged beyond repair... On closer inspection, I discovered the catenary cables had been slashed and torn by the catenary trolley. This most likely occurred when the cables were still attached to the trolley and were pulled taught beyond their limit during the cross travel motion. This meant the catenary cables were not able to be repaired and needed to be replaced... The catenary tow structure was found torn from the tow arm. In my opinion, this was due to the cross travel lifting up off the cross travel rail, causing the fixed part of the towing arm to bend to the east and crack the weld. When the catenary cables were pulled tight they put extra pressure on the towing arm causing it to tear off... I then found two catenary trolleys jammed into the damaged section of the catenary monorail. This would have occurred when Crane 111 hit the southern end-stop and caused the catenary I-beam to move. When the 'I' beam moved it stopped the trolleys from moving the full range of motion. Once the trolleys were jammed they could no longer move freely along the I-beam and when the cross travel was put into motion the trolleys remained at the damage section of the I-beam. When the cross travel kept moving, it forced the cables to pull through their trolley and caused the damage I have mentioned... The next part of Crane 111 I inspected was the cross travel cable support arm (or tow arm). Two plates which are part of an attachment welded on to the tow arm had been bent 90 and the tow arm had sheared completely off. This part of Crane 111 had taken the impact of the collision when it hit the end-stop. It was apparent the force of the impact must have been extremely severe to have caused this damage... After checking Crane 111, Mr Oates and I inspected the damage to the cross travel rail. I found the rail itself had been bent and the cross travel rail clamps had broken off. For this rail to be bent, the cross travel section of Crane 111 would have had to lift off from the tracks which would have required a significant impact. Given the cross travel section of the crane is approximately 10 to 15 tonne, the impact needed to lift it off the tracks would have been very significant. This was most likely caused by Crane 111 travelling at high speed into the southern building end-stops. This was also confirmed by the crane engineers who subsequently assessed the incident as a third party... After this, I checked the catenary I-beam. I found that 90% of the catenary I beam was severely damaged. The beam had warped and come away from the bracket holding it in place. The only mechanism stopping the cross travel from falling is the I-beam which is not designed to take this kind of force. I could only conclude that it was just luck that the cross travel did not fall to the ground after the impact with the end-stop. After inspecting Crane 111, it was apparent the damage had been caused by two incidents. The first was the significant impact between Crane 111 and the southern building end-stop. The second incident was when the next operator used the crane and caused further damage to the catenary I-beam, catenary trolleys and the towing cable tow arm. The damage to Crane 111 was the most damage I have ever seen to a crane. In my view the majority of damage was caused by the second incident which would have been avoided if the operator had reported the initial incident... After conducting the initial inspection of Crane 111 I was extremely concerned about what had happened. The initial damage to Crane 111 had been caused by the crane travelling at high speed into the building's southern end-stops. Importantly, and of most concern, the operator had not reported the incident and therefore no one had checked Crane 111 was safe to continue work. In reality, Crane 111 was unfit for use and needed immediate repairs. By not reporting the incident the operator who was using Crane 111 at the time of the incident exposed the next employee who used Crane 111 and those employees who worked in close proximity to risk, injury or death. There was a very high likelihood of something further falling off Crane 111, such as off the structural end carriages or rail stops as well as bolts from the cross travel rail clips, towing cables and karabiners. Any of these could have fallen and caused serious injury or death to an operator..." 12 An investigation of the incident was conducted and Mr Davis and Mr Adams commenced interviewing employees. Mr O'Connor could not be interviewed at that time as he had left the site sick. Mr Davis suspects that Mr O'Connor had left the site to avoid being interviewed over the incident and to avoid being tested according to the established drug and alcohol policy of BlueScope Steel. It is standard practice in the Port Kembla steelworks of BlueScope Steel that where there is a "significant incident" - and clearly a collision with an overhead crane would be regarded as such - the employees involved in that "significant incident" are obliged to provide a urine sample for drug and alcohol testing. Such testing did not occur with Mr O'Connor on Wednesday, 10 June, 2009 since Mr O'Connor left the site before that could take place. 13 Mr Davis and Mr Williams also obtained video surveillance material and on Friday, 12 June, 2009 watched it to confirm the time of the incident [8.06am]. The video was shown in the hearing. An operator is observed entering the warehouse at that time on a forklift, getting off the forklift and picking up the remote control to operate the overhead crane, which is seen travelling towards the southern end of the warehouse. The crane was off camera when it apparently impacted with the end-stop but the camera which is attached to one of the pylons shuddered. The operator, who is looking away from the crane at that point is shown reacting to the collision by turning to look in its direction suddenly. Mr Davis claimed in his written statement that the operator is observed "jumping" at that time in surprise but I was not able to detect this as it was shown in the hearing. Nevertheless, the video shows the crane moving at considerable speed and the operator not taking any steps to slow it down as it moves off camera. The operator continues to use the crane to remove a coil, with the crane cross-travelling some little distance. The operator then returned to the forklift and drove away. 14 From that material it remained unclear who was operating the crane at the time of the incident, although Mr Davis commented in his written statement that "...it looked like Mr O'Connor...", ie it was his height and apparent weight and there was grey hair poking out from under the operator's hard hat - none of the other warehouse employees had grey hair. Mr Davis was therefore convinced that the operator in question was Mr O'Connor. In any event, Mr O'Connor has subsequently admitted that he was operating the crane at that time and that he hit the end-stop. He conceded in his evidence that he was the operator observed in the video. 15 Mr Davis had interviewed Mr O'Connor on Thursday, 18 June, 2009. Mr O'Connor recorded in the written statement which formed the basis of his evidence that: "...At that meeting I was informed that I had left the crane in an unsafe condition on Wednesday, 10 June, 2009 after bumping the end-stops. I strongly deny this as after bumping the end-stops I proceeded to continue using the crane to remove the coil from its position. I used both long travel and cross travel. At the meeting I never denied hitting the end-stops. I was truthful throughout the whole meeting. In my opinion, there was no damage to the crane as it operated normally and there did not seem to be any problems. I don't believe that bumping the end-stops as I did would have caused the damage to the crane that I am being accused of...." 16 I note that it was Mr Kempton's understanding that there may have been two employees involved in the damage to the crane - the employee involved with the initial impact at the end-stop (Mr O'Connor) and another employee (not identified) who operated the crane without knowing it had been damaged. Mr Kempton's claim is that the major part of the damage to the crane occurred when the second employee used it to cross-travel further than Mr O'Connor had earlier done. 17 Mr Davis's recollection of the meeting he had with Mr O'Connor on Thursday, 18 June, 2009 was as follows: Mr Davis: Were you required to use Crane 111 during the shift? Mr O'Connor: Yes. Mr Davis: Did you actually drive the crane? Mr O'Connor: Yeah. I moved a coil. I was using it and I hit the end-stop a bit when I was bringing the crane down the warehouse. Mr Davis: How did you come to do that? Mr O'Connor: Don't know. It was just a bit of a bang. Mr Davis: Did you do a pre-start check before using the crane? Mr O'Connor: No. Mr Davis: There was a lot of damage to the crane. More damage than from a little bump. Pieces of crane had fallen down all over the ground and it is still out of service. Mr O'Connor: No, I didn't see anything like that. Maybe just some dust. Mr Davis: Why didn't you report the incident? Mr O'Connor: I didn't think the collision was that bad or that there was damage. I've been driving cranes for 30 years and hit the end-stops all of the time. Mr Davis: But you know all incidents have to be reported. You were there earlier in the year in April when we went through all this. All incidents have to be reported. The crane is a serious piece of equipment and whether you thought it was bad or not doesn't matter. We could have had someone seriously injured the way that crane was left. All incidents absolutely need to be reported. Did you check for damage? Mr O'Connor: No. Mr Davis: Then how did you know there was no damage? Mr O'Connor: I don't know. Mr Davis: Is there anything else you want to say? Mr O'Connor: The end-stops always get hit. You have to park the crane on them to get into it when you drive it from the cabin. It wasn't bad. 18 Mr O'Connor also claimed in his written statement that at the time of his collision: "...there were three other people within close proximity of the crane, including a supervisor. If I had hit the end-stops as I am being accused of, these three people would have had to have heard the collision. Yet none of these three people heard anything at all..." However, Mr Davis doubted that would have been the position. He commented in his written statement from the interviews he conducted with the employees: "...it was apparent that each of the operators and the shift operations manager had been outside loading steel beams onto railway cars when the incident occurred. I was satisfied none of the operators could have heard the collision as the work area is a noisy environment. It was highly unlikely that an operator could hear a collision within the warehouse whilst performing these tasks as there are a lot of other noises in this environment to compete against. For example, (one of the operators) was working on the forklift sitting inside a confined cabin. The noise of the engine of the forklift and closed cabin would disguise sounds from the warehouse. There is also a considerable amount of noise from the moving of the steel bars themselves. There is 'banging' and 'crashing' as they are picked up by the forklift and as they are put down again on the railway cars. Additionally, on the day of the incident the weather was really poor and there was a blustery wind. I recall that (one of the employees) was wearing a balaclava under his hard hat which would muffle any noise from the collision inside the warehouse..." Conclusion 19 The uncontested evidence before me in this hearing is that an accident occurred with Crane 111 and that Mr O'Connor was responsible for that accident, albeit that he believed that it was not as serious as the later assessment of it by Mr Kempton indicated. The actual damage to the crane speaks for itself in that respect. It may be the bulk of the damage to the crane did not occur when Mr O'Connor hit the end-stop with it and that most of the damage to the crane was caused when the second employee used it. But if the crane had been left in a damaged state without Mr O'Connor informing any person that it had been damaged, the fault for any subsequent damage to the crane would still have been his and not any later operator who used the crane without knowing it was damaged. 20 Mr Gorman suggested in his submissions that damage to a crane can be incremental, arising from many minor bumps. Frequent low speed collisions may not render the crane immediately unserviceable but will gradually lead to cracking, broken bolts and damaged energy absorbers which will increase safety risks from falling objects, increase maintenance and inspection costs and reduce crane life. That is no doubt true. There is an internal e-mail which supports Mr Gorman's claims in that respect. But the video supplied to me shows the crane moving at what I regard as excessive speed and Mr O'Connor not paying what I consider proper attention to it at the time of the collision. The collision was significant, in my opinion - sufficient to cause the fixed camera to shake. 21 Mr Gorman emphasised in his submissions that Mr O'Connor had not wilfully damaged the crane and that he had been honest throughout the investigation concerning the accident. Mr Gorman also claimed that Mr O'Connor had a relatively clean employment record and that should influence me to order his reinstatement. He referred to a number of my decisions where, despite obvious breaches of safety by employees in the steelworks, I have nevertheless ordered the reinstatement of the dismissed employee, having regard to their past unblemished employment record, eg where the dismissed employee threw a knotted rag and water at his cousin, apparently teasing him - my unreported decision of Wednesday, 14 January, 2004 in Farrugia v. BHP Steel Limited [Matter No.IRC 6739 and 6812 of 2003]; where the dismissed employee failed to use a harness when working at height [Jovanovski v. BlueScope Steel (AIS) Pty Limited]; where the dismissed employee moved a load on an overhead crane in the general direction of another employee with whom he had an argument - my unreported decision of Thursday, 21 December, 2006 in Corbeski v. BlueScope Steel (AIS) Pty Limited [Matter No.IRC 2909 of 2006]; and where the dismissed employee threw a metal bar in the direction of another employee with whom he had an argument - my unreported decision of Thursday, 18 December, 2008 in Australian Workers Union v. Transfield Services (Australia) Pty Limited [Matter No.IRC 1822 of 2008]. 22 But I regard the incident involving Mr O'Connor as a considerably more serious safety event than those other instances raised by Mr Gorman, with the potential to cause injury or death to other employees. In his submissions Mr Dearden stressed the importance of safety in the steelworks and the cardinal rules for workplace safety in the steelworks. As I indicated in Jovanovski v. BlueScope Steel (AIS) Pty Limited (at p.13): "....I am uncomfortable to intrude in these proceedings in any manner which would possibly undermine the sensible emphasis which BlueScope Steel places on safety issues in the steelworks with its cardinal rules. There is a need for employees to appreciate that, among other things, their continued employment in the steelworks is largely dependent upon their compliance with those cardinal rules..." The importance of workplace safety is confirmed in the 2000 Occupational Health and Safety Act. As Mr Dearden submitted, breaches of workplace safety have frequently resulted in the dismissal of the employee guilty of that breach [eg Vehicle Builders Employees Federation of Australia v. Toyota Manufacturing Australia Limited (1987) 24 IR 74]. 23 It must follow from the evidence that Mr O'Connor was solely responsible for all of the damage to the crane and, more importantly, the occupational health and safety implications to both himself and the employees with whom he worked by leaving it in that unsafe condition without reporting it before leaving work suddenly on that day. That is a serious breach of safety, in my opinion - a serious breach of the cardinal rules for work in the Port Kembla steelworks on which BlueScope Steel quite properly places considerable emphasis. 24 For those reasons, I see no grounds to intervene in support of Mr O'Connor and the AWU in this hearing and I decline to do so. The AWU application made on his behalf is dismissed. 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.