Industrial Relations Commission of New South Wales CITATION: Australian Workers' Union v. BlueScope Steel (AIS) Pty Limited [2005] NSWIRComm 1224 APPLICANT Australian Workers' Union PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): 5769 and 6541 of 2005 CORAM: Connor C industrial dispute - rostered days off - customary procedure in the steelworks - the role of trade union delegates - removal of warning notices on employees' personal records - refusal to move into arbitration - application for reallocation declined - claim of frivolous and vexatious matter CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Newcastle Steel Works Case (1961) AR 48 CASES CITED: Plate Mill Rostered Days Off Dispute Case [2005] NSWIRComm 1136 Transport Workers' Union of Australia v. CWS Transport Services Pty Limited (1990) 39 IR 8 HEARING DATES: 12/20/2005 EXTEMPORE JUDGMENT DATE : 12/20/2005 APPLICANT Dave Hancock Australian Workers' Union LEGAL REPRESENTATIVES: RESPONDENT Adam Dansie Australian Industry Group DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Tuesday, 20 December, 2005 Matter Nos IRC 5789 and 6541 of 2005 Australian Workers' Union and BlueScope Steel (AIS) Pty Limited Dispute notifications under S.130 of the Industrial Relations Act, 1996 re rostered days off in the plate mill DECISION [2005] NSWIRComm 1224 1 There are two separate notifications lodged by the Australian Workers' Union under S.130 of the 1996 Industrial Relations Act with BlueScope Steel (AIS) Pty Limited which are related and flow out of the arrangements for rostered days off in the plate mill of the Port Kembla steelworks. I propose to now deal with the two matters together in these proceedings on Tuesday, 20 December, 2005. I am firmly of the view that this issue has gone on too long for any benefit that can constructively obtained from them for either the AWU or BlueScope Steel. The first S.130 notification by the AWU concerns objection to the proposal advanced by BlueScope Steel by plate mill operators for the RDO's during 2006. The second S.130 notification concerns warning notices recorded on the history cards of three AWU delegates in the plate mill for their alleged failure to follow the dispute settling procedure (the DSP) and for their involvement in a stop work meeting over the RDO's. 2 In fact, RDO's in the plate mill have proven in the past to have been a difficult industrial issue for all concerned. RDO's in the steelworks are common rosters. They are set - one Friday each month - well in advance. Unlike the customary situation, RDO's in the steelworks are not paid breaks, however. Payment for them is made through the shift system in place over the entire shift cycle. The effect is that if an employee has more RDO's than he is entitled he is disadvantaged financially in that he loses an ordinary working day for the year. I have already expressed the view that I regard the system in place, which I understand to be dictated by the computer software that BlueScope Steel operates under, to be unnecessarily complicated and it seems to me that has contributed substantially to past disputes which have come before the Commission. 3 A problem had arisen when BlueScope Steel attempted to change the RDO in the plate mill from Friday, 22 July, 2005 to Friday, 29 July, 2005 to accommodate a maintenance programme in the plate mill by Transfield Services (Australia) Pty Limited and other contractors which was scheduled for Friday, 26 August, 2005. That matter was the subject of proceedings before McKenna C on a notification by the AWU under S.130. Recommendations were made by McKenna C for the roster to be altered and the matter concluded before her on Wednesday, 17 August, 2005 when the AWU sought and was granted leave to discontinue the matter in accordance with Rule 138. However, the problem apparently remained and led to BlueScope Steel lodging a fresh S.130 notification which came before me for conference on Thursday, 18 August, 2005 (in Sydney). 4 In the circumstances, in an attempt to ensure that each plate mill operator was neither disadvantaged financially or received a benefit of wages to which he was not entitled for not presenting himself for work, I made consent orders as directions under S.134(2) in an effort to find a balance between the competing positions, viz: (i) all employees (apart from those employees on approved leave of absence) were obliged to attend for 8 hours work on Friday, 26 August, 2005 and be paid as follows: (a) employees who did not work on Friday, 29 July, 2005 were to be paid at overtime rates for the work performed or (b) employees who worked, or were on approved leave of absence, on Friday, 29 July, 2005 were to be paid at ordinary rates for the work performed; (ii) those employees who presented themselves for work on Friday, 19 August, 2005 were to be at overtime rate for all time worked on that day; (iii) all employees engaged to work at the plate mill were to comply with the new roster arrangements as proposed by BlueScope Steel; this meant that for the remainder of 2005, the RDO's in the plate mill were to be on Friday, 23 September, 2005, Friday, 21 October, 2005, Friday, 18 November, 2005 and Friday, 16 December, 2005. (iv) BlueScope Steel and the AWU were to hold further discussions regarding the roster arrangements for 2006. The orders were to remain in place until Saturday, 31 December, 2005 and were to be a full and final settlement of all issues in dispute with RDO's in the plate mill. BlueScope Steel has advanced its current steelworks rosters. Its proposal for RDO's for the plate mill to accommodate its maintenance programme is made in sufficient time for the operators to consider the matter. 5 There has in the past been a suggestion by some plate mill employees that BlueScope Steel is not able to change the common steelworks rosters: as I have indicated in my unreported decision of Thursday, 18 August, 2005 in the Plate Mill Rostered Days Off Dispute Case [Matter No.IRC 4320 of 2005 at pp.3 and 4], that is simply not true. Any employer may change dates for RDO's provided always that he gives sufficient notice and acts to accommodate any special problems which may arise for individual employees. That having been said, any agreement over the RDO's in the plate mill for 2006 has alluded the parties and given rise ultimately to the present proceedings and the two current S.130 notifications by the AWU. 6 It seems to me that at the heart of the objection by the plate mill operators is their belief that they have been singled out for the change to the roster, rather than BlueScope Steel directing Transfield and the other contractors to make the change. It does not appear that BlueScope Steel seriously pursued the option of seeking that Transfield and the other contractors change the common roster they worked. Any discussions with Transfield which did occur took place at a level which would not have made any difference, in my opinion. BlueScope Steel concedes that discussions at a higher management level in Transfield were not explored. But a cursory examination of the amended RDO's for 2006 which BlueScope Steel has proposed for the plate mill reveals to me that it is the more attractive option and for the plate mill employees to continue to oppose it would be a case of cutting off their noses to spite their faces. 7 The first S.130 notification was allocated to me and consequently the fresh S.130 notification was also referred to me. I set it down for conference on Tuesday, 29 November, 2005, Monday, 5 December, 2005 and Tuesday, 20 December, 2005 in the Commission's premises at 90 Crown Street, Wollongong. Mr Hancock, representing the AWU in the proceedings, sought to convened stop work meetings of the plate mill operators to discuss the new RDO's. Notwithstanding his assurances that the time for the meetings would be kept to a minimum, BlueScope Steel opposed them taking place and Mr Dansie, representing BlueScope Steel in the proceedings, confirmed that objection. The stop work meeting went ahead anyway - partly outside of working hours and partly in working hours, and the employees resolved by an overwhelming majority - 87 to 1 - to accept the proposed change to the RDO's in the plate mill. (There is some uncertainly, dependent upon budget considerations, over the RDO for the plate mill in December, 2006 and that should be the subject of further discussions between BlueScope Steel and the AWU.) 8 BlueScope Steel responded by placing notations on the personal history cards of the three AWU delegates, viz: "...warned for not following the DSP and the expected roles and responsibilities of a delegate after a stop work meeting on Thursday, 8 December, 2005. You have previously received instruction on the role and responsibilities of a delegate and also in the DSP. You were aware of the company's requirement not to stop production for meetings through your involvement in industrial conferences and the IRC. You chose to be instrumental in the stoppage on Thursday, 8 December, 2005. Any further failure to follow due process could lead to further disciplinary action..." 9 I have some concerns over those warning notice. Trade union delegates obtain a level of protection from victimisation under S.210(1)(a) provided they do not exceed their authority. They act on behalf of the employees - not BlueScope Steel - and they should not be singled out for the conduct of the employees they actually represent, even when they are perceived by an employer as unhelpful to the employer [Transport Workers' Union of Australia v. CWS Transport Services Pty Limited (1990) 39 IR 8]. Of course, trade union delegates should not incite industrial disruption and they are not excused conduct which for any other employee would be grounds for dismissal. In the Newcastle Steel Works Case (1961) AR 48 the Full Bench of the former State Industrial Commission (Richards, Beattie and Kelleher JJ) commented in that respect (at p.66) as follows: "…While the Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak conferring on the wearer immunity from liability for wrongful actions…" The AWU lodged its second S.130 notification pressing for the removal of the warning notices. That matter came before me for conference on Tuesday, 20 December, 2005 along with the earlier S.130 notification. 10 Whilst BlueScope Steel's concern to ensure that unnecessary stop work meetings do not disrupt production requirements for the steelworks is understandable, it must be also be appreciated that it is customary procedure for trade unions, acting to achieve a democratic response from its members on any issues in dispute, to hold meetings with those members. This is ordinarily - and more appropriately, in my opinion - conducted outside of ordinary hours of work and after discussion with the employer's representative. There can be no objection to that course of action. When those meetings extend into working time, as the current meetings did, BlueScope Steel management is entitled to be concerned. But I understand the meetings were of relatively short duration and caused minimal disruption to production. On this occasion, I make a direction to BlueScope Steel under S.134(2) that the warnings be removed from the personal files of the employees. 11 As far as the other S.130 notification is concerned, however, we have now entered the realm of total absurdity. Mr Hancock, acting on a resolution of the employees, has requested that the matter proceed into arbitration but, pursuant to S.173, he has sought that the arbitration be conducted before another member of the Commission. Arbitrate to do what? The matter has been resolved with 87 employees accepting the changed roster and only one employee opposing it. I issue the certificate of attempted conciliation required by S.135 and lodge it in the prescribed manner only when I am satisfied that the processes of conciliation is exhausted. Not only am I convinced that this issue may only effectively be resolved in conciliation - not arbitration - but, in fact, it has already been resolved. No good purpose is served by keeping this matter alive any longer. I propose to dismiss it under S.162(2)(h) on the grounds that, in my opinion, this claim is now frivolous and/or vexatious. 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.