Industrial Relations Commission of New South Wales CITATION: Australian Workers Union v. BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1096 APPLICANT Australian Workers Union PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): IRC 5083 of 2005 CORAM: Connor C CATCHWORDS: industrial dispute - steel industry - plate mill - suspension and warning given to trade union delegate and occupational health and safety representative - driving of personal vehicles on plant - allegations of harassment and victimisation over occupational health and safety issues - whether trade union delegate exceeded his authority - making frivolous and vexatious complaints LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Blyth Chemicals Limited v. Bushnell (1933) 49 CLR 66 Boston Deep Sea Fishing and Ice Company v. Ansell (1888) 39 Ch.D 339 English and Australian Coper Company v. Johnson (1911) 13 CLR 490 CASES CITED: Gorman v. BHP Integrated Steel Division - unreported Newcastle Steel Works Case (1961) AR 48 Premier Illawarra Pty Limited Dispute case - unreported Shepherd v. Felt and Textiles of Australia Limited (1931) 45 CLR 359 Transfield Dispute Case (1974) AR 596 HEARING DATES: 05/06/2006, 06/06/2006, 13/06/2006 DATE OF JUDGMENT: 06/15/2006 APPLICANT Dave Hancock Australian Workers Union LEGAL REPRESENTATIVES: RESPONDENT Ken Brotherson Blake, Dawson, Waldron DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 15 June, 2006 Matter No IRC 5083 of 2005 Australian Workers Union and BlueScope Steel (AIS) Pty Limited Dispute notification under S.130 of the Industrial Relations Act, 1996 re warning and suspension of plate mill employee DECISION [2006] NSWIRComm 1096 Introduction 1 Pursuant to the provisions of S.130 of the 1996 Industrial Relations Act, a notification of an industrial dispute has been lodged by the Australian Workers' Union concerning the two day suspension and a final written warning given to Mr Marek (Mark) Kuczwal, an operator in the plate mill of BlueScope Steel (AIS) Pty Limited, over events on Friday, 9 September, 2005. Mr Kuczwal has been employed in the plate mill since 1986. He was elected as an AWU delegate in 1992. He is AWU delegate for A and C crews and he is also an employee representative on the occupational health and safety committee. The AWU has sought that Mr Kuczwal be reimbursed for the wages he lost in the suspension and for the removal of the final written warning. 2 The matter was allocated initially to McKenna C who convened conference proceedings on Wednesday, 30 November, 2005 (in the Commission's premises at 90 Crown Street, Wollongong), making certain recommendations - which were rejected by BlueScope Steel. The matter was reconvened for mention before McKenna C on Wednesday, 7 December, 2005 (also in Wollongong). She issued the certificate of attempted conciliation required by S.135 and lodged it in the prescribed manner but, following an application made pursuant to S.173 for and on behalf of BlueScope Steel, the matter was returned for reallocation for arbitration. The matter was reallocated to me for that purpose. 3 I set the S.130 proceedings down for a mention and programming on Tuesday, 20 December, 2005, Monday, 20 March, 2006, Monday, 27 March, 2006 and Monday, 3 April, 2006 (in Wollongong). The matter proceeded before me for arbitration on Monday, 5 June, 2006, Tuesday, 6 June, 2006 and Tuesday, 13 June, 2006 (in Wollongong). Mr Kuzwal has received a further warning letter and that matter has been the subject of separate S.130 proceedings before Grayson DP but ultimately the AWU did not proceed with that matter at that time and withdrew the S.130 notification. As I understand its position, the AWU has reserved its right to pursue that subsequent matter in the light of the outcome of these current proceedings. 4 Mr Hancock represented the AWU and Mr Kuczwal in the hearing. He called Mr Kuczwal to give evidence. He also called Mr Paul Bessant, an operator in the plate mill (and AWU delegate for B crew), as a witness in the hearing. Mr Brotherson represented BlueScope Steel in the hearing. He called four witnesses to give evidence in the hearing: Mr Steven Guy, the manager of the plate mill, Mr Paul Cugaly, the plate processing manager, Mr Luis Lopez, a shift supervisor, and Mr Ralph Keats, who is now the principal advisor to BlueScope Steel on occupational health and safety issues. Witness statements from two other plate mill operators - Mr John Tubbs and Mr Tim Kangas - were provided by Mr Hancock but Mr Brotherson did not require them for cross-examination and their witness statements were admitted into evidence on that basis. 5 The parties have provided me with a referral agreement in accordance with S.146A and Practice Direction No.18 to arbitrate two matters in this hearing, viz: (i) whether a warning issued to Mr Kuczwal on Wednesday, 21 September, 2005 should continue to stand; and (ii) whether the unpaid suspension of Mr Kuczwal for two days - Wednesday, 21 September, 2005 and Thursday, 22 September, 2005 - was appropriate, ie whether Mr Kuczwal should be paid for those two days of his suspension. That referral agreement was not completed at the commencement of the hearing but it was provided to me, duly signed, on the second day of the hearing - Tuesday, 6 June, 2006. The Allegation 6 A memorandum, dated Wednesday, 21 September, 2005, providing a lengthy notation accompanied Mr Kuczwal's history card entry and expands on BlueScope Steel's concerns and criticism of Mr Kuczwal viz: "...The company's position is that: 1. You did not follow the proper processes for resolving issues. 2. You prepared a letter alleging serious misconduct by plate mill management, which have been found to be unsubstantiated. 3. Your letter included inappropriate and unsubstantiated claims about the conduct and attitude of plate mill management. 4. Your intent in distributing the letter to employees and others, after it's content had been rejected by the occupational health and safety committee was vexatious and designed to unnecessarily cause disruptions in the workplace. 5. Claims that you were harassed by Mr Lopez are rejected..." More generally, BlueScope Steel management record in that memorandum: "...1. As an elected delegate and occupational health and safety committee member, you have certain legal rights and responsibilities. 2. Industrial relations and safety issues must be pursued in accordance with the processes laid down in the award and the occupational health and safety legislation respectively. 3. Issues which are raised must be genuine and not designed to simply disrupt. 4. You must not make statements, either verbally or in writing, which are unsubstantiated or designed to mislead or disrupt. 5. Your behaviour is at times erratic and unpredictable and, in certain cases, seen by the company as designed to harm its business. This letter is a final warning that you: (a) must at all times act within the limits of your positions as an employee and, where relevant, as a delegate and occupational health and safety representative, and follow proper process when raising and pursuing employee issues; (b) not issue any further statements or raise issues, verbally or in writing, without proper foundation or which are designed to disrupt; (c) comply with all reasonable directions of managers or supervisors in respect of your employment... (d) you will be suspended without pay for two days; (e) the company will be raising with the AWU your role as a delegate and the company's requirement to recognise you as a delegate in accordance with Clause 39, Delegates, of the award; and (f) the continuation in your role as an occupational health and safety representative will be reviewed in conjunction with the relevant legislation and the required conduct expected of occupational health and safety representatives by the department. You should have no doubt that any breach by you of the terms of this warning will result in your dismissal..." The Evidence of Mr Kuczwal 7 It is purportedly Mr Kuczwal's concern that private vehicles are being driven onto the steelworks site. He asserts that he is particularly concerned over that issue since a serious accident several years ago. An employee who had driven his private vehicle on the steelworks collided with a heavy vehicle and incurred serious injuries. Mr Kuczwal claimed in the written statement which accompanied his evidence that: "...over the last few years there have been a number of concerns and complaints from members regarding this issue. This has been raised at various safety meetings. In my capacity as occupational health and safety representative, I had an obligation to do something about resolving this on-going issue..." 8 Mr Kuczwal recalled that Mr Chris Carey, a previous manager of the plate mill, had made the decision that no private vehicles, including those driven by staff members, would be permitted on site and he led by example, by himself parking his vehicle off site, notwithstanding the fact that he apparently held a valid entry permit to park his private vehicle in the steelworks. (Mr Keats and Mr Guy have a different recollection of Mr Carey's approach.) According to Mr Kuczwal, Mr Carey's decision had more recently been reversed by current plate mill management. 9 Mr Kuczwal claims that he has raised his concerns in that respect with both Mr Cugaly and Mr Guy and they have not responded to his concerns. There is, in fact, no evidence before me to support Mr Kuczwal's claims in that respect until on Thursday, 8 September, 2005 when he pursued the matter through the dispute settlement procedure with a tracking document, handing it to Mr Hoa Dam, his shift team leader, as the first step in the dispute resolution procedure and later discussed it informally with Mr Cugaly outside the crib room. The issue may have been raised from time to time in "tool box" meetings but I believe that Mr Brotherson is correct when he indicated in his submissions that the issue was not being pressed with any real vigour by the employees up to Thursday, 8 September, 2005. 10 As far as the dispute settlement procedure was concerned, the issue had some little time to run before Mr Kuczwal could expect a resolution of his concern. In any event, I am not convinced that the dispute resolution procedure is an altogether suitable mechanism to pursue issues related to occupational safety. It is directed chiefly to industrial concerns. In the first instance, safety issues should primarily be directed through the occupational health and safety committee, in my opinion. But events clearly overtook Mr Kuczwal's attempts to raise the matter through the dispute settlement procedure. 11 Mr Kuczwal also spoke to Mr Cugalay at that time outside the crib room and he claims that Mr Cugaly informed him that he was wasting his time because the current plate mill management had changed its policy regarding driving private vehicles onto the plant. (Mr Cugaly denies that he spoke in those terms and he denies that he said that the policy had changed. I will deal with Mr Cugaly's evidence later in this decision. However, Mr Bessant claims that he was present when Mr Kuczwal and Mr Cugaly were talking, presumably at a change of shift, and he supports Mr Kuczwal's version of the conversation, although he took no part in it.) 12 In those circumstances, Mr Kuczwal next raised the issue with the occupational health and safety committee with a report in terms which were bound to cause offence. I summarise the gist of that report as follows: "...I would like to present to you a case of ignorance and irresponsible behaviour of plate mill management team responsible for our safety and enforcement of company's zero harm policy. A few years ago we were shocked by a very serious accident in which a young employee had driven his vehicle under a heavy plant vehicle. In the result, the employee sustained very serious injury and will never recover from it. His life and his family will never return to normal. That tragic accident happened not far from our mill. The management of our company changed many safety procedures in order to prevent further accidents of that type on company roads. Major changes were to reduce traffic on our roads by removing private vehicles from the site. Each department reviewed safety procedures and parking areas for vehicles... I spoke to two managers - Mr Cugaly and Mr Guy - and asked them that they should follow safety policies and they should park their cars as every other employee. But they...believe that they are safe and Mr Cugaly stated that our current manager... changed the policy and they can drive in... Our Cardinal Rules are telling us in very understandable English about our responsibilities to the safety. I believe that working safe and following safety rules and policies is a condition of our employment in BlueScope Steel. I also believe that safety policies are not socks and cannot be changed by anyone who doesn't like them... Our management has not got a commitment to safety and board of directors and chief executive. To write slogans about zero harm is not enough. Safety means commitment and responsibilities of all employees and could be only achieved under management example; it can be destroyed by management ignorance. I will ask the board of directors to investigate allegations of safety ignorance and misuse of shareholders' money by plate mill management..." Mr Kuczwal indicated in his evidence in this hearing that there were many employees who drove their private vehicles on site in breach of safety directions but I note his report makes specific reference to two members of BlueScope Steel management - Mr Cugaly and Mr Guy. 13 That report was put before the occupational health and safety committee on Friday, 9 September, 2005. Mr Kuczwal did not seek the approval of the committee. And he did not get it. A motion in the form of a series of recommendations was carried by a significant majority of the committee - eight members (with one member against - presumably Mr Kuczwal - and one abstention) - to the effect that the views in that statement did not reflect the views of the members of the committee; that there should be further investigation of the allegations made; that the committee work to resolve Mr Kuczwal's concerns; and that all personal references made in the report be removed. Mr Kuczwal believes that many of the members of the committee actually drove their personal vehicles on the site and that, consequently, he was getting little support from them. In any event, instead of working through the committee, Mr Kuczwal subsequently decided to send a copy of his report, unabridged or modified in any way, to the chairman of the BlueScope Steel board in Melbourne - "...as a last resort...", he claimed. 14 Mr Kuczwal also believes that he was being victimised and harassed by Mr Lopez following the meeting of the occupational health and safety committee. He had not returned to work. He claimed that he was on his crib when Mr Lopez directed him back to work. Mr Kuczwal claimed that he spoke to Mr Lopez and told him: "I am still on my crib." 15 Apparently Mr Kuczwal was distributing copies of his report. Mr Kuczwal did not hand out the report to plate mill employees but he did photocopy the report and leave copies of it in the crib room and at the marking off cabin. Mr Kuczwal subsequently raised Mr Lopez's alleged victimisation and harassment of him with WorkCover. I understand that WorkCover has subsequently decided that it has no action to take with respect to Mr Kuczwal's allegation of victimisation and harassment. 16 It was Mr Bessant's understanding that Mr Kuczwal had also raised his concern over private vehicles parking on the steelworks site with WorkCover. But that was not correct. Mr Kuczwal confirmed in his evidence that he had not done so. He confined his complaint to WorkCover to his alleged harassment and victimisation. That fact, in itself, suggests to me that Mr Kuczwal may not have had such concerns over the private parking of vehicles on site as he would have me believe. I would have thought that if Mr Kuczwal held genuine concerns over the question of parking of any private vehicles on site, he would have also raised that issue with WorkCover at the same time that he made his allegation that he had been subjected to harassment and victimisation. 17 And, of course, any claims of victimisation and harassment cut both ways. Mr Kuczwal's attack on members of the occupational health and safety committee - namely Mr Guy and Mr Cugaly - could also constitute victimisation and harassment of them. In my unreported decision of Tuesday, 21 September, 2004 in the Premier Illawarra Pty Limited Dispute Case [Matter No.IRC 3653 of 2004 at p.10], I described the circulation of a particular petition by a trade union delegate. The petition called for the immediate removal of the chairman of an occupational health and safety committee on the basis that he lacked the confidence or trust of the employees (or at least 29 signatories to the petition). It was regarded by a WorkCover inspector as possibly harassment and, as such, an offence under the 2000 Occupational Health and Safety Act. In any event, Mr Kuczwal would be wise to remember that people in glass house should not throw stones. 18 On Sunday, 11 September, 2006 when Mr Kuczwal reported to work, Mr Lopez approached him and directed him, accompanied by Mr Steve Jameson, the co-delegate, to Mr Lopez's office. Mr Dam was present at the meeting. He read out a letter addressed to Mr Kuczwal from Mr Guy but which, according to Mr Kuczwal, Mr Dam refused to give him. Mr Guy had stood Mr Kuczwal down with pay pending an investigation of Mr Kuczwal's behaviour on Friday, 9 September, 2005. Mr Kuczwal was also directed to attend a further meeting on Wednesday, 14 September, 2005. Mr Kuczwal immediately left the site. Mr Jameson arranged a gate meeting and the employees decided to take industrial action in support of Mr Kuczwal's immediate reinstatement on the site. 19 According to Mr Kuczwal, BlueScope Steel management refused to give him any reason for his suspension. The matter came before Grayson DP by way of a S.130 notification on Tuesday, 13 September, 2005. The Deputy President recommended that BlueScope Steel management provide Mr Kuczwal with the reasons that he had been stood down and a handwritten document dated Tuesday, 13 September, 2005 was given to him outlining the allegations against him, viz: (i) failure to follow due process on Friday, 9 September, 2005 in resolving safety and industrial matters; (ii) making inappropriate and unsubstantiated allegations/comments in the statement tabled at the occupational health and safety committee; (iii) inappropriate conduct in distributing the statement with the intention of damaging the reputation and good will of the plate mill management team; (iv) repeatedly making false allegations of harassment by management/supervisors; and (v) displaying an ongoing pattern of behaviour towards inflicting harm on the company. The handwritten note concludes: "...If any of the above allegations are proven, they may amount to misconduct..." 20 On Wednesday, 21 September, 2005 Mr Guy handed Mr Kuczwal the memorandum to which I referred earlier in this decision confirming his suspension and final warning. The AWU notified the matter as an industrial dispute under S.130 on Friday, 30 September, 2005. The matter came before McKenna C who on Wednesday, 12 October, 2005 made certain recommendations in settlement of the issue in dispute. 21 Essentially, McKenna C directed that Mr Kuczwal process any future industrial or occupational health and safety issues through the established procedure - a sensible course for Mr Kuczwal to follow in future, I would think. On that basis, Mr Kuczwal should be paid for the period of his unpaid suspension and the final warning on Mr Kuczwal's history card should be replaced with a notation which records a censure of Mr Kuczwal's conduct but would not be taken into account in his overall employment history. When the matter was to proceed into arbitration, BlueScope Steel made its application under S.173 from which the matter ultimately came before me. The Evidence of Mr Kuczwal's Colleagues 22 It would appear from the evidence before me in this hearing that Mr Kuczwal receives substantial support from his fellow workers in the plate mill. For instance, Mr Bessant recorded in his written statement that: "...I have known Mr Kuczwal for ten years. He always offers his hand and help to those in need, whether that is of a personal nature or business related. His ability to assist is well known throughout the plate processing team across 270 employees. His duties as a delegate are taken very seriously. When an issue is presented to him, he will research the matter before proceeding. He advises if the employee is right or wrong. He will follow the employee's decision as to which way to handle the matter. He will lodge his complaint with management and will follow the correct procedures. He also keeps the employees informed of any outcomes. When the employees call a meeting for Mr Kuczwal to report back, at times employees are upset and want to go out on dispute. He has always quoted the dispute settlement procedure before any decisions have been made..." 23 Mr Tubbs indicated in his written statement: "...In my opinion, Mr Kuczwal is a good and committed delegate and has the confidence of the members he represents. In discharging his duties as a delegate and occupational health and safety representative, he has always followed the correct procedure in attempting to resolve any issues, and has been diligent in reporting back to the members in order to keep them informed of the matter at hand..." Then Mr Tubbs added: "...There have been times when employees have decided to go into dispute, but this has always been a collective decision and not influenced by Mr Kuczwal or any other delegate. Mr Kuczwal always quotes the dispute settling procedure to the members before they take a decision..." 24 Mr Kanga commented in his written statement that: "...I have observed Mr Kuczwal in his role as a delegate for over ten years. His diligence in abiding by the rules has always been noted by other employees. As a delegate and occupational health and safety representative, he has always sought to keep his members informed and advise them of proper procedure when issues arise. He is of the opinion that the dispute settlement procedure is there to help both sides. I have witnessed Mr Kuczwal's disappointment on occasions where members have refused his advice and have reacted with their hearts rather than their heads. I have seen Mr Kuczwal try to prevent this type of reaction and plead for rational thought. Mr Kuczwal even goes as far as writing out tracking documents. He is the only delegate I know who uses them. There is an appreciation for members who are willing to take on the role of delegate as in recent times it is starting to appear that delegates are being given warnings and suspensions for carrying out their duties as a delegate..." 25 Mr Bessant, Mr Tubbs and Mr Kanga all claim in their written statements that employees have in the past expressed concern over the continuous entry of the private vehicles of members of plate mill management onto the site and have requested that Mr Kuczwal take the matter up on their behalf. Mr Bessant in his evidence conceded that the parking issue was not a pressing problem, however. He nevertheless indicated that the way Mr Kuczwal proceeded on this occasion was, in his opinion, appropriate in the circumstances. The Evidence of Mr Keats 26 In his written statement Mr Keats confirms that: "...across BlueScope Steel safety is a core value. It underpins all our activities. Ensuring employees are not harmed at work is the number one priority for the organisation..." And, at this stage, as Mr Brotherson highlighted during the proceedings, the plate mill does have a good track record in safety. 27 Mr Keats asserted in his evidence that, contrary to Mr Kuczwal's recollections, Mr Carey had not at any time excluded private vehicles from the site and had himself driven on the site from time to time - as did other personnel with valid entry permits. Mr Keats also was authorised to drive his private vehicle on the site and did so: he still does. Mr Carey had chosen to leave his private vehicle at the north gate on occasions when he did not require it on site for one reason of another to set an example to the employees. 28 According to Mr Keats (and a document which Mr Brotherson tendered into evidence through Mr Keats), the procedure adopted at that time was as follows: (i) only vehicles with valid entry permits would be allowed on the plant; (ii) all visitors must be escorted on and off site and security advised of their visit; and (iii) only the north gate should be used by plate mill staff. Employees with special disabilities were provided with entry permits so that they would not have to walk from the parking spaces outside the steelworks. A speed limit of 60kph, or 50kph in some area, applied in the steelworks. 29 A number of initiatives have been taken by BlueScope Steel to improve safety on site. The speed limit has now been limited to 40kph. Speed humps have been placed on roads in the steelworks. Signage has changed. According to Mr Keats, that tends to make the parking issue less of a safety issue than had formerly been the case. But parking apparently still remains a problem with parking spaces at a premium for plate mill employees. 30 But, in any event, Mr Keats holds doubts concerning Mr Kuczwal's motives in raising alleged safety concerns, commenting in his written statement: "...I am not surprised at some of Mr Kuczwal's behaviours. I know from personal experience that he is very difficult to deal with. I also know from both observations and discussions that supervisors and managers also find this to be the case. It appears to me that Mr Kuczwal sees issues (whether this be as an employee or union delegate) as personal battles to be won against management and the company. I have also observed him displaying an ongoing pattern of attacking various managers personally. Mr Kuczwal has written to a variety of people and institutions over the years where he has attacked the credibility of management and members of the plate mill management team... My impression is also that Mr Kuczwal frequently sought to use safety as a driver for industrial issues. Mr Kuczwal has on several occasions used WorkCover inspectors to investigate issues at the plate mill in his campaigns against management policies and decisions when there is no need for that to occur. Mr Kuczwal constantly claims that management decisions and the performance management of employees which he disagrees with are examples of union bashing, harassment and intimidation..." The Evidence of Mr Guy 31 Mr Guy explained in his written statement that he also finds Mr Kuczwal to be a difficult employee, viz: "...Mr Kuczwal has a chequered history with the company. Over the past six years some fourteen entries have been made on his history card... Mr Kuczwal is an exceptionally difficult employee to manage. For some time he has been taking excessive amounts of time away from his job as a member of the crane crew to perform what he perceives are the duties of a union delegate. Mr Kuczwal also takes exception to the way in which employees who have taken sick leave are managed across the steelworks. He claims that when a supervisor speaks to an employee about such circumstances, the employee is being harassed and intimidated by management. Further, when Mr Kuczwal himself is spoken to about any issue relating to his conduct or performance, he claims he is being harassed and intimidated by management..." 32 Mr Guy, as a member of the occupational health and safety committee, was present at the meeting of the committee on Friday, 9 September, 2005 when Mr Kuczwal raised the concerns over the car parking arrangements on site. Mr Kuczwal asserted at the meeting that the plate mill management was irresponsible in their handling of the issue and there should be further investigation of the way the matter was being handled. Mr Kuczwal then handed up the report he had prepared. 33 The occupational health and safety committee discussed the issue and the motion was carried that Mr Kuczwal not send the correspondence to the BlueScope Steel board. The matter was to be followed up at local level by the committee. The motion carried by the committee was in the following terms: "...The occupational health and safety committee has reviewed this letter as presented by the plate mill despatch committee representative from C crew and rejects it as representing the committee's beliefs. As such the committee's recommendations are: (a) that the plate mill representative removes all reference to the plate mill occupational health and safety committee from the letter because it does not express the committee's opinion and the committee has not been given the opportunity to hear the issue; (b) that the committee is given the opportunity to hear the matter and work to resolve the committee representative's concerns and make its recommendations to management; (c) that due to the seriousness of the allegations in the letter, the committee should commission an investigation into the representative's allegations within the letter; and (d) all personal references made in the letter are removed from the letter and if it must be sent, it is based on fact and confined to the individual's concerns regarding safety and risk..." 34 After the meeting Mr Kuczwal returned to the job and began handing out copies of the report to other employees. Mr Lopez directed him to return to work and Mr Kuczwal complained that Mr Lopez had harassed and intimidated him - a complaint which Mr Guy subsequently investigated and dismissed. Mr Guy instructed Mr Dam to inform Mr Kuczwal on Sunday, 11 September, 2005 to stand him down on pay pending a further investigation in accordance with what Mr Guy described to be established practice for such matters. Mr Dam did as he was requested and Mr Kuczwal was stood down. 35 At midday on Sunday, 11 September, 2005 Mr Kuczwal's crew ceased work in support of him. The strike continued for seven shifts - 56 hours - and cost BlueScope Steel 3,500 tonnes of lost production. Mr Guy indicated in his evidence that steel plate sells for approximately $1,000.00 per tonne. Work resumed on Thursday, 14 September, 2005 following the proceedings before Grayson DP on Wednesday, 13 September, 2005 and, in compliance with the recommendation made by the Deputy President that BlueScope Steel provide formal details of the allegations made against Mr Kuczwal . 36 Mr Kuczwal was invited to attend a meeting that had been arranged on Thursday, 14 September, 2005. Instead, he forwarded by facsimile transmission a page with a series of questions he required answered relating to the allegation which had been made by BlueScope Steel and the AWU followed that request up with one of its own. On Friday, 15 September, 2005 Mr Kuczwal spoke to Mr Guy in the following terms: "Only when you answer my questions in writing will I be prepared to respond to our allegations. If you don't give me this material I am going to re-list the matter in the Industrial Relations Commission." Mr Guy responded: "We need to meet so that I can hear your side of the story and conclude this investigation. As part of the interview I am happy to give you a verbal response to your questions." 37 The meeting between Mr Kuczwal and Mr Guy actually took place on Monday, 19 September, 2005. The allegations were outlined to Mr Kuczwal at the meeting. A further meeting took place between Mr Kuczwal and Mr Guy on Wednesday, 21 September, 2005 and at that meeting Mr Guy handed Mr Kuczwal the notation which was to be placed on his personal file confirming his suspension and final warning over his conduct. 38 In the meantime, WorkCover had investigated Mr Kuczwal's complaint over the alleged victimisation of Mr Kuczwal and, according to Mr Guy, was satisfied that there were no grounds for its further involvement. By Monday, 10 October, 2005 Mr Kuczwal had obviously changed his mind over the parking of private vehicles on site. He submitted a safety issue sheet requesting that all employees, not just the members of BlueScope Steel management, be permitted to drive their private vehicles on site due to the safety concerns he now saw for the employees walking on the site to and from the north gate, where they parked their private vehicles. Mr Guy pointed out in his written statement that: "...I believe this is a complete contradiction to Mr Kuczwal's letter, raised at the occupational health and safety meeting on Friday, 9 September, 2005 and which he faxed to the board of directors... I have serious doubts about the motivation of Mr Kuczwal raising the car parking issue on Friday, 9 September, 2005 and his disregard for proper process at that time. The contradictory position he then took to this issue on Monday, 10 October, 2005 convinces me his motivation was not premised on any particular safety issue, but more about attempting to, in some way, create unnecessary and time consuming debate and score points against the company..." A risk assessment has been conducted with respect to the employees walking on plant and Mr Guy reports that it has been determined to be "...practical with minimal safety issues arising from it..." The Evidence of Mr Cugaly 39 Mr Cugaly's recollections of the conversation he had with Mr Kuczwal outside the crib room on Thursday, 8 September, 2006 concerning the driving of private vehicles on the steelworks site were set out in his written statement. Mr Cugaly wrote in his written statement: "...Mr Kuczwal requested an answer from me about what I thought of the issue he had raised outside the crib room. I explained that he needed to follow through with the tracking document. I recall that Mr Kuczwal stated words to the effect that the new plate mill manager...had changed the policy regarding parking for plate mill employees. Mr Kuczwal stated to me that there had been a near fatality some five years ago on plant, the result of a motor vehicle accident, and...the direct action taken by the then plate mill manager...was to instruct most employees to park at the outside car parks. I explained to Mr Kuczwal in that discussion that the current plate mill manager had not changed the policy. Rather there had been numerous initiatives introduced by the company, site wide, since the instructions by the previous plate mill manager that had considerably reduced the risk of reoccurrence of the incident five years ago. I sought to clarify Mr Kuczwal's allegations regarding the changed policy and stated to him that he needed to be more specific when he discusses the tracking document with his supervisor as to what specific new issues or near safety misses had occurred since the new initiatives regarding driving on our plant had been implemented. That conversation outside the crib room was my only discussion with Mr Kuczwal about the car parking issue until the occupational health and safety committee meeting on Friday, 9 September, 2005..." Mr Cugaly denies that he told Mr Kuczwal that he was wasting his time in pursuing the parking issue through the dispute settlement procedure. 40 Mr Cugaly also attended the occupational health and safety meeting on Friday, 9 September, 2005. He is convinced that Mr Kuczwal's report was nothing more than a personal attack on him and Mr Guy, who presently drive their private vehicles onto the steelworks site. He also believes that to have been the view of many of the other members of the committee. The motion that was carried by a majority of members in the meeting appears to me to confirm Mr Cugaly's claims in that respect. 41 Mr Cugaly asserted that Mr Kuczwal became somewhat irate by the very lukewarm response to his report by the members of the occupational health and safety committee and he said to one member of the committee who had informed him that he could not endorse the report: "Not to worry as WorkCover would sort it out." Mr Cugaly asserted that Mr Kuczwal threatened to have government authorities present to rule on the matter and he then indicated that he would be forwarding his report to the BlueScope Steel board of directors "...to indicate the inability of plate mill management to resolve a safety issue..." 42 Mr Cugaly then observed Mr Kuczwal distributing his report to the other employees and he discovered a copy of it on a desk in the plasma area. Mr Jamieson told Mr Cugaly that Mr Kuczwal had left a copy of the report there. At that time Mr Guy informed Mr Cugaly that Mr Kuczwal was also now pursuing an harassment claim against Mr Lopez who had challenged Mr Kuczwal to return to work after the occupational health and safety meeting had ended. Mr Cugaly commented in his written statement that he and Mr Guy had by this time formed the view that: "...Mr Kuczwal's behaviour throughout the day had constantly demonstrated an attitude towards the company of creating disruption and harm and disregarding proper process. Mr Kuczwal had persisted in distributing his letter unamended despite the resolution of the occupational health and safety committee. His allegation against Mr Lopez was dubious and, in my view, done for no other reason than to disrupt... It was agreed...that Mr Kuczwal's behaviour was inappropriate and demonstrated ongoing misconduct... He had abused his role as an occupational health and safety representative in order, seemingly, to discredit plate mill management. He had signed off the letter when he had been told not to do so, and submitted it to employees regarding the car park, without approval from the occupational health and safety committee. Further, Mr Kuczwal had distributed his letter during paid company time..." The disciplinary action against Mr Kuczwal followed those developments. The Evidence of Mr Lopez 43 Mr Lopez is not Mr Kuczwal's direct supervisor: Mr Dam is. Mr Lopez was also in attendance at the occupational health and safety meeting on Friday, 9 September, 2005. He recalled that when Mr Kuczwal tendered his report, one member of the committee, an employee representative, stated that the report was "...nothing short of slander...", to which Mr Kuczwal allegedly responded: "I will show you what slander means. You'll be the first one to find out." Mr Lopez suggested that all further comments be directed through the chair and the meeting was called to order and it proceeded as it has already been described in this decision. 44 At the end of the occupational health and safety meeting Mr Kuczwal remained behind, talking to the secretary who prepared the minutes of the meeting. Mr Lopez overheard Mr Kuczwal request a copy of that section of the minutes dealing with the motion carried on his report. The minutes had not been prepared by that time. Mr Lopez intervened, saying: "You can't do that. The secretary needs to type the whole of the minutes and when he's handed them out you can do as you see fit." Mr Lopez claimed that Mr Kuczwal turned to him and rhetorically asked in an aggressive manner: "Haven't you got work to do?" 45 When the occupational health and safety committee meeting concluded Mr Kuczwal went on a thirty minute crib break. There is some confusion over when the committee meeting ended and, therefore, when Mr Kuczwal's crib actually started. According to the minutes of the occupational health and safety meeting, it ended at 9.45am but Mr Guy asserted that it actually ended at 9.30am and Mr Lopez claimed that it ended at 9.25am. In any event, Mr Lopez's assertion is that he observed Mr Kuczwal walking towards the crib room at 9.32am and at approximately 10.20am, clearly after Mr Kuczwal's crib break was supposed to have ended on any estimate of times, Mr Lopez observed him handing out copies of the report he had prepared to other employees and discussing it with them. 46 Mr Kuczwal denied that he handed out the copies of the report. He claims he left copies of the report around in the crib room for the operators to read. He denied Mr Brotherson's assertion in his cross-examination of him that he had distributed the report to staff. But that, to my mind, is an argument in semantics. By leaving copies of the report around for employees to pick them up and read them he was distributing the report. And that was clearly his intention. 47 Mr Lopez claimed in his evidence that he instructed Mr Kuczwal to get back to work and Mr Kuczwal replied with a question to the following effect: "What, can't I go to the toilet?" Mr Lopez pointed to his watch and replied: "Yes, you can go but I need you to get back on the job because that's part of my job, as you told me." Mr Kuczwal allegedly became rather agitated, saying: "You're harassing me. I'm going to report you to your manager." Mr Lopez gave Mr Kuczwal the telephone numbers for Mr Guy and Mr Cugaly. Conclusion 48 As Mr Hancock highlighted in written submissions, trade union delegates are protected by S.210(1)(a) which makes it an offence for an employer to victimise an employee because he: "...is or was a member or official of an industrial organisation of employees or otherwise an elected representative of employees..." Or under S.210(1)(j) if he, as an employee, makes a complaints over occupational health and safety issues, viz: "...makes a complaint about a workplace matter that the person considers is not safe or a risk to health or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act, 2000..." A trade union delegate, or any employee expressing concerns over occupational health and safety issues, therefore has protection in the performance of his responsibilities in that respect. 49 In my unreported decision of Thursday, 13 July, 2000 in Gorman v. BHP Integrated Steel Division [Matter No. IRC 4242 of 1999] I described the position of a trade union delegate as follows (at pp.31 and 32): "…The position of trade union delegate is often a thankless job - an intermediary between workers and management with the individual taking the heat from both sides… The role of trade union delegate has many onerous responsibilities. But it also carries with it some protection to the occupant of the position to match those responsibilities. In terms of S.210 it is an offence for an employer to prejudice an employee, including dismissing him, because, among other things, he is an elected representative of employees..." It would unarguably be unfair for BlueScope Steel management to single out Mr Kuczwal if he is doing no more than raise issues of concern to the employees he represents as a trade union delegate. As Mr Brotherson suggested in his submissions, the operators in the plate mill have a history of militancy. It would be wrong to single out Mr Kuczwal if he was doing no more than what the employees he represents as trade union delegate were pressing him to do. That is a case of shooting the messenger rather than addressing the concerns raised, through the trade union delegate, by the employees. That, in essence, is Mr Hancock's submission on behalf of Mr Kuczwal in the hearing. 50 Mr Guy argued in his evidence that Mr Kuczwal took excessive time in exercising his role as a trade union delegate. But that role has to be considered in the context of Clause 39, Delegates, of the BlueScope Steel (AIS) Pty Limited - Port Kembla Steelworks Employees Award, viz: "The company will recognise an employee who is a delegate representing the employees in a shop or department where he or she is employed. A delegate will be allowed the necessary time to interview the employees for whom the delegate represents, the company or its representatives, during working hours, where there is a dispute affecting employees in his or her shop or department." 51 But for the protection a trade union delegate or any employee is afforded by virtue of Ss.210(1)(a) or (j) it is trite to say that he must be acting to express genuine concerns - not just being a nuisance - and that, as I understand the position of BlueScope Steel management in this hearing, is essentially what is being alleged against Mr Kuczwal. And as far as S.210(1)(a) and Mr Kuczwal's role as a trade union delegate is concerned, there is an important qualification: the protection provided to him is confined to his legitimate role as a trade union representative. Trade union delegateship is not, as the Full Bench of the former State Industrial Commission (Richards, Beattie and Kelleher JJ) described it in the Newcastle Steel Works Case (1961) AR 48 at p.66 "...a magic cloak conferring on the wearer immunity from liability for wrongful actions...": in that respect, S.210(1)(a) is a shield and not a sword. 52 Mr Kuczwal has been an AWU delegate for a very long period of time. Presumably he could only retain that position if he had the confidence and support of the employees he represents. I am satisfied that he does. He acts with zeal and enthusiasm to address any issue which he perceives as a problem. Also, as Mr Kuczwal indicated in his evidence, in a free society, he has the right, both as an employee or a trade union delegate, to make complaints through the appropriate channels - WorkCover or, for that matter, to the board of directors of BlueScope Steel - if he choses to do so. 53 The question remains whether he has abused that right. Notwithstanding the evidence to the contrary from Mr Bessant, Mr Tubbs and Mr Kanga, and Mr Hancock's spirited support for him in the hearing, I am satisfied that much of Mr Kuczwal's actions as a trade union delegate (and occupational health and safety representative) are with respect to issues personal to him and him alone - as Mr Guy and Mr Cugley suspect, a personal attack on them and the fact that they hold valid entry on site permits to drive their private vehicles onto the site. 54 The trade union delegate in the Newcastle Steel Works Case was described by the Full Bench (at p.67), viz: "…We are of the opinion that the story (the delegate) would have us believe that he was a mere mouthpiece of the men in his department, consistently urging them on to constitutional methods of settling a dispute, but bound in his capacity as delegate by their instructions to the contrary, is quite an unreal one… (He) is a man of forceful personality… Some of his admitted actions of the day indicate that the initiative in various moves was taken by (him) on his own account..." I see Mr Kuczwal in much the same light. The employees he represents have been prepared to allow him to continue his attack on BlueScope Steel management for their own reasons but, I suspect, that action has very little to do with advancing any real industrial or safety concerns on their part. What really was it to Mr Kuczwal or the employees he represented if Mr Guy and Mr Cugaly drove their private vehicles on site? Mr Kuczwal's concerns in that respect appear to me to be disingenuous. 55 Under S.18 of the Occupational Health and Safety Act occupational health and safety committees, and any member thereof, have some clearly defined functions to perform - investigating matters, obtaining information, attempting to resolve disputes over safety issues or calling in WorkCover inspectors if it is considered that they would be needed. But insofar as any issue raised safety concerns in Mr Kuczwal's mind, in my opinion he had properly discharged his responsibilities over the driving of private vehicles on site when he brought the matter to the attention of the occupational health and safety committee - and it was being addressed by the committee. Mr Kuczwal should not have pursued the matter with the BlueScope Steel board of directors, in direct contravention of the motion carried, almost unanimously, by the committee. He was bound by that committee's decision and he had no right to go off on his own like that. It suggests to me that, in the circumstances, Mr Kuczwal had nothing else on his mind than a personal vendetta against Mr Guy and Mr Cugaly. And, on the basis of the evidence before me in this hearing, any allegation that he was being harassed and intimidated by Mr Lopez is totally untenable. Employees who behave in a manner which invites criticism can hardly be surprised that the management criticises them. 56 Based on the evidence before me in this hearing, I would expect a considerably more mature response to issues by Mr Kuczwal, who has the joint responsibilities of a trade union delegate and member of the occupational health and safety committee. Those are important roles and they should not be used as a springboard for some personal vendetta against specific members of BlueScope Steel management - "...a loose cannon on a frolic of his own...", according to Mr Brotherson. It is neither my business nor that of BlueScope Steel management to intrude in the internal workings of the AWU and who its members chose to elect as trade union delegates but I believe that it would be in Mr Kuczwal's own interests if he exercised considerably more restraint in his dealings with BlueScope Steel management in future [see, for instance, the comments in that respect by Sheehy of the former Commission in Transfield Dispute Case (1974) AR 596 at p.599]. 57 Mr Brotherson referred in his submissions in that respect to the decision of the High Court in Blyth Chemicals Limited v. Bushnell (1933) 49 CLR 66 and, in particular, the comments by Dixon and McTiernan JJ (at pp.81 and 82) viz: "...Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground for dismissal [ Boston Deep Sea Fishing and Ice Company v. Ansell (1888) 39 Ch.D 339 at pp.357, 358, 362, 363 and 364, English and Australian Copper Company v. Johnson (1911) 13 CLR 490 and Shepherd v. Felt and Textiles of Australia Limited (1931) 45 CLR 359]. But the conduct of the employee must itself involve the incompatibility, conflict or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found..." A trade union delegate is sometimes placed in a position which is in conflict with the wishes of the management of his employer. But, equally, a trade union delegate should not go out of his way to look for trouble. Ss.210(1)(a) or (j) may not ultimately assist Mr Kuczwal if he continues to act in a belligerent manner. I consider that it is time for AWU officials to raise those issues with him and assist him in providing him with a better method to address issues in dispute in the plate mill. I believe a lot more could be achieved, in the employee's interests as well as the operations of BlueScope Steel, if Mr Kuczwal modified his behaviour. 58 That having been said, however, I do not believe that BlueScope Steel management handled this particular incident very well, either. And if Mr Kuczwal was acting personally against Mr Guy and Mr Cugaly - as I believe he was - I conclude that Mr Guy and Mr Cugaly were also similarly acting personally against Mr Kuczwal when they suspended him initially on pay, later suspended him without pay for two days and issued him with a final warning. Mr Guy has estimated the strike which followed Mr Kuczwal's initial suspension resulted in 3,500 tonnes of lost production. It is not in anybody's interests for the plate mill to be a war zone, with the tit-for-tat approach between the employees and the BlueScope Steel management, which Mr Kuczwal has described as "union bashing". What would have happened if Mr Kuczwal's complaints and claims of victimisation had not ultimately led to the disciplinary action which BlueScope Steel chose to take against him? Absolutely nothing, I would think. I would expect that neither the report Mr Kuczwal sent to the BlueScope Steel board of directors nor the complaint to WorkCover over Mr Lopez's alleged harassment of him would have excited anybody; certainly not me if the matter had come to me under s.130. 59 In the circumstances described to me in this hearing, I determine that Mr Kuczwal's two day shift suspension should stand. He shall not be recompensed for the wages he lost over those two days. However, notwithstanding my criticisms of Mr Kuczwal's conduct, I do not believe that a final warning is warranted on his personal file. It should be replaced with a notation recording that his conduct has been subject to censure. That would have the same effect as a warning, albeit not a final warning. A copy of this decision may be placed on his personal file also. P J CONNOR Commissioner LIST OF WITNESSES Bessant, Paul operator Cugaly, Paul plate processing manager Guy, Stephen manager of the plate mill *Kangas, Tim operator Keats, Ralph principal advisor on occupational health and safety issues Kuczwal, Mark applicant (operator, AWU delegate and member of the occupational health and safety committee Lopez, Luis shift supervisor *Tubbs, John operator * Witness statement admitted without the need for cross-examination 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.