Industrial Relations Commission of New South Wales CITATION: Australian Workers Union v. BlueScope Steel Limited [2007] NSWIRComm 1020 APPLICANT Australian Workers Union PARTIES: RESPONDENT BlueScope Steel Limited FILE NUMBER(S): IRC 68 of 2007 CORAM: Connor C CATCHWORDS: industrial dispute - steelworks - suspension of employee and warning due to absence from work due to alleged illness - initial issue in dispute settled in conciliation - further warning given to the employee - issue heard under referral agreement and bound by its terms - a new warning issued - new warning outside the terms of the existing referral agreement - matter dismissed - further proceedings necessary with respect to new warning required LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Duggan v. BHP Steel - unreported HEARING DATES: 23/04/2007 EXTEMPORE JUDGMENT DATE : 23 April 2007 APPLICANT Branko Gorgievski Australian Workers Union LEGAL REPRESENTATIVES: RESPONDENT Charlotte Flower BlueScope Steel Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Monday, 23 April, 2007 Matter No IRC 68 of 2007 Australian Workers Union and BlueScope Steel Limited Dispute notification under S.130 of the Industrial Relations Act, 1996 re suspension and final warning of an employee Referral of an industrial dispute under S.146A of the Industrial Relations Act, 1996 by the Australian Workers Union and BlueScope Steel Limited DECISION [2007] NSWIRComm 1020 1 The Australian Workers Union has lodged a notification of an industrial dispute pursuant to the provisions of S.130 of the 1996 Industrial Relations Act. The dispute, with BlueScope Steel Limited, concerned the Coupled Pickled Cold Mill and the S.130 notification recorded the dispute in the following terms: "...employee at CPCM being given a two day suspension and final warning for going home after reporting to the medical centre because he was under stress due to being interviewed and harassed by supervision [ sic ]. The doctor's recommendation was that the employee should go home if he felt stressed and uncomfortable..." 2 The employee concerned is Mr Ilija Tasievski, an operator in the CPCM, who left his work station on Sunday, 24 December, 2006, without informing his supervisor. Mr Tasievski had, in fact, been absent from work on stress related sick leave but during a disciplinary interview upon his return to work he again felt unwell and visited the ambulance station where the attending medical practitioner cleared him to go home, informed Mr Tasiervski's supervisor of that fact. 3 A medical certificate was subsequently provided to Mr Tasievski by the medical officer. It was dated Tuesday, 30 January, 2007 and it read as follows: "...Mr Tasievski was seen in consultation on Friday, 22 December, 2006 for assessment for return to work after being off work for stress related conditions. He was certified fit for trial of return to work on Sunday, 24 December, 2006 with advice that if problems should occur or his anxiety condition was causing concerns that he should attend the medical centre and go home from work with an appointment to see me again on Thursday, 28 December, 2006, which he did keep..." 4 Such a medical certificate, especially one provided by a medical officer in the employ of BlueScope Steel would certainly be prima facie evidence of illness of the employee. In my unreported decision of Tuesday, 27 May, 2003 in Duggan v. BHP Steel [Matter No.IRC 243 of 2003], in the absence of anything to challenge a medical certificate which a dismissed employee had provided, I reinstated him, commenting (at p.9) that: "...without very persuasive evidence to support an allegation that (the dismissed employee) was not really ill on Thursday, 2 January, 2003 and Friday, 3 January, 2003, I believe that I must accept the claim made...in this hearing that (his) absence from work was legitimate sick leave and that he suffered from the throat infection that he claimed. Whilst BHP may have held suspicions that... his absence from work was unjustified, the medical certificate that he had for his absences on Thursday, 2 January, 2003 and Friday, 3 January, 2003 - and which he provided to BHP management - clearly confirms his entitlement to be absent from work. In my view, the medical certificate should be accepted as prima facie evidence that (the dismissed employee) was unfit for work over the period in question..." 5 The S.130 notification by the AWU was allocated to me. All proceedings with this matter were convened in the Commission's premises at 90 Crown Street, Wollongong. I set the matter down for a conference on Monday, 22 January, 2007 but those proceedings were vacated at the request of the parties and the proceedings were reconvened before me on Tuesday, 30 January, 2007, Tuesday, 6 February, 2007, Tuesday, 27 March, 2007 and Tuesday, 3 April, 2007. In the proceedings Mr Gorgievski represented the AWU and Ms Flower represented BlueScope Steel. 6 In accordance with the protocol developed for the Port Kembla steelworks of BlueScope Steel, a referral agreement, signed by the parties, was provided to me pursuant to S.146A and Practice Direction No.18 permitting me to both conciliate or arbitrate the AWU claim on behalf of Mr Tasievski. The referral agreement was in the following terms: "...The dispute concerns a two day unpaid suspension and final warning issued to Mr Ilija Tasievski, an employee in the CPCM department at Springhill..." 7 Conciliation has, in fact, resolved that issue. BlueScope Steel has indicated that it is prepared to lift the two day suspension and removed the final warning on Mr Tasievski's personal file. Ms Flower informed me in the proceedings before me on Tuesday, 3 April, 2007 that it had arranged payment to Mr Tasievski to compensate him for the two day suspension (although Mr Gorgievski had disputed that the amount of the payment made was actually correct) and removed the final warning on Mr Tasievski's file. 8 However, a dispute between the AWU and BlueScope Steel remained because BlueScope Steel has replaced the final warning with a warning notice (Mr Tasievski's second warning) over general work performance issues (not over an allegedly unauthorised absence). The AWU is still pressing for the removal of that warning notice as well and that matter will need to proceed to arbitration. In the proceedings on Tuesday, 3 April, 2007 I expressed some reservations that the fresh warning placed on Mr Tasievski's personnel file was something which could be dealt with in the current proceedings. I nevertheless programmed the matter for arbitration. 9 The protocol developed to deal with BlueScope Steel matters before the Commission provides that unless the parties agree to waive the requirement: "...an application for leave for the matter to be arbitrated will be heard by a Presidential member of the Commission..." In a letter to me dated Thursday, 15 March, 2007 BlueScope Steel sought that I refer the matter in accordance with that clause and provided an outline of submissions for the consideration of the Presidential member. In the proceedings on Tuesday, 3 April, 2007 I directed the AWU to also provide within one week a written outline of its submissions on the question of leave and they did so. 10 There is, however, a further problem in this matter proceeding to arbitration on the current S.130 notification to which I have already alluded in this decision. My jurisdiction to assist by arbitration in that respect is dependent upon the actual terms of the S.146A referral agreement already supplied to me which is now redundant: it speaks of a two day suspension and a final warning, both of which no longer apply since they have been replaced with a more general warning on Mr Tasievski's personal file which is not mentioned at all in the existing referral agreement. 11 On Friday, 20 April, 2007 Grayson DP considered the question of leave on the written submissions provided and, in the circumstances, declined to grant leave for the arbitration of the matter. He invited me to "...re-visit the matter with the parties in the light of those observations...". I reconvened the proceedings on Monday, 23 April, 2007 for that purpose. 12 These proceedings have now run their course and I believe that I must conclude them. I dismiss the matter but reserve to Mr Gorgievski the right to seek the re-listing of the matter if there is some problems over the amount of the payment received by Mr Tasievski to compensate him for the two day suspension. The AWU may also take such further action as they wish with respect to the remaining warning on Mr Tasievski's file but that cannot be achieved in the current proceedings and the present S.146A referral agreement which does not provide me with appropriate jurisdiction to arbitrate such a claim. 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.