Industrial Relations Commission New South Wales Medium Neutral Citation: BlueScope Steel (AIS) Pty Ltd and the Australian Workers' Union, New South Wales [2011] NSWIRComm 134 Hearing dates: 20-21 September 2011; 28-29 September 2011 Decision date: 29 September 2011 Jurisdiction: Industrial Relations Commission Before: Walton J Vice-President Decision: First, I recommend the acceptance of all agreed matters in Annexure A (the balance of the matters are, of course, arbitrated outcomes). Secondly, I lift all restrictions on communications at the workplaces. Catchwords: REFERRAL AGREEMENT - REDUNDANCY - Notification under s 146B of the Industrial Relations Act 1996 - Restructure of steelmaking operations at Bluescope Steel in Port Kembla - Conciliation and arbitration - Process for negotiations to be conducted - Severance payments - Positions determined to be surplus to requirements - Voluntary redundancy - Forced redundancy - Agreed position of the parties Legislation Cited: Fair Work Act 2009 (Cth) Industrial Relations Act 1996 (NSW) Category: Principal judgment Parties: Bluescope Steel (AIS) Pty Ltd (Applicant) BlueScope Steel Limited (Applicant) AWU (Respondent) AMWU (Respondent) ETU NSW Branch (Respondent) Representation: K Brotherson, solicitor (Applicant) DuncanCotterill A Gillespie of AWU (Respondent) B Hattenfels for AMWU (Respondent) J Thornton for ETU, NSW Branch (Respondent) File Number(s): IRC 1405 of 2011 Judgment 1By referral instruments, the steelmaking companies in Port Kembla, New South Wales, BlueScope Steel (AIS) Pty Ltd and BlueScope Steel Limited ("the companies"), and three unions (representing the vast majority of award regulated employees engaged by those companies), the Australian Workers' Union, New South Wales ("AWU"), the Automotive, Food, Metals, Engineering and Printing Kindred Industries Union, New South Wales Branch ("AMWU") and the Electrical Trades Union of Australia, NSW Branch ("ETU"), conferred upon this Commission, as presently constituted, dispute resolution powers, pursuant to the provisions of preserved collective State agreements under the Fair Work Act 2009 (Cth) and s 146B of the Industrial Relations Act 1996 (NSW) in relation to the extraordinary restructure of the steelmaking operations of the companies announced to the Australian Stock Exchange on 22 August 2011. Those powers involved conciliation and arbitration. 2The referral agreements were wisely initiated in anticipation of the considerable task involved in the resolution of disputes arising out of the restructuring. The proceedings have been conducted in stages. First, the Commission dealt with a complex array of procedural issues about the programme for and subject of negotiations (as well as some related issues concerning communications). Secondly, the parties were placed in a "lock down" arrangement in which they, after an initial round of negotiations, were required to undertake intensive conferences over a week's duration. Thirdly, the Commission undertook a conciliation process over a further week. Finally, the Commission sat this week in order to deal conclusively with any remaining issues. 3By ordinary standards, the present stage of these proceedings has been reached in a very short period of time. That has been necessitated by the imminent closure of the No 6 Blast Furnace and the dire economic circumstances facing the steel industry. However, no doubt should be entertained about the extent to which the processes have involved a detailed, searching and at times painstaking examination of all facets of implementation of the restructuring including specifically the manner in which it should be appropriately implemented at the workplace. To enlist an idiom - "no stone was left unturned". 4Nor should there be any doubt about just what the respective interests were seeking to achieve by this process. 5The companies, represented by Mr K Brotherson, solicitor, Mr A Highnam and Ms P Renkin (aided by managers from all Departments affected by the restructuring), sought to achieve a restructuring of the companies' operations in such a manner as would maximise the chances for the survival of the business by means of transitioning from the export market, closing No 6 Blast Furnace and making consequential changes to all aspects of the operations (including capital and labour) consequent upon those changes. The ultimate objective was to make Port Kembla Steelworks financially viable. 6The unions, represented by Mr A Gillespie for the AWU, Mr B Hattenfels for the AMWU and Mr J Thornton for the ETU, sought to ensure that the resultant operating conditions were fair, safe and reasonable and, in short, that the losses of positions were minimal. These officials were, in turn, assisted by a large number of union delegates from the affected workplaces. 7The positions of the parties were prosecuted robustly but with a degree of maturity and solemnity reflective of the positive state of industrial relations at the steelworks since the year 2000 and the severe consequences of the restructuring for employees and the community at large. 8The resultant agreements (subject to unions obtaining the endorsement of their members) were carved out of this exhaustive conciliation process. Arbitration has been unnecessary in all but a few instances. The results of those conciliation and arbitration processes are contained in the document annexed and marked A (the matters which were arbitrated bear a marking to that effect). 9The combination of the size and complexity of the issues addressed in the conciliation and arbitration process and the short time in which that process was undertaken necessarily requires that the arrangements be treated as a trial, subject to review by the parties and ultimately the Commission at the end of the review period. 10Subject to one consideration, the trial period shall be six months. That trial has particular significance for those issues considered very late in the process which have been the subject of arbitration. At the end of the trial period the parties shall confer, and any outstanding issues shall be referred to the Commission under the existing referral arrangements (that is, for the final completion of the present referred dispute). The Commission would have in mind the application to those matters of the dispute settlement procedure now widely employed by the Commission and known (ironically) as a "Bluescope arbitration". 11The exception shall be those matters which are classified as "Gate 2" issues. In those cases a separate and earlier track shall be adopted. 12As the unions intend to put the terms of the agreement to their members in a general meeting (in co-operation with the companies) I shall take two further formal steps. First, I recommend the acceptance of all agreed matters in Annexure A (the balance of the matters are, of course, arbitrated outcomes). Secondly, I lift all restrictions on communications at the workplaces. Annexure A ********** 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. Decision last updated: 20 October 2011