C2004/4339, Transcript of Proceedings [2004] AIRCTrans 2864 (26 July 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 731
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER THATCHER

C 2004/4339

NATIONAL UNION OF WORKERS-WESTERN
AUSTRALIAN BRANCH

and

ONESTEEL (STEEL TUBE)

Application under section 170LW of the Act
for settlement of dispute re alleged stand
down of union members

PERTH

10.09 AM, THURSDAY, 15 JULY 2004

PN1

MR M. PRITCHARD: I appear on behalf of the applicant.

PN2

MR T. DAVIES: I seek leave to appear on behalf the respondent.

PN3

THE COMMISSIONER: No objections? Leave is granted. Very well, I did receive this notification under LW from the union. And what I thought we might do is - well, it said it has been referred under the dispute resolution procedure, so what I would like to do is just, sort of, get something on the record about the nature of the problem. And then we will see how we go. But I think it is probably appropriate we try and have a go at a conciliation or see where we go with conciliation, if that is what you are seeking.

PN4

MR PRITCHARD: If it please your Honour.

PN5

THE COMMISSIONER: So, yes, Mr Pritchard?

PN6

MR PRITCHARD: First of all, if I could ask for leave from the Commission. My industrial officer is ill over the last couple of days so this is an unfamiliar role for me. So, I hope I don't offend the court or the Commission. If I could just go through the sequence of events and then deal with a couple of other issues, if I may.

PN7

THE COMMISSIONER: Yes.

PN8

MR PRITCHARD: The sequence of events started with Robert Freeman, the CEO of the Steel and Tube part of Onesteel, indicating 2 years ago that he would like to introduce a long sleeve uniform policy. This was done to a national meeting of delegates. Andrew Roberts, the West Australian State Manager of Steel and Tube raised the issue again in late 2003. The National Union, myself, raised this as a dispute in early 2004 on the following basis. First of all, the colour that was proposed was, in our view, culturally insensitive. It was orange. And there are a number of Irish people on site. And there was concerns with the washing of that particular colour. The other issue that was raised as part of the dispute was that it being long sleeve, it would accentuate the stress felt by the employees through heat stress.

PN9

THE COMMISSIONER: Just on that, when you say dispute, you mean a dispute was notified locally under the dispute resolution procedure, was it?

PN10

MR PRITCHARD: That is correct, yes.

PN11

THE COMMISSIONER: Okay.

PN12

MR PRITCHARD: As provided for in the enterprise agreement. Mr Pritchard, what sort of numbers of people are we talking about, the employees?

PN13

MR PRITCHARD: There is three shifts. A total of around 50 employees.

PN14

THE COMMISSIONER: A total of 50. And it is at the one premises, is it?

PN15

MR PRITCHARD: There is three sheds in Spearwood. Three different divisions. This is a steel and tube shed which would be the largest of the three sheds. It doesn't have application in the other two sheds or the concern has not been raised in the other two sheds.

PN16

THE COMMISSIONER: Okay.

PN17

THE COMMISSIONER: Okay. So, there is three shifts at the one shed.

PN18

MR PRITCHARD: Yes.

PN19

THE COMMISSIONER: Okay.

PN20

MR PRITCHARD: During these discussions the company accepted the basis of our concerns by taking the following actions. First, this year, they have changed the colour of the uniform that is required to navy, in recognition of the concerns raised of a cultural nature and the washing of the uniforms. And, in addition, they have allocated approximately $130,000 towards modifying the shed to try and modify the heat stress that would be felt in the shed.

PN21

THE COMMISSIONER: $130,000?

PN22

MR PRITCHARD: About 130,000. Approximately 2 months ago the State Manager changed. The new State Manager is Paul Shelley who is with us today. Paul has been active in looking at alternative ways of modifying the environment in the shed to take account of the heat that is felt in the shed. He has been active in that in the last couple of months. Paul Shelley, the State Manager, informed the union and members that the long sleeve policy would take effect from 1 July. There has been a gradual rolling out of the long sleeve policy over the last couple of years. And time dictated that 1 July would be rolled out in this particular shed.

PN23

THE COMMISSIONER: So, are these uniforms, are they, that are being provided?

PN24

MR PRITCHARD: Yes, they are uniforms that are provided.

PN25

THE COMMISSIONER: I was trying to see if there was something in the certified agreement about that.

PN26

MR PRITCHARD: No.

PN27

THE COMMISSIONER: There is not?

PN28

MR PRITCHARD: No.

PN29

THE COMMISSIONER: Okay.

PN30

MR PRITCHARD: There is a provision that deals with uniforms and protective clothing.

PN31

THE COMMISSIONER: Safety footwear.

PN32

MR PRITCHARD: Yes. But not specifically the uniform that is provided.

PN33

THE COMMISSIONER: Right. Okay.

PN34

MR PRITCHARD: I confirmed that we were still in dispute on this matter and indicated that Queensland were in the same position. It has been rolled out in other States and they have worked through their issues. It is a current issue in Queensland and in this shed in Western Australia.

PN35

THE COMMISSIONER: When you say, worked through, do you know what happened? Do you know what the outcome was?

PN36

MR PRITCHARD: They are currently in discussions. They are currently wearing short sleeve and shorts. But the company have indicated that they wish to move them to a long sleeve and there are a number of issues that they have raised with regards to that and the company is continuing in discussions with the union and its members in Queensland.

PN37

THE COMMISSIONER: So, your understanding is that Western Australia, sort of, went first?

PN38

MR PRITCHARD: Most of the other States, Victoria and South Australia, it has already occurred.

PN39

THE COMMISSIONER: It has occurred?

PN40

MR PRITCHARD: It has occurred.

PN41

THE COMMISSIONER: And they are using long sleeves?

PN42

MR PRITCHARD: Long sleeve. Absolutely.

PN43

THE COMMISSIONER: In Victoria and South Australia.

PN44

MR PRITCHARD: Victoria, South Australia. I think there is a shed in Tasmania as well. 1 July was indicated as the date that we should convert to the long sleeve policy. There was no enforcement of the policy taken on 1 July, even though that was the date that was indicated that it should convert to the long sleeve policy.

PN45

THE COMMISSIONER: Presumably long sleeve uniforms were issued and made available?

PN46

MR PRITCHARD: No.

PN47

THE COMMISSIONER: No.

PN48

MR PRITCHARD: Not as yet. There has been an issue of long sleeve orange tops made available but the company have accepted our argument that it is culturally insensitive and there are other issues with the colour.

PN49

THE COMMISSIONER: Okay. So, your understanding is even though 1 July was the target date, because the navy uniforms haven't been issued to employees, so they can't really implement it at this time?

PN50

MR PRITCHARD: That is where I believe we are at this stage, yes.

PN51

THE COMMISSIONER: Yes.

PN52

MR PRITCHARD: The union believe that further discussion was required to remedy the environmental concerns prior to the dispute being resolved. So, the company had worked through a number of our issues, but not modified the environment which they work in, to take into account that heat stress would be associated with wearing long sleeves.

PN53

THE COMMISSIONER: Is that part of the 130,000 or is that in addition to that, do you think?

PN54

MR PRITCHARD: No. I believe that the 130,000 has been allocated or put aside to try and modify the shed to take into account - - -

PN55

THE COMMISSIONER: And your understanding is that actually hasn't been finished?

PN56

MR PRITCHARD: It hasn't been spent. On Monday of this week the company informed employees that if they were not prepared to wear long sleeves, they were not allowed to commence work. As employees were - - -

PN57

THE COMMISSIONER: Commence work when?

PN58

MR PRITCHARD: Sorry?

PN59

THE COMMISSIONER: Commence work when, sorry?

PN60

MR PRITCHARD: They had meetings with the night shift on Sunday night and with the day shift, I think, 10.30 on the Monday and with the afternoon shift at 2.30. I think it was delayed. Sorry. It was delayed. So, they had meetings and basically indicated to them that if they didn't turn up the next day in the long sleeves that they would not be allowed to commence work.

PN61

THE COMMISSIONER: Yes. Obviously it will come out presumably, but I am just a little confused of how they could roll up the next day in the long sleeves if the long sleeves, navy long sleeves, which had been agreed to hadn't been issued.

PN62

MR PRITCHARD: That is a concern. That is a concern I have as well. As employees were wearing short sleeves, they indicated they were prepared to work under the current practice which is they can choose to wear long sleeve or short sleeve. That is what we believe to be the current practice. The employees indicated that they were prepared to work under the current practice. Employees have turned up for work at the commencement of each shift, ready to start work, but have been turned away, based on the fact that they haven't been wearing long sleeves.

PN63

THE COMMISSIONER: Since when?

PN64

MR PRITCHARD: Since Tuesday.

PN65

THE COMMISSIONER: Since Tuesday.

PN66

MR PRITCHARD: So, each shift has turned up. The question has been put to them whether they are prepared to go home and change to wear their long sleeves. And if they are not, then they are asked to go home and not return to work.

PN67

THE COMMISSIONER: So, in effect, your understanding is there wasn't work on Tuesday and there wasn't work on Wednesday?

PN68

MR PRITCHARD: And there is no work this morning. Although I have asked all of the employees to turn up. The commencement of the next shift is at 2.30. If there is some resolution, I want to be in a position to be able to carry out the will of the Commission immediately so I have asked all shifts to turn up at the site at 2.30 today in case there is some opportunity to resolve it.

PN69

THE COMMISSIONER: It seems to be strongly felt.

PN70

MR PRITCHARD: It is.

PN71

THE COMMISSIONER: Can you help me understand that?

PN72

MR PRITCHARD: The shed, if I can explain the shed, it is for steel distribution. In a moderate day, the steel - - -

PN73

THE COMMISSIONER: So, this is where stuff is packed and - - -

PN74

MR PRITCHARD: Is packed and loaded onto trucks and then driven away. I will go on a little bit further to - - -

PN75

THE COMMISSIONER: You go first then.

PN76

MR PRITCHARD: Okay. I will just go through. It explains the major concerns. The reasons for the concerns, with the building of the Bunnings shed, the big Bunnings warehouse sheds, towards the coastal side of the particular shed, has had the effect of stopping any breezes that have come through that have, in previous times, cooled the shed. And so there is almost no wind movement. So, the shed doesn't have any actual outside wind movement, even though the shed doors are open. Large shed doors. But they don't allow for wind movement. The steel retains heat and radiates heat while sitting in the shed. So, it is not an inert object. It just sits there.

PN77

It absorbs the heat when it is outside on trucks being delivered or sat outside waiting to unload it. It sits inside the shed. And then it radiates heat. So, it actually adds to the heat inside the shed. Generally, employees feel more comfortable in short sleeve when the days are moderate. So, they may start off in long sleeves on a day shift where they start at 6.30, but as the day gets a little bit warmer, they prefer to move into a short sleeve shirt in the heat of the day. As the days become hotter than moderate - so, at the moment we have fairly moderate days. But as the days become hotter, many of the employees experience chaffing, fungal growth, rashes, irritation, in addition to the general feeling of unwellness due to heat stress.

PN78

THE COMMISSIONER: How can you say that if they haven't been wearing the long sleeve shirts?

PN79

MR PRITCHARD: At the moment the current practice is that they can wear long sleeve or short sleeve.

PN80

THE COMMISSIONER: Yes, I see.

PN81

MR PRITCHARD: So, many wear long sleeve. Currently wear long sleeve. Others wear short sleeve. The reason that they change during the day and such is because as it gets hotter there are a number of problems they feel. And the ones that feel that problem, move into short sleeve.

PN82

THE COMMISSIONER: Into short sleeves. I see.

PN83

MR PRITCHARD: The company have acknowledged that there are problems in the following ways. There are colour charts in the urinal to identify dehydration. They allow more breaks on hotter days. They have, in the past, provided cooling cravats. They provide Staminade on occasion. Again, they have put aside an amount of money to modify the shed. And they have also provided more water coolers throughout the shed.

PN84

THE COMMISSIONER: What was the second one? Urinal tests?

PN85

MR PRITCHARD: Yes, they have colour charts.

PN86

THE COMMISSIONER: Yes. And what was the second one you said?

PN87

MR PRITCHARD: Allowing more breaks during the hotter - - -

PN88

THE COMMISSIONER: Okay. Sorry. Yes.

PN89

MR PRITCHARD: So, they may say on a particularly hot day, you need to have a 5 or 10 minute break each hour to compensate or try and recuperate. The employees strongly believe that the option of short sleeve benefits their health. The company has provided no evidence to the contrary. And when the employees have tried to reach agreement with the company, the company has circumvented the procedure established in the enterprise agreement.

PN90

THE COMMISSIONER: What does that mean?

PN91

MR PRITCHARD: And I will go on to say further, we believe we are at a certain point in the disputes procedure - - -

PN92

THE COMMISSIONER: I see. Okay.

PN93

MR PRITCHARD: So, there are three main issues, I think. We are in dispute regarding the change to uniform policy with regards to long sleeve, the introduction of long sleeve. We believe we are at the stage, 8.5 or 8.6, of the grievance procedure where we are currently in discussions at a State level. The next step may need to take it through at a Federal level, although there has been some preliminary discussions. If it please the Commission, I do have a copy of the agreement.

PN94

THE COMMISSIONER: No, I have got one in front of me. I am just reading:

PN95

8.5 If the matter is not resolved at the location, then the National union officials are other management representatives should ...(reads)... third party. If there is no agreement on who the facilitator should be, the facilitator will be the Commission.

PN96

MR PRITCHARD: So, if it please the Commission, we believe we are around that part of the dispute resolution procedure. The discussions have gone over a long period of time. But there has been no resolution of the dispute, in our view. The company have resolved part of our concerns leading to the dispute. Indeed, the colour of the uniform. They have addressed that issue. They have shown - - -

PN97

THE COMMISSIONER: Excuse me. Can I just ask you, at the moment, when the ones who are choosing - you say the current practice - they are choosing to wear short or long, are they orange ones, are they?

PN98

MR PRITCHARD: No, there has been an allocation of blue, long sleeved blue uniforms. Not the current uniform. But, for instance, the machine operators are required - due to occ health and safety reasons, are required to wear long sleeve.

PN99

THE COMMISSIONER: Yes.

PN100

MR PRITCHARD: Sparks and such. So, some employees do have those. Other employees may wear jumpers above a short sleeve and, as I say, take the long sleeve jumper off during the day.

PN101

THE COMMISSIONER: Okay.

PN102

MR PRITCHARD: So, the option has been open to people who do not feel the negative impact of wearing it, to wear long sleeve.

PN103

THE COMMISSIONER: Okay.

PN104

MR PRITCHARD: They have shown some commitment to addressing our concerns with the effects of long sleeve. So, they have taken some steps and we believe Paul Shelley is endeavouring to address the issues with the heat, experience of heat, in the shed. But do we believe that the company's latest move contravenes this dispute settling procedure. So, they have jumped ahead without going through the different processes that are available. The union was willing to forward this dispute to the Commission for conciliation without the company taking this latest move. So, we were quite happy to move through to - if the company believed we had reached an impasse, to move to seek the assistance of the Commission prior to them taking this latest course of action.

PN105

All the evidence we have demonstrates that delaying the introduction of the policy while waiting for conciliation would not impose any additional risk to the employees. It was not communicated to the union or its members that the company felt that there was any impasse in the dispute settling procedure. So, we were in discussions with the company on the final issue to be resolved as part of the dispute, and prior to them taking this action on Monday, the only notification we had was on Friday that they were going to be meetings on the Monday. At all times the union have made itself available to further discuss the dispute. While this is in dispute, we would expect work to continue normally as indicated in the grievance procedure, 8.9.

PN106

So, we are available to work. The normal situation, we would say, would be people have a choice. In this weather, a majority would obviously choose to wear long sleeve, although they may choose to change to short sleeve during the hotter part of the day. Some may choose to wear short sleeve due to the effects that they feel with the long sleeves. There is another two issues I would like to address. One, the issue of non-payment. the union and its members have been informed that members will not be paid for the last couple of days when they have only acted as directed. So, apart from the matter in dispute, either wearing or not wearing short sleeve or long sleeve, apart from that, they have always acted as directed.

PN107

They have turned up for all shifts, prepared to work, albeit in short sleeve. Or, if in long sleeves, wanting the option of changing to short sleeve during the shift. There have been no demonstration that has indicated that by wearing short sleeve, they put themselves in any immediate danger at all or, indeed, any increase in danger. So, we have had nothing provided to us that indicates that this is based on trying to provide a healthier working environment. It is our contention that this matter is a matter in dispute and that the company have circumvented the dispute resolution procedure. Employees have not been issued with the proposed new uniform so as to be able to comply with the company policy.

PN108

The company have already accepted as part of the dispute resolution procedure that the long sleeve orange has been superseded. So, we don't believe that they have accepted our view with regards to the orange top. So that, we would say, is not an option for people to comply with this. They have said that it is not necessary. And - - -

PN109

THE COMMISSIONER: To wear the long sleeve orange one?

PN110

MR PRITCHARD: To wear the long sleeve orange. So, with regards to the long sleeve navy, we don't believe that they have been issued and we don't believe - in some cases where people have ordered them, they have been provided, although, as part of a previous provision, some employees may have long sleeve navy. We fail to understand the basis why the company are withholding or indicating that they will withhold payment. We don't believe it is within the strand-down provision. And we can't understand what other provision the company may use to withhold payment. The last issue I would like to raise, if I may, is the matter of equitable treatment.

PN111

Brisbane have the same issue and they continue to work in short sleeve shirts to this day, although there are some discussions on-going with regards to a potential change. The union in that State also say that it has not been demonstrated that there are advantages in moving to long sleeve. The only evidence that we have seen, looking at this issue, is a single paged document from the company highlighting lacerations across the country in May. The only injury - and I have got a copy of that, if it please the Commission.

PN112

THE COMMISSIONER: Yes, thank you. Is this the document that is referred to in the notice?

PN113

MR PRITCHARD: No.

PN114

THE COMMISSIONER: The R47. Okay.

PN115

MR PRITCHARD: No, I have that as well, if I may - - -

PN116

THE COMMISSIONER: No, probably not necessary just yet but just let me have a look at this. I might have the wrong document. I have just got thing with notes on it.

PN117

MR PRITCHARD: That is the correct document I am just going to refer to now.

PN118

THE COMMISSIONER: I see.

PN119

MR PRITCHARD: That is purported to - - -

EXHIBIT #P1 COMPANY DOCUMENT PURPORTING TO DETAIL HISTORY OF LACERATION TYPE INJURIES ON A NATIONAL BASIS

PN120

THE COMMISSIONER: Sorry, this is a - I think it just says location, name, date, injuries, severity. I see. So, this is a history - okay, I will let you explain to me.

PN121

MR PRITCHARD: It has been provided to employees purporting to emphasise to them the benefits of long sleeve. It is the only information that we have been provided with that purports - - -

PN122

THE COMMISSIONER: But there are things here with face and ankles and toes and - - -

PN123

MR PRITCHARD: Yes.

PN124

THE COMMISSIONER: So - - -

PN125

MR PRITCHARD: If it please the Commission, the only injury to leg and arm was Paul Goode who suffered an abrasion to his leg and at the time he was wearing long trousers.

PN126

THE COMMISSIONER: But that wouldn't be effected? Would that be - how could that be - in your mind, do you understand how that could - as long sleeve - - -

PN127

MR PRITCHARD: In my mind, I can't see how that could be purported to demonstrate in any way, shape or form any benefits to long sleeve or long trousers.

PN128

THE COMMISSIONER: I see.

PN129

MR PRITCHARD: But that is the only information that has been provided to employees.

PN130

THE COMMISSIONER: So, this is what I was getting at earlier. From where you are coming from at the moment, you believe that the justification as it has been best explained to you in these discussions up until 8.1 to 8.4 that it is based on an OH & S ground that the employer wants to do this, because - is that how the men see it?

PN131

MR PRITCHARD: That has been put to us, Commissioner. I actually have a different belief. My belief is that the CO of the Division has made a determination that people will go into long sleeve and that that is not being questioned or has not been questioned to date and when we have questioned it, there is no, in my view, justification.

PN132

THE COMMISSIONER: I see, but the understanding as you best understand it amongst the employees who are in dispute with their employer on this, where they are coming from is that they understand the only justification they have been given from the employer is that OH&S type background, which may not appear to relate to the arm between the wrist and the - - -

PN133

MR PRITCHARD: That is correct, Commissioner. The company have said that the change of policy is based on their view that it will provide a safer working environment.

PN134

THE COMMISSIONER: But you haven't seen any evidence of that?

PN135

MR PRITCHARD: We question that.

PN136

THE COMMISSIONER: You are questioning that. Yes. I see.

PN137

MR PRITCHARD: The only other information was provided by the National Union of Workers in Queensland where a full risk assessment was done on this issue. I do have a copy of that.

PN138

THE COMMISSIONER: Yes. Do you know whether that dispute got to the Commission by any chance?

PN139

MR PRITCHARD: I suspect it did but I don't have the evidence, I don't have that information to hand, Commissioner.

PN140

THE COMMISSIONER: This was commissioned by, in your understanding do you know who this was commissioned by?

PN141

MR PRITCHARD: I believe it was commissioned by the National Union of Workers.

PN142

THE COMMISSIONER: I see.

PN143

MR PRITCHARD: If I might summarise that?

PN144

THE COMMISSIONER: Yes.

PN145

MR PRITCHARD: Rather than read through it.

PN146

THE COMMISSIONER: I will just make that exhibit P2.

EXHIBIT #P2 NATIONAL UNION OF WORKERS QUEENSLAND - RISK ASSESSMENT REPORT

PN147

MR PRITCHARD: Thank you. In very brief summary, it says that there is a slight advantage or benefit to long sleeves shirts and long sleeved trousers for small lacerations or slight lacerations which if balanced against the negatives of wearing long sleeve shirts and long sleeve trousers in hot weather, and that determines hot weather as being 27 degrees, at that point the negatives outweigh the positives. Now 27 in a sheet of steel is not very hard to reach in our view. That was done in Queensland and we are hotter than Queensland. There is more humidity in Queensland but we are hotter.

PN148

THE COMMISSIONER: Well, I think I've got the general drift. Your view is that there is a dispute, negotiations are still around about 8.4, should be involving the national level at this stage. The employers in your view have acted prematurely by implementing without going through that stage. There is this feeling, certainly by the union and the members that they don't understand why the employer is doing this, considering that the employers seem to have been doing a fairly good job in trying to respond to the heat concerns. But the only real evidence that you say has been given is this table.

PN149

MR PRITCHARD: If it please the Commission - - -

PN150

THE COMMISSIONER: No, no. Then there is the second issue that - what is the justification of withholding pay because the stand-down provision of the agreement doesn't provide for that and they have been rocking up for work or available for work and your third point is equity in respect of Brisbane.

PN151

MR PRITCHARD: Yes. Dealing with their employees in different states in a similar manner. If it please the Commission, my major concern with this is why without notice, this has escalated to this level. Whereby at the time I said that I was happy to have the matter determined if that is where it went. We didn't need to bring it on as such. We would make application at the earliest possible opportunity to have the assistance of the Commission. And why the company would, from a position of discussion - I can understand they may have lost patience but from a position of discussion with no notice, they decide to stand down employees. It seemed more reasonable to me to give notice that that would be their next step rather than sort of bring it on with no notice.

PN152

THE COMMISSIONER: Yes. Anything else?

PN153

MR PRITCHARD: The only other thing, I would have some ways of which I believe the parties should move forward but maybe that would be best left until later.

PN154

THE COMMISSIONER: Yes. We will just leave that for the moment. I just want to get a bit of an overview and a background. Thank you very much.

PN155

MR PRITCHARD: Thank you, Commissioner.

PN156

THE COMMISSIONER: Yes, Mr Davies?

PN157

MR DAVIES: Thank you, Commissioner. At the expense of repeating some things my friend has said, I might in a minute move to some of the background details just to cover off any gaps. Before I do that, perhaps in answer to that last point and just to set some context around where matters have come to this week, if I might hand up a copy of a document which is a notice that was posted at the site on 8 June this year.

PN158

THE COMMISSIONER: Mr Pritchard has got a copy of this, has he?

PN159

MR DAVIES: Yes.

PN160

THE COMMISSIONER: Okay. I will make this exhibit D1.

EXHIBIT #D1 COPY OF NOTICE POSTED AT SITE ON 8 JUNE

PN161

MR DAVIES: I will talk a little further about this in a minute, but just in the context of the dispute that the union has notified today, it is important I think for the Commission to understand that the discussions that have been taking place between the parties commenced in May of 2003. Those discussions, as my friend has correctly indicated, arose following a determination on the part of the company to implement a national policy to ensure the wearing of long sleeved trousers and shirts throughout its various divisions. And as Mr Pritchard has also indicated in respect of the six Tube and Steel sites around Australia, implementation has already occurred for all employees at four of those sites. We are talking about finalising implementation at two sites, Brisbane and Perth. In Perth, consultation as I said, commenced in May of - - -

PN162

THE COMMISSIONER: Just, what is the business about the one shed versus the three sheds, are they different divisions, are they?

PN163

MR DAVIES: Okay. I can come back to these points and perhaps give you a little bit of background to the sites. Steel and Tube is one of the divisions of Onesteel. It has a number of other operations. Steel and Tube is responsible for distribution of steel products and tube products on behalf of Onesteel throughout Australia. What happens is, Steel and Tube obtains a plate, piping and other materials from other Onesteel divisions and also from Bluescope Steel, formerly BHP Steel.

PN164

That material goes to its various distribution centres including a distribution warehouse at Bibra Lake. That is a single site with a single warehouse at which this distribution work is occurring and the dispute in relation to the wearing of clothing is at that site in relation to that warehouse, which is a very large warehouse. It has, as I understand it, some seven or so massive doors which are big enough to let the trucks in and out, the materials in and out. I think the dimensions, please don't hold me to these, are about 8 by 5 metres or 7 by 5 metres in size. And all of the steel comes into that site.

PN165

It is stored at the site, there are persons who are known as process operators who treat some of that steel in various ways. They either cut the steel up into small sizes or they might cut it in other various ways. Not all of the steel gets cut or it is a sort of a minimal level of processing before it goes out to the customer. A lot of the steel that comes in is stored, broken down into smaller groups of steel or gatherings of steel for going out to various customers. And that is done using cranes and various automated warehouse processes which the other employees are responsible for.

PN166

So we've got some employees who do cutting of some steel, the remaining employees, the stores employees do the storing, breaking down into appropriate lot sizes and distribution back out at the warehouse. In terms of numbers of employees, there are about 54 employees at the warehouse. Approximately 23 of those employees are processing employees.

PN167

THE COMMISSIONER: How many? Sorry?

PN168

MR DAVIES: 23.

PN169

THE COMMISSIONER: 23 employees, yes?

PN170

MR DAVIES: And the remainder are about 31 stores employees. There is a three shift system operating. The night shift is a smaller crew than the two day shifts but in total, 54 employees. The 23 processing employees all wear long sleeved clothing at the warehouse all of the time. And those people, as Mr Pritchard has correctly pointed out, operate equipment in the warehouse.

PN171

THE COMMISSIONER: Yes, OH&S.

PN172

MR DAVIES: And that is part of the reason why they wear long sleeves all of the time. Of the remaining 30 stores employees, as Mr Pritchard indicated, there are various - there have up until the implementation policy been various clothing preferences, for want of a better word. The number of those employees, in fact, a fairly large number wear long sleeved shirts as a matter of course but not all employees do so.

PN173

THE COMMISSIONER: I'm sorry, I don't want to interrupt your flow but Mr Pritchard was talking about there were two other sheds out there. Are they nothing to do with the steel and tube division, are they? Are they - - -

PN174

MR SHELLEY: There is two other sheds which are in two divisions and we at Todd's house material in those sheds. For example, in Sheet and Coil there is an amount of our product stored there and those fellows work under our umbrella.

PN175

THE COMMISSIONER: But they are not part of this dispute?

PN176

MR SHELLEY: They are part of this dispute.

PN177

THE COMMISSIONER: They are?

PN178

MR SHELLEY: They are employed by Steel and Tube.

PN179

THE COMMISSIONER: Are they part of the 31 or are they - - -

PN180

MR SHELLEY: Yes, they are. They are part of the storemen in total.

PN181

THE COMMISSIONER: I see.

PN182

MR SHELLEY: And they tend to wear long sleeved shirts and long pants as part of the employees that do that. Is there four of those? There is four of those employees.

PN183

THE COMMISSIONER: Four of those 31 work in the other couple of sheds?

PN184

MR SHELLEY: Yes, that is right.

PN185

THE COMMISSIONER: And they are wearing long sleeves as far as you understand?

PN186

MR SHELLEY: Yes.

PN187

THE COMMISSIONER: Okay, then. Thank you.

PN188

MR DAVIES: I should perhaps indicate for the record and particularly for the monitor's benefit that I have with me, Mr Shelley, S-h-e-l-l-e-y, from Onesteel Trading Proprietary Limited.

PN189

THE COMMISSIONER: I just want someone to tell me just so I keep this in the back of my mind, at the moment is there any dispute with the 23 or is the dispute with the 31?

PN190

MR DAVIES: As I'm instructed - - -

PN191

THE COMMISSIONER: Who was working yesterday?

PN192

MR DAVIES: As I'm instructed, none of the employees are working but the 23 employees don't dispute their wearing of long sleeved shirts, they've been wearing them for a number of years.

PN193

THE COMMISSIONER: But they are not working, they didn't work yesterday?

PN194

MR DAVIES: They are not working. That is correct. Commissioner, perhaps to indicate and not by way of numbers, a very, very large and unusual portion of employees turned up for work in short sleeves on Tuesday, 13 July. I will come back, there is some circumstances in a minute. Effectively the dispute was brought to a head this week, although I first want to indicate that it is not a dispute that has arisen because of any lack of consultation on the company's part or because of any surprise. There was consultation which began in May last year. At all levels, consultation with union officials and union stewards. Consultation through the OH&S committee on site which of course, is made up of members of the production work force and discussions with employees at Tool Box Meetings and safety presentations over the course of time.

PN195

There were, during the period May 2003 through until this year, various bursts where there were more concerted discussions and periods where there were less concerted discussions. But the company fielded issues and queries, dealt with matters that were being raised and sought to dialogue as between itself and the work force about how any changes would be implemented and any issues that arose. In particular there was a trial of wearing of long sleeved shirts by several employees on each shift. That trial related to a particular variation to dress that might be introduced.

PN196

The processing people wear cotton drill, which is fire retardant but we also trialled the wearing of a lighter mesh long sleeved shirt and a number of people trialled that and the report back to the OH&S committee were that they were satisfactory in that trial process on my instructions. The company was very fulsome in its communication with employees about its various other steps which it took. It had an air flow assessment conducted by MPL Group Proprietary Limited.

PN197

THE COMMISSIONER: MPL?

PN198

MR DAVIES: I'm able to hand up, although I didn't bring with me sufficient copies of it.

PN199

THE COMMISSIONER: Perhaps you don't need to hand it up at the moment. Just tell me. I know there is an MPL which was commissioned by the company, was that for nationwide or was that just for Western Australia?

PN200

MR DAVIES: No, it was commissioned out at Bibra Lake, 3 February 2004 and MPL came out to the site and reviewed a various number of matters that could affect comfort at the site including ventilation and a number of other matters. They found and perhaps I should read the sentence:

PN201

The air movement measurements detailed above -

PN202

And they've got air movement measurements.

PN203

- in the warehouse design, ie, seven large doorways approximately 8 metres by 5 metres in size with six being connected by large relatively unobstructed driveways and a high roof would seem to allow sufficient air flow and air exchange.

PN204

Notwithstanding that assessment though, the company did as Mr Pritchard has fairly comprehensively pointed out, taken a number of other steps to improve amenities at the site. There was implementation in the warehouse of a number of large fans, four or five fans, new water coolers, the provision of heat reducing neckties. The Commissioner may have seen those used by sports-people from time to time.

PN205

THE COMMISSIONER: Yes. I go bushwalking a bit and I use one myself.

PN206

MR DAVIES: There you go. And in addition to that, further investigation of whether there were ways notwithstanding the finding of the report of making the warehouse more comfortable through possible temperature reduction systems and that is the $130,000 matter that Mr Pritchard was referring to. In addition to those steps, Commissioner, there was in November 2003, an indication of the bringing into policy of the long sleeved shirt from 2003, from late 2003. Ultimately it delayed into 2004 and further discussions again on a much more concerted scale were undertaken by Mr Shelley at Tool Box Meetings and in various other ways throughout May and June of this year. The notice was posted on 8 June 2004, informing people about implementation as of 1 July. There has been extensive consultation up until that point in time and - - -

PN207

THE COMMISSIONER: This is this document here you are talking about?

PN208

MR DAVIES: That is the document that is D1 that the Commission has. And the company would say in fairness to it, given the long period of leave time and all of those steps that it took, there can't be any criticism on its part that it ought to have waited longer for the NUW to notify a dispute before the Commission when the steps it was taking were entirely clear and transparent and being discussed with everybody and known to the NUW as of 8 June at the latest, an implementation date. Notwithstanding that, the company didn't implement as of 1 July. There was a twelve day period where the company said the policy is now being introduced, you are wearing short sleeves today, you should go and change if you've got a long sleeved shirt in your locker, if you haven't you are going to need to wear a long sleeved tomorrow and there was almost two weeks of informing people about the fact that the change had been brought in.

PN209

Just in relation to the colours of shirts. The majority of people took issue with, that is accepted the provision of orange shirts from the company. But so far as that is concerned, about 30 per cent of the work force came forward and asked for the blue drill alternative and those who have asked for it have had it provided to them.

PN210

THE COMMISSIONER: So of the 31 stores persons, whoever has asked for the blue issue of the navy has had the navy long sleeved shirts issued to them?

PN211

MR DAVIES: That is on my instruction, Commissioner. Mr Shelley just during this morning's proceedings double checked outside his understanding of that. And I'm instructed that there wasn't a full set of blue shirts re-issued but people who wished to have a re-issue have been issued with blue shirts and in terms of the provision of other blue shirts that can be accommodated. I think the important point is that the uniform is supplied by the company, the company bears the cost, the company provides a laundry allowance, all of that outside of any obligation under the certified agreement. And the company hasn't capriciously brought into being a change which is without merit in any way.

PN212

As the Commission will be aware, there are people who wear long sleeved shirts throughout various industries in extremely hot environments, including for example, blast furnaces in steelworks. And the issue isn't the form of clothing that they wear but that they wear appropriate other accommodation as needs be to ensure their safety and welfare. For example, people working in blast furnaces will have only short exposures to the very hot temperatures within a blast furnace because one can't work for long periods of time in those extreme temperatures or in coke oven facilities, for example, at steelworks.

PN213

It is clear from exhibit - my hearing isn't very good today. I think it was P2, but I wasn't sure whether you said P or used another letter. But there seems to be a benefit in the reduction of lacerations from the wearing of long sleeved shirts. So the proposed change isn't without merit. I think the next important point is that we don't have a safety issue this week, there isn't any issue whatsoever with people wearing long sleeved shirts this week. It may not be their preference but there is a perceived benefit.

PN214

There is, regardless of whether a report commissioned by the NUW says that it will reduce minor lacerations, certainly one would expect it to reduce the severity of more major lacerations as well. But a benefit of introducing long sleeved shirts and there isn't any OH&S risk this week. There is no reason why somebody on 13 July when temperatures are between 6 up to maximum of 18 degrees Celsius can reasonably refuse the direction on the company's part that they wear that uniform as requested of them.

PN215

THE COMMISSIONER: So how is taking the industrial action here?

PN216

MR DAVIES: Well, it is an interesting question. Perhaps I think the facts ought speak for themselves and that is that a direction is issued and the key, we say, is that the direction is a reasonable direction. It is certainly reasonable in the context of the days upon which the direction has been issued and that is 13, 14 and 15 July.

PN217

THE COMMISSIONER: There is still two issues, though, isn't there? There is the one about, you know: Here's my direction, if you don't obey it in accordance with the dispute resolution procedure you will follow that right through up to the Commission, that's one issue. The other issue is about turning people away and saying you are not going to pay them.

PN218

MR DAVIES: Yes, well the two I guess they are quite intertwined. But so far as the direction is concerned the way that we would argue the reasoning works is, a direction was issued, that direction is reasonable. The obligation under the dispute settlement procedure, assuming the dispute settling procedure applies and I don't want to get into technical issues today, we are here to conciliate so we are happy to do that regardless of how it applies and how section 170LW applies. But for present purposes, so far as the dispute settling procedure is concerned, work is to continue normally.

PN219

We say that work continuing normally means employees continuing to perform their obligations under their contract including following reasonable directions. We say the direction is reasonable. In today's context there can't be any suggestion otherwise with temperatures as they stand. There isn't a heat stress issue. The heat stress issue is something that might arise although I don't admit it necessarily will in the very highest of temperatures of summer therefore employees are failing to abide by the obligation to continue work normally. We got up to a particular stage in the dispute settlement procedure as I understand it, which would be step 8.4 through to 8.5.

PN220

And while employees may be unhappy to wear the long sleeved shirts, in the circumstances they should be doing that but any further issues that the union wishes to take get discussed through the process and if need be, come to the Commission and the Commission, assuming there to be power again, let us not get into that issue, but the Commission would then deal with that matter. And we say, particularly in circumstances where there has been that long lead time of notice given to the union and especially where there has been introduction of the change amongst numerous other sites within the business. I think there is only one or two other - - -

PN221

THE COMMISSIONER: I can understand possibly an employers frustration about a long lead time and pressures coming from the National Director and so forth but I was just picking up on the thing about, you didn't know the union was to do the notification. I suppose the employer could have made the notification. It wasn't just, you know, anyone can notify the Commission if before things start to get into a loggerhead where work is not occurring.

PN222

MR DAVIES: Commissioner, I can say that the company didn't understand that the company was placed about the implementation, the company didn't fully appreciate that people wouldn't abide by the direction.

PN223

THE COMMISSIONER: They thought they would rock up with their long sleeve.

PN224

MR DAVIES: Yes. And perhaps my friend might say, well, we didn't the company would ever implement it until we gave it the say so. I don't know. But we say, at least people knew that we did have a real intention at that point in time and we sort of just end up where we are as a consequence of that. I think they were the main points that I wished to make. Can I just say this, that the company has certainly exercised a great deal of good will towards any other issues that might arise of the course of time. It is certainly not playing bully boy tactics in circumstances where it has incurred a great degree of expenditure when one has regard to the relatively small cost of shirts and implementing other comfort changes within the workplace.

PN225

And it is committed, and we hope perhaps through a conciliation process, that its commitments might be made clear to still working through other comfort issues with employees. Communicating those, especially with the OH&S committee but with the work force and hopefully resolving any teething problems that employees feel could possibly arise, if not now, during the cooler months on the very hot days to the extent that we are able to.

PN226

THE COMMISSIONER: Could I just get two more things on the record from you if you are able to. Do you know what is the basis of the introduction of the long sleeve policy?

PN227

MR DAVIES: Yes, it is - - -

PN228

THE COMMISSIONER: And is this the only explanation that has been provided to by the company to the union?

PN229

MR DAVIES: I don't know if they are the only raw statistics or not, Commissioner.

PN230

THE COMMISSIONER: This is exhibit P1.

PN231

MR DAVIES: Yes. Can I say that if the work force hasn't been informed, lacerations form a majority of injuries on the site. It may be that a number of these lacerations are lacerations of the hands and that indicates that people are more likely to get cut on a hand than an arm.

PN232

THE COMMISSIONER: Give them gloves.

PN233

MR DAVIES: Yes, and gloves are available for workers as needs be. So perhaps that might raise other issues about wearing of protective equipment but there is a real risk of laceration. It is not incumbent in complying with its Occupational Safety and Health obligations, it is not incumbent upon a company. They are not permitted to wait till something happens and go: oh, there is a problem, now we have got to deal with it.

PN234

THE COMMISSIONER: Sure.

PN235

MR DAVIES: It knows that people can get cut by steel around the warehouse. This is raw steel coming across from raw production stages. People have been cut before. We have got an obligation under our OH&S legislation and we will be the ones that are liable on very strict criteria of people injured. We want to prevent you from being cut, we are not about trying to make your lives more miserable. We believe that we have got an obligation that we need to comply with and we are implementing it but we are implementing it in a, what we say is, a fairly sensitive way. We have had a very long time to implement it. It hasn't been over a short period.

PN236

THE COMMISSIONER: But it sounds as though the company socially haven't been able to persuade the employees of the OH&S benefits, if that is the ground at which it is being implemented at this stage.

PN237

MR DAVIES: Employees at this particular site.

PN238

THE COMMISSIONER: The second thing I wanted, have you got any instructions about what is happening in Brisbane?

PN239

MR DAVIES: Yes, my instructions are that the consultation process at Brisbane is lagging relative to Perth in the same way as, Perth has lagged relative to four other sites.

PN240

THE COMMISSIONER: Yes.

PN241

MR DAVIES: And we would say it is not for one site to say as against another, we have to be last. Perth isn't first. They are not a site that is, you know, a lead or the example to the work force in other States. They are the fifth site out of sixth where it is being implemented and the sixth one is Brisbane.

PN242

THE COMMISSIONER: And just lastly, it might be a very basic question but is it not possible for the 23 processing workers to work even though the stores people are not working?

PN243

MR DAVIES: It certainly would be - - -

PN244

MR P. SHELLEY: Desirable.

PN245

MR DAVIES: Well, it would be desirable and there would be no reason why they, and the other stores workers who wear long sleeved shirts as a matter of course, could not be working. It is my understanding, that it is a relatively small number whose preference is short sleeves but certainly those who wear long sleeved shirts or are required to wear them, ought wear them. And I think the other indication with the process workers, consistent with, and I have not brought any evidence about coke ovens but I know a little bit about the temperatures in coke ovens and the clothing that people in there wear. Again, here are people on site, in the same warehouse, who do wear long sleeved shirts without any, to the companies knowledge, any issues that have arisen for them.

PN246

THE COMMISSIONER: It seems that - we will go off the record shortly. It just seems this is a rather unfortunate - - -

PN247

MR DAVIES: Thank you, Commissioner.

PN248

THE COMMISSIONER: Thank you, Mr Davies. It just seems that this may be a rather unfortunate situation in that possibly the employer wasn't aware that the employees were not going to follow the direction on Tuesday and possibly employees weren't aware that if they didn't roll up on Monday, they were going to be turned away without pay. It may be one of those situations but we will explore that as well as what further action might occur, I think. Sorry?

PN249

MR DAVIES: Just one point of clarification perhaps around that is, that on Monday they weren't turned away. So on Monday, they were told: you are supposed to be wearing it today, this is what will happen tomorrow. You must wear them tomorrow or you won't be able to work. We will send you home and you can get your long sleeved shirts and come back without loss of pay. So there is not - if you have turned up in a short sleeved shirt, you can go and get the right clothing and come back but the policy is now in place, it is reasonable you have got to follow it. So that is sort of those last couple of days.

PN250

THE COMMISSIONER: But the employer didn't deem it appropriate to notify the Commission or the outside facilitator at that stage?

PN251

MR DAVIES: On Monday?

PN252

THE COMMISSIONER: Yes.

PN253

MR DAVIES: That is correct.

PN254

THE COMMISSIONER: Yes.

PN255

MR DAVIES: That is correct.

PN256

THE COMMISSIONER: Sorry, Mr Pritchard, did you want to say anything further?

PN257

MR PRITCHARD: Would it be appropriate just to clarify a couple of issues, if I may.

PN258

THE COMMISSIONER: Yes, certainly. Yes, Mr Pritchard.

PN259

MR PRITCHARD: Just a couple just out of sequence but with regards to the parking systems where four of the gentlemen work. This isn't a direct issue involving us but that is another division of the company and their policy is to allow short sleeve and short shorts. So it doesn't really bear a lot of - I mean, the issue is with regards to steel and tube but the piping systems where those four work, they may very well choose to wear long sleeves but the actual area they work in, that division allows for freedom of choice.

PN260

THE COMMISSIONER: Oh, I see. If I take those four away, that gets back to the 50 then.

PN261

MR PRITCHARD: Yes.

PN262

THE COMMISSIONER: So presumably there is 23 processing and 27 stores and I think Mr Davies is going to say something.

PN263

MR DAVIES: No, I should wait until my friend is complete.

PN264

THE COMMISSIONER: Yes. Yes, thank you, Mr Pritchard?

PN265

MR PRITCHARD: With regards to the latest step that the company have taken, that has come as a surprise, can I say. We have had a long, extensive discussion on this issue and at no time was it forecast to us that they would take this step. And at no time was it envisaged by us that they would take this step because we were working through the grievance procedure and the grievance procedure sets down certain things to occur.

PN266

Although there has been some limited discussion at a National level between the NUW National office and their National office, I wouldn't suggest that there has been full consultation at that level but it would have been suspected that if the company were going to completely circumvent the dispute resolution procedure that they may have forecast to us what step they were going to take.

PN267

Unfortunately I think the guys did see that as confrontational and unnecessary because whether the implementation occurred on Monday of this week or Monday of next week, it would be our contention that there is no greater risk and deem a full exploration of the risk would say that it may not occur now. The risk may not occur now but if the policy is implemented now, at what point will an employee be able to say that: I am at risk. I mean, it is a graduating thing.

PN268

THE COMMISSIONER: And at risk of?

PN269

MR PRITCHARD: Of heat stress, those sort of things. With regards to the airflow, the report, I haven't seen the report that the company are purporting or presenting to yourself Commissioner. I don't believe - - -

PN270

THE COMMISSIONER: I haven't got it either.

PN271

MR PRITCHARD: Oh, okay. I don't believe the employees have seen it either. They are unaware of what come out of that report, is what I am told. I share my colleagues view that I would like to conciliate this and get an early resolution and have the assistance of the Commissioner, yourself, to try and work through this. Is not a desirable position that we are in and maybe the company did not understand how important this issue is to the employees. But if there is a threat there, of course, of losing up to 3 days pay so far on this issue.

PN272

THE COMMISSIONER: I must say to you both that when I received the notification on Tuesday afternoon, I wasn't aware that there was no work yesterday. I had an arbitration yesterday and couldn't do anything about it, a full day arbitration so it is one of those unfortunate things. Yes, Mr Davies, you were just going to respond to something there, were you, there about the long sleeved shirts. The question was whether or not these four over at the piping systems could choose. I think Mr Shelley was saying that they wore long sleeves but I think Mr Pritchard was saying that they can choose to wear short sleeves if they wish.

PN273

MR DAVIES: In relation to that point, simply this, that the long sleeved shirt requirement is being introduced throughout the distribution of business. That business is part of the distribution business to the extent that the policy hasn't been implemented and our four workers are not the only workers at that site. It is a number of workers from the other site to the extent that they haven't got to the point of introduction. They are being part of that process. They are in a different provision and our two divisions cross over there and part of the introduction process as well.

PN274

And secondly, that the report that I referred to, if Mr Pritchard doesn't have a copy of that, we are certainly happy to provide him, as well as the Commission.

PN275

THE COMMISSIONER: I think we will talk about that in the conciliation process.

PN276

MR DAVIES: Thank you.

PN277

THE COMMISSIONER: If there is nothing further?

PN278

MR DAVIES: Nothing further.

PN279

THE COMMISSIONER: Nothing further. I think what we will do now is - thank you for putting that on the record. I have a pretty good understanding of where we are coming from. What I propose to do is adjourn these proceedings and we will go into conciliation conference in the other room, conference room 1 in about, say, 10 minutes and we will start there. Thank you very much.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P1 COMPANY DOCUMENT PURPORTING TO DETAIL HISTORY OF LACERATION TYPE INJURIES ON A NATIONAL BASIS PN120
EXHIBIT #P2 NATIONAL UNION OF WORKERS QUEENSLAND - RISK ASSESSMENT REPORT PN147
EXHIBIT #D1 COPY OF NOTICE POSTED AT SITE ON 8 JUNE PN161