C2015/4640, Transcript of Proceedings [2015] FWCTrans 519 (15 September 2015)

	Home \| Databases \| WorldLII \| Search \| Feedback Fair Work Commission Transcripts

PN1

THE COMMISSIONER: As I indicated before the break, I indicated that it was my decision to hand down an ex tempore decision based on the current scenario or situation which as affecting BlueScope Steel, and I do so acknowledging that I have not referred to any of the precedents which I have been taken to today but my decision reflects the obiter of those decisions. In determining this matter though I have taken into account all of the submissions in evidence that the parties have presented before me today and in relation to the earlier matter.

PN2

This decision is in relation to the determination by BlueScope to reduce the manning levels of operators in the raw material handling from 24 to 16. Currently, as a result of a conference and recommendation in 2014, six operators man a four roster shift pattern. Four operators are required for operational duties, whilst the other two are regarded as relief operators. The parties agreed to this meeting as a result of the automation of the stackers.

PN3

Another part of the restructure in 2014 was the outsourcing of work at the road rail dump station. In my decision of 25 June 2015, in matter C2014/1378 I made the following comment at paragraph 55:

PN4

I can see no impediment to the introductions of proposed changes to the operation of the RRDS. Such a change is logical, efficient and productive. The role of the BlueScope operator at the RRDS is unnecessary and unproductive. It is ludicrous to have the employees of the contract to simply stand around and watch the operator perform a function that they perform elsewhere in the steelworks.

PN5

In some part this dispute about manning is a result of that decision.

PN6

On 28 April 2014, BlueScope identified that at the RRDS two operators would normally spend three hours each attending to that function and task. The operators have been aware of BlueScope's intention for some 16 months in relation to the RRDS. In more recent discussions with the operators they have identified that there would be 381 spare minutes, or a bit over six hours, confirming the time allocated in the shift utilisation map of 2014 with the outsourcing of the RRDS.

PN7

In the earlier matter, evidence was taken from the principle delegate of the AWU at raw material handling, Mr Carl Langlands, in response to questioning from me, Mr Langlands made the following comments; a question from me:

PN8

Two operators spend four hours per shift down there for the rail and how many for the trucks on average?

PN9

Mr Langlands:

PN10

On average, I'd have to say five hours.

PN11

That's at paragraph 376 of the transcript. At paragraph 379, I asked the question:

PN12

So it's about a three or four hour differential per shift?

PN13

His answer was:

PN14

Yes, and that was a three hour or four hour differential per shift based on the total hours that the company was proposing at that time, which was six.

PN15

It was incongruous to suggest that if between six and 10 hours, of in Mr Langlands' evidence 12 hours, is taken away from a shift by the outsourcing of the road rail dumping station that there should not be some sort of flow on effect to the operator manning at RMH. In relation to the current and dire position that BlueScope finds itself in as a result of world markets in relation to steel production, Mr Brotherson took me to a release from BlueScope Steel that was made to the Australian Stock Exchange on 24 August 2015, it can be found at exhibit B2, tab 5, and I quote:

PN16

We have to address the major challenge of losses in commodity steel making in Australia and New Zealand. The CEO and his team are leading an in-depth strategy review and will update the market on progress via our AGM in November. At these prices it would be more competitive to externally source steel substrate than continue to operate our Australian/New Zealand steel making operations, unless we deliver a game changing approach to costs to improve the competitiveness.

PN17

Clause 35.2.1 is of significance in these proceedings and I quote:

PN18

Introduction of change including outsourcing. 35.2.1 Principles concerning the management of change. The parties agreed to the following key principles concerning the management of change; (a) the parties recognise and accept that change is an ever and increasingly necessary part of the steel industry, (b) change must be ongoing to ensure the company remains viable and employee expectation concerning security of employment can be satisfied.

PN19

In that regard I refer back to the recent stock exchange announcement.

PN20

(c) in considering the desirability of a business case for any proposed change, the test to be applied requires for the change safe, efficient, legal and fair.

PN21

There could be an argument that the decrease in numbers is an effect of the change and not a change itself. Whilst I will not pursue that line in this decision, it is certainly an arguable case. The change in this situation which has resulted in the initial reduction in operator numbers was the automation of the stackers. This proposal is a result of the outsourcing of the RRDS.

PN22

I invited a trial under section 35.2.3(l) of the agreement during conciliation. This proposal was accepted by BlueScope but rejected by the employees. As a result, I think it renders as unsatisfactory the submission that there is a lack of evidence from either side, in relation to the tests of whether this proposal is safe, efficient, legal and fair. There was an opportunity for a six month trial which would have proven or disproven either argument if the employees decided to not follow that course of action.

PN23

Clause 34.3.2 was a provision which I was taken to at some length by Mr Howell. I shall read it for the record:

PN24

34.3.1. The parties recognise the importance of job security for employees.

PN25

34.3.2. While seeking to adhere to this commitment, the parties acknowledged workplace change, new technologies and changes in operations and services will be ongoing and may lead to employees being made surplus. When having to manage any reductions in employee numbers, the company will seek to ensure that employees have the opportunity for redeployment. In addition, every opportunity will be taken to affect change through voluntary means and natural attrition.

PN26

34.3.3 Nothing in this clause prevents the company re-assigning surplus employees into alternative and available roles where their skills are readily adaptable to those roles. In that case, the other provisions of this clause, other than clause 34.3.9 will not apply.

PN27

34.3.4 In identifying surplus employees, the company will adopt a selection process that includes the employee's knowledge, skills and performance relevant to the employee's current position.

PN28

34.3.5 Where employees are made surplus the relevant employees will be given written notice by the company that such positions are surplus and the options available to employees.

PN29

It is disingenuous to suggest that BlueScope has not considered the effects on the employee in relation to this proposal, including redeployment. Discussions about this proposal have been ongoing for some 16 months. Redeployment is an important part of this process and has been for the 20 years that I have been associated in one way or another with the steelworks.

PN30

In relation to onus, whilst I accept the proposition as advanced by the Full Bench that Mr Howell referred me to in relation to a decision that was handed down an hour ago, I agree with the submissions of Mr Howell that in some respects the issue of onus is merely a distraction. Onus only really comes into an determinative process when the issues at hand are so tight and close that it may assist in the determination of the matter. I do not regard that there will be this situation in this circumstance.

PN31

In relation to the test that needs to be applied there are four elements. Is the proposal safe? Mr Brotherson advised me that raw materials handling has operated on many occasions over the last few months with a (indistinct) of three. I am satisfied that the shift utilisation that provides an accurate reflection of the tasks and timelines that are required from the operators to be employed at RMH. I also acknowledge that BlueScope understands its obligation under the Work Health & Safety Act.

PN32

Is the proposal efficient? There will be a reduction in direct costs and no subsequent increase in contractor costs. The proposal is therefore efficient.

PN33

In relation to whether or not the proposal is legal, BlueScope has complied with provisions of the agreement. I can find no scenario which would allow for an argument to say otherwise. The fairness of the proposal is obviously one in the eyes of the beholder. Employees have been made aware of this proposal to outsource the stackers and outsource the RRDS since April 2014. There have been dozens of discussions and opportunities to raise issues, make suggestions and provide alternate remedies over that period of time. It would be unfair on BlueScope to not allow them to reduce operator numbers as a result of the introduction of the outsourcing at RRDS. I find that the proposal to reduce operator numbers at raw materials handling from six per shift to four per shift to be safe, efficient, legal and fair.

PN34

There has been some confusion associated with the selection criteria to be adopted in relation to the surplus employees. The parties agreed to the selection criteria which has been adopted on a without prejudice basis. The criteria was modified as a result of discussions between the parties and suggestions by the Fair Work Commission. It is acknowledged that the selection criteria is the subject of a separate dispute in relation to a site wide issue. The parties agreed to treat this situation as a one off. All sides, both parties accepted that the resolution of this matter due to the cost involved was both important and urgent. As a result, I find that in this instance the selection criteria which has been utilised by BlueScope satisfies the provisions of section 34.3.4.

PN35

Part of that selection criteria introduces a role for the Fair Work Commission to be the last point of appeal for any aggrieved employee. There was a timetable put in place to ensure that those appeals would have been finalised at a local level before today's proceedings. Due to one reason or another I am not confident that that process has been exhausted. As a result, I extend the time for employees to lodge appeals to 1 pm next Tuesday, 1 September 2015.

PN36

BlueScope need to look at all the issues that are raised by the relevant employees and respond appropriately. For example, questions about favouritism should be answered and not simply ignored. I will endeavour to advise the parties of any determination in relation to any individual employee appeals by 4.30 pm on Thursday 3 September 2015. I so order.

ADJOURNED INDEFINITELY [3.18 PM]

Fair Work Commission Transcripts

C2015/4640, Transcript of Proceedings [2015] FWCTrans 519 (15 September 2015)