1
Fair Work Act 2009
s.739—Dispute resolution
The Australian Workers’ Union; Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and Allied Services Union of
Australia and the Australian Manufacturing Workers’ Union
v
BlueScope Steel (AIS) Port Kembla
(C2014/5556; C2014/1256; C2014/5383)
COMMISSIONER RIORDAN SYDNEY, 24 SEPTEMBER 2015
Further decision.
[1] A Full Bench of the Fair Work Commission (FWC)1 has determined that BlueScope
Steel (AIS) Pty Ltd (BlueScope) Trade Operator Model proposal is legal within the test in
clause 35.2 of the BlueScope Steel Port Kembla Steelworks Agreement 2012 (the
Agreement). The remaining issues are whether the proposals are safe, efficient or fair. The
Full Bench remitted these issues back to me for determination.
[2] I invited the parties to make further submissions. BlueScope provided a brief
submission on the outstanding issues on 9 September 2015. The Unions (The Australian
Workers Union, Port Kembla Branch, The Australian Manufacturing Workers Union and the
Communications Electrical and Plumbing Union) did not provide any additional submissions.
[3] On 24 August 2015, BlueScope announced to the Australian Stock Exchange that it
had to either make operational savings of $200 million per annum or close down its
steelmaking operation. I have taken this into account.
[4] Due to the need for expediency I have not summarised the detailed submissions or
evidence of the parties. However, I have taken all of the submissions and evidence into
account in my consideration.
[2015] FWC 6512
DECISION
E AUSTRALIA FairWork Commission
[2015] FWC 6512
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Determination - Safety
[5] Whilst sympathetic to the Union’s argument in relation to the possibility of fatigue in
tradespersons, who have to switch from repetitive production activities to highly complex
maintenance functions, I am not persuaded that this argument warrants the frustration of
BlueScope’s proposal. In the short term, it is possible that BlueScope may have a reduced
capacity to introduce “disciplinary processes” against individual Trade Operators due to
minor safety or operational mistakes. These will be inevitable.
[6] I do not accept the Union’s proposition that there will be a delay in having a Trade
Operator attend a breakdown due to their operating location on the plan, or that it may
introduce an insurmountable safety hazard. Few breakdowns cause emergency situations.
When they do, the current situation is that the Maintenance Tradespersons could be anywhere
on the plant. Nothing will be changed as a result of BlueScope’s proposal. Such a scenario
does not make the proposal unsafe.
[7] BlueScope is aware of its obligations under the Work, Health and Safety Act, 2011.
BlueScope has a very safety conscious management team. I am satisfied that the Trade
Operator Model proposal satisfies the safety test requirements of the Agreement.
Determination - Efficiency
[8] There are obvious efficiency benefits associated with the introduction of the Trade
Operator Model. One of these is that a number of Operator positions will be made redundant,
which will provide real and on-going cost savings to BlueScope.
[9] However, on the downside, BlueScope will gradually lose the specialised skills of its
tradespersons. As a qualified and licensed electrician, I know first-hand what happens to a
tradesperson’s skills if they decrease their “hands on” work at their trade. This concept is at
odds with the focus and purpose of the Greater Trades Model. I accept the proposition put
forward by the Union that this will eventually reduce the efficiency of the maintenance trades.
[10] In reaching their decision to proceed with the Trade Operator Model proposal,
BlueScope would had to have considered this reduction in efficiency as a result of the
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inevitable deskilling of their maintenance trades. This is a factor that BlueScope will have to
incorporate into its operations when dealing with tradespersons who are performing operator
roles and therefore spending less time on their trade work.
[11] The Unions have not provided any evidence in support of their arguments but simply
rely on logical conclusions concerning deskilling. However, in an environment of cost
reduction necessity, I am satisfied that the Trade Operator Model is efficient, at least in the
short term.
Determination-Fairness
[12] The concept of fairness is obviously quite complex given the competing interests of
the parties. There is an obvious unfairness in the Trade Operator Model for those Operators
who will be made redundant and for those Tradespersons who will be forced to learn a new
skill and competency, and who will be obliged to perform work other than their trade with
possible deskilling. Alternatively, it would be unfair to BlueScope, and its employees as a
whole, to deny it the opportunity to make changes which will provide cost savings to the
production process and hopefully maintain the economic viability of the Steelworks.
[13] Prior to the commencement of the hearing, I asked the parties to seek instructions in
relation to the training of apprentices on the basis that operating machinery is not a
component of either the electro technology or mechanical apprenticeships. Mr Darams
provided the following undertaking:
“The Company puts this forward: no worker who is conducting their
apprenticeship will be required to do any work under this proposal. By that, they
will not be trained – any of the training that might have to be provided for a tradesman
to operate any particular machinery, they will not be provided with that training whilst
they are doing their apprenticeship. The consequence of that is that it will only be
trades who have fully completed their apprenticeship training who will be subject
to these proposals.”2
(my emphasis)
[14] Currently, tradespersons are performing operating tasks throughout the plant which are
incidental and peripheral to their core maintenance functions, i.e., in order to undertake fault
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finding analysis, to test the effectiveness of their maintenance/repair task, or to commission a
new installation
[15] For a tradesperson to perform the operating functions now contemplated by
BlueScope, additional training will be required. Mr Otsyula, the Plate Processing and
Dispatch Manager, advised:
“The training will be the same training that the existing operators undertake
before being able to undertake the tasks.”3
(my emphasis)
[16] Essentially a Tradesperson is being trained to be an Operator. As I said in my decision
at first instance, the concept of Trade Operator or Operator Maintainer is not a new
phenomenon in the Australian industrial landscape. The Operator Maintainer classification
was introduced at ICI Port Botany some twenty years ago. In that situation, a new
classification stream was introduced for tradespersons who undertook the Operator training
and performed the Operator/Maintainer role. This process resulted in a work value case being
conducted by the Australian Industrial Relations Commission and a consequent endorsement
of the proposed classifications and new rates of pay.
[17] BlueScope does not propose to provide any additional remuneration under this
proposal. As a result, the proposition may be unfair. I cannot see any industrial justification
for a tradesperson to undertake additional training and utilise competencies from another
stream in the Australian Qualification Framework standards and the associated training
packages for no additional remuneration. Such a proposition is illogical and is inconsistent
with numerous decisions of the Fair Work Commission and its predecessors in relation to
issues such as cross-skilling and increased competency.
[18] It is evident that the proposal is far wider than the concept of “incidental and
peripheral”, with tradespersons possibly being required to spend 50% of their working hours
performing operational duties. No sensible definition of incidental or peripheral could
contemplate such an outcome.
[2015] FWC 6512
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[19] Under normal circumstances, I would recommend a three month trial to “test” whether
the proposed work map is onerous or inefficient. It would also allow for an assessment of the
productivity improvement and the skills/competencies required to perform the Trade Operator
role.
[20] I would also require evidence to be sourced from ICI in relation to their experience
with the classification of Operator Maintainer. I would want to consider the benefits, the
challenges and the pitfalls of this classification over the last 20 years.
[21] However, due to the obvious need to find urgent cost savings, I am not prepared to
delay the introduction of the Trade Operator Model to gather this evidence. To do so would be
unfair to BlueScope.
[22] On balance I am satisfied that the Trade Operator Model proposal is fair.
Conclusion
[23] I have decided that the proposed Trade Operator Model can be introduced immediately
on the understanding that a review will be undertaken by the FWC in relation to the operation
of the new classification and rate of pay in April 2016.
[24] The two most recent interpretations of the Agreement have resulted in it being
interpreted in a narrow manner.
[25] I encourage the parties in the current enterprise bargaining agreement negotiations to
more accurately express their intentions into any new agreement. It may not be appropriate to
have an operative clause that deals with restructuring and the introduction of change to be
subservient to another provision in the agreement. It is also inappropriate for an organisation
the size of BlueScope to not have a classification structure in the agreement. Failure to
include such a clause has the capacity to create an industrial minefield of disputation in the
future.
COMMISSIONER
[2015] FWC 6512
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Printed by authority of the Commonwealth Government Printer
Price code C, PR572111
1 [2015] FWCFB 5615
2 Transcript 4 February 2015 – PN3
3 Exhibit B4 – PN53
