[2015] FWCFB 5615
The attached document replaces the document previously issued with the above code on 27
August 2015.
A typographical error has been corrected at footnote 2.
Associate to Vice President Hatcher
Dated 22 June 2016
1
Fair Work Act 2009
s.604 - Appeal of decisions
BlueScope Steel (AIS) Pty Ltd
v
The Australian Workers' Union; Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and Allied Services Union of
Australia and the Australian Manufacturing Workers' Union
(C2015/4327)
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER ROBERTS SYDNEY, 27 AUGUST 2015
Appeal against decision [2015] FWC 3214 of Commissioner Riordan at Sydney on 22 May
2015 in matter numbers C2014/5556, C2014/5383, C2014/1256.
Introduction
[1] BlueScope Steel (AIS) Pty Ltd (Bluescope) has appealed against a decision (the
Decision) of Commissioner Riordan issued on 22 May 20151. The Decision arose out of an
application made under s.739 of the Fair Work Act 2009 (FW Act) for the Commission to
determine a dispute pursuant to the dispute resolution procedures contained in the BlueScope
Steel Port Kembla Steelworks Agreement 2012 (Agreement). There was a dispute between the
parties as to whether permission to appeal was required in respect of the appeal. We accept
the submission of the respondent unions (Unions) that no provision of the Agreement operates
to render any of the appeal provisions in the FW Act inapplicable, so that permission to
appeal is required in accordance with s.604 of the FW Act. We will proceed on that basis.
[2] The dispute concerned a proposal by Bluescope to expand the scope of the duties of
tradespersons employed in its Hot Mills Business (HMB) in the Port Kembla Steelworks in
order to better utilise their working time. The traditional arrangement had been that
employees generally described as “Operators” have the function of operating the production
line plant and equipment in the HMB, and the electrical and mechanical tradespersons
maintain and repair that plant and equipment. Tradespersons rostered to shifts in the HMB to
perform breakdown maintenance will normally be allocated other duties not involving the
exercise of their core trades skills between breakdowns when the plant and equipment is
running normally. Under the proposal, tradespersons, when not performing breakdown
maintenance or other preventative maintenance, would perform tasks on the production line
1 [2015] FWC 3214
[2015] FWCFB 5615
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 5615
2
normally performed by Operators. This change proposal has been referred to as the “Trade
Operator Model”.
[3] From Bluescope’s perspective, the introduction of the Trade Operator Model would
make more productive use of the tradespersons’ working time. Its introduction would also
lead to consequential labour costs savings in that the number of Operators required would be
reduced. Regrettably this would involve some Operator positions becoming redundant.
[4] The Unions have opposed the introduction of the Trade Operator Model. Under the
terms of the Agreement the question of whether the Trade Operator Model may be introduced
has come before the Commission for resolution. This is because the Agreement provides for a
specific dispute resolution procedure to deal with contested issues concerning the
management of change in the Port Kembla Steelworks.
[5] Clause 35.1 of the Agreement sets out a conventional dispute resolution procedure
under which disputes must first be attempted to be resolved internally involving escalating
levels of Bluescope’s management. If the matter is not resolved internally, clause 35.1.7
provides that the Commission is to resolve the dispute as follows:
35.1.7 If still unresolved, the matter will be referred to the Fair Work Commission
(FWC) by either party for resolution, which will include conciliation and, if necessary,
arbitration. The parties will abide by the outcome of such proceedings, subject to any
right of appeal from any such decision of FWC.
[6] Clause 35.2 is specifically concerned with the management of change, and provides:
35.2 Introduction of Change Including Outsourcing
35.2.1 Principles concerning the management of change
The parties agree to the following key principles concerning the management
of change:
(a) The parties recognise and accept that change is an inevitable and
increasingly necessary part of the steel industry.
(b) Change must be ongoing to ensure that the Company remain viable and
employee expectation concerning security of employment can be satisfied.
(c) In considering the desirability and business case for any proposed change
the tests to be applied are requirements for the change to be:
safe;
efficient;
legal; and
fair.
(d) The parties commit to consult and abide by the dispute settling procedures
provided in this Agreement in the event that proposed changes are not
agreed. In support of this commitment there will be both detailed
[2015] FWCFB 5615
3
communication and strong reinforcement by the Company and Unions in
respect of these procedures. Subject to any disagreement being dealt with
in accordance with agreed procedures, and in the case of significant
change 35.2.3, the change will be able to be implemented.
(e) All parties share an intent that there be "zero industrial action" and to that
end will actively ensure that employees, delegates and officials will, on
each and every occasion where a dispute arises and is not resolved, follow
the applicable dispute settling procedure and not take industrial action.
35.2.2 Processes for introduction of Change
(a) Where changes are "significant in nature", as defined in this subclause, they
shall be the subject to the processes set out in 35.2.3.
(b) Changes which are not "significant in nature" shall be introduced in
accordance with the principles set out in subclause 35.2.1 and the
provisions of the Agreement. Disputes in relation to such changes shall be
dealt with in accordance with Clause 35.1 Procedure for Resolving Claims,
Issues and Disputes.
(c) A changes is "significant in nature" for the purposes of this clause if the
change will have substantial effects on:
(i) the composition, operation or size of the workforce in a section
or department of the operations of the Company;
(ii) the skills required of employees;
(iii) the opportunities for promotions of employees;
(iv) the security of employment of employees;
(v) the hours of work of employees;
(vi) the location of work of employees;
(vii) shift pattern changes; and
(viii) outsourcing of work (meaning the engagement on a permanent
basis of another organisation to perform work which has
previously been performed by employees of the Company. In
this respect outsourcing differs from the use of contractors to
meet intermittent work load requirements or to provide
specialist skills on a short term or as needs basis).
(d) Where a change is otherwise provided for in this Agreement it will not be
regarded as significant in nature for the purposes of this clause.
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35.2.3 Processes for introducing change which is significant in nature and for
resolving associated issues and disputes
(a) The provisions of this subclause set out the terms and order of the
procedure which shall govern the introduction and management of change
which is significant in nature.
(b) A change will be determined to be significant where it meets the definition
as set out in clause 35.2.2(c).
(c) Consultation will commence in relation to workplace change as defined
when:
(i) the Company has developed an idea regarding a workplace
change that, if implemented, would result in a change which is
significant in nature, and
(ii) the idea has been developed sufficiently as to justify the time
and effort required to allocate resources and to develop a
working proposal, and
(iii) a "Task Brief" bas been prepared in at least broad terms that
includes the:
objectives of the change;
issues that may arise if the change was progressed to
implementation;
criteria for appraisal of the idea;
impact the idea may have on employees, customers and
the business; and
milestones in the review process.
(d) Consultation will commence with a notification in writing to employees
and their unions (letter 1) as to the broad objectives of the change and the
possible effect the change is likely to have on employees.
(e) Consultation is the process through which employees contribute to
problem-solving and decision making. It provides for employee and union
input before Company management finally decides on action affecting its
employees.
(f) Employees and their unions will be provided with the opportunity to
comment and input into the proposed change. This will not limit any party
from proposing alternative ideas that may result in the objectives of the
business being achieved.
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(g) The consultation process must be fair, comprehensive and genuine.
(h) Following consideration of all aspects of the change, including consultation
with employees, the Company will advise employees and the relevant
unions in writing (letter 2) as to whether or not the Company will proceed
with the introduction of the change. The advice will include:
(i) confirmation on the introduction of the change (as finally
determined) and the nature of that change;
(ii) the date of the introduction of the change;
(iii) the impact the change will have on employees; and
(iv) what steps are to be put in place to manage the impact that the
changes will have on employees.
(i) A decision by employees or the unions not to participate in such
discussions brings to an end the consultation process.
(j) Where agreement is reached as to a change, the change may be
implemented immediately and the parties are to promptly record the terms
of the agreement in writing.
(k) Where there is disagreement as to the change to be implemented, a party to
the consultation process must give written notice to the other parties that it
disputes the implementation of the change and must follow the Procedure
for Resolving Disputes as per clause 35.1.7. Where a matter is referred to
FWC as part of the disputes procedure, implementation of the change will
be subject to the outcome of such proceedings, during which time the status
quo will remain.
(l) For workplace change, (including the number or composition of employees
engaged on any task), the consultation process may provide for the change
to be introduced on a trial basis by agreement. Discussions between the
parties as to how the trial arrangements should be implemented. An
appropriate monitoring system will be established to ensure that the
proposed changes are safe, efficient, legal and fair. The period of the trial
will be determined in advance, with a return to the status quo in the event
that it is shown that the trial fails the safe, efficient, legal and fair test.
(m)Definition:
For the purposes of clause 35.2, the term Workplace Change does not include:
Matters that involve the requirement for employees to work in accordance with
the reasonable direction of the Company; normal day to day operations and
work within the employee's recognised skills, competence, training and safe
working practices.
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Company decisions regarding significant capital investment, business growth
etc. In these circumstance the Company is to provide the information in writing
to employees and their unions as referred to in points (i) to (i v) of clause
35.2.3(h).
. . .
[7] As a result of the referral of the dispute concerning the introduction of the Trade
Operator Model to the Commission, the requirement in clause 35.2.3(k) for the status quo to
prevail came into effect. It was not in dispute that the change proposed by way of the Trade
Operator Model was “significant in nature” in accordance with the definition of that
expression in clause 35.2.2(c). It was further not in dispute, the matter having come before the
Commission and not having been resolved in conciliation, that in arbitrating the matter the
Commission was required to determine whether the proposed change met the criteria
specified in clause 35.2.1(c) - that is, whether the change was safe, efficient, legal and fair.
That is consistent with the way the provision, as it appeared in relevantly identical terms in a
predecessor industrial instrument covering BlueScope, was interpreted by a Full Bench of the
Industrial Relations Commission of NSW in Australian Workers’ Union, New South Wales v
BlueScope Steel (AIS) Pty Ltd.2 That decision also made it clear that the onus fell upon a
relevant union opposing the introduction of a proposed change to make out a case, founded on
the specified criteria, as to why it should not proceed. We regard that proposition as
applicable to this matter.
[8] At first instance the Unions contended that the introduction of the Trade Operator
Model was neither safe, efficient, legal nor fair. Extensive evidence was adduced by both
sides in connection with this contention in a hearing which extended over four days. In the
Decision, the Commissioner determined that the introduction of the Trade Operator Model
did not meet the criterion of legality and contravened the No Extra Claims provision in clause
5 of the Agreement. Having stated that conclusion in the Decision, the Commissioner did not
proceed to consider whether the change was safe, efficient and fair, presumably because his
conclusion as to its legality rendered this unnecessary.
[9] The Commissioner’s reasoning concerning the legality of the change and the No Extra
Claims provision was as follows:
“[19] The Graded Trades Manual provides the agreed classification structure for
tradespeople working for Bluescope at the Port Kembla Steelworks. Annexure “DM-
1” of Exhibit U7 provides a copy of this Agreement as of 5 December 2014. This
document identifies itself as being a review of the registered Graded Trades Manual of
1996. As a result, I have concluded that the concept of the “Graded Trades” has been
in existence for some nineteen years.
[20] The objectives and benefits provisions of the Graded Trades Manual identify its
purpose, namely:
“2.0 Objectives of the Models
The Graded Trades Models are designed to:
2 [2006] NSWIRComm 318 at [17]-[20], (2006) 157 IR 93
[2015] FWCFB 5615
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1. Enhance BlueScope by providing an efficient maintenance system with
appropriately trained/skilled employees.
2. Build on the existing skills and training of apprentices and tradespeople
by enhancing technical knowledge.
3. Develop a “whole of job” concept through multi skilling.
4. Develop a team focus through self supervision and coaching (not
directing).
5. Provide more fulfilling career opportunities.
6. Improve efficiency and productivity.
7. Remove demarcation.
8. Delegate responsibility.
9. Improve the efficiency of the industry.
10. Provide more varied, fulfilling and better paid positions.
11. Develop strands for different disciplines defined by the appropriate
cross skill training and Diploma and Advanced Diploma for trades.
3.0 Benefits of the Models
3.1 Workscope
The tradesperson will be able to undertake a greater proportion of a
maintenance task through the use of lifting, electrical, fitting, hydraulic and
welding skills.
The tradesperson will be able to undertake a broader range of tasks in respect
of their principal discipline as well as those tasks related and ancillary to their
principal discipline.
Employees will be expected to work up to their level of skill and competence
and accept other employees applying skills that traditionally have only been
applied by their trade.
Once training has been completed it is expected that skills will be applied on
the job. This applied to all skills acquired prior to reclassification to the next
level.
3.3 Autonomy
A tradesperson, once skilled in understanding a piece of equipment or process,
will work with less supervision. Past practices train a tradesperson to use their
skill on individual components. At times, close supervision was required to
maintain work continuity. Through an understanding of the “total” machine, a
tradesperson is able to perform comprehensive maintenance tasks with minimal
supervision. This also places responsibility (and accountability) on the
tradesperson for the quality of application of skills.”
[21] Despite the ambiguity of a number of these phrases providing some hope to
Bluescope of the foresight of the negotiators some twenty years ago, a detailed
analysis of the document shows that the level of agreed flexibility extends between the
[2015] FWCFB 5615
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different trades and trades assistants but not to the production operators. A level 4
Graded Tradesperson (Mechanical) is required to:
“8. Apply overall knowledge and understanding of operating principles of the
systems equipment on which trades people are required to perform work
(including instructing others, problem solving and reporting).”
[22] It does not require the tradesperson to operate the machine. A similar provision
exists for the Level 4 Graded Tradesperson (Electrical).
[23] I have taken the opportunity to look at both the Metal and Engineering Training
Package for MEM 30205 - Certificate III in Engineering - Mechanical Trade and the
Electrotechnology training package for UEE 30811 Certificate III in
Electrotechnology Electrician. Neither of these training packages contain modules
relating to the duties of an Operator on a production line.
[24] The Structural Efficiency Principles of the National Wage Case Decision of the
late 1980’s introduced the concepts of mutli and cross skilling. This flexibility
required employees to perform work that was “incidental and peripheral” to the core
work function. This scenario provides the background for the negotiation of the
Graded Trades Model. The suggested Operator duties for the Tradesperson in the
Trade Operator Model could not be regarded as being “incidental or peripheral”, or in
any way “related and ancillary to their principal discipline” as required by the National
Wage Case or the Graded Trades Manual.
[25] If the issue at hand were merely the reduction in the number of Operators that
were required to operate the plant at an appropriate level of production then the
threshold question would be satisfied. However, the use of the Trade Operator Model
requires the tradesperson to perform work that is not incidental, peripheral or even
ancillary to a maintenance task, it requires them to be actually rostered on to the
production roster for up to 50% of their shift. The tradesperson will only be able to
leave their production role during their “rostered time” to attend to any core
maintenance function with the approval of their Supervisor. I cannot find the capacity
for such a change in duties, skills and qualifications in the provisions of the
Agreement. There is certainly no classification or competency in the Graded Trades
Model to satisfy this level of cross-skilling.
[26] Although it may be convenient and appropriate in 2015, in applying the tests of
Golden Cockerel, I find that the Graded Trades Manual does not provide for the
classification of Trade Operator.
[27] I do not accept the argument that clause 32.4 allows for Bluescope to direct
employees to perform work for which they are not properly classified or remunerated.
If such a capacity existed, then Bluescope would be able to direct an experienced
union delegate to work in their Human Resources Department due to their industrial
relations skills, or an Operator who is a qualified Motor Mechanic to work on their
mobile plant. Such a proposition is nonsensical. Bluescope only has the capacity to
direct an employee to work in accordance with their contract of employment. To this
end, the skills, competency and training for a tradesperson is governed by the Graded
Trades Manual.
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[28] I am then left with the question of whether clauses 5, 6 and 35 allow for the
Commission to exercise its arbitral powers.
[29] I accept the argument that the proposed introduction of the Trade Operator will
have an impact on the composition, operations or size of the workforce in the affected
departments of Bluescope. The proposed changes are therefore “significant in nature”.
I note that extensive consultation has occurred between the parties.
[30] The recent Full Bench decision made it abundantly clear that the Commission
cannot make a decision which is “inconsistent with the enterprise agreement itself”.
[31] As such, I find that the maintenance classification structure (clause 6.1.b) is a
“settled” issue for the term of the 2012 Agreement. The application and veracity of the
Graded Trades Manual is not in dispute. This document makes no provision for a
Trade Operator Classification. It confines its application to maintenance functions
only. The Trade Operator Model proposal from Bluescope is an extra claim which
does not enliven the exception provision of the No Extra Claims Clause, or the general
provisions contained in the Agreement.
[32] … Whilst BlueScope’s proposal is not without merit, I find that it would require
an amendment to the current classification structure in order to be implemented and
therefore not legal.”
[10] Bluescope submitted that the Commissioner erred in reaching the conclusion that he
did because:
the Agreement itself did not set out the skills and training required and the duties
and responsibilities involved for each classification;
the position descriptions contained in the Graded Trades Manual did not
exhaustively set out the scope of the role for each of the tradespersons’
classifications, but only set out the “main” skill areas, responsibilities and
requirements;
the Commissioner applied the wrong test in determining whether the proposed
new Operator duties could be encompassed by the existing tradesperson
classifications, in that he focused on the percentage of time that might be spent on
the performance of these duties under the Trade Operator Model rather than
recognising that the principal purpose of the tradespersons’ positions would not
change;
the Commissioner’s construction of clause 32.4 of the Agreement, under which
employees were required to perform such work as Bluescope might reasonably
require, was unduly narrow; and
under clause 32.4, Bluescope was entitled to direct tradespersons to perform
Operator duties as an ancillary part of their role.
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[11] The Unions submitted that the proposed Trade Operator Model was an extra claim that
was prohibited under clause 5 of the Agreement because it involved a change to the terms and
conditions provided for in the Agreement and because it was not capable of being
implemented under clause 35.2 because it was not “legal”. The lack of legality arose, the
Unions submitted, because the effect of clause 6 of the Agreement was that the classifications,
including the tradespersons’ classifications, were a settled issue for the term of the
Agreement. The classifications in the Agreement were not assigned definitions or descriptors,
but were terms of art, the understanding of which was informed by the classification
descriptors in the Graded Trades Model. Those classification descriptors, it was submitted,
were concerned only with the performance of maintenance functions and work ancillary to
those functions, and did not permit the performance of Operator functions that had no
connection with maintenance work.
Consideration
[12] We respectfully disagree with the Commissioner’s conclusions that the introduction of
the Trade Operator Model would contravene the No Extra Claims provision in clause 5 and
would not be legal for the purposes of clause 35.2. Our reasons are as follows.
[13] Clause 5 of the Agreement provides as follows:
5. No Extra Claims
Parties to this Agreement will not make any further claims prior to the nominal expiry
date of the Agreement. This does not however prevent the implementation of change
or raising and progressing of issues where provided for by the terms or processes of
this Agreement.
[14] It was not in dispute that a change which was significant in nature that was capable of
being introduced under clause 35.2 was one which fell within the exception to the No Extra
Claims requirement in the second sentence of clause 5. That meant that any proposed change
which met the criteria of being safe, efficient, legal and fair was not precluded by clause 5.
[15] The criterion of legality has, in relation to industrial instruments preceding the
Agreement which applied to Bluescope and contained a provision equivalent to the current
clause 35.2, been applied on the basis that a change will be “legal” if it is not illegal - that is,
if it is not positively prohibited by any enforceable legal requirement.3 That approach is
consistent with the ordinary meaning of “legal” and is one that we propose to adopt. Further,
the proposition that a change is not “legal” because it involves the performance of work not
contemplated by an employee’s contract of employment has specifically been rejected. In
BlueScope Steel Limited v Australian Workers' Union, New South Wales4 the NSW Industrial
Relations Commission (Macdonald C) said:
“The Legal Criterion
3 BlueScope Steel Limited v Australian Workers Union, Electrical Trades Union and Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union [2008] NSWIRComm 1039 at [36]; BlueScope Steel Limited v Australian Workers
Union [2010] NSWIRComm 1020 at [27]-[28]
4 [2008] NSWIRComm 1044
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[52] The Company's proposal to merge the TTL Unit and the Manual Pack Unit, is a
significant workplace change and, as such, the Award prescribes the method of notice
to the employees and the consultation required to be engaged in by all parties about
that proposed workplace change. The Company tendered a document (Ex 1) setting
out its compliance with that Award prescription - including the consideration of two
workplace changes proposed by the Union.
The Union did not challenge that documented evidence as to the Company's
compliance with the legal prescription set out in the Award.
[53] Mr Armstrong, however, deposed that the Company could not legally direct an
employee to carry out work that was not part of his/her contract of employment. For
example, the Manual Pack employees could not be directed to perform the work
carried out in the TTL Unit. Accordingly, he inferred, the Company's merger proposal
could not be put into effect. (Ex12, paras 3 & 4).
This view of Mr Armstrong has merit on its face.
There is case law that an employee is under no duty to perform work beyond that for
which he/she was engaged under their contract of employment. But, this issue raised
by Mr Armstrong is not so straight forward. The Award in question also comes into
play because it sets out an agreed procedure between the Company and the
Union/employee for the introduction of work place change. Thus the Award provides
the mechanism by which the Company can seek to introduce change and which can
mean (as it does in this case) that employees need to learn new skills - if the
Commission decides that the status quo is to be lifted and the Company can pursue its
merger proposal.
[54] As the Award provides an agreed procedure between the Company and the
Union/employee for the introduction of workplace change and the consequent need to
learn new skills, then the Company's proposal is not in breach of the Legal Criterion -
as argued by Mr Armstrong and the Union.”
[16] We agree with the above reasoning and conclusion. The existence of a provision in a
statutory industrial instrument which establishes a specific procedure to facilitate the
implementation of significant workplace change (including change to the “…operation … of
the workforce” and “the skills required of employees” as contemplated by clause 35.2.2(c))
cannot be read as constrained by the scope of the existing contracts of employment of existing
employees, since to do so would substantially deprive it of utility. Further, in accordance with
well-established principles of interpretation of legal instruments, the adoption in clause 35.2
of the Agreement with an unchanged form of the Introduction of Change provisions, in
circumstances where those provisions in predecessor industrial instruments had earlier been
interpreted and applied by industrial tribunals in a certain way, strongly indicates that the
parties intended that clause 35.2 be interpreted in the same way.
[17] As earlier stated, the classifications in the Agreement do not carry with them any
definitions or descriptors of duties and responsibilities. They simply bear a label and a wage
rate. For example, the electrical trades classifications in Table 2 of Part B “Monetary Rates -
Restructured Classifications” of the Agreement are as follows:
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1. Electrical Trades (inclusive of a tool allowance of $16.00 per 38-hour week)
Electrical Tradesperson (E) Base Level 938.40
Electrical Tradesperson (E) Level 1 971.60
Electrical Tradesperson (E) Level 2 1011.80
Electrical Tradesperson (E) Level 3 1051.50
Electrical Tradesperson (E) Level 4 1094.70
Electrical Tradesperson (E) Level 5 1120.30
Electrical Tradesperson (E) Level 6 1183.60
[18] It was not suggested that there is anything in the classifications as they appear in the
Agreement which would render the proposed requirement for tradespersons to perform
Operator duties not “legal”. Rather, as earlier stated, the Unions relied on clause 6.2, which
provides:
6.2 Restructured Rates of Pay - The classifications appearing in Part B - Monetary
Rates - Restructured Classifications, are new classifications which have been
established as a result of restructuring processes carried out in the departments
and sections of Port Kembla Steelworks in which the new classifications
appear. These new classifications replace and supersede previous
classifications for which rates of pay are provided in Part C - Appendix -
Unrestructured Classifications.
[19] Clause 6.2 does not itself have the effect of rendering the introduction of the Trade
Operator Model not “legal”, and the Unions did not submit otherwise. Its significance,
according to the Unions’ submission, was that it reflected an agreement between the parties
contained in the Graded Trades Model to establish new classifications which informed the
interpretation of the classifications in the Agreement itself.
[20] We consider, with respect, that this submission is flawed. There is nothing in clause
6.2 or any other part of the Agreement which provides, expressly or inferentially, that the
provisions of the Graded Trades Model are incorporated into the Agreement and thus given
effect as terms of the Agreement.5 Further, there is nothing to suggest that the Graded Trades
Model was entered into collaterally with the Agreement. On its face, it has an existence
independent of the Agreement and its predecessor industrial instruments. The Graded Trades
Manual which sets out the Model was first developed in 1996, and has since been through 8
revisions, the latest of which was apparently issued in November 2013, well after the
Agreement took effect. The existence of separate processes informing its development is
disclosed by the fact that the Manual provides that “The Graded Trades Manual and all
amendments to it are subject to approval by the Employee Relations Manager”.6 The Model
provides for a process of reclassification involving an employee request being assessed by an
internal review panel that is entirely external to the Agreement.
5 The evidence of Mr David McKinley, a CEPU organiser, was that that Graded Trades Model was “incorporated into the
Agreement by way of being a Departmental Agreement”. Clause 39 of the Agreement gives effect to certain “Department
Work Agreements”. However it is plain on its face that the Graded Trades Model is not a Department Works Agreement,
since it applies to the whole of the steelworks and is not concerned with the type of matters referred to in clause 39.1.
Counsel for the Unions properly conceded that it was not a Department Works Agreement.
6 Paragraph 1.0
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[21] The inference we draw from this is that the parties did not intend that the
classifications in the Agreement have any settled definition for the term of the Agreement.
Had they had such an intention, the Agreement would have included classification definitions.
Rather, there was an intention to continue a well-established practice whereby the practical
working of the classification system, including the duties and skills required of each
classification, were to be dealt with through the independent process of the Graded Trades
Model and Manual. That process allowed for updating and revision in a manner detached
from the Agreement itself. Thus the Graded Trades Model and Manual only inform the
classifications in the Agreement to the extent that they represent the current agreement as to
how those classifications are to be practically implemented.
[22] In Toyota Motor Corporation Australia Limited v Marmara7 the Full Court of the
Federal Court accepted that a provision in an enterprise agreement prohibiting the parties
from making “any further claims in relation to wages or any other terms and conditions of
employment”8 should be understood as “encompassing a proposal made by a party to the
Agreement to materially change the terms and conditions of employment set out in the
Agreement other than in a manner already provided for by the Agreement” (emphasis added).9
We see no reason not to take the same approach to the No Extra Claims provision in clause 5
of the Agreement. Therefore, to the extent that the introduction of the Trade Operator Model
might involve any change to the Graded Trades Model (a matter to which we will return), that
would not constitute an infringement of the No Extra Claims prohibition in clause 5 because
the Graded Trades Model is not part of the Agreement. We do not consider that the Graded
Trades Manual containing the Model itself constituted a legally enforceable agreement
because there are no identified parties, there is no consideration, and there is nothing in the
document which indicates that it was intended to be legally binding. Therefore if the Trade
Operator Model is inconsistent with any provision of the Graded Trades Model, that does not
mean that the Trade Operator Model is not “legal” in the sense earlier discussed. And, if the
Graded Trades Model is to be treated as incorporated into the contracts of employment of
employees, it again does not follow that any inconsistency with the scope of duties proposed
in the Trade Operator Model renders the latter not “legal”, for the reasons discussed in
paragraphs [15] and [16] above.
[23] In any event, regardless of the legal status of the Graded Trades Manual/Model, we do
not consider that there is anything in the Manual/Model which can be read as a prohibition on
the performance by tradespersons of Operator duties to the extent proposed by the Trade
Operator Model. It is certainly the case that the Manual/Model does not specifically
contemplate that tradespersons would be performing Operator duties except in connection
with a maintenance task. However, there is no actual prohibition in the document on the
performance of such duties by tradespersons. The position descriptions for each classification
each commence with: “The main skill areas, responsibilities and requirements that shall be
demonstrated and used, as required, are:…”. Then follows a series of identified specific
duties in each case. It is apparent that the position descriptions are not intended to be
exhaustive of the duties that may be required to be performed, and allow for the performance
of other duties not specified provided that they do not become the “main skill areas,
responsibilities and requirements”. We are satisfied that the Trade Operator Model does not
7 (2014) 222 FCR 152
8 Ibid at [2]
9 Ibid at [37]
[2015] FWCFB 5615
14
operate to displace the performance of maintenance tasks as the main or core responsibility of
tradespersons.
[24] The position here is distinct from that considered by the Full Bench earlier this year in
Australian Workers Union & Ors v BlueScope Steel (AIS) Port Kembla.10 In that matter,
Bluescope had proposed the introduction of 12 hour shifts. However clause 13.1.1 of the
Agreement in express terms only allowed shifts in excess of 8 hours to be implemented by
agreement with the majority of employees concerned in the relevant work area. No such
agreement having been obtained, the introduction of 12 hours shifts would involve a direct
contravention of clause 13.1.1. Clause 35.2 could not be read as overriding the specific
provision in clause 13.1.1 in that respect.
[25] We consider that the introduction of the Trade Operator Model would satisfy the
criterion of legality in clause 35.2, and provided that it satisfied the other criteria of safety,
efficiency and fairness, would not contravene the No Extra Claims prohibition in clause 5. In
those circumstances, it is appropriate that we grant permission to appeal, uphold the appeal
and quash the Decision.
[26] As earlier stated, the Commissioner has not yet made any decision concerning the
criteria of safety, efficiency and fairness. However, he has heard the evidence and
submissions advanced by the parties in relation to these. In the circumstances we consider the
appropriate course is to remit the matter to the Commissioner to enable him to determine
whether these other criteria are satisfied. The Commissioner will determine if a further
hearing is necessary before he issues a decision on these matters. If any party wishes to be
heard further an appropriate application to the Commissioner may be made.
Orders
[27] The Full Bench orders as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision is quashed.
(4) The matter is remitted to Commissioner Riordan for the determination of the
outstanding issues.
VICE PRESIDENT
10 [2015] FWCFB 1798
OF THE FAIR WORK MISSION THE
[2015] FWCFB 5615
15
Appearances:
G. Hatcher SC of counsel for BlueScope Steel (AIS) Pty Ltd
A. Howell of counsel with A. Grayson solicitor for respondent unions
Hearing details:
2015.
Sydney:
19 August.
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