BlueScope Steel (AIS) Pty Ltd v Australian Workers' Union, The [2016] FWC 2729 (13 May 2016) [2016] FWC 2729 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.739 - Application to deal with a dispute BlueScope Steel (AIS) Pty Ltd v Australian Workers' Union (C2015/7468) VICE PRESIDENT HATCHER SYDNEY, 13 MAY 2016 Application to deal with a dispute. [1] On 16 March 2016 1 I issued a decision in relation to an application by BlueScope Steel (AIS) Pty Ltd (BlueScope) for the Commission to exercise the dispute resolution powers conferred upon it by clause 35 of the BlueScope Steel Port Kembla Steelworks Agreement 2015 (Agreement) to vary a departmental work agreement applicable to the Cokemaking Department by abolishing a 15 minute overtime payment for “hot seat changeovers”. My conclusion was that the proposed variation satisfied the criteria for change in clause 35.2.1(c) of the Agreement in that it was safe, efficient, legal and fair, except that it would not be fair in the case of machine operators on 5, 6 and 7 Batteries and gas processing operators. In relation to these categories of employees, I found that a hot seat changeover was actually performed and that the 15 minute payment was justified by the additional time it took to perform the changeover. 2 [2] In terms of giving effect to this conclusion, I stated as follows: “[23] This conclusion does not align with the primary position of either party. I also note the alternative position advanced by the AWU to the effect that it would prefer to retain a reduced payment for all employees rather than have some employees keep it and others not. In that connection I accept that issues concerning employee morale and efficiency in the administration of the payment may arise if the payment remains for some and not others. [24] I consider that the appropriate course at this stage is to direct the parties to confer in relation to the conclusions I have reached and as to whether those conclusions should be implemented by way of machine operators on 5, 6 and 7 Batteries and the gas processing operators retaining the payment and other employees foregoing it, or by a reduced payment across the board. [25] The parties are further directed to provide a report as to the outcome of the discussions to my chambers in 14 days. If there is an agreed outcome, I will implement it. If there is not, I will determine a final outcome.” [3] The parties conferred as directed, but were unable to agree upon an outcome. Accordingly, as contemplated by my earlier decision, it is necessary for me to determine a final outcome in relation to the matter. I have received further written and oral submissions to assist me in this task. [4] The AWU’s submission is that the payment should be retained for all employees, but should be reduced to an amount equivalent to 10 minutes overtime. The 10 minutes figure is calculated by the following steps: (1) there are 40 positions which, under the earlier decision, would qualify for the hot seat changeover and 32 which would not; (2) the proportion of positions which qualify for the payment is 40/72 (that is, 40 divided by the sum of 40 and 32); (3) 40/72 times 15 minutes equals 8.33 minutes; (4) 8.33 minutes should be rounded up to 10 minutes for “ease of administration and clarity of entitlement”. [5] I consider this calculation method to be flawed because it does not take into account the 29 roster and annual leave relief positions which, under the AWU’s proposal, would also continue to receive the part payment. Once they are taken into account, the payment would fall to under 6 minutes. There would be no justification to round that figure up to 10 minutes. While the AWU indicated that all employees in the Cokemaking Department would be prepared to accept a 10 minute payment, whether or not they performed a hot seat changeover which would under the earlier decision attract the payment, there was no indication that the employees would all accept a lesser amount than this. [6] In any event, in the absence of agreement with BlueScope, I am not attracted to the proposition that any employees should continue to receive any payment for time not actually worked. The principle that employees should not be paid for time not worked has been rigorously applied across the steelworks, including most recently in relation to employees in the Blast Furnace 3 , and I do not consider there is sufficient justification for departing from the principle in the case of the Cokemaking Department. The AWU proposal is therefore rejected. [7] BlueScope submitted that the payment should be retained for machine operators on 5, 6 and 7 Batteries and gas processing operators on the basis that they would be required to fill out paperwork attesting to the fact that a hot seat changeover had been performed. That is not what I contemplated in my earlier decision. As I made clear in paragraph [20] of that decision, I did not consider that the occasional shift whereby machine operators on 5 and 7 batteries could leave early because a block break coincided with the shift changeover time vitiated the conclusion that retention of the 15 minute payment - that is, as it was prior to 10 January 2016 - was justified in their case. That is, I consider that the 15 minute payment represented a reasonable approximation of the average additional time over all shifts that was necessary to carry out the hot seat changeover. In that case, it should not be necessary for a person performing a shift as a machine operator on 5, 6 or 7 Batteries or as a gas processing operator to demonstrate in every case that a hot seat changeover was performed. To that extent, the BlueScope submission is rejected. If BlueScope wants to introduce a new requirement for employees to record matters discussed or dealt with during a hot seat changeover for information and quality control purposes, then it is of course at liberty to do so, but this should not be linked to qualification for the payment. [8] My final determination is therefore that the 15 minute hot seat changeover payment should continue to be paid whenever an employee in the Cokemaking Department performs a shift as a machine operator on 5, 6 or 7 Batteries or as a gas processing operator, but should otherwise be abolished. VICE PRESIDENT Final written submissions: 26 April 2016 - BlueScope Steel (AIS) Pty Ltd. 26 April 2016 - Australian Workers’ Union. 1 [2016] FWC 1345 2 Ibid at [22] 3 See [2016] FWC 640 Printed by authority of the Commonwealth Government Printer <Price code A, PR579770>