66 I am satisfied that the evidence presents an overwhelming argument in favour of payment of the employees for the time lost on Friday, 4 August and Saturday, 5 August 2000.
67 The arguments advanced by Mr Stoker and Mr Mohan that employees had reasonable cause for concern in respect to their health and safety is sustainable on the evidence.
68 The notes of toolbox meetings taken collectively prove that the issue of airborne dust emanating from refractory operations was raised on a number but not all occasions; and that the general tenor of reply was that C&S management were unable to direct or control the management of York Linings and that this was an issue for site management and the matter referred accordingly.
69 There is some evidence from Mr Wallace of direct approach to York Linings by C&S supervisors, however the results must be viewed as inadequate and insufficient.
70 The events in this matter lead to a conclusion that there was a breakdown in site co-ordination and an inappropriately low priority ascribed to the issues of dust control and communication. The consistent line of argument is that the material is non-hazardous and exposure within allowable limits prescribed by Worksafe Australia. Other than the disputed evidence that Mr Preston had requested the MSDS for the material a week prior to the dispute, there is no evidence of any communication of the material qualities, Worksafe Australia limits, the criteria by which the material is declared non-hazardous or air quality monitoring prior to the events of 4 August 2000.
71 Further, the argument advanced that the employees acted at the instruction of management and accordingly are entitled to payment is also sustained.
72 The evidence supports the conclusion that employees ceased work on Friday, 4 August 2000 as a result of concern for their health and safety and that the employees subsequently acted at the direction of the site management of C&S and the project managers, Alstom Power. The evidence also supports the conclusion that employees attended to the site on Saturday, 5 August 2000 at the direction of management and then conducted themselves in accordance with management direction.
73 Employees were provided with information from MSDS's and the initial airborne dust report in a manner which holds greater probability of increasing apprehension rather than diminishing it. The MSDS's all show amounts of silica in the material, whilst the first airborne dust report (exhibit 7) is open to interpretation that airborne silica levels are being exceeded. The fact that subsequent reports (exhibit 17 and 18) reveal this not to be the case is welcome news to all parties; however, these reports, both dated 6 August 2000, were not available on 4 and 5 August 2000.
74 When introducing exhibit 18, the most detailed airborne dust report, Mr Evans noted that he had been handed the document by those assisting him at the bar table and had not seen it previously. This leads to an unsettling conclusion concerning the quality of communication on site, which appears symptomatic of this event.
75 The assertion that other employees of other contractors and in particular the employees of York Linings, held no concern is not a defence. The issue to be resolved is whether those employees expressing a concern held reasonable grounds for that concern.
76 The submission by Mr Evans that s.143 (4)(b) limits consideration to one crew of employees working in the immediate area of the mixing station, identified by Mr Hardy as some 10 percent of the site, is not supported upon the evidence.
77 Notwithstanding debate between Mr Evans and some witnesses concerning prevailing winds upon the site, there is no precise meteorological evidence of the conditions on 4 and 5 August 2000. However, there is unrefuted evidence that the refractory dust was not contained and escaped from the boiler area in a number of ways which gave rise to a reasonable concern by employees across the site.
78 In consideration of the limitations posed by s.143 (5)(a) and (b), there is no evidence that employees were directed to other work. On the contrary, the evidence is that employees were instructed by management to go to the amenities, the only further instruction to work being to those required to unload a truck, which was complied with. The instruction to all other employees was to go home.
79 There is no evidence that supervisors of those crews not working in the area identified by Mr Hardy instructed the relevant employees to return to their duties.
80 The submission by Mr Evans that the management of Alstom Power are not authorised to direct or instruct the employees of C&S is unsustainable in this case.
81 Section 143(6) of the Act defines employer to include a person acting on behalf of the employer. The unrefuted evidence is that the situation was beyond the control of the management of C&S and had indeed been taken over by management of Alstom Power. The airborne dust sampling initiated by Mr Hardy resulted in reports directed to Mr Tsiolkas of Alstom Power, who involved himself in discussion with employees of C&S, as did Mr Howlett, the then Alstom Power Safety Officer, and other unidentified members of Alstom Power staff.
82 The evidence of Mr Hardy that a number of employees had left site by noon on Friday, 4 August is far too imprecise and subjective to be accepted. Mr Hardy makes no more than an estimate from observation of the car park whilst driving past. There is no evidence in these proceedings of the attendance and timekeeping procedures applied at the Redbank site by any of the employers engaged there.
83 In consideration of the events of Monday, 7 August 2000 the evidence is that the principle issue of concern on that occasion was payment for time lost on Friday, 4 August and Saturday, 5 August 2000. While there were some residual issues of concern canvassed in these proceedings on Monday, 7 August 2000 those matters were not the issues upon which the employees ceased work. Accordingly, the prohibition to payment prescribed by s.143 of the Act limits intervention of the Commission in respect to that occasion.
84 Orders are made in respect to Alstom Power Construction and Services Division as they are the only employer party to these proceedings. I note from the evidence that certain sub-contractors, one identified as "Stelform", others not so identified, are said to be in similar circumstances. The lack of direct involvement of those employers in these proceedings prevents specific determination in respect thereto. To the extent each of these employers are in the same or similar circumstances as Alstom Power Construction and Services Division, a separate application for authorisation or order pursuant to s.143 of the Act is required. Leave is reserved to the Unions to make such application in these proceedings.
ORDERS