THE EVENTS OF 22-31 MARCH 2014
13 It is established on the pleadings that, at about 10.00 am, and again at about 10.30 am, on 22 March 2014 (ie in the period following the injury to Mr Birrell), Mr Robertson requested Charles Strong, the relevant BMC supervisor responsible for the electricians, to "ensure that the site was permanently manned by a dedicated level 3 first-aider located in the site first-aid room".
14 According to what is alleged and admitted on the pleadings, a like request was made by Mr Cuddy of Matthew Browne, the JBA site supervisor, at about 10.45 am. However, it was at that time (ie 10.45 am on 22 March 2014) that - as also alleged and admitted on the pleadings - the employees of BMC and JBA at the site ceased performing all work and sat in the site sheds. It emerged in the evidence that there was, in fact, no relevant conversation between Messrs Cuddy and Browne before that stoppage of work. According to the evidence-in-chief of Mr Cuddy, on that morning he had a conversation with Messrs Robertson and Cockrane. They told him of the incident involving Mr Birrell. Mr Robertson told him that he, Robertson, "was going to pull his members of the workforce off the job, as he thought that there was an immediate risk to health and safety." As a result of that, Mr Cuddy "directed the same thing to all of the workforce that was under [him]". According to Mr Cuddy's evidence, "We sat in the sheds. We pulled our labour, and we sat in the sheds and tried to rectify the problem."
15 Mr Cuddy did not give evidence about a conversation which he had with Mr Browne either before or at the time of the stoppage of work. In chief, neither was Mr Browne asked about any such conversation. Under cross-examination, however, he initially acceded to counsel's proposition that Mr Cuddy told him that he, Cuddy, had "directed the boys to sit in the sheds". He then sought to clarify, or perhaps to modify, that answer, saying that the essence of what he had been told by Mr Cuddy was that the boys had, as a "collective", decided to sit in the sheds, and that he, Cuddy, passed that information on to him, Browne, in his, Cuddy's, role as HSR. Placed into evidence without objection was Mr Browne's diary for 22 March 2014. Alongside 10.45 am, he had written: "The hole [sic] site had sheded up due to OHS (no first aider on site)." Although not conclusive, I consider this entry to be more consistent with Mr Browne's clarified evidence than with his initial evidence. Looking only at his evidence, I am disposed to accept the version that, from what he understood, the employees had decided as a collective to sit in the sheds. Having observed the way this evidence was given, I interpret his response to counsel's initial question under cross-examination as involving a misunderstanding of the significance of counsel's reference to a direction by Mr Cuddy.
16 Either way, it seems clear that Mr Cuddy spoke to Mr Browne only after the employees in his designated work group had stopped work and sat in the sheds.
17 For reasons which will become clear later, it is desirable - although it may not be necessary - that I make a finding on the question whether those employees stopped work because Mr Cuddy directed them to do so, and on the question whether he so informed Mr Browne in such conversation as they did have at about 10.45 am on 22 March. As to the latter aspect, the omission of counsel for the respondents to lead evidence from Mr Cuddy that he told Mr Browne that he had directed the employees of JBA to withdraw their labour and sit in the sheds gives me confidence in accepting Mr Browne's clarified, rather than his original, evidence, on this point. I find that the essence of the message that Mr Cuddy conveyed to Mr Browne at about 10.45 am on 22 March 2014 was that the employees had decided to sit in the sheds. I would also find, however, that Mr Browne understood that the employees' concern related to the absence of a first-aider on site, which made sense of the fact that it was their HSR that carried that message to JBA site management.
18 As to the former aspect, Mr Cuddy was not challenged under cross-examination on the evidence which he had given in chief that he directed the workforce that was "under" him to stop work. It is uncontroversial that it was Mr Robertson who initiated the proposal to stop work, that his interest in the matter related to his position as HSR and that he put that proposal to Messrs Cockrane and Cuddy - probably in that order - because they were the HSRs for the other designated work groups amongst the employees of BMC and JBA on the site. That the message to stop work would have been conveyed to the employees of JBA by Mr Cuddy was, in the circumstances, both a credible and a natural course of events. I so find on the probabilities.
19 Turning to the involvement of Mr Cockrane, the first he knew of Mr Birrell's injury was when Mr Robertson told him that he had taken Mr Birrell to the first-aid facility at the mill gate in a utility vehicle. Mr Robertson told him that there were "no procedures and stuff for first aiders or anything". He told him that the employees in his (Robertson's) designated work group were "sitting in the sheds until they can come up with a procedure." As a result, Mr Cockrane told the members of his own designated work group that they too would be sitting in the sheds. He said (in chief) that he "would have" spoken to his supervisor about the matter, adding, "I just explained to him what has happened, and that's why we were in the sheds." Under cross-examination, he identified the supervisor as Peter Thompson. He told him that there had been an accident and that "the boys had to throw someone in a ute and take him up to first aid …." He responded affirmatively to counsel's question whether he told Mr Thompson that he was "going to sit them in the sheds".
20 Although Mr Cockrane's recollection of the events of the week in question was generally very poor, his recollection of the events of 22 March 2014 appeared to be somewhat better than his recollection of later events that week. If what he said about that day was directly controverted by other credible evidence, or was intuitively doubtful, I would be reluctant to rely on his evidence. But I am prepared to accept, on the probabilities, that he directed the members of his designated work group - the mechanical trades employed by BMC - to sit in the sheds on the morning of 22 March 2014. I do so because his evidence to that effect is consistent with the evidence, which I have accepted, as to the actions of Messrs Robertson and Cuddy on the same morning, and because it was not directly challenged by counsel for the applicant when Mr Cockrane was under cross-examination.
21 As to the timing of Mr Cockrane's conversation with Mr Thompson, I am unable to make a finding, favourably to the respondents' case in relation to the OHS Act, that this occurred before the relevant employees stopped work at Mr Cockrane's direction. The subject was not specifically explored by counsel - either in chief or during cross-examination - and such limited evidence as Mr Cockrane gave about it, to which I have referred above, could be interpreted either way.
22 In the Statement of Claim, the applicant alleged that, at about 11.00 am on 22 March 2014, Messrs Robertson and Cuddy repeated their request for the site to be permanently manned by a dedicated level 3 first-aider located in the site first-aid room to Mr Browne, Mr Strong and other members of AP's project team. In their Amended Defence filed on 9 December 2016 - the Friday before the commencement of the trial the following Monday - the respondents admitted that allegation. When Mr Browne was under cross-examination, nothing was put to him on this subject. Neither was anything said about it in the respondents' opening. Then, in the examination-in-chief of Mr Robertson by counsel for the respondents, it emerged that two AP employees who were, in the witness's words, "in charge of the site for the day" (identified as Max Zammit and Kevin Payne), convened a meeting regarding the cessation of work and the issues surrounding that. After objection by counsel for the applicant, counsel for the respondents (wisely, in my respectful estimation) desisted from leading any further evidence about such a meeting.
23 However, in chief Mr Cuddy did give evidence of that character, and did so without objection. He said that AP's safety adviser, Geoff Kyle, was not present on 22 March 2014, and neither was Roger Wilkinson, the Construction Manager for the de-inking plant project employed by AP. So they (ie Messrs Cuddy, Robertson and Cockrane) spoke to Messrs Zammit and Daniel Brown. They told them what they required, including the presence of a level 3 first-aider on site. Messrs Zammit and Brown told them that they would "get it all sorted out", and that "it will be done by Monday." If it were material - and I doubt that it is - I would not place much weight by this evidence. The respondents did not file outlines of evidence, and the applicant had no notice that evidence would be given of something, presumably thought to be helpful to the respondents' case, said by Messrs Zammit and Brown on 22 March 2014. In the circumstances, the court has not had the benefit of what they might have said on the subject.
24 As it happens, tendered by the applicant without objection before Lucas Muller, JBA's Project Manager at the site, gave evidence was a copy of his diary entry for 22 March 2014. It included the following:
SAFETY MEETING
First aid 11:15
Cut hand first aid
First aid on site
Work safe
Issue First aider too far away. No knowledge of procedure
BMC Want signs on wall
Familiar first aid kit
Green hats for first aiders
BMC rang number no-one there, drove guy up
3 stitches return to work
Should be level 3 first aider on site
Geoff Kyle
AP says Front Gate Lvl 3
& other people around Mill Lvl 3
No issues
25 Mr Browne also attended this meeting at 11.15 am on 22 March 2014. According to the note he made of it in his diary, the safety committee had mentioned that they wanted "a level 3 first aid person on site @ all times".
26 The other objective, albeit indirect, evidence of the events of 22 March 2014 is a brief diary entry made by Mr Wilkinson who, as noted above, was not at the site that day. The entry read:
Advised of injury. BMC E cut wrist.
Potential IR issue because Geoff Kyle not on site.
Although Mr Wilkinson was not asked about this entry, it is tolerably clear that "BMC E" meant an electrician employed by BMC.
27 Mr Muller's diary entry provides an objective basis for making two other findings on the probabilities, findings which are consistent with a deal of the oral evidence in the case. First, the gist of the issue which arose in consequence of Mr Birrell's injury was the absence of a suitably qualified first-aider on the site. As controller of the site, AP took the position that the presence of a level 3 first-aider at the mill gate provided sufficient cover, as it were. But that was not acceptable to the HSRs, who appear to have taken the position that the site as such was required to have a level 3 first-aider present at least during ordinary hours of work. Secondly, as represented by AP to the HSRs on 22 March 2014, the level 3 first-aider who was normally on duty in the vicinity of the mill gate was Mr Kyle. That day being outside ordinary hours, it was not suggested that Mr Kyle would have been at work then even if he had been engaged full-time on the site. Neither was it suggested that he would have been qualified to insert stitches had he been a level 3 first-aider. The point is, rather, that AP was taking the position that Mr Kyle's presence at or near the mill gate was as far as it was required to go in the provision of a first-aid attendant for the site.
28 The employees of BMC and JBA failed to return to work, or to perform any work, for the remainder of the day on 22 March 2014. Indeed, there was an entry for 1.20 pm in Mr Browne's diary which read, "Boys went home". The employees were not paid for any time beyond 11.00 am on this day.
29 Save that it was a rostered day off for the electricians employed by BMC, work resumed on the morning of Monday 24 March 2014. It is established on the pleadings that, at about 10.30 am that day, Messrs Cuddy and Robertson repeated their request for the site to be permanently manned by a dedicated level 3 first-aider located in the site first-aid room. This time the request was made of Messrs Wilkinson and Muller. The only evidence given on this subject was by Mr Cuddy, who said, "We spoke to them on Monday. They said they were going to get it done. So we just … [gave] them a bit of leeway on goodwill … hoping that they were going to have it all sorted out in the next couple of days." He also said that Mr Kyle returned to work that day, and (in Mr Cuddy's words in his evidence) "we were just trying to sort it out … and give him a little bit of leeway."
30 The employees of JBA and the mechanical trades employed by BMC (at least) at the site did not work the customary two hours of overtime after 3.30 pm on 24 March 2014.
31 Work resumed on the morning of Tuesday 25 March 2014. Under cross-examination, Mr Kyle said that there was a safety committee meeting that day. Mr Wilkinson's diary placed that meeting at 11.00 am. The diary entry noted only "Risk assessment" and "Flow chart. Safety". In his evidence Mr Kyle confirmed that Messrs Cuddy and Robertson would have been at the meeting (as members of the committee), but said that the issue of a level 3 first-aider was not discussed.
32 Mr Wilkinson's diary for 25 March 2014 contained an entry to the effect that he was in a meeting from 2.30 pm until 3.30 pm. At 2.55 pm, he was notified that "all site would not work O/T due to Sat O/T docked".
33 It is established on the pleadings that, in the early afternoon of 25 March 2014, Messrs Cuddy and Robertson requested of Messrs Wilkinson and Muller that the site be permanently manned by a dedicated level 3 first-aider located in the site first-aid room. It is not clear whether this request was made at the meeting referred to in Mr Wilkinson's diary which commenced at 2.30 pm, and the matter was not otherwise referred to in the evidence. From the applicant's perspective, neither need it have been, of course, since it had been admitted.
34 The employees of JBA and the mechanical trades employed by BMC (at least) did not work the customary two hours of overtime after 3.30 pm on 25 March 2014.
35 Work resumed on the morning of Wednesday 26 March 2014. In Mr Wilkinson's diary for that day, under the heading, "0645 Pre-start", one of the entries was "IR. O/T ban - received requirement to be paid for last Sat". Then, with reference to the period 10.00 am to 12 noon, there were the following entries:
Mtgs B/T BMC & union reps & M Paynter re payment for Sat
Mtg B/T JBA mgmt (Justin Noonan) & union rep re pay claim for Sat
At 12 noon, there is an entry to the effect that Mr Wilkinson met with Mr Paynter, the subject being, "troops still after payment for Sat". The evidence does not disclose who Mr Paynter was, or what was his role, but he appears to have been associated with one of the three companies referred to.
36 It is admitted on the pleadings that, at about 10.30 am on 26 March 2014, Messrs Cuddy and Robertson requested of Messrs Wilkinson and Paynter, and of Dean Pease, BMC's Contracts Manager for the project, that the site be permanently manned by a dedicated level 3 first-aider located in the site first-aid room. Presumably, this occurred in the meetings referred to in Mr Wilkinson's diary as having taken place between 10.00 am and 12 noon.
37 According to the diary, Mr Wilkinson was involved in further meetings that day, substantially concerned with how AP, BMC and JBA would deal with the industrial situation that then confronted them. None of that is directly relevant to the allegations made against the respondents, of course, but it may be noted that, at 1.30 pm, it was "resolved", amongst other things, to "decide after the Dodd/Sharp visit tomorrow how to proceed incl will we shut the site Sat?". From that I infer that, by 1.30 pm, it was known to the site management of AP, BMC and JBA that Messrs Dodd and Sharp would be at the site the following day.
38 They came by that knowledge by reason of the provisions of s 487 of the FW Act, which requires the holder of an entry permit issued by the Commission under s 512 to give at least 24 hours' notice of his or her intention to enter premises to hold discussions with employees working there. Between 12.18 pm and 12.22 pm on 26 March 2014, the AMWU sent four notices that Mr Dodd would enter premises the following day "after 12.00 pm". Those notices were sent to a company called "JBI", to JBA, to BMC and to a company called "Primaweld". In each case a copy was sent also to AP. At 10.54 am on 26 March 2014, the AWU sent a notice that Mr Sharp would enter premises the following day "at 12.00 pm". That notice was sent to the "Primaweld" company. Although not mentioned in Mr Wilkinson's diary, there was also evidence that, at 12.41 pm on 26 March 2014, Mr Thornton sent a notice that he would enter premises the following day at 1.00 pm. That notice was sent to Mr Wilkinson himself.
39 The employees of JBA and the mechanical trades employed by BMC (at least) did not work the customary two hours of overtime after 3.30 pm on 26 March 2014.
40 Before moving beyond 26 March 2014, it is convenient to address a factual issue which has arisen in the context of the non-working of overtime (if I may use a neutral description at this point) on that day, and on the two previous days, to which I have referred. While the fact was admitted by the respondents, they offered no explanation as to why the employees concerned would not have worked overtime consistently with site practice. No attempt was made to justify that conduct by reference to safety issues at the site. Indeed, as Mr Cuddy made clear in his evidence, the HSRs had decided to give AP and the employers some "leeway" to make the necessary arrangements to implement the safety improvements that they required. The entry for 6.45 am in Mr Wilkinson's diary for 26 March 2014 provides contemporaneous, objective, evidence that there was a ban on the working of overtime in support of a claim for payment for lost time on the Saturday. Mr Cuddy rejected such a proposition, but I do not accept his evidence in relevant respects. I find that, on 24, 25 and 26 March 2014, the employees of JBA, including Mr Cuddy, and the mechanical trades employed by BMC, including Mr Cockrane, refused to work overtime in support of a claim to be paid for the time lost on 22 March 2014.
41 Work resumed on the morning of Thursday 27 March 2014. The electricians employed by BMC worked normally for the whole of that day. However, at the beginning of the meal break at 1.00 pm, the employees of JBA, and the mechanical trades employed by BMC, attended a meeting in the car park outside the site which was addressed by Messrs Dodd, Thornton and Sharp. An entry in Mr Wilkinson's diary for about 1.15 pm on that day read: "Without notice from anyone - mass mtg in process: with Mrss - Sharp - Thornton - Dodd". After the meeting - ie at about the time that the employees would normally have returned to work at the end of their meal break - the employees returned to the site but refused to work and sat in the site sheds. The factual questions which arise out of these events are, first, how, and on whose initiative, was the meeting convened, secondly, how did the organisers come to be at the meeting, thirdly, what was said at the meeting, and by whom, and fourthly, why did the employees sit in the sheds, rather than return to work, after the meeting?
42 In the Statement of Claim, it was alleged that Messrs Dodd, Thornton and Sharp convened the meeting. That allegation was denied, but the respondents did not state by whom the meeting was in fact convened. There is no suggestion that any of these organisers entered the site, where the employees were working before their meal break, to secure the employees' attendance at an off-site meeting. If they, or one or more of them, did convene the meeting, it could only have been by some kind of arrangement with the employees. But there was no direct evidence of such an arrangement.
43 In his evidence-in-chief Mr Cuddy said that he rang Mr Thornton on 27 March 2014 and "asked him if he could come out and help us with some issues - some safety concerns - that we couldn't get anywhere with the actual company." Under cross-examination, Mr Cuddy made it clear that the initiating circumstance which prompted him to ring Mr Thornton was that he found out that that Mr Kyle was not a level 3 first-aider, contrary to what the HSRs had previously been told. It was that situation, he said, which gave rise to an immediate risk to health and safety. He did not immediately give a direction to stop work because "as a work group …we were waiting … to see what help that we could get." He and the others in what he described as the "work group" had, however (ie before the meal break), decided "to withdraw our labour, because they weren't fixing any of it."
44 Mr Cuddy was challenged on his evidence that it was only on the morning of 27 March 2014 that he, and the other HSRs, discovered that Mr Kyle was not a level 3 first-aider, but there is some objective evidence in corroboration. After the car park meeting in the meal break, the organisers and the HSRs met with representatives of the companies involved in the dispute. I shall refer to that meeting in more detail presently. I note here, however, that Mr Wilkinson's diary entry for the meeting was in evidence. It contained the following: "Alf Crow told the guys GK was L3". "GK" was, I infer, Mr Kyle. The only reference in the evidence to Mr Crow was Mr Robertson's that, immediately after Mr Birrell's injury on 22 March 2014, in the first-aid room on the site "Alf Crow was going through the first-aid kit trying to work out what we could do for Stevie". I infer that, at the meeting referred to, someone on the employee side reported that, at some earlier point, Mr Crow had told the HSRs that Mr Kyle was a level 3 first-aider. For this to have been the subject of comment at the meeting, and of Mr Wilkinson's diary entry, provides objective support for Mr Cuddy's evidence that he and he and the other HSRs had only recently discovered otherwise.
45 Mr Cuddy went to the meeting in the car park knowing that he was going to tell the employees in his designated work group to sit in the sheds. Before the meeting, he told the employees that he thought the site was not safe (ie because, he having just found out that Mr Kyle did not have level 3 first-aid qualifications, the situation remained that there was no-one on site with such qualifications). The employees took Mr Cuddy's word on the matter of the unsafe condition of the site.
46 On the strength of Mr Cuddy's evidence, which I have no reason to disbelieve, I find that the JBA employees were told by him to attend the mass meeting in the car park and that, subject to any advice given by their organiser at the proposed meeting, he (Cuddy) proposed to direct them to sit in the sheds after the meal break.
47 Regrettably, no such finding can be made in the case of the mechanical trades employed by BMC. Their HSR, Mr Cockrane, was not asked, either in chief or under cross-examination, how it was that those employees came to be at the meeting in the car park on 27 March 2014.
48 The matter of how the organisers came to be at that meeting is not, of course, directly relevant to any issue in this case, but it may have an indirect relevance to the applicant's allegation that it was on their initiative that the meeting, and everything which flowed from it, came about.
49 Mr Dodd said that he attended the site on 27 March 2014 because he had received calls from his members in regards to safety on the site. Under cross-examination, he accepted that he probably responded to these calls by raising the right-of-entry notices that were sent by the AMWU on 26 March 2014.
50 In chief, Mr Thornton said that he knew, from a telephone call he had received from Mr Cuddy on 22 March 2014, that a worker had sustained an injury on the site. Under cross-examination, asked whether, after speaking to him on 22 March, Mr Cuddy had asked him to come to the site, Mr Thornton said that he had not, "but the delegates would have". He said that the delegates had asked him to come to the site because "they just wanted to know what was going on with the safety issues". He told them to consult the HSR, who would give them all the relevant information. The delegates he recalled, however, were from companies other than BMC and JBA. That last piece of evidence adds to what is already a confusing picture, but, when taken with Mr Cuddy's evidence that it was only on 27 March 2014 that he spoke to Mr Thornton on the telephone, the probabilities are, in my view, that it was because safety issues had been raised by some delegates that Mr Thornton sent his right-of-entry notice on 26 March 2014. He surmised that the notice related to what he described as a "standard visit" to the site, ie a visit which was to have been unrelated to the events of 22 March and the days following. I do not accept that evidence. I find that the notice did relate to those events, and that it was raised and sent because Mr Thornton had been requested by CFMEU delegates to attend the site.
51 Mr Sharp said that he had submitted two right-of-entry notices to enter the site, or possibly the mill site (a distinction which was not clearly made in the evidence) on 27 March 2014, neither of which related to an employer with which the present case is concerned. One was to enter the premises of a company called "Chelgrave" at 9.30 am and the other was the notice relating to Primaweld to which I have referred above. The former was not in evidence, and, although the matter was not raised with any of the witnesses in the case, there is some reason to doubt whether that notice had been given at all, since Mr Wilkinson's diary for 27 March contained the entry: "Notified by front gate … Jeff Sharp @ front gate wanting to see Chelgrave - No go on our R.O.E which is @ 12 pm".
52 Mr Sharp said that the interval between the two entries (ie Chelgrave and Primaweld) gave him the opportunity to return to his office, which he did. While at his office, he got a message from someone about a problem at the site. Prior to that, he knew nothing of the presently controversial issues. He did not recall exactly how, or from whom, he received this message, but thought that it might have been from Mr Dodd or Mr Mooney. Mr Sharp had not forwarded a right-of-entry notice to AP, BMC or JBA, but assumed that the "swipe card" that he had used to gain entry to the mill site on the Chelgrave visit (and which he had retained because of his intention to return to speak to his members employed by Primaweld) would be sufficient for the purpose.
53 There is no reason not to accept Mr Sharp's evidence referred to above. It is not inconsistent with the objective evidence of the AWU right-of-entry notice in relation to Primaweld. There is no suggestion in the evidence that Mr Sharp travelled to the site because he had been contacted by any of the HSRs, or by any other employee of BMC or JBA. The probabilities are that he found out that another organiser, or other organisers, were to attend the site on account of some problem which had been reported to him or them, and did likewise himself.
54 The next matter for consideration is what was said at the meeting in the car park. Mr Dodd said that the issues discussed at the meeting related to safety on the site. The members were emotional about a lack of what they believed were their entitlements with respect to safe working on the site. There was an issue about the first-aid on the site. There was a first-aid kit on the site, but "it didn't have anything in it". There was angst about where the first-aid room was located: a lot of the workers did not seem to know where it was, because it was in the compound and it was not signposted. There was angst with respect to who was the first-aid person on the site, and to other workers that may have had first-aid qualifications. There was no notice on the site showing a photograph of the HSRs. The workers did not know who the HSRs were. The workers were upset about the evacuation procedures. They were concerned as to how somebody would be rescued if he or she had an accident. They were concerned about the "rescue crew" which the workers had been given to believe existed, but which no-one had seen "actually walk the site".
55 Mr Thornton said that the meeting was emotional and hard to control. Concerns were expressed about first-aid on the site, and about the adequacy of the initial response after the incident on the Saturday. The members "required some assistance to remedy the situation." There was talk of "going home", but the organisers strongly advised against that, because it was an occupational health and safety issue, and it needed to be "dealt with under the OH&S banner." Recalling what he said in response to the suggestion that the workers should go home, Mr Thornton said that he said: "Look, let's just try and resolve it amicably. We have to follow the issue resolution procedure. It's completely under the OH&S banner, and we need to deal with that. There will be no members of mine going home until we resolve the issue." He recalled that Mr Dodd also spoke at the meeting, as did Mr Sharp (albeit not much). Under questioning by counsel for the applicant, Mr Thornton reiterated that the car park meeting was emotional, and that a lot of the workers were angry. He recalled some of them saying that they would not go back to work, no matter what, and that they were going to sit in the sheds. They wanted the organisers "to try and rectify the OH&S issues".
56 Mr Sharp's recollection of the meeting was that there was a conversation about the problem, and the issues, on the site. He said that "one of the main ones was the first responders and the level 3 first-aiders". Everybody made a contribution, but the HSRs were doing most of the talking. The mood of the meeting was a "bit agitated" about the need for the first-aid room to be manned by a level 3 first-aider, and for the first-aider to be identified and known to those working on site. There was mention that "some blokes", or "some companies" were sitting in the sheds, or had done so on the previous Saturday. At the conclusion of the meeting, the organisers suggested that they would talk to management, a suggestion with which those present were "pretty fine".
57 Mr Cuddy said in his evidence that he told the meeting in the car park that he had "pulled the people off site, because of safety", and that the workers were going to sit in the sheds until the matter was fixed. They were asking the organisers to help them.
58 In his evidence, Mr Cockrane said that he did attend the meeting in the car park on 27 March 2014, but he did not speak at it. He could not recall who did speak.
59 In the light of this evidence, and perhaps regrettably, the only findings which I can make about the course of the meeting in the car park on 27 March 2014 are, with a limited but significant exception, very high-level ones. There was a general expression of disquiet on the part of the employees over what they perceived to be shortcomings in the matter of safety on the site. Although Mr Sharp said that the HSRs were doing most of the talking, one of the only two HSRs known to have been present, Mr Cockrane, said that he did not speak at all. I consider it more likely that there were many contributors to what was, from what appears, a free-ranging discussion with little organisation. Those present at the meeting had a number of solutions to the issues facing them, including leaving the site altogether. The organisers tended to discourage resort to such extreme measures, and to favour seeing the issues in the frame from which they had originally emerged, namely, that of occupational health and safety.
60 There is nothing improbable in these findings. If there is one thing which permeates all of the respondents' evidence in this case, it is that the HSRs, and the employees, regarded matters of occupational health and safety as exceptions to whatever other obligations they may have had, and to whatever other restrictions may have been imposed on them, under the FW Act. Whether that was a sound perception is a matter to which I shall come, but, factually, it was a perception which underlay much of the events of the week in question. As will appear presently, when the organisers met with company representatives immediately after the meeting in the car park, they opened with an allegation that AP as the occupier of the site and BMC and JBA as the employers were in breach of the OHS Act. Theirs was not a claim for something new: it was a claim for the observance of the existing law. It may have been misguided, but it was a claim of that character. In the light of this, that the organisers would have framed the issue as one of occupational health and safety, and left it to the HSRs to direct any cessation of work, must be regarded as a viable interpretation of the course, and the dynamics, of the meeting in the car park.
61 The one specific finding I can make about the meeting in the car park is that there was no suggestion in the evidence, and it was not put to any of the respondents' witnesses who were there, that anyone raised the matter of the employees not having been paid for the time when they were sitting in the sheds on 22 March 2014.
62 With respect to the matter of why the employees sat in the sheds after the completion of that meeting, rather than returning to work, I note that all those who were present at the meeting and who gave evidence denied having heard any of the organisers direct the employees to sit in the sheds or take industrial action. Mr Dodd said that he did not tell the workers, and he did not hear either of the other organisers tell the workers, to stop work or to sit in the sheds. Mr Thornton said that he did not tell the employees, and he did not hear anyone else tell them, to stop work, whether it be to sit in the sheds or to go home. Mr Sharp did not say, and did not hear any of the other organisers say, that the workers should sit in the sheds. He did not encourage anyone to take industrial action; neither did any of the other organisers. He did not hear anyone at the meeting suggest that people should go home. Although it was a robust meeting, he did not "particularly" hear anyone suggest that people should go and sit in the sheds. Although Mr Cockrane's recollection was not good, so far as went it was his evidence that he did not recall anyone saying that there should be a stoppage of work. He could not recall directing the workers to sit in the sheds. But he insisted that, if the workers in his designated work group were sitting in the sheds at any point, it could only have been because he, as the HSR, had given a direction to that effect.
63 Mr Cuddy was emphatic that it was he who had directed the employees in his designated work group to sit in the sheds, and that he did so at the meeting in the car park. He said that he told them that they would sit in the sheds until the matter was fixed. He thus linked his direction to the broader project whereby the organisers would intervene on the employees' behalves in a meeting with company representatives that was to take place in the afternoon. He was, I would have to say, in some difficulty when, under cross-examination, he was pressed to identify exactly when he gave that direction, but, as I have already mentioned, even before the meeting he had, in effect, achieved a consensus amongst those employees that they would follow that course. It is true that the respondents called no evidence to corroborate what Mr Cuddy said in this respect - Mr Thornton having made it clear that he did not hear Mr Cuddy give such a direction - but neither is there any particular reason to reject what Mr Cuddy himself said. I accept his evidence that, at the meeting in the car park, he did direct the employees in his designated work group to sit in the sheds.
64 I cannot make the same findings with respect to Mr Cockrane. Neither he nor any other witness gave evidence that, at the meeting on 27 March 2014 or thereabouts, he gave a cease-work direction. Mr Cockrane's own assertion, in the witness box, that, if the employees were sitting the sheds, it could only have been because he directed them to do so cannot be accepted as evidence of what happened. Neither of the two relevant organisers, Mr Dodd and Mr Sharp, gave evidence that he heard Mr Cockrane give a cease-work direction. None of the employees in the relevant designated work group, save Mr Cockrane himself, was called by the respondents.
65 The position, then, is as follows. The employees of JBA sat in the sheds after the car park meeting because they had been directed to do so. It was Mr Cuddy, not Mr Thornton, who gave them that direction. I am unable to make any positive finding as to why the mechanical trades employed by BMC sat in the sheds. There was no direct evidence, and I am not satisfied that I should infer, favourably for the applicant, that they did so because of a direction from Mr Dodd or Mr Sharp. Likewise, there was no direct evidence, and I am not satisfied that I should infer, favourably for the respondents, that they did so because of a direction from Mr Cockrane.
66 Returning to the narrative, after the conclusion of the meeting in the car park on 27 March 2014, those who had been at the meeting did not return to work, but sat in the sheds. At 1.45 pm, there was a meeting attended by Messrs Dodd, Thornton and Sharp, by the HSRs, by Messrs Wilkinson, Pease and Muller, and by some others. I shall commence by referring to Mr Wilkinson's diary entry which relates to that meeting.
67 The first section of the diary entry read as follows:
• Believe AP are in breach of the OHS Act.
Bought out [sic - sought our?] "effective emergency response plans".
• Dedicated 1st aid person (non working).
• Don't accept L3 at gate is adequate
• Photo's not adequate
• Compliance code work safe document.
• Risk assessment
• Concerns about health & safety.
And consultation about what AP can provide
68 There followed a reference, beside the time 2.30 pm, to Mr Paynter's name, and the words "advised status". There was a reference, beside the time 2.35 pm, to Gavin Jones (the AP project manager for the de-inking project). There is other evidence, to which I shall refer, that Mr Wilkinson left the meeting at some point, and this may have been that point.
69 The next entry was the one to which I have referred in para 44 above.
70 The next few lines in the diary entry read:
• Companies sent there [sic] guys
Issues - payment for the day
- perm 1st aid (L3)
After a note to the effect that he had left a message with Mr Paynter, Mr Wilkinson then wrote, alongside the time 3.18 pm:
Rang Gavin Jones re payment on Sat to confirm non payment - non payment was confirmed.
GJ also veto'ed my offer of temp first aider in first aid room.
And, after a break of a line, the following:
Informed organisers & reps of the above.
- Organisers remain:-
- Must be paid for Sat
- Must have perm L3 1st aider in 1st aid room
71 While giving oral evidence, Mr Wilkinson was not taken to his diary with respect to the events of 27 March 2014. When asked about the meeting on that day, he said that he did not have a clear recollection of it, "because there were several meetings held during that week - Thursday and Friday, from memory." With reference to both days, Mr Wilkinson said that there were discussions about having a non-working level 3 first-aider on the site as such. He said that the "guys" were seeking payment for time lost on the previous Saturday. Both the organisers and the HSRs were making those representations.
72 Mr Wilkinson said that he "would have" reported to Mr Jones. Then, speaking, as I understand it, from actual, albeit high-level, recollection as distinct from conjecture, he said that, having done so, he reported back to the meeting with the organisers and the HSRs, informing them that there would not be a level 3 first-aider on the site as such and that he was not to authorise payment for lost time. Under cross-examination, Mr Wilkinson said that they were the "two main issues", in addition to which there were other sundry issues.
73 Cross-examined with reference to interchanges which had occurred generally in the week (ie not confined to, but including, the meeting on 27 March), Mr Wilkinson said that it was clear to him from Messrs Dodd, Thornton and Sharp that the workers should be paid for the time lost on the Saturday. He made a distinction between a demand made to that effect of AP and such a demand made of the immediate employers of the workers, BMC and JBA: he understood the demand to be in the latter category. When it was put to him that the organisers inquired whether the workers would be paid, rather than demanding that they be paid, he said that this was a matter of "semantics". But he said that he was not part of any discussion between the organisers and the other companies.
74 Mr Pease too had what appeared to be a solid, albeit not a detailed, recollection of the meeting on 27 March 2014. When asked in chief about the subjects that were under discussion there, he said they related to "returning to work". Specifically, there were a number of safety-related issues to be resolved, one of which was the request that the site hut be permanently manned by a project first-aid attendant, qualified at level 3. He had no recollection as to who made that request, but Messrs Robertson and Sharp were the most vocal ones at the meeting. As to the previous Saturday, there was "some talk of receiving an eight hours pay", beyond which he was unable to be specific. This evidence was not materially qualified during cross-examination.
75 Mr Muller was also at the meeting on the afternoon of 27 March 2014. In his evidence, he said that, as a result of the incident on the Saturday, there was a discussion about emergency response. The idea was put forward, by a combination of the company representatives and the HSRs, to put a certificate 3 first-aider full-time on the site. The justification for such an expedient was that it was an OH&S requirement, "according to the regulations." It was the HSRs, the organisers, and the company representatives that advanced that justification. Additionally, Mr Muller was told by the organisers that, because the workers' refusal to work for four hours on the Saturday related to a safety issue, he was required to pay them for that time.
76 Mr Dodd described his recollection of the meeting with company representatives on 27 March 2014 as "sketchy". He said that he recalled the meeting "roughly". He said that it was "a number of different people" who did most of the talking at the meeting. The organisers were trying to put the views of the workers forward, supplemented by the HSRs, and possibly also the delegates. He said, "it was pretty much a general conversation around a table with a whole range of people, including the management people." Under cross-examination, he accepted that there was a discussions about a level 3 first-aider. He recalled that the question was asked whether the workers would be paid for the time lost on the previous Saturday, and that the companies' response was that, "No, we're not paying for it, because … we don't see it as a safety issue." His own position was that, if the cessation of work had been on account of a safety issue, the workers should not be financially penalised.
77 Asked in chief to state who attended the meeting with the company representatives on 27 March 2014, Mr Thornton said that the HSRs, the employee representatives (ie, I take it, the delegates), the union organisers, the management representatives from the respective contract companies, Mr Wilkinson, and, he was pretty sure, Mr Kyle were there. Asked to recount who said what, he said that it was not an orderly meeting, because emotions were pretty high from the HSRs, and a lot of people were talking over one another. The one thing that Mr Thornton did recall asking Mr Wilkinson was whether he had a construction safety management plan and adequate first response. Under cross-examination, this was teased out somewhat, with Mr Thornton accepting that he, and the HSRs, made it clear that such a plan, consistent with the regulations as he understood them, would involve the requirement for the presence of a level 3 first-aider on the site. Asked whether he recalled it being said, either by himself or someone else, that the way to get the workers back to work was to put a level 3 first-aider in the first-aid room on the site, Mr Thornton responded, "I did recollect that a remedy would be to have a safe system of work. Part of that safe system of work would be adequate first-aid provisions. That could be a level 3 first-aider. Also address the first response. So it was a number of things." Ultimately under cross-examination, he accepted that he had told the company representatives at the meeting that they had to have a level 3 first-aider on the site, although not necessarily in the first-aid room. He did not recall Mr Dodd or Mr Sharp, however, saying anything about that.
78 Mr Thornton said that, at the meeting, he did not request, and he did not hear Mr Dodd or Mr Sharp request, payment for the previous Saturday. When pressed on this matter under cross-examination, however, Mr Thornton said that "someone did ask it", that he recalled that Mr Wilkinson said that he needed the approval of Gavin Jones, or his superior, that he (Wilkinson) left to speak to Mr Jones, that he returned at about 3.20 pm, and that he told the meeting that Mr Jones had told him that AP was not going to provide a non-working level 3 first-aider in the first aid site room, and that there would not be any payment made for 22 March. But Mr Thornton adhered to his evidence that, whoever it was who asked about payment for time lost on the Saturday, it was not one of the organisers.
79 The cross-examination of Mr Thornton on the subject of this meeting concluded as follows:
And if I said to you that you said that the employees won't resume work until those issues were resolved, what do you say to that?---I would say that the employees, via their HSRs, had concerns about the safety management plan, and that was to do with the level 3 first aid and all the other safety issues what had been identified at that meeting, and that if they could resolve them, I'm - I'm sure we could - we could come to [an] amicable agreement that the employees would return to work.
So do I take it from that answer that you effectively said those things, that if there could be an amicable resolution of those issues - what - that would go a long way to getting the guys back to work or something like that?---Yes. If the - if the company had rectified those safety issues what were identified by the HSRs, yes, they would return to work.
80 Mr Sharp was at the meeting with the company representatives on 27 March 2014. He recalled that it was a fairly big meeting, attended by contractor representatives, by Mr Wilkinson and by the HSRs there. They "just basically discussed the issues", the main one of which was the need for there to be a permanent level 3 first-aider employed located in the first-aid room on the site. It was said that this was a construction site where it was mandatory to have a level 3 first-aider. Other matters discussed included where the first-aid bag was kept and who was looking after it. Mr Sharp could not recall anything that anyone in particular said during the course of the meeting. He said that they "exchanged pleasantries" and said that they were there to try and sort it out. The companies were receptive to that. While he did not recall "particularly" who did most of the talking, it was "mainly the organisers and the occasional HSR" who had input into the meeting. He said that they "were just trying to get it sorted and trying to convince the company that, this is what the blokes wanted to resolve it".
81 Mr Sharp did not remember it being said, either by himself or by one of the other organisers, that the employees who did not work a full day on the Saturday had to be paid for that full day. He did remember Mr Wilkinson leaving that meeting to speak to Mr Jones, and that he returned with the information that there would be no permanent level 3 in the first-aid room. He did not remember Mr Wilkinson saying that there would be no pay for 22 March. But he did remember that it was said, certainly by the HSRs, that the employees would not resume work until the issues were resolved.
82 Although neither he nor members of his work group had been involved in the meeting in the car park on 27 March 2014, Mr Robertson did attend the meeting with management at 1.45 pm that day. In chief, the only thing that he mentioned about the discussion at the meeting was that it was then that he found out that Mr Kyle was not a level 3 first-aider (albeit that, as he said in cross-examination, he could not then recall whether Mr Kyle himself had been at the meeting). Apropos the dispute generally, as I understand it, he said that he felt like the matter was "getting sort of above my level of experience" so he rang the organiser for the Electrical Trades Union ("the ETU") (the union representing electricians employed by BMC), Mr Mooney, that night after work.
83 The only thing that Mr Cuddy recalled of the meeting on 27 March 2014 was that he said, "We won't be going back to work today. Actually take it seriously and fix this problem". He could not recall Mr Wilkinson leaving the meeting to ask someone about what had been put to him by the organisers and HSRs. He could not recall Mr Wilkinson returning with the statement that AP's position was that they would not put a level 3 first-aider on the site. And he could not recall Mr Wilkinson saying that there would be no payment for the time lost on the Saturday. Indeed, Mr Cuddy could not recall anyone on the union side saying that they needed to be paid for the Saturday and they needed a level 3 first-aider on the site.
84 Mr Cockrane could not recll whether he attended the meeting on 27 March 2014; nor, for that matter, any meetings after the car park meeting at all.
85 From the evidence to which I have referred I find as a fact that, of the issues which were under discussion at the meeting between representatives of the employees and representatives of AP and the contracting companies on the afternoon of 27 March 2014, the main one was whether the first-aid room on the site should be permanently manned by a level 3 first-aid attendant who was not otherwise occupied working on the site. A secondary, albeit important, issue was whether the employees who had sat in the sheds on 22 March 2014 would be paid for the time that they had done so. In this regard it is established on the pleadings that, at the meeting on 27 March 2014, Messrs Dodd, Thornton and Sharp enquired as to whether the JBA employees and the mechanical trades employed by BMC would be paid for a full day's work on 22 March 2014. There really is no dispute but that these were the two headline issues at the meeting, and Mr Wilkinson's diary provides contemporaneous and objective, albeit compendious, support for that proposition.
86 Neither is there any real doubt but that the organisers were, on behalf of their respective members in the workforce, pushing at least for the resolution of the first issue in the affirmative. I do not think that this matter is to be resolved by attempting to assess the accuracy of the various witnesses' recollections of who was doing the most talking, leading the argument, or the like. All those present on the employee side were taking a common position, which reflected the collective views expressed at the meeting in the car park. Neither should I be deflected by characterisations of the conversation at the meeting as involving no more, on that side, than an attempt to "resolve the issues", or by attempts to package the first-aider request as no more than an internal component of a general concern with safety procedures and protocols on the site. I would find, consistently with Mr Wilkinson's notes, that that was a headline issue in its own right. From the HSRs' perspectives, the whole point of having the organisers present was to provide assistance in dealings with management. The collective experience of Messrs Dodd, Thornton and Sharp as union organisers amounted, on my reading of the evidence, to more than 23 years. The idea that they were no more than observers or advisers at the meeting could not be taken seriously. I find that they led the way in the employees' requirements that a non-working level 3 first-aider be employed on the site.
87 I would make the same finding with respect to the requirement that payment be made for the time lost on the Saturday. The background, of course, is the fact of the overtime ban on the three days preceding, and the reason for it, as to which I have made findings in para 40 above. Carefully in my estimation, the organisers were asked only in chief if they had expressed such a requirement, or heard any of their colleagues do so. These questions were all answered in the negative. Although I cannot make a finding as to who, specifically, said what and to whom, there was no suggestion on the part of the respondents of anything other than a uniform position being put at the meeting on behalf of all the unions and their members in the employ of JBA and BMC. Despite their denials, I am not satisfied that any of the organisers had more than a very high-level recollection of this meeting in a frame which was, quite obviously in my observation, coloured by the needs of the present litigation, and their positions as respondents in it. As against that, it is clear from Mr Wilkinson's notes that such a requirement was put forward in the meeting. That was also the substance of his oral evidence, which I accept. He was correct, in my respectful view, to regard the distinction between an inquiry whether the employees of BMC and JBA would be paid for time lost on the Saturday and a demand that they be so paid as one of semantics. I also find that the HSRs themselves were party to the requirement that payment be made for this lost time.
88 The meeting concluded at about 3.30 pm, after which the organisers informed the employees, still in the sheds, that the dispute had not been resolved.
89 On 28 March 2014, the employees of JBA and the mechanical trades employed by BMC attended at the site but did not perform any work that day. They sat in the sheds. From 7.00 am (the usual starting time), Messrs Dodd, Thornton and Sharp were present at the car park, mingling with the employees entering the site and thereafter conducting various discussions with employees through the site fences. The electricians employed by BMC attended for work normally, were unable to commence work until about 8.30 am due to inclement weather, and then worked normally until about 11.00 am.
90 At about 9.30 am on 28 March 2014, Messrs Dodd, Thornton and Sharp attended a meeting with representatives from AP, BMC, JBA, Phelan, the ETU and members of the site safety committee. In addition to the three organisers mentioned, those at the meeting included Messrs Robertson, Cuddy, Mooney, Wilkinson, Muller, Pease, and Kyle, and Dean Goodall (BMC Manager), Peter Clark (CFMEU Health and Safety Officer), Jan Russell (AMWU Delegate employed by JBA), Zed Jones (AMWU Delegate employed by BMC) and Steve Walsh (BMC Manager).
91 Notwithstanding refreshing his recollection from his diary (which prompted him to say only "it's the same subject matter that had been spoken about that whole week"), in chief Mr Wilkinson did not give any useful evidence about the course of this meeting (at least so far as the position of the respondents and the employees they represented is concerned). Under cross-examination, and with reference to the meetings generally which were held that week, he said that the level 3-trained first-aider and the pay issues were items that "came up fairly regularly."
92 Mr Pease recalled that the subject matter of that meeting was the level 3 first-aider, and the inadequacies of the response time of the AP safety team. At the end of the meeting, he said that the issues were "unresolved". I note that Mr Pease may not have been speaking of the meeting that commenced at about 9.30 am, since he said that it "might have been 2.30" when the meeting finished. Under cross-examination, Mr Pease accepted the propositions of counsel for the respondents that, throughout all of the meetings that week (and, for that matter, on the following Monday) the three organisers were "genuinely trying to bring about a situation where the blokes would return to work", and were telling him things like, "they're just not going to go back to work unless there's a level 3 first-aider here".
93 Mr Muller said that, at the meeting, there was discussion of the same issues as had been discussed previously, namely, "the guys not working or ceasing work because of the safety issue with the level 3 first-aider". Mr Wilkinson's response to that request was that "it wasn't going to happen." His position was that AP's existing first-aid facility, at the mill gate, was in compliance with the regulations. The employees' response to this indication was to refuse to return to work.
94 Mr Kyle was present at the meeting on 28 March 2014. He said that there were a lot of questions about first aid on the site, and the requirements that were needed there. The concern raised by the union side was that AP did not have a level 3 first-aider on the site, relying in this regard on the relevant construction industry code of practice. The problem with the facility at the mill gate was that it was too far away for a response if there were an incident. Mr Wilkinson's position was that the existing facility was adequate.
95 Mr Robertson's evidence about the course of the meeting on 28 March 2014 was that those present "talked about all the different issues". Under cross-examination, he said that he did not "specifically" recall Mr Mooney asking whether AP would put a permanent level 3 first-aider in the first-aid room, but that was one of the things "that we asked Australian Paper for". Likewise, he did not recall Mr Mooney asking "specifically" for the workers to be paid for the time lost on the Saturday, "but that was our position - that we thought we were entitled, as - as it was out of our control". Again, he did not "specifically" recall Mr Wilkinson going away to speak to his boss, but he did recall him returning with the information that AP would not be providing a permanent level 3 first-aider in the first-aid room. Mr Robertson did not recall Mr Wilkinson "specifically" saying that the workers would not be paid for the Saturday, but, he said in his evidence, "I do believe that was what was said."
96 While Mr Dodd thought that he returned to the site on 28 March 2014 and met with the companies, he could not recall what was said at that meeting.
97 Mr Thornton said that, after the meeting on 27 March 2014, he had contacted Peter Clarke, the CFMEU's occupational health and safety specialist, and arrived at the site the following day with him. Asked in chief whether, at the meeting which followed, he personally requested anything of Australian Paper, his answer was, "Only in regards to advice from Peter Clarke that they had to have a construction safety plan which dealt with first response, emergency evacuation and all those other safety issues like what Peter had identified." He did not recall whether he, Mr Dodd or Mr Sharp made any inquiries, or said anything, about payment for the previous Saturday. At the end of the meeting, he and the other organisers put a proposal to Mr Wilkinson and the representatives of the various contractors on site that AP should hire or train a level 3 first-aider, and should develop a rescue plan and a protocol for emergency evacuations. After the meeting, Mr Thornton and Mr Clarke returned to the employees, who were still in the sheds, and told them that it had been a constructive meeting, but without resolution. He told them that he (or Mr Clarke) had contacted WorkSafe, who were on their way to the site. He did not say "anything to the workers about not working". By about 4 pm, the representative from Worksafe had not yet arrived, so he and Mr Clarke left the site.
98 Under cross-examination, Mr Thornton's response to the suggestion that, in the meeting on 28 March, Mr Wilkinson offered to provide all of the various emergency response issues that had been requested, except the level 3 first-aider in the first aid room was to say that Mr Wilkinson "still needed to be ticked off via the client, which was Australian Paper, for the level 3 first-aid." As to the other issues, such as the first response and the emergency evacuation, Mr Thornton said, "we did make some inroads, but nothing had been put to paper, because it still needed to be ticked off by the client." At one point Mr Wilkinson did leave the meeting to speak to Mr Jones, and reported back what he had been told.
99 Mr Sharp referred, in his evidence, to a number of safety issues that were productively discussed at the meeting on 28 March 2014, but "the sticking point was the level 3 first-aider". Under cross-examination, he said that it was "possible" that Mr Wilkinson had offered to resolve all of the emergency response and related issues, but not that of the level 3 first-aider issue.
100 Mr Cuddy said that, on the morning of 28 March 2014, he told everyone to sit in the sheds until they had "seen them again and tried to get it rectified". The "them" to whom he referred were the representatives of the employing companies on the site. Of the meeting itself, Mr Cuddy said: "It all just went around the table. Everyone said their point of view and what we were trying to achieve. But it was just going nowhere." But he did recall Mr Wilkinson saying that "they wouldn't put a first-aider on". He reiterated that, on that day as well as on 27 and 31 March, he had directed the workers in his designated work group to sit in the sheds.
101 The applicant alleges that, at the meeting on 28 March 2014, Messrs Dodd, Thornton and Sharp repeated the request which they had made the previous day that a full-time level 3 first-aider be engaged on the site. I am not satisfied that they did so expressly, for the reasons that they did not need to do so. The company representatives knew what was being asked of them. The evidence to which I have referred above was, understandably, general and at, times, vague about the details of this meeting, but I could not, favourably for the applicant, go further than to find that this was a garden variety industrial negotiation in its advanced stages. The participants were discussing the claims that had been made and which remained on the table, rather than re-making those claims.
102 At about 11.00 am on 28 March 2014, after the conclusion of the meeting with the company representatives, Messrs Dodd, Thornton, Sharp and Mooney reported back to the employees who were then sitting in the site sheds and, from then until the end of the normal rostered shift that day (at 3.30 pm), all of the employees of BMC and of JBA, including the electricians employed by BMC, remained in the sheds and refused to perform, and did not perform, any work.
103 Also at about 11.00 am on 28 March 2014, the Commission made three interim orders under s 420(2) of the FW Act. One was referrable to BMC and its employees at the site, one was referrable to JBA and its employees at the site, while the third was referrable to AP and to the employees of BMC and of JBA at the site. It is established on the pleadings that the orders bound and applied to each of the unions, their officials, delegates, employees and agents, and the employees of BMC and of JBA at the site; that the orders required the unions, and their officials, delegates, employees and agents, to stop organising, and to refrain from further organising and/or from recommencing the organisation of, any ban, limitation or restriction on the performance of work by any of the relevant employees and of any failure or refusal by any of those employees who attended for work to perform any work at all; and that the orders required the employees immediately to stop, and not further to engage in or to recommence, any ban, limitation or restriction on the performance of their work, and any failure or refusal to perform any work at all where they had attended for work.
104 On the afternoon of 28 March 2014, Mr Wilkinson informed Messrs Thornton and Clarke of the making of the orders by the Commission. Mr Clarke said that the orders did not apply because it was a safety issue, not an industrial issue. It is also uncontroversial that, by the end of that day, the other respondents knew of the terms of the Commission's orders.
105 There is a live question whether these orders ever came into effect, and I shall return to it in due course below.
106 On the initiative of AP, it seems, the employees were not required to attend for work at the site on Saturday 29 March 2014.
107 From about 7.00 am on 31 March 2014, Messrs Dodd, Thornton and Sharp were present at the car park, mingling with the employees entering the site and thereafter conducting various discussions with employees through the site fences. Shortly after 7.00 am, at the prestart meeting, the employees of BMC and of JBA were informed of the applicable orders made by the Commission on 28 March 2014 and that the orders required them to return to work. They provided the collective response that the issues at the site related to safety rather than to industrial matters, and, therefore, that the orders did not apply. They refused to commence work and sat in the site sheds.
108 At about 9.30 am on 31 March 2014, Messrs Dodd, Thornton and Sharp attended a meeting with representatives from AP, BMC, JBA, Phelan, the ETU and members of the site safety committee. In addition to the three organisers mentioned, those at the meeting included Messrs Robertson, Wilkinson, Muller, Pease and Mooney, and Danny Walsh, an ETU employee representative. At the meeting, the parties resolved the disputes that existed between them.
109 The resolution was recorded in a document which listed seven points, as follows:
1. Review First Response - First Aid
a) First Aid room to be next to the gatehouse (existing will remain in place until new one is connected)
b) Gate person to be trained level 3
c) Interim - other Level 3 (person) in place until gate person is trained
d) Level 3 person to ensure (in conjunction with AP nurse & Geoff Kyle) first aid room is properly equipped.
2. (Appropriate) Boom Craine & Basket for level 1 works to proceed as an interim measure until double access scaffold is built
a) Trial rescue using double access stairs
3. SMP Review by outside (external) consultant in conjunction with the site safety committee
a) Review (existing) SMP
b) (Focus) Rescue and Evacuation plans
c) Plan to communicate to work force ·
4. Emergency Evacuation (DIP Only) this week - ASAP
a) Issues arising to be addressed by the site safety committee ASAP
5. Site Inspection (by area) prior to return to work - HSR's and management rep's
6. Organisation chart of responsibilities for OH&S
7. Improved first aiders ID chart - note Level 2 or Level 3
110 Describing the effect of the first of these points, Mr Wilkinson said:
[W]e had a construction entrance to the site which was permanently manned by a non-working guy, and he was a level 2 first aider. So the discussion and agreement was that we would get him trained up to level 3 and move the first-aid hut that we had to that construction gate so they could fulfil both roles.
The construction entrance to the site was what I have described as the site gate. The document was signed by Messrs Wilkinson, Mooney, Dodd and Thornton, but not by Mr Sharp. Neither was it signed by the HSRs, but Mr Thornton said in his evidence, without challenge under cross-examination, that the agreement embodied in the document had the endorsement of them.
111 The applicant alleges that, at the meeting on 31 March 2014, Messrs Dodd, Thornton and Sharp repeated the request which they had made on 27 March that a full-time level 3 first-aider be engaged on the site. However, the most favourable finding I could make for the applicant in this part of the case would be in the same terms as that made in para 101 above. Indeed, the impression I got from the evidence as a whole was that, from the outset at this meeting, settlement was strongly in the air. I consider it most unlikely that the organisers would have re-made their original claims in relation to the first-aider.
112 After a site safety walk, at about 1.30 pm, the employees of BMC and of JBA recommenced normal work.
113 There is no evidence as to whether the lost time claim was resolved, and if so, how.