Fair Work Act 2009

s.739 - Application to deal with a dispute

SSX Services Pty Limited Trading AS InfraBuild Steel Laverton Steel Mill

Application to deal with a dispute under an enterprise agreement - complaints about unlawful discrimination, harassment and bullying.

• [1] On 13 August 2024 the Australian Workers Union applied for the Fair Work Commission to deal with a dispute under s 739 of the Fair Work Act 2009 (Cth) and in accordance with clause 20 of the Infrabuild Steel Laverton Steel Mill Enterprise Agreement 2021 - 2025.

• [2] The respondent/employer is SSX Services Pty Limited trading as Infrabuild Steel Laverton Steel Mill.

• [3] The dispute is about whether Infrabuild complied with its obligations to investigate and deal with complaints made by AWU member, Mr Garry Bone, OHS Coordinator about the conduct of Ms Lorena Cervantes, Health, Safety and Environmental Manager. The complaints were that Ms Cervantes had bullied Mr Bone by micromanaging him, threatened and intimidated him, made vexatious complaints and false accusations about him, and that she had treated Mr Bone less favourably because of a disability.

• [4] The agreement is the Infrabuild Steel Laverton Steel Mill Enterprise Agreement 2021 - 2025. It was approved on 4 October 2021 and began to operate on 11 October 2021. A variation to the Agreement was approved on 19 October 2022 and operated from 19 October 2022. In accordance with clause 4 of the Agreement, the Agreement's nominal expiry date is 3 October 2025.

• [5] The clauses of the Agreement that are relevant to this dispute are:

a) Clause 20 - Dispute Settling / Resolution Procedure; and > > b) Clause 18 - Discrimination Bullying & Harassment.

• [6] I do not include the wording of Clause 20 as there is no dispute between the parties about its interpretation.

a) The parties are committed to maintaining a workplace free of unlawful discrimination, harassment and bullying. To this end the parties agree:

(i) All employment decisions affecting employees covered by this Agreement will be fair, reasonable, and based on merit;

(ii) No individual or group will be treated less favourably than another for reasons not immediately relevant to the circumstances;

(iii) Employees, visitors and others in our workplace be treated with respect in an environment free of unlawful discrimination, harassment, bullying and offensive behaviour (conduct in the workplace ought to reflect reasonable community expectations, observing the spirit and intent as well as the letter of the law);

(iv) The display, storage or transmission of material likely to cause offence will not be permitted on company premises or equipment;

(v) Employees must understand their rights and responsibilities with respect to discrimination, harassment and bullying;

(vi) Complaints of unlawful discrimination, harassment and/or bullying are taken seriously and will be appropriately and promptly investigated;

(viii) Individuals will not be prevented from working safely and effectively on the basis of their level of English literacy.

b) Grounds for discrimination and harassment are broad and include gender, marital status, sexual preference, nationality or ethnicity, race or skin colour, physical or mental disability, age, religious belief, political belief, trade union activity, carer's responsibilities or domestic circumstances, physical appearance, medical condition and criminal record.

1. The parties acknowledge the responsibility of managers and leaders to ensure that all workplace decisions and activities are free of unlawful discrimination, harassment and bullying and to appropriately investigate all complaints or suspected instances of unlawful discrimination, harassment or bullying.

d) The parties agree that if, after investigation, allegations of harassment are substantiated the company will implement appropriate disciplinary action against those responsible, up to and including dismissal.

• [8] Section 595 of the Act provides for the Commission's power to deal with disputes only if it is expressly authorised to do so or in accordance with another provision of the Act. Section 739 provides for the Commission's power to deal with a dispute where an enterprise agreement includes a term that provides a procedure for dealing with disputes under section 738(b).

• [9] The Agreement contains a dispute resolution and settlement procedure in Clause 20. Clause 20(d) of the Agreement gives the Commission power to arbitrate the dispute.

• [10] It is not in dispute between the parties, and I am satisfied, based on the evidence provided by Mr Bone and Ms Hersey, that the Union has followed the procedure in Clause 20 of the Agreement and is able to seek the assistance of the Commission to conciliate and arbitrate the dispute.

• [11] I conducted conferences in this matter on 4 and 19 September 2024 but was unable to assist the parties to resolve the dispute. The Union then asked that the matter be arbitrated.

• [12] The parties filed materials, including submissions, witness statements, relevant documents and case authorities, in compliance with my directions.

• [13] I held a hearing on Tuesday 19 November 2024.

• [14] The following witnesses gave evidence on behalf of the Union:

• Mr Garry Bone, OHS Coordinator and the member affected in this dispute; and
• Mr Prabanjamurth (Percy) Pillai, Safety and Training Director employed by AWU.

• [15] The following witnesses were not required for cross-examination, so I also accepted into evidence on behalf of the Union the written witness statements of:

• Mr Jaydon Brandon, Melt Shop Operator employed by Infrabuild; and
• Mr Steven Beckley, WQA Operator employed by Infrabuild.

• [16] Ms Kayne Hersey, National Human Resources Manager for Infrabuild gave evidence on behalf of Infrabuild.

• [17] In general terms, each of the witnesses who gave oral evidence (Mr Bone, Mr Pillai and Ms Hersey) were believable and appeared to be doing their best to give honest and direct evidence. The time period covered by this matter is extensive, and I accept that recollection of repetitive events (such as regular safety site walks) may become blurred or confused.

• [18] Infrabuild objected to some or all of the evidence of Mr Brandon, Mr Beckley and Mr Pillai on the grounds that it is either irrelevant or inadmissible hearsay evidence.

• [19] I agree that much of the evidence of Mr Brandon and Mr Beckely related to the safety issues that underlie the interactions between Ms Cervantes and Mr Bone, and did not deal with any complaints or whether they were involved in any investigations. Neither were required for cross-examination and therefore did not give oral evidence.

• [20] Infrabuild relies only on Ms Hersey's witness evidence. Ms Hersey was not directly involved in many of the matters. While Ms Hersey makes an overall statement that her evidence arises from access to and review of relevant records, much of her evidence is also hearsay.

• [21] I am not bound by strict rules of evidence and so I have accepted the material, including the hearsay evidence provided by both the Union and Infrabuild. I give the material weight accordingly, and rely on the evidence that is corroborated by contemporaneous documents, such as emails.

• [22] The parties agreed the following questions for arbitration:

1. In relation to complaints made by Garry Bone and The Australian Workers' Union about the conduct of Lorena Cervantes, has the Company met its obligations under clause 18 of the InfraBuild Steel Laverton Steel Mill Enterprise Agreement 2021 - 2025 (Enterprise Agreement)?

1. If the answer to question 1 is no, what further steps are necessary in order for the Company to meet its obligations under clause 18 of the Enterprise Agreement?

• [23] At the commencement of the hearing, Infrabuild asked for the matter to be dismissed on the grounds that there was no utility to the application due to Mr Bone having resigned from his employment with Infrabuild prior to the hearing. I declined to dismiss the matter on three grounds.

• [24] First, that once the Commission has jurisdiction to deal with a dispute under s 739 in accordance with a dispute settlement procedure in an enterprise agreement, that jurisdiction continues until it is determined,[1] irrespective of whether the employee's employment ends,[2] or the enterprise agreement ceases to operate because it is replaced or terminated.[3]

• [25] Second, that I did not have sufficient material before me to reach a conclusion about the utility of making a determination and on that basis was not inclined to dismiss the application, as this is a step that would entirely deprive the applicant of pressing its arguments and seeking an outcome.

• [26] Third and last, despite the dispute relating to a particular member of the union whose employment has now ended (Mr Bone), the dispute appeared to be about how and whether the employer handled complaints in accordance with the Agreement, which was broadly expressed in the application Form F10. The issue of Infrabuild's handling of complaints in accordance with the Agreement does continue to have ongoing utility for other employees.

• [27] Mr Bone started his employment with Infrabuild on 11 June 1996. He was initially employed as Rod Mill Operator. His most recent position was Site OHS Co-ordinator. Mr Bone has also been an employee health and safety representative and a Union delegate.

• [28] Mr Bone was elected to the role of OHS Co-ordinator in March 2022. The role is dealt with in the Agreement at clause 17(b). Relevantly, clause 17(b)(vi) of the Agreement says:

The OHS Co-ordinator reports to the Safety Manager and is accountable to the workforce and the Company.

• [29] Ms Lorena Cervantes is Safety Manager for Infrabuild and therefore Mr Bone's position as OHS Co-ordinator reports to Ms Cervantes. She has held this position since 1 November 2021.

• [30] On 7 September 2022, Mr Bone sent a letter to Hercules Van der Merwe, Head of Victorian Rod and Bar Manufacturing for Infrabuild. The letter described events between him and Ms Cervantes in the preceding 2 days that led to Mr Bone feeling anxious, threatened and intimidated by Ms Cervantes. The letter notes his distress. Mr Bone wrote the letter on 6 September after a conversation with Mr Daniel Renehan, HR partner for Infrabuild, about how he felt "intimidated, bullied, and victimised by [Ms Cervantes], and [that] InfraBuild needed to investigate it."

• [31] On 8 September 2022, Mr Bone met with Mr Van der Merwe. Mr Bone's evidence is that Mr Van der Merwe reassured him, saying, "Leave it with me. Trust me, you can trust me I will fix this. Trust me Garry. You've got to trust me, Garry."

• [32] On 12 September 2022, Mr Van der Merwe and Mr Renehan received an email from Ms Cervantes detailing her own concerns with respect to the same interactions with Mr Bone on 6 and 7 September 2022.

• [33] On 29 September 2022, Infrabuild instructed Ai Group to commence an investigation. According to the Investigation Summary dated 1 December 2022, the investigation related to "competing complaints of inappropriate workplace behaviour between Lorena Cervantes and Garry Bone."

• [34] Mr Bone's evidence is that, on 14 September 2022, Mr Renehan informed Mr Bone of the investigation. Ai Group sent a letter to Mr Bone on 11 November 2022 that informed him of the investigation into allegations against him.

• [35] On 22 November 2022, Mr Bone attended an investigation meeting with Ai Group. He had prepared a written response and relied on this to answer questions.

• [36] On 1 December 2022, Ai Group provided its Investigation Summary to Infrabuild. The investigation substantiated 2 out of 6 allegations against Mr Bone. The one allegation against Ms Cervantes was not substantiated.

• [37] Of those 2 substantiated allegations, the investigator found that Mr Bone did not breach Infrabuild's Managing Diversity, Harassment & Bullying in the Workplace policy, nor the Agreement nor the OHS Act.

• [38] The investigator said that he did not consider that there were reasonable grounds to initiate disciplinary action against Mr Bone nor Ms Cervantes.

• [39] The 1 December 2022 Investigation Summary made 8 recommendations:

1. that Infrabuild require both Mr Bone and Ms Cervantes participate in facilitated discussion/mediation to effectively reset their working relationship;

1. that both Mr Bone and Ms Cervantes may agree to privately apologise to each other about their respective roles in the interpersonal conflict on 6 and 7 September 2022;

1. that Infrabuild keep the arrangement of Mr Bone reporting to Damian Vincent;

1. that Infrabuild consider a revised training and induction program for Mr Bone;

1. that Infrabuild give clear guidance to Mr Bone about his role and day to day tasks;

1. that Infrabuild consider training Mr Bone on written and verbal communication;

1. that Infrabuild consider training Ms Cervantes on leadership and management; and

1. if Mr Bone or Ms Cervantes have concerns about the investigation process and outcome, that Infrabuild should focus on next steps and provide only a high-level summary of the investigation outcome rather than the report itself.

• [40] The only document provided to me that evidenced the investigation of December 2022 was a document titled 'Investigation Summary.' It is not clear to me whether this is the full investigation report. Mr Bone's evidence is that he did not receive the Investigation Summary until these proceedings nor did he receive any other reports related to the investigation.

• [41] Mr Bone asked Mr Renehan about the outcome of the investigation in mid-December 2022. Mr Renehan informed Mr Bone that mediation between him and Ms Cervantes was an option. Mr Bone said that he would agree to the mediation provided it was not someone from Infrabuild.

• [42] Before the Christmas break, Mr Bone asked Mr Renehan what was happening with mediation. Mr Bone says that Mr Renehan told him mediation would take place when they got an answer from Ms Cervantes.

• [43] In January 2023, Mr Bone again asked Mr Renehan about mediation. Mr Bone says that Mr Renehan told him that Ms Cervantes had refused mediation.

• [44] On 3 April 2023, Mr Bone sent an email to a large number of staff, including Mr Van der Merwe, about site safety walks and his concern that a health and safety representative, or himself as the OHS Site Co-ordinator, had recently not been invited to attend them.

• [45] In July 2023, Mr Bone had a further interaction with Ms Cervantes that left him feeling intimidated, threatened and anxious. He made a record of the interaction immediately after it happened. He also spoke with Mr Pillai about the incident, and Mr Pillai made a complaint to WorkSafe on Mr Bone's behalf.

• [46] Mr Pillai's evidence about this is unclear. His written statement appears to conflate the incidents in 2022 with the later complaint to WorkSafe. I do not have any written evidence of the initiating complaint to WorkSafe**.** Mr Pillai provided evidence of requests to WorkSafe made in November 2023 and January 2024 but neither appear to be a complaint that Ms Cervantes discriminated against Mr Bone.

• [47] Ms Hersey's evidence is that on or around 10 July 2023 Mr Renehan received a phone call from a WorkSafe inspector about this complaint and that WorkSafe would commence an investigation.

• [48] Based on the evidence of Mr Bone and Ms Hersey, WorkSafe investigated the complaint from July 2023 until November 2023. Mr Bone says that he spoke with the WorkSafe investigator in September or October 2023. Ms Hersey says that Ms Cervantes was either absent from work or working from home from 22 August to 27 October 2023 due to work-related stress and anxiety supported by medical certificates. Ms Hersey says that WorkSafe interviewed Ms Cervantes on 20 November 2023.

• [49] On 12 December 2023 WorkSafe wrote to Infrabuild to inform Infrabuild that it had completed its investigation. WorkSafe concluded that, based on the information it obtained, discrimination as defined in s 76 of the OHS Act could not be substantiated. It informed Infrabuild that it would take no further action. It also informed Infrabuild that it had written to the person who made the allegation to inform them of the outcome.

• [50] On 27 February 2024 and 5 March 2024, Infrabuild received further complaints from Ms Cervantes against Mr Bone. Ms Hersey's evidence is that these complaints were in emails sent to Mr Van der Merwe and Mr Renehan. Infrabuild did not include those emails into evidence. Ms Hersey's evidence is that she and Mr Stuart Gordon, Head of Employee Relations, sought advice from Ai Group about whether the complaints raised further allegations that required investigation and then engaged Ai Group to investigate.

• [51] Around late March 2024, Ms Hersey informed Ms Cervantes and Mr Bone separately that Infrabuild had engaged Ai Group to investigate Ms Cervantes' further complaints against Mr Bone about alleged inappropriate behaviour. Infrabuild provided a letter dated 21 March 2024 to Mr Bone and Ms Cervantes in separate meetings.

• [52] Mr Bone's evidence is that he met with Ms Hersey on 25 March 2024 and received the letter informing him of the complaint and investigation. During that meeting, Mr Bone said to Ms Hersey, "You're joking. I can't work under these conditions anymore, I'm going home." He then took personal leave and has not returned to work since 25 March 2024. Mr Bone has been "unable to work since 25 March 2024" due to anxiety and stress.

• [53] On 28 March 2024, Infrabuild wrote to Mr Bone and informed him of the allegations against him. Those allegations included:

a) Mr Bone unnecessarily criticising and raising his voice at Ms Cervantes on occasions in June 2023 and February 2024;

b) Mr Bone sent emails to Ms Cervantes to raise concerns that unnecessarily copied in other colleagues when the concern had not been first raised with Ms Cervantes on occasions in April, August and October 2023;

1. Mr Bone attended meetings and unnecessarily raised concerns about Ms Cervantes to an external party (WorkSafe) when these concerns had not first been raised with Ms Cervantes on occasions in early 2022, July 2022, December 2022 and February 2024; and

d) Mr Bone refused to complete work directed by Ms Cervantes on occasions in July 2022 and February 2023.

• [54] On 15 April 2024, Ms Hersey sent an email to Mr Bone asking him to respond to the allegations using a prepared question and answer document. Mr Bone met with Mr Dave Swan, AWU Organiser, so that Mr Swan could assist him to respond. Mr Bone says that Mr Swan asked him the questions from Ms Hersey's document and Mr Swan typed in the answer that Mr Bone provided. Mr Swan then emailed the completed document to Ms Hersey on 1 May 2024.

• [55] In the response, Mr Bone responded to the allegations and made the following complaints about Ms Cervantes within that response:

a) Ms Cervantes did not involve Mr Bone in consultation or decision-making on-site safety issues; and

b) Ms Cervantes did not respect or take Mr Bone's role and views on how to ensure safety at the site seriously.

• [56] Mr Pillai provided a letter to the investigators dated 2 May 2024 about Mr Bone's behaviour towards Ms Cervantes during meetings with WorkSafe. Contextually, these meetings occurred in December 2022 (relating to Consultation and Issues Resolution) and February 2024 (relating to WorkSafe investigation meeting into safety issues with crane operation). Mr Pillai's letter stated that Mr Bone did not raise his voice at Ms Cervantes during either meeting, did not charge at Ms Cervantes during the meeting in December 2022, nor act in an "inimical" manner during the meeting in February 2024. In relation to the meeting in February 2024, Mr Pillai expressed his view that Ms Cervantes' intended to exclude Mr Bone and that her request that Mr Bone copy her into an email requested by WorkSafe was unnecessary and demonstrated her lack of faith in Mr Bone.

• [57] On 20 May 2024, Ms Hersey provided the Investigation Summary from Ai Group to Mr Swan and Mr Bone. The Summary appears to be dated 19 March 2024 but the context of emails and the text of the report itself makes clear that March is a typographical error. I refer to the report as the Investigation Summary dated 19 March 2024 despite that typographical error. The Investigation Summary dated 19 March 2024 found that while the factual circumstances underpinning the allegations occurred, the allegations themselves were not substantiated as unreasonable behaviour or behaviour in contravention of Infrabuild's Diversity and Harassment Policy or Code of Conduct.

• [58] The Investigation Summary dated 19 March 2024 made 6 recommendations:

(2) Parties should be notified of the outcome promptly and Infrabuild give consideration to their working relationship and whether it "remains tenable from a health and safety perspective;"

(3) That reporting lines remain separated and need for interaction be minimised;

(4) That Mr Bone and Ms Cervantes attend mediation or a facilitated conversation;

(5) That the company consider whether any brief or low-level coaching or training in relation to communication style and procedures for appropriately raising concerns for Mr Bone may be worthwhile; and

(6) If mediation is refused, that Infrabuild considers whether their working relationship or continued employment remains tenable.

• [59] On 21 May 2024, Ms Hersey emailed Mr Bone and AWU (Mr Swan and Mr Patrick Reilly, Industrial Officer) a copy of the Investigation Summary dated 19 March 2024.

• [60] On 22 May 2024, Ms Hersey and Mr Van der Merwe met with Ms Cervantes to inform her of the outcome of the investigation.

• [61] On 7 June 2024, Ms Hersey says that Ms Cervantes sent an email to her and Mr Van der Merwe that outlined "concerns and unhappiness with respect to the outcome" of the investigation documented in the Investigation Summary dated 19 March 2024. Ms Hersey's evidence is that in that email, Ms Cervantes also:

a) objected to Mr Bone being permitted to respond in writing;

b) requested a copy of Mr Bone's written responses; and

1. maintained her view that there was a history of bullying and harassment.

• [62] Ms Hersey gave evidence that Ms Cervantes in her email said that "given there were no findings of inappropriate conduct on her behalf, [Ms Cervantes] saw no reason to attend a mediation which would require her to spend more time with someone who had a detrimental impact on her well being."

• [63] Ms Hersey says that Ai Group responded to Ms Cervantes' email reiterating the investigation outcome and explaining the reason for recommending mediation or a facilitated discussion, being that it was not intended to be punitive but to look to the future about how Ms Cervantes and Mr Bone could continue to work together.

• [64] Infrabuild did not put a copy of Ms Cervantes' email to Ms Hersey and Mr Van der Merwe into evidence, nor Ai Group's response to Ms Cervantes.
• [65] Ms Hersey says that Ms Cervantes did not raise any new matters requiring investigations and so it was determined that no further action was required beyond Ai Group's response.

• [66] Ms Hersey gave evidence of meetings with the Union on 31 July, 7 August and 12 August 2024. Present at the meetings were herself and Mr Van der Merwe and Mr Reilly, AWU Industrial Officer, Mr Swan and Mr Andrew Axford on behalf of the Union.

• [67] At these meetings, the Union raised that Infrabuild failed to discharge its obligations under Clause 18 of the Agreement and that the complaints made by Ms Cervantes against Mr Bone were vexatious, victimisation and bullying, harassment and discrimination of Mr Bone and that Ms Cervantes was being unreasonable in refusing to participate in mediation with Mr Bone. The Union raised that Infrabuild had not investigated whether Ms Cervantes' complaints were frivolous and vexatious, and asked that an investigation be conducted by an investigator agreed by both parties.

• [68] Ms Hersey's evidence is that Infrabuild's responses during these meetings was that it considered the investigations that had taken place were independent investigations and it would not support a further investigation.

• [69] Mr Bone's employment with Infrabuild ended when he resigned.

• [70] I propose to answer the first question by answering the following subsidiary questions:

a) What are the Company's obligations under clause 18 in relation to those complaints?

1. What did the Company do in relation to those complaints?

d) Did the Company meet its obligations under clause 18?

What are the Company's obligations under clause 18 in relation to complaints?

• [71] Clause 18 provides that "the parties are committed to maintaining a workplace free of unlawful discrimination, harassment and bullying." The parties are defined in clause 5 to mean the parties covered by the Agreement, and the coverage clause provides that the Agreement covers and applies to:

b) Employees of the Company employed in the classification in Schedule A - Wage Schedule; and

1. The AWU, if it is noted as being covered in the decision that approved the Agreement. The AWU is noted on the approval decision.

• [72] In relation to complaints, the Company's obligations under clause 18 are:

a) That complaints are taken seriously: clause 18(a)(vi);

b) That complaints are appropriately and promptly investigated: clause 18(a)(vi);

1. That legislative standards will be met: clause 18(a)(vii);

d) That managers and leaders appropriately investigate complaints or suspected incidents: clause 18(c); and

e) That Infrabuild will implement appropriate disciplinary action, up to and including dismissal, if allegations of harassment are substantiated after an investigation: clause 18(d).

• [73] I do not read any of the other sub-clauses as containing obligations that Infrabuild must comply with in relation to complaints of the kind referred to in 18(d)(vi). Clause 18 includes important expressions and definitions. There are statements of intent (clauses 18(a)(i), (ii), (ii)) and a clause relating to definitions (clause 18(b)). There are 2 sub-clauses that express prohibitions: Clauses 18(a)(iv) prohibits offensive material on company premises or equipment; and (viii) says that an individual will not be prevented from working safely and effectively on the basis of their level of English literacy.

• [74] There are 2 sub-clauses that may create obligations for employees:

a) Sub-clause 18(a)(v) requires that employees understand their rights and responsibilities with respect to discrimination, bullying and harassment, which could oblige Infrabuild to facilitate that understanding by way of training.

b) Sub-clause 18(c) further acknowledges two responsibilities of managers and leaders:

1. to ensure workplace decisions and activities are free from unlawful discrimination , harassment and bullying and

1. to appropriately investigate all complaints and suspected instances of unlawful discrimination, harassment and bullying.

• [75] AWU says that Mr Bone and it made complaints about Ms Cervantes' behaviour from September 2022 to July 2024. However, the evidence appears to demonstrate only one complaint by Mr Bone and one by AWU to which Clause 18(a)(vi) of the Agreement applied.

• [76] On the basis of Mr Bone's and Ms Hersey's evidence, Mr Bone made only one formal complaint. This was the letter to Mr Van der Merwe in September 2022. Mr Bone's complaints related to bullying and harassment of him by Ms Cervantes and so is clearly a complaint to which Clause 18(a)(vi) of the Agreement applied.

• [77] Mr Bone gave evidence, including documentary of evidence of many emails when he raised health and safety concerns as part of his role. For example, on 3 April 2023 he raised a concern about not being involved in site walks. He also asked for dust reports on 31 August 2023 and 30 October 2023. There was nothing in these emails that indicated he had a concern about Ms Cervantes' treatment of him.

• [78] Mr Bone made some complaints in his response to allegations as part of the investigation that concluded with the Investigation Summary dated 19 March 2024. Importantly, the complaints are not about discrimination, harassment or bullying of him by Ms Cervantes.

• [79] There is no other evidence that Mr Bone raised informal complaints about Ms Cervantes' treatment of him.

• [80] Mr Bone, Mr Pillai and Ms Hersey gave evidence that a complaint was made to WorkSafe about Ms Cervantes discriminating against Mr Bone. I do not have evidence of what the actual complaint was, except that in WorkSafe's outcome letter it refers to "an allegation that [Infrabuild] has discriminated against an employee in breach of s.76 of the Occupational Health and Safety Act 2004."

• [81] Insofar as the complaint was one of unlawful discrimination, it is a complaint to which Clause 18 applies.

• [82] However, WorkSafe is not a party to the Agreement.

• [83] I do not have evidence that Infrabuild was provided with the complaint that was made to WorkSafe. Both Mr Bone and Ms Hersey give evidence about the investigation. Ms Hersey's indirect evidence is that Mr Renehan was telephoned and informed that WorkSafe was investigating a complaint that was made to it. Ms Hersey gives evidence that various people were interviewed by WorkSafe but does not give evidence that she herself was interviewed. Both Mr Bone and Ms Hersey provided me with WorkSafe's outcome letter dated 12 December 2023, which says that:

"based on the information obtained, they could not substantiate that discrimination as defined in s. 76 of the OHS Act, has occurred."

• [84] The AWU submits that it raised a complaint with Infrabuild after the conclusion of the investigation that resulted in the Investigation Summary dated 19 March 2024. It did not provide evidence of that complaint, which appears to form the basis of this dispute.

• [85] There is an exchange of correspondence between Mr Swan, AWU Organiser and Ms Hersey in late March 2024. This exchange is about the commencement of the investigation against Mr Bone. While Mr Swan raises issues about the commencement of the investigation being in breach of the Agreement, there is no allegation made in the exchange of emails about Ms Cervantes discriminating against, harassing or bullying Mr Bone. So, I am of the view that there is nothing in this exchange of correspondence that could be a complaint to which Clause 18(a)(vi) of the Agreement applied.

• [86] Ms Hersey gave evidence that AWU made complaints when it initially raised this dispute in July 2024. Those complaints were about Ms Cervantes' treatment of Mr Bone, Infrabuild's handling of Mr Bone's complaint and lack of action following the December 2022 Investigation Summary and the Investigation Summary dated 19 March 2024. The evidence of those complaints is only in Ms Hersey's file note of meetings on 31 July 2024 and 7 August 2024, and in an email to Ai Group in September 2024. Ms Hersey says that the file note is a summary of her contemporaneous handwritten notes. The AWU complaint in July 2024 related to Ms Cervantes bullying and harassment of Bone, and victimisation of him.

• [87] I am of the view that AWU's complaints are, in effect, this dispute and therefore not a complaint to which Clause 18 applies.

• [88] I note that Ms Cervantes also made complaints. On the basis of Ms Hersey's evidence, Ms Cervantes made complaints in September 2022 and March 2024 about Mr Bone bullying and harassing her, and in June 2024 about the investigation and outcome contained in the Investigation Summary dated 19 March 2024.

• [89] Ms Cervantes complaints of September 2022 and March 2024 are also complaints to which Clause 18(a)(vi) applied. But they are not the types of complaints that are the subject of this dispute as they are not complaints made by Mr Bone or the AWU.

What did the Company do in relation to those complaints?

• [90] Infrabuild commenced two investigations: (1) in around November 2022, which concluded with the December 2022 Investigation Summary and (2) in May 2024, which concluded with the Investigation Summary dated 19 March 2024.

• [91] The outcome of both investigations was similar. Relevantly, both investigations found that while the events complained of occurred, they did not rise to the level of inappropriate behaviour for which disciplinary action had to be taken.

• [92] Both investigations also made similar recommendations. The December 2022 Investigation Summary made 8 recommendations; the Investigation Summary dated 19 March 2024 made 6 recommendations. Both investigations recommended that Mr Bone and Ms Cervantes participate in mediation or a facilitated conversation to 'reset' their employment relationship. Both investigations also made recommendations about reporting lines, in effect to ensure that Mr Bone was not reporting directly to Ms Cervantes. In the December 2022 Investigation Summary, training for both Mr Bone and Ms Cervantes was recommended. In the Investigation Summary dated 19 March 2024, training was recommended for only Mr Bone. Both investigation summaries recommended how to convey the outcome to Mr Bone and Ms Cervantes. Last, the Investigation Summary dated 19 March 2024 made a recommendation about action to be considered if mediation was refused.

• [93] The recommendations in relation to training were phrased as recommendations that the company "consider" implementing.

• [94] Infrabuild did not provide evidence that it implemented any of the recommendations.

• [95] Infrabuild and Mr Bone gave evidence that Ms Cervantes refused to participate in mediation. Mr Bone says that he was not informed of the second occasion when Ms Cervantes refused to participate in mediation (June 2024) until after this dispute was brought to the Commission (September 2024).

• [96] Infrabuild did not provide any evidence that it gave consideration to whether the working relationship or continued employment remained tenable if mediation was refused.

• [97] Infrabuild did not implement any of the recommendations relation to mediation in following either of its investigations.

• [98] Mr Bone never returned to work after 24 March 2024. It is difficult to say then whether Infrabuild could have implemented any of the training recommendations that the Investigation Summary dated 19 March 2024 recommended. However, the December 2022 Investigation Summary recommended revised induction, training and guidance, and no evidence was provided to me that Infrabuild offered Mr Bone any revised induction, relevant training or guidance following the conclusion of that investigation.

• [99] The recommendations were phrased such that Infrabuild should "give consideration to" training, briefing, coaching, guidance and revised induction. Infrabuild gave no evidence that they considered any of the recommended training, briefing, coaching, guidance or induction and decided, for reasons not before me, to not implement the recommendations.

• [100] I do not have any direct evidence about whether Ms Cervantes has continued to work during this period, although I infer from Ms Hersey's evidence about Ms Cervantes' complaints that were the subject of the Investigation Summary dated 19 March 2024, that Ms Cervantes continues to be employed and continues to work. Infrabuild did not give any evidence that it has implemented, or that it has considered implementing, any of the training recommendations that relate to Ms Cervantes.

• [101] Neither the December 2022 Investigation Summary nor Investigation Summary dated 19 March 2024 recommends that disciplinary action is taken because there were no breaches of Infrabuild's Diversity, Harassment and Bullying in the Workplace Policy, Enterprise Agreement, OHS Act or Code of Conduct.

• [102] Infrabuild says its cooperation and participation in the WorkSafe investigation additionally demonstrates its compliance with Clause 18. I have found that the complaint to WorkSafe was a complaint to which Clause 18 applies, but it was not a complaint made to Infrabuild.

• [103] I am of the view that the employer's obligations under Clause 18 in respect of complaints to external bodies who are not parties to the agreement would be contained with the expressions in Clause 18 that relate to general commitments, such as in the opening which provides that "the parties are committed to maintaining a workplace free of unlawful discrimination, harassment and bullying," and requirements to take complaints seriously in (a)(vi).

• [104] Ms Hersey provided indirect evidence that Infrabuild participated in WorkSafe's investigation in that Mr Renehan, Mr Mark Mueller, Infrabuild Safety Superintendent, and Ms Cervantes participated in interviews by WorkSafe.

Did what the Company do meet its obligations under clause 18?

• [105] Infrabuild relies on the external investigations - 2 arranged by it and 1 by WorkSafe - as demonstrating that it complied with its obligations under Clause 18. I agree that its initiating of investigations and its participation in WorkSafe's investigation demonstrates that it takes complaints seriously and appropriately and promptly investigated those complaints. However, in failing to implement the recommendations of the December 2022 and March 2024 investigations, particularly in respect of mediation and training, it did not comply with its obligation to take complaints seriously nor its commitment to maintaining a workplace free from bullying, harassment and discrimination.

• [106] It cannot be enough to say that because an investigation was conducted, that this alone disposed of the company's obligations. While the outcomes did not substantiate discrimination, bullying or harassment, the investigations did make recommendations, particularly mediation and training, that could have addressed the issues between the parties that gave rise to continued complaints. Implementing, or at least genuinely considering the recommendations that arise from investigations must necessarily be within the meaning of the Company's obligations to take complaints seriously and to maintain a workplace free from unlawful discrimination, harassment and bullying.

• [107] Infrabuild provided no evidence that it implemented nor considered implementing any of the recommendations relating to revised induction, guidance to Mr Bone or training in written and verbal communication recommended by the December 2022 Investigation Summary. Mr Bone does not give evidence that he participated in any such training. If Infrabuild had arranged such training, this may have avoided the complaints made by Ms Cervantes that led to the Investigation Summary dated 19 March 2024.

• [108] Infrabuild never arranged for mediation between Mr Bone and Ms Cervantes. Mr Bone gave evidence that he was prepared to participate in mediation. Both parties gave evidence that Ms Cervantes refused to participate in mediation or a facilitated conversation after both investigations. Ms Hersey gives indirect hearsay evidence that Ms Cervantes refused to participate in mediation because doing so "would require her to spend more time with someone who had a detrimental impact on her wellbeing."

• [109] But Infrabuild provides no evidence about what further steps they may have considered or taken following such refusal, as recommended in the Investigation Summary dated 19 March 2024. Further, Infrabuild provided no evidence about taking any steps (such as providing training) that did not require Ms Cervantes to interact with Mr Bone.

• [110] I infer from Mr Bone's evidence in his written response to the 2024 Investigation, that Infrabuild did keep Mr Bone's and Ms Cervantes' reporting lines separate, as he says, "[Ms Cervantes] has removed herself as my point of contact, being replaced by Mark Mueller." This was recommended following both investigations.

• [111] Infrabuild did implement the recommendations following both investigations to provide only a high-level summary of the investigation outcome.

• [112] I accept that Infrabuild can now no longer implement any of the recommendations with respect to Mr Bone. It can still implement the recommendations with respect to Ms Cervantes.

• [113] Last, Infrabuild is not required by Clause 18 to implement any disciplinary action because none of the investigations found that any complaints were substantiated.

• [114] In summary, Infrabuild complied with its obligations in Clause 18 by initiating 2 investigations and participating in WorkSafe's investigations. But it did not fully meet its obligations as it failed to implement recommendations from both investigations, particularly the recommendations about training and mediation.

• [115] I answer the questions for determination as follows:

Question 1: In relation to complaints made by Garry Bone and The Australian Workers' Union about the conduct of Lorena Cervantes, has the Company met its obligations under clause 18 of the InfraBuild Steel Laverton Steel Mill Enterprise Agreement 2021 - 2025 (Enterprise Agreement)?

Question 2: If the answer to question 1 is no, what further steps are necessary in order for the Company to meet its obligations under clause 18 of the Enterprise Agreement?

Answer: The further steps required are to implement the recommendations of each of the investigation outcomes. As Mr Bone is no longer employed by Infrabuild, the recommendations with respect to Mr Bone or that involve Mr Bone can no longer be implemented. However, the following recommendation from the December 2022 Investigation Summary can and should be implemented by Infrabuild:

To give consideration to whether Lorena would be well served by undertaking appropriate leadership and management training.

Mr I Dixon of Ai Group, with permission, for SSX Services Pty Limited T/A InfraBuild Steel Laverton Steel Mill

[1] The Full Bench in CFMMEU V Falcon Mining Pty Ltd [2022] FWCFB 93 described the power to arbitrate at [72] as the "whole process of adjudication leading to the making of a final decision."

[2] See Mitchell v University of Tasmania [2022] FWCFB 165 at [31] and discussion in [29] of the "long line of Commission authority" about the Commission's power to arbitrate. Under s 170LW of the Workplace Relations Act 1996 the cases of NG Administration Pty Ltd v Jajoo [2006] AIRC 773; PR974301, Telstra Corporation Limited v CEPU [2007] AIRCFB 374 and Deakin University v Rametta [2010] FWAFB 4387

"determined that there was no basis to read a limitation preventing the Commission from arbitrating a dispute which had arisen at a time when there was there was an employment relationship between the disputants solely because the employment relationship had terminated after the Commission was seized of the dispute."

The Full Bench decisions of Kentz (Australia) Pty Ltd v CEPU [2016] FWCFB 2019, Broadspectrum CFMEU v Broadspectrum Australia Pty Ltd [2017] FWCFB 269 and CFMEU v Goonyella Coal Mines Pty Ltd [2015] FWCFB 5619 are authority for the principle that,

"where an application under s 739 of the FW Act for the Commission to deal with a dispute has been made at a time when an employment relationship between the relevant employer and employees remains on foot, the powers of the Commission to deal with the dispute under s 739 are engaged at that time and are not subsequently vitiated because the employment relationship later comes to an end."

[3] In relation to the Commission's jurisdiction where an agreement has ceased to operate, the Full Bench in CFMMEU v Falcon Mining Pty Ltd [2022] FWCFB 93 said that the Commission's power to arbitrate a dispute under s 739 is conferred by the Act and not by an agreement (at [64]) and so,

Printed by authority of the Commonwealth Government Printer

"the agreement does not need to be currently in effect in order for the Commission to determine a dispute about the rights and obligations under that agreement relating to a time when it was in effect." (at [72])