Australian Workers Union v Caltex Refining Co

The application of the AMWU should be dismissed. CONSIDERATION 132 I have carefully considered the evidence and submissions in this matter together with the useful background provided through the site inspections. 133 I have to say that following the site inspections I have extreme difficulty in accepting the AMWU's submission that the safety issues as outlined in the ANWU's evidence are not satisfactorily addressed by the extensive safety procedures the SWC has in place. 134 In addition during proceedings there was clear and unequivocal clarification of the following issues:- · Safety of employees comes first with SWC. · The stand-by fitter called out is not expected to wait for any second fitter outside the site gates if that is either in an isolated area or there is a concern that there are persons in the vicinity that may pose a risk or threat. · The stand-by fitter on call-out can arrange to wait and meet the second fitter at a safe nearby and practical location and the two fitters can then proceed to the site. · If upon arriving at a site, and before entering the site to do the risk assessment, any perceived threat or danger to the fitter is observed (such as members of the public acting suspiciously etc.) then the fitter can essentially drive on by. However, in that case the fitter should report the incident appropriately and contact either the Police, the 1800 security number and his coordinator. · The actual physical undertaking of the risk assessment at a site is the commencement of the job and the response time of completing that risk assessment within the hour would satisfy SWC's contractual obligations in relation to a P6. · In any event such issues are SWC's responsibility and not an employee's, provided that correct and appropriate procedures have been followed by the employee. 135 It is also clear that following the earlier Recommendations made by the Commission any safety issues employees may have had are more likely to be able to be addressed prior to an employee proceeding to a site. 136 I particularly refer to the provision of all Hazard ID Sheets for each site to each employee. 137 The employees have also had the opportunity of input as to whether any Hazard ID sheet for any site needs updating. That will obviously be an on-going process. 138 Each employee is therefore clearly in a position to be well aware prior to going to the site of the nominated hazards for any site visited both relating to the nature of tasks that might arise and the physical environment of the site. 139 I would therefore envisage that it really would be the out-of-the ordinary events such as a hazard arising from bad weather (fallen tree, or rocks) or members of the public acting inappropriately that could not be taken into account. Those events cannot possibly be predicted. SWC is quite right in saying that provided there is a safety procedure system is in place based on a risk assessment process then that is sufficient to accommodate such eventualities. 140 I agree. The individual fitters have received, in my view, sufficient training and information to be able to appropriately respond to any potential risk. The risk assessment becomes crucial to this process as does the reporting of anything not previously encountered so that, if necessary, appropriate action or procedures can be put in place in the future. 141 The fact that two electricians are always called out together in emergency situations I do not consider relevant. It is quite clear that there is a regulatory requirement for a second person to be present due to the fact that "live" electricity is involved. 142 Just because, invariably it would seem, a second fitter is required to be called out does not automatically mean there should be a second fitter on stand-by in the Illawarra. 143 I accept that there are costs involved in having a second fitter on stand-by. SWC is entitled to make appropriate decisions as to how to best resource their operations from a financial point of view. 144 The cases relied on by SWC are entirely relevant to this matter. I note that in Department of Water Resources v Australian Workers Union New South Wales Branch, Cahill V P observed at p. 80: ".......................... The evidence shows, for example that financial considerations might result in having some work deferred, or done at less frequent intervals. In my opinion it is for the employer to determine what work is to be performed. That having been determined, it is then a case for the tribunal to decide, upon application being made on behalf of the employees performing the work, and having regard to the work required to be performed and the conditions applicable, whether any manning award at variance with the employer's desires is warranted." 145 The appropriate principles to be applied by the Commission are succinctly summarised by Cantor J in 1950 in re Steel Works Employees and Engine Drivers &c (Australian Iron and Firemen's Association of Australasia (Coast District) and the Broken Hill Proprietary Company Limited as follows: "First, an employer has the right to manage his own business in his own way; secondly, the Commission will not interfere with this right unless it is satisfied that intervention is justified because in the exercise of this right unjust or unreasonable demands or conditions are imposed, because the action of the employer is taken in bad faith or amounts to victimisation or oppression or the like. However, where the Company has introduced a new system of working the Commission will readily intervene in relation to ancillary matters such as where it is shown that the manning laid down by the Company is insufficient to carry out the work required or if the working conditions are such that they warrant the awarding of specific spell time or special rates of remuneration." 146 These principles are still relevant and applicable today and were followed by Sams DP in Re: Ambulance Service of New South Wales and Broken Hill Town Employees Union. 147 In determining that the Union had not established a case that the roster proposed by the Ambulance Service required its members to perform work which is unjust or unreasonable Sams DP observed: "52 Fourthly, not only did the Union bring no evidence of any actual disadvantage or unfairness visited upon its members, but much of it's case was predicated on speculation of what might happen in a particular isolated situation. (The training issue was one such example, where a detailed submission was argued about two day training courses which are no longer conducted). 53 It is trite to observe that it would be wrong of me to decide this case (or any other for that matter) on speculation; no matter how well motivated and dedicated the Union advocates were. That is not to say that some disadvantage or unfairness may not arise in the future. But that is not the evidence before me in this case. Should any problems arise, it can be addressed at the appropriate time in accordance with the relevant provisions in the Act." 148 I reject as unreasonable the submission of Mr Morrison that "it was simply good enough........ to assert that anything that could be envisaged could occur" and that that was sufficient to warrant a second fitter on stand-by. 149 Clearly not every single remote possibility can ever be covered but the SWC clearly have the appropriate safety procedures, if followed by employees, to minimise those risks as far as humanly possible. 150 Having had the benefit of the site inspections my views on this matter are only reinforced. 151 I also had the opportunity of viewing the SWC vehicle driven by the fitters and observed it had was equipped with spotlights. 152 With the exception of the Stanwell Park site I consider the sites in residential areas pose no significant safety risk. Certainly no issues of spiders or snakes were apparent. I note in relation to snakes and spiders I would expect fitters to dress in appropriate work gear with long pants (not shorts). 153 Those sites were reasonable well-maintained and well lit. Any threat posed by members of the public could only be infrequent and can be adequately dealt with through the 1800 security number and the undertaking by SWC that no fitter needs to wait at the site alone but can wait at a safer nearby location. In addition if the threat was perceived immediately upon arriving the fitter could keep on driving and make the appropriate reports and take appropriate steps to contact either Police or the 1800 security numbers. 154 If mobile phone reception is a difficulty then SWC has said CDMA radios are available for the fitters. I note from the evidence that to date no request has been made for a CDMA radio by any fitter in the Illawarra. 155 In relation to the Stanwell Park site I certainly have a concern about the lighting at both the ladder and along the bush path to the SWC installation. 156 However, I am sure that issue could be addressed from an engineering point of view by either the running of a cable to the top of the ladder with a light that could be switched on at the bottom of the ladder or perhaps the possibility of recessed solar lights along the path (fixed in place so they couldn't be removed) similar to the solar lighting available for gardens or the surrounds of buildings. 157 Certainly if there are other poorly lit bush sites that could be looked at by SWC. However, poor lighting is still not a sufficient reason for having a second fitter on stand-by. 158 It seems to me that in reality the inconvenience factor in having to wait for the second fitter to come from Sydney is the real motivating force behind both the original bans and the Orders sought. 159 I can appreciate the frustration of having to sit and wait for an hour or two for a second fitter to arrive and only then proceeding to do the job which might only take half an hour rather than being able to go in with a second local fitter and do the job in an hour all up for example yet still be paid for four hours' work. 160 Yet the fact remains that whilst the Illawarra stand-by fitter is waiting for the second fitter he is being paid at penalty rates and will continue to be paid penalty rates if he ends up being out for longer than 4 hours. There are also the Award protections of appropriate rest breaks before normal work commences on the next shift. 161 It is always open to the Illawarra fitters to again make themselves available to be called out to support the stand-by fitter and thus reduce the time spent waiting at a site. 162 Having carefully considered all the evidence and the submissions of the parties I am unable to find there is any justification for the intervention of the Commission in SWC's managerial right to determine appropriate manning levels for fitters on stand-by in the Illawarra. 163 The Union's application for Orders is dismissed. 164 The Commission expects that any bans or limitations in place by AMWU members in the Illawarra concerning fitters on stand-by or responding to call-outs should be immediately lifted. 165 This dispute is now terminated.