Hence, the recommendations applicable to Mr Bell do no more and no less than accord with generally-applicable OHS guidelines promulgated in the Code in as much as they may concern work performed from a seated position (in excess of 4.5kg) or from a standing position (above the range of 16-20kg). The weight restrictions that apply to Mr Bell appropriately may be viewed in this nationally-applicable OHS context.
26 Given that the weight lifting limits applicable to Mr Bell properly may be viewed as unremarkable in the context of OHS considerations that apply generally under the Code, I turn now to some other aspects of the restrictions applicable to the work performed as a grade 4 terminal operator. Some of the medical advice recommended that Mr Bell should avoid working in a forward-flexed position, irrespective of weight-lifting limits that otherwise may apply. In that respect, the respondent's evidence included photographs of Mr Crockett performing certain tasks of a terminal operator in forward-flexed positions, among other positions. As to that photographic evidence, both Dr Dalton and Dr Lose were of the view that Mr Crockett's posture was, put at its lowest, less than optimal for anyone concerned with safely performing such work. Similarly, the evidence of Mr Bell and Mr O'Brien was to the effect that terminal operators simply would not perform the work in the "awkward" manner shown in the photographs of Mr Crockett.
27 As the applicant submitted, the Commission would conclude that there is a high risk of injury to any employee performing the type of work in the manner shown or described in some of Mr Crockett's evidence if the Commission accepted the respondent's contentions about the way certain tasks inherently have to be performed. For example, the photographic evidence adduced by the respondent to illustrate the difficulties that may be encountered by Mr Bell in performing aspects of the job in a forward-flexed position cannot be given weight, given that it involved postures by Mr Crockett which were disavowed by both the occupational specialists and the terminal operators themselves. Simply stated, if respondent's case is to the effect that the work at Port Botany needs inherently to be performed in the way demonstrated in the photographs of Mr Crockett, the evidence otherwise indicated that the work is not, and, indeed, should not, on OHS grounds, be performed in such ways. If the exigencies of the workplace are such that the work can be performed only in the manner demonstrated in some of the photographs of Mr Crockett, then the consensus view otherwise was that such postures are less than satisfactory in terms of OHS considerations generally. That being the case, it seems to be a self-evident proposition that alternative means of performing these aspects of terminal operators' work need to be organised by the respondent for the OHS benefit of any terminal operator undertaking such tasks.
28 Mr Crockett gave evidence in a careful and considered way, based on his understanding, deriving from his role as the respondent's Operations Manager, of what may, or may not, be involved in the work of a terminal operator. Obviously, in that managerial role, Mr Crockett has had the opportunity to observe the way work is performed at Port Botany and, indeed, to give directions concerning the performance of work. Notwithstanding the conscientious nature of Mr Crockett's evidence, where there was a contest on the evidence as to the ways and means in which terminal operators' work is performed, or can be performed, I strongly preferred and accepted the evidence of the terminal operators themselves who have performed the work in question on a day-to-day basis for many years. For instance, in repeated and robust exchanges in cross-examination about work tasks, Mr Bell and Mr O'Brien were adamant that not only could a forklifts, cranes etc., be used in the ways described in applicant's case, but that these were the very means by which they had routinely, personally performed the work over many years; and I accepted that evidence in such respects.
29 Similarly, certain propositions put to Mr Bell and Mr O'Brien in cross-examination, against the backdrop of Mr Crockett's evidence, concerning the purported impracticability of performing certain tasks were rebuffed with the informed assuredness that clearly stemmed from personal experience in actually performing the tasks; again, I accepted the evidence of Mr Bell and Mr O'Brien as to such matters. Examples of answers in this respect to the effect that an employee seen attempting to perform work of the type suggested would be "sent off the wharf"; that the descriptions of the work were based on experience with more than a thousand ships, and the way the work was performed on "every one of them"; that not only could a forklift access a certain area, the task was performed with "no worries" in the manner described - not only on the day immediately before the evidence was given, but for the past thirteen years; that certain work "categorically" could be performed in the way described; and questioning why a terminal operator would persist in trying to open a valve that could not readily be turned. As to this last matter, the evidence of the terminal operators themselves dealt with the topic of how they deal with "sticky" valves, involving the reporting the matter for maintenance or using a water hose; and how drumming, among other tasks, is performed. As to lifting hatches and the like, it would, given some of the weights described in Mr Crockett's evidence, be in the interests of any terminal operator to do this as a shared task. I do note, however, that Mr Bell said he had never had occasion during his period of employment with the respondent to lift one of the heavier grates. I also accepted Mr Bell's evidence as to the range of duties he had actually performed in the time immediately preceding the dismissal; and accept he was reasonably well-integrated back into the workforce at that time.
30 In contrast with the evidence of the terminal operators, assuredly stemming from practical experience, Mr Crockett's evidence came from the view-point of a manager who, as he acknowledged, does not have a hands-on role in routinely performing terminal operators' work. For instance, under cross-examination, Mr Crockett referenced the position adopted in photographic evidence to an "upright row activity" he uses when training at a gymnasium, rather than basing it on the practical experience of having performed the terminal operators' tasks himself in an everyday working environment. I should note, in this respect, that Dr Lose's opinion concerning Mr Bell's ability to perform the inherent requirements of the job was informed, at least in part, by his understanding that terminal operators' work necessarily involves moving six-inch hoses and performing other aspects of the work in the manner described to him by Mr Crockett and Mr Eng on a site inspection. Dr Lose did not actually see Mr Bell or any other terminal operators at work. (That being said, I note that neither Dr Lose nor Dr Dalton have had the benefit of observing Mr Bell or any other terminal operator, for that matter, performing the work in question. To that extent, they were equally reliant on descriptions that have been given to them.) As I have noted earlier, I accepted and preferred the evidence of the terminal operator witnesses themselves as to the ways and means in which the terminal operators' work is performed at Port Botany to that of Mr Crockett. As a corollary, I am of the view, based on my findings as to the evidence concerning the performance of the work itself, that Dr Lose's opinion, at least to the extent it was reliant on the descriptions given to him by the respondent's managers, was backgrounded on some erroneous factual descriptions given to him concerning the means by which work is, and can be, performed at Port Botany - and must be discounted to that relevant extent.
31 By way of illustration, Dr Lose said that tasks involving the six-inch hose were among the most important. To that end, Dr Lose said he even attempted to lift one of the six-inch hoses himself during the workplace inspection. Dr Lose otherwise opined that he did not believe the work could be performed in the ways described by the terminal operators and his evidence proceeded on the assumption that at least some aspects of the work necessarily would involve "very, very heavy" lifting. For example, Dr Lose said in his oral evidence he assumed the work of a terminal operator necessarily would involve lifting a hose of a weight he estimated to weigh around 50kg, and he could not imagine any way of doing certain aspects the work other than through manually dragging that weight. To similar effect, Dr Lose had written in a report dated 29 May 2007:
A general inspection of the site occurred, most particularly the operation tasks of concern to Mr Crockett, mainly the 6 inch hoses. The hoses consisted of insulated rubber, were approximately 3 metres in length, with heavy steel couplings at each end. It was conservatively estimated that the hoses would weigh in excess of 100kg; lifting an end to drag the hose would involve a weigh resistance of greater than 50kg.