Fair Work Act 2009

s.505 - Right of entry

Construction, Forestry, Maritime, Mining and Energy Union

Dispute about the operation of Part 3-4 - access sought to 'transhipper' vessel - access restricted to essential persons due to COVID-19 - whether a reasonable requirement under s 491 - transport arrangements to remote areas under s 521D - views expressed

[1] This decision concerns an application by the Construction, Forestry, Maritime, Mining, and Energy Union (CFMMEU) under s 505 of the Fair Work Act 2009 (Act) that seeks to have the Commission deal with a dispute about the operation of Part 3-4, which concerns union right of entry to premises.

[2] The dispute relates to the CFMMEU's wish to exercise entry rights to a 'transhipper' offshore loading vessel known as the 'Magdragon II', which is operated by Cape Preston Port Company Pty Ltd (CPPC) in the Pilbara region of Western Australia. The dispute has two dimensions. The first concerns the company's refusal to grant the union entry to the transhipper, and its requirement that entry to its premises be confined to a landside area known as the sampling station, because of the risks posed by COVID-19. The company's position is that this is a reasonable request by an occupier for a permit holder to follow an occupational, health, and safety requirement, for the purposes of s 491. The union disagrees. The second dimension of the dispute is whether CPPC must enter into a transport arrangement with the union under s 521D to enable its permit holders to exercise entry rights.

[3] The CFMMEU seeks that the Commission determine the following three questions:

Question 1: Is the Respondent's decision to deny access to the premises a request to comply with an occupational health and safety requirement?

Question 3: Is CPPC required to enter into a transport arrangement under s 521?

[4] The union says that the answer to questions 1 and 2 is 'no' and that the answer to question 3 is 'yes'. The company does not accept the formulation of the first question. It says that it has granted the union entry to its premises, but not to that part of its premises constituted by the transhipper. It says that the first question should ask whether the company's requirement is an occupational health and safety (OHS) requirement within the meaning of s 491. The company says that the answer to this question, and to question 2, is 'yes', and that the answer to question 3 is 'no', because the requirements of s 521D have not been met.

[5] The factual background is largely uncontested. Signed witness statements were tendered in evidence and the witnesses were not required for cross-examination. The transhipper is located at the Sino Iron Project at Cape Preston. The company's port operations are continuous and facilitate the shipment of refined iron ore (magnetite concentrate) to export markets. The transhipper vessel is usually situated some nine kilometres offshore. Landside employees stockpile and load the concentrate onto barges which are then towed to the transhipper by tugs. Employees of CPPC work and also reside on the transhipper. They operate the plant and machinery which loads the magnetite concentrate product onto ocean-going export vessels.

[6] Mr Joel O'Brien is a CFMMEU organiser responsible for maritime workers who are members of the union in the north west of Western Australia. He holds a permit issued under Part 3-4 of the Act. Mr O'Brien's evidence was that on a number of occasions from March to June 2020 he has sought entry to the transhipper, and that on each occasion CPPC has refused entry, with the result that entry visits have taken place in the meeting room of the sampling station.

[7] Mr Mike Tonkin is the company's general manager. His evidence was that on 17 March 2020, Mr Peter Stillman, the company's industrial relations manager, wrote to Mr O'Brien and told him that for the foreseeable future only persons essential for the transhipper's operations would be allowed on board, because of COVID-19, and that union right of entry would occur in the meeting room in the sampling station. The company refers to this as its 'ROE requirement'. Mr Stillman further advised Mr O'Brien that the company would discuss right of entry on board the transhipper with the union when the COVID-19 situation changes.

[8] Mr O'Brien said that, because the transhipper is situated offshore, it is not reasonably accessible to him unless the company provides transport or causes transport to be provided. On 20 June 2020, Mr O'Brien sent an email message to the company in which he formally requested from the company a transport arrangement under s 521D of the Act to facilitate his entry to the transhipper. The email was attached to the witness statement of Mr Tonkin. On 22 June 2020, Mr Stillman replied, stating that it was still not possible to transport Mr O'Brien to the transhipper because of the company's OHS requirements, in particular the requirement that only essential persons board the vessel.

[9] Mr Tonkin's evidence was that over the past five years almost all CFMMEU right of entry visits to hold discussions with both landside and transhipper employees have been held in the meeting room at the sampling station during shift changeovers. He said that this place has been used because it is a central location for all crews to congregate on the company's premises during shift changeovers. He said that this has been an effective process that allows the union easily to meet with employees on both day and night shift with minimal disruption to the company's continuous operations.

[10] As to the company's rationale for its ROE requirement, Mr Tonkin said that since March 2020, and in response to the COVID-19 pandemic, the company's position has been that only essential persons may access vessels, including the transhipper, in order to minimise contact with surfaces and to facilitate social distancing ('the essential staff rule'). He said that the essential staff rule applies generally and also precludes the company's head office employees from Perth boarding the vessel.

[11] Mr Tonkin's evidence was that the essential staff rule has been only one part of a suite of measures adopted by the company in response to the pandemic. Other measures have included replacing face to face meetings between land-based and transhipper personnel with video or telephone conferences; minimising contact between the day-shift and night-shift on the transhipper, by implementing electronic handovers and separating break times; and re-locating all FIFO workers who ordinarily reside overseas or inter-state during their off swing to Western Australia. These employees were asked to complete a 14-day isolation period when they arrived in Western Australia, before accessing the Sino Iron site. Further, the company has since April moved from a 'two weeks on, one week off' roster to a temporary 'four weeks on, two weeks off' roster.

[12] As to the nature of the infection risk, Mr Tonkin said that the floating production line at the 'pointy end' of the Sino Iron supply chain is particularly vulnerable to COVID-19 transmission because of the nature of the work and the confined spaces. Workers reside on the crew transfer vessels and the transhipper and are constantly in close contact. Mr Tonkin's evidence was that if a permit holder or any other visitor that entered the transhipper was infected by COVID-19, the extended period of time in close contact with the surfaces and people on the transhipper would increase the likelihood of a COVID-19 outbreak. He said that the nature of boarding and moving around the transhipper and crew transfer vessels effectively guarantees that all personnel on the vessel touch the same common surfaces such as handrails, ladder rungs and self-closing watertight handles on both internal and external doors. He said that by contrast, the meeting room in the sampling station building is approximately three times the size of the transhipper meeting room and is typically occupied during the day-shift only, and by a total of seven people located across three separate large offices within the building. The air-conditioning at the sample station meeting room is provided by standalone split systems, whereas the transhipper uses a common ducted air-conditioning system that also services all of the accommodation cabins, offices, meal and recreation common areas. He said that using the meeting room at the sampling station provides significantly reduced potential transmission exposure compared to allowing entry to, and having meetings on, the transhipper. Mr Tonkin said that the threat posed to operations by a visit to the vessel from a non-essential visitor was currently unacceptable given there was an appropriate alternative, namely the sampling station.

[13] Mr Tonkin said that if even one person is diagnosed with COVID-19, it is highly likely that the entire operation would be shut and locked down at the direction of the Western Australian government until comprehensive contact tracing could be completed. The company would need to stop the transhipper and crew transfer operations and quarantine employees on board for at least 14 days. He said that if there were an outbreak and the transhipper or the crew transfer vessels had to stop operating, this would halt 60% of Sino Iron's export volume.

[14] At the hearing, I raised with the parties a preliminary question as to the manner in which the Commission should deal with the present dispute. The union's application is made under s 505(1) of the Act. That section provides that the Commission 'may deal with a dispute about the operation of this Part', including a dispute about 'whether a request under ss 491, 492A or 499 is reasonable' (s 505(1)(a)).

[15] Section 505 confers a discretion on the Commission to deal with a dispute. There would need to be a good reason for the Commission not to deal with the dispute. Such a reason might be that the dispute is close to resolution, or that in fact there is no current dispute because it has been resolved, or that it plainly did not relate to the operation of the Part. If the Commission decides to deal with the dispute, s 505(2) provides that it may do so by arbitration. The note to s 505(2) states that the Commission may also deal with the dispute by mediation or conciliation, or by making a recommendation or expressing an opinion. Section 505(4) also states that in dealing with the dispute, the Commission must take into account fairness between the parties concerned.

[16] I consider that it is appropriate that the Commission deal with the union's application, as there is a prima facie unresolved dispute about the operation of Part 3-4. However I consider that the appropriate mode of dispute resolution is for the Commission to express an opinion about the answers to the questions that have been raised, rather than to determine them by arbitration. Several considerations support my adopting such a course.

[17] First, I have some doubt as to whether the present matter really does involve a dispute about s 491. That provision states that a permit holder must comply with a reasonable OHS request of an employer. It is the compliance of the permit holder that is the subject of the section. There is no dispute about the fact that the union is complying with the request, and therefore, on one view, there is no dispute about the operation of Part 3-4 in respect of this provision. Section 491 does not say that an occupier cannot make a request if it is unreasonable. If a request is unreasonable, the union can ignore it. The union is complying with the ROE requirement, in part at least because it has no practical choice but to comply. However, the company makes no complaint about the union's conduct. It is the union that says that the company's request and requirement do not fall within s 491. If that is right, the union does not have to comply with the request; but that would not mean that the company must provide access to the transhipper.

[18] Secondly, although the union's case is framed by reference to s 491, it appears to me that in essence it contends that the company has refused or obstructed entry to the premises, contrary to ss 501 and 502. That is a question that only a court can determine. Even if the Commission can safely answer question 1 by arbitration, the fact that the underlying concern, and arguably the real dispute, appears to be one about an alleged contravention of the Act is a consideration that favours the Commission simply expressing an opinion, because it avoids any question of the impermissible purported exercise of judicial power.

[19] I consider that in all the circumstances it is appropriate that I deal with the dispute by expressing an opinion about the answers to the questions posed. Such a course is consistent with my obligation to perform my functions and exercise powers in a manner that is fair and just, and also quick (s 577). I will now consider the three questions and express my opinion about the answers to each of them.

Questions 1: Is there a request to comply with an OHS requirement?

"The permit holder must comply with any reasonable request by the occupier of the premises for the permit holder to comply with an occupational health and safety requirement that applies to the premises".

[21] The union submitted that the company's ROE requirement is not a request to comply with an OHS requirement at all. First, the union said that there is no real request, but rather a refusal to allow entry to the premises in question. I appreciate that the effect of the company's position is to refuse access to the vessel, however this does not mean that there has been no request. The company has asked the union to confine its entry to the meeting room in the sampling station. It is a request to which the union has no choice but to accede. But it is still a request.

[22] Secondly, in its written submissions, the union contended that the expression 'occupational health and safety' relates to a body of laws and standards aimed at promoting and improving standards for health and safety in the workplace. The union said that an 'occupational health and safety requirement', in the context of s 491, is something that it is 'necessary to do', that is, something that must be complied with because of the operation of relevant state, territory or federal occupational health and safety laws.

[23] The union submitted that none of the company's statutory OHS obligations provide for a right or requirement to exclude a person from a workplace. Rather, they create obligations to take such measures as are practicable to ensure that the persons present in the workplace are not exposed to hazards. The union referred to the Explanatory Memorandum (EM) to the Fair Work Bill 2008, which relevantly stated:

"Clause 491 - Occupational health and safety requirements

1964. This clause requires a permit holder to comply with a reasonable request by an occupier of premises to observe occupational health and safety requirements that apply to the premises. For example, if a permit holder seeks to enter a construction site where there is a legislative requirement to wear a hard hat, it would be reasonable for the occupier to require the permit holder to wear a hard hat. If the permit holder does not comply with this request, then she or he would not be authorised to enter or remain on the premises because of the operation of clause 486."

[24] The union links the example in the EM to regulation 3.36 of the Occupational Safety and Health Regulations 1996 (WA), which concerns safety helmets at construction sites. It says that a direction to wear a safety helmet is a direction to comply with this regulation. By contrast, the union says that there is no specific requirement in state or federal safety legislation that requires CPPC to refuse entry to an official of the union, and that in the absence of such a requirement, s 491 is not enlivened and the answer to question 1 is 'no'.

[25] In my opinion, s 491 is concerned with the employer's OHS requirements, even if these exceed minimum statutory obligations. An occupier may wish to adopt more rigorous safety standards than the minimum requirements prescribed by law. This may give rise to disagreement. It is only to the extent that the employer's OHS requirements are reasonable that a permit holder is required to observe them. If it had been intended to confine s 491 to statutory OHS requirements, it is difficult to see why the request would also need to be reasonable, because a request to comply with the law is inherently reasonable.

[26] There was a disagreement between the parties about what constitutes 'premises'. Has the company refused access to its premises, or only to that part of its premises constituted by the transhipper? It is not clear to me why this makes any difference. The company's requirement concerns access to the transhipper, which is either premises in its own right or a part of the premises (see the definition of 'premises' in s 12). Section 491 states that a permit holder must comply with a reasonable request from an occupier of the premises for the permit holder to comply with an OHS requirement that applies to the premises. On either party's argument, CPPC is the occupier of the premises, and the request relates to the premises. Only essential persons are allowed on vessels, including the transhipper.

[27] In my opinion, the company's ROE requirement is an 'occupational health and safety' requirement. It is a hazard reduction measure in response to COVID-19. The evidence of Mr Tonkin, which I accept, substantiates this point. To my mind, it is consistent with the general obligations imposed on the company by Western Australian and federal OHS laws to maintain a safe working environment. However, to the extent that it goes beyond what is required by law, and reflects the company's higher standards, this does not in my view alter its character as a 'requirement' for the purpose of s 491.

[28] In my opinion, the company's position in relation to union entry to the transhipper involves a request by the occupier of the relevant premises to comply with an OHS requirement that applies to the premises, namely the company's requirement that entry to the transhipper currently be confined to essential persons in order to prevent COVID-19 infection. In my opinion the answer to question 1, whether as formulated by the union or the company, is 'yes'.

Question 2: Is the company's request reasonable?

[29] The second question is whether the company's request is reasonable. The union submitted, correctly in my view, that the object of Part 3-4 must be taken into account in considering this question. Section 480 states that the object of the Part is to establish a framework that strikes a balance between the right of unions to represent their members in the workplace and hold discussions and investigate suspected contraventions, and the right of occupiers of premises to go about their business without undue inconvenience.

[30] The union contended that the Commission could not conclude that the exclusion of a permit holder from the premises is a reasonable direction to comply with an OHS requirement, for five reasons.

[31] First, the union says that the exclusion of officials from the premises is contrary to the object of Part 3-4 because it involves no balancing of interests. Entry is simply prevented. However, the company's position is not that entry will not be granted at all, but rather that entry should not be granted to the transhipper. I appreciate that the union contends that there is a blanket refusal to allow entry to the premises constituted by the transhipper, however the consideration of the reasonableness of the situation requires a wider lens. The fact is that the union is able to meet with and hold discussions with employees, including those who work on the transhipper. There is no apparent inadequacy in the current arrangements that allow for access to, and for discussion to occur in, the sampling station. In my view the evidence of Mr Tonkin shows that the sampling station meeting room is an appropriate place for entry and meetings to occur. It is a generally convenient meeting place which employees regularly and naturally attend. The union has ready access to employees, in an area where the company reasonably considers there to be a decreased risk of transmission of the virus. Further, the company is willing to discuss entry to the transhipper in the future, but presently has concerns about the risks of COVID-19 infection on board the transhipper and the associated health and business implications. To my mind, such a position involves a balancing of interests as contemplated by s 480.

[32] Secondly, the CFMMEU says that the company's position reflects a 'practical absurdity', because it has the effect of abrogating a permit holder's right to enter the premises under s 484. For the reasons just mentioned, I do not consider that the company's position has this effect.

[33] Thirdly, the union says that the company's position is not based on any rigorous analysis of the risks presented by COVID-19 in the circumstances. It says that there is no indication that the transhipper has any heightened risk of COVID-19 exposure that would constitute an occupational hazard needing to be addressed through the implementation of the OHS requirement the company has imposed, namely that union officials not enter the transhipper. However, in my opinion, Mr Tonkin's evidence provides a convincing explanation of the heightened risk of infection in the close working and living conditions on the transhipper. In this regard, I appreciate that the company evidently had a disinclination to allow entry to the transhipper even before the pandemic, also for safety-related reasons. But that does not detract from the company's position about the risk now. Moreover, the ROE requirement is just one manifestation of a broader policy that confines visits to vessels, including the transhipper, to essential persons.

[34] Fourthly, the union says that the company has in place other reasonable OHS requirements that effectively mitigate any COVID-19 infection risk associated with the entry of a permit holder to the transhipper. These measures include social distancing, wearing of PPE, regular washing of hands, a temperature test upon entry to the site, completion of a COVID-19 questionnaire, and assessment by the occupier of the fitness for work of a permit holder entering the site. These measures must be taken into account in considering the reasonableness of the company's ROE requirement. I agree. But on the other hand, it is difficult to argue with the proposition that a reduction in visitors to the transhipper brings with it a lower risk of infection. How much of a difference it makes can be debated, but in my assessment, it is a meaningful difference.

[35] Fifthly, the union says that the operation of s 491 applies only to requests to comply with requirements whilst on premises, and that it does not provide a means through which an occupier can refuse entry to premises. It says that a reasonable OHS requirement takes the form of a condition that applies during entry to the premises. However, s 491 does not say that the requirement must necessarily be complied with on the relevant premises. Rather, the permit holder must comply with a reasonable request that 'applies to the premises'. I do not think that requests for the purpose of s 491 are confined to what occurs when entry actually takes place. For example, if it were patently unsafe to enter a site because of some obvious danger, such as a fire or chemical spill, a request of an occupier not to enter premises would clearly be one falling within s 491.

[36] The union contrasted the company's position in relation to entry to the transhipper with a different company request that Mr O'Brien wear appropriate PPE in all areas, which is underpinned by Regulation 4.1 of the Mines Safety and Inspection Regulations 1995 (WA). The union says that it is plain that the requirement to wear a safety helmet or 'hard hat' is in response to the hazard posed from a falling object whilst on the premises, and that the company's request of permit holders to do so is reasonable. The union says that on the other hand, it would not be reasonable to request that the permit holder not enter the premises because of a risk of being struck on the head by a falling object whilst on the premises. However, in my view this is an inapt analogy with the current situation. Wearing helmets is generally a sufficient safety precaution in ordinary circumstances but might not be sufficient in extraordinary circumstances. The pandemic is an extraordinary situation. I appreciate the point that the union seeks to make, which is that it considers that the ROE requirement goes too far and is not necessary. However, human contact is the means of transmission of the virus, and a restriction on entry for non-essential persons in the close confines of the transhipper, which is also a residence, does not appear to me to be unreasonable. Mr Tonkin's evidence about the susceptibility of the working environment on the transhipper to COVID-19 transmission outlined earlier was in my opinion persuasive. Mr Tonkin noted that the Western Australian Department of Health considers that remote industrial sites are high risk environments for transmission of infections, given that workers live and work in close quarters and there is regular turnover in the workforce.

[37] In my opinion, the following considerations support a conclusion that the company's ROE requirement is reasonable. First, as explained above, there is a cogent rationale for the requirement. Although the requirement reflects a cautious approach to the risk of transmission, it is proportionate to the risk, and the gravity of the consequences of the risk materialising.

[38] Secondly, there are suitable alternative arrangements that allow for union entry and access to employees. The sampling station is a convenient location for all concerned. Mr Tonkin described it as a central point for all crew to congregate during shift changeover. It is the place where entry has often been exercised and meetings have occurred regularly. It is not the case that the ROE requirement has halted the customary arrangements for entry and meetings. Union visits to the transhipper in the past have been rare. The company makes arrangements to facilitate entry by the union to the sampling area where officials can meet and have discussions with members. These arrangements appear to be satisfactory. There is no evidence to suggest that there is any shortcoming associated with this approach, for example that members have not been able to meet with Mr O'Brien, or that the facility in the sampling station is inappropriate for some other reason. The company advises employees when Mr O'Brien is visiting the site, coordinates his entries with shift changes, and offers specially to transport employees from the transhipper who wish to meet him. The evidence indicates that since the introduction of the ROE requirement Mr O'Brien has continued to successfully enter CPPC's premises and speak with members in the meeting room at the sampling station. It does not appear to me that the union, its members or other employees have been disadvantaged by the ROE requirement.

[39] Thirdly, the union has not identified any particular reason why it is important that entry be exercised specifically on the transhipper. Of course, a union is not required to identify any special reason for exercising rights of entry other than what is required by Part 3-4, however in a case such as this, when it is necessary to balance competing interests, the reason of the union for seeking access to a particular premises or part of a premises is relevant in the weighing of the stakes. The union does not say that there are special problems affecting employees on the transhipper, or that employees have complained that it is difficult to make time to meet in the sampling room, or that it is necessary to inspect plant or equipment on the vessel. The union has seldom sought to visit the vessel in the past and no particular reason was put forward as to why it should visit again now. As I perceive it, the union views the matter as one of principle. It says that the transhipper is a premises or part of a premises and that it has a right to enter it. However, there is presently an unprecedented pandemic, and the company's interest in protecting against transmission of the virus must also be considered.

[40] Fourthly, the ROE requirement is one implication of a general rule that confines entry to essential persons. It applies equally to the company's Perth-based management and all other persons. In this regard, the company confirmed at the hearing that in particular circumstances, it might be that a union official could be considered an essential person, for example if there had been a serious safety incident.

[41] Fifthly, the company's position is a temporary one. It will allow entry to the vessel, as it has done in the past, when the safety risk abates.

[42] The union contended that it has a right under the Act to ply its trade, that its office holders should be able to enter premises, and that this cannot be put on hold indefinitely until the company is satisfied that there is no risk of contagion associated with the exercise of union right of entry. It said that the company is fundamentally in no different position from many other businesses in relation to the threat posed by the virus, and that there is no warrant for a general prohibition on entry. However, in my view, the circumstances of the transhipper are special, insofar as employees reside on the vessel and work in close quarters. The virus still poses an appreciable risk, even in Western Australia where the risk is lower than much of the rest of the country. And although there is currently no access to that premises or part of the premises constituted by the vessel, there is convenient access to employees. I appreciate the point made by the union that it should not be limited to meetings with employees who volunteer to be transported to shore specifically for that purpose, and that it has a legitimate interest in meeting prospective members as well as current members. However, this interest is accommodated, in the sense that the sampling room is a place that employees can easily attend, and do attend, at shift changeover.

[43] The union contended that employees were no more or less likely to contract or transmit the virus on the transhipper than in the sampling station. However, in terms of minimising COVID-19 transmission, the sampling area appears to me to be a safer environment for meetings, because it allows for better social distancing. Its use also avoids non-essential persons coming into contact with the surfaces on the transhipper where employees not only work but also reside.

[44] In light of the above, it is my opinion that the ROE requirement is reasonable for the purpose of s 491.

[45] In its submissions, the company asked that the Commission determine that Mr O'Brien is not authorised to enter or remain on the company's premises without complying with the ROE requirements. It referred to s 486 of the Act, which states that the relevant subdivisions of the Act do not authorise a permit holder to enter or remain on premises if he or she contravenes subdivision C of Part 3-4 Division 2 (which includes s 491). I do not think it appropriate that I express an opinion about this matter, because the company has not alleged any contravention by the union of s 491, nor in my view has any contravention occurred.

Question 3 - A transport arrangement under s 521D

[46] The union submitted that the company has refused to enter into a transport arrangement with it, and that the Commission should require it to do so. Section 521D of the Act relevantly provides:

"(1) This section applies if rights under this Part are to be exercised by a permit holder on premises that are located in a place that is not reasonably accessible to the permit holder unless the occupier of the premises on which the rights are to be exercised provides transport, or causes it to be provided.

(a) to provide transport to the premises for the permit holder, or cause that transport to be provided, would not cause the occupier undue inconvenience;

(b) the permit holder, or the organisation of which the permit holder is an official, requests the occupier to provide, or cause to be provided, transport to the premises for the purpose of assisting the permit holder to exercise rights under this Part;

(c) the request is made within a reasonable period before transport is required;

(d) the permit holder, and the organisation of which the permit holder is an official, have been unable to enter into a transport arrangement with the occupier by consent;

the occupier must enter into a transport arrangement for the purpose of assisting the permit holder to exercise rights under this Part."

[47] The union said that, during export operations, the transhipper remains at sea and is inaccessible unless the occupier provides transport or causes it to be provided. It says that s 521D is clearly engaged. I agree. The union further contended that each of the requirements of s 521D has been met. It said that the regularity of crew transfers and vessel movements to and from the transhipper means that the provision of a transport arrangement would not cause the company undue inconvenience, for the purpose of s 521D(2)(a). It said that Mr O'Brien requested the company to enter into a transport arrangement on 16 June 2020 (s 521D(2)(b)). It also submitted that the request was made at least 7 days (and hence a reasonable period) before the proposed entry (s 521D(2)(c)). Finally, the union said that it has not been able to enter into a transport arrangement by consent, and that the requirement of s 521D(2)(d) is satisfied.

[48] The union contended that Mr O'Brien's evidence establishes that all of the requirements of s 521D(2) are met, and that therefore the company must enter into a transport arrangement for the purposes of facilitating a right of entry under s 484 of the Act.

[49] In my opinion, it is not yet the case that one could conclude that the parties are unable to enter into a transport arrangement. There has been only one request from Mr O'Brien that the company enter into such an arrangement. This was in Mr O'Brien's brief email of 16 June 2020, which received a brief and negative response. However, the company has also advised the union that once the risks related to COVID-19 transmission have reduced, it will enter into discussions for a transportation arrangement. The company has not rejected the union's request to discuss a transport arrangement. Rather, those discussions have not yet occurred.

[50] In these circumstances, it appears to me that the requirement in s 521D(2)(d) has not been met. It is not necessary to consider whether the other requirements of s 521D(2) have been satisfied. In my opinion, the answer to question 3 is 'no'.

[51] Finally, I offer a concluding observation. In order to reduce the risk of further disputation, it would be advisable for the company to inform the union of what it will consider to be appropriate indicators that the risk of transmission of the virus on the transhipper has abated to an acceptable level so as to allow for reconsideration of the ROE requirement.

L. Edmonds for the Construction, Forestry, Maritime, Mining and Energy Union

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