Fair Work Act 2009_

s.739 - Application to deal with a dispute

Construction, Forestry, Mining and Energy Union

Lend Lease Project Management and Construction (Australia) Pty Limited

s.739 application to deal with a dispute.

[1] On 10 September 2014 the Construction, Forestry, Mining and Energy Union (CFMEU) lodged an application for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a dispute settlement procedure clause in pursuant to s.739 of the Fair Work Act 2009 (the FW Act). The F10 was lodged by the CFMEU's New South Wales Branch. The Respondent is Lend Lease Project Management and Construction (Australia) Pty Ltd (Lend Lease). Lend Lease is, of course, one of the major developers/construction companies in Australia.

[2] The dispute relates to the CFMEU delegate, Mr Peter Genovese (Mr Genovese), on the Barangaroo site on the western side of the Sydney CBD. Barangaroo is the largest construction project in Sydney. It extends over 22 hectares and has an estimated end value of $7 billion. There are some 1700 - 1800 employees on site. There is extensive media focus on the site. By contrast, the University of Sydney Nanoscience Project, referred to later in this decision, has a value of $83 million and approximately 120 persons on site.

[3] The relevant agreement is the Lend Lease Project Management & Construction/CFMEU Joint Development Agreement Mark 8 2012-16 (AE896830) (the Agreement). It covers the Barangaroo site and other relevant construction sites which were the subject of discussion during the proceedings.

[4] Mr Genovese had been absent from work since 26 March 2014. At first, he was on paid leave during the investigation of a workplace incident. Then he was ill. Mr Genovese had continued to be paid but at the "base rate" under the Agreement. The CFMEU alleged underpayment of some allowances and submitted that he should have received the same take-home pay as if he had been at work at Barangaroo.

[5] The main issue in dispute however, was the basis and timing of Mr Genovese's return to work. Lend Lease refused a return to work at Barangaroo despite Mr Genovese being cleared to do so by his two treating doctors and contrary to its usual practice, the CFMEU submitted.

[6] The CFMEU had demanded that Mr Genovese return to work at Barangaroo on 8 September. At a meeting on 10 September between senior CFMEU New South Wales Branch officials and senior Lend Lease management, this had been refused. Hence, the application was made to the Commission.

[7] Herbert Smith Freehills lodged a response to the application on behalf of Lend Lease on 18 September 2014. It explained that Lend Lease had been advised of Mr Genovese's medical condition during his stand-down as a result of the workplace incident. The stand-down was lifted on 31 July 2014 and the return to work process commenced. Lend Lease denied that it was refusing a return to work at Barangaroo, rather it was committed to the development of a return to work plan consistent with Mr Genovese's good health. Its main concern was workplace stress.

[8] An examination by an Occupational Physician had taken place at Lend Lease's instigation on 17 September 2014. I will not go into details about Mr Genovese's medical condition, on the grounds of privacy, but it is necessary to note that it relates to his mental health. Correspondence from his Consultant Psychiatrist, Dr Paisley and his General Practitioner, Dr Chandler were attached to Lend Lease's response. They outline the nature of his condition and the treatment he is receiving, including medication. Both recommend a return to normal duties for Mr Genovese on a staged basis. Dr Paisley made the point that workplace stress could exacerbate Mr Genovese's condition but felt that his medication would deal with this. He clearly envisaged further detailed discussion with Mr Genovese on the details of the return to work plan.

[9] I convened a conference on 19 September 2014. The CFMEU was represented by Mr I. Latham of Counsel and Mr T. McCauley of Taylor and Scott, Solicitors and senior CFMEU officials. Lend Lease was represented by Mr D. Pearson of Herbert Smith Freehills and senior representatives. This representation continued in the Commission proceedings summarised below. In addition, Mr R. Dalton of Counsel appeared for Lend Lease at the hearings. All the legal representatives were granted permission to appear pursuant to s.596 of the Act.

[10] On 19 September, it was agreed that the Occupational Physicians report would be received by 23 September and then a meeting between the CFMEU and Lend Lease would take place.

[11] A further conference took place before me on 29 September 2014. On 30 September I issued a statement summarising the process agreed. Lend Lease had appointed Irene Bagia, Senior Rehabilitation Consultant of the Injury Management and Assessment Centre to draft the return to work plan for Mr Genovese. That plan, to be prepared following consultation with all the parties, was to be completed by 13 October 2014. The matter was relisted for 17 October. I note that the CFMEU suggested an alternative consultant but Lend Lease's choice was followed.

[12] Dr Louise Crowle, the Occupational Physician, provided a report to Lend Lease dated 25 September which was tabled. Dr Crowle's view was that Mr Genovese was fit to return to his current position on a graduated basis. She noted some 85% of his work as a site CFMEU delegate and Chair of the Safety Committee. She discussed the pros and cons of return to work at Barangaroo and other sites. She then made a recommendation to assist his return to work at Barangaroo, including:

● An external consultant to prepare and monitor the detailed return to work plan;

Finally Dr Crowle leaves open the possibility of return to work at another Lend Lease site.

[13] Ms Bagia's draft return to work plan was provided to Lend Lease and then the CFMEU prior to the 17 October conference. It was dated 10 October 2014. It provided for a staged return to work for Mr Genovese to his previous position of Construction Worker Grade 5 (CW5) at Barangaroo. The document notes that his primary duties related to health and safety and his union delegate role. It states that Mr Genovese had agreed to give up the Chair of the Safety Committee role on his return to work based on medical advice. The plan provided for two days work for the first two weeks, increasing to three days after a further two weeks; four days after a further two weeks; five days after a further two weeks. It further provided for:

● Monitoring by IMAC through liaison with Lend Lease and Mr Genovese;

● Implementation of stress control techniques learnt during the training programs that Mr Genovese had attended;

The plan was to commence on 13 October and be reviewed on 29 October with completion on 12 December 2014.

[14] An alternative version of the Return to Work Plan was tabled by Lend Lease at the conference. Its content was the same but it provided for the return to work to be at the "Nanoscience, University of Sydney" project. I was advised that Mr Murray Coleman, the Managing Director, had decided that a return to work at Barangaroo was not appropriate. Lend Lease proposed a return to work at the "Nanoscience" project on the basis of the alternative work plan document. This was not acceptable to the CFMEU and the matter was set down for hearing.

[15] On 17 October I issued Directions for the filing of submissions.

[16] The CFMEU's application for interim orders was heard on 6 November. A range of material was filed for this hearing which was also relied on in the December hearing. This is summarised below.

[17] It is appropriate, at this stage to set out the provisions of the Agreement which both parties relied on as relevant in the proceedings. They were:

14.1 The Parties commit to striving for innovative solutions to EH&S challenges and achieving best practice on Company projects. Accordingly the Parties agree to:

(a) Implementation of the Company EH&S Policy (Refer to Appendix E) Rehabilitation Policy, and any other Company policy or Global Minimum Requirements developed., following consultation, relating to EH&S issues;

(b) Developing an Alcohol and Other Drug Policy in consultation with Employees, and where required, on a site specific basis. The Company Alcohol and Other Drug Policy will prohibit Employees from operating equipment or attending work on Company projects while the Employee is under the influence of any alcohol or other drug set out in the policy;

(c) Organising work so that the health and safety of all Employees and protection of the environment are recognised as being of paramount importance and is therefore integrated into the Environmental Health and Safety Plan;

(d) Implementation of a project Safety and Environment Plan involving consultation between all necessary Parties to achieve participation and commitment to reducing the potential for injury to occur to people and risk of damaging the environment on Company projects;

(e) Implementation of an EH&S skilling programme on all projects based on a continuous improvement cycle;

(f) Consultative mechanisms to address environment health and safety issues. Such mechanisms may include:

(i) Election of Employee health and safety representatives; and

(ii) An environment health and/or health and safety committee."

16.1 Elected Employee Representatives will be given:

(a) Appropriate time and facilities to assist them in their duties which can include: a lockable cabinet and notice board for the keeping of records, access to a meeting room, access to a telephone and computer for legitimate Union business, access to facsimile and photocopier from existing resources;

(b) The opportunity to attend paid training relevant to the role of Employee Representative, including trade Union training, to a maximum of ten days per annum;

(c) Paid time to attend Employee or Union meetings during working hours, where authorised by the Company prior to the meeting;

(d) Be treated fairly and to perform their role as Employee Representative without any discrimination in their employment;

(e) Formal recognition by the employer that endorsed Employee Representative speak on behalf of Union members in the workplace;

(f) Paid time to address new Employees about the benefits of union membership at the time that they enter employment; and

(g) The opportunity to place Union information on a notice board in a prominent location in the workplace."

19.1 The Parties recognise that one of the aims of the Agreement is to eliminate lost time in the event of a dispute and to achieve prompt resolution. The most effective procedure is for the responsibility for resolution to remain as close to the source of the dispute as possible. To this end, the following processes are agreed:

In the event of a dispute occurring, the following procedure will be adopted:

(ii) Discussion on the project between the site management and the Employee affected or a representative nominated by the employee (including Union delegate);

(iii) Discussion between senior Company management and the Employee affected, or if nominated by the Employee their Representative or appropriate Union official;

(iv) The relevant Union official commits to make him/herself available to be involved at any stage of the procedure as required, or in respect of any potential dispute. The Company agrees to facilitating access to the project for the relevant Union official to represent Employees under this procedure subject to the Union official complying with all site rules and reasonable requests and reasonable directions of site management.

A dispute will not be referred to the next level of the above procedure until a genuine attempt to resolve the matter has been made at the appropriate level.

If a dispute occurs in Victoria or Queensland, and still exists after the above disputes procedure either party may refer the dispute to a State Industry Dispute Panel or Board constituted under Australian Government or State law. This sub clause does not prevent any of the parties to the dispute from referring the dispute to Fair Work Australia (FWA) either before or after any decision or recommendation of the State Board or Panel. If the matter has been referred to a State Industry Dispute Panel or Board constituted under Australian Government or State law, once a decision has been handed down the matter may be referred by either party to FWA within 14 days.

A dispute may be referred to FWA for conciliation and if required, arbitration, in either of the following circumstances:

(i) If the dispute still exists after the above disputes procedure has been carried out, the dispute may be referred by any of the parties to the dispute to FWA; or

(ii) If any party to the dispute refuses or fails to follow any step of the above disputes procedure the non breaching party will not be obligated to continue through the remaining steps and may immediately refer the matter to FWA.

Should a dispute arise and it does not appear to be one which can be settled immediately, the party raising the matter will notify the other party or parties by telephone within 48 hours of the dispute arising and confirm it in writing."

Lend Lease is committed to operating incident and injury Free wherever we have a presence. We believe in the values and demand the behaviours that underpin this vision.

We believe each of us is accountable for safety and therefore expect our people to:

• Be accountable for safe outcomes and for helping others achieve safe outcomes.

We believe that safety must always come first and therefore expect that:

• Safety is our highest priority and first in all our business reviews and decisi9ons.

• We have clear targets and milestones to continuously improve safety performance.

We believe that all incidents are preventable and therefore we:

• Demand and develop safety skills, behaviours and attitudes in everyone we work with.

• Reduce the need to rely on individual behaviours through planning and design solutions.

• Follow simple, clearly-communicated minimum standards.

Lend Lease recognises the significant part we have to play in the protection of the environment in which we work and live. As a leading construction company, we can promote the use of responsible building techniques and sustainable resources in the delivery of our work as well as acting sustainably in our interaction with the communities in which we work. We recognise the legacy of our activities and we are accountable for what we take, what we create and what we leave behind.

We are committed to eliminating harm to people and minimising any environmental impact and will comply with all environmental work and health and safety legislation, regulation and other requirements as a minimum. We will move well beyond compliance to get new benchmarks in environmental, health and safety management wherever possible.

Lend Lease in Australia is committed to ongoing improvement in relation to environment, health and safety and therefore will continually monitor, analyse and learn from our performance. We commit all our operations in Australia to this policy."

[18] The CFMEU sought arbitration of the dispute pursuant to s.739 of the Fair Work Act 2009 (the Act). It was common ground, that the Commission's power to arbitrate to settle this dispute arises from a combination of clause 19 of the Agreement and s.738(b) and s.739(4) of the Act.

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6);"

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so."

[19] The Commission can only arbitrate to settle a dispute if the enterprise agreement contains a dispute settlement clause which provides for arbitration by the Commission to settle disputes. Clause 19 of the Agreement is drafted in broad terms and provides, on its face, the Commission with the power to arbitrate to settle disputes between the parties.

[20] Section 595 further relevantly provides:

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.

[21] The CFMEU sought interim orders that Mr Genovese return to his role at Barangaroo in accordance with Ms Bagia's return to work plan on 12 November 2014. It was agreed at the start of the 6 November proceedings that the matter would be heard to finality on 2 and 3 December.

● Mr Genovese's witness statement of 22 October 2014 (Exhibit L1);

● Mr Genovese's supplementary statement of 6 November 2014 (Exhibit L3).

[22] Mr Genovese summarised his 30 years service with Lend Lease. He emphasises the recognition given to him within the trade union movement and by Lend Lease for his constructive work as a health and safety representative. He has been employed at Barangaroo since October 2011.

[23] Mr Genovese's witness statement, Exhibit L1, sets out in great detail the chain of events following his suspension for the February 2014 workplace incident. It attaches the various items of correspondence and medical reports that are relevant to the case. The crucial aspects are, in my view:

● The correspondence prior to the first Commission conference on 19 September;

● The process of investigation undertaken by Irene Bagia;

● He emphasizes his familiarity with the Barangaroo site and his positive relationships with his work colleagues. This contrasts with the University of Sydney site which has only 5� months to run;

● He points to the unprecedented nature of the Managing Director of Lend Lease being directly involved in the return to work program of an individual worker.

[24] I note the following attachments to Exhibit L1:

- Dr Chandler's certificate of 4 August 2014 of fitness to return to work. He states "I consider he should resume work in his normal job at Barangaroo as it is important that he succeeds back at the same job."

- Dr Paisley's return to work certificate of 7 August 2014. He states: "It is important for him to return to his prior position as he is already familiar with the workplace and colleagues as well as the duties expected of him. A change of workplace may place additional stress on him which could be detrimental to his recovery."

- Dr Paisley's further letter of 26 August referred to earlier. He emphasizes his long experience in his current role at Barangaroo as a making it easier for him to return to work.

- Dr Crowle's letter of 25 September referred to earlier. A range of measures to assist a return to Mr Genovese's previous position at Barangaroo are suggested.

- Further report from Dr Paisley dated 21 October 2014. He states:

"In my opinion Mr Genovese is safe to return to his usual Full-Time employment position and could safely perform the inherent requirements. However it would be best if he could be reintroduced on a graduated basis given that he has not worked for the past 7 months. I have already proposed commencing at 2 days per week and this could be increased by 1 day per week every 1-2 weeks as tolerated. I predict that he would be back to his usual full-time within 1-2 months.

I believe the best course of action for Lend Lease to assist Mr Genovese's wellbeing would be to enact a return to work plan at the Barangaroo site immediately. The ongoing uncertainty regarding his work situation, and looming threat of being moved to another worksite, is likely to have a detrimental effect on his mental health if unnecessarily prolonged. The loss of role, sense of purpose, identity, control and self-esteem are factors associated with unemployment being a well recognised risk factor for Major Depression."

Dr Paisley goes on to say, referring to Barangaroo:

"As long as his workload is effectively managed and he is monitored, I can see no reason why he couldn't return to this site again, especially now that he is well. Moving to another site would mean the loss of the positive aspects of his job at Barangaroo and may lead to more stress (unfamiliar site, new colleagues, additional uncertainty) as well as possibly even a sense of feeling ostracised, punished or demoted as a result of his medical condition. There is no medical reason why he should be shifted to another workplace and indeed a move may indeed be detrimental to his mental health for the reasons outlined above."

On 31 July 2014 Mr Coleman's letter to Mr Genovese advises him that return to work "will now be governed by your fitness for work in accordance with Lend Lease's normal processes".

Ms Bagia's draft return to work plan for Barangaroo dated 10 October.

Lend Lease's draft return to work plan for Nanoscience, University of Sydney.

[25] Ms Bagia's witness statement Exhibit L2 sets out:

● Her "professional opinion that Mr Genovese is able to return to the Barangaroo site in accordance with her draft plan."

● The fact that she did not authorise the return to work plan to the University of Sydney, to be on IMAC letterhead.

"I confirm my professional opinion Mr Genovese will be able to cope with the work and is psychologically ready and able to return to the Barangaroo site".

● Statements of Murray Coleman dated 30 October 2014 (Exhibit D1) and 28 November 2014 (Exhibit D2).

[28] Lend Lease argued that the CFMEU needed to show that Mr Genovese had been treated unfairly contrary to clause 16 and that Lend Lease had not acted in accordance with Clause 14. Mr Coleman's decision was reasonable and responsible, given Mr Genovese's illness and the size and complexity of the Barangaroo site.

[29] Mr Coleman asserts that he wants Mr Genovese to return to work as soon as possible. He further asserts that his decision is based on his view of his duty of care to Mr Genovese and all workers at Barangaroo.

[30] Mr Coleman's statement sets out in detail the chain of events relating to Mr Genovese's return to work from Lend Lease's viewpoint. He asserts that he has taken the same approach to Mr Genovese as he would to any employee.

[31] The main issue for Mr Coleman was "the avoidance or effective management of workplace stress" (Exhibit D1, Para 45). The professional advice did not resolve this issue for him. Accordingly, he made a decision that a return to work at the smaller University of Sydney site would be less stressful and therefore more appropriate. This decision was based on his extensive professional knowledge and experience.

[32] I should note that Lend Lease offered to pay Mr Genovese the same take-home pay as he would have received at Barangaroo if he returned to the University of Sydney site. At the hearing, this offer was extended generally, pending a final decision (see Transcript PN 206 - 220). Therefore, the dispute about underpayment of wages and allowances was effectively removed from contention.

[33] In his supplementary statement (Exhibit D2) Mr Coleman provides further detail about the size and complexity of the Barangaroo site. He points out that delegates and safety representatives are required to deal with issues which do not arise on other sites. These have included bomb-threats, fires and the suicide of a worker. He emphasizes the pressure that is created on all involved by the public attention given to Barangaroo. All of this contrasts with the much more confined layout and low-key nature of the University of Sydney site.

[34] Exhibit D9 was a 30 page document entitled "Lend Lease Project Management and Construction - Return to Work Program - 2012". This contains Lend Lease's policies and procedures for the return to work of injured workers and workers compensation matters. All Lend Lease staff involved in this matter were acting in accordance with these policies and procedures. The goal of a return to work plan is the return of a worker to their pre-injury employment as soon as possible.

[35] I issued a decision on transcript at the conclusion of the 6 November hearing in which I declined to make an interim order. My view was that the matters in dispute should be determined on a final basis as soon as possible. Pending that decision, I decided that the status quo should be preserved and that the balance of convenience was in favour of no interim order being made. To make an interim order as sought by the CFMEU would have pre-empted the final decision.

[36] On 21 November the CFMEU filed in my chambers draft Orders Requiring Production of Documents on Lend Lease. The documents included:

● Meeting notes and correspondence of a range of Lend Lease staff relating to Mr Genovese;

● Various documents and records relating to return to work plans of other employees;

[37] On 21 November 2014, Herbert Smith Freehills, on behalf of Lend Lease, lodged an application to set aside these orders.

[38] A hearing with respect to the proposed orders took place on Tuesday, 25 November.

[39] I chaired a conference which led to an agreement as to the documents to be produced. Essentially, the material was confined to the return to work plan for Mr Genovese and confined to events in 2014. The agreement was read into transcript by me.

[40] The parties also agreed to vary the dates for further submissions prior to the 2/3 December hearing and agreed on the presentation of evidence.

[41] The parties relied on further written submission as follows:

Mr Coleman was the only witness required to given oral evidence and was cross-examined intensively by Mr Latham.

[42] The CFMEU relied on the medical and professional evidence of Dr Chandler, Dr Paisley, Dr Crowle and Ms Bagia. They submit that there was no medical advice recommending a return to work at the University of Sydney site. The specific order sought was that Mr Genovese be allowed to return to work at Barangaroo in accordance with the return to work plan of Ms Bagia dated 10 October 2014.

[43] The CFMEU submits that the breadth of clause 19 of the Agreement means that this dispute can clearly be arbitrated by the Commission. It is further submitted that he has not been treated fairly and has been discriminated against as union delegate, contrary to clause 16.1(d). Mr Genovese has been treated differently to other employees.

[44] Lend Lease framed the question which is to be determined by the Commission as follows: "By not agreeing to a return to work plan that would have Mr Genovese resume specified duties at the Barangaroo site and by imposing a requirement that the graduated return to work be at the Nanoscience Project, has the Respondent failed to treat an Employee Representative fairly and without discrimination as required under clause 16.1(d) of the JDA8?" (Submission, 27 November 2014, paragraph 1)

[45] Lend Lease submits that the CFMEU has not established that this clause has been breached. It further submits it is not appropriate for the Commission "to overrule a judgment call made by a responsible and experienced Managing Director on a complex safety and rehabilitation issue". (Submission, 27 November , paragraph 5)

[46] Clause 16.1(d), Lend Lease submits, protects against unfair or discriminatory treatment in the carrying out of the employee representative function. Mr Genovese does not have special rights or immunities as a union delegate. The CFMEU needs to establish that Mr Coleman's decision is illegitimate or unreasonable. Lend Lease submits that the decision of Mr Coleman was genuine and responsible.

[47] Finally, Lend Lease submits that for Mr Coleman's actions to be discriminatory, there would need to be evidence of another employee with a comparable history and role to Mr Genovese being allowed to return to work at Barangaroo.

[48] Mr Coleman explained his usual role in respect of return to work plans as follows:

"Is part of your job to deal with the return-to-work programs at Lend Lease?---I'm the managing director of the business so I have responsibility for the business overall and accountability for the business overall.

And how many return-to-work plans have you signed off on in your career at Lend Lease building?---None prior to this.

Sorry, none prior to this?---None prior to this, that's right.

I see. And when you say none prior to this what was the reason why you became interested in Mr Genovese's return-to-work program?---Why I became interested?

Yes?---Well, as I think you're aware I was involved with the initial investigation into the matters and then the further investigation into the matters and the additional allegations that had been made. And then - and as part of that I think as you've mentioned I stood Peter down subject to those investigations. And then once those investigations had concluded I met again with Peter to advise him of the findings of those investigations and also to lift that suspension of his work. And then the next step of that was having him organising him to return to work. So it was a natural progression of that process that I'd been involved with.

I see. So it's not actually part of your duties to sign off on return-to-work programs then, is it?---Well, I'm not sure what it means. I don't have a written set of duties.

Well, until this we're agreed that you had never done it before? Is that correct?---That's what I said, yes." (Transcript PN426 - 432)

[49] His summary of his reasons for his decision was as follows:

"And you received that return-to-work plan and you rejected it, didn't you?---Yes.

And why did you reject it?---For a number of reasons. And I think it's all in my statement but I felt that - and I felt fairly strongly about this all the way through. I felt very strongly the responsibility as managing director of the business for the decisions that need to be made here in terms of return-to-work. And I had some concerns as we had read the advice coming through from the different medical practitioners and advisors and at the end of the day I took all that advice, read back through it all and spoke to a number of people including Ms Bagia, including Dr Crowle, including Jane Scarlet and Michael Stoddart. And I think for a range of reasons I felt that whilst the plan per se I think was acceptable in terms of the graduated return to work and with the required close monitoring and all the step-by-step approach which needed to be taken, I felt that and I still feel very strongly that to effect that plan at the Barangaroo site was not an acceptable or appropriate course. And there were a number of reasons for that but I think the predominant reason for me is the scale and pressure cooker environment of the Barangaroo project when compared to other options and specifically the option of being able to return Peter to work at the Nanoscience project."

"The doctors who provided the opinions you thought were subject to limited information. Is that correct?---Well, I think the thing for me was more that I didn't see any evidence that they had taken into account a number of key factors including the change of scale of the Barangaroo project and the amount of scrutiny, the potential public scrutiny that workers on the Barangaroo project have and particularly in comparison to other options. And I saw no evidence of that and when I spoke to Dr Crowle and to Ms Bagia and asked them specifically about that to be honest they were less than convincing from my perspective that they had taken that into account or their responses didn't really address the issues that I was raising." (Transcript PN558)

[50] Ultimately, the issue to be determined in this matter is a narrow one. Both Lend Lease and the CFMEU agree that Mr Genovese should return to his normal duties in accordance with Ms Bagia's return to work plan of 10 October 2014. The difference is about the location. The CFMEU says at Barangaroo, Lend Lease says at the Nanoscience Project, University of Sydney.

[51] The dispute is clearly of importance to both parties. This is evident from the attention paid by senior representatives of both sides and the resources allocated to it. It illustrates the importance of the Commission resolving such disputes by conciliation and, if necessary, arbitration. The potential damage to the economy of disruption on such a major project is obvious.

[52] This case is unusual to say the least. We have the Managing Director of a major employer personally involved in the return to work plan of an employee following a medical condition. There was acceptance of Mr Genovese's role as a virtually full-time delegate and health and safety representative. This was the role to which, it was accepted, he would return to as a CW5. Furthermore, the Commission is required to resolve a dispute about a matter which would usually be dealt with by relatively junior employees in accordance with established policies and practices and based on medical and other professional advice.

[53] It is trite to say that a lot has changed since the Commission had a broad and underpinning arbitral power arising from the legislative foundation of s.51(xxxv) of the Constitution: "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state".

[54] The FW Act, being based on the legislative foundation of the Corporations Power, continues the restriction of the Commission's arbitral function to where the parties have agreed to provide for it as a term of their agreement.

[55] In Construction Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2000) 203 CLR 645 the High Court stated:

"Where parties agree to submit their differences the decision by a third party, the

decision maker does not exercise of judicial power, but a power of private arbitration.

Of its nature, judicial power is a power that is exercised independently of the consent

of the person against whom the proceedings are brought and results in the judgement

or order that is binding of its own force. In the case of private arbitration, however, the

arbitrator's powers depend on the agreement of the parties, usually embodied in a

contract, and the arbitrators award is not binding of its own force. Rather, its effect, if

any, depends on the law which operates with respect to it."

[56] Section 170WL of the Workplace Relations Act 1996 (the WR Act) provided for the Commission to exercise powers under an agreement "to settle disputes over the application of the agreement". The Commission has made it clear that it must properly characterise the nature of the dispute in arbitrating. See Maritime Union of Australia v Australian Plant Service Pty Ltd (PR908236). However, the Commission also took the view that the expression should not be narrowly construed. See Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Holden Limited (PR944673).

[57] Sections 738, 739 and 595 of the FW Act do not contain the words quoted above. The provisions are contained in [18] and [20] above. The reference is to "disputes" only. It is true that many, perhaps, most agreements contain words of limitation. Analysis of the terms of the agreement is necessary. See, for example, a recent decision of Lee C in Australian Workers' Union v Barminco Pty Ltd [2014] FWC 1954.

[58] The Agreement in this case does not contain words of limitation. Clause 19, set out in [17] above, provides for the Commission to deal with "disputes". The Commission's jurisdiction to arbitrate flows from this clause and ss 738, 739 and 595.

[59] It seems to me that the question to be answered by the Commission, as framed by Lend Lease, set out in [28] and [44] above is too narrow. Rather, I would frame the question as: "Is it appropriate for the Commission to exercise its powers by arbitration to settle the dispute? Further, if the Commission considers it should intervene, what orders would be fair and practical in all the circumstances?

[60] In deciding whether to make orders the Commission should have regard to:

● The provisions of the FW Act which give it jurisdiction - ss.738, 739 and 595

● Other provisions of the FW Act such as the object contained in s.3(e):

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and . . ."

● The obligations and rights set out in the Agreement made by the parties.

[61] These questions would need to be answered in respect of any dispute raised by the parties to the Agreement pursuant to clause 19. It applies to all employees whether they are CFMEU delegates or not. Of course whether the Commission would consider it appropriate to make orders is another matter. That will depend, in my view, on the Commission's judgement about what would be fair and reasonable, in the circumstances of the case, to settle the dispute.

[62] I accept that there is a high bar for the Commission to intervene to overturn the decision of management in a case such as this. As I have already noted, this case is very unusual. It should have been resolved by conciliation but in three conferences it could not be.

[63] I do not doubt the integrity of Mr Coleman or question the veracity of his evidence. I accept that he is a senior manager with many years of experience in the construction industry. He has a responsibility to ensure a safe system of work on all Lend Lease sites including Barangaroo, However, Lend Lease have agreed to the Commission resolving disputes in an exceptional case such as this.

[64] I have come to the view that it is appropriate to grant the orders sought by the CFMEU in the circumstances of this case for the following reasons:

(a) Lend Lease set up its own policies and procedures to deal with these matters but has departed from them. At each step, the choices made, such as the selection of Dr Crowle and Ms Bagia were Lend Lease's. Yet, it failed to follow the process to its conclusion.

(b) All of the medical and professional advice is in favour of a return to work at Barangaroo. The views of Dr Chandler, Dr Paisley, Dr Crowle and Ms Bagia are set out in [8], [12], [13], [24] [25] and [26] above.

(c) Mr Coleman's particular concern was that the nature of the Barangaroo site would increase Mr Genovese's workplace stress and therefore impede his return to full health. It would have a possible negative impact on other employees. Of course, these are all matters of judgement. There can never be a 100% guarantee in such matters. There was no advice in favour of a return to work on other sites. Dr Crowle did canvas the pros and cons of other sites but did not recommend in favour of the University of Sydney or any other alternative site.

(d) Section 346 and s.347 of the FW Act provide protections for the role of union delegate. This is not a general protections case. However, Clause 16.1(d) of the Agreement is relevant, in my view, and should be taken into account. I do not find, on a formal basis, that there has been a breach of that clause. I do not believe that is necessary.

I find, however, that Mr Genovese has been treated differently to other employees as a result of his role as union delegate. I will not speculate as to the reason for this.

Mr Coleman admitted that he had not been personally involved in the return to work processes of other employees (See [48] above).

The evidence was that Lend lease had detailed policies and procedures to deal with these issues. It had specialist, experienced staff to deal with them, as one would expect in a large professional employer. There was no evidence that the usual practices had been departed from in other cases.

I agree with Mr Dalton that clause 16 does not give union delegates special privileges but it does emphasise that they must be treated fairly. The fact that they are not treated in the same way as other employees is a factor that the Commission is entitled to take into account in the exercise of its judgment.

(e) A return to work at the University of Sydney project is relatively short term and clearly does not involve a role comparable to the role that Lend Lease has accepted for Mr Genovese over many years. In the absence of professional advice that this should occur, there is disadvantage to Mr Genovese even with the resolution of the differential wage issue. Another dispute is likely to arise, in my view.

(f) There is no evidence that a return to work at Barangaroo will have a negative effect on industrial harmony on the site.

[65] Accordingly, in order to resolve the dispute which has arisen and is being dealt with in accordance with clause 19 of the Agreement, I order that Mr Genovese be returned to his normal duties at the Barangaroo site, in accordance with the return to work plan of Ms Bagia dated 10 October 2014. The content of that plan was agreed between the parties.

[66] It seems to me appropriate that this occur following the forthcoming Australia Day long weekend.

[67] An Order to this effect will accompany this decision.

I. Latham of counsel with T. McCauley, solicitor for the CFMEU;

R. Dalton of counsel with D. Pearson, solicitor for Lend Lease.

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