(Emphasis added.)
82 The primary judge rejected the contention by the AWU of an "accepted, and well understood meaning" that extended the notion of de-isolation to equipment testing, air freeing or leak testing and found that the prevalent understanding about what de-isolation involved was governed by the WMS.
83 In his conclusions about this part of the case, the primary judge rejected the idea that the ICC had significance as any form of work instruction in its own right and he rejected the suggestion that de-isolation extended either generally to equipment testing, or to manipulation of particular valves in connection with that work:
89 Returning to the respondent's reliance on the ICC, of the two presently contentious senses in which the term "de-isolation of equipment" might have been understood by the applicant as recipient of the notice of 3 February 2015, that referred in the WMS manual is, in my view, the more natural one. It refers to the de-isolation of equipment as such, and is, therefore, more closely aligned with the specific tasks which would, in the normal course, be carried out by operators, and which the applicant would understand to be the subject of the ban. By contrast, the ICC is concerned not with tasks or functions but with recording the positions of points at particular stages in the process of taking some equipment out of, and of returning it to, service. Insofar as it deals with the points that must be changed from one state to another, it records what has been done rather than, for example, instructing what should be done. Nowhere is this clearer than in the evidence of Mr Jackson. In short, of the two documents, the WMS manual is the more closely related to the work as such, and is the more directly concerned with marking out de-isolation as an activity of work.
90 For the above reasons, I would reject the proposition that the expression "de-isolation of equipment" in the respondent's notice of 3 February 2015 would reasonably have been understood by the applicant as referring to every aspect of operators' work that would be performed during the period that the ICC was headed "[De-isolation] in Progress". To the contrary, in my view it would have been so understood as referring to the specific function of de-isolation as such. It would not have been so understood as encompassing equipment testing, air freeing or leak testing. Nor did it refer to the manipulation of valves associated with those activities, notwithstanding that such manipulations were mentioned on the ICC. It follows that the respondent's ban on work of that kind was not protected industrial action within the meaning of the FW Act.
(Emphasis added.)
84 In my view, those conclusions reflected the evidence to which the primary judge referred. I will refer to that evidence in more detail shortly.
85 It is convenient, however, to make the observation at this point that, stripped of the attempt to colour the meaning of the WMS instructions by some subjective interpretation of them (which seems, if I might say so, to be foreign to the use to be made of instructions of this kind, having regard to safety implications) the AWU's case could not ultimately depart from the terms of the WMS manual. Its argument about the role and significance of the ICC was one which was necessarily confined by the use of the ICC within the procedures directed by the WMS manual.
86 No error was shown in the understanding of the primary judge which was recorded by him at [89]. He had a particular advantage as the trier of the facts. Furthermore, as I shall return to mention, I have considerable reservations about the notion that an enterprise in Esso's position can be told what its safety procedures signify as a matter of purely textual debate or subjective assertion.
87 First, however, I shall endeavour to trace, in a little more detail, some of the other evidentiary strands with which it was necessary for the primary judge to deal in his comprehensive discussion of this issue.
88 The course of the industrial dispute which was revealed in evidence before the primary judge, and referred to in his findings, was also consistent with his understanding of the process of de-isolation. It is apparent that the AWU modified its position about the extent of the bans it had imposed, in response to Esso's success in having members of staff perform some of the necessary work.
89 Initially, after the advice given on 3 February 2015, which took effect on 12 February 2015, AWU members banned de-isolation work in the sense referred to in the WMS. The effect of that action, and Esso's response, was referred to as follows by Mr James Kristeff, Maintenance Superintendent at Longford:
44. The de-isolation ban commenced on 12 February 2015 as notified, and has not ceased.
45. The ban had a paralysing effect on all work that governed by the WMS. Consequently, Esso was forced to decide whether it was able to continue to operate the Longford Plant safely.
46. On 25 February 2015, Esso decided to make the following alternative arrangements to cope with the de-isolation ban:
(a) instruct appropriately qualified managerial staff to perform de-isolations; and
(b) triage and prioritise certain work so that managerial staff could perform critical de-isolations.
47. Esso consulted with supervisors prior to making a decision as to whether to implement this proposal.
48. Following that consultation, on 26 February 2015, Esso implemented this arrangement. Managerial staff began to perform the de-isolation in lieu of employees. That is:
(a) operators performed recommissioning work, equipment testing, air freeing, and leak testing;
(b) supervisors then stepped in to perform the de-isolation; and
(c) the operator would then step in and complete the work by removing any temporary defeats and perform acceptance testing, and thereby move to close out the work permit.
49. This enabled Esso to move through the critical work activities. It significantly reduced the impact of the de-isolation ban.
90 The primary judge recorded (at [44]):
44 … in response to the respondent's ban on the "de-isolation of equipment", the applicant had instructed its supervisors to perform de-isolations. It seems that there were at least two, and possibly more, de-isolations performed by supervisors in the period which followed the respondent's notice of 3 February 2015. Ross Dunbar, the Operations Superintendent - Gas Asset of the applicant (whose normal responsibilities lie in the area of the applicant's offshore facilities but who was temporarily working at Longford in the co-ordination of de-isolation activities at this time) said in his affidavit that the first de-isolation by a supervisor was done on 19 February 2015. Robert Steed, an operations technician and a delegate of the respondent, said in his affidavit that de-isolations were done by supervisors on 26 February and 3 March 2015. It is sufficient to find that, by the latter date at the latest, it would have been apparent to the respondent and its members at Longford that the applicant had developed a modus operandi by which equipment de-isolations, banned by the respondent since 12 February 2015, could be done by supervisors.
91 Mr Kristeff said:
50. On 2 March 2015, operators began to advise their supervisors that they would not perform air freeing or leak testing required to be performed before de-isolations.
51. I am informed that on 4 March 2015 a meeting occurred between Esso managerial staff and AWU representatives to discuss this issue. At that meeting were Rob Mackie (Longford Plant Operations Superintendent), Ross Dunbar (Operations Superintendent - Gas Asset), Rob Steed (AWU delegate), and Kain Jackson (an AWU member who refused to perform air freeing/leak testing), amongst others. I am advised and believe that Rob Steed:
(a) advised that it was the AWU's position that the de-isolation ban included air freeing/leak testing; and
(b) confirmed that all 81 members of the AWU were aligned to that position.
52. I am informed that there was a 30 minute break between the meeting to allow Esso and the AWU to reconsider their positions. When the meeting was recommenced, I am informed that the AWU representatives:
(a) confirmed their position; and
(b) advised that their members would refuse to perform air freeing/leak testing if requested to do so.
53. On the basis of this information provided to me, I decided to call Ben Davis, AWU Victorian Branch Secretary, that evening. Melinda Fairbanks, Human Resources, was present when I telephoned Mr Davis. In that conversation:
(a) I said that air freeing, purging and pressure testing (i.e. leak testing) are not classified as de-isolations;
(b) I invited Mr Davis to consult with his members and delegates at Esso about the position that has been taken; and
(c) Mr Davis advised that he would consult his delegates at Esso.
54. Mr Davis called me and Ms Fairbanks shortly afterwards and said that it was the AWU's view that the ban on air freeing/leak testing was part of the de-isolation ban.
92 The primary judge recorded the following (at [45]-[46]):
45 Over the period 28 February to 2 March 2015, preparations began for the de-isolation of the Gas Plant 1 rich oil fractionator tower. The scoping of these works included operations supervisors reviewing the ICC and drawings, and walking the process lines in the field. On 3 March 2015, as part of these preparations, supervisors were involved in de-isolating the rich oil fractionator tower level bridle, which was required to allow the tower de-isolation to commence the following day.
46 At about 4:45 pm on 4 March 2015, Messrs Dunbar and Mackie met with Messrs Steed and Jackson. Mr Steed told Messrs Dunbar and Mackie that it was the respondent's position that the de-isolation ban included air freeing and leak testing, and that all members of the respondent were aligned to that position. After a 30 minute break in this meeting, Mr Steed reiterated that this was the respondent's position, and that its members would refuse to perform air freeing or leak testing if required to do so. James Kristeff, the Maintenance Superintendent at Longford telephoned Mr Davis, who confirmed what Mr Steed had said.
93 However, after proceedings in the FWC on 6 March 2015, the AWU's position was further refined. The FWC recorded the respective parties' positions on 6 March 2015 as follows:
…
In this present matter, the AWU considers that the bans in (e) referred to on air-testing, equipment testing, air-freeing and leak testing as included within that paragraph. Esso disagrees.
…
Various phrases were used by the AWU to describe their understanding, including "custom and practice" and "the ordinary usage in the workplace." A number of phrases were used. The employer on the other hand relies on the definitions used in safety manuals produced by them in accordance with their extremely important obligations to provide a safe workplace. These obligations are in any sense critical. Their ability to function depends on implementation of proper safety procedures.
…
94 The FWC concluded that equipment testing, air freeing and leak testing was not notified in the notice on 3 February 2015, and the s 418 order made on that day prohibited bans on that work.
95 Then the AWU's position changed. The AWU then commenced to contend that although such work was not banned as such, manipulation of any valve listed on an ICC for the purpose of that work fell within the earlier notification.
96 The primary judge traced the development of this new position. On 7 March 2015, particular work (air freeing and leak testing) was scheduled and three employees were assigned to perform it. The primary judge said (at [55]-[64]):
55 One of those employees was Gary Jones, an operator and a member of the respondent. On the morning of 7 March 2015, the members of his shift held a meeting. They were addressed by their delegate, Karl Tschugguel. He informed them of the Commission's order, and what it required. He said that they were not to ban air freeing and leak testing work. There followed a discussion about what could be done without breaching the order. The operators decided that, if points were listed on the ICC, they were de-isolation work and were covered by the ban. They decided that, under the ban, it was open to them to refuse to manipulate the points or valves.
56 At approximately 9:00 am, Mr Lloyd met with Mr Jones. They discussed the leak testing to be performed on the propane header, the pressure rating on the vessels, and the scope of the work generally. Mr Lloyd came away from those discussions with the understanding that Mr Jones was going to perform the leak testing.
57 Mr Jones then spoke to Mr Tschugguel, and informed him that Mr Lloyd had requested that he perform leak testing work on the propane header. He sought clarification as to what he could and could not do as part of the protected industrial action. He told Mr Tschugguel that a bleeder valve on the propane header would have to be manipulated before he could conduct pressure testing. Mr Tschugguel then asked Mr Jones to access a computer to check the electronic ICC. Having done so, Mr Jones said that the ICC was "in place", and that it also listed the bleeder valve as a tagged valve. The valve was also tagged "in the field". On the basis of this information, Mr Tschugguel advised Mr Jones that, if a supervisor manipulated the bleeder valve and recorded "de-isolation in progress" on the ICC, both on the computer and in the field, he should comply with the Commission's order and perform the pressure test.
58 At about 9:30 am, Mr Jones returned to Mr Lloyd's office and informed him that he would not shut the bleeder valves to facilitate the leak testing. Mr Jones said that he was refusing to do this because the open/shut status of bleeders was recorded on the ICC, and, accordingly, work involving the manipulation of bleeder valves formed part of the de-isolation process. It was, therefore, as Mr Jones informed Mr Lloyd, covered by the ban imposed upon de-isolations of equipment notified on 12 February 2015. Mr Jones said that he was willing to perform the leak testing if a supervisor manipulated the bleeder valves. Mr Lloyd's response, as stated in his evidence-in-chief, was as follows:
I questioned that. To me it wasn't part of a ban. I was under the impression we were okay to purge and pressure test, and there was no protected action around that. I felt I understood the ban on de-isolation of equipment. I certainly wasn't asking him to de-isolate any equipment. I was asking him to perform a leak test. So I suggested he think about that, because I was just asking him to manipulate some bleeders so we could start the pressure test.
59 According to the evidence of Mr Lloyd, Mr Jones also said that he had made this decision after consulting his delegate, Mr Tschugguel. In his evidence-in-chief, Mr Jones denied that, adding that Mr Tschugguel was present at the time, as was another of the respondent's delegates, Brian Rawnson. Neither Mr Lloyd nor Mr Jones was cross-examined about this point of disagreement. However, what I have said in para 60 of these reasons is taken from the unchallenged evidence of Mr Tschugguel, from which it appears that Mr Jones had indeed had the consultation referred to in Mr Lloyd's evidence.
60 Mr Lloyd then asked Mr Tschugguel to come to his office, which he did. He (Tschugguel) confirmed that he had instructed Mr Jones not to shut any bleeder valves to progress the leak testing. He said that he had told Mr Jones to undertake pressure testing only after a supervisor had put the "de-isolation in progress" on the computer and manipulated the bleeder valve listed on the ICC. According to Mr Tschugguel's evidence, the respondent's members were not refusing to perform air freeing or leak testing as such.
61 This meeting was followed by another at about 10:45 am, also in Mr Lloyd's office. In addition to Mr Lloyd himself and Mr Tschugguel, Mr Jones and Rob Mahon, Operations Supervisor at Longford, were present. Mr Lloyd stated the applicant's position that the manipulation of bleeder valves was work that formed part of air freeing and leak testing. Mr Tschugguel then asked Mr Rawnson, to join the meeting. Having done so, Mr Rawnson confirmed, on behalf of Mr Tschugguel and Mr Jones, that it was the respondent's position that bleeder valve manipulation formed part of the ban on the de-isolation of equipment. He confirmed that the respondent's members would perform air freeing and leak testing once all bleeder valve manipulations had been completed by supervisory staff.
62 At about 3:30 pm, there was yet another meeting in Mr Lloyd's office, convened by Mr Kristeff. In addition to Messrs Lloyd and Kristeff, Messrs Rawnson and Tschugguel were present, as was Rob Mackie, Operations Superintendent at Longford. At the meeting, Mr Kristeff asked Messrs Rawnson and Tschugguel whether they had been provided with the Commission's order made the previous day. They said that they had. Mr Kristeff said that the Commission had made a ruling about what a de-isolation was, which confirmed the applicant's view that leak testing and air freeing were not part of the ban. He said that de-isolations were defined in the WMS, and did not include leak testing and air freeing. He directed Messrs Rawnson and Tschugguel to perform leak testing and air freeing when that work became available later in the day.
63 Messrs Rawnson and Tschugguel did not agree with Mr Kristeff. They held to the respondent's position as explained to Mr Lloyd earlier that day. They said that they would not perform the manipulation of bleeder valves because that was identified on the ICC. Mr Kristeff asked them, and they agreed, to confirm their position after speaking to Mr Steed. The meeting concluded on that note.
64 At about 4:15 pm on 7 March 2015, Messrs Rawnson and Tschugguel met with Messrs Kristeff and Mackie in Mr Kristeff's office. They telephoned Mr Steed, who joined the conversation on speaker phone. He told Mr Kristeff that the respondent's position was that its members would not shut bleeder valves as part of air freeing or leak testing, because bleeder valves were identified on the ICC. He said that supervisors would need to shut bleeders, and to direct operators what to do subsequently, if air freeing or leak testing were to proceed.
(Emphasis added.)
97 It is noteworthy, in my view, that the reference point adopted by the AWU and its members at that point was that particular valves were "listed" or "identified" on the ICC. It was no longer asserted, as it had been in the FWC, that equipment testing, air freeing and leak testing were, as a matter of custom and practice, regarded as part of de-isolation. Before the primary judge this broader contention was re-introduced, but the evidence of a number of witnesses (from both the AWU and Esso) was consistently to the effect that the ICC was a list of the status of particular valves (i.e. a record of what had been done), rather than any form of work instruction.
98 The evidence before the primary judge was that the WMS was the source of instructions about duties and tasks. For example, the primary judge recorded (at [74]):
74 Under cross-examination, Mr Steed agreed that he had given evidence in support of the respondent's position in the Commission, where he had produced, and relied on, Sections 4.5 and 4.6 of the WMS manual. He accepted that he saw the manual as crucial in setting out the duties and tasks at Longford, that the manual was a critical document on site, that there were copies of it in the operators' workplaces, that it was consulted by both operators and management, that there were electronic copies of it available to operators, and that there had been training, including refresher training, provided with regard to the manual. He was taken to the evidence he had given in the Commission, from which it became clear that he was well aware of the various definitions in the WMS manual, including the definition of "de-isolations".
99 After referring to the evidence of further AWU witnesses, the primary judge said (at [78]):
78 That was the evidence led by the respondent in support of its contention that the term "de-isolation of equipment" had an accepted and well-understood meaning amongst operators, that is to say, a meaning that would comprehend, without ambiguity, the whole process of returning the equipment to service, including air freeing and leak testing. The evidence was, however, ultimately equivocal, and not really helpful in the present context. For one thing, the acceptance by the witnesses, specifically Mr Steed, of the central importance of the WMS manual - and, one might add, the reference to that manual in the evidence-in-chief of Mr Jackson - makes it inevitable that the court would find, as I do, that the term "de-isolations" has an official, or authorised, meaning. If it is the respondent's evidentiary case that the term also has an everyday meaning which differs from that in the manual, that would produce the result that there were two meanings, something which the respondent's contention does not, and could not, contemplate.
100 Then the primary judge referred to evidence of typical daily work instructions which also, in a highly practical sense, distinguished between purging (air freeing), pressure testing (leak testing) and de-isolation (or removing the ICC). The primary judge said (at [82]):
82 Mr Lloyd's evidence as to the language used in the daily notes, and as to the use of those notes in the allocation of tasks each shift at the workplace, was both more specific and more reliable (ie in the sense that it was based on documentary materials) than the high-level references by the respondent's witnesses to what they do in the process of de-isolation. Evidence of the latter kind did not have the focus sufficient to establish the terminological discriminations that the respondent's case involved. By contrast, the daily notes, and the evidence given in connection with them, dealt with actual situations which had arisen in relevant contexts, and did so at a very low level, where the operators themselves were intimately involved. Based largely on those notes, I would find that, as a rule, operators tend to be instructed to purge, to pressure test, or to de-isolate (or "remove the ICC") a piece of equipment, as Mr Jones was on 7 March 2015. There was nothing in the daily notes that would provide support for the respondent's case that, in the normal course of their duties, operators tended to be instructed merely to "de-isolate" some piece of equipment which required all the relevant stages to be carried out.
101 The primary judge then said (at [84]) (in a passage which I set out earlier):
84 All things considered, I am not persuaded that, in a normal operational setting at Longford, the term "de-isolation of equipment" had an accepted, and well-understood, meaning as proposed by the respondent. To the contrary, at least in a practical context involving the identification of work and tasks, the term related to de-isolation as such. When air freeing and pressure testing were required to be carried out, they were referred to in terms - either those terms or, in the case of the former, "purging", and, in the case of the latter "leak testing".
102 The understanding which the primary judge said was crucial was Esso's, for the following reasons (at [86]-[88]):
86 The task for the court is not the conventional one of the construction of a document, with a view to understanding what the author intended. The document with which we are concerned here was a notice: its purpose was to convey information. Thus the question is not what the author intended, but what the addressee would reasonably have understood from the terms used in the notice. Two things follow from this. First, if the notice might reasonably carry more than one denotation, I see no reason to err on the side of the giver of the notice, thereby permitting him or her to take advantage of his or her own ambiguity. The FW Act leaves it entirely to the giver of the notice to identify the "nature" of the action intended to be taken, and it should not be open to him or her to complain if the terms chosen leave scope for the addressee to see things differently from what the giver, subjectively, might have had in mind. Secondly, it would not be sufficient for the respondent to establish what its own members understood by the presently contentious expression. Even if they knew what they meant by "de-isolation of equipment", the question is what the applicant's management would reasonably have understood by that expression.
87 Although I have noted above that the judgment of Wilcox and Cooper JJ in Davids Distribution does not directly provide the answer to the present question, one aspect of that judgment which is here valuable is the identification of the purpose of a notice of industrial action given under the predecessor to s 414 of the FW Act. Their Honours saw the purpose as enabling the party who would be adversely affected by the intended action to take appropriate defensive action. Their Honours recognised the importance of a defending employer, for example, having the opportunity to protect sophisticated equipment from damage. In my view, it is no less important for the affected party to know what functions, operations, etc will not be touched by the intended action. To take an example far from the facts of the present case, an employer handling perishable foodstuffs should be entitled to assume, with confidence, that its operations will not be affected beyond those notified to it under s 414 of the FW Act. Understood in this sense, the notification of industrial action has a negative, as well as a positive, dimension, each of which may be perceived as within the broad purpose of the statute.
88 In the present case, the respondent's notice of 3 February 2015 was given in the knowledge of the applicant's forthcoming shutdown: indeed, the bans notified were to take effect on the day the shutdown was due to commence. The inference that the bans were intended to affect the progress of the shutdown is irresistible. In this setting, the applicant would reasonably have understood the notice as referring to the respects in which the shutdown would be affected. That the applicant was entitled to use the notice as an indication of what it would be unable to do, and, no less importantly, of what it would be able to do, during the shutdown was, in my view, a critical aspect of the process of collective bargaining mandated by the legislation, in its application to the circumstances of these parties.
(Bold emphasis added.) (Italic emphasis in original.)
103 Both parties to the appeal agreed that useful guidance was available from the judgment of the High Court in Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451. At [22], the High Court said:
22 … The case provides a good example of the reason why the meaning of commercial documents is determined objectively: it was only the documents that spoke to Pacific. The construction of the letters of indemnity is to be determined by what a reasonable person in the position of Pacific would have understood them to mean. That requires consideration, not only of the text of the documents, but also the surrounding circumstances known to Pacific and BNP, and the purpose and object of the transaction. …
(Footnotes omitted.)
104 In the present case, the "transaction" was the notice of intended industrial action which was required to specify the "nature" of the intended industrial action. The construction to be given was that which a reasonable person in the position of Esso would understand the notice to mean, what it would understand the ban to involve and, as the primary judge found, what the ban would not involve.
105 On the appeal, it was argued that the primary judge had failed to discuss, and therefore gave insufficient weight to, evidence by two senior Esso employees, Mr James Kristeff and Mr Ross Dunbar. The evidence was said to involve concessions by those employees about the significance of the ICC.
106 Before I refer to that evidence, I will refer to the evidence of a third Esso senior employee, Mr Mark Lloyd, to whom the primary judge referred in another connection at [82]. Mr Lloyd was Operations Supervisor - Longford Plants. In his cross-examination, the following evidence was given:
[MR BORENSTEIN:] All right. Now, you would agree, wouldn't you, that the ICC sets out the various actions that need to be taken by an operator, both when equipment is being isolated and when equipment is being de-isolated?---It sets out the isolation points that need to be manipulated.
And then manipulated back again for de-isolation?---Correct.
107 That evidence was consistent with the findings made by the primary judge.
108 Mr Kristeff was Maintenance Superintendent at Longford. His evidence was less definite, but I would not regard it, read fairly and fully, as involving any concession of the kind suggested in submissions. The evidence in cross-examination included:
[MR BORENSTEIN:] … And the certificate also then goes on to identify all the particular steps that need to be taken to bring the equipment back online. That's correct, isn't it?---Well, it lists the - all your points that you want to account for on that ICC.
…
But can you agree with me that when it talks - when you get to the stage where the ICC is marked as de-isolation in progress, what happens then it whatever steps need to be taken to bring the equipment back online are then taken?---Yes. I would agree with that.
Yes. And then when those items of work are completed, the certificate is marked as de-isolation confirmed; correct?---Once all the de-isolations had been confirmed, yes.
…
Yes. Okay. Now, to your knowledge, the steps that could be required to be taken, once the equipment is put into de-isolation in progress, could include - depending on the equipment, obviously, could include equipment testing?---Yes.
Could include air freeing?---Yes.
Could include leak testing?---Yes.
Could include removing energy isolations?---Well, that's the final step. Yes.
…
Yes. Those things that I mentioned to you - - -?---Yes.
- - - that list of things, they are actions or activities that are carried out - depending on the equipment in question, are carried out between the stage when the ICC is marked de-isolation in progress and the stage when it's marked de-isolation confirmed?---Yes.
…
Okay. And you would agree that if a - an item of work or a piece of equipment is noted in the ICC as requiring manipulation to achieve de-isolation, that it's reasonable to refer to that as part of the de-isolation process?---Say that again.
(Emphasis added.)
109 At this point, Mr Kristeff resisted the cross-examiner's proposition, and did not later accept it. His resistance led to a more extended exchange of questions and answers which included the following:
[MR BORENSTEIN:] But whatever it's for, it's marked in here. It has to be done, doesn't it?---It has to be logged and - - -
As being done?---As being the status.
Yes. Well, that's just playing with words, isn't it?---No, no. It's the status of whether it has - whether it has been manipulated from one stage or- - -
That's right. Well, okay. It either has to be opened or closed, whichever way you're going?---Correct.
Correct?---Yep.
And until that's done you can't mark off the de-isolation as completed?---Correct.
And that means it's part of the de-isolation that the ICC requires?---It records the - the - it records the steps you've taken.
Yes. And it records the steps because it requires you to do those steps before you can say that de-isolation is complete. That's correct, isn't it?---Well, it records them so you - you don't put something back into service that you've missed. That's right.
…
But if they are on the ICC then they are part of the de-isolation, aren't they?---Under - not under my definition of - - -
…
They are part of the steps in the ICC, are they not?---Yes.
Okay. And because they're in the ICC they are part of the de-isolation process under the ICC, aren't they? They have to be done, don't they?---They would have to be, yeah.
…
[THE WITNESS:] ---… if you're going to manipulate your bleeder valves for air freeing or purging or pressure testing then it has nothing to do with the de-isolation.
[MR BORENSTEIN:] But these - like, these valves are noted in the ICC?---Yep.
They have to be done?---Yeah, but you're going to manipulate them numerous times, right? That's what I'm - that's what I'm saying.
…
We're talking about equipment that's on the ICC. You have to follow the ICC. That's the rule, isn't it?---Correct.
It's a safety rule as much as anything else, isn't it?---Well, it's a catch-all, yeah.
Yes. But it's a safety rule so people know what has happened before and they don't get caught out?---Correct.
Yes. And the ICC tells you, because somebody has drawn up this plan before they started - it tells you what you have to do step by step. That's what the ICC is for, isn't it?---Yep.
So you have to follow those steps to follow the ICC?---Yeah, but it's - it's not - it's not in order.
No, it's not in order?---No.
I was going to ask you that. It's not in order?---Yep.
But it sets out all the steps that need to be taken?---As a final close, yep.
To get to that?---Yep.
To get to that, yes?---Yeah.
And the system also describes the process of bringing the equipment back online as de-isolation. Now, we've been through that and you've agreed to that, and that's right, isn't it?---Yes.
The document says so. The document doesn't say any other words, does it?---No.
And so the operators out in the field who are working with this document are working with a document that describes what they do as de-isolation. That's correct, isn't it?---That's correct.
Yes. And so they're talking about doing a de-isolation of equipment why would you think that they were referring to anything else?---Because that's the electronic version versus - there's a lot of - lot of things in the manual that relies on going back to definitions, right, and that's why we have a definitions page.
(Emphasis added.)
110 The following points may be noted from this exchange:
air freeing and pressure testing is separate from de-isolation;
valves may need to be manipulated a number of times, and not just for ultimate de-isolation;
the ICC is an overall safety guide;
the ICC does not record the order in which valves are manipulated (i.e. it is not a work method but a record);
ultimately, the WMS is the guide.
111 Mr Dunbar was Operations Superintendent - Gas Asset. His cross-examination included:
[MR BORENSTEIN:] … The ICCs aren't generic, are they?---They're developed for a specific piece of equipment per the manual.
That's right. So they're not generic, are they?---No.
So when a particular piece of equipment has to be worked on you have to follow the ICC, don't you?---You put the ICC in place to perform work and you - - -
And you do what's in the ICC, don't you?
MR PARRY: Can we just slow down? Let the witness finish his sentences. If my learned friend could do that.
THE WITNESS: And then you reinstate the equipment per the work management system.
MR BORENSTEIN: Yes. And the steps you have to take are the steps that are set out in the ICC for that piece of equipment, aren't they?---The steps you need to take are defined here. The air freeing, the - to reinstatement of your air free, your leak test. If I need to do those things it's not documented in the ICC. The ICC just lists the valves, the energy isolations that we put in place to take that equipment out of service.
If you do not attend to each of the items that's listed in the ICC, the ICC cannot be marked off as "de-isolation confirmed", can it?---That's correct.
Okay. Now, isn't the corollary of that that you must do everything that's in the ICC in order to achieve a de-isolation?---To remove the energy isolations, yes, you need to de-isolate the points that are listed in the ICC.
And when you achieve that the job is marked as "de-isolation confirmed"?---That's correct.
Yes. And the terminology, as you said before, aggregates all those tasks that you need to do that are listed in the ICC and describes them as "de-isolation", doesn't it?---I don't believe that's correct.
But I thought you told us that a moment ago?---No. I believe that the electronic system uses the term "a grouping de-isolation progress" - - -
And the electronic system is that, isn't it?---The work management manual defines the sub - the tasks that need to be done.
(Emphasis added.)
112 I do not see any inconsistency between the evidence by Mr Kristeff or Mr Dunbar and the findings made by the primary judge about the role, function and significance of an ICC.
113 During the appeal, two examples of an ICC were tendered. One was headed "Deisolation in Progress", and the other "Archive". The archive example showed a period of three days between commencement and completion of de-isolation.
114 The terms of such certificates were the object of central attention before the primary judge. Notwithstanding the passage of several days, Esso's operational procedures distinguished between de-isolation, as such, occurring in that period and other procedures such as air freeing, equipment testing or leak testing which might also require manipulation of valves listed on the ICC. In my view, on the evidence before the primary judge, he was correct to conclude that a ban on de-isolation did not extend to a ban on those procedures, nor upon manipulation of valves connected with them.
115 As I understand the evidence to which we were specifically directed on the appeal, the ICC has nothing to say about equipment testing, air freeing or leak testing. In some circumstances, those processes may be carried out in the absence of any ICC at all. In other cases, where an ICC has been put in place as a checklist for the purpose of shutdown or recommissioning, the ICC is not directed to those tasks either. Rather, the ICC is a checklist directed to the final processes of energy restoration. Its record of valve positions and status is directed to that purpose and does not govern (even though it may perhaps record) any manipulation for a different, more immediate, purpose.
116 Thus, manipulation of a bleeder valve for the purpose of leak testing (pressure testing) was not "de-isolation". Any change in status which was recorded on the ICC was not directed to the process of de-isolation as such, but to a distinct and earlier process. In my view, the primary judge was correct to accept the evidence of both Esso and AWU witnesses to the effect that an ICC is a record, not an instruction. That it might be used to verify valve positions, or as a checklist, does not invest it with the status of a guide to work. The simple fact that it does not record an order of valve manipulation makes that clear enough, I would have thought.
117 In my view, however the matter is examined, no error in the analysis by the primary judge of the issue has been demonstrated.
118 There are two further aspects of the present matter which seem to me to warrant some additional emphasis.
119 The first is, as the primary judge observed, that the requirements of s 414(6) cannot be seen as operating for the benefit of whoever gives a notice which the subsection requires. The correct identification of whether action is protected industrial action serves to mark the limits of the immunity given by s 415, and the limits on the operation of s 421 of the FW Act as well as s 418. The recipient of such a notice (whether employer, union or employee) is entitled to sufficient precision to identify what is, and what is not, immune from legal challenge.
120 The second matter is more specifically related to the facts of the present case. The discussion about "de-isolation" was not a discussion about ordinary English. It was a discussion loaded with technical and operational significance. That technical and operational significance extended to important questions of safety. It assumed a body and application of expert, highly sophisticated, engineering principles reflected in the operation manuals. That body of knowledge and expertise was not the province of individuals; it was an accumulated, synthesised, technical wisdom having far-reaching consequences. It is no disparagement of the knowledge and appreciation of individual employees to say that what was crucially important (and consistent with authority) was what Esso, as operator of the Longford plant, would understand from the notice of industrial action which it received. Whether particular forms of industrial action would be protected (i.e. whether they fell within or outside the notification) could be critical to Esso's operational response and its evaluation of the prudence of that response, a question which might go well beyond industrial consequences.
121 In my view, there is a limit to the extent to which any form of textual debate about Esso's manuals and engineering practices in the isolated atmosphere of a courtroom could be used to impose or attribute some meaning about those manuals and engineering practices which was not Esso's own.
122 In my respectful opinion, the conclusions by the primary judge at [90] identify precisely the problem with the AWU's contention. That case was, in effect, that a court should find and declare that the operator of the Longford plant had, or should have had, a different understanding of its own manuals and processes than it did in fact have. The present is a case where any such approach might involve unanticipated dangers which a court or industrial tribunal is not equipped to assess.
123 Moreover, the present seems to me to be a case where the primary judge had an undeniable advantage in the assessment of the evidence. Part of the AWU's argument was that the primary judge gave too little, or too much, weight to parts of the evidence of senior Esso managers. Judgments of that sort, in a case of the present kind, are ones which a judge at first instance is best placed to make, unless the advantage which the judge had was not used, or was squandered. Neither contention is applicable to the present case. The primary judge made a conscientious and detailed evaluation of the evidence. In such a case, an appellant must identify some error, or other reason for intervention, to require an appeal court to attempt some even more remote, and truncated, consideration of the same evidence, while lacking all the natural advantage of the primary judge.
124 No error of that quality (or any error) was able to be shown in the present case despite the diligent and persistent efforts of counsel for the AWU.
125 I would reject this challenge. The first two declarations made by the primary judge should not be disturbed.