Labor Council of New South Wales and others and Axis Metal Roofing and others [2004] NSWIRComm 53

Labor Council of New South Wales and others and Axis Metal Roofing and others [2004] NSWIRComm 53 - NSWIRComm 2004 case summary — Zoe

[3]

142 In my view, the decision in Wattyl does not support the proposition contended by the applicant that the discretion in s143(3) is available to ameliorate the harshness of s143(1). Rather, the passage cited by the applicant goes to jurisdiction: the case establishing that, inter alia, the satisfaction of the criteria in s124(2) is a necessary condition precedent to the exercise of power under that section. In my view, whilst the Industrial Relations Act 1988 (Cth) (as amended by the Workplace Relations Act 1996 (Cth)) may assist in the interpretation of s143 (such as the words "reasonable concern"), they shed little light on the nature and purpose of that section. 143 In my view, the correct approach to the interpretation of s143 is that, whilst prohibiting the payment of remuneration to employees in respect of periods during which those employees were engaged in industrial action (and thereby reinforcing the preference for methods of dispute resolution other than industrial action), the legislature has recognised the significance of occupational health and safety in the workplace, and established a limited exception to the prohibition in s143 to encompass industrial action that is "based on a reasonable concern for health or safety" (noting that there are other limitations in the section). Such an approach is appropriate in the context of changes to the regulation of occupational health and safety in New South Wales following the introduction of the Occupational Health and Safety Act 1983 and the significant prospect of social reform brought about by the legislation. In light of the increased attention given to occupational health and safety, the appearance of an exception of this kind in ss218 and 219 in the 1991 Act is unsurprising. 144 The Intervenor submitted that the discretion conferred by s143(4) to authorise and/or order payment in respect of any period an employee was engaged in industrial action provided only a limited exception to the penalty provision in s143(1), and that "the Commission ought to confine very strictly the class of occupational health and safety matters in which industrial action will be held to be justified, and … it is necessary to exercise the discretion in a manner which has the effect of doing so". I agree. In my view, whilst recognising the importance of occupational health and safety in the workplace, the legislature did intend to strictly confine the circumstances in which the Commission may exercise a discretion to authorise or order a payment to employees, to only those particular circumstances contemplated by s143(4). 145 The parties presented different views as to the relevance of certain adjectival limitations on the word "reasonable". The applicant submitted that the Commission need only be satisfied that the concern for health or safety be reasonable, and that there was no requirement:

[5]

146 The Intervenor, however, submitted that "the Commission would be acting in accordance with both the text, and the underlying policy, of s143, by considering whether or not the concern for health and safety was "imminent" or "serious" or "proportionate" or "justified". 147 I accept the submissions of the applicant in this regard. There is no warrant, in my view, to create any additional adjectival limitations to the word "reasonable" beyond the limitations prescribed by the words of s143(4). Such an approach is consistent with accepted principles of statutory interpretation. As was clearly stated in Thompson v Goold & Co [1910] AC 409 at 420: "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do". 148 That being said, I also accept the submission of the applicant that concepts such as "imminent", "serious", "proportionate" and "justified" will be relevant to the exercise of the discretion of the Commission under s143. However, there is no warrant, in my view, in either the language or purpose of the provision, to impose further confines on the exercise of that discretion by limiting the class or nature of health or safety concerns otherwise encompassed by s143(4). 149 The applicant presented its submissions as to the limitations on the Commission's jurisdiction under s143 in a number of subtly different ways. Initially, the applicant submitted that "the central requirement imposed by section 143 is that the Commission may authorise or order the payment of remuneration or financial benefits if the industrial action was based on a reasonable concern for health and safety", and that "the only restriction upon that discretion is that the Commission may order the payment of remuneration or other financial benefits only to those employees whose health and safety caused that concern". 150 Subsequently, the applicant submitted that s143(4) operates to impose two limitations on the Commission's discretion to authorise or order payments. Firstly, the Commission must be satisfied that the industrial action was based on a reasonable concern for health and safety. This limitation, according to the applicant, operates as a condition precedent. Secondly, the Commission's discretion is limited to those employees whose health and safety was the cause of the concern. 151 How then do the words of limitation in s143(4) operate? The Intervenor submitted (which submissions were adopted by the Respondents) that the Commission's discretion to award payments that would otherwise offend the penalty provision in s143(1) is exercisable provided that each of two requirements are met, being the requirements set out in s143(4)(a) and (b) respectively and further that "It is not correct to submit that sections [143(4)(a) and 143(4)(b)] are limitations on the Commission's discretion. Rather, they are thresholds which must be crossed before the discretion can be exercised".

[43]

175 I do note, however, that the legislative scheme in Western Australia differs to that found in s143 in that, rather than creating a "health or safety exception" to a prohibition on payments to employees engaged in industrial action, the Occupational Safety and Health Act 1984 (WA) confers a right on an employee to refuse to work in certain circumstances, and a corresponding entitlement to continue to receive pay and benefits if the employee does so. Section 26 of the Occupational Safety and Health Act 1984 (WA) is in the following terms: 26 Refusal by employees to work in certain cases (1) Nothing in section 25 prevents an employee from refusing to work where he has reasonable grounds to believe that to continue to work would expose him or any other person to a risk of imminent and serious injury or imminent and serious harm to his health. (1a) In determining whether an employee has reasonable grounds for the belief referred to in subsection (1) it is relevant to consider whether an inspector has attended the workplace upon being notified under section 25(1) of the risk and whether - (a) the measures, if any, required by the inspector to be taken to remedy the matters giving rise to the risk have been taken; (b) the requirements, if any, of the inspector to remedy the matters giving rise to the risk have ceased to have effect; or (c) the inspector has determined that no action is required to be taken under this Act. (2) An employee who refuses to work as mentioned in subsection (1) shall forthwith notify his employer and, if there is a safety and health representative for the workplace concerned, such safety and health representative, and the matter shall be regarded as an issue to which section 24(1) applies. (2a) An employee who refuses to work as mentioned in subsection (1) shall not leave the workplace concerned until the employee has notified the employer under subsection (2) and that employer has authorized the employee to leave that workplace. (2b) Subsection (2a) does not apply if the employee has reasonable grounds to believe that to remain at the workplace concerned would expose the employee to a risk of imminent and serious injury or imminent and serious harm to his or her health. (3) An employee who contravenes subsection (2) or (2a) commits an offence.

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202 Various standards which govern lead were referred to in the expert evidence. In summary: · The Environmental Protection Authority Guidelines set the acceptable level of lead in residential soil at 300ppm and in soil on an industrial site at 1,500ppm-; · There is no standard of an acceptable level of lead in dust; · Paint with lead levels which exceed 1% should be managed in accordance with AS 4361.1-1995, Guide to Lead Paint Management, Part 1: Industrial Applications; · The lead content of dust from paint with lead levels between 0.25% and 1% may exceed the criteria set out in NOHSC 1012 (1994) (National Occupational Health and Safety Commission, National Standard for Control of Inorganic Lead at Work); · NOHSC 1012 (1994) defines "lead processes" as including any machine sanding or buffing of surfaces coated with paint with lead levels exceeding 1% and any process applying (among other things) oxy-acetylene to weld, cut or clean the surface of any metal which is coated with paint with lead levels exceeding 1%. In oral evidence, Ms Trompf stated that in her opinion, the use of angle grinders, routers and chasers would be included in this definition. Under cross-examination, Ms Trompf reiterated her opinion that the standard would include applications of machine process likely to drive the material into an inhalable fraction. This interpretation was not challenged by Mr Murray, who sought to distinguish processes which give rise to a fine dust from processes which give rise to "large chunks". · By way of contrast, Mr Wyatt distinguished work which involved chasing out sections of the wall and affixing components to it from the definition of lead processes referred to above. In his affidavit, Mr Wyatt stated: "Such a process can be quite dusty in that the cement render or plaster on the wall is disturbed, but that is quite different from dry sanding of lead paint surfaces or heating such paints with a high temperature flame". This distinction was not elaborated or justified during Mr Wyatt's oral evidence, apart from an indirect suggestion in chief that heat may facilitate lead absorption, and a concession in cross-examination that lead dust itself presented a hazard. However, in cross-examination Mr Wyatt conceded that safe work method statements should have been in place to regulate work which "disturbed the lead based paint". This concession, together with New Environment's recommendation in the Report that lead dust be removed (discussed below), satisfies me that, notwithstanding Mr Wyatt's distinction on the definition of "lead processes", work which created lead dust constituted a risk. · The WorkSafe Exposure Standard for airborne lead containing dust is 0.15mg/m3. Ms Trompf gave evidence that this standard is based on an eight hour work period, and meaningful testing of air for lead contamination should take place over an eight hour period during active work with two monitors: personal sampling of workers and a static monitor at a fixed distance in order to determine the extent of the hazard. · The Exposure Standards for Atmospheric Contaminants in the Occupational Environment Guidance Note NOHSC 3008 (1995) and National Exposure Standards NOHSC 1003 (1995) set a maximum time weighted average daily exposure limit of 1.5mg/ m3 of lead in air in an occupational environment. The relevant difference (if any) between this standard and the WorkSafe Exposure Standard was not explained in the evidence or submissions. · New Environment referred to a different Australian standard in their report dated 24 September 2001: Guide to Lead Paint Management Part 2 Residential and Commercial Buildings Australian Standard AS 4361.2 1998. The report cites this standard as specifying surface lead dust loadings for the purposes of clearance inspections after lead paint management activities, and it is referred to in New Environment's subsequent clearance certificates. According to Mr Wyatt's affidavit, AS 4361.2 1998 covers the methods of testing for lead paint, management of lead paint, procedures for stabilisation, procedures for paint removal and the protection of personnel.

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411 The Commission has found that, following the disclosure of the Report at the site meeting, the workers who attended the site meeting held on 14 September 2001 were genuinely concerned for their health and safety due to the presence of lead-based paint on the site (and the corresponding prospect of contamination of the site and them with lead dust) and the fact that a report had been commissioned a year earlier, referable to that occupational health and safety issue, but none of the recommendations had been either comprehensively reviewed by the safety committee (having regard to the chairman's ignorance of them) or followed. I note, in this respect, the earlier discussion of legal principle in this judgment that a "concern" in the statutory sense may be inferred from the collectively expressed opinion of employees assembled at a union meeting and from relevant surrounding circumstances (although, in this case, there was unchallenged evidence of the requisite concern). 412 The Commission has also found that there was an overwhelming inference that the employees of each respondent (being contractors at the site during the relevant period) attended the meeting. As discussed earlier in this decision, s143(4)(b) limits, however, the employees to whom an employer may be authorised or ordered to make payment, to those employees who are affected by the health or safety concern or, put differently, those for whom there was a rational basis for holding a bona fide belief that a risk existed to their health or safety. Analysis of the requirements of s143(4)(b) should not confuse the evidentiary tasks of the parties. These proceedings are not criminal proceedings. In order to satisfy the requirements of s143(4)(b), the applicant must satisfy the Commission, as a matter of fact, on the balance of probabilities, that a sub-group (which could be equal to the whole) of those employees engaging in industrial action were affected by the health or safety concern. The requirements of the civil burden of proof were reiterated by the Commission in Re Equal Remuneration Principle (2000) 97 IR 177 at paragraph [67]: …To the extent that that inquiry involves the determination of issues of fact, that is to be approached in the traditional and usual manner of fact finding before courts and tribunals. That is, the determination of such issues is on the basis of the traditional test of finding "on the balance of probabilities": see Malec v JC Hutton Pty Ltd (1990) 169 CLR 438 at 642-643. It is not necessary to make findings on the basis of notions of absolute certainty. Such an approach to fact finding, which seemed to be pressed upon us at various stages of the proceedings, if not by the advocates then at least suggested by some of the witnesses, represents a significant misunderstanding of the nature of the role of courts and tribunals in the common law system of adjudication.

[413]

441 No circumstance arose during the period 18 - 26 September 2001 which would, on balance, warrant a conclusion that the jurisdictional basis for granting an order or authorisation under s143(4)(a) had been removed. I have reached this conclusion bearing in mind the following events during the period: 1. Reports had been commissioned and provided, but none of them obviated the rational basis of the concern formulated on 14 September 2001; 2. Rectification work occurred during the period, but (except in specifically certified areas) this work did not warrant the conclusion that the site was safe for the resumption of general work; 3. Ms Trompf's interim and final reports stressed the paramount importance of appropriate work method statements (which had not been produced). This stipulation conformed with the requirements of the award. This importance was subsequently confirmed by the agreement reached between the unions, safety committee and management on 27 September 2001 with the imprimatur of WorkCover inspectors that, even in cleared areas, work which disturbed painted surfaces could not proceed in the absence of appropriate work method statements. It is no answer to concerns which flow from this omission to say, as the respondents did, that a work method statement which "contained controls appropriate to lead dusts" (but did not mention lead) was provided to the demolition contractor at the time of demolition or that the painting contractor would be required to develop an appropriate work method statement before starting work. Nor, given the clear evidence that the generation of lead dust itself constituted a risk, is it an answer to state, as the Intervenor did, that Mr Hendy intended to require a work method statement in advance of any "lead process" as defined in the standard; and 4. Workers who attended the site during this period in order to work were transferred to other sites or directed not to work, except in areas which had been certified as safe. This showed that the workers continued to hold a genuine concern. Indeed, on one view, the course of conduct of the employees very much gave the impression that they were not engaging in industrial action. There was a failure to work in certain areas during this period but I do not consider that this fact translates to a general proposition that the balance of the employees were behaving in a manner which either lacked genuineness or rationality in accordance with the statutory tests. Indeed, the evidence (as discussed in these 4 sub-paragraphs) demonstrated the contrary proposition.

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471 In my view, the application for an order for the payment of the milestone incentive payments, based on such grounds, must fail for the following reasons: 1. The premise for both contentions evaporates at the point that the Commission concludes that the strike was not based wholly upon a genuine occupational health and safety concern. Given this is the conclusion reached by the Commission for the fourth period, there is no basis, even putting the applicant's contentions at their highest, for the grant of the application on and from 27 September 2001. In any event, the discretionary factors warranting the rejection of the application during this period must apply with equal force to that aspect of it concerning milestone incentive payments. 2. It must be emphasised that the construction milestones (and the corresponding milestone incentive payments) constitute a significant component of modern building and construction awards. The awards provide incentive payments to stimulate compliance with construction milestones which coincide with the 'practical completion' dates contracted for various stages of a project (see clauses 4.1 and 4.2 of the award). Accordingly the awards lay down strict conditions for the receipt of milestone incentive payments; most noticeably that such payments are conditional upon and linked to the achievement of the construction milestone and strict adherence by unions and employees to the provisions of the award including the safety clause and the resolution of disputes clause (see clause 9.4.2). Here, the practical completion was not achieved by the employees for either milestone period. Thus, the conditions of the award for the payment were simply not met. In the absence of a determination by the Project Monitoring Committee to grant the payment under clause 9.4.4 despite this failure then no entitlement arises. I agree with the Intervenor that the absence of an entitlement for the provision is a significant reason against the grant of relief. 3. Further in this case there was no evidence that the unions made an application pursuant to clause 9.4.4 of the award for the grant of the payment based on extenuating circumstances or otherwise. I do not consider they can now properly seek relief from the Commission in the absence of engaging existing remedies under the award. 4. In any event, there is not sufficient evidence before the Commission to enable it to form the view that the Committee would have, if it had properly considered all the circumstances bearing upon the operation of clause 9.4.4 of the Award, made a determination that there were 'extenuating circumstances'. Mr Archibald's statement that the Committee may have approved payment for the final milestone period if it had met on 17 September is speculation and in any event, could not have comprehended within it the existence of a general stoppage at the site from 14 September. 5. I do not consider it as appropriate in the circumstances of this matter for the Commission to place itself in the shoes of the Project Monitoring Committee with a view to defacto deciding whether there were extenuating circumstances warranting the making of the milestone incentive payment. That Committee would no doubt take into account a variety of considerations, many of which are outside the purview of the Commission, having regard to the evidence in this case (most particularly, the Committee would have regard to the circumstances affecting all periods of work at the site during the two milestone periods and not just those periods associated with the strike). 6. The applicant submits that the milestone incentive payment should be granted because it was lost during a strike based on genuine occupational health and safety issues. I understand that submission to relate to the second of the applicant's contentions earlier mentioned and, therefore, stands separately to considerations concerning the operation of clause 9.4.4. True it is, the failure to reach the construction milestone was, to some extent, a consequence of the industrial action. However, it does not follow either as a matter of logic, or from the available evidence (or for that matter from any contention by the applicant), that the construction milestone was not reached solely, or even substantially, because of that factor. Mr Jansen did identify that his reasons for refusing the milestone incentive payment related to various aspects of the strike. However, Mr Archibald's evidence was to the effect that it was known by 14 September 2001 that the first construction milestone would not be reached and that it would require the exercise of some discretion by the Project Monitoring Committee to grant the payment. In fact, the first milestone period consisted substantially of a period of time before the commencement of the industrial action. It is not correct then to submit that the 'loss' of the benefit was, therefore, attributable to the strike (over occupational health and safety issues). There is no evidence to establish just what factors were involved in the failure to reach the milestone for 24 September, although it may be inferred from Mr Archibald's evidence that, for the most part, in the first milestone period, the delays were occasioned by factors other than the strike or occupational health and safety. These other considerations would, on the balance pf probabilities relate to other issues such as matters affecting productivity at the project.

Legislation Cited (6)

Industrial Relations Act 1998(Cth)

Industrial Relations Act 1999(Qld)

Occupational Health and Safety Act 1984(WA)

Workplace Relations Act 1996(Cth)

Industrial Relations Act 1988(Cth)

Occupational Safety and Health Act 1984(WA)

Cases Cited (14)

CITATION : Labor Council of New South Wales and others and Axis Metal Roofing and others [2004] NSWIRComm 53 APPLICANT Labor Council of New South Wales on behalf of the Constuction, Forestry, Mining & Energy Union (New South Wales Branch) and others PARTIES : RESPONDENT Axis Metal Roofing and others FILE NUMBER: IRC 7718 & 8525 of 2001 CORAM: Walton J Vice-President CATCHWORDS : Industrial action - Strike pay - Interpretation of s143 - Legislative intent - Purpose of statutory scheme - Orders or authorisation - s143(4)(a) - "Based on a reasonable concern for health and safety" - Subjective or objective test - Actual risk not required - Reasonable concern arising from lead paint at construction site - Entire site affected - Collective concern - s143(4)(b) - Meaning of expression "only to the particular employees whose health and safety caused that concern" - Burden of proof - Discretionary considerations - Effect of award - Commission recommendations - Milestone incentive payments - Orders to be made. Industrial Arbitration Act 1940 Industrial Relations Act 1991 s218 s219 Industrial Relations Act 1996 s143 Industrial Relations Act 1998 (Cth) s124 Industrial Relations Act 1999 (Qld) s241 LEGISLATION CITED : Interpretation Act 1987 s9(1) Occupational Health and Safety Act 1983 Occupational Health and Safety Act 1984 (WA) s26 Occupational Health and Safety Act 2000 s8 s91 Occupational Health and Safety Regulations 2001 Workplace Relations Act 1996 (Cth) s4(1) Alstom Power Pty Limited v Australian Workers Union [2000] NSWIRComm 180 Australian Meat Industry Employees Union v Australia Meat Holdings Pty Ltd [1996] NSWIRComm 223 Automatic Fire Sprinklers Proprietary Limited & Another v Watson (1946) 72 CLR 435 Briginshaw v Briginshaw (1938) 60 CLR 336 Caltex Australia Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch & others re casual rate of pay [2002] NSWIRComm 1082 Re Equal Remuneration Principle (2000) 97 IR 177 Federated Miscellaneous Workers Union of Australia v Wattyl Queensland Pty Limited (1992) 41 IR 429 CASES CITED : Fox v GIO Australia Ltd (2002) 56 NSWLR 512 Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 160 ALR 489 Malec v JC Hutton Pty Ltd (1990) 169 CLR 438 New South Wales Teachers Federation and TAFE Commission (unreported, Matter No. IRC 111 of 1997, Schmidt J, 26 September 1997) Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Thompson v Goold & Co [1910] AC 409 at 420 Transport Workers Union of Australia, New South Wales Branch v Kwikasair Express, a Division of TNT Australia Pty Limited (unreported, Matter No. IRC 138 of 1994, McKenna C, 2 August 1994) Western Mining Corporation v Australian Workers Union (1990) 70 WAIG 3525 HEARING DATES: 12/12/2002; 12/13/2002; 02/14/2003; 05/13/2003; 05/14/2003; 07/14/2003; 08/21/2004 DATE OF JUDGMENT: 03/31/2004

[1996] NSWIRComm 223

[2002] NSWIRComm 1082

(1946) 72 CLR 435

(1938) 60 CLR 336

(2000) 97 IR 177

(1992) 41 IR 429

(2002) 56 NSWLR 512

(1998) 160 ALR 489

(1990) 169 CLR 438

(1998) 194 CLR 355

(1976) 137 CLR 208

(1986) 10 NSWLR 587

[2000] NSWIRComm 180

Cited By (1)

Labor Council of NSW & Ors v Axis Metal Roofing & ors

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (454 paragraphs)

Legislation Cited (6)

Cases Cited (14)

Cited By (1)