19 In Labor Council of New South Wales & Ors, Walton VP undertook a review of cases interpreting s 143, its predecessors and similar provisions in other jurisdictions (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); Caltex Australia Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch and others re casual rate of pay [2002] NSWIRComm 1082; Australian Meat Industry Employees Union v Australian Meat Holdings Pty Ltd [1996] NSWIRComm 223; New South Wales Teachers' Federation and TAFE Commission (unreported, Matter No IRC 111 of 1997, Schmidt J, 26 September 1997); His Honour held that the words 'based on' in the context of the section mean 'by reason of'. He stated that the concept of 'subjectivity' as requiring an assessment of the motivation of individual employees is a misleading and incorrect approach. His Honour held that the concern must be considered from the perspective of the group engaged in the industrial action. He stated (at [165]):
Given that industrial action is by its nature a collective activity and that s 143 stipulates that such activity will be an offence unless the reason or basis for that activity to be a concern for health or safety, it follows that any such concern must be considered to be a concern of the group engaged in the industrial activity. It is not to the point, therefore, that the industrial motivation of each employee engaged in a strike has not been expressed. Nor does it defeat this proposition that it would be difficult to determine a "collective mind", as the relevant "basis" for the industrial action may be inferred from the surrounding circumstances.
The question must be "whether there was a bona fide belief that there was a health and safety concern". The Commission must consider the "concerns" of the relevant group of employees (being those collectively engaged in the relevant industrial action) rather than the individual subjective intentions or motivations of an individual employee or each employee in such a group. It does not need to be demonstrated that each employee reasonably held a concern themselves. The relevant 'concern' of employees may be inferred from the collectively expressed opinion of employees assembled at a union meeting and/or from relevant surrounding circumstances (at [411]). However, the Commission may have regard to the behaviour of officers of the union in determining whether to grant relief, particularly where the reasonable concern arose out of a union meeting and the employees' views were formed in or in connection with that meeting (at [452]).