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

Occupational Health and Safety Act 2001 LEGISLATION CITED: Occupational Health and Safety Act 2000 Industrial Relations Act 1996

Labor Council of NSW & Ors v Axis Metal Roofing & ors [2004] NSWIRComm 53 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 New South Wales Teachers' Federation and TAFE Commission (unreported, Matter No IRC 111 of 1997, Schmidt J, 26 September 1997 CASES CITED: Australian Meat Industry Employees Union v Australian Meat Holdings Pty Ltd [1996] NSWIRComm 223 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

HEARING DATES: 10/14/2004; 12/02/2004; 12/06/2004; 12/07/2004; 02/18/2005

Mr D Anderson Australian Workers' Union, New South Wales Branch LEGAL REPRESENTATIVES: Mr D Lloyd Solicitor Blake Dawson Waldron Lawyers

• 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Coram: Grayson DP

AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES -v- BLUESCOPE STEEL LIMITED

Notification under section 130 by The Australian Workers' Union, New South Wales of a dispute with BlueScope Steel Limited re non payment of wages for safety dispute DECISION [2005] NSWIRComm 72

1 This matter concerns an application by the Australian Workers' Union, New South Wales (the AWU) for orders in the following terms: 1. The Company comply with proper safety procedures including: · Job Safety Analyses · Proper consultation re: changes to the workplace under the OH&S Act 2001, Part 4.2 Work Premises Clause 34 Controller of Premises to Identify Hazards ; Clause 35 Controller of Premises to Assess Risks; Clause 36 Controller of Premises to Eliminate or Control Risks ; Clause 37 Controller of Premises to Review Risk Assessments and Control Measures ; Clause 38 Controller of Premises to Provide Information

2. The employees of the Paint Line to be paid any lost monies whilst they were on site and prepared to do alternative duties under their contract of employment.

2 Although the AWU makes no mention in its application or submissions, of the statutory provisions on which it relies in seeking such orders, it is clear enough that the application arises from the notification under s 130 of the Industrial Relations Act 1996 (the Act) of an industrial dispute.

3 It is also clear enough that arbitral proceedings such as these may give rise to orders of the kind specified by s 136 (d) of the Act or in other words, of any kind the Commission is authorised to make by reference to the Act as a whole. To determine the kind of order the Commission may make in the context of the present application, s 143 of the Act is relevant and applicable

4 Section 143 (1) of the Act makes it an offence for an employer to pay any remuneration or provide any financial benefit to an employee in respect of time spent by the employee in engaging in industrial action.

5 Section 143 (3) of the Act, however, provides that: (3) The Commission may, on the application of an industrial organisation of employees, authorise the payment of remuneration or the provision of financial benefits that would otherwise constitute an offence under this section. The Commission may, instead, order the employer to pay any such remuneration or provide any such benefit if it considers it appropriate in the circumstances.

6 In the context of these dispute proceedings there is no other relevant power in the Act to support the relief claimed by the AWU in proposed order No 2 and as a matter of jurisdiction, there would appear to be no power under the Act to authorise the making of order No 1. At all events and as the Company submits, even if there was jurisdiction to make such an order, the Commission as a matter of discretion would find it unnecessary and inappropriate to do so.

7 This is because there is a strict and enforceable obligation on the Company, its employees and the AWU to comply with the Occupational Health and Safety Act 2000 (NSW) and the Occupational Health and Safety Act 2001 (NSW) in breach of which a non-complying party is liable to prosecution under that legislation. Moreover and as the evidence clearly reveals, the Company made use of Job Safety Analysis processes as part of its overall occupational health and safety strategy and an order requiring compliance with such procedures would in the circumstances, be superfluous.

8 Further and in the alternative, the Company argues that order No 1 is vague and uncertain and the Company could not reasonably be expected to know with any degree of precision what it is required to do to comply with the order, other than to act in a manner already required of it by law.

9 As to the second proposed order and as a matter of jurisdiction, the Commission must be satisfied that the requirements of s 143 of the Act have been met.

10 The appropriate tests to be applied in relation to claims under s 143 have been comprehensively examined in the recent judgment of Walton VP in Labor Council of NSW & Ors v Axis Metal Roofing & ors [2004] NSWIRComm 53. In that case, his Honour noted at [127]: In my view, the clear and evident purpose of s143 is to prohibit remuneration or other financial benefits being afforded employees in respect of any period that those employees are engaged in industrial action unless such payments are authorised or ordered pursuant to the section.

11 As submitted by the Company, the discretion conferred on the Commission to order payment is a limited exception to the general prohibition on strike pay and as such it is a discretion which may be exercised only where the requirements of s 143 (4) are satisfied.

12 Turning then to the events which gave rise to these proceedings, it will suffice to say for the purpose of these reasons, that there had been a planned shutdown of the Paintline in the Painting and Finishing Department at the Company's Springhill works at Port Kembla.

13 The shutdown was taking place as part of the Painted Coil Packing (PCP) project involving modifications particularly to the exit end of the Paintline and a conversion of the No 49 crane from cabin driven operation to remote operation. This had implications for manning or crew numbers and there were issues in that regard raised with the shift supervisor by members of the night shift crew on 8 October 2004. The night shift crew resolved to drive the crane in remote only as training and by inference, not as part of the normal operation of the line.

14 The resolution was passed on to the incoming day-shift crew on 9 October 2004 who were asked to begin operating the line and the No 49 crane in the modified form. The day crew raised additional issues said to be safety issues which were discussed with management throughout the shift. Those issues were not resolved to the satisfaction of the crew who remained in the crib room. They were asked if they would agree to run the line in trial or demonstration mode as a means of working through the various issues and refused. They were taken off pay at 4:30 pm some two hours before the shift was to end.

15 The incoming night-shift crew on 9 October 2004 went straight to the crib room and held a stop work meeting for almost an hour after which they accompanied the shift supervisor on an inspection of the line. Other issues said to be safety issues were raised with the supervisor who indicated as did his predecessor on the day shift, a preparedness to work through the issues raised. The supervisor did not, however, agree that the issues raised by the operators represented reasonable concerns for health and safety and I am bound to say at this point after exhaustive evidentiary analysis of the various issues raised, that the approach taken by the Company prior to and throughout the dispute appears to me to represent an inclusive and appropriate approach to the assessment and management of risk in the workplace.

16 At all events, the night-shift crew refused to operate the line as requested and indicated that they would remain in the crib room until alternative duties were found. They were taken off pay at 11 pm.

17 A similar sequence of events occurred on both shifts on Sunday 10 October 2004 and for part of the day shift on Monday 11 October 2004 after which normal work resumed on the compromised basis that the Company would make some of the changes suggested by the operators and for their part, the operators would not as they had done, press for the totality of the changes they had sought.

18 To the extent that the sequence of events briefly described above have now given rise to claim for reimbursement of lost pay, it is necessary to examine whether the AWU has met the prerequisite tests set out in s 143(4) of the Act and if so, whether as a matter of discretion the claim should be granted. There are three essential elements of s 143(4) namely, that there must be industrial action; that the industrial action must be based on a concern for health and safety and that the concern be reasonably held.

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]).

20 As to the requirement of the section that any such concerns be reasonable, his Honour held, as a matter of settled law, that the test was an objective one involving the following elements of relevance to these proceedings: (i) Meaning of 'reasonable' (A) "an assessment of whether a concern is 'not fanciful or illogical' is an appropriate assessment to be made at the time the concern arises, that is, without the benefit of hindsight and the knowledge of whether a real risk to health and safety does in fact exist" [172] (B) in considering the meaning of the word 'reasonable', no further limitation should be put on the word, such as requiring an assessment of whether there was "an imminent risk", "justified" industrial action, or "risk of imminent and serious" injury or harm. However, concepts such as "imminent", "serious", "proportionate" and "justified" would be relevant to the exercise of the Commission's discretion as to whether to authorise or order payment [145 - 148] (C) a "concern for health and safety that had no rational basis will not satisfy the objective criteria necessary to establish jurisdiction under s143 (4)" [190] (D) in the facts of the case under consideration, a general stoppage by employees "was not properly proportionate to the level of safety risk (or reasonable concerns resulting therefrom) arising from [the particular] ... safety hazard" and further, that "there was no adequate justification for the level of industrial action taken" [462] (ii) Assessment of actual risk (A) It does not need to be established that there actually existed a demonstrable risk to the health or safety of employees, but only that there is a demonstrated "reasonable concern" for a risk to health or safety held by employees [177] and [420] (B) provided the concern was reasonably based (that is, not fanciful, illogical or irrational), it is inconsequential to the question of jurisdiction that subsequent evidence establishes that there was in fact little or no risk to health or safety [177] (C) However, evidence of whether there was an actual risk will be considered by the Commission in exercising its discretion to authorise or order payment. This is particularly relevant "where the 'actual nature' of the risk becomes apparent in such a way as may demonstrate that the foundation for the concern vanished at some point during the industrial action" [177] (iii) Ordinary reasonable person test (A) The reasonableness of the concern must be assessed from the perspective of an ordinary and reasonable person in the same situation as the employees involved. What must be examined objectively is the perception of the 'ordinary employee' faced with the same issues or situation" [179] (B) This examination should not involve a subjective consideration of the individual views of actual employees in the situation, as this would introduce a significant element of subjectivity into the objective test. (iv) Time for assessing reasonableness of the concern (A) The reasonable concern for health and safety must exist at the time of the commencement of the industrial action and must continue for the whole period of the industrial action (or for the period of payment claimed). (B) Payment cannot be authorised or ordered by the Commission for any period where the health or safety concern ceases to be reasonable.

21 The AWU advances its case on grounds which it submits are made out on the evidence. The grounds may be paraphrased thus:

· There was no consultation other than that which was referrable to the number 49 crane conversion from cabin to remote operation.

· Proper barriers were not in place to protect pedestrian walkways in that interaction between forklifts and workers could occurr.

· The designated forklift area was congested and had limited turning space where other workers were at risk due to the placement of scrap bins.

· The Company refused to have further meetings with the AWU on the issue of the crane platform.

· The Company initially refused but later as part of the compromise settlement, allowed the use of safety harnesses by employees required to go aloft for the purpose of pre-operation crane checks.

· The Company as part of the compromise settlement, ultimately adopted the employees suggestions as to the re-routing of designated walkways and removal of scrap bins.

· There was a preparedness on the part of employees who sat in the crib room to perform alternative duties but none were offered by the Company.

· That the Commission would have little difficulty in accepting the evidence of various Company witnesses to the effect that there had been ample consultation including Joint Safety Analysis processes leading up to and including the planned shutdown of and modification to the Paintline. · That the issue raised by employees as to the adequacy of barriers misconceived the purpose for which the barriers had been erected namely to manage pedestrian/forklift interactions according to the relevant Code of Practice by clearly defining or designating where pedestrians may walk and forks may travel. The barriers were never, as employees assumed, intended to have an impact resistance role. · That the Company evidence clearly indicated that the management of pedestrian/forklift interaction in the Painting and Finishing Department was no different to the management of such interaction throughout the Springhill works and the assertion by the AWU that the Company was in some way in breach of its own procedures has no basis in fact. · That neither the placement of scrap bins nor the turning space for forklifts placed employees at risk. · That the evidence, including photographic evidence, clearly indicates that there was no risk of an operator falling at any time during the crane pre-check procedure and therefore the demand for a new access route to the crane was not reasonable. · That the employee request to be issued with safety harnesses wrongly assumed the existence of a risk of falling from the crane girder when in fact, any such risk as there may otherwise have been is managed by a safety rail running the length of the girder. A safety harness in such circumstances is superfluous to needs in terms of risk management and once attached to the handrail, would need to be constantly removed and reattached (due to the design of the handrail) as the girder is traversed. Notwithstanding, the Company made safety harnesses available for those employees wishing to use them. · That it should not be inferred from the Company's agreement to make some of the changes sought by the employees, that the Company accepts that the workplace is thereby safer. Rather, the agreement to make changes should be seen for what it is namely, a compromise reached in the resolution of a dispute and further, that the changes themselves brought about different risks that had to be managed. For example, the Company's walkway and the employee's alternative walkway (which was ultimately adopted) involved a potential for interaction between pedestrians and forklifts in the first instance and pedestrians and semi-trailers in the second instance. · That the refusal by successive crews to operate the line in trial or demonstration mode (as distinct from full production mode) as a means of progressing their concerns, was unreasonable and meant among other things, that there were no other alternative duties for the Company to offer. Put another way, the Company did offer alternative duties and they were refused. · That contrary to the AWU submission, the evidence overwhelmingly indicates that employees emphatically demanded the construction of an additional crane access and no less. They did not throughout the period of industrial action, put the crane issue as an issue for ongoing discussion

23 Having carefully considered the evidence and the arguments on either side of the record, I am of the view in the circumstances of these proceedings, that s 143 (4) does not permit the making of an order for the payment of wages lost to Paintline employees who engaged in industrial action in October 2004.

24 Having said that, there can be no doubt that employees have a legitimate right to raise issues going to health and safety in the workplace. However, the thing which most counts against the employees in the present proceedings as I am disposed is whether the employee concerns for health and safety said to be the basis for industrial action could be described as reasonable ( s 143 (4)) and I am simply not satisfied that they were.

25 It is more the case I think, that as with most things there are usually more ways than one to go about the achievement of the same objective. The objective in this case being the assessment and management of risk in the modified workplace and whilst there were concessions and changes to the design of the workplace made by the company in the course of the ongoing industrial action, it could not be said on the evidence that the design of the workplace which initially greeted the crew in October 2004 was such to give rise to reasonable concerns for health and safety. On the contrary, it seems clear to me that much thought had gone into the design and that risks which had been identified in the process of modification of the workplace had been assessed and managed.

26 In so concluding, I accept without reservation the submission of the AWU that the compromise agreement reached on Monday 11 October 2004 represented a sensible outcome in settlement of an ongoing industrial dispute but if by that submission, it is intended to imply that the prior arrangements were not sensible or in some way unsatisfactory, then I am not so persuaded. In reality, and as the Company submits, the compromise agreement put in place alternative arrangements with no more or less to commend them in terms of occupational health and safety than the prior arrangements.

27 In the circumstances, the proposal to test the adequacy of these arrangements by running the line in trial or demonstration mode, a proposal which emanated from the WorkCover Authority, should have been accepted by employees who chose instead to remain in the crib room and refuse duty.

28 I see no basis for making the orders sought by the AWU. The application is accordingly dismissed and these proceedings concluded.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.