Australian Municipal, Administrative, Clerical and Services Union and others

Australian Municipal, Administrative, Clerical and Services Union

MELBOURNE CITY COUNCIL ENTERPRISE AGREEMENT, 2005

Alleged dispute in relation to introduction of revised Heat and Sun Protection Policy applying to Parking and Traffic officers.

[1] On 24 November 2006 the Melbourne City Council (MCC) filed an application (the original application) in this Commission on the requisite Form R37 in relation to a dispute with Australian Municipal, Administrative, Clerical and Services Union (ASU) concerning MCC's introduction of work changes in MCC's Parking and Traffic Branch in alleged breach of the provisions of the Melbourne City Council Enterprise Agreement 2005 - 2008 (AG844844, the agreement). This became matter C2006/3856 and was the subject of conciliation proceedings in this Commission. On 6 December 2006 the MCC notified the Commission by email that it was withdrawing the original application.

[2] On 13 December 2006 MCC (the applicant) filed an application for an order to stop or prevent industrial action on the requisite Form R17 in relation to the dispute with the ASU which became Matter C2006/4014.

[3] Matter 2006/4014 was heard before Commissioner Grainger on 13 December 2006 and as a result of that hearing MCC reinstated the original application in Matter C2006/3856 and the parties agreed to settle the terms of reference for the question to be arbitrated by this Commission in Matter C2006/3856 and Matter C2006/4026. MCC withdrew its application in Matter C2006/4014 and ASU gave certain undertakings (PN130).

[4] On 15 December 2006 the ASU filed an application to have a dispute resolution process conducted on the requisite Form R 37 in relation to the dispute with MCC which became Matter C2006/4026.

[5] On 17 January 2006 MCC through its solicitors notified the Commission [1] that MCC and ASU requested the present application to proceed to arbitration before the Commission to resolve the following specific question (the question for arbitration):

"Pursuant to section170LW of the pre-reform Workplace Relations Act 1996, whether the Heat and Sun Protection Policy (policy) as modified to take effect from 1 November 2006 was introduced and subsequently applied in accordance with the requirements of the Melbourne City Council Enterprise Agreement 2005 (Agreement).

The above question includes but is not limited to whether the introduction and application of the Policy complies with clauses 48 (occupational health and safety) and clause 9 (no extra claims)."

[6] The arbitration proceeded before Commissioner Grainger on 14, 15 and 16 February 2007 in Melbourne. MCC was represented by Mr R. Jackson. The ASU was represented by Mr M. Champion.

[7] The pre-reform Workplace Relations Act 1996 (the Act) relevantly provides:

"170LW Procedures for preventing and settling disputes

Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following:

(a) to settle disputes over the application of the agreement;

(b) to appoint a board of reference as described in section 131 for the purpose of settling such disputes."

170LZ Effect of a certified agreement on Commonwealth laws or State laws, awards or agreements

(1) Subject to this section, a certified agreement prevails over terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of any inconsistency.

(2) Provisions in a certified agreement that deal with the following matters operate subject to the provisions of a State law that deals with the matter:

(d) any other matter prescribed by the regulations.

(3) If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the certified agreement."

(4) To the extent of any inconsistency, a certified agreement displaces prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.

Commonwealth law means an Act or any regulations or other instrument made under an Act.

Prescribed conditions mean conditions that are identified by the regulations.

State law means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or a State employment agreement.

[8] Clause 2(1)(e) of Schedule 7 of the post-reform Workplace Relations Act 1996 provides:

"2 Continuing operation of pre-reform certified agreements - under old provisions

(1) Subject to this Schedule, the following provisions of the pre-reform Act continue to apply in relation to a pre-reform certified agreement, despite the repeals and amendments made by the Workplace Relations Amendment (Work Choices) Act 2005:

[9] The Occupational Health and Safety Act 2004 (Victoria) relevantly provides:

(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health."

[10] The agreement [2] relevantly provides:

"Act" means the Workplace Relations Act 1996.

"Award" means the Melbourne City Council Award 2001.

"Commission" means the Australian Industrial Relations Commission

"Employees" mean all Employees of Council who are members of or are eligible to be members of the Unions, with the exception of Executive Staff.

"Executive Staff" means Employees who are appointed to positions within the Council of contracts of employment in accordance with s. 95A of the Local Government Act 1989.

"Grant funded position" means a position which is funded externally to the Council. An Employee appointed to a grant funded position shall mean an Employee who is employed for the period for which a specific goal is granted.

Melbourne City Council "Sub-Branch President/Branch Executive Member" means the President of a Sub-Branch of a Union or Branch Executive Member of a Union which has been established in accordance with the rules of the Union.

"Partner" (Spouse) Where present throughout the Award and Agreement, spouse will be read as partner and defined as a person who is a member of a couple, living together in a married of defacto relationship, without discrimination as to gender.

"Unions" means any or all of Australian Municipal, Administrative, Clerical and Services Union and Association of Professional Engineers, Scientists and Managers Australia, and Australian Nursing Federation, as the case requires.

This Agreement shall come into effect on and from the date of certification and shall remain in force until 30 June 2008.

This Agreement shall be binding on the Council and the Unions and Employees.

The Agreement shall apply in respect to all Employees of the Council other then executive staff of the Council.

7. Relationship to Parent Awards and Other Agreements

7.1 This Agreement wholly replaces the Melbourne City Council Enterprise Agreement 2002 and the Capital Property Professionals Agreement 2001.

7.2 The terms and conditions of the Award at 30 June 2005 together with any subsequent Award Variations by consent or improvements to the Award including the application of Full Bench decisions and/or salary increases shall apply for the life of the Agreement.

7.3 Where there is any inconsistency between the Award and this Agreement, the Agreement shall prevail. Any dispute arising out of the application of this clause will be dealt with under Clause 16 Prevention and Settlement of Disputes, of this Agreement.

It is a term of this Agreement that the parties will not pursue any claims relating to terms and conditions or any other matter whether covered by this Agreement or not for the period of this Agreement.

14.1 Where Council is proposing to make a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on Employees, Council shall notify Employees who may be affected by the proposed changes and the relevant Union(s).

14.2 "Significant effects" shall include termination of employment, major changes in the composition, operation or size of Council's workforce or in the skill's required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining of transfer of Employees to other work or locations and the restructuring of jobs, provided that where the Agreement makes provision of alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect.

14.3 Council shall discuss with the Employees affected and the relevant Union(s), inter alia, the introduction of the changes referred to in sub-clause 14.1, the effects the changes are likely to have on Employees, measures to avert or mitigate the adverse effects of such changes on Employees and shall give prompt consideration to matters raised by Employees and/or the relevant Union(s) in relation to the changes.

14.4 The discussion shall commence as early as practicable after a decision has been made by Council to make the changes referred to in sub-clause 14.1.

14.5 For the purpose of such discussion, Council shall provide in writing to the Employees concerned and the relevant Union(s) all relevant information about the changes proposed; the expected effect of the changes on Employees and any other matter likely to effect Employees and any other matters likely to affect Employees provided that Council shall not be required to disclose confidential information the disclosure of which would be prejudicial to Council's interest.

14.6 Council may have regard to matters raised in discussions with affected Employees and relevant unions, but Council shall retain the right to decide on the introduction of the changes.

16.1 Subject to the provisions of the Act, a grievance or issue arising between Council and Employee in relation to a matter in this Agreement shall be dealt with in accordance with the follow procedures

(a) the parties agree that they are responsible for ensuring that genuine and reasonable steps are taken to resolve grievances and disputes arising under this Agreement by internal discussion and, if required, negotiation. In each case, the parties agree to expedite the matter with a focus on the early resolution of any matters raised;

(b) if a matter arises under this Agreement, the Employee or Employees shall discuss the matter with their immediate supervisor;

(c) if the matter is not resolved, the Employee(s) may refer the matter to the Human Resources Branch of the Council

(d) if the matter remains unresolved, the parties may agree that they will refer the matter to mediation with a mutually agreed mediator. The mediator must be satisfied that the parties have genuinely attempted to resolve the matter in dispute before proceeding with the mediation;

(e) if the parties are unable to successfully resolve the matter in accordance with this procedure, either party may refer this matter to the Commission for determination by conciliation, or if necessary, arbitration. The Commission shall have regard to the parties' compliance with the procedures set out in this clause, unless the parties have consented to waive all or some of these steps in the circumstances of the particular matter;

(f) at any stage during this procedure, the Employee(s) is entitled to be represented by the Employee representative of their choice;

(g) where a grievance or issue is being dealt with in accordance with this clause, work and conditions shall continue in accordance with the award, agreement or custom existing between the parties while the matter in dispute is being resolved. No party shall be prejudiced as to final settlement by the continuance of work in accordance with this clause.

48.1 Council and Employees shall at all times comply with the provisions of the Occupational Health and Safety Act 2004 (Victoria) as amended from time to time.

48.2 Council should provide and maintain so far as it is practicable for Employees a working environment that is safe and without risks to health.

48.3 Employees shall at all times conduct themselves in a safe and responsible manner and comply with Council Occupational Health and Safety Policies and Procedures.

48.4 Council shall encourage Employees to take a constructive role in promoting improvements in occupational health, safety and welfare, to assist Council in achieving a healthy and safe working environment."

[11] MCC filed the following written opening submissions [3]:

"1. On 24 November 2006, the Applicant notified the Commission of a dispute between itself and the Respondent over the application of the Melbourne City Council Enterprise Agreement 2005 (Agreement). The dispute was notified in accordance with section 170LW of the pre-reform Workplace Relations Act 1996 (Cth) (WR Act) and clause 16 of the Agreement.

2. Clause 16 of the Agreement provides as follows:

CLAUSE 16 - PREVENTION AND SETTLEMENT OF DISPUTES

(a) the parties agree that they are responsible for ensuring that genuine and reasonable steps are taken to resolve grievances and disputes arising under this Agreement by internal discussion and, if required, negotiation. In each case, the parties agree to expedite the matter with a focus on the early resolution of any matters raised;

(b) if a matter arises under this Agreement, the Employee or Employees shall discuss the matter with their immediate supervisor;

(c) if the matter is not resolved, the Employee(s) may refer the matter to the Human Resources Branch of the Council

(d) if the matter remains unresolved, the parties may agree that they will refer the matter to mediation with a mutually agreed mediator. The mediator must be satisfied that the parties have genuinely attempted to resolve the matter in dispute before proceeding with the mediation;

(e) if the parties are unable to successfully resolve the matter in accordance with this procedure, either party may refer this matter to the Commission for determination by conciliation, or if necessary, arbitration. The Commission shall have regard to the parties' compliance with the procedures set out in this clause, unless the parties have consented to waive all or some of these steps in the circumstances of the particular matter;

(f) at any stage during this procedure, the Employee(s) is entitled to be represented by the Employee representative of their choice;

(g) where a grievance or issue is being dealt with in accordance with this clause, work and conditions shall continue in accordance with the award, agreement or custom existing between the parties while the matter in dispute is being resolved. No party shall be prejudiced as to final settlement by the continuance of work in accordance with this clause.

3. The parties have agreed terms of reference for the dispute. These are:

Pursuant to section170LW of the pre-reform Workplace Relations Act 1996, whether the Heat and Sun Protection Policy (policy) as modified to take effect from 1 November 2006 was introduced and subsequently applied in accordance with the requirements of the Melbourne City Council Enterprise Agreement 2005 (Agreement).

The above question includes but is not limited to whether the introduction and application of the Policy complies with clauses 48 (occupational health and safety) and clause 9 (no extra claims).

4. The Applicant admits that the Policy was introduced and subsequently applied in accordance with the requirements of the Agreement. In particular, the introduction and application of the Policy is in accordance with clauses 48 (occupational health and safety) and clause 14 (consultation). The introduction and application of the Policy does not constitute an extra claim for the purposes of clause 9.

5. On 1 November 2006, the Applicant introduced a revised version of its existing 'Heat and Sun Protection Policy' (Policy). The Policy applies to all the Applicant's staff who are required to work more then 2 hours outdoors in each working day.

6. The Policy came into effect following approximately 12 months of consultation between the Applicant's management, staff representatives, representatives of the Respondent, independent experts and inspectors from the Victorian WorkCover Authority (VWA).

7. Subject to clause 14 of the Agreement the Applicant is required to consult with employees and their Union(s) who may be significantly effected by major changes introduced by the Applicant in, inter alia, 'program, organisation… or technology.'

8. Clause 14 of the Agreement provides as follows:

14.1 Where Council is proposing to make a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on Employees, Council shall notify Employees who may be affected by the proposed changes and the relevant Union(s).

14.2 "Significant effects" shall include termination of employment, major changes in the composition, operation or size of Council's workforce or in the skill's required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining of transfer of Employees to other work or locations and the restructuring of jobs, provided that where the Agreement makes provision of alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect.

14.3 Council shall discuss with the Employees affected and the relevant Union(s), inter alia, the introduction of the changes referred to in sub-clause 14.1, the effects the changes are likely to have on Employees, measures to avert or mitigate the adverse effects of such changes on Employees and shall give prompt consideration to matters raised by Employees and/or the relevant Union(s) in relation to the changes.

14.4 The discussion shall commence as early as practicable after a decision has been made by Council to make the changes referred to in sub-clause 14.1.

14.5 For the purpose of such discussion, Council shall provide in writing to the Employees concerned and the relevant Union(s) all relevant information about the changes proposed; the expected effect of the changes on Employees and any other matter likely to effect Employees and any other matters likely to affect Employees provided that Council shall not be required to disclose confidential information the disclosure of which would be prejudicial to Council's interest.

14.6 Council may have regard to matters raised in discussions with affected Employees and relevant unions, but Council shall retain the right to decide on the introduction of the changes.

9. It is the Applicant's submissions that the changes effected by the revision of the policy do not have 'significant effects of employees.' Consequently, the Applicant is not required to comply with clause 14.

10. In the alternative, if it is found that the revisions to this Policy do have significant effect on employees, the Applicant submits that it has complied with the requirements of clause 14 in its extensive consultation with Parking and Traffic branch employees and with the relevant union, the Respondent.

11. Witness statement submitted on the Applicant's behalf, in particular those of Lyn Wainwright, Team Leader OHS and Well Being and Nicole Misurelli, Manager Enforcement Services, set out in detail the extensive consultation process engaged in by the Applicant. Set out below is a brief summary of that process.

12. During 2005 the Applicant engaged a consultant, Bob Thiedeke, to assist in developing a revised 'Heat and Sun Protection Policy.' Mr Thiedeke reported back to the Applicant in October 2005.

13. Shortly after receiving Mr Thiedeke's report, the Applicant submitted an early draft of the revised Policy for consideration by the Parking and Traffic branch's Occupational Health and Safety (OHS) Designated Work Group (DWG), at their meeting on 11 October 2005. At this meeting the introduction of the revised Policy was discussed and negotiations began on the most effective way to implement the Policy to best protect the health and safety or employees. All matters raised by employees were considered by the Applicant and Mr Thiedeke's report was available for consideration.

14. On 6 December 2005 and 22 December 2005, OHS management and Parking and Traffic branch management respectively, met with representatives of the Respondent to discuss the Policy.

15. On 30 December 2005 Anne Lacey, Human Resources Consultant in OHS drafted a framework for the consultation process and timeframe for that process. At this time it was intended that the Policy would be rolled out and effective from 24 July 2006. in practice the consultation process was more extensive and as a result the process took considerably longer.

16. On 9 February 2006 Parking and Traffic branch health and safety representatives (HSRs) met with representatives of the Respondent to progress the risk assessment process in relation to the Policy. This began a series of meetings running up until June 2006 when the risk assessment was finalised. Included in this process was a training session from an external provider to management, team leaders and HSRs about conducting effective risk assessments. Every effort was made by the Applicant to ensure that employees would not suffer any adverse effects from the implementation of the revised Policy.

17. On 10 March 2006 and 14 July 2006 the Applicant met with the Respondent and a representative of the Association of Professional, Engineers, Scientists and Managers Australia at the Melbourne City Council/Unions consultative meetings. The revised Policy was discussed at these meetings. Management from the Applicant and representatives from the Respondent also met on 17 October 2006 in relation to the Policy.

18. On 31 August 2006 the Applicant received an alternate risk assessment and expert report from HSRs Bruce Michailidis and Aaron Smith. The alternate risk assessment and report were fully considered by the Applicant and additional negotiations were entered into with Mr Michailidis and Mr Smith.

19. On 14 September 2006 and 28 September 2006, Dr John Bisby, Occupational Physician and expert in the field of managing heat risks in the workplace, conducted 'Beat the Heat' training sessions. These sessions were attended by Parking and Traffic branch management, Parking and Traffic branch HSRs, human resources staff, Enforcement services team leaders and team co-ordinators. A brochure and information statement in relation to the Policy and the WBGT equipment were provided to employees at this training session.

20. Further extensive training in the Policy and the WBGT equipment was attended by Parking and Traffic branch management and staff throughout October 2006. this training was completed in person at day long workshops and on-line. Team leaders were also provided with an extensive 'Team Leaders Guide' instructing them in effective implementation of the Policy.

21. From October 2005 until recently the Policy was implemented on 1 November 2006 the Applicant engaged in continuous negotiations, information sessions and training the Parking and Traffic branch employees and with the Respondent. The relevant employees and the Respondent were provided with extensive amounts of verbal and written information on the Policy and the health and safety justification for it. All affected employees were given training in the Policy and were fully aware of the effect it would have on their working practices.

22. Clause 48 of the Agreement provides as follows:

48.1 Council and Employees shall at all times comply with the provisions of the Occupational Health and Safety Act 2004 (Victoria) as amended from time to time.

48.2 Council should provide and maintain so far as it is practicable for Employees a working environment that is safe and without risks to health.

48.3 Employees shall at all times conduct themselves in a safe and responsible manner and comply with Council Occupational Health and Safety Policies and Procedures.

48.4 Council shall encourage Employees to take a constructive role in promoting improvements in occupational health, safety and welfare, to assist Council in achieving a healthy and safe working environment.'

23. The Applicant submits that the introduction and application of the Policy is in accordance with one Applicant's obligations under clause 48.2 of the Agreement.

24. There is no more basis on which to found an argument that the Policy poses a risk to the health and safety of the Applicant's outdoor employees in general, or Parking Officers in particular.

25. The method used in the Policy for monitoring the risk of heat stress in the Applicant's outdoor employees, being the Wet Bulb Globe Thermometer (WBGT) Index) is that used in International Standard ISO 7243 (which deals with the effect of heat stress on an individual in a working environment). It is endorsed by all State government occupational health and safety bodies (including VWA), as well as the Australian Safety and Compensation Council, the World Health Organisation and the International Labour Organisation.

The revised Policy contains a number of improvements, in occupational health and safety terms, over the previous version, which had been in effect since January 2000. For example, the Policy:

26.1 is based on WBGT Index, which is (and has been for many years) the accepted means of obtaining accurate information about the risks to health and safety of working in hot conditions;

26.2 provides special conditions for vulnerable staff, in that staff must advise their Team Leader if they have a medical condition that could be aggravated by exposure to hot weather conditions or sun;

26.3 contains action levels to ensure that the remedy is commensurate with the risk of heat stress; and

26.4 provides for staff to be trained in self-assessment to control health and safety risks.

The previous version of the Policy did not cover these matters.

27. The Applicant's outdoor employees have received training, and continue to have access to on-line training, in the application of the Policy.

28. It is submitted that the introduction and application of the Policy is in accordance with the particular provisions of the WR Act that recognise the ongoing obligations of the Applicant to provide a workplace that is, so far as is reasonably practicable, safe and without risks to health. The Agreement is a pre-reform certified agreement. It was certified by the Commission prior to the commencement of the Work Choices reforms to the Act which came into force on 27 March 2006. Pursuant to clause 2(1)(g) of Part 2 of Schedule 7 of the Workplace Relations Act 1996, section 170LZ of the pre-reform Workplace Relations Act 1996 continues to operate in relation to the Agreement. Section 170LZ relevantly provides as follows;

28.1 Section 170LZ(1) Subject to this section, a certified agreement prevails over terms and conditions of employment specified in a State law award or state employment agreement to the extent of any inconsistency.

28.2 Section 170LZ(2) - 'Provisions in a certified agreement that deal with the following matters operate subject to the provisions of a State law dealing with the matter:

28.3 In section 170LZ(3) 'State law' means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory, but does not include a State Award or a State employment agreement .'

29. The Applicant submits that in the unlikely event (given clause 48.2) the Commission were to find that clause 48 of the Agreement prevents the Applicant from revising its occupational health and safety policies and procedures, then to that extent, it is inoperative. Such an operation would be inconsistent with section 21 of the Occupational Health & Safety Act 2004 (Vic) (OH&S Act) which places an ongoing duty upon the Applicant to maintain a safe working environment for its employees. In particular, the Applicant says the duties to employees set out in section 21(2)(a) and (c)-(e) of the OH&S Act inclusive are relevant in this case. Those provisions impose the following duties:

(2) Without limiting sub-section (1), an employer contravenes that sub-section if the employer fails to do any of the following-

(a) provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;

(c) maintain, so far as is reasonably practicable, each workplace under the employer's management and control in a condition that is safe and without risks to health;

(d) provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;

(e) provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.

30. Failure to comply with Section 21(2) of the Act may result in criminal prosecution of an employer and the imposition of significant financial penalties quite apart from the serious matter of injury to employees.

31. The Applicant refers to and relies upon paragraphs 22 to 27 of the Applicant's submissions. The revisions to the Policy are based upon continuous improvements in the Applicant's state of knowledge concerning the risks to employees who work in hot conditions and who are exposed to sunlight during the course of their employment. In the Applicant's submission, its obligations pursuant to the OH&S Act cannot be viewed as static. The obligation to maintain a safe working environment is dynamic and subject to improvement and ongoing compliance with relevant standards and risk management practices that may be varied or altered from time to time over the life of the Agreement.

32. Clause 9 of the Agreement provides as follows:

It is a term of this Agreement that the parties will not pursue any claims relating to terms and conditions or any other matter whether covered by this Agreement or not for the period of the Agreement.

The parties further undertake that there will be no further wage increases sought or granted under the terms of the Agreement and any increases permissible under the Award that do not contradict the Agreement.'

33. The Applicant submits that the introduction and application of the Policy does not represent an extra claim for the purposes of clause 9 of the Agreement.

34. The Applicant is required, under section 21(1) of the OH&S Act and clause 48 of the Agreement, to provide and maintain for its employees, so far as is reasonably practicable, a working environment that is safe and without risks to health.

35. The revision and amendment of the Policy was undertaken in accordance with the Applicant's obligations under the OH&S Act and the Agreement.

36. The purpose of the work/rest regime set out in the Policy is to ensure the health and safety of the Applicant's outdoor employees working in hot conditions.

37. The work/rest regime in the Policy prior to its revision and amendment was not consistent with current or past standards appropriate to the work involved. It was a prescriptive and inflexible schedule that was not justified by reference to a threat to health and safety.

38. The changes to the Policy, as introduced and applied from 1 November 2006, do not represent a reduction in the entitlements of the Applicant's outdoor employees. Rather, and for the reasons set out in paragraph 26 above, the revised Policy now sets out a regime that offers appropriate action, including rest breaks, in response to health and safety risks posed by working in hot conditions.

39. In Moonee Valley City Council and ASU, APESMA and ANF re Moonee Valley City Council 'Future Directions' Enterprise Agreement 2005-2008 (PR974290) the Commission as presently constituted considered what would be required for a change in the workplace to constitute an 'extra claim' in contravention of a no extra claims clause in the Applicant Council's certified agreement.

40. In that case, the Commission adopted the approach set out in Metropolitan Fire and Emergency Service Board v United Firefighters Union of Australia (PR950883) 16 August 2004, a decision of Commissioner Simmonds, where at paragraph 27 the Commissioner stated:

'Taking account of the context of the agreement as a whole, unless the proposed change contemplates variation to a specific entitlement or obligation or goes to a matter outside the scope of the agreement, then it does not amount to an extra claim for the purpose of clause 49. Of course such change would need to be proposed in accordance with the requirements of clause 11, which calls up the operation of clause 9.'

41. Commissioner Simmonds' characterisation of the no extra claims clause in the above case was upheld on appeal by a Full Bench of the Commission (UFU and Metropolitan Fire and Emergency Service Board, PR956379_, a decision dated 10�March 2005)._

42. The application of this test to the current dispute, provides the following results:

42.1 Is the implementation of the revised Heat & Sun Protection Policy a variation to existing entitlements or obligations under the Agreement?

42.1.1 In the Applicant's submission it is not. The relevant obligations of the Applicant and its employees are as set out in clause 48 of the Agreement and for the reasons set out in paragraphs 22 to 32 of these submissions, the Applicant submits that the change to the Policy does not alter the obligations or the entitlements of the employees or the parties to the Agreement. The Policy concerns occupational health and safety in the workplace and the Applicant's ongoing obligation to provide and maintain, so far as practicable for employees, a working environment that is safe and without risks to health (clause 48.2). It also concerns the employees' obligation to conduct themselves in a safe and responsible manner, and to comply with the Applicant's occupational health and safety policies and procedures (clause�48.3). The Policy does not concern matters that go to entitlements to rest breaks per se. The "entitlement" is to the maintenance of a safe working environment, which is maintained, enhanced and improved by the revisions to the Policy.

42.2 Do the revisions to the Policy go to a matter outside the scope of the agreement?

42.2.1 The Applicant submits that the change to the Policy does not go to a matter outside the scope of the Agreement. Clause 48 of the Agreement deals with matters relating to occupational health & safety and specifically clause 48.3 with the employees' obligation to comply with Council's occupational health and safety policies and procedures. The revisions are precisely within the scope of clause 48.

42.2.2 Further, the wording of clause 48.4 of the Agreement provides that the Applicant should encourage employees to play a constructive role in promoting "improvements of occupational health and safety and welfare and to assist Council in achieving a healthy and safe work environment." Clause 48.4 specifically contemplates that occupational health & safety policies and procedures of the Council are not to be fixed but are subject to improvement.

42.2.3 Clause 14 of the Agreement sets out a process for consultation with employees and unions where the Applicant proposes to make a definite decision to introduce major changes in the workplace that are likely to have 'significant effects' on employees. The inclusion of such a clause in the Agreement indicates that the parties clearly contemplated that there would be changes to terms and conditions of employment over the life of the Agreement.

42.2.4 The Applicant submits that the revisions to the Policy do not fall within the definition of 'significant effects' in clause 14. However, if this submission is incorrect, it says that it has, in any event, complied with the requirements of clause 14 and consulted with the unions and affected employees prior to the implementation of the revised Policy as detailed in paragraphs 7 to 21 above.

43. The revised Policy is not a "matter" not covered by the Agreement and thus precluded by the operation of clause 9 of the Agreement. In the submission of the Applicant such a "matter" must amount to a new term or condition of employment of the employees covered by the Agreement, or such a significant variation to a specific entitlement or obligation as to go outside the Agreement's scope MFESB v. UFU op.cit.

44. For the reasons set out in paragraphs 22 to 32 the Applicant says that the policy is (subject to the operation of section 170LZ(2) of the pre reform Act) covered by the operation of clause 48 and possibly also by the consultative provisions in clause 14 of the Agreement. It is not outside the scope of the Agreement. Furthermore, based upon the approach taken by the Commission as presently constituted in the Moonee Valley City Council and ASU, APESMA and ANF re Moonee Valley City Council 'Future Directions' Enterprise Agreement 2005-2008 (PR974290) decision, it is respectfully submitted that the Commission should find that the revised Policy is a matter expressly covered by the Agreement and therefore, by definition, cannot be an 'extra claim' for the purposes of clause 9 of the Agreement. For these reasons the revised Policy does not constitute an "extra claim" in breach of clause 9 of the Agreement.

45. If the Commission were to find that the revised policy were such a "matter" not covered by the Agreement, then the Commission could not determine the outcome of this dispute and its jurisdiction is limited to determination of the disputes concerning the application of the Agreement by section 170LW of the Act (see CFMEU and Macmahon Contractors Pty Ltd PR965459 Full Bench, 24 Novemeber 2005)."

[12] ASU filed the following written opening submissions [4]:

1. The parties have agreed terms of reference for the dispute [5]. These are:

Pursuant to section 170LW of the pre-reform Workplace Relations Act 1996, whether the Heat And Sun Protection Policy (Policy) as modified to take effect from 1 November 2006 was introduced and subsequently applied in accordance with the requirements of the Melbourne City Council Enterprise Agreement 2005 (Agreement).

The above question includes but is not limited to whether the introduction and application of the Policy complies with clauses 48 (occupational health and safety) and clause 9 (no extra claims).

2. On 1 November 2006 the Applicant purported to introduce a revised Heat and Sun Protection Policy (the "2006 Policy") [6]. Thereafter, the Applicant has applied the 2006 Policy.

3. The introduction and application of the 2006 Policy gives rise to three issues:

(a) Most importantly whether the introduction and application of the 2006 Policy is in accordance with the Respondent's obligations as to occupational health and safety under clause 48 of the Agreement.

(b) Secondly, whether the introduction and application of the 2006 Policy constitutes an "extra claim" of a kind prohibited by clause 9 the Agreement; and

(c) Thirdly, whether the Applicant has fulfilled its consultation obligations in accordance with clause 14 of the Agreement.

4. Clause 48 of the Agreement provides as follows:-

'Clause 48 - Occupational Health and Safety

48.1 Council and Employees shall at all times comply with the provisions of the Occupational Health and Safety Act 2004 (Victoria) as amended from time to time.

48.2 Council shall provide and maintain a workplace that is so far as is practicable safe and without risks to health.

48.3 Employees shall at all times conduct themselves in a safe and responsible manner and comply with all Council Occupational Health and Safety Policies and Procedures.

48.4 Council shall encourage Employees to take a constructive role in promoting improvements in occupational health, safety and welfare, and to assist Council in achieving a healthy and safe work environment.'

5. Clause 48.1 imposes an obligation in the Agreement to comply with Victoria legislation.

6. Subsection 21(1) of the Occupational Health and Safety Act 2004 (Vic) provides as follows:-

(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

7. Clause 48.2 restates sub-section 21(1) of the Occupational Health and Safety Act 2004 (Vic).

8. For the purposes of the current matter, there is no material difference therefore between the obligations created by clauses 48.1 and 48.2 of the Agreement.

The Need for a Heat and Sun Protection Policy

(a) working in hot weather may give rise to occupational health and safety issues: Bisby, 9;

(b) The American Conference of Governmental Industrial Hygienists (ACGIH) has provided guidance on the protection of workers in hot conditions and outdoor workers: Bisby, 13;

(c) rest periods are part of a work management system which reduce workers' heat and accordingly reduces the level of risk to the safety and health of every worker: Bisby, 13.3.2.

10. Therefore, the Work Profile of, for example, parking enforcement officers within the Parking and Traffic Branch [7] gives rise to OHS issues.

11. Before the introduction and application of the 2006 Policy, the Heat and Sun Protection Procedure dated 22 August 2000 ("the 2000 Policy") regulated working in heat for the Applicant's employees in the Parking and Traffic Branch ("P&T Branch').

12. Under the 2000 Policy, P&T officers were entitled to take, and the Applicant was obliged to provide, breaks from work in hot weather, as follows:-

The following framework sets out the accepted parameters for work/rest breaks. The Duty Office or Team Leaders will advise when the framework is to be applied.

Within every half-hour period the following work/rest regime shall be applied:

Reduce work period to no more than 25 minutes working. Resting time in a shady or cool location should be 5 minutes (i.e. the balance of the half-hour period). Officers shall not work during rest times. **(i.e.. 50 on/10 off)

Reduce work period to no more than 20 minutes working. Resting time in a shady or cool location should be 10 minutes (i.e. the balance of the half-hour period). Officers shall not work during rest times. **(i.e.. 40 on/20 off)

Reduce work period to no more than 10 minutes working. Resting time in a shady or cool location should be 20 minutes (i.e. the balance of the half-hour period). Officers shall not work during rest times. **(i.e.. 20 on/40 off)

Stop all outside work with the exception of clause 3.3 Essential Services

6.1 Other alternative arrangements may be put in place with the agreement of the individual officer i.e., extended rest periods or rest periods outside the temperature range described in clause 6.

6.2 Subject to clause 6.1 alternative arrangements may not be used to decrease the minimum amount of time for rest breaks described under clause 6.

Officers should take rest breaks in cool, shady or air conditioned places. Officers should sit or rest to allow the body to lower its temperature according to the work/rest regime.

Officers who experience discomfort outside the temperatures in this framework are entitled to contact their Team Leader and request permission to return to the office. Such Officers will be provided with an opportunity to undertake alternative duties.

13. The work/rest regime in the 2000 Policy was an entitlement of P&T workers. The Applicant had an obligation to provide the breaks provided for in the work/rest regime: clause 6.0 The work/rest regime could only be varied with the agreement of the individual officer: clause 6.1.

14. The 2006 Policy (final and endorsed) substitutes a new and different work/rest regime table when WBGT values reach prescribed levels. [8]

Work/Rest Regime applicable (with Action Level 2)

unless control measures (e.g. shade working) can be adopted by the employee, to reduce her/his WBGT/heat load

unless control measures (e.g. shade working) can be adopted by the employee, to reduce her/his WBGT/heat load

unless control measures (e.g. shade working can be adopted by the employee, to reduce her/his WBGT/heat load

Work situations will be assessed individually by the employee and Team Leader and unless control measures (e.g. shade working) can be adopted by the employee, to reduce her/his WBGT/heat load, work shall cease and the employee shall return to the office and report.

16. Two effects of the 2006 Policy may be noted.

(a) No as-of-right entitlement to rest breaks

17. Under the 2006 Policy, the work/rest regime is not mandatory as it was under the 2000 Policy.

18. The 2006 Policy allows for the "consideration of the Work/Rest Regime Table where further control measures cannot be adopted by the employee" (at p 6) (emphasis added). The Policy does not say who is entitled to "consider" the Work/Rest Regime table, but it does say (at p 7):-

'The need to take rest or continue work, will be balanced with consideration of whether the work circumstances can be modified to reduce the effective heat loading on the employee.�.�.�[I]ndividual locations may vary and individual controls may be available which reduce effective WBGT and heat loadings and can allow work to continue�.�.�.'

19. Accordingly, the Applicant reserves to itself a discretion as to whether to allow breaks or not.

20. Ceasing work altogether is only "by agreement" (paragraph 5 of page 7 of the 2006 Policy). That is, if the Applicant does not agree to cessation of work, there will be no agreement and work must continue.

21. Because the application of the work/rest regime in the 2006 Policy is not an entitlement, but rather is at the discretion of the Applicant, the entitlement to the application of the work rest regime in the 2000 Policy is abolished by the 2006 Policy.

22. Despite some criticisms of "deficiencies" of the 2000 Policy [see Bisby, 29] it is not open to the Applicant to submit that mandated rest periods, increasing in duration as heat rises, work against the health and safety of the Applicant's employees.

23. The Commission will wish to know the reason for the shift away from mandated rest periods.

24. The 2000 Policy has to date been successful. Dr. Bisby in his Initial Report dated 22 March 2006 [9] noted:

'no incident reports or casualties from dehydration on record in recent years for Parking and Traffic officers'.

25. Further, in its initial "request for a specialist opinion" [10] to Dr. Bisby the Applicant stated, among other matters:

'This prescriptive work/rest regime approach [I.e. that contained in the 2000 Policy] is unworkable in a number of work areas, for example Events, where the unpredictability of staging events requires flexibility (the show must go on)'

26. As far as the Respondent is aware, the Applicant has not provided to the Commission material on the productivity impact (if any) of the operation of the 2000 Policy. It is unstated but open to the Commission to infer that reason is for the end to mandated rest periods (necessarily a reduction in OHS conditions for employees)is linked to issues of perceived diminished productivity.

(a) Officers will work longer in extreme heat - Comparison of thresholds for the work/rest regime: the 2000 Policy and the 2006 Policy.

27. The 2006 Policy provides for higher thresholds for the work/rest regime. The 2006 Policy uses Wet Bulb Globe Temperature (WBGT). By contrast, the 2000 Policy used dry-bulb temperature.

28. The WBGT index will be lower than the dry bulb temperature in low humidity conditions.

29. In Melbourne, very high temperatures are almost always accompanied by low humidity.

30. The threshold in the 2006 Policy for the first stage of the work/rest regime, namely 30.1 degrees WBGT, will almost always occur at temperatures higher than 30 degrees Celsius (dry bulb), which is the corresponding threshold in the 2000 Policy.

31. The threshold in the 2006 Policy for the second stage of the work/rest regime, namely 30.7 degrees WBGT, will almost always occur at temperatures higher than 32 degrees Celsius (dry bulb), which is the corresponding threshold in the 2000 Policy.

32. The threshold in the 2006 Policy for the third stage of the work/rest regime, namely 31.5 degrees WBGT, will almost always occur at temperatures higher than 34 degrees Celsius (dry bulb), which is the corresponding threshold in the 2000 Policy.

33. The threshold in the 2006 Policy for the final stage of the work/rest regime, namely greater than 32.2 degrees WBGT, will almost always occur at temperatures higher than 36 degrees Celsius (dry bulb), which is the corresponding threshold in the 2000 Policy.

34. Because, in Melbourne conditions, the trigger points of the work rest regime occur at higher temperatures under the 2006 Policy than under the 2000 Policy, P&T officers working under the 2006 Policy will be obliged to work for longer periods in extreme heat than they would have been obliged to work under the 2000 Policy.

The expert opinions: the "trigger points" contained in the 2006 Policy

35. In this case, two expert witness statements have been filed: the first, by the Applicant from John Bisby; the second by the Respondent from Robert Sutherland.

36. Each prefers a WBGT index to a dry bulb index.

37. The WBGT Values in the 2006 Policy - i.e. which makes applicable a work/rest regime when there is a WBGT value of 30.1 or greater apparently sources its values from "Hot Conditions At Work - Notes For Inspectors, Occupational Hygiene Group Work Environment Branch, Department of Labour 1990." [11] [see Bisby, 24.2, see page 6)of that Report].

38. Further, the values are based on "acclimatised" employees.

39. In contrast, Robert Sutherland expresses the professional opinion that "P& T officers should be classified as unacclimatised workers": Sutherland, answers to questions 1 & 8.

40. In Robert Sutherland's table, lower trigger points are seen as appropriate for OHS purposes. The sources for his values are footnoted by him. [12]

The content of the obligation of an employer to make the workplace safe in so far as is "reasonable practicable".

41. The submissions above must be measured against the obligations contained in the Agreement.

42. Each of clause 48.2 and section 24(1) of the OHS Act impose an obligation on an employer to make a workplace safe in so far as is "reasonably practicable".

43. Inherent in that obligation is an obligation to act on the best material available; one might expect that the Applicant would adopt what might be described as "best practice" in relation to OHS.

44. However, in the Respondent's submission the Applicant's 2006 Policy does not to do what it is "reasonably practicable." It:

(b) the 2006 Policy teats P& T Officers as acclimatised rather than as unacclimatised workers; and

(c) it sources relevant "trigger points" from older rather than current practice material available from recognised international associations.

45. A subsidiary submission of the Respondent is that the 2006 Policy breaches the "no extra claims" provision of the Agreement.

46. Clause 9 of the Agreement provides as follows:-

'It is a term of this Agreement that the parties will not pursue any claims relating to terms and conditions or any other matter whether covered by this Agreement or not for the period of the Agreement.

The parties further undertake that there will be no further wage increases sought or granted under the terms of the Agreement and any increases permissible under the Award that do not contradict the Agreement.'

47. The test of what constitutes an "extra claim" is set out in MFESB v UFUA (PR956379):-

'unless the proposed change contemplates the variation of a specific entitlement or obligation, or goes to a matter outside the scope of the Agreement, then it does not amount to an extra claim�.�.�.'

48. The 2006 Policy obliges workers to work longer in extreme heat, with an inferior entitlement to rest breaks. Accordingly, its introduction and implementation constitutes a "variation of a specific entitlement or obligation". The entitlement and obligation is varied:

(a) firstly because the rest breaks occur at higher temperatures (and therefore less frequently), and

(b) secondly because any rest breaks are at the discretion of the Applicant.

49. Abolition of an entitlement constitutes variation of an entitlement for the purposes of the test in MFESB.

Extra claim is a matter concerning the application of the Agreement

50. The Applicant, at paragraph 45 of its submission, submits that, if the 2006 Policy is not a matter covered by the Agreement, the Commission would be precluded from dealing with the present dispute pursuant to s170LW of the Workplace Relations Act 1996 (Cth) ("the Act"). The submission confuses the source of the entitlement which the Applicant seeks to vary (namely, the 2000 Policy) and the source of prohibition of that variation (clause 9 of the Agreement).

51. The entitlement to the rest breaks under the 2000 Policy arises outside the Agreement. However, clause 9 of the Agreement prohibits claims on matters "whether covered by this Agreement or not". The Commission has jurisdiction to arbitrate dispute so long as such disputes are properly characterised as disputes over the application of the Agreement: s170LW of the Act, CFMEU v MacMahon Contractors Pty Ltd, PR965459. A dispute over whether an extra claim is prohibited by clause 9 of the Agreement is a dispute over the application of clause 9 of the Agreement.

52. If the Commission (contrary to the submissions above) is satisfied that the 2006 Policy can be implemented conformably with the Applicant's OHS obligations pursuant to clause 48 of the agreement, in respect of the "no extra claims" issue it may still take into account the comfort and working conditions (as contrasted with the safety) of the Applicant's employees. The subject matter of the dispute concerns working in extreme heat. Irrespective of the safety issues of the removal of rest breaks constitutes decreases the comfort and working conditions of employees; it is a diminution in the terms and conditions of their employment against which they ought to be protected by the "no extra claims" clause.

53. Further, the way in which the 2006 Policy is framed with its reference to "control measures" [see table at page 6] is liable to give rise to disputation between the Applicant and members of the Respondent concerning whether and what control measures can be adopted. The Respondent's members will lose the benefit of the certainty of application that is part of the 2000 Policy but not part of the 2006 Policy.

53. Clause 14 of the Agreement imposes obligations as to consultation.

54. The introduction of the 2006 Policy imposed the duty on the Applicant to discuss change: clause 14.3.

55. The Respondent accepts that there was significant consultation concerning working in the heat. However, in the Respondent's submission there was not sufficient consultation concerning the particular terms of the 2006 Policy."

[13] MCC filed the following written closing submissions on 21 February 2006 [13]:

"1. The Applicant refers to and repeats its submissions set out in Exhibit A1.

2. The revised Heat and Sun Protection Policy (Policy) was introduced and subsequently applied in accordance with all relevant provisions of the Melbourne City Council Enterprise Agreement 2005 (Agreement). It is important to note the differences between the scope of the 2000 policy and procedures (documents 1 and 2 in Exhibit A2) and the Policy. Document 1 had application throughout the City of Melbourne, and as it states, applies to "all employees of the City of Melbourne". Nowhere does that policy provide for a mandatory work/rest regime. In contrast, document 2 in Exhibit A2 is the procedures document peculiar to the parking and traffic regulation branch, applying the overall corporate policy. It is this document which is expressed in the form of an "agreement" (although no evidence was called by the Respondent in relation to the actuality, as opposed to the form, of that agreement) and which contains the much-discussed mandatory work-rest regime.

3. The Thiedeke proposed review would have resulted in the expansion of the 2000 work/rest regime to cover all City of Melbourne employees: see document 4B in Exhibit A2. Similarly, the Policy (document 58 in Exhibit A2) also applies to "all employees and volunteers who are required to work outdoors" that is, not just parking and traffic branch staff. At the outset, it is important to note that any insertion, therefore, of a "mandatory" work/rest regime, as is pressed by the Respondent, would apply to staff such as rangers, as well as parking enforcement officers. The Respondent has not called any evidence as to how the insertion of such a requirement would be consistent with the Applicant's obligations under clause 48 pf the Agreement to provide and maintain, so far as is practicable, a safe working environment.

4. The Respondent claims clause 14 (Consultation) was breached in respect of the pre-shift declaration form, document 80 in Exhibit A2 (PN2301). The introduction of a form, the substance of which had been the subject of extensive consultation and training, does not constitute a "major change" in any "production, program, organisation, structure or technology" that is likely to have "significant effects" as defined in sub-clause 14.2. That sub-clause deals with fundamental terms of the contract of employment, such as alteration of hours and the possibility of retrenchment. The form seeks nothing more than information necessary to enable the employer to discharge its obligations both under the Agreement and under the Occupational Health & Safety Act 2004 (Victoria) (OHS Act) by identifying relevant risk factors pertaining to the individual. The evidence of Mr Michalidis is illustrative of the extent to which the Respondent seeks to expand the reach of the document to suggest that it requires disclosure of things it does not: PN2439-2443.

5. If clause 14 does cover document 80 (which is denied) its requirements have been met. A document putting into practice the principles which had been the subject of consultation for months via the risk assessment process, including self assessment and self management (PN2387-PN2389) came as no surprise. The use of a particular form to encapsulate and apply principles which have been the subject of consultation, and which will be the subject of review at the end of this summer (see the evidence throughout of Ms Wainwright) meets the requirements of the Agreement's consultative clause: see MFESB v UFU, PR917280_, Drake SDP, 1�May 2002 at paragraph 15. As document 50 in Exhibit A2 illustrates, Dr Bisby considered matters raised in document 28 in Exhibit A2, the report of Simon Sostaric of Victoria University, who had been engaged by, amongst others, the witness Mr Michailidis. Mr Michailidis was sufficiently involved and informed, as a health and safety representative and ASU member, to obtain his own critique from Victoria University dated 12 June 2006, and then produce it to the Applicant in August 2006. Whilst clause 14 of the Agreement requires notification and discussion of matters within its scope, consultation does not require agreement or codetermination: see CPSU and Air Services Australia, Print 5773, Holmes C, 11�June 1999._

6. The introduction and implementation of the revised Policy is not an extra claim for the purposes of clause 9 of the Agreement. It is neither outside the scope of the Agreement (as it deals with occupational health and safety), nor does it vary an entitlement under the Agreement. Exhibits R8, R9 and R10 simply provide that the Applicant observes various "human resource and administration policies and procedures". Even if, as Mr Dawson-Smith conceded, the Policy is encompassed within those terms, it is not referred to by name. In CPSU and Special Broadcasting Service Corporation, Print S6933, Duncan DP, 9 June 2000, the Commission dealt with a dispute over SBS' proposal to change policy to require staff to fund their own expenses incurred in the using of taxis due to working late or early. The Commission stated as follows:

'[51] The question therefore is, was SBS' action in changing the taxi policy an extra claim. SBS denies that it is �.�.�.[paragraph 54] A claim to remove an existing entitlement to a taxi payment for travel from work to home or some intermediate point does fall within the relationship of employer and employee. An entitlement may arise from an award or certified agreement but is it an entitlement if it is the result of managerial policy. For current purposes this is important because SBS submits that what was removed was in fact a change in policy not a removal of an entitlement. I accept that proposition at least to the extent of holding that the removal was within management's prerogative there being no agreement or award giving rise to an entitlement as I have used that word. Removal or proposed removal might well give rise to an industrial dispute but it is the objection to the removal or the claim for its replacement which is a claim. The act of removal is not a claim. I reach this conclusion having considered Mr Hall's argument that because there is a shift of cost involved there is a claim.'

7. The Agreement does not specify an entitlement to cease work at a particular point in time or temperature. The Agreement does not prescribe that policies must be in the form of unregistered industrial agreements. As the SBS decision makes clear, an entitlement arises under an award or agreement, and if it arises "otherwise" it still has to be something more than managerial prerogative and to a matter outside the scope of the Agreement. The Policy meets neither criterion. A mere matter of managerial prerogative, irrespective of what the consequences of that may be contractually, does not fall within the scope of a "no extra claims clause".

8. Document 2 within Exhibit A2 is the procedure implementing the 2000 Policy, within the parking and traffic regulation branch. It is irrelevant whether it is in the form of an unregistered industrial agreement. No evidence was given as to the substance of that agreement and how it fits within the scope of the Agreement or its predecessor. In any event, no legal consequences flow from such an agreement, no matter its industrial or political significance. The Applicant is under no legal obligation to ensure its policies operate by virtue of an agreement with the Respondent: PN1042.

9. The question of whether there is a contractual entitlement to the benefits of the 2000 policy and procedures enjoyed by any particular individual is not a matter that can be determined by the Commission as it would require an exercise of the judicial power of the Commonwealth. The Agreement does not provide any "entitlement" to policies frozen at any particular point in time. Context is all important when the Commission is examining an instrument for the purpose of deciding its proper application, as in this case: see CPSU and Air Services Australia at paragraph 21. A refinement and revision of an existing policy is not an extra claim: Moonee Valley City Council v ASU & Ors, PR950883_, Simmonds C, 16 August 2004._

10. The Respondent appears to assume that for the Applicant to be able to vary its policy environment, it must discharge a burden of proof by demonstrating that it was "necessary for reasons of OHS obligations" to, for example, remove the mandatory work/rest regime. This is not so. Nowhere in the Agreement, or the Act, is such an obligation placed upon the Applicant. Rather, the question is whether the introduction and application of the policy is "in accordance with" the requirements of the Agreement. That simply means, whether in the case of occupational health and safety or otherwise, the variation is consistent with the Applicant's obligations. The Applicant does not have to submit, nor does it, that the removal of the mandated work/rest regime was necessary to meet its OHS obligations. It must only show that doing so was not inconsistent with those obligations. How it chooses to discharge its obligations is a matter for its managerial prerogative, and not for the Respondent nor, with respect, for the Commission.

11. The Respondent complains that the change in policy removes a "benefit" that "protected workers' comfort". That is not a matter covered by the Agreement. If such "entitlements" exist, and are prevented from variation by the operation of clause 9, then what work has clause 14 to do? In contrast, clause 14 clearly contemplates the Applicant making a definite decision to introduce major changes in production, program, organisation, structure or technology, which can include "major changes in the composition, operation or size of Council's work force or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer . . . . ; and the restructuring of jobs". How much more then does the Agreement contemplate a revision to a policy. There is simply no entitlement to cease work, whether grounded in the Agreement or otherwise, and if it is argued that it is grounded in contract, then this is not a matter that the Commission can determine.

12. Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; (2000) 177 ALR 193, relied upon by the Respondent, is simply irrelevant. That was a matter before the Federal Court, not the Commission, and required the Court to determine the extent to which policies were incorporated by reference into individual contracts of employment. That is not a matter which is within the Commission's jurisdiction to determine. Again, whether custom and practice converts a policy environment into a term of an individual's contract is not a matter within the Commission's jurisdiction and so, to the extent to which the Respondent relies upon the five year application of the 2000 policy, this is irrelevant to the question of whether the new policy constitutes an extra claim. Matters of managerial prerogative as referred to in the SBS decision do not lose that status through long user. The existence of clause 8.5 in the Agreement, under the award preservation clause, and which merely reflects and confirms that the Agreement may indeed operate more favourably than the Award, is irrelevant to the point at issue. Whether employees do have such terms and conditions is not relevant to whether the change in policy comprises an extra claim. On no analysis can the policy environment constitute a specific entitlement, whether within or outside the scope of the Agreement.

13. If the Agreement, properly construed, could be said to prevent the Applicant revising the Policy, then to that extent the Agreement will be inoperative due to the operation of pre-reform section 170LZ, preserved under clause 2(1)(g) of Part 2 of Schedule 7 of the Workplace Relations Act 1996 (Act), as contrary to the obligations of the Applicant to maintain a working environment that is safe and without risk to health so far as is reasonably practicable under section 21 of the OHS Act.

14. The authorities make clear that where a definite quantifiable demand is made, then an extra claim may exist, for example CPSU v Minister of Defence & Ors, PR5382, 31 May 1999: Police Association v Victorian Police Force, PR958931_, Hamberger SDP, 16 June 2005; and of course Moonee Valley City Council v ASU. There is an ongoing obligation on the Applicant's part to provide and maintain a safe working environment so far as is reasonably practicable, and the only question is whether the Applicant's actions are consistent with that obligation._

15. The nub of the case is whether the Policy's introduction and application is consistent with the Applicant's obligation under clause 48 of the Agreement to "provide and maintain so far as is practicable" a working environment that is safe and without risk to health; not to comfort. This clause operates subject to section 21 of the OHS Act, which expresses the duty in terms of reasonable practicability, rather than mere practicability. To the extent to which the Applicant is obliged to comply with a different standard in each document, the OHS Act must prevail.

16. The essence of the case, therefore, turns on the respective views of the expert witnesses. The question is not whether the Policy is ideal or whether, with respect, the Commission agrees with one expert as compared to another's approach. The relevance of the expert witness evidence is the extent to which it either supports, or contradicts, the assertion that the Policy has been introduced and applied in accordance with the Agreement.

17. An 'incident-free' earlier version of the Policy does not mean that such a policy is immune from review in discharge of the Applicant's obligations under clause 48 of the Agreement and section 21 of the OHS Act.

18. It is submitted that the Commission, having regard to Dr Bisby's evidence in total, and the numerous documents within Exhibit A2 generated by or in relation to Dr�Bisby's involvement, should be satisfied that the Applicant's approach, adopted on the advice and recommendations of Dr Bisby, is consistent with the discharge of its obligations under the Agreement.

19. Much time was spent on whether the appropriate entry point under Action Level Three should be based on 'un-acclimatised' versus 'acclimatised' WBGT measures; and whether the Policy should provide for universal mandatory rest breaks at particular points, or some level of discretion and flexibility based on the assessed level of threat to each individual's health and safety, which must be distinguished from their comfort.

20. The provision and maintenance so far as is practicable of a safe and healthy working environment does not, of itself, mean that steps in pursuit of that goal cannot also result in, or indeed be intended to, obtain productivity gains for the employer. Productivity and safety are not mutually exclusive. The extent to which there is evidence that productivity gains were or were not in the minds of various witnesses, or have been achieved, or were measured as part of the review process is simply irrelevant unless the evidence shows that such gains were obtained at the expense of safety. There is no such evidence.

21. The Applicant says that the new version of the Policy, with its emphasis on a multi-factor, individualised approach and use of acclimatised entry points accompanied by enhanced protective dress; extensive and ongoing universal training; and identification and management of vulnerable individuals does indeed illustrate that the Policy is consistent with the Applicant's obligations under clause 48 of the Agreement. Indeed for the reasons set out at paragraphs 29 and 30 of the witness statement of Dr Bisby, the Policy is not only consistent with those obligations (in the sense that it does not represent a diminution of safety) it is a positive advance over the previous policy in safety terms.

22. The Policy's emphasis on self assessment and self management is consistent with clause 48.4 of the Agreement: see PN2391 compared with section 25 of the OHS Act. The Respondent's witnesses, Mr Michailidis and Mr Persson, do not appreciate the importance of the individual employee's role in managing safety, but this does not result from the Applicant's method of discharging its legal obligations.

23. Indeed, this approach does no more than recognise the self-regulating and autonomous nature of parking enforcement officers' work, which was admitted; see for example, PN2399-PN2401.

24. Dr Sutherland admits (PN1870, PN1758) that his approach, and the approach of the previous policy, provide more rest than is necessary for many, if not most, individuals' health and safety. They are getting more rest than their safety demands. It is consistent with the Applicant's obligations to seek a more focused approach that takes account on the one hand of individual vulnerabilities via pre-shift disclosure and subsequent management by trained team leaders (as was, so it turned out in evidence, perfectly exemplified by Ms Stewart's management of Mr Persson the day before he gave his evidence, when the examination of his diary revealed that far from suggesting that he should not be working at the Council, his supervisor had indicated that she would need to speak to HR about what would need to be done with Mr Persson to manage his illness, given the prospective heat of the day: see paragraphs PN2644-PN2657) while on the other hand distinguishes between individuals' safety and comfort.

25. The Applicant is only required to provide a safe system so far as is [reasonably] practicable; the fact that, after the provision of extensive and admitted training and the provision of simple brochures (see document 57 in Exhibit A2) individuals such as witnesses Michailidis and Persson do not comply with the Policy and hold irrational fears does not mean that the Applicant has not discharged its obligations "so far as is [reasonably] practicable".

26. The key international ACGIH scientific documents (for example document 3 and Exhibit R7) apply equally to a Canadian steel worker arriving at a foundry in the depths of winter as to a Melbourne parking officer. This self-evidently results in the conclusion that "full acclimatisation" means different things depending on the surrounding circumstances. So much was admitted by Dr�Sutherland: PN1769. A lower level of acclimatisation, in the Applicant's submission, is required when all of the other factors are taken into account (see PN1724-1790). Those factors were admitted by Dr Sutherland to be relevant: see PN1751-1753. After all, the only safety issue is the body core temperature of the individual, so logically, any factor (such as how fast they are working, the breeze blowing on them, their individual state of health) affecting that will be relevant. Yet, illogically it is submitted, Dr�Sutherland maintained that three week full heat acclimatisation is required as if a parking officer were going to work safely in the Canadian foundry - PN1792. This evidence should be contrasted with that of Dr Bisby: see for example PN880-PN891. Even document 2 within Exhibit A, the 2000 procedures, recognises that acclimatisation is required for "new officers or officers returning from periods of leave or sick leave" (paragraph 3.2) not for all officers. So Dr�Sutherland's approach departs even from the 2000 regime in this regard.

27. The Applicant's approach is to address each individual's situation in terms of their environment, recognising the self-regulating speed at which they work, their ability (which was admitted) to transfer to cooler environments, for example air conditioned cars (see PN2378), move and work in an outdoor environment identical to that in which they live when not on duty, with all its micro climatic variations as to wind speed and direction, shade etc. All such factors are relevant to a focused approach to safety. Mr�Persson would have had no temperature-based entitlement to stop work under the 2000 policy on 16�January 2007 and there is no evidence as to what caused his illness. What is clear, however, is that the Respondent's witnesses do not like change and consider that the Applicant has no right to revise its policies if they (the Respondent's witnesses) are satisfied with the old - irrespective of whether that satisfaction is based on considerations of comfort or safety.

28. It is clear on their face that the scientific documents (for example document 3 and document 107 in Exhibit A2; Exhibit R7) are guidelines. As Exhibit R7 indicates on page 2, WBGT is only an index of the environment. Screening criteria need to be adjusted for the contributions of work demands and clothing as well as acclimatisation. Dr Bisby, a self-evident expert whose experience was unchallenged, was entitled to adjust the entry points at Action Level Three to take account of the relevant ameliorating factors, without this of itself rendering the Policy inconsistent with the Applicant's obligations under clause 48, and to recognise that if other factors are present (for example availability of shade), it is possible for a given individual to keep working safely (maybe not comfortably) despite the heat.

29. The question for the Commission is whether the individualised Policy, with all of the checks and balances outlined extensively in Dr Bisby's evidence and based on the guidelines set out in the scientific literature before the Commission, is consistent with the Applicant's obligations under clause 48 of the Agreement; or whether a system which Dr Sutherland admits results in individuals getting more rest than their safety demands is necessary to ensure compliance. It is submitted that on all of the evidence, the latter is not the case and both the implementation and application of the policy is compliant in all respects with the requirements of the Agreement.

[14] ASU filed the following closing submissions on 21 February 2007:

1. On 1 November 2006 the Applicant introduced a revised Heat and Sun Protection Policy (the "2006 Policy") [14].

2. The parties have been in dispute about the 2006 Policy. As to the history of the matter, on 24 November 2006 the Applicant made an application to the Commission to have a dispute resolution process conducted: A2, doc. 86. There were conciliation conferences on 29 November and 4 December 2006 at which the matter was not resolved. On 12 December 2006 the Applicant made an application under section 496 of the Workplace Relations Act 1996 (the "WRA Act"). At hearings on 13 and 14 December 2006, the Respondent gave an undertaking to the Commission not to take industrial action in respect of the dispute over the implementation of the 2006 policy: A106. That undertaking has been observed

3. The parties agreed terms of reference for the dispute [15]. These are:

'Pursuant to section 170LW of the pre-reform Workplace Relations Act 1996, whether the Heat And Sun Protection Policy (Policy) as modified to take effect from 1 November 2006 was introduced and subsequently applied in accordance with the requirements of the Melbourne City Council Enterprise Agreement 2005 (Agreement).

The above question includes but is not limited to whether the introduction and application of the Policy complies with clauses 48 (occupational health and safety) and clause 9 (no extra claims).'

4. The dispute is now being dealt with pursuant to those agreed terms of reference.

(a) First, the 2006 Policy is not in accordance with the Respondent's obligations as to occupational health and safety under clause 48 of the Agreement (paragraphs 6 - 73 below);

(b) Second, the Applicant has not fulfilled its consultation obligations in accordance with clause 14 of the Agreement as to the circulation of the "Pre-Shift Declaration On Personal Health In Heat And Sun" [Ex A2, doc. 80] (paragraphs 74 - 89 below); and

(c) Third, the introduction and application of the 2006 Policy constitutes an "extra claim" of a kind prohibited by clause 9 the Agreement (paragraphs 90 - 118 below).

6. Clause 48 of the Agreement provides as follows:-

48.5 Council and Employees shall at all times comply with the provisions of the Occupational Health and Safety Act 2004 (Victoria) as amended from time to time.

48.6 Council shall provide and maintain a workplace that is so far as is practicable safe and without risks to health.

48.7 Employees shall at all times conduct themselves in a safe and responsible manner and comply with all Council Occupational Health and Safety Policies and Procedures.

48.8 Council shall encourage Employees to take a constructive role in promoting improvements in occupational health, safety and welfare, and to assist Council in achieving a healthy and safe work environment.'

7. Clause 48.1 imposes an obligation in the Agreement to comply with Victorian legislation.

8. Subsection 21(1) of the Occupational Health and Safety Act 2004 (Vic) provides as follows:-

'(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.'

9. Clause 48.2 restates sub-section 21(1) of the Occupational Health and Safety Act 2004 (Vic).

10. Those obligations must be interpreted in the context of the stated objects of the OHS Act namely:

'(a) to secure the health, safety and welfare of employees and other persons at work; and

(b) to eliminate, at the source, risks to the health, safety or welfare of employees and other persons or work'.

The content of the obligation of an employer to make the workplace safe in so far as is "reasonable practicable".

11. In Edwards v National Coal Board [1949] KB 704 at 712; [1949] 1 All ER 743, Lord�Asquith said:

'Reasonably practicable" is a narrower term than "physically possible" and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus on them.'

12. The leading Australian authority is the High Court decision in Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304; 177 ALR 585; [2001] HCA 6; BC200100264. In that case, Gaudron J. said [16]

'The words "reasonably practicable" have somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

• the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible";

• what is "reasonably practicable" is to be judged on the basis of what was known at the relevant time;

• to determine what is "reasonably practicable" it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.'

The 2000 Policy and the 2006 Policy Contrasted

13. Before the introduction of the 2006 Policy, the Heat and Sun Protection Procedure dated 22 August 2000 ("the 2000 Policy") [Ex A2, document 2] regulated working in heat for the Applicant's employees in the Parking and Traffic Branch ("P&T Branch').

14. An extract of the 2000 Policy work/rest regime is set forth in Appendix 1 to these submissions. P&T officers were entitled to take, and the Applicant was obliged to provide, breaks from work in hot weather: clause 6.0. The work/rest regime could only be varied with the agreement of the individual officer: clause 6.1.

15. The 2006 Policy (final and endorsed) substitutes a new and different work/rest regime table when WBGT values reach prescribed levels. [17]

16. The work/rest regime table that constitutes Action Level 3 is Appendix 2 to these submissions.

The 2006 Policy does not so far as is reasonably practicable provide and maintain a workplace that is safe and without risk to health

17. It is the Respondent's submission that the 2006 Policy does not so far as is reasonably practicable provide and maintain a workplace that is safe and without risk to health.

18. The Respondent has set forth below the reasons for this submission. This part of the submissions is divided into two parts:

(b) Second, submissions as to the two principal areas of scientific disagreement between Drs Bisby and Sutherland namely:

(i) whether the employees should be treated as acclimatised or non-acclimatised workers; and

(ii) whether a regime that adopts mandatory work/rest breaks or whether a system that permits a greater degree of individual employee discretion is appropriate.

19. In extreme heat outdoor workers are at risk and a Heat and Sun Policy is important. The Applicant's material records the "Inherent Requirements of Work Role" [18]. They include:

'* working outdoors, with exposure to heat and sun

• constant walking over sloping and uneven ground for up to 8.26 hours per day, with 20 minutes meal break;

• Frequent, repetitive bending and reaching to knee height, to mark tyres with chalk .�.�.'.

20. Accordingly, a Heat and Sun Protection Policy is important. Working in hot weather may give rise to OHS issues: A4, Bisby, WS, 9. In circumstances in which Parking Enforcement Officers are required to work outdoors in, from time to time, extreme heat they constitute a group at real risk. To the extent that Dr Bisby suggests that they are a "low risk" [19]group that evidence should not be accepted. It is to be contrasted with the evidence of Dr. Sutherland who said at PN1595:

'Now, I also understood Dr Bisby to say, and I hope I don't do his evidence a disservice, that he at a level of generality understood that by the nature of their duties the parking enforcement officers were a low risk group. Are you able to express agreement or disagreement n that delineation of the level of risk of the work performed by parking officers?---I'm a little bit surprised by that statement. This work is exposed to extreme heat on particular days, heat stress conditions and if it wasn't for the controls on those people at the moment we'd have some major safety and health issues.'

21. In part, risk is a function of work environment and the occasional exposure to "extreme heat on particular days" is a real risk for law enforcement officers.

The available evidence is that the 2000 Policy has been effective

22. The 2000 Policy [A2, document 2] has to date been successful. Dr. Bisby in his Initial Report dated 22 March 2006 [20] noted:

'no incident reports or casualties from dehydration on record in recent years for Parking and Traffic officers'.

23. Despite an assertion that the 2000 Policy is overly prescriptive [21] no evidence has been produced as to any unacceptable impact on efficiency by reason of the 2000 policy. The Applicant has not made out that its implementation has occasioned disproportionate cost, time or trouble: see Gaudron J in Slivak above. Despite the Applicant asserting that the current policy is "unworkable" no evidence is before the Commission of how it is unworkable. Accordingly, Change is based upon the Applicant's perceptions rather than quantitative evidence that there has been any unacceptable organisational impact from the operation of the 2000 Policy.

24. By reason of the adoption of a WBGT system, Parking Enforcement Officers will work longer in extreme heat with fewer breaks under the 2006 Policy than was the case under the 2000 Policy.

25. This circumstance will arise as in Melbourne very high temperatures are almost always accompanied by low humidity. The WBGT index will be lower than the dry bulb temperature in low humidity conditions.

26. In response to a question from Lyn Wainwright about Table 2 (a modified version of which forms part of the 2006 Policy) contrasted with the 2000 Policy Dr Bisby said [A2, doc. 34, page 3 of 4]:

"if downtime and productive time is compared under the two regimes, then there is no doubt that productive time is going to be increased and downtime of rest breaks, reduced under the new table. However health and safety is not going to be affected."

27. Further, in his initial risk assessment [A2, doc. 22, page 5] Dr. Bisby noted:

'the low humidity conditions almost always applicable in Melbourne, on days of 34�C DB air temperature indicates with reasonable certainty that WBGT measurements (see references) applicable to the work would consistently produce WBGT readings lower than DB air temperatures. Australian work on WBGT in dry climate conditions suggest that at DB air temperatures of 30�C and over, WBGT readings will be 5-8� lower in numerical terms, i.e. a DB temperature of 36� centigrade, may be a situation where measurement of WBGT might be expected to be 28-34�C WBGT.'

28. Appendix 2 has been marked up to illustrate how law enforcement officers will work longer with fewer breaks.

29. The ASU accepts that the weight of scientific evidence favours a WBGT methodology rather than a dry bulb methodology.

(b) The difference between the experts: Drs. Bisby and Sutherland

30. The two main areas of scientific disagreement were as to whether law enforcement officers should be treated as non-acclimatised workers or acclimatised workers and the need (or otherwise) for prescribed breaks.

31. In its summary filed with the Commission on 20 February 2007 (paragraph [6]) the Applicant says that the question is not whether the Commission "agrees with one expert as compare to another's approach". However, it is the Respondent's submission that if Dr Sutherland's evidence is correct (and the Respondent submits it is) the result is that the Applicant is not so far as is reasonably practicable providing and maintaining a workplace that is safe and without risk to health, because unacclimatised workers are being this misclassified.

32. The Commission must adjudicate on the competing expert opinions. If it cannot do so, it must adopt the most risk averse approach, which is that of Dr. Sutherland.

33. It is the Respondent's submission that I the event of conflict with Dr Bisby Dr Sutherland's evidence should be preferred because his opinions have demonstrable and readily identifiable textual support in the scientific literature. In contrast, Dr. Bisby departs from the scientific literature. This submission is developed below.

Parking enforcement officers should be treated as unacclimatised rather than as acclimatised workers

34. The Applicant's 2006 policy at Action Level 3 treats its parking enforcement officers as "acclimatised" rather than unacclimatised workers. [22]

35. In contrast, Dr. Sutherland expressed the professional opinion that "P& T officers should be classified as unacclimatised workers": Sutherland, answers to questions 1 & 8; Exhibit, R2. As a result, in Dr. Sutherland's table, lower thresholds are seen as appropriate entry points for the table. Dr. Sutherland footnotes the sources for his values. [23]

36. In this scientific arena the phrase "acclimatised workers" has a particular meaning. Dr. Bisby himself summarises it in his 31 March 2006 report "Working in Hot Conditions" [A2, doc. 25, page 5 of 17]:

'Acclimatisation is a slow physiological adjustment of the body to a hot environment. Acclimatised workers sweat more efficiently and have improved capacity to work in hot conditions. Unacclimatised workers will tend to be more susceptible to heat stress.

A reduction in acclimatisation occurs if exposure to heat ceases for more than 2-3 days. Acclimatisation disappears completely in about a week and on return from absences workers may be more vulnerable to heat stress. Problems often occur in the first few hot days of summer, when workers are not acclimatised.'

37. Both experts acknowledged the pre-eminence of the American Conference of Governmental Industrial Hygienists (ACGIH) Dr. Bisby's summary[A2, doc. 25, above] is functionally identical to the ACGIH documentation: [A2, doc 3]:

'Acclimatisation is a set of physiological adaptations, the development and loss of which are described in the Documentation. Full-heat acclimatisation requires up to 3 weeks of continued physical activity in the heat-stress conditions similar to those anticipated for the work. Its loss begins when the activity under those heat-stress conditions is discontinued, and a noticeable loss occurs after 4 days. With a recent history of heat-stress exposures (e.g., 5 of the last 7 days), a worker can be considered acclimatised for the purpose of using Table 2.'

'the climate in Melbourne is variable, and summer temperatures vary from day-to-day quite substantially. This means that full acclimatisation to hot weather does not happen, although it is likely that some acclimatisation occurs during the summer season'[A2, doc. 56, page 7 of 24](my emphasis).

39. In his initial risk assessment, Dr Bisby also records the variability of temperatures in Melbourne:

'consistent peaking of daily maxima (DB air temperatures) over 34�C is a rarer event in Melbourne, with over 70% of days of 34�C or above being followed by gains of 30� C or below' [A2, doc. A22, page 4].

40. Therefore, on the Applicant's own material - "full acclimatisation to hot weather does not happen" - yet Dr. Bisby has used the thresholds for fully acclimatised workers for the purposes of the thresholds that appear at Action Level 3 in the final endorsed 2006 Policy.

41. In the introductory words to the table contained within his final report that formed the foundation for the 2006 Policy [A2, doc. 25, page 14 of 17] Dr. Bisby notes that the values are for "fully acclimatised workers".

41. An apparent tension between these two statements was a topic of cross-examination: PN 603 -PN629. In answer to a question of the Commissioner at PN625 at which point it had been suggested by the cross-examiner that there was a conflict between A2, doc. 56 and the entry points in the table being those for fully acclimatised workers Dr. Bisby said:

'THE COMMISSIONER: Why do you disagree?---Because the document in which I made this statement is a background document for information of team leaders, whereas the table which takes into account acclimatisation was specifically directed to this particular job. So the two can be reconciled because effectively the acclimatisation that is required for this particular job is in place in these officers if they live in Melbourne during the summer season.'

43. Accordingly, Dr. Bisby's evidence was that acclimatisation was achieved by living in Melbourne's variable summer climate.

44. On this evidence Dr Sutherland should be preferred because:

(a) There is an irreconcilable tension between what Dr Bisby himself has said in A2, doc. 56 and the entry points he has chosen for the table;

(b) his evidence that acclimatisation is achieved by living in Melbourne has no support in the scientific literature;

(c) in contrast, any fair reading of literature supports the position of Dr Sutherland that acclimatisation only occurs by sustained work in a heat-stress environment; see excerpt from A2, doc. 3 above.

45. The workers ought to be treated as unacclimatised workers in line with the evidence of Dr. Sutherland.

46. Dr Bisby acknowledged that experts may disagree [PN686] but then dismissed Dr Sutherland's position out of hand: PN689. From an OHS perspective, if there is doubt the thresholds for unacclimatised workers ought to be preferred. This is particularly the case in circumstances in which the employer's obligation is to do all that is "reasonably practicable". The Applicant has not made a case that there would be disproportionate time cost or trouble in adopting the international standards for unacclimatised workers.

Rest breaks should be as of right not at the applicant's discretion

47. The second OHS issue is that under the 2006 Policy the work/rest regime is not mandatory as it was under the 2000 Policy.

48. Dr. Bisby acknowledged that rest periods are part of a work management system which reduces workers' heat and accordingly reduces the level of risk to the safety and health of every worker: Bisby, 13.3.2.

49. In the 2006 Policy an employee's right to rest breaks is subject to a qualification namely that once the relevant WBGT value threshold is reached there is a prescribed rest "unless control measures (e.g. shade working) can be adopted by the employee".

'The need to take rest or continue work, will be balanced with consideration of whether the work circumstances can be modified to reduce the effective heat loading on the employee…[I]ndividual locations may vary and individual controls may be available which reduce effective WBGT and heat loadings and can allow work to continue.�.�.'

51. Accordingly, the Applicant reserves to itself a discretion as to whether to allow breaks or not.

52. Ceasing work altogether is only "by agreement" (paragraph 5 of page 7 of the 2006 Policy). That is, if the Applicant does not agree to cessation of work, there will be no agreement and work must continue.

53. The reasons behind are amplified in an e-mail exchange between Dr. Bisby and Lyn Wainwright on 5 September 2006: A49. In that e-mail Dr. Bisby notes:

'We have introduced flexibility by changing from a rigid Table of work time/rest periods triggered by certain WBGT levels, to allowing for individual variation when the environment conditions trigger its use. If this flexibility is adopted then "rest" will be taken only if further control measures are not practicable, or not agreed to by the individual. The individual will have more choice whether to go on working, but e.g. taking more advantage of shade or any other measure they can suggest at the time' (original emphasis)

54. This "flexibility" ought to be rejected first on the basis that it is not what WorkCover uses i.e. the original table, with its criticised rigidity, is what is acceptable to WorkCover and its inspectors: "the original is exactly what WorkCover use, and all State governments use and what they tell the inspectors to use" see content of A2, doc. 49. There is no justifiable OHS reason to move away from the table. Moving away from the WorkCover standard moves away from what is "reasonably practicable" to maintain a safe working environment.

55. Next, apparently on the basis that the recommended limits are "guidelines" they are jettisoned. The international literature [eg A3] when WBGT thresholds are these extreme levels creates a work/rest regime. Resting is defined as "sitting quietly" or "sitting with moderate arm movements": A2, doc 3, 171. The literature does not qualify the reference to rest by a reference to "control measures".

56. Under the 2006 policy an employer or his/her team leader may not be in a position properly to assess the need for rest at an extreme WGBT. They may feel fine to go on; when they are not. A team leader may feel pressured to get the job done and the reference to "control measures" is an invitation to water down OHS standards. There is no scientific foundation for the opinion that shade working will lead to lower WBGT. Dr. Bisby acknowledged the impact of shade working as inexact: PN976 -976; PN804.

57. Dr Bisby was cross examined as to whether the control measures might increase risk: see eg PN810 -820. He acknowledged that an educated worker may get it wrong: PN815. He did not accept the proposition that not taking at prescribed rest enhanced risk: PN813.

58. In contrast, Dr Sutherland said at PN1650:

'You have the 2006 policy there and you see that there is also a system of breaks, unless control measures, eg shade work can be introduced. You say in answer to question 6 of your statement that a system of rests should be part of - a system of work/rest breaks should be part of the 2006 policy. In your opinion is the provision of the work/rest regime table at action level 3, in the 2006 policy, adequate?---No, it's not adequate - because although it prescribes work/rest regimes it gives the supervisors and managers control over that work/rest regime and that can be very subjective. So we are going away from a set system that has prescribed work/rest periods to something that could be influenced by managers or supervisors.'

Are you saying that it doesn't appear to you to really leave the discretion to the employee, but rather to leave the decision to the supervisors? Is that how you read it?---I'm not so much worried about that. That's just a small issue. What I'm really worried about is there's no rigidity in that process in terms of making that judgment in terms of what that means.

What do you mean by rigidity of the process?---In terms of guidelines. In terms of how working in shade will reduce the risk. How is a judgment made on that basis?

Is it possible that that goes back to the training and information that the staff are being supplied with?---No you need to make a quantitative assessment of the heat environment, the environment in that condition.'

60. At the conclusion of the cross-examination of Dr Sutherland there was the following exchange:

MR JACKSON: I suppose what you get to really is this, that you're saying better than some well people stop work when they don't need to for their safety than to have a system where you might compromise, you say, the safety of any given individual because they won't have self assessed correctly, their risk. Is that correct?---Yes.

Whereas Dr Bisby's saying and I take it you disagree with this, no my system actually with all its control and checks and balances, does result in getting the best of both worlds, if I can put it that way. Is that fair to say?---Yes I guess that's a fair comment - -'.

61. That exchange dovetails with an observation that Commissioner made close to the commencement of the proceeding at PN 37, namely:

'THE COMMISSIONER: So what I would be interested to know in this case from both sides is the element of discretion upon the individual employee to make decisions about these various action levels and the work/risk regime table.'

62. It is inappropriate to leave an OHS issue to individual discretion when it is reasonably practicable to adopt a system not reliant on individual discretion.

63. In support of this submission, it is noted the OHS obligation is cast upon the employer; it is non-delegable to team leader or employee.

64. Foreseeable risks have been identified both in relation to the categorisation of workers as acclimatised workers and in moving away from a system of prescribed breaks. It is reasonably practicable for this employer to remove those risks. The employer has not made any attempt to demonstrate that averting the risks causes undue cost, time or trouble necessary to avert the risk.

65. When a system is available that does not rely upon individual discretion. That will ordinarily be preferable to a system that does rely upon discretion in which error is inherent.

66. An illustration is the tragic case of Cullen v. State Rail Authority (NSW ( NSWIRC) (1989) 31 IR 207 which concerned the death of a linesman. A decision as to whether to call for a power outage was left to the discretion of the linesman. Cahill VP and Sweeney J held (at 219):

'in our view, where the system fails to satisfy the stringent provisions of section 15 is that basically leaves to the discretion of the linesman in charge, the decision whether a tree branch should be cut or whether the job should be deferred until a power-out has been implemented. By incorporating provisions allowing the linesman in charge to call for a power-out it recognises the danger inherent in lopping trees growing in close proximity to high-voltage power lines, but it fails to lay down stringent rules as to when such a power-out should be requested. Rather, it relies on the linesman's judgment, based on his training, qualifications and experience, or for that branch can be cut to safety.'

67. In Cullen, it was open to the Authority to have:

'instituted a system of power-out at all times when such work was being performed. Such a system would have negated the danger, which resulted in the fatality in the present case.'

68. In the very different factual matrix of this case, whether to rest is left to the discretion of the employee in consultation his or her team leader. The City of Melbourne and relies upon training and experience. Even educated workers make mistakes. It is open to the City of Melbourne to mandate rest. It has not shown that it is not reasonably practicable for it do so. In electing not to do so the applicant fails to minimise risk.

69. In respect of the New South Wales Act, it has been said in Riley v. Australian Grader Hire Pty Ltd. [2001] NSWIRComm 31; (2001) 103 IR 143 at [15]:

'the Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in the industry.'

70. The 2006 policy relies upon workers who may be hot, who may be vulnerable, and who may be under pressure to get the job done to make the right choice. By adopting a standard the Council would remove the risk that the worker gets it wrong.

71. At one point in the proceeding the phrase "one size fits all" was used: PN386. A more appropriate analogy is that of a standard or limit. The respondent opposes the level of discretion accorded to individual employees because it moves away from the scientific guidelines and substitutes a subjective assessment of a worker or a team leader. That subjectivity creates the risk in circumstances in which it is reasonably practicable to remove the risk altogether. In that sense, a self-management system does less than is reasonably practicable to maintain a safe workplace. In the end, it does so, it is submitted, in a quest for greater efficiency.

72. It may be as Mr Jackson observed in the final exchange in the cross-examination of Dr Sutherland that some workers take a break their safety does not require. That is the preferable outcome if the effect is that others are protected.

73. The Commission ought to make orders amending Table 2 so that the entry points are WBGT values for unacclimatised workers and by deleting the references to "control measures."

74. The Applicant has not fulfilled its consultation obligations in accordance with clause 14 of the Agreement. This issue is pressed solely in relation to the "Pre-Shift Declaration on Personal Health in Heat and Sun" [Exhibit A2, document 80] (the "Pre-Shift Declaration").

75. Clause 14 of the Agreement imposes obligations as to consultation in circumstances in which Council has made a "definite decision to introduce major changes".

76. The introduction of the Pre-Shift Declaration imposed a duty on the Applicant to discuss change: clause 14.3. Clause 14.5 was in the following terms:

'14.5 For the purposes of such discussion, Council shall provide in writing to the Employees concerned and the relevant Union(s) all relevant information about the changes including the nature of the changes proposed; the expected effects of the changes on Employees and any other matters likely to affect Employees provided that Council shall not be required to disclose confidential information the disclosure of which would be prejudicial to Council's interests.'

77. In Community and Public Sector Union v. Airservices Australia [Print R5773, Holmes C, 11 June 1999] Holmes C said at [32]:

'[32].�.�.�Certainly consultation does not mean codetermination but nor does it mean simply and solely the provision of advice of a decision to implement a proposal. In that regard I can but endorse the statement of Smith C when he said:

"In relation to the concept of consultation I wish to make it clear that this involves more than a mere exchange of information. For consultation to be effective the participants must be contributing to the decision-making process not only in appearance, but in fact."[ statement in Civil Aviation Authority and CPSU 12 March 1991 C No. 30472 of 1991].

78. The Respondent accepts that as a useful summary of the concept of consultation.

Clause 14 applies to the Pre-Shift Declaration

79. In opening the case, the Applicant submitted that the clause 14 consultation obligations did not apply in respect of the Heat and Sun Policy; that those matters identified in clause 14 .1 were of a different "genus or class" than the Heat And Sun Policy and that the parties should not be taken to have constrained the Council's ability to exercise "its managerial requirements": PN24 by requiring consultation about Heat & Sun.

80. The Commission must approach the construction of clause 14 by reference to the text of clauses 14.1 & 14.2. The genus identified is as broad as those matters likely to have a significant impact on employees - such matters are innumerable. There is no difficulty in seeing the Pre-Shift Declaration as a major change in the "program" or "organisation" of the Applicant's Operations.

81. The "significant effects" of the proposed change were canvassed during the hearing. They include:

(a) the steps the employer proposes to take to protect the confidentiality of information provided;

(b) whether information is to be retained or destroyed;

(c) the uses, confined or otherwise, to which the information may be put;

(d) some aspect of the form are extremely general - eg "medication prescribed by my doctor which may affect my work" and

(e) whether the information may provide the foundation for the employer to direct an employee to take sick leave in circumstances in which the employee considers himself or herself fit for duties.

82. The requirement for a Pre-Shift Declaration was a significant change; it had not been previously required. Each of the issues (a) - (e) above is significant, and issues with which employees and the union are entitled to be concerned.

83. The proposed change imposed upon the Applicant obligations under clause 14.

Pre-Shift Declaration on Personal Health in Heat And Sun [Ex, 2, A80]

84. On 13 November 2006 Ms. Wainwright distributed "Pre-Shift Declaration On Personal Health In Heat And Sun" [Ex 2, doc. 80]

85. Its distribution may have been anticipated by reference to that part of the 2006 Policy that provides:

'Use of the report form provided by CoM posts of assessment of illness and fitness for work, and for communication between employees and the team leader, is encouraged'(page5)

86. Nonetheless, the Applicant did not consult its employees or the union about the Pre-shift Declaration. The absence of consultation was a logical consequence of implementing the 2006 policy on 1 November 2006 and only distributing the Pre-Shift Declaration afterwards.

87. Circulating the Pre-shift Declaration afterwards was not in accordance with the Applicant's obligations under clause 14. The obligation is in relation to the "proposed" change: clause 14.1. The clear purport of the consultation provision is to enable those employees who are to be affected by major change to influence the course of events or to have an impact upon matters that will affect them. Rather than that occurring current case employees were presented with a fait accompli.

88. Ms Wainwright properly acknowledged in her evidence that there had been no consultation about the Pre-Shift Declaration. She said at PN2143:

Is there any reason that you've not consulted with the union about the content?

89. The Commission ought direct the Applicant to consult with the Union and its employees about the Pre-Shift Declaration and direct that no steps be taken as to its implementation until that consultation has occurred.

90. The 2006 Policy breaches clause 9, the "No Extra Claims Commitment" provision of the Agreement, in its removal of a specific entitlement of law enforcement officers to take a break in accordance with the work/rest regime set forth in clause 6.0 of the 2000 policy.

91. Clause 9 of the Agreement provides as follows:-

'It is a term of this Agreement that the parties will not pursue any claims relating to terms and conditions or any other matter whether covered by this Agreement or not for the period of the Agreement.

The parties further undertake that there will be no further wage increases sought or granted under the terms of the Agreement and any increases permissible under the Award that do not contradict the Agreement.'

92. The test of what constitutes an "extra claim" is set out in Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia [Simmonds C, 16 August 2004, 24_. Commissioner Simmonds held:-_

'[21] Turning then to the Agreement itself, it is clear that the Agreement recognises that change can occur during its life, that much is not in dispute. The real issue is at what point does a proposed change constitute an extra claim.

[22] In some areas the Agreement is specific, providing for wage rates, certain allowances, specific and quite detailed provisions regarding rostering arrangements and procedures, crewing levels and the like. Clearly, any attempt to change those matters would amount to an extra claim. Additionally, the Agreement specifically requires changes to HR policies to be by agreement.

[23] By way of contrast, provision is specifically made for continuous improvement:

`Subject to this agreement the parties agree to continue to work towards making improvements in efficiency and productivity and providing safe, satisfying and rewarding employment for employees covered by this agreement. Such improvements will not be at the expense of maintaining a safe working environment or reducing public safety in any way.' 10

Moreover, the Agreement contemplates the review of initiatives for the purpose of possible implementation in the area of community safety, using the consultative process, as well as contemplating technological change. 11

[24] It is also to be noted that the parties have agreed about the objectives of the Agreement. This agreement is contained in clause 3, which reads:

'The objectives of this agreement are to develop a harmonious relationship between the parties including:

• gains in productivity, efficiency and cost effective delivery of services

• establishment of more varied and fulfilling jobs for employees, including agreed wage outcomes

provision of a healthy and safe working environment, with due regard to the safety of employees and the public

[25] The context of the Agreement also makes it clear that certain change can only be implemented with the agreement of the parties. An example is the requirement that changes to HR policies must be agreed.

[26] The interpretation advanced by the UFU would effectively mean that only agreed change could occur, for in the absence of agreement the Commission would be constrained by the no extra claims provision in clause 49. Clearly, if the intention of the parties was to restrict change to agreed items in that way, then that would be an easy matter to specify, as the parties did with respect to HR policies.

[27] Taking account of the context of the Agreement as a whole, unless the proposed change contemplates variation to a specific entitlement or obligation or goes to a matter outside the scope of the agreement, then it does not amount to an extra claim for the purpose of clause 49. Of course, such change would need to be proposed in accordance with the requirements of clause 11, which calls up the operation of clause�9.' 12

93. The Full Bench [PR956379_]_ having cited these principles (at [28]) also said at [38]:

'We are not persuaded on the material before us that the MFESB's previous policy in respect of this issue had in some way given rise to an implied term such that it became a specific condition of employment of the employees concerned.'

The no extra claims provision is subject to the ongoing obligations of the parties as to OHS

94. The Union's submission as to no extra claims must be put in its correct context. The Respondent accepts the submissions of the Applicant set forth in paragraph 28 of its initial submissions [Exhibit A1], namely that by reason of section 170LZ of the pre-reform Workplace Relations Act 1996 (preserved in operation) provisions in a certified agreement are subject to State laws as to occupational health and safety: section 170LZ(2)(a).

95. Accordingly, a no extra claims provision is subject to, and cannot derogate from, an employer's (and Union's) continuing obligation as to OHS. The Respondent does not object to "education & training", enhanced practices as to hydration and clothing said to be aspects of the introduction of the 2006 Policy.

96. A logical corollary of no extra claims commitment being subject to continuing OHS obligations is that if it were necessary for reasons of OHS obligations to remove the prescribed breaks set forth in clause 6.0 of the 2000 Policy for the Applicant to meet its OHS obligations, it would not be open to the union to point to the no extra claims commitment as a barrier to it doing so.

97. However, if the Applicant submits that the removal of the mandated breaks is necessary to meet its OHS obligations that submission should not be accepted. This aspect of the dispute between the parties about the contrasting work/rest regimes in the 2000 and 2006 policies respectively is a dispute between the union on the one hand, which says breaks ought to be compulsory, and the employer, on the other, which says breaks need not be compulsory in circumstances where appropriate control measures can be adopted. The concerns of the employer are that compulsory breaks are unduly inefficient. At PN1233 Ms. Misurelli said:

MR CHAMPION: What is the organisational imperative to remove the compulsory break? Why do you have to do it?---Well, it doesn't add anything in terms of health and safety for the individuals working under that old policy or regime, firstly. It's an inefficient work practice.'

98. Removing a right to a break cannot be said to make the workplace safer; at its highest, that right may be removed without compromising safety. The Applicant's case is that it can remove that entitlement and still observe its obligations under the OHS Act. Therefore, the removal of compulsory breaks is not necessary for the Applicant to meet its OHS obligations.

99. The Respondent union has not sought to prove in this application that the retention of the 2000 policy is necessary for OHS reasons - although the expert opinions of Drs Bisby and Sutherland diverged on important issues each agreed that a WBGT was an appropriate measure rather than the dry bulb methodology of the 2000 Policy. Nonetheless, the work/rest regime in the 2000 policy was a benefit to employees. It protected workers' comfort; by ameliorating the requirement that they work for protracted periods without a break in very hot conditions.

The work/rest regime in the 2000 policy created a specific condition of employment of the employees concerned

100. For the clause 9 no extra claims commitment to be of application the Respondent must point to facts that the work rest regime set forth in clause 6.0 of the 2000 Policy gave "rise to an implied term such that it became a specific condition of employment of the employees concerned"(see Full bench, PR950883_], [27]._

101. It is acknowledged that the 2000 Policy was not expressly referred to in the Agreement.

102. It is, however, the Respondent's submission that a combination of factors, ought to give rise to a finding that the work/rest regime was a specific condition of employment, of employees and the proposed change (i.e. its removal), varies that specific entitlement.

103. There are four factors that support a finding that the work rest regime was a specific condition of employment.

104. First, the 2000 Policy [Exhibit A2, doc. 2] was an agreement, signed by the union and the employer, rather than merely a policy unilaterally imposed by the employer. It provided:

'the agreement will take effect once all persons below have signed and dated the agreement' [A2, page 10]

105. Its operation was therefore dependent on agreement. It had the character of an unregistered industrial agreement.

The terms of the unregistered industrial agreement were incorporated into individual contracts of employment

106. Second, whilst it is acknowledged that an unregistered collective agreement does not of itself give rise to legally enforceable contractual rights, in this case, the Applicant's practice was to make a written offer of employment to prospective employees: R8 and R9. Its standard offer of employment (unchanged since June 2005 when Mr Dawson Smith commenced employment and to his knowledge before then [PN951 - PN952] ) contained a provision:

The City of Melbourne observes various employee standards and human resource and administration policies and procedures'.

107. Mr Dawson-Smith agreed that the policies referred to included the Heat and Sun Policy, namely the 2000 Policy, and that Council, by it standard letter, promised to observe its terms. The evidence was as follows:

And the letter that Council delivers to prospective employees contains a promise, does it not, Mr�Dawson-Smith, that Council will observe its policies?---That's right

And that includes a promise to observe the Heat and Sun policy?---Correct, yes.

And the letter does not say anywhere in its terms that Council may unilaterally vary that policy?---It doesn't specifically say that, no.'

108. Therefore, the unregistered industrial agreement was not the end of the matter, but rather it acquired a legally binding status in the contracts of employment of individual employees by it being incorporated by reference in the letters of offer.

109. The situation is similar to that in Riverwood International Australia Pty Ltd. v. McCormick [2000] FCA 889; (2000) 177 ALR, 193 at 217, [127] - [128], when Mansfield J., as a member of the majority in a Full Court of the Federal Court observed:

'[127] The respective submissions were then noted. Relevantly, his Honour noted the respondent's claim that the reference in the letter to 'Company Policies and Practices' was to the Manual, whereas the appellant submitted that that reference did not incorporate any entitlement to a redundancy payment. The appellant's submission, both before his Honour and on this appeal, focussed upon the obligation expressed in the policy clause in the letter as being upon the respondent alone, who agreed to "abide by all Company Policies and Practices" and upon the fact that the appellant had not been a party to any of the three Redundancy Agreements. His Honour also accepted that the three Redundancy Agreements, as unregistered collective agreements, did not of themselves give rise to legally enforceable contractual rights. That is in accordance with the decision of the Victoria Court of Appeal in Ryan v Textile Clothing and Footwear Union of Australia [1996] VicRp 67; [1996] 2 VR 235.

[128] As his Honour said, that is not the end of the matter. It remained to determine whether the Redundancy Agreement acquired a legally binding status by being included in the Manual and by being referred to in the policy clause in the letter. As the appellant was regarded at all times as an offshoot of Cartons, and no distinction was drawn between the terms and conditions of employment of employees of the appellant and the employees of Cartons, and as Mr Bradbury acted at all times as Human Resources Manager for the appellant, his Honour concluded that the fact that the Manual identifies itself as that of Cartons, and not expressly that of the appellant, was of no consequence. Again, the appellant did not gainsay that conclusion.'

110. As in Riverwood, the policies acquired a legally binding status by reason of the reference to them in individual contracts of employment.

111. Third, the Agreement itself recognises that employees may have terms and conditions of employment more favourable than award minima. Clause 8.5 of the Agreement provides:

'the employees covered by the Agreement may have terms and conditions of employment that are more favourable than the Award'.

112. Fourth, the 2000 Policy had been observed over an extended period, approximately five years, from August 2000 until its revision was proposed on the engagement of Mr. Bob Thiedeke in late 2005.

113. Accordingly, the work/rest regime had become a specific entitlement of the employees concerned: see PR956379_, [38]._ That specific entitlement was grounded in an unregistered industrial agreement, incorporated into individual contracts of employment by the terms of the standardised letter of offer, and crystallised by the longstanding custom of its 5 year operation. The 2000 policy had become a specific entitlement of employees.

114. It was a matter that existed outside the scope of the certified agreement as a matter of contract, the existence of such terms being adverted to in clause 8 .5 of the Agreement. Therefore, it was open to the Applicant to propose a variation to that entitlement not unilaterally to remove it.

Extra claim is a matter concerning the application of the Agreement

115. As the Applicant noted in the course of argument the Commission is concerned with disputes over the application of the Agreement not with contractual entitlements and remedies that are matters dealt with in the courts, not the commission: PN2309.

116. The "no extra claims" submissions are, however, disputes about the application of the agreement, not about terms of contract per se.

117. The clause 9 prohibition on extra claims extends to matters "whether covered by this agreement or not" (my emphasis). Clause 8.5 must also be understood to refer to entitlements of employees existing outside industrial instruments. The prohibition expressly includes matters not covered by the agreement. Therefore, clause 9 requires the Commission, in its section 170LW jurisdiction, to inquire whether there are matters outside the scope of the agreement which amount to specific entitlements of employees. It must make that inquiry to ascertain the scope of clause 9. If so, clause 9 prohibits extra claims about those matters, albeit the entitlements arise outside the Agreement. The dispute about the application of the agreement is that the union says there is a specific entitlement that arises outside the scope of the agreement and that clause 9 prevents the employer making extra claims in respect of it. The union infers that the employer says no such specific entitlement exists.

118. If the specific entitlement to mandated breaks exists its removal is properly characterised as an extra claim: i.e. a claim that the workers continue working without the right to breaks they previously enjoyed.

[15] The following events are established by the evidence and submissions in this matter:-

1. S.21 of the Occupational Health and Safety Act 1985 (Vic) provided that "an employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health".

2. In 1990 the then Victorian Department of Labour produced a document entitled "Hot Conditions at Work - Notes for Inspectors" [25] (the 1990 Hot Conditions at Work document) which inter alia stated:

• 'Working in heat can be unpleasant, can lead to illness and under extreme circumstances can be fatal. Working in heat can also contribute to accidents. [26]

• Many factors contribute to heat stress. There is no hard and fast rule that can be applied 'across the board' that can deal with every contingency. The problem of hot working conditions needs those involved to contribute to its solution. It is a job for each workplace to arrive at a procedure which is both appropriate for them and meets legal requirements.

• There are many situations where hot work exists that can cause heat illness or heat related health and safety hazards:

(d) high levels of solar radiation (e.g. outdoor work in the sun) [27]

• Body temperature is controlled very closely in order to provide the best environment for the chemical reactions essential to life. In normal health the temperature inside the body is very close to 37� Celsius. A rise in body temperature of a few degrees may cause illness or death." [28]

• Heat arrives as radiation, as in sunlight, or by convection and conduction. [29] Heat is lost by convection and by evaporation of sweat. To increase its heat loss the body mainly makes use of -

• evaporating sweat from the skin [30]

• This process of change in the body's response to heat is called acclimatization. Acclimatization occurs over a period of 1 week; most in the first 4 days, when a person starts being exposed to heat. People who have become acclimatized cope with their hot working conditions better than those who are not acclimatized. In Victoria workers inside hot buildings (e.g. bakeries and foundries) become acclimatized. Those who work outside or in unair-conditioned building become acclimatized to 'average' weather conditions for that time of the year and although not fully acclimatized to the hottest days they are able to cope. Most people have this degree of acclimatization to their usual work conditions. Few people are ever fully acclimatized to conditions on the hottest day sin summer.

• A detectable reduction in acclimatization occurs if exposure to heat is stopped for more than 2-3 days. Acclimatization disappears completely in about 1 week. Workers in a hot job may be more vulnerable to heat illness after an absence from work for several days (e.g. holidays). Unacclimatized employees who do not work in a hot area and are shifted into one will also be more susceptible for the first week in the new job. [31]

• A number of factors must be taken into account when assessing heat stress. [32] A dry bulb thermometer by itself, should not be used to assess heat stress. The most convenient heat stress indicator is the Wet Bulb Globe Thermometer (WBGT). "The WBGT Index combines the effect of radiant heat, temperature, humidity and air movement so as to guard against adverse health effects from heat. It does not set out 'comfortable' temperatures as these are always well below levels that can cause heat stress. The WBGT can be used to assess heat stress in most environments.[33]

• The following Work-Rest Regime is recommended using WBGT �C

These recommendations assume an 8 hour day with morning and afternoon breaks (about 15 minutes each) and a lunch break (about 30 minutes). [34] "The recommendations assume that employees are fit and acclimatized. Acclimatisation takes about 1 week working in a hot job to occur. Tolerance to heat is reduced if an employee spends a few days away from the job (e.g. long weekends, holidays, etc.) If employees are not acclimatized or are unfit subtract 2� C WBGT from the recommended limit.[35]

• In all situations the aim should be to think ahead and take action to prevent heat stress. If this is successful there is less need for concern on hot days. Local conditions need to be taken into account when deciding whether work at a particular site is likely to cause heat stress. [36]

• Methods of reducing Workload in hot conditions include

• Reducing the time on the hot task by using job rotation

• Wearing the lightest clothing that provides adequate protection

• Employees should be provided with information, instruction and training on topics including acclimatization, the need for frequent drinking, use of clothing, recognition of symptoms, first aid.

• Unacclimatised employees should be allowed a week to acclimatise. This is normally done by reducing the workload for the first few days.

• Supply cool drinking water near the work site. Employees should be encouraged to drink 200 ml about every 15 minutes.'

3. From at least 1994 P&T officers in MCC had worked pursuant to procedures containing a work regime which from 1994 to 2000 provided:-

• 30-32� Celsius (dry bulb) 45 minute work, 15 minutes rest

• 32-34� Celsius (dry bulb) 30 minutes work, 30 minutes rest

• 34-36� Celsius (dry bulb) 20 minutes work, 40 minutes rest

• 36� Celsius (dry bulb) cease work [37]

4. In January 2000 MCC introduced its first organisation wide "Heat and Sun Protection Policy" (the 2000 Policy). [38] The 2000 Policy applied to all employees of MCC and provided, inter alia, that:

• MCC was committed to providing and maintaining for its employees a work environment that is safe and without risks to health by minimising the risk of heat illness and skin cancer [39]

• Outdoor workers, when not protected by shade, were to be protected from UV radiation by the provision of:

• The following risk factors were to be considered when assessing the level of risk associated with working in hot weather conditions, defined as being 30� Celsius or above:

• During hot weather conditions, outdoor workers must have access to a supply of cool drinking water to enable adequate hydration [42]

• Certain risk control measures were to be considered and implemented where practicable during hot weather conditions including

• Wearing loose fitting, light coloured clothing which covered exposed skin areas

• Provision of scheduled or more frequent work/rest breaks [43]

• Work/rest breaks when required, should be taken in shaded, cool or air-conditioned areas [44]

• Particular attention was to be paid to the specified risk control measures for unacclimitised staff [45]

• Acclimatisation was stated to occur if repeatedly exposed to hot working conditions and was stated to be lost quickly after absences of several days from a hot environment. [46]

• Managers of MCC were stated to have a responsibility to ensue that:-

• Staff were provided with relevant information and personal protective equipment

• They (the MCC managers) were aware of and monitored the weather forecast when it was likely the temperature may exceed 30� Celsius, and where practicable have a contingency plan in place to either reschedule work, relocate staff, rotate staff or provide alternative work.

• All employees were made aware of the 2000 Policy [47]

• Employees of MCC were stated to have a responsibility to

• Wear the personal protective equipment provided

• Wear clothing that is suitable during hot conditions

• Advise management if they had a medical condition which could be aggravated by exposure to hot weather conditions

• Comply with the 2000 Policy [48]

5. In August 2000 MCC's Parking and Traffic Regulations Branch introduced organisational procedures entitled "Heat & Sun Protection Procedure" (the 2000 P&T Heat & Sun Procedure). At the conclusion of the 2000 P&T Heat & Sun Procedure a page recorded that 'This Agreement will take effect once all persons have signed and dated the Agreement. Prepared by: The Occupational Heath & Safety Committee for the Branch, and signed by Andrew Georgiou, Acting Principal Officer Parking and Traffic Regulation, and Des Fielder, Coordinator Parking and Traffic Services. The Occupational Health & Safety Representatives that singed were Denis Holden, Lal Seneviratne, Martin Brett and Geoff Drever; and the Australian Services Union Representatives were Matt Norrey and Joe Serri. The date approved was 22 August 2000.

6. The 2000 P&T Heat & Sun Procedure provided, inter alia, that:

• It applies to all MCC employees of the Parking and Traffic Regulations Branch who work outdoors for more then two hour per day.

• It is provided to ensure that officers are aware of the health and safety hazards of working in hot weather conditions and that they understand how to protect themselves against those hazards.

• Officers need to be aware of the potential seriousness of health conditions that can arise from exposure to high temperatures and/or too much sunlight (UV radiation).

• Parking and Traffic Regulation Branch (P&T Branch) of MCC is committed to providing and maintaining a work environment that is safe and without risk to the safety and health of Traffic Officers by minimising the risk of heat illness and skin cancer. The procedures in 2000 P&T Heat and Sun Procedure set out the steps that officers of P&T Branch were required to take to minimise exposure to potentially harmful UV radiations, and to minimise the effects of heat induced illnesses in hot weather conditions. The procedures specified included:

• On days when the predicted temperature was to be 30� Celsius or above it was recommended that officers drink sufficient fluid before starting work and at intervals of approximately 15 to 20 minutes throughout the day.

• P&T Branch officers were to be provided with sufficient chilled filtered water or other agreed suitable fluids during hot weather conditions.

• P&T officers were to be provided with a water bottle and suitable carrying pouch by the P&T Branch and must ensure that they maintained it in a clean condition. Provision for replenishment of these bottles during the course of the day was to be made.

• In relation to the issue of acclimatisation, new officers or officers returning from periods of leave or sick leave just prior to hot weather conditions were to be assisted to acclimatise to the prevailing temperatures, including, inter alia, by Team leaders making every effort to place these returning officers into areas where there would be adequate shade and/or air movement and rostering then into vehicle patrol.

• P&T Officers were to be issued with and were to wear specified personal protective equipment including wide-brimmed hats, broad spectrum sunscreen and sun glasses and were to ensure they wore their hats at all times whilst working in hot weather conditions.

• Hot weather conditions were defined as being when the air temperature is 30� Celsius or greater. [49]

• Light work - involves sitting, standing or walking, and/or performing light hand or arm movements.

• Moderate work - entails walking about with moderate lifting and pushing

• Heavy work - involves working with a pick and shovel.

• Acclimatisation was defined as being a physiological adjustment that develops in hot environment over time and which improves a person's ability to work comfortably in hotter temperatures. [50]

• Employees were allocated specific responsibilities including:

• Advising Team Leader/Duty Officer if experiencing discomfort in hot weather

• Wearing the personal protective clothing supplied

• Seeking immediate medical treatment if required

• Advising management if they had a medical condition that could be aggravated by exposure to hot weather conditions. [51]

• A framework was set out at cl 6.0 regarding the accepted parameters for work/rest breaks.

Within every half-hour period the following work/rest regime shall be applied [52]:

Reduce work period to no more than 25 minutes working. Resting time in a shady or cool location should be 5 minutes (ie the balance of the half-hour period). Officers shall not work during rest times. ** (ie 50on/10off)

Reduce work period to no more than 20 minutes working. Resting time in a shady or cool location should be 10 minutes (ie the balance of the half-hour period). Officers shall not work during rest times. ** (ie 40on/20off)

Reduce work period to no more than 10 minutes working. Resting time in a shady or cool location should be 20 minutes (ie balance of the half-hour period). Officers shall not work during rest times. ** (ie 20on/40off)

Stop all outside work with the exception of clause 3.3 Essential Services

• During these work/rest breaks P&T officers were to take rest breaks in cool, shady or air-conditioned places and should sit or rest to allow the body to lower its temperature according to the work/rest regime.

7. In 2001 the American Conference of Governmental Industrial Hygienists (ACGIH), a member-based organisation that advances occupational and environmental health issued a publication entitled 'Stress and Strain TLVs' [53]. Threshold Limit Values (TLV) are determinations made by a voluntary body of independent knowledgeable individuals ; are guideline designed for use by industrial hygienists in making decisions regarding safe levels of exposure to various chemical substances and physical agents found in the workplace; and are only one of multiple factors to be considered in evaluating specific workplace situations and conditions.[54] The Wet-Bulb Globe Temperature (WBGT) referred to was a measurement originally developed in the late 1950s for the US Marine Corps Recruit Depot on Paris Island in highly humid South Carolina and was later used by researchers as an easily measured general heat-stress index. In time its use widened. "Because its use is now recommended as the Standard, ISO 7243, it is often used in Occupational Health and Safety guidelines for working in hot environments. The WBGT is measured by a simple three-temperature element device which captures or reflects the integrated effects of wind, humidity, radiation and (shade) air temperature.[55]

• Assessment of both heat stress and strain can be used for evaluating the risk to worker safety and health and a decision-making model is given. The article emphasised that professional judgement and a program of heat-stress management are required to ensure adequate protection for every situation. [56]

• The WBGT offers a useful, first order index of the environmental contribution to heat stress.

• To determine the degree of heat-stress exposure, the work pattern and demands must be considered. If the work (and rest) is distributed over more then one location, then a time-weighted WBGT should be used for comparison as follows:

Screen criteria for Heat Stress Exposure (WBGT values in �C)

• As metabolic rate increases (ie., work demands increase) the criteria values in the table decrease to ensure that most workers will not experience a core body temperature above 38� Celsius. Correct assessment of work rate is of equal importance to environmental assessment in evaluating heat stress. The following table provides broad guidance for selecting the work rate category to be used in the preceding table (ie resting, light, moderate, heavy, very heavy):

Examples of Activities within Metabolic Rate Categories [57]

Standing with light work at machine or bench while using mostly arms

Standing with light or moderate work at machine or bench and some walking about

Walking on level at 6 km/hr while carrying 3 kg weight load

Intermittent heavy lifting with pushing or pulling (e.g., pick-and-shovel work)

• Heat acclimatization allows the worker to withstand heat stress with a reduction in heat strain. Acclimatization to heat involves a series of compensations that occur in an individual that favour survival in a changed environment.

• Working at even a moderate rate in a heat stress brings about physiological changes that substantially improve comfort and safety for those who are in general good health. The heat stress does not have to be severe. The effects of acclimatization are often dramatic and begin with as little as 30 minutes of physical activity each day for as short a time as 1 week or sooner.

• Mere exposure to heat does not confer acclimatization; an elevated metabolic rate for about 2 hours per day is required. Acclimatization is specific to the level of heat stress. Acclimatization to one heat-stress level does not confer full acclimatization to a higher level of heat stress. Physical training before starting day 1 of heat-work exposures increases the rate of heat acclimatization in the initial phase. Steady metabolic work for two 50-minute periods separated by a 10-minute rest in the heat under identical environmental conditions results in about 78% optimum in 15 days. [58]

Three phases of heat acclimatization progress simultaneously. The Initial Phase occurs during early consecutive days of exposures to heat, reaching 33% or optimum by day 4. the Intermediate Phase is marked by cardiovascular stability and surface and internal body temperatures are lower, reaching 44% of optimum by day 8. The Third Phase has a decrease in sweat and urine osmolality and other compensations to conserve body fluids and restore electrolyte balances, reached 65% of optimum by day 10, 93% by day 18, and 99% by day 21.

• Although heat acclimatization for most individuals begins early in a period of working in the heat, it is also lost quickly if this regimen of exposure is discontinued. This loss is transitory and is quickly made up so that by Tuesday workers are as well acclimatized as they were on the preceding Friday. If there is a week or two of no exposure, loss is such that regain of acclimatization requires the usual 4 to 7 days.

• The net effects of heat acclimatization are to improve the effectiveness and efficiency of physiological heat distribution and loss systems, improve comfort in the heat exposure, and delay the development of heat strain. Acquiring heat acclimatisation is a low-cost, highly effective way of improving safety and comfort in a heat stress. [59]

8. In 2004 ACGIH issued a publication entitled '2004 TLVs and BEIs' (the 2004 ACGIH article) [60] which contained much of the material from the 2001 ACGIH article and which reproduced the two tables given in the preceding paragraph of this decision. In relation to the issue of heat acclimatization the 2004 ACGIH article at page 170 included a statement from page 2 of the 2001 ACGIH article and which referred to the fuller material included at pages 8 and 9 of the 2001 ACGIH article recited in the preceding paragraph of this decision. It is clear that the material on heat acclimatization in the 2004 ACGIH article needed to be read together with the fuller text in the 2001 ACGIH article.

9. On 21 December 2004 the Occupational Health and Safety Act 1985 (Vic) was replaced by the Occupational Health and Safety Act 2004 (Vic) which at s 21.1 states:

'(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.' [61]

10. In 2005 the MCC engaged the service of Mr Bob Thiedeke (Mr Thiedeke) to assist in developing a revised Heat and Sun Protection Policy intended to cover all employees of MCC and to replace the 2000 Policy and the 2000 P&T Heat & Sun Procedure. [62] The intention was that the revised Heat and Sun Policy would apply to all employees of MCC, including Parking and Traffic Regulations Branch.

11. In October 2005 Mr Thiedeke produced a draft Heat and Sun Protection Policy (the 2005 draft policy) [63] which stated:-

• That its purpose was to ensure employees and contractors of MCC have their exposure to heat and sun reduced so far as is reasonably practicable as a result of development and implementation of risk control plans to minimise any adverse health effects from solar radiation and from heat.

• That its scope was all employees and contractors of MCC who required to work outdoors, and especially to those who spend 2 or more hours cumulatively in any working day outdoors.

• That MCC's policy was so far as is reasonably practicable, to provide and maintain for employees, a working environment that is safe and without risks to health by minimising the risk of heat illness and skin cancer.

• Hot weather - air temperature at the worksite is 30� Celsius or greater.

• Light work - involves sitting, standing or walking, and/or performing light hand or arm movements.

• Moderate work - entails walking about with moderate lifting and pushing.

• Heavy work - involves working with a pick and shovel.

• Acclimatization - is a physiological adjustment which develops in hot environments over time. These changes improve a person's ability to work comfortably. An employee new to working in a hot environment will typically take 1 month to acclimatise. During that period reduced workloads should apply. Acclimatization is lost quickly after absences of several days from a hot environment.

• Proposed that in September each year management of outdoor workers of MCC should consult with the relevant OHS Committee to review and determine the arrangements to apply to working on days when the air temperature at the work site exceeds 30� Celsius.

• Proposed a series of risk control measures for all MCC outdoor staff including access to supply of cool drinking water; changing the locations of work to a cooler area; changing the role of work; wearing of suitable clothing and the provision of scheduled or more frequent work/rest breaks as follows:-

'2.3.11 Provision of extended or more frequent work/rest breaks. Work/rest breaks, when required, should be taken in shaded, cooled or air-conditioned areas where practicable. The following table should be used as a guide to develop local rest-break arrangements. The table refers to humidity. For dryer, less humid summer climates such as those in Melbourne, a lesser frequency of breaks (or one step higher in temperature) may be deemed appropriate for acclimatised workers, depending on other risk factors.

Duration of paid rest breaks within each hour when the temperature reaches and/or exceeds temperatures shown, as measured at Essendon Airport.

Return to base (or cease working if inside temperature exceeds 38 degrees without adequate air circulation)

12. The draft 2005 Policy was first tabled on 11 October 2005 at the P&T Branch Designated Work Group OHS Committee. [64] On 18 November 2005 the draft 2005 Policy was tabled for the first time at MCC's Corporate Occupational Health and Safety Committee and was endorsed by that committee, with the decision that the 2005 draft Policy was to be trialled and reviewed by all MCC work areas during the 2005 to 2006 summer period.[65]

13. On 29 November 2005 the Commission certified the Agreement

14. In December 2005 the 2005 draft policy was tabled at the relevant Occupational Health and Safety Committees and MCC management were reminded of the need to test and trial the 2005 draft Policy over the summer period.

15. On 6 December 2005 Ms Lyn Wainwright (Ms Wainwright) Team Leader Occupational Health and Safety and Wellbeing of MCC, met with Ms Mary Hollindale and Ms Paula Stewart of the ASU to discuss the 2005 draft Policy. [66]

16. On 22 December 2005 Mr Noel Reid, the P&T Branch Manager, and Mr Graham McKinnon, Team Leader P&T Branch, met with ASU representatives to discuss the 2005 draft Policy in relation to P&T Branch staff. [67]

17. On 31 December 2005 the temperature in Melbourne reached 40� Celsius as MCC's events staff were preparing for the mounting of the annual New Year's Eve fireworks display. According to the evidence of Ms Wainwright at the hearing, it was this event which caused management of MCC to begin to question the approach of the 2005 draft Policy which proposed compulsory work/rest breaks for all MCC outdoor staff when air temperature reached 30� Celsius. [68]

18. On 9 February 2006 Ms Wainwright attended a meeting with P&T Branch Occupational Health and Safety representatives as well as ASU representatives to progress the issue of risk assessment for the 2005 draft Policy. [69]

19. On 15 February 2006 Echelon Safety Services (Echelon) provided risk assessment training to P&T Branch management, team leaders and Occupational Health and Safety representatives. [70]

20. On 16 February 2006 Ms Wainwright sent the following email to certain MCC managers:-

From my perspective as OHS team leader there has now been adequate consultation on this issue and sufficient resourcing by the organisation to resolve this impasse. Unfortunately little progress has been achieved to date so I am calling on you all to now show some genuine commitment to resolve all outstanding issues.

As a way forward to complete the tasks required in a timely manner I recommend the following [71]:

• HSR's to provide detailed documentation of all the health and safety concerns/issues in writing within 7 days.

• OHS Team to provide research and advice to HSR's and P&T Management to resolve issues, in writing.

• Management & HSR's to complete the risk assessment with 14 days.

• WorkSafe Field Officer to be notified of delays and issues.

• Graeme Wilson at the ASU to be notified of delays and issues.

The organisation believes this is a critical OHS Policy that must be in place and operational as soon as possible. Therefore is no progress is made on the required outcomes the OHS Team will engage an external provided to conduct the risk assessment based on the specific work requirements and hazards.

21. On 22 February 2006 Mr John Harris (Mr Harris), MCC's Employee Relations/Industrial Relations consultant, circulated the revised draft Heat & Sun Policy to members of the MCC/Union Consultative Committee, including representatives of the ASU, APESMA and ANF. [72] The email asked for feedback to be given to him before the Committee met on 10 March 2006.[73]

22. On 27 February 2006 Echelon wrote to Ms Wainwright giving the results of its independent review of issues regarding a risk assessment in which it stated that:-

'It is clear from our findings, that a degree of flexibility needs to be maintained when dealing with implementing heat illness control measures. Employees need to be empowered to make their own decisions about how much rest is required which is determined by not only the weather conditions at the time, but their individual capability and level of fitness. It is recommended that when an individual needs time to rest due to any type of heat illness symptom, that it can be recorded to enable monitoring of medical data to form an evaluation for future reference to make any recommendations or changes to Procedure.' [74]

• Echelon went on to make a number of recommendations concluding:-

• Staff being provided with cool drinking water.

• Encouraging staff to take rest breaks if feeling fatigued

• Staff to wear appropriate personal protective clothing

• Provision of further awareness training for staff' [75]

23. On 28 February 2006 Mr Thiedeke emailed Ms Lacey at MCC regarding the sources he had used in developing the 2005 draft Policy in which he expressed the opinion that virtually all your employees would be classified as doing light work. Most other workers have employees working outdoors on roadwork, cleansing, moving, brush cutting, chain-sawing in heavy quilted protective clothing; and in un-air conditioned homes, vacuuming and cleaning. Moreover, yours largely wander around in the shade of high-rise buildings at a slow pace. And usually low humidity on hot and windy days here. [76]

24. On 10 March 2006 the MCC/Unions Consultative Committee met and agreed that a final draft of the new Heat and Sun Policy would come back to the consultative committee. [77] This meeting was attended by two representatives of ASU as well as of other unions.[78]

25. On 17 March 2006 Ms Wainwright contacted International Health Consultants Pty Ltd (IHC) and emailed IHC later that day as below: [79]

Thank you for your time on the phone today. As discussed please forward our outline below to Dr John Bisby.

The City of Melbourne is currently reviewing its Corporate Heat and Sun Protection policy for those employees who work outdoors for 2 hour or mote consecutively and is seeking advice on a less prescriptive performance based approach using existing control measures and further controls to minimise the risk to the health of employees.

CoM has several work areas predominantly working outdoors and only one work area (Parking & Traffic Enforcement Officers) is following a work/rest regime of ceasing work at 36 degrees (attached for your information). This prescriptive work/rest regime approach is unworkable in a number of work areas, for example Events, where the unpredictability of staging events requires flexibility (the show must go on). As an organisation, in consultation with all work areas, we are proposing that we remove the work/rest regime and strengthen existing controls (as noted in the risk assessment) by providing employees with education on the effects and management of ultra-violet exposure and heat illness.

To date no incidents have been reported regarding exposure to working in hot conditions from any work are within council.

Management representatives and employee health and safety representatives from Parking & Traffic have met on no less that 4 occasions to complete a risk assessment for Heat and Sun. However, this has not been successful in producing an agreed control plan. The last two meetings have included a Worksafe field officer and the Union representative. The issue in dispute is that the work/rest regime which was introduced in 2000 is seen as an entitlement (IR).

Other control measures in place include wide brim hats, sunscreen, lip balm, water & water stations, access to air conditioned cars & buildings, access to shade from trees and buildings, education & training, uniforms including long pants/shirts (currently short sleeve shirts, however planning to introduce � or long sleeves), 100% UV glasses and training in UV & heat illness. Further controls being considered are annual skin screening, awareness of unfit/unwell.

Please advise if you are able to assist with the following:

• An expert opinion on reasonably practicable heat and sun risk management strategies that could be implemented across the organisation;

• Any increased health risk associated with frequent change in temperature (i.e. alternating between working outdoors and resting in an air-condition environment several times within one shift)'

• A definition of Hot Weather Conditions (30, 35, 40 degrees?)

• References to recent research relevant to the Melbourne climate;

• Ability to complete the above by Thursday 23/3/06.

I have attached the work/rest regime and will forward a completed management representatives risk assessment on Monday for your reference.

• MCC had now decided to move from the prescriptive work/rest regime proposed in the 2005 draft Policy.

• MCC was seeking to move to a more flexible approach based on strengthening existing controls by providing employees with education in the effective management of ultra violet exposure and heat illness

• Up to that date there had been no incidents ever reported under the existing 2000 MCC Heat & Sun Protection policies and procedures regarding exposure to working in hot conditions from any work area within MCC.

• MCC was seeking from Dr John Bisby (Dr Bisby) of IHC assistance with or expert opinions on reasonably practicable heat and sun risk management strategies that would be implemented across the whole of MCC and a definition of Hot Weather Conditions.

26. In the latter part of March 2005 IHC provided a report to MCC which focussed on P&T Branch work and which stated, inter alia:-

• 'CoM appears to have several documents currently either in use or on file as references relating to Heat (working in hot conditions, heat stress) and/or Sun Protection for outdoor work. The main ones are:

• Parking & Traffic Regulation Branch (Operational Procedures)

• Heat and sun Protection Procedure (containing a Work/Rest schedule)

• Corporate Heat "& Sun Protection Policy. [81]

• The Work/Rest Regime schedule contained in Section 6 of the Heat and Sun Protection Procedure is not consistent with current or past standards appropriate to the work involved. It is described as a framework, but is actually a prescriptive and inflexible schedule.

The main documents themselves appear rather prescriptive and probably do not lend themselves to easy understanding, or use, by those who need them. Procedures and policy documents should be understandable by all who use them, and should be aimed at safe and efficient working.

They should also be usable for purposes such as training (for supervisors as well as operatives) and audit. The present P&T Procedure on Heat and Sun issues meet these criteria adequately.

A draft Risk Assessment has been commenced within the P&T branch and in consultation with Heath & Safety representatives, using the AS 4360-2004 format.

It is also important not to confuse hazard with risk, as drawing conclusions regarding action (or control measures) may be more difficult if risk and sources of risk are not clearly identified or where the two are not clearly explained.

As an example, the hazard is UV radiation (solar radiation) the risk is "over exposure". A "hazard" is defined (in OHS legislation) as being an intrinsic property, i.e. it exists in the job, but a "risk" is the probability of whether that hazard can result in harm. This distinction is important when controls are considered, or management action.

The Act and all relevant legislation clearly identifies the Employer (CoM and its managers and supervisors) as the person who carry the Responsibility and must take decisions and manage controls over risk (and be liable ultimately to prosecution if those risks are not controlled). This cannot be delegated to a committee nor to appointed Health & Safety Representatives.

"Hot conditions" and management of heat issue in P&T

"Hot conditions" cannot be defined precisely, except for one place at one time and using quite sophisticated and impractical measurements. In addition, such definitions when used as rigid "Rules" are not particularly useful. The present use of 30� C DB as a definition would be reasonable, not as an indicator of specific actions, but as an indicator that further assessment needs to be done by the Team Coordinator and/or Assistant Team Coordinators, and further actions considered For example, given adequate controls being built into the daily job and tasks, and adequate training of officers, an air temperature of 30� C or higher should trigger an assessment of:

• Whether the temperature is likely to go higher during the present shift times.

The answers to those questions should be considered by a competent person (trained team Coordinator and/or Assistant Team Coordinator or Duty Officer) and actions determined, based on a remedy commensurate with risk principle, and pre-planned procedures.

The above procedure may then result in actions being advised to some, or all, officers on shift, which may include:

• Modifying duties according to a pre-arranged plan.

• Obtaining feedback (park of a Team Coordinator and/or Assistant Team Coordinator P&T audit process)

This type of stepwise approach to managing the heat issues, would not be difficult to devise. If it is based on good risk assessment and international and Australian practice, it should be acceptable to all parties.

In general, in Melbourne's hot weather climate (high air temperatures plus low humidity) the WBGT is unlikely to get above 30� C until and unless the DB air temperature gets to 34�C.

International and Australian authorities agree that it is only when WBGT reading stands at 30� C or over (in this type of work of low or light work rate) that any work/rest regime becomes applicable. In other words, continuous work of this type carries no risk to health at WBGT or approx 34�C DB air temperature or below.

Summary and Conclusions of the Initial Risk Assessment

An initial risk assessment of the job of officer, Parking and Traffic branch, City of Melbourne (Com) has been carried out, based on information supplied and knowledge and experience with assessments of working in hot conditions.

The overall conclusions is that the job as presently designed brings with it no significant health risks. Hazards are present in the job, but risks are well-controlled

Control to minimise or prevent the risk (over-exposure) is partly dependent on actions of CoM (the employer in OHS legislation), but equally is dependent on actions of individual officers (the employees) taken in their daily work. This brings up the question of how controls over any risk might be structured for best practice. A two-pronged strategy on which to base risk controls, training, review and monitoring, could be:

• CoM creating the correct conditions (work arrangements, clothing, training, supervision)

• Officers self-managing the residual risk (taking appropriate and effective action for their own health.)

Because any officer is working on any given shift within an existing system and set of controls and procedures provided by CoM, it is the actions of the individual officer which determine how much exposure occurs during the shift. The conclusions arising from this is that the overall control of risk depends heavily on the officer self-assessing and self-managing that risk. This leads to the further conclusion that training and supervision (including monitoring and review) are important to future risk management.

The daily control to minimise or prevent the risk (over-exposure) is partly dependent on actions of CoM (the employer in OHS legislation), but equally clearly is dependent on actions of individual officers (the employees). The consistency of application of control daily, determines the overall, long-term exposures of officers and thus the control over long-term potential risks such as increased skin cancer.

Work rate is estimated to be LIGHT to MODERATE (work rate in the range of 200-300cal/hr). This work rate is sustained or continuous for up to 3.5 hours, although some breaks within the 3.5 work sessions are reported to be taken. However, there is inadequate information available about this to make any adjustment to work rates or exposure times.

In practice, for this type of self-regulated work rate and given other factors, a WBGT reading of 30�C is the recommended limit for continuous work. This, in the context of the Melbourne climate, equates more closely to a dry-bulb (DB) air temperature of 34�C than to 30�C which is contained in the present work/rest regime.

• The existing CoM Corporate Policy should apply to P&T and matters covered by it should not be re-addressed in any P&T policy or procedure.

• The existing P&T Procedure from 1999 is in need of review, being inconsistent and out-of-date.

• The Rest/Work regime procedure (Section 6 in the P&T Procedure) should be withdrawn and reviewed and revised. It is not based on a reasonably Risk Assessment and is not assisting health & safety of officers. The current Work/rest regime is over-restrictive in aspects of its use, due to use of an unreliable index (DB air temperature) and the levels of that index contained, and the half-hour basis of the regime.

• Use of a Work/Rest regime is probably not required from consideration of risk in P&T officers.

• The Initial Risk Assessment suggests that control exercised through other means could be more than sufficient to control any risk, except in officers who are already pyrexic (i.e. ill from some illness which raised their internal body temperature). Where there is doubt about this, prudence indicates that he officer should not be exposed to direct solar radiation or external ambient temperatures over 30�C until confirmation is received that they do not have pyrexia. Officers with pyrexia should take sick leave.

• The taking of "breaks" during periods of continuous work of up to 3.5 hours needs review. The lack of information about breaks makes any Risk Assessment less certain in some aspects of its findings, e.g. on exposure times and work rtes, and on the need for and application of any work/rest regime.

• The current situation with regard to monitoring and review of work practices and regimes by Team Coordinator and/or Assistant Team Coordinators requires review, to ensure that the supervision required under OHS legislation is adequate.

• Other control measures should be largely self-managed by officers, with supervisory control and review by CoM Team Coordinator and/or Assistant Team Coordinators (supervisors). Some suggestions for management are set out in the body of this paper in the section entitled "Hot conditions" and management of heat issues in P&Y and some specific comments are provided I the section Heat and sun risk management strategies.

• P&T Officer training should be improved and evaluation should be built-in to training. Looking ahead to improvements in managing the heat issue, the concept should be of self-assessment and self-management of control over any risk, to the extent feasible.

• Given the level of risk identified (very low) then this approach is justified. This implied additional training and better training.

• Team Coordinator and/or Assistant Team Coordinator training should be reviewed and formally evaluated. Risk factors can be assessed fairly easily by officers on the job, and also by any supervisor (Team Coordinator and/or Assistant Team Coordinator). However, audit or monitoring by Team Coordinator and/or Assistant Team Coordinators is required to ensure that self-regulation is working correctly and that their team is "safe". That is part of the normal role of any supervisor and one which is imposed upon all managers and supervisors by law (representing the employer).

• Assessment of risk factors in their job is a process which should take about 2 minutes (by any officer who ahs done training) and can be done at regular intervals during a shift, if required. Assessment of an overall situation by a Team Coordinator and/or Assistant Team Coordinator (who is trained and using a procedure and certain available tools), could be a 5-minute process. Tools for such assessments are available and could include:

• Computer-Based Training (self training, with evaluation)

• Face to face training by external trainers (which is expensive and can be inefficient) is not required in this situation. However, audit, evaluation and monitoring are required, and processes for these need to be developed.

• In terms of controls, the broad objective is to reduce heat load for each individual officer who is subject to high heat or solar radiation load.

• The current review of work clothing should take into account best practice in terms of OHS risk minimisation.'

27. On 22 March 2006 IHC provided MCC with a report from Dr Bisby entitled 'Working in Hot Conditions' [82] which stated, inter alia,:-

• 'The paper was prepared to assist consultation with MCC operations on issues of working in hot conditions and working outdoors, particularly relating to the work of Parking and Traffic officers.

• An initial risk assessment on heat stress issues for the work of Parking & Traffic branch officers has been carried out.

• IHC usually recommends use of a leaflet called BEAT THE HEAT and a computer-based self training program

• At air temperatures greater than 35� Celsius, the human body cannot lose heat by convection and instead will gain heat from the external air. Under these conditions, the body's only effective heat loss mechanisms is sweating and evaporative cooling.

• Acclimatisation is the slow physiological adjustment of the body to a hot environment. Acclimatised workers sweat more efficiently and have improved capacity to work in hot conditions. Unacclimatised workers will tend to be more susceptible to heat stress. A reduction in acclimatisation occurs if exposure to heat ceases for more then 2-3 days. Acclimatisation disappears completely in about a week and on return from absences workers may be more vulnerable to heat stress. Problems often occur the first few hot days of the summer when workers are not acclimatised

• Induction training should include a range of information, including information about the risks of working in excessive heat; water replacement routines; proper use of clothing; and acclimatisation

• New employees should be assigned to light work, or restricted time in the hot area for a week or so until acclimatisation occurs. This also applies to workers who return after absences of longer then three days. Workers returning after a sickness to jobs which potentially have high heat stress may need to be cleared for work by a doctor who understands the nature of the work.

• In potentially high-risk situations or where the extent of the heat stress is unclear it is necessary to measure the degree of heat stress. The WBGT is widely used and accepted method of measurement of heat stress potential in the work situation. However, the WBGT index provides only part of the information required for assessment of risk. It provides no direct measurement of air movement and no straightforward means of readily evaluating the effects of possible control measures. The WGBT is recommended as a suitable index for use by people with little occupational hygiene background but who have been specifically trained in its work. A WBGT reading must be coupled with other factors such as the amount and suitability of clothing being worn, and amount of physical effort required, together with personal factors such as health of the worker.

• The activity of workers is classified in three ranks - light, moderate and heavy. It is important to employ the correct or most appropriate categorisation of activity levels, and IHC uses the ACGIH standards in Table 1.

• Using that table, the maximum recommended WGBT values (Celsius) are as follows [83]:-

28. On 31 March 2006 IHC sent Ms Wainwright amendments to the report from Dr Bisby the key elements of which were [84]:-

• There was a question whether P&T branch officers walked 8.9 kilometres a day, based on a "not reliable in many ways" [85] study of 1999, and an alternative suggestion that "an officer may walk up to 14 kms during"[86] the course of a day. If the distance walked was 14 kilometres a day then Dr Bisby's original assessment of the work rate as light may be open to challenge, "pushing it up to moderate"[87] This could then require an amendment to applicable work/rest regime

• Dr Bisby had provided an initial risk assessment, and a full risk assessment would be required to answer all the questions posed by MCC.

• The absence of required cases of heat related ill health amongst MCC in preceding years was itself an indicator that "any risk assessment must be low, and the real debate must be continually focussed in practical and practicable action for the future" [88].

• Work rest procedures are a recognised way (in all the international and Australian literature), for control of over-exposures to heat. Any listing of control measures "must include the concept of work/rest regime if the report is to be credible" [89].

• It would be necessary for a full job exposure risk assessment to be done of relevant positions within MCC to take account of matters such as measurement of work rate; WBGT measurements; a job/task analysis including more details of clothing; "and much more observational information about what actually happens on the job." [90]

• Dr Bisby recommends that when the Dry Bulb temperature gets to 34� Celsius then a work/rest regime is needed.

• The lack of information about the heat and radiation aspects of the job in P&T branch is a "major impediment at this stage" [91] in achieving precision about the figures to go in any table regarding work/rest rules.

29. In the form entitled Heat & Sun Risk Assessment of May 2006 circulated by MCC pursuant to the meeting of 16 and 27 March 2006 between MCC Management, OH&S representatives, ASU representatives, and Victorian Workcare Authority (VWA) representatives, there is reference made under "existing controls" to the "current work/rest regime" and the statement is included that "this work/rest regime is to be reviewed as part of the new policy" [92]. Under the column headed 'Options for improving controls' a probably action identified was "develop a table of possible additional measures to assist supervisors to monitor the conditions and provide additional control measures as required. WBGT [sic] Meter training for Team Coordinators. To be completed by Nov 06"[93].

30. On 12 June 2006 Mr Simon Sostaric (Mr Sostaric), Director of the Exercise & Sports Performance Unit of the Victorian University provided a report to the Occupation Health and Safety Team at Melbourne City Council Parking & Traffic Branch which reviewed/critiqued the proposals put forward by Dr Bisby through IHC to MCC on a revised Heat Stress Policy. [94] This stated, inter alia, that:-

• 'The fact that the physical and physiological demands of P&T officers has not been previously assessed was recognised in the IHC risk assessment.

• WBGT or 'thermal comfort' scales are more appropriate measures to be used by MCC in a Heat & Sun Policy.

• The assessment by Dr Bisby/IHC that P&T officers' work should be assessed in the low to low-moderate categories was noted, but Mr Sostaric suggested that the estimated energy expenditure would reflect a mild-moderate walking pace for a 55-60 kg individual.

• In reference to the Dr Bisby/IHC suggestion that a WBGT of 30� Celsius should be the recommended limit for continuous work, Mr Sostaric suggested that the conditions for P&T officers "require a modified work:rest protocol, not necessarily the recommended limit for continuous work" [95]

• The Dr Bisby/IHC assessment that risk for P&T officers was very low was "a reasonably assumption for individuals that are physically fit, not overweight and maintain adequate hydration strategies. Further investigation is required to determine the range of P&TO physical demands" [96]

• The proposals put forward to MCC by Dr Bisby/IHC "raise some valid and appropriate guidelines, and serve as a platform from which specific action plans should proceed. However, specific guidelines can only be fully supported with evidence based scientific data that addresses the physical/physiological demands of the work carried out by parking officers during the summer period. This should include a pilot research study looking at energy expenditure, hydration status, core temperature and subjective questionnaires relating to thermal discomfort in individuals representative of a typical cross section of the workforce (male, female, range of body mass, height, fitness status) [97].

• It may be reasonable for MCC to consider implementing WBGT guideline that are recommended by other professional organisations. However, the logistics of a parking officer's continually moving locations makes it impossible to provide precise WBGT location conditions. To overcome this the Australian Bureau of Meteorology uses an approximation to the WBGT.

• Workers should not be permitted to work when their deep body temperature exceeds 38� Celsius. Trends in core temperature changes in parking officers are currently inconclusive.'

This document was not provided by the relevant OH&S officers of P&T branch to Ms Wainwright of MCC until 31 August 2006. [98]

31. Notwithstanding having received that report from Mr Sostaric on 12 June 2006, on 13 June 2006 the OH&S representatives in P&T Branch, under the imprimatur of ASU, issued the following bulletin to P&T officers of MCC. [99]

'As you are all aware the current Parking and Traffic Heat Stress policy is under review. Management's proposal is to introduce a corporate policy so every one in council is included. Management suggest hat the heat stress rest regime be removed or changed in accordance with draft corporate policy.

The position of the Health and Safety team Is that the current Parking and Traffic policy is a safe system o work that has been in place for a number of years (17) and removal of a potential safety guard is exposing our officers to RISK.

The city of Melbourne commissioner a study conducted by The Victorian University of Technology in relation to the effects of working in heat and heat related illness in 1999.

Management were happy to use this information up until late last year.

Management have stated that he Parking and Traffic policy is out of date and the information that formed the policy is also outdated. The OHS reps believe that this is not the case and we are exhausting all avenues to try and protect the current policy.

We invite you to attend a meeting next week, Tuesday the 20th June at 12.30pm in the lunch room at Parking and Traffic.

Any feed back to the OHS reps prior to this meeting is welcome.' [100]

32. On 16 June 2006 Ms Wainwright, P&T branch management, P&T branch OH&S representatives, ASU representatives, VWA representatives and Dr Bisby met to discuss the Heat & Sun Protection Policy review and the initial risk assessment undertaken by Dr Bisby. [101] Following that meeting, a record of what was discussed at that meeting and the position MCC was now taking was prepared by Mr Noel Reid (Mr Reid) P&T manager as follows:-[102]

'On Friday 16 June 2006, at a consultation meeting involving Management of P&T, HSRs, HR - Team Leader and Consultant for OHS & Wellbeing, Worksafe and ASU, the Heat & Sun Risk Assessment was progressed. In this meeting, it was raised by HSRs that P&T staff had two concerns in particular regarding the review. These concerns were:

• The introduction of mandatory wearing of long sleeves as a component of the proposed uniform

• The removal of the prescribed table of work/rest breaks

HR obtained an expert opinion on reasonably practicable heat and sun risk management strategies. A report has been prepared by Dr John Bisby, registered medical specialist in Occupation Medicine, formerly Associate Professor Occupational Medicine & Environmental health, University of Melbourne. This report was distributed to HSRs involved in the review at P&T. Dr Bisby was invited to also participate in Friday's meeting and to respond to any question raised by attendees.

Dr Bisby responded to the above 2 concerns in the meeting.

Dr Bisby stated that the medical evidence is that where there is direct solar radiation onto the skin of the arms, there are two risk factors: the bodily heat loading, and the risk of skin damage from solar (UV) radiation. Bodily heat loading does not reduce when long sleeves are rolled up, mostly because the heat loading is increased due to the direct radiation. Where there is a solar risk of skin damage, covering up is the primary feasible control, which is preferable to sue of sunscreens. In summary, long sleeves, well-designed and of appropriate material, provide the best control of both risks.

Dr Bisby has also concluded in an Initial Health Risk Assessment that Sun and Heat hazards are present in the job of P&T Officers, but risks are not significant and can be well-controlled. The present table of work/rest commencing at a dry-bulb air temperature of 30C is not required by reference to internationally and nationally accepted criteria. His recommendation is that the present table should be modified to reflect internationally-accepted controls.

City of Melbourne therefore intends that the present table of work/rest breaks be replaced with an Action Plan which reflects national and international criteria, and standards. This will incorporate and improve all other control measures and will assist both Officers and their Managers/Team Co-ordinators better address, on any given day, the solar and heat hazards present in the outdoor working environment. Please refer to the 'Draft Action Plan Table' accompanying this information sheet.

Manager Parking & Traffic' [103]

33. Ms Wainwright's staff subsequently compiled a summary of key features of heat & sun protection polices being implemented by other Victorian municipal councils. [104]

34. From 12 July to 29 August 2006 Ms Wainwright engaged in further progressive revisions of the draft Heat & Sun Protection Policy. [105] Only on 15 August 2006 was Ms Wainwright informed by Mr Bruce Michailidis (Mr Michailidis), an OH&S representative for P&T Branch, that the OH&S representatives were in the process of completing their own risk assessment.[106]

35. Only on 31 August 2006 did Mr Michailidis and Mr Smith send Ms Wainwright the 12 June 2006 report of Mr Sostaric and the risk assessment dated August 2006. [107] The August 2006 Heat & Sun risk assessment,[108] whose authors were Mr Michailidis and Mr Smith, identified that out of twelve categories in the current situation involving working outdoors for P&T officers, in nine categories some improvement was required to the current controls in place. The document identified a range of risk treatments/action plan required including training and education, annual reviews of working hours, reviews of clothing requirements, updating of policies and procedures, the conduct of a pilot study, but in some five categories indicates a view that the "current heat stress policy remain"[109]. These two documents were discussed by Ms Nicole Misurelli (Ms Misurelli), MCC Manager of Enforcement Services, with Mr Michailidis and Mr Smith on 4 September 2006 and Ms Misurelli informed Mr Michailidis and Mr Smith that "these two documents will be considered"[110] by MCC in the process of revising the draft Heat & Sun Protection Policy.[111]

36. On 4 September 2006 Dr Bisby emailed Ms Wainwright and restated his view that the work rate of P&T officers should be assessed as light rather then light to moderate. [112]

37. On 5 September 2006 Dr Bisby emailed Ms Wainwright updating and adding detail to the Action levels/plan in the draft Heat & Sun Protection Policy document in relation to Table 2 which was to be amended as follows. [113]

'We have introduced flexibility by changing it from a rigid Table of work time/rest periods triggered by certain WBGT levels, to allowing for individual variation when the environment conditions trigger its use. If this flexibility is adopted, then 'rest' will be taken only if further control measures are not practicable, or not agreed to by the individual. The individual will have more choice whether to go on working, but e.g. taking more advantage of shade or any other measure they can suggest at the time.

• This introduces the concept of the individual officer cooperating with her/his team leader in making a joint decision on need for work/rest regime on very hot days (or how far to apply it).

• It avoids use of Table 2 as a 'rigid' inflexible rule (as was previously being done) - making it more of a guideline.

• It should strengthen the relationship between individual officers and the 'supervisors' - putting the Team Leader at the heart of the issue.

• It also 'empowers' the individual officer - giving them some choice of what to do next and allowing them to exercise some initiative. This is consistent with the self-assessment concepts also used e.g. for reporting ill-health to their Team Leaders, and self-assessment in issues such as drinking more in hot weather (hydration).

Because we have kept the underlying Table intact, I think this flexibility added to it will be acceptable to WorkCover (the original is exactly what WorkCover and the State Governments use, and what they tell their inspectors to use). WorkCover in explaining this Table states "recommended limits (WBGT) are not fine lines between safe and dangerous levels, they are intended for use as guidelines in the control of hot working conditions."

We have added notes on Table 1, making it explicit that the categories of heavy and moderate work rates are not applicable in CoM. This is important to avoid disputes when applying Table 2, and to justify the overall Risk Assessment as 'very low.'

You will note that the issue of clothing remains "open" - and my final comment in the document may not be necessary. Your new uniform will hopefully allow the present safety margin to increase rather than add any increased heat burden in these jobs.

The document will need revisions again when the new uniforms and introduced - and another revision can be anticipated at the end of the coming summer when the procedures are reviewed. These revisions will all aim for improvement in the document, but should be relatively minor - certainly not starting with a blank sheet. However, revision at the end of the summer will no doubt be done in consultation with HSRs etc and groundwork for this can be laid in Safety Committee meetings throughout the summer.' [114]

38. On 5 September 2006 Dr Bisby also wrote to Ms Wainwright commenting on Mr Sostaric's report of 12 June 2006 stating, inter alia,

'The general comment entitled Adopting a new heat stress policy on page 3 contains a mixture of comment, and proposals for new research to be done on Parking and Traffic officers working for CoM. Most importantly Mr Sostaric (lines 1-2 of this section) agrees that:

"The IHC guidelines presented to MCC raise some valid and appropriate guidelines, and serve as a platform from which specific action plans should proceed."

This is an important statement of Mr Sostaric's opinion, and in our view the crux of his letter. In summary he seems to be in agreement with the broad sweep of what IHC has put forward.

Mr Sostaric then qualifies this somewhat by stating that

"Specific guidelines can only be fully supported with evidence based scientific data that addressed the physical/physiological demand of the work carried out by parking officers during the summer period".

In plain English, Mr Sostaric is proposing that someone carry out that extensive research on P&T Officers (and presumably on all CoM employees, and even volunteers). Mr Sostaric concludes (page 5) by offering the readers assistance with "research design."

IHC disagrees with the proposal or need for any research. The need for such research and the issues involved, were considered when compiling the initial Risk Assessment in February -March 2006.

The reasons IHC concluded that such a research study on P&T officers is both unnecessary and unwarranted are:

• The initial risk assessment does not indicate that the risk is anything but low and situations of low risk do not justify intensive or extensive investigation. Remedy commensurate with risk is the principle adopted in Victorian legislation, which means that research would only be required where risk was high, or unknown, or where reasonably useful guidelines applicable to the work were not available.

• Such research on P&T officers is not feasible in epidemiological terms, and is not reasonably practicable. It would be impractical and intrusive and probably considered unethical by an ethics committee (e.g. to measure core temperatures, measure hydration, personal factors). It may contravene sections of the Privacy Act 2001.

• It would be expensive and time-consuming to carry out such research. To do such measurements as listed in Mr Sostaric's letter, on a sufficient number of subjects and obtain sufficient data to have an epidemiologically (statistically) valid study, given the variables involved, would require a massive investment of time and money (even if feasible). This would be unjustified by the nature and level of risks under discussion.

• Technical difficulties: outside a laboratory, it is difficult to actually measure work rates, in humans doing their usual work; and inside a laboratory it is difficult to create real or actual work conditions. In practice work rates are almost always estimated, rather than measures, and this is the method used by inspectors and occupational health professionals. These estimations are however based on previous research findings - and experience.

The above opinion that such research is not required or feasible in the present situation is based on experience of directing and chairing the largest worker health study done in Australia, the University of Melbourne, over many years, and managing its multi-million dollar budget.

Reasonable information about the work of P&T officers (and others) is already available. The jobs are not new, or highly complex, do not involve high work rates, or heavy protective clothing, and are not being carried out in unusual or unpredictable climates. Reliable Government standards relating to heat and radiation have been sued in Australia industry for over half a century, and there is a large body of evidence available

All of these factors are relevant to the question of whether the new proposed guidelines are reasonable. Mr Sostaric agrees that they are, and therefore no "research" is needed.' [115]

39. On 6 September 2006 Mr Michael Dawson-Smith (Mr Dawson-Smith), Human Resources Branch Manger of MCC, wrote to Mr Darryl Cochrane of ASU as follows:

The City of Melbourne in consultation with employees and health & safety representatives have undertaken an extensive review of the risks associated with working outdoors, in particular exposure to UV radiation and heat. The Corporate Policy has now been revised and as a result a control plan has been developed.

CoM has engaged in an exhaustive consultation process over the last 11 months and invite you and Leanne Sumpter to discuss the modifications and implementation process with this policy at a meeting Thursday 21 September, 3pm - 4pm in the St Petersberg Room, Level 2 Council House, 200 Little Collins St Melbourne.

Please confirm your availability to attend.' [116]

40. On 7 September 2006 Ms Wainwright made further revisions to the draft Heat & Sun Protection Policy and this revised draft was put to the MCC Corporate OHS Committee meeting. [117] The draft provided:

'This policy will be known as the Heat and Sun Protection Policy.

• Take all reasonable steps to ensure the exposure to heat and sun is reduced, so far as is reasonably practicable, to employees, contractors and volunteers.

• Develop and implement risk controls to minimise any adverse health effects from heat and sun.

• Take reasonable steps to ensure all employees, contractors and volunteers have an understating of the policy and process to apply risks controls reducing the effects of heat and sun.

• Provide all managers and team leaders with the knowledge and understanding of their legal duties and Council's expectations regarding their management and monitoring of employees', contractors' and volunteers' exposure to heat and sun.

• Support Council's duty of care to its employees, contractors, volunteers, protection of Council property and reputation.

• All employees, contractors and volunteers who are required to work outdoors (whose tasks involve more than 2 hours outdoors per working day).

• Provide and maintain a work environment that is safe and without risks to health.

These procedures provide detail of how the Policy will be implemented.

Each year provide information and training for outdoor work

• For every employee and volunteer prior to commencement of duties (including casual or other staff) with focus on CoM policy and procedures, self-assessment and communication with Team Leaders/Team coordinators.

• Managers/Team Leaders/Team Coordinators will receive training on appointment, and at intervals, with focus on CoM policy and procedures, assessment of risk, application of controls, supervision & communication.

In the event that an employee experiences ill health for any reason, which they consider incapacitates them to the extent that they feel they should not continue work, the usual procedure applies, i.e. the employee must contact their manager team leader as soon as possible. First Aid, emergency and other standard procedures apply and incident investigation and report must be actioned by Managers/Team Leader within 24 hours.

Use of the report form provided by CoM for self-assessment of illness and fitness for work and full communication between officers and their Team Leader, is encouraged.

When temperature is forecast to be 30�C and above -dry bulb air temperature from Bureau of Meteorology-Melbourne(BoM)

• Deliver toolbox session including reminders of Action Level 1 measures

• Determine employee 'fitness for work; by self assessment/management assessment with Manager/Team Leader consultation. Employee self-notifications will be used, and verbal reports from employees to their Managers/Team Leaders to their teams when BoM weather forecast predicts several consecutive high temperature days.

• Action Level 1 control measures apply and are mandatory and subject to Manager/Team Leader/Coordinator monitoring.

When BoM information indicates dry bulb air temperature has reached 30�C or is approaching that level

• Action Level 2 measures apply, and are subject to increased supervisions and monitoring by Mangers/Team Leaders/Team Cooridnators, with employee feedback

CoM WBGT measurements to be continued at intervals.

Further action is based on WBGT rather than on dry bulb air temperature.

• Action Level 1 and 2 provisions continue to be mandatory and subject to supervision and monitoring.

• Action Level 3 introduction of Work/Rest Regime Table

• Action Level 1, 2 and 3 continue; including application of Work/Rest Regime Table, with cessation of outside work unless further controls can be adopted by the officer, to reduce her/his WBGT/heat load.

Action levels and their definitions, provide a convenient way of indicating the levels of control current at any time. They build on control measures with each level adding to the controls used in the previous level. Thus Action level 1 applies throughout the Summer; Action level 2 adds further controls or closer supervisions and monitoring, and Action level 3 is reserved for the situation when a work/rest regime is applicable to the individual officer because WBGT levels (heat load) for that working environment have reached the relevant occupational limit value.

Summer control measures mandatory and subject to Manager/Team Leader/Coordinator monitoring including:

• Fluid break(s) on location (in addition to meal/rest break)

• Monitoring of employee status and comfort, and feedback

Occurs when dry bulb air temperature from BoM (Bureau of Meteorology - Melbourne) reaches 30�C and all actions at Level 1 are already in use and continuing. Action level 2 includes:

• Monitoring of environmental conditions, and measurements of WBGT.

• Monitoring of personal illness and disability notifications, and other employee feedback e.g on thermal comfort.

• Implementation of communication protocols - normal levels of communication between Team Leaders and patrolling officers are enhanced through increased communications, more information about climatic shade, need to communicate feedback.

• Direct supervision of selected patrol operations e.g. at particular locations.

• Transport in air conditioned vehicle where appropriate or available.

• Modification of tasks or duties as practicable and necessary.

Occurs when WBGT exceeds 30. it involves consideration of the Work/Rest Regime Table where further control measures cannot be adopted by the office to reduce her/his WBGT/heat load.

Work/Rest Regime applicable (within Action Level 2)

Unless control measures (e.g. shade working) can be adopted by the officer, to reduce her/his WBGT/heat load

Unless control measures (e.g. shade working) can be adopted by the officer, to reduce her/his WBGT/heat load

Unless control measures (e.g. shade working) can be adopted by the officer, to reduce her/his WBGT/heat load

Work situations will be assessed individually by the officer and Team Leader unless control measures (e.g. shade working) can be adopted by the officer, to reduce her/his WBGT/heat load, work shall cease and the officer shall return to base and report.

To achieve control of risk, CoM Managers/Team Leaders/Coordinators take into account WBGT together with other factors such as clothing, and all subject to the individual being in normal health when at work. 'Continuous work' means working with the normal meal breaks and the normal shift times.

Control of risk, thermal comfort, and application of work/rest regime when WBGT exceeds 30 (see Table) is largely dependent o personal situation and action under personal control. Co-operation between Team Leaders and patrolling officer, and use of the knowledge and skills gained through training, and self-assessment, will enable risk to be controlled.

The Table (as with occupation limits generally) is a guideline to safe practice. Action Level 3 (use of Work/Rest regime Table) only occurs when al actions at Level 2 and 1 are already in use and continuing.

The need to take rest or continue work, will be balances with consideration of whether the work circumstances can be modified to reduce the effective heat loading on the officer. WBGT measures may be obtained at typical locations, to assess worst-case scenarios. However, individual locations may vary and individual controls may be available which reduce effective WBGT and heat loadings and can allow for work to continue with a regime representing effective heat loading.

Some local factors which can be taken into account, and used in a self-assessment by the officer, in consultation with the Team Leader, could be:

• Increased use of shade (available or provided)

• Use of available cooled areas (e.g. A/C malls, arcades for moving from patrol area to patrol area)

• Switching to alternative duties involving less walking (the normally work rate is mostly related tot eh amount to walking done in these jobs)

The ultimate level of alert is when WBGT exceeds 32.2 as measured at the CoM station. At this level Team Leaders will alert all their team to the WBGT level and advise that work ceases unless conditions can be modified locally to reduce heat load (effective local WBGT) for the individual officer. Where it is agreed work should cease, officers should return to base and report to team Leaders. When WBGT again falls below 32.2, outdoor work would recommence according tot eh Daily Procedure.' [118]

41. On 12 September 2006 the MCC Corporate OHS Committee met and was attended by MCC management and three OHS representatives Emma Baker, Jackie O'Connell and Allison Tye. [119] At this meeting the draft revised Heat & Sun Protection Policy was discussed, a number of queries and suggested revisions were proposed and agreed upon, and the policy as agreed to be revised was unanimously accepted and endorsed by all Committee members.[120]

42. On 1 October 2000 Ms Wainwright made final amendments to the draft Policy and settled the terms of the new MCC Heat & Sun Protection Policy following the decision of the Corporate OHS Committee on 12 September 2006. [121] This policy states, inter alia:-

• Take all reasonable steps to ensure the exposure to heat and sun is reduced so far as it reasonably practicable, to employees and volunteers.

• Develop and implement risk controls to minimise any adverse health effects from heat and sun.

• Take reasonable steps to ensure all employees and volunteers have an understanding of the policy and process to apply risk controls reducing the effects of heat and sun.

• Provide all managers and team leaders with the knowledge and understanding of their legal duties and Council's expectations regarding their management and monitoring of employee's and volunteers' exposure to heat and sun.

• Support Council's duty to its employees, volunteers, protection of Council property and reputation.

• All employees and volunteers who are required to work outdoors (whose tasks involve more than 2 hours outdoors per working day).

• Provide and maintain a work environment that is safe and without risks to health.

4.1.1 Managers and Team Leaders are responsible for:

• Organising, resourcing and supervising work so that it is carried out without risk to safety or health.

• Maintaining a risk assessment of the potential exposure to heat and solar radiation amongst employees and volunteers.

• Maintaining the risk control plan and implement procedures and supervise and monitor compliance.

• Providing a protective uniform and PPE, where applicable. The wearing of the protective uniform is mandatory. The u uniform will include long pant and shifts that must have a sleeve length of � or full sleeve with a collar, and wide brimmed hats (minimum 7.5cm) or bucket hat (brim minimum 6cm).

• Training will be provided to employees and volunteers with the objective of having all outdoors workers informed and understanding how they can use self-assessment and cooperate with their Team Leaders/Coordinators to control any risks.

• Training will be provided to nominated Managers and Team Leaders/Coordinators to enable them to carry out their role of getting work done safely and supervising their team and outdoor workers.

• Consultation and OHS information will be provided to duly elected HSRs relevant to their Designated Work Groups.

5.1 CoM as the Employer and operator through its Managers, Team Leaders and coordinators is responsible for ensuring the health and safety of employees and others and for the supervision and monitoring of the implementation of the control measures.

• Wearing the approved uniform (where provided), or approved suitable outdoor clothing during hot working conditions.

• Advising their immediate Team Leader if they have a medical condition which could be aggravated by exposure to hot weather conditions or sun.

• Seeking First Aid or medical treatment if required and communicating with their Team Leader/Coordinator.

• Complying with the procedures and control measures.

These procedures provide detail of how the Policy will be implemented.

Each year provide information and training for outdoor work.

• For every employee and volunteer who is required to work outdoors, prior to commencement of duties (including casual or other staff) with focus on CoM policy and procures, self-assessment and communication with Team Leaders/Team Coordinators.

• Mangers/team Leaders/Team Coordinators will receive training on appointment, and at internals, with focus on CoM policy and procedures, assessment of risk, application of controls, supervisions & communication.

In the event that an employee experiences ill health for any reason, which they consider incapacitates them to the extend that they feel they should not continue work, the usual procedure applies, i.e. the employee must contact their Manger/team Leader as soon as possible. First Aid, emergency, and other standard procedures apply and incident investigation and report must be actioned by Mangers/Team Leader within 24 hours.

Use of the report form provided by CoM for self-assessment of illness and fitness for work, and full communication between employees and their Team Leader, is encouraged.

When temperature is forecast to be 30�C and above -dry bulb air temperature from Bureau of Meteorology-Melbourne(BoM)

• Deliver toolbox session including reminders of Action Level 1 measures

When temperature is forecast to be 30�C and above -dry bulb air temperature from Bureau of Meteorology-Melbourne(BoM)

• Determine employee 'fitness for work; by self assessment/management assessment with Manager/Team Leader consultation. Employee self-notifications will be used, and verbal reports from employees to their Managers/Team Leaders to their teams when BoM weather forecast predicts several consecutive high temperature days.

• Action Level 1 control measures apply and are mandatory and subject to Manager/Team Leader/Coordinator monitoring.

When BoM information indicates dry bulb air temperature has reached 30�C or is approaching that level

• Action Level 2 measures apply, and are subject to increased supervisions and monitoring by Mangers/Team Leaders/Team Cooridnators, with employee feedback

CoM WBGT measurements to be continued at intervals.

Further action is based on WBGT rather than on dry bulb air temperature.

• Action Level 1 and 2 provisions continue to be mandatory and subject to supervision and monitoring.

• Action Level 3 introduction of Work/Rest Regime Table

• Action Level 1, 2 and 3 continue; including application of Work/Rest Regime Table, with cessation of outside work unless further controls can be adopted by the officer, to reduce her/his WBGT/heat load.

Action levels and their definitions, provide a convenient way of indicating the levels of control current at any time. They build on control measures with each level adding to the controls used in the previous level. Thus Action level 1 applies throughout the Summer; Action level 2 adds further controls or closer supervisions and monitoring, and Action level 3 is reserved for the situation when a work/rest regime is applicable to the individual officer because WBGT levels (heat load) for that working environment have reached the relevant occupational limit value.

Summer control measures mandatory and subject to Manager/Team Leader/Coordinator monitoring including:

• Fluid break(s) on location (in addition to meal/rest break)

• Monitoring of employee status and comfort, and feedback

Occurs when dry bulb air temperature from BoM (Bureau of Meteorology - Melbourne) reaches 30�C and all actions at Level 1 are already in use and continuing. Action level 2 includes:

• Monitoring of environmental conditions, and measurements of WBGT.

• Monitoring of personal illness and disability notifications, and other employee feedback e.g on thermal comfort.

• Implementation of communication protocols - normal levels of communication between Team Leaders and patrolling officers are enhanced through increased communications, more information about climatic shade, need to communicate feedback.

• Direct supervision of selected patrol operations e.g. at particular locations.

• Transport in air conditioned vehicle where appropriate or available.

• Modification of tasks or duties as practicable and necessary.

Occurs when WBGT exceeds 30. it involves consideration of the Work/Rest Regime Table where further control measures cannot be adopted by the office to reduce her/his WBGT/heat load.

Work/Rest Regime applicable (within Action Level 2)

Unless control measures (e.g. shade working) can be adopted by the officer, to reduce her/his WBGT/heat load

Unless control measures (e.g. shade working) can be adopted by the officer, to reduce her/his WBGT/heat load

Unless control measures (e.g. shade working) can be adopted by the officer, to reduce her/his WBGT/heat load

Work situations will be assessed individually by the officer and Team Leader unless control measures (e.g. shade working) can be adopted by the officer, to reduce her/his WBGT/heat load, work shall cease and the officer shall return to base and report.