Request by Unions NSW and the Newcastle Trades Hall Council on behalf of Port Waratah Coal Services Limited, Bechtel Australia Pty Ltd, Australian Industry Group and the Civil Construction Unions for the assistance of the Industrial Relations Commission of NSW [2013] NSWIRComm 100

Industrial Agreement 8Bechtel entered into an industrial agreement with Unions NSW, Newcastle Trades Hall Council and Construction Unions to cover this work. 9The Bechtel Australia Pty Ltd Port Waratah Coal Services Kooragang Expansion Project Agreement 2010-2014 (the Agreement ) was approved by Fair Work Australia (as it then was) on 11 May 2010 (AG2010/870 [2010] FWAA 3723). 10The parties to the agreement are detailed in Clause 2 in the following terms: (a) Bechtel Australia Pty Ltd; (b) All Employees of Bechtel Australia Pty Ltd engaged on the Port Waratah Coal Services Kooragang Expansion Project whether members of the organisations listed in (c) or not. (c) The organisations that represent the Employees defined in 3(c), namely: (i) Australian Workers Union. Newcastle, Central Coast and Northern Regions Branch (AWU); (ii) Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch (AMWU); (iii) Construction, Forestry, Mining and Energy Union - Construction and General Division, NSW Branch (CFMEU); (iv) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union - Electrical, Energy and Services Division, NSW Divisional Branch (ETU); (v) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union - Plumbing Division, NSW Divisional Branch (CEPU); and (vi) Transport Workers' Union of NSW (TWU). 11The Agreement sets out wages and conditions of employment and hours of work within a framework of co-operation and mutual responsibility, with innovative safety and communication procedures. 12Sub Clause 5(c) Application and Scope of Agreement states: (c) This Agreement is designed to enable the Company, its Employees and their representatives to co-operate with the objective of ensuring: the project is safe and no one is injured in their work; all environmental protection requirements are met; the Employees are treated fairly; the Employees have the opportunity to contribute ideas to improve the work process; the project has no lost time due to industrial differences and is free of disputes; and the work is completed on time. * 13The parties committed themselves to training in Clause 14 which is founded upon a commitment that all employees could leave the job with more skills and qualifications than they arrived. 14Clause 14(d) states: (d) Training Training and development opportunities that provide opportunity to increase efficiency and productivity will be developed that:

• are consistent with the Employer's business requirements;
• are relevant to the needs and expectations of Employees;
• may be taken either on or off the Site; and
• may be conducted when work cannot proceed eg. due to inclement weather. The Employer shall be responsible for the cost of training and wages during the time involved in training provided that where an Employee undertakes training without the Employer's approval the Employer will not be responsible for costs of wages. 15The Agreement further provided a site communication process at Clause 34 in the following terms: In order to ensure the effective operation of the Agreement, Project Management and the Employer will participate in consultation with Union representatives. (a) Appointed Employee representatives shall be entitled to meet with the Union party representatives prior to any meetings of Employees conducted under this clause without deduction of pay for up to one hour each meeting. (b) Subject to (e) of this clause, Project Management will convene a meeting of Employees each month to discuss Employee matters specific to the Project and the operation of the Agreement. The meeting shall be from 9.00am to 10.00am or as otherwise agreed. (c) Following this meeting Employee representatives will meet with Project Management to clarify issues that may have arisen. (d) Excepting the time provided for in subclause (a), (b) and (c) of this clause and subclause 33(a), any time lost during working hours due to attendance at meetings of Employees shall not be paid. (e) The right for Employees to participate in the meeting referred to in this clause may be withdrawn by Project Management at any time should Employees attend meetings outside the times and dates provided for in this clause. 16Clause 35 Settlement of Disputes detailed the obligations of all parties to dispute resolution, procedures therefore and at Clause 35(e) nominates a member of the Industrial Relations Commission of New South Wales as the dispute resolution provider in accordance with section 146B of the Industrial Relations Act 1996. 17The Agreement is completed by Appendix 1 - Project Code of Conduct & Work Rules which provide detail of the conduct and behaviour required on the project. 18Sub Contractors and Contractors entered into a further 20 agreements in respect to work on the site which supported the principles of the Bechtel Agreement. 19These agreements were further supported by detailed induction processes and a site safety policy carried on from Project 3D, aptly described by Commissioner Stanton in his Statement of 23 February 2007 at paragraphs 37 to 40 in the following terms: 37 The Commission has observed that the client's expectations insofar as safety was concerned were articulated in a very clear and unequivocal "Message to Employees" contained in the December 2005 Newsletter published shortly after the commencement of construction work where PWCS General Manager, Mr G Davidson stated: The recent launch of project 3D underlines the importance of PWCS Kooragang Operations to the success of the Hunter Valley coal system. The facilities at the Newcastle Port provide the platform for successful delivery of coal to the rest of the world and this expansion will ensure that the continuing growth in demand can be met. With demand increasing rapidly we need to ensure that the expansion is completed in a timely manner. But this cannot be at the expense of your safety. Production never comes before your safety at PWCS. If an activity carries an unacceptable level of risk, you have been authorised to stop what you are doing and stay stopped until the risk is adequately addressed. Work with your team mates and supervisors to develop safe methods before restarting. We do not operate systems that carry an unacceptable risk of hurting somebody. We won't expose our workforce to risk which we would find unacceptable for our family, friends and colleagues. [emphasis added] 38 Mr Davidson's strong message to employees was reinforced by comments from the PWCS Project Manager, Mr O Scott in the same Newsletter: We have a great opportunity to deliver an expanded facility to PWCS that will be seen as best practice in project delivery. How can we do that? In the main by continuing the great safety efforts to date and ensuring that no one gets hurt. This is challenging - and achievable - through the constant effort of everyone involved. We must maintain our focus on safety while we deliver a quality product that meets the needs of PWCS Operations and Maintenance. [emphasis added] We must remember that we are carrying out construction work within an operating plant that has extra hazards to those we normally associate with construction. Please be aware of the activity in the area where you are working and seek assistance and guidance in dealing with these different hazards. 39 Bechtel's vigilance towards safety was exemplified in the December 2005 Newsletter where Project Manager, Mr D Elsdon wrote the following "Message to Employees": Project 3D offers us an opportunity to build on the great work carried out in the previous Stage 3 Expansion and to once again deliver a successful project to PWCS. Our main focus on this project must be to carry out all project activities safely to ensure that every person on this project returns home safely to their families every day. Equally important is focus to ensure that the project facilities are constructed safely and that they are safe to operate and maintain. I encourage you all to maintain the same safety awareness in and around the home. [emphasis added] 40 The client's resolve that all employees had authority to stop work where that work carried an unacceptable level of risk was reaffirmed by Mr Elsdon in the August 2006 Newsletter: In my daily walk-around I see many examples of good task planning and work execution incorporating our project safety initiatives. However as we experienced recently, despite all this excellent work and effort, it takes but a moment for someone to get hurt. I urge all my fellow team members to remain vigilant and be alert to opportunities to identify patterns and risks and to take immediate action to eliminate them. You have the authority to stop the work and fix the problem. [emphasis added] 20This safety policy was much used but never abused. 21Final proceedings in this matter took place on Monday, 4 November 2013; the last construction worker finished on the site on Friday, 1 November 2013. 22The project was completed six months ahead of schedule and some $300 million under budget; 5.4 million man hours were worked across the job. 23In the final conference of 4 November 2013 Mr Grant Lindner, Project Manager Bechtel, provided the following detail in respect to industrial relations performance and achievement:

25Mr McPherson, appearing on behalf of Unions NSW, Newcastle Trades Hall Council and the Construction Unions, noted the co-operative working relationships between the Unions, Management and AiGroup. 26There were 38 Communication Consultative meetings on the project, the last on 13 August 2013 and regular site inspections and progress reports to the Commission. 27A standing arrangement for quick response existed between the parties and the Commission that either Deputy President Harrison or Commissioner Stanton would be available to list proceedings instantly if matters arose in a monthly meeting which required assistance. 28The Project outcomes are a credit to all participants. Management are congratulated on the leadership and commitment to safety, communication and positive relationships. 29The Trade Union officials and site delegates are congratulated on their contribution which has, throughout the Project, been co-operative, responsible and productive of a quality outcome for their members, contractors and the client. 30Matter No IRC 946 of 2010 is so concluded.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2013