Fair Work Act 2009

s.424 & s.426 - Application to terminate protected industrial action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (B2025/1361)

Application by Solvay Interox Pty Ltd to terminate protected industrial action under s 424 and s 426 of the Fair Work Act 2009 (Cth)

• [1] Solvay Interox Pty Ltd has made an application under ss 424 and 426 of the Fair Work Act 2009 (Cth) for an order that protected industrial action be terminated.

• [2] Solvay is the most significant hydrogen peroxide producer and manufacturer in Australia. Its manufacturing facility is located in Banksmeadow, New South Wales (Site).

• [3] The respondents to the application are the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU), the Australian Workers' Union (AWU), and the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU).

• [4] I conducted an urgent hearing, by video conference, from 2pm until about 6:30pm today in relation to Solvay's application. Mr Steven Barclay, Country Manager and Director, of Solvay gave evidence in support of Solvay's application. The respondents elected not to call any evidence. The AMWU does, however, rely on an undertaking it gave to Solvay in connection with its application for a protected action ballot order. That undertaking is in the following terms:

"The AMWU undertakes to ensure that in an emergency situation as contemplated by the Banksmeadow Site Emergency Plan (Plan), AMWU members will be available to fulfill the role of Plant Emergency Controller, to the extent required under the Plan and where no other suitable employees are available to perform that role".

• [5] On 21 August 2025, the ETU notified Solvay that protected industrial action would be taken on 28 August 2025, being the stoppage of work of 24 hours commencing at 12:00am on 28 August 2025 and continuing each and every day thereafter indefinitely.

• [6] On 22 August 2025, the AWU notified Solvay that protected industrial action would be taken on 28 August 2025, being the stoppage of work of 14 hours commencing at 10am on 28 August 2025 and the stoppage of work of 10 hours commencing at 12am on 29 August 2025.

• [7] On 22 August 2025, the AMWU notified Solvay that protected industrial action would be taken on 28 August 2025, being the stoppage of work of 14 hours commencing at 10am on 28 August 2025 and the stoppage of work of 10 hours commencing at 12am on 29 August 2025.

• [8] On 28 August 2025, the AMWU notified Solvay that protected industrial action would be taken on 3 September 2025, being the stoppage of work of 5 hours commencing at 12:01am on 3 September 2025.

• [9] At the hearing, Ms Kelly, counsel for the respondents, informed the Commission that members of the ETU would not take any further protected industrial action pursuant to the notice given to Solvay on 21 August 2025. Accordingly, the only notice "in the field" is that pertaining to the protected industrial action to be taken by members of the AMWU between 12:01am and 5:01am tomorrow.

• [10] For the reasons explained below, I have decided to make an order terminating the protected industrial action planned to be taken by members of the AMWU between 12:01am and 5:01am tomorrow. My reasons are brief in light of the protected industrial action which is due to commence at 12:01am tomorrow morning.

• [11] In final submissions, Mr Phillips, senior counsel for Solvay, informed the Commission that Solvay did not rely on s 424(1)(d) or s 426 of the Act in relation to the protected industrial action which is planned to be taken by members of the AMWU between 12:01am and 5:01am tomorrow. Accordingly, the question I must determine is whether the protected industrial action proposed to be taken by members of the AMWU between 12:01am and 5:01am tomorrow - being action that I am satisfied is threatened and impending - has threatened, is threatening, or would threaten, to endanger the life, personal safety or health, or welfare, of the population or a part of it, within the meaning of s 424(1)(c) of the Act. The part of the population identified by Solvay is comprised of the following:

(b) anybody who comes on to the Site, including contractors and emergency services workers;

(c) industrial neighbours of the Site, namely any person who works at, or visits, any of the premises shown on the aerial photograph at page 101 of the Hearing Book;

(d) residential neighbours who live at, or visit, premises within 500m of the Site; and

(e) any person who passes by the Site on any of the streets shown in the aerial photograph at page 101 of the Hearing Book.

• [12] The evidence demonstrates that one Solvay employee, Ms Da Rocha, will be at the Site between 12:01am and 5:01am tomorrow and Mr Barclay may, depending on his fatigue, also be at the Site at that time. The evidence does not establish that any other employees of Solvay will be at the Site between 12:01am and 5:01am tomorrow.

• [13] The evidence does not establish that any visitor is planned to attend the Site between 12:01am and 5:01am tomorrow. However, I accept that if there is a safety incident at the Site, emergency service workers will be required to attend the Site. Other visitors may attend the Site, as happened last week during protected industrial action, to deliver food to persons at the Site.

• [14] The evidence does not establish whether any of the industrial neighbours of the Site, as explained above, will be present between 12:01am and 5:01am tomorrow. However, I consider that there is a reasonable prospect that there may be persons working at, or visiting, at least some of those premises between 12:01am and 5:01am tomorrow.

• [15] The evidence does not reveal how many people live at, or visit, any of the residential premises within 500m of the Site. However, I consider that it is almost inevitable that there will be persons present at some or all of those residential premises between 12:01am and 5:01am tomorrow.

• [16] Having regard to all the circumstances, I am satisfied that the persons described in subparagraphs 12(a) to (e) above comprise part of the population within the meaning of s 424(1)(c) of the Act. They are a collective group located on, or in close proximity to, the Site.

• [17] I am satisfied that the protected industrial action planned to be taken by members of the AMWU between 12:01am and 5:01am tomorrow is threatening to endanger the life, the personal safety or health, and/or the welfare, of the part of the population I have identified for the following brief reasons:

(a) The members of the AWMU who are planning to take the protected industrial action are plant operators at the Site. They are trained and experienced employees. Their main duties include ensuring adequate and appropriate plant monitoring, promptly responding to alerts and alarms, and undertaking safety response and emergency management control during emergency situations.

• (b) If the plant at the Site is not operating, such as during a period of protected industrial action, I accept Mr Barclay's evidence to the effect that (i) two employees are required to be present at the Site to monitor and ensure the safety of the Site and (ii) at least one of those two employees must be a trained plant operator. Solvay's Emergency Plan is based on an assumption that two employees are on site at any time and one of these employees is capable of fulfilling the role of Plant Emergency Controller if any emergency occurs. Notwithstanding that the Emergency Plan is only "based on an assumption that two employees" are on Site, Mr Barclay gave evidence, which I accept, that two employees are required to be on Site at these times.[1] The plant operators are Plant Emergency Controllers. Mr Barclay is not, nor is Ms Da Rocha, a Plant Emergency Controller. They are both Facility Emergency Controllers, who have a different role in the event of an emergency at the Site. These roles have significant work to do once an emergency arises, they are not involved in the identification of risks and taking preventative measures to reduce the likelihood of an emergency happening.

(c) I am persuaded on the evidence that a trained plant operator must be present on the Site when it is not producing products, such as during a period of protected industrial action, primarily to monitor the control room and undertake interventions as required to address alarms and other risks identified at the Site. I am persuaded on the evidence that only trained plant operators can do this work; other employees of Solvay cannot. Mr Barclay attempted to do these tasks when he was on the Site, without any plant operators, during protected industrial action last week. Mr Barclay gave oral evidence, which I accept, that last week when he was on the Site without any plant operators during protected industrial action a number of different types of alarms went off and he had no training in how to respond to them. Mr Barclay also explained in his witness statement how he found it very daunting to monitor the operations of the Site on his own. I accept this evidence.

(d) I am satisfied that the protected industrial action planned to be taken between 12:01am and 5:01am tomorrow is threatening to endanger the life, personal safety or health, or welfare, of the part of the population I have identified because the absence of a plant operator attending the Site to monitor the control room and undertake interventions as required to address alarms and other risks identified at the Site means that such risks may not be identified, there may be a delay in identifying the risk, or appropriate interventions may not be taken or may be delayed.

• (e) These risks are significant in the circumstances of a Site in which hydrogen peroxide is manufactured. Even though no hydrogen peroxide is manufactured during periods of protected industrial action and the plant is in a state of idleness, some chemicals remain in the plant and other dangerous chemicals are stored on the premises. As Mr Barclay explained in his evidence, which I accept, accelerated decomposition of particular chemicals can take place at the Site, which may cause heat, a fire and/or a vapour cloud akin to an explosion.[2] Given that other dangerous chemicals are present on the Site, such a fire or 'explosion' can have a flow on effect and cause a major safety incident. The evidence reveals that other safety incidents at hydrogen peroxide plants around the world can, and have, caused loss of life and harm to individuals both at the work site and in nearby properties. Although the risk of these events is low, the consequences if they happen can be extremely serious. Monitoring the Site and responding appropriately to alarms and other concerning data by trained plant operators is an important element of managing risks at the Site.

• (f) Because Solvay is deemed a Major Hazard Facility, it must have a Safety Case.[3] The Safety Case indicates that the acceptable offsite and onsite risks are not exceeded at the Site.[4] However, this does not establish or indicate that serious risks cannot or do not occur at the Site. It is clear from the nature of Solvay's operations at the Site and the dangerous chemicals involved in and stored at the Site that serious risks and hazards can arise at the Site.[5] This just goes to emphasise the importance of measures being taken to identify and respond to such risks and hazards in a timely manner, including when the plant is in an idle state during periods of protected industrial action by plant operators.

(g) The undertaking given by the AMWU does not, in my assessment, overcome the threat caused by the protected industrial action planned to be taken between 12:01am and 5:01am tomorrow to the endangerment of life, personal safety or health, or welfare, of the part of the population I have identified. The undertaking only has work to do in the event of "an emergency situation". It does not assist in the necessary task of monitoring the plant and undertaking interventions as required to address alarms and other risks identified at the Site. Further, it is not known how long it might take for any AMWU member to attend the Site to fulfill the role of Plant Emergency Controller in the event of an emergency.

• [18] For the reasons given, I will make an order terminating the protected industrial action which members of the AMWU are planning to take between 12:01am and 5:01am tomorrow. An order will be issued separately to this decision.

Mr J Phillips, of senior counsel, for the Applicant

[1] See, for example, Hearing Book at p 47[26]

[2] See also, Hearing Book at pp 47-53[28]-[32]

Printed by authority of the Commonwealth Government Printer