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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 13953-1
COMMISSIONER BACON
C2006/1521
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
AND
DOWNER ENGINEERING POWER PTY LTD DOWNER ELECTRICAL PTY LTD
s.127(2) - Appln to stop or prevent industrial action
(C2006/1521)
BRISBANE
12.45PM, MONDAY, 09 JANUARY 2006
Reserved for Decision
PN1
MR L FORSYTH: I appear for Hall Payne Lawyers, I seek leave to appear on behalf of the Communications, Electronics, Electrical, Plumbing and Allied Workers Union in this matter.
PN2
MR M COONAN: I appear - with me is MR C BOWNESS and MR D GITTUS. I seek leave to appear for Downer Engineering Power Pty Ltd and Downer Electrical Pty Ltd. We obviously have no objections to leave.
PN3
THE COMMISSIONER: Thank you, Mr Coonan. Leave is granted in both cases, gentlemen. Mr Forsyth.
PN4
MR FORSYTH: Commissioner - - -
PN5
MR COONAN: Sorry, Commissioner, I did have one preliminary point. In making my appearance I should have made it on the basis it's a conditional appearance. We don't accept the Commission has jurisdiction and reserve our rights in relation to that point. If the Commission pleases.
PN6
THE COMMISSIONER: Thank you.
PN7
MR FORSYTH: Commissioner, I suppose I should fully address the jurisdictional issues related to the application firstly. It's obviously trite to note that unless the conditions contained in section 127(1) and (2) are satisfied the Commission lacks jurisdiction to hear the application. The applicant submits that the respondent is engaging and is threatening to engage in in the future industrial action within the meaning given to that term in section 4 of the Act.
PN8
The applicant submits that the respondent has adopted a practice of refusing to provide sufficient personal gas monitors to allow workers to work safely which has resulted in delays in the performance of work and that the respondent has imposed bans, limitations and restrictions on the performance of work or on offering for work by employees of the respondent in accordance with the terms and conditions prescribed by the certified agreement and that the company has locked the employees out and/or has stood the employees down and breached the certified agreement effective from 7 January 2006.
PN9
Now, it's submitted that industrial action is continuing to happen where we understand that there are currently two workers who may be locked in relation to a continuing issue in relation to the gas monitors. In any event, this issue is a continuing one and the respondent has shown an intention that when this dispute over the provision of gas monitors in circumstances where employee risk assessment result in the employee being of the view that gas monitors are required for safety reasons and the employer disagrees even following the process that's been agreed or that the process has been implemented, the employer will stand or lock out those employees from the site.
PN10
The industrial is regulated by the Lytton Refinery Mechanical Upgrade and Mechanical and Substation Common Enterprise Certified Agreement and the applicant - - -
PN11
THE COMMISSIONER: Is it?
PN12
MR FORSYTH: Sorry, Commissioner?
PN13
THE COMMISSIONER: Is it?
PN14
MR FORSYTH: That's my instructions, Commissioner.
PN15
THE COMMISSIONER: It's just that I have Commissioner Hoffman's certificate in relation to this matter and the certificate doesn't identify the CEPU.
PN16
MR FORSYTH: As a signatory to the agreement?
PN17
THE COMMISSIONER: As a signatory to the agreement and in fact given the agreement is made under section 170LL, I've also read the transcript from the certification of the agreement and even though a CEPU representative, Ms Inglis, was present at the proceedings on the day there was an agreement, this agreement as well as another. The CEPU entered an appearance in relation to the other agreement but not in relation to this agreement and I'm just wondering what evidence was before the Commissioner that he could be satisfied that in relation to the CEPU the requirements of section 170LL were in existence?
PN18
MR FORSYTH: Well, my instructions, Commissioner, on that point are that following the initial certification of the agreement the CEPU did take steps to have themselves become a party to that agreement.
PN19
THE COMMISSIONER: How did they do that?
PN20
MR FORSYTH: Sorry?
PN21
THE COMMISSIONER: How did that they do that?
PN22
MR FORSYTH: Actually I've got my instructor outside, Commissioner, if I could just have a quick word to him, but that's my instructions, that they did at a later date become a signatory to the agreement. In any event, Commissioner, our argument would be that the applicant has members who are directly affected by the industrial action of the respondent and that enlivens the jurisdiction of the Commission.
PN23
THE COMMISSIONER: Not on its own it doesn't.
PN24
MR FORSYTH: The work is regulated by a certified agreement and - - -
PN25
THE COMMISSIONER: Well, that's the point, is it?
PN26
MR FORSYTH: My instructions are that it is, Commissioner. If you can allow me an opportunity to - - -
PN27
THE COMMISSIONER: I think we might need to establish that.
PN28
MR FORSYTH: Should we have a brief adjournment for five minutes while I get some instructions?
PN29
THE COMMISSIONER: Well, I guess what I would like to do before getting too excited about all of this is ask whether Mr Coonan contests whether or not the CEPU is bound to this agreement.
PN30
MR COONAN: If the Commission pleases, I will just confirm instructions. If the Commission pleases, no, we don't contest it. We are happy that the CEPU - I mean I was present that day with Commissioner Hoffman, didn't appear but I was in the balcony so to speak.
PN31
THE COMMISSIONER: Just lurking.
PN32
MR COONAN: Lurking with intent and it's certainly our understanding that in the discussions Ms Inglis had with Mr Power that they did intend or did agree to become a party and then it took to provide the Commission a signed copy. In addition to that we say that even if they didn't eventually become a party themselves certainly the employees are bound because of specific submissions made by Mr Power irrespective of whether the CEPU was a party the work covered by the agreement did cover electrical work. So we don't contest that the work is covered - - -
PN33
THE COMMISSIONER: But that can't be so for a section 170LL agreement. It's a greenfields site, you can only agree with the union.
PN34
MR COONAN: Commissioner, you can agree with a union who has the right to enrol a person and that was part of the submissions, was that both the AWU and the AMWU made submissions that they were entitled to and could enrol and did have and would have had members in electrical work and that was the subsequent submission made in the matter. I was lurking with intent in the hearing before the Commissioner Hoffman later that morning on the Downer Gove Agreement. So that was the specific submission, Commissioner, and as I said, we don't contest that the work done by the employees is covered by the agreement.
PN35
THE COMMISSIONER: All right, thank you.
PN36
MR COONAN: May it please the Commission.
PN37
THE COMMISSIONER: Well, you can take it, Mr Forsyth, that what has been said by yourself and Mr Coonan convinces me that the requirements of section 127(1)(c) are in existence. That is, that if industrial action is pending, probable or being threatened or happening that it is in work that the industrial action if is in existence is in relation to work that is regulated by an award or a certified agreement, so we need not pursue that matter any further, even though I'm not making any ruling as to whether the CEPU as an organisation is bound by this agreement. I will leave that to somebody else.
PN38
MR FORSYTH: Commissioner, if I may be permitted to call Mr Craig John Shaw?
THE COMMISSIONER: Certainly.
<CRAIG JOHN SHAW, SWORN [12.57PM]
<EXAMINATION-IN-CHIEF BY MR FORSYTH
PN40
MR FORSYTH: Mr Shaw, could you state your full name, please?---Craig John Shaw.
PN41
And your current residential address?---(Address supplied).
PN42
And your present occupation?---Electrician.
PN43
Have you prepared an affidavit for the purpose of this application today?---Yes, I have.
PN44
Is that the affidavit that you prepared for the application today?---That's correct.
PN45
Do you have any amendments or corrections that you wish to make to the affidavit?---No, I don't.
PN46
Commissioner, we'd seek leave to have that affidavit entered in as evidence, or seek leave to file the affidavit.
PN47
MR COONAN: If the Commission please, before it is admitted, we only received the affidavit at 12.30. I don't anticipate objection to its admission but I want leave that as a possibility. I only had a chance to get to about paragraph 12 before the Commission convened so could I ask the Commission for a brief adjournment to finish reading, going through the affidavit and take instructions on it and if necessary I will make any objection to its admission at this stage? But as I said, I anticipate it but I just want to reserve that point. Secondly, Commissioner, just so again there's no misunderstanding, I took your comments to Mr Forsyth in relation to the jurisdictional point to be on the assumption that industrial action as covered by the Act was occurring. As I say, we don't consent to the point.
PN48
THE COMMISSIONER: Well, I wouldn't point it at that high. I'm not at this stage assuming. I said if it's in existence.
PN49
MR COONAN: Correct, yes.
PN50
THE COMMISSIONER: Yes. The application for an adjournment to allow you to read this affidavit will be granted. How much time do you think you might need, Mr Coonan?
**** CRAIG JOHN SHAW XN MR FORSYTH
PN51
MR COONAN: I think 15 minutes, Commissioner.
PN52
THE COMMISSIONER: Very well. We will adjourn for 15 minutes.
<SHORT ADJOURNMENT [12.59PM]
<RESUMED [1.17PM]
PN53
THE COMMISSIONER: No objections to any parts of the affidavit?
PN54
MR COONAN: If the Commission pleases, there are parts that we submit are either opinion evidence or hearsay and rather than object to them I will just raise them with the witness as I go through cross-examination. If the Commission pleases.
THE COMMISSIONER: Very well.
EXHIBIT #CEPU1 AFFIDAVIT CRAIG JOHN SHAW
PN56
THE COMMISSIONER: I just want to clarify that the affidavit says that it has an annexure which it does not.
PN57
MR FORSYTH: Yes, Commissioner, those were originally attached to the affidavit. I'm not sure what's actually happened with them in the - - -
PN58
THE COMMISSIONER: Perhaps I will hand you this document, Mr Forsyth. If you make that that's the annexure and we might get the
witness to identify it?
---Yes.
PN59
MR FORSYTH: There's the Downer Engineering Power Caltex Clean Fills Project Gas Testing which the bottom of it has got the eight points on it and then there also should be the minutes for the safety committee meeting I think might be the second one.
PN60
THE COMMISSIONER: Has the eight points on it? There's the only one attachment, is there not, or have I missed something? No, there's two attachments.
PN61
MR FORSYTH: CS2 is the minutes and CS1 is the gas testing document.
PN62
THE COMMISSIONER: Just let me be clear on this.
**** CRAIG JOHN SHAW XN MR FORSYTH
PN63
MR FORSYTH: Do you want me to write the - - -
PN64
THE COMMISSIONER: Please. Mr Forsyth.
PN65
MR FORSYTH: Commissioner, I just have a couple of further questions for
Mr Shaw just very briefly.
PN66
Mr Shaw, following the incident involving yourself on the 20th what action did the respondent Downer take during the course of their investigation in the incident?---During the course of the investigation myself and the people involved, Downer, Shedden Udhe, and we had an investigation process, go through the causes of what they believe may have gone wrong and what we could do to put some control measures in place. During that period of time the workforce of the electricians asked for greater personal gas monitoring. It was agreed to and we got a certain amount of gas monitors to share amongst the group. With regards to the investigation process it was also outlined that we wouldn't work above fin fan level until such time as a result came out of that investigation.
PN67
And when was that investigation complete?---The investigation was complete on the 5th I believe.
PN68
And what measures that were in place during the investigation continue now?
---Measures in place now that were throughout the - - -
PN69
Well, the measures that were in place from the 20th until the 5th?---Yes.
PN70
Are any of those measures still in place?---Yes. Yes, they have gas monitoring on working on towers and at the moment we have gas monitors if you wish to have one, if you think need be going through your SPSAs.
PN71
What's your understanding of what will occur if your SPSA indicates to you that you would require a gas monitor to do a job?---As it stands now, and we were refused a gas monitor, that we would have to go through a process of consultation between the head operator, the supervisor and if it was not sorted out between them it would go to the safety committee and during that time my understanding is that you will be stood down until that safety committee has gone through and assessed the risks that are involved in the job that you are to undertook.
PN72
And if after that safety committee assessment there is still an issue between yourself and the employer as to provision of the gas
monitor, what occurs then?
---I believe that maybe the job may be put off until such time as you can go onto another job, maybe moved onto other work that's
ongoing at the plant at the moment.
**** CRAIG JOHN SHAW XN MR FORSYTH
PN73
And until that decision is made what occurs?---You're stood down. You're stood down until such time as there is a result to do with the job.
PN74
Practically what does that mean for the employee?---Well, you're not working.
PN75
You're not getting paid?---My understanding is you won't be getting paid if you're stood down.
PN76
Okay. Sorry, Commissioner. I have no further questions, Commissioner.
THE COMMISSIONER: Thank you. Mr Coonan.
<CROSS-EXAMINATION BY MR COONAN [1.24PM]
PN78
MR COONAN: Just two matters on that further evidence, Mr Shaw. First of all you mentioned, I think there's some conflict in your evidence there, you said that if your SPSAs said you wanted a monitor you got one but then you said if you wanted a monitor you had to go through the process if one was refused?---Well, previously if we have done our SPSA, until such time as the last couple of days until this process was brought out, we asked for a monitor and we received a monitor because we had the monitors in our - - -
PN79
When you say previously, what are you talking about previously?---Previously, before 5 January.
PN80
Yes, but how far back before that? Are you talking about the 20th and the 5th?
---Yes.
PN81
So back before that date?---Back before that that didn't seem to be so much of an issue. It was mainly awareness - - -
PN82
Sorry, your SPSA didn't even come into it before the 20th, did they?---I wasn't working down there.
PN83
You weren't working down there?---I was in the DHTU region - BHU region in the north end.
PN84
Sorry, well, I will take it this way, you also mentioned that you said you wouldn't be getting paid but correct me if I'm wrong, but weren’t you paid ordinary time for the time you were stood down?---I wasn't stood down.
**** CRAIG JOHN SHAW XXN MR COONAN
PN85
You weren't stood down?---No.
PN86
And you weren't locked out?---No.
PN87
I have nothing further, Commissioner.
PN88
THE COMMISSIONER: Very well, thank you. Anything in re-examination,
Mr Forsyth?
PN89
MR FORSYTH: No, Commissioner.
THE COMMISSIONER: Very well. Thank you, Mr Shaw.
<THE WITNESS WITHDREW [1.26PM]
PN91
THE COMMISSIONER: Any further evidence, Mr Forsyth?
MR FORSYTH: If I could call Peter Jason Young.
<PETER JASON YOUNG, SWORN [1.27PM]
<EXAMINATION-IN-CHIEF BY MR FORSYTH
PN93
MR FORSYTH: Can you state your full name?---Peter Jason Young.
PN94
And your address?---(Address supplied).
PN95
What's your current occupation?---State Organiser with the CEPU.
PN96
Have you prepared an affidavit for these proceedings?---I have.
PN97
Is that a copy of the affidavit prepared for these proceedings, this application?
---Yes, it is.
PN98
Are there any amendments that you wish to make to that?---No.
I tender that affidavit, Commissioner.
EXHIBIT #CEPU2 AFFIDAVIT OF PETER JASON YOUNG
PN100
MR FORSYTH: Just a couple of quick questions, Mr Young. On 6 January you were on site out at the Lytton refinery, is that correct?---That's correct.
PN101
There was a safety committee meeting on that day?---Yes, that's correct.
PN102
Were you in attendance at that safety committee meeting?---I was in attendance for part of the safety committee.
PN103
If I could just refer you to JY3 of your affidavit and to item 1701 of the annexure, what was your understanding having attended that of the process outlined in 1701?---That work would be completed as per - there would be permits issued if there was no - for work if there was no - if there was any concerns with the permits the workforce had the ability to go to the supervisor through to the head operator, then alternately back to the safety committee for them to review those concerns.
PN104
And what would occur if the dispute over the gas monitors continued?---My understanding is that the safety committee wouldn't deny anyone in this instance the use of a personal gas monitor.
PN105
So whose decision ultimately is it to provide gas monitors?---Ultimately I'd say it's Downer's but I'd state that they would be following the safety committee and the safety committee wouldn't be denying anyone that use.
**** PETER JASON YOUNG XN MR FORSYTH
PN106
And that safety committee was convened in relation to what?---To the issue of the personal gas monitors. There was a dispute over six workers and six permits that had gone up - had been stepped up through the procedures, gone to the head operator and then after the head operator had then put to Downer, had then had to go to the Downer safety committee.
PN107
And following the safety committee meeting what was the view of the employees who had approached the safety committee?---The employees actually thought that they would then get the personal gas monitors. It was only when Mr Gittus came in and said that they wouldn't be getting them, they could take their issues up individually with the safety committee at a later date.
PN108
Did they attempt to take their issues up with the safety committee?---It was requested that they take those issues up then and there but Mr Gittus had declined that, had stated that the safety committee had already met for three hours that day, had gone back on the job and he would not be recalling them that day.
PN109
And what happened to those six employees?---They were told they could sit in the sheds on pay until the end of their eight hour day which was 3 o'clock. They were then told that they wouldn't be called, they wouldn't be asked to work any overtime that afternoon and they weren't to come in on the Saturday for overtime, which was up to 10 hours that day and that they could return on Monday and then hopefully take their issues up with the safety committee.
PN110
Have you been in contact this morning with members on site?---Yes, I have.
PN111
And what have those members advised you in relation to the commencement of work this morning?---That all bar two have commenced work this morning.
PN112
And what happened to those two?---The other two were told that they would be sitting in the sheds, in the smoko hut until - only until the process was followed.
PN113
Are you aware whether they're being paid for this period or not?---I believe they were being paid for, again probably up until the end of their eight hour day.
PN114
And what's the standard work?---The standard out there is 60 hours a week, six 10 hour days.
PN115
I have got no further questions, Commissioner.
**** PETER JASON YOUNG XN MR FORSYTH
PN116
THE COMMISSIONER: Thank you. Mr Coonan.
<CROSS-EXAMINATION BY MR COONAN [1.33PM]
PN117
MR COONAN: Thank you, Commissioner.
PN118
Firstly could I take you to paragraph 9 of your statement, you said there that there is high levels of toxic gas in the area and locations where the workers work. That's not in all locations though, is it?---It is possible.
PN119
Yes, but it's not in all locations?---No, not in all locations.
PN120
In fact it's less likely to be in the DHTU area because it's been cleaned, purged, decommissioned and outaged, correct?---No, I wouldn't agree with that.
PN121
What, it hasn't been decommissioned?---No, I would agree with that part but it's not less likely.
PN122
It's been purged?---I've been instructed that it has been purged.
PN123
And it's out of operation?---Parts of it are out of operation.
PN124
In paragraph 14 you talk about the permits, now, if I'm wrong again, but the permits are issued by a Caltex permit issuer?---Yes.
PN125
So they're Caltex permits, not the company permits, that's right?---Yes.
PN126
Okay. And the Caltex permit issuer is qualified, assessed and graded and must regularly review and have refreshers on their permit
issuing authorities, correct?
---I can't comment on that, I don't know.
PN127
You don't know?---I don't know Caltex' procedures in relation to how often
their - - -
PN128
No, but the permit procedures, you would be familiar with any petroleum enterprises?---Yes.
PN129
It's the standard rules, isn't it?---Yes, they are put through procedures, yes.
PN130
Now, those five permits were issued, paragraph 14 I'm talking about there, the five permits were issued by that Caltex permit issuer,
there's no doubt about that?
---No, there's no doubt.
**** PETER JASON YOUNG XXN MR COONAN
PN131
And that's the way permits have been issued ever since we've gone into live work down there?---I believe so, yes.
PN132
Sorry, let me qualify that, live work and within a greenfields moving into brownfields work?---Yes.
PN133
So for 10/12 months we've been going through that system?---Yes.
PN134
So that's the way we have been customarily performing the work down there from the beginning of 2005?---On permits?
PN135
Yes?---Yes.
PN136
The permit is issued by the Caltex permit operator?---Yes.
PN137
You said in paragraph 16 the procedures in the refinery are that workers that are working in live plant they have personal gas monitors. That's not correct, is it, because you only get the personal gas monitor if in a live area and if the permit issuer issues a permit?---No, that's not true.
PN138
That's not true?---No, because procedures that we'd agreed to in workplace health and safety state that mobile workforce, which my members are, can request them, so they will be given personal gas monitors.
PN139
So that's if they have a permit issued to them?---No.
PN140
So even without a permit?---Yes.
PN141
Excuse me. Now, you said in paragraph 18 a random check for gas levels are conducted at 10 points at intervals between one and three hours?---Yes.
PN142
That's just one method of checking, isn't it? There is another one which - sorry, that's just one method of checking, that's correct?---Yes.
PN143
There is another one where there's an every half hour check by Environics?---No, I disagree.
PN144
You disagree?---Yes.
**** PETER JASON YOUNG XXN MR COONAN
PN145
So I will put it to you our evidence or Mr Gittus' evidence will be that it's a half hour check done on the DHTU unit?---You can.
I have been instructed by
Mr Craig Bowness.
PN146
All right. So you don't know yourself, you have got no personal knowledge then?---Only from instructions from Caltex' safety officer that it goes on every hour.
PN147
All right. But you have no personal knowledge of what those testing is?---I haven't seen them.
PN148
Paragraph 20 - sorry, I will skip that. Paragraph 33, you were present during the meeting with the Division of Workplace Health and Safety?---Yes, I was.
PN149
And they were satisfied with the Caltex permit system?---No, they did have some concerns about it.
PN150
What were those concerns?---They had some concerns how operators could issue two different types of permit for the same work.
PN151
That was clarified by Caltex though, was it not?---They still - there was still some concerns with them.
PN152
But on the issue of gas metres - sorry, gas detectors, the Division of Workplace Health and Safety had no problem with Caltex' procedures?---No, they said that it would potentially be unreasonable for every individual person to claim, to request one, but not unreasonable for groups of workers to request one.
PN153
Well, I just firstly clarify that, I put it to you that what the Division of Workplace Health and Safety said was that the Caltex system on the issuing of gas metres was sufficient, there would be no harm or if an employee there would be - sorry, Commissioner. The Division of Workplace Health and Safety said they'd have no problem if you wanted to do something above the permit requirements?---That's correct.
PN154
That's correct. And now Caltex - sorry, the company is requiring employees to work in accordance with the Caltex permits?---Yes.
PN155
And the employees are objecting to that?---No, they've raised extra safety concerns.
**** PETER JASON YOUNG XXN MR COONAN
PN156
And they won't do that work unless they get those safety concerns met?---Yes.
PN157
Okay. So the employees are refusing to do the work unless their safety concerns are met?---Yes.
PN158
Now, the document attached to your affidavit which is the gas testing document, were you present when that was prepared?---Typed up you mean?
PN159
Sorry, let me put it to you this way, Mr Gittus' evidence will be that that was prepared by him in conjunction with the two delegates and then he went away and got that typed up that after they worked through that from his notes of the meeting?---I would disagree slightly in the fact that those were points agreed to at the meeting of the workplace health and safety. It was then taken away and typed up and I wasn't present for when it was typed up and discussed then but I was there at the workplace health and safety meeting when all of those points were agreed to.
PN160
Were agreed, thank you. So you agree with me then that the Commission is issuing gas monitors in accordance with the Caltex permits?---In accordance with the permits, yes.
PN161
And in accordance with what it has been doing since it began this greenfields or brownfields work earlier in the year?---Yes.
PN162
And that is the personal protective equipment that is required for the job?---Could you define required?
PN163
Well, could you define required?---As a minimum?
PN164
Yes, necessary, the bottom line necessary requirement?---By law that's what Caltex are deeming to be absolutely minimum necessary, yes.
PN165
But then in addition to that they are doing additional monitoring, aren't they? The company has got Environics in to do additional monitoring?---Yes.
PN166
Sorry, Commissioner. Paragraph 75, you have said there that:
PN167
Mr Gittus appears to discuss alternative work with me other than to say that the workers might move somewhere else next week.
**** PETER JASON YOUNG XXN MR COONAN
PN168
?---Yes.
PN169
I put it to you that what he said that he let the issue bottom out, have a look at it on Monday, if it was not resolved then they could look at alternatives, one of those being the possibility of alternative work?---On a different site.
PN170
On a different site. Paragraph 78 you mentioned that there's fabrication work. Again I put it to you that to do the fabrication work the employee has to go out onto the site to take measurements?---No, those measurements could be provided by the people on site.
PN171
All right. So you would take them off that and you'd put them in the fabrication shed and then you don't let them go and do - so someone else has to go out and do the work to take the measurements for those employees who don't want to?---Yes. I wouldn't say don't want to but.
PN172
That's all I have, Commissioner.
THE COMMISSIONER: Thank you. Mr Forsyth.
<RE-EXAMINATION BY MR FORSYTH [1.45PM]
PN174
MR FORSYTH: You were asked some questions, Mr Young, in relation to paragraph 9 of your affidavit. I think I recall the question was in relation to the DHTU area being purged. To the best of your knowledge what are the concerns that the workers have there about the toxic gases, are they from the DHTU area or where are they from?---They're not directly from the DHTU. They're from gases being blown in from prevailing winds, from the rest of the live plant is the most predominant point that's been put to me.
PN175
Okay. You were asked some questions in relation to paragraph 14 of your statement about the issuing of permits by Caltex and it was put to you that the Caltex employee had certain qualifications which allowed them to issue those permits or make assessments. Now, those permits, just to I think confirm what your evidence was, those permits, they're just the minimum requirements to work safely there?---That's correct.
PN176
And they're issued in relation to the state of play at the beginning of the day on the job site?---Yes.
**** PETER JASON YOUNG RXN MR FORSYTH
PN177
Can those conditions change during the day?---Definitely.
PN178
And how would that occur?---The wind at the start of the day when the permits are being issued, the wind could be blowing from the west and not blowing any - not putting any of the workforce at risk who are working in the DHTU, but if the wind blows from the north-east it could turn through the day to the north-east, it could put the workers at risk.
PN179
You were asked some questions in relation to paragraph 33 of your statement, specifically in relation to two different types of permits. Could you just explain what those issues were?---There are cold work permits and hot work permits issued now. In the discussion that we had there was three consecutive days where permits were issued and on the first two days were hot work permits and monitors weren't required and then on the last day a cold work permit was issued and monitors were required on that day. Now, the concerns were from the Department of Workplace Health and Safety how operators could come up with two completely different views as to what the work is, whether it's hot or cold work when it's the same work.
PN180
You were asked some questions, Mr Young, in relation to the conversation you had with Mr Gittus on Friday afternoon in relation to the employees who had raised the issues about provisions of personal gas monitors and you were also asked I think some questions in relation to fabrication works and I think you said something along the lines of, well, these employees could do fabrication work with specifications provided by people on site?---Yes.
PN181
Is it the situation that these employees are refusing to do any work on site?---No. No, definitely not.
PN182
Are these employees prepared to do alternative duties on site?---Yes, definitely. Each job is treated differently. There is no blanket ruling that says no, we can't do - if I can't do this job I'm not doing anything. They are saying quite clearly that they are prepared to do other work.
PN183
No further questions, Commissioner.
THE COMMISSIONER: Thank you. Thank you, Mr Young.
<THE WITNESS WITHDREW [1.49PM]
PN185
THE COMMISSIONER: Any further witnesses, Mr Forsyth?
PN186
MR FORSYTH: No, Commissioner.
PN187
THE COMMISSIONER: Very well, thank you. Mr Coonan.
MR COONAN: If the Commission pleases, I would submit that at this stage I can make a submission of no case to answer. The requirements
of the Act have not been met - sorry, I retract that. I might just take some quick evidence from
Mr Gittus. If I could please call Mr Gittus.
<DAVID NOEL GITTUS, SWORN [1.50PM]
<EXAMINATION-IN-CHIEF BY MR COONAN
PN189
MR COONAN: Please state your name for the record, please, Mr Gittus?
---David Noel Gittus.
PN190
And your occupation?---I'm Human Resources Manager for Downer Engineering.
PN191
And how long have you been involved in that position?---On this project for about five months.
PN192
And prior to that?---I was with Downer on the Cross City Tunnel Project in Sydney.
PN193
Now, you're familiar with the site obviously?---Not intimately but I know enough of it, yes.
PN194
There was a suggestion that the permit system, it's a Caltex permit system?---It is.
PN195
And the permit system, is it a static system, so if you issued a permit for the day is that it for the day?---No, not necessarily. It would depend if conditions changed on the plant. For example, if it was some live plant and there was a plant change that permit could be withdrawn or it could be altered and that would be done by the Caltex head operator.
PN196
And what do you mean by altered?---Additional precautions may be added.
PN197
And that is the system that has been in operation at least since you've been there, for five months?---It's been in my time, correct, and prior to my time.
PN198
Could I take you then to 20 December and there was an incident in which some employees had to take medical treatment arising out of a release of gas, do you recall that matter?---Yes, I do.
PN199
Could you just us through that, was a permit issued for that and who it covered and so forth?---Yes, there was a permit issued and that permit included a gas monitor. The employees concerned were working upper tower.
**** DAVID NOEL GITTUS XN MR COONAN
PN200
After that incident happened can you take the Commission through the discussions, I understand there was a Commission hearing, can
you just give us a brief history between 20 December and last Friday, 5 January - 6 January?---Yes, I can. That particular day the
employees received first aid treatment on site and the first aid has sent them to the local medical practitioner as a precaution
and I understand that the local medical practitioner sent those employees to hospital for further observations. Those employees
were released in time to come back for the end of their shift. Subsequent to that the electricians demanded some additional protection
in the form of gas monitors. We came here to the Commission before Commissioner Hoffman. I'm going from memory now, I think it
was about
23 December. The Commissioner suggested that we get some assistance from Workplace Health and Safety. Workplace Health and Safety
were contacted. They came out on site during the break between Christmas and New Year. I wasn't there at the time but I understand
they examined the Caltex permit to work system with Caltex. After the - sorry, during this period of time we agreed to shift some
of our resources in respect to personal gas monitors to the electrical group so that - - -
PN201
What do you mean by shift resources?---There are a limited amount of gas monitors on site. During the Christmas/New Year period we moved some of them from our mechanical workforce to our electrical workforce firstly because the mechanical workforce they weren't there in great numbers and secondly, we said that we would assist where possible whilst the investigation was going by the Workplace Health and Safety people to the Caltex system.
PN202
All right. Can you take us then to that investigation?---Again I wasn't there when they first came on site but I understand or I've been told that they were quite satisfied with the Caltex permit to work system. After the New Year we had a further meeting with - or we had a meeting with the Department of Workplace Health and Safety and the Department of Emergency Services. Also in attendance were Caltex because it was their system, Shedden Udhe who are the main or the principal contractor on site, the Electrical Trades Union and ourselves.
PN203
And you were present at that meeting?---I was.
PN204
And you prepared some notes arising out of that meeting and as you understand it that's the attachment to the statements of both Mr Shaw and Mr Jason - I'm sorry, I've forgotten his - Mr Young?---Yes, that's correct.
**** DAVID NOEL GITTUS XN MR COONAN
PN205
Could you take us through what is that document?---At the meeting with all those various people I just mentioned we talked about a whole bunch of things. Towards the end of the meeting I suggested that we put a document together so that when we came back on site we had a common understanding. I wrote those notes down and paraphrased them back to the people at that meeting and people agreed that they were accurate.
PN206
When you say people, which people are talking about?---Everyone at that meeting.
PN207
Who was?---The Department of Workplace Health and Safety, the Department of Emergency Response, Caltex, the ETU, Shedden Udhe and ourselves.
PN208
And who was there from Downer's?---There was Mr Cogill, the electrical superintendent and myself. At the conclusion of that meeting we came back to site. The two ETU delegates at that meeting, which is Mr Shaw - - -
PN209
Sorry, so the ETU had delegates there at that meeting?---The ETU were represented by Mr Young and two delegates, one being Mr Shaw,
the other was
Mr - - -
PN210
Matheson?---Matheson, yes. Sorry, that's correct, who were standing in as a co-delegate on that particular day. When we came back
to site Mr Shaw,
Mr Matheson and myself went to my office and we put that document together from the notes and we agreed it was an accurate document.
PN211
What happened then on 6 January?---In relation to?
PN212
The refusal by the - sorry, I don't want to lead the witness. I will put it this way, on 6 January there was some further discussion
over this issue of the permits?
---Yes, there was. We briefed our employees. We asked Craig Bowness who was the Caltex safety manager to come to site for two reasons.
Firstly, to brief employees on the findings of the incident that Mr Shaw was involved in on the 20th. That was where the gassing
incident occurred, and secondly, to outline to all of our electrical workforce, the precautions that were in place on the DHTU relating
to gas testing, that being fixed monitors, additional gas testing by Environics, plus the procedures that the Caltex head operators
went through when they issued the permits.
**** DAVID NOEL GITTUS XN MR COONAN
PN213
And permits were issued that day?---Yes, following that meeting permits were issued. Most employees went back to work. There were six employees that declined to go back to work unless they received a personal gas monitor. Those employees were sent to the crib shed by their supervisor and the matter was referred through to myself.
PN214
Please clarify, the permits didn't require gas metres?---That's correct.
PN215
And so they refused to do the work unless they were given a gas metre?---That's correct. So they were after a precaution over and above the permit.
PN216
What happened then?---I became involved and I had some discussions with
Mr Young and we agreed that we would - sorry, I'll go back a step. The supervisor had been to see the Caltex head operator. The
Caltex head operator said he didn't particularly need to speak to our employees, that the permit was issued and those conditions
were all that were required to undertake the task. I had some discussions with Mr Young and following those discussions - - -
PN217
Sorry, who is Mr Young again?---Mr Young is the ETU.
PN218
Sorry?---I agreed that after the smoko break the supervisor, the employees concerned, Mr Young and I would go and meet with the Caltex head operator so that the employees could outline their concerns direct to the head operator, the head operator could respond to those concerns and hopefully we would clear the matters up. That occurred, those discussions went ahead and the head operators were quite clear that the precautions they put on the permit were more than satisfactory for the works that were to be undertaken. Following that particular meeting we went back to the Downer site. I asked the employees where they were at and they said they still wanted the monitors. I said, well, the next step in our procedure is to take through to the safety committee, would they like me to instigate that step and they said they would. So we asked the employees to wait in the crib room and I went ahead and arranged the meeting of the safety committee through our safety manager.
PN219
And what happened out of that meeting?---That occurred just before lunch and
Mr Young - sorry, that occurred just before lunch and then they broke for lunch, after lunch they reconvened and Mr Young and I attended
for part of the time that they reconvened. Out of the safety committee they had to consider what they were doing to do, how they
were going to judge the individual requests. They came up with a set of rules which were attached to the previous affidavits.
**** DAVID NOEL GITTUS XN MR COONAN
PN220
So that's the minutes of the steps 1 to 5, is it?---That's correct. That's correct.
PN221
Okay. And that was to the - has that process been used yet to your knowledge?
---It hasn't been used yet. This all occurred after lunch on Monday and the safety committee - - -
PN222
Sorry, you said on Monday?---Sorry, on Friday, Friday the 6th. The safety committee disbanded and went back to work. I went and addressed the six gentlemen concerned and Mr Young was present and I said look, we're not going to get a finalisation of this matter today, we will pay the people, pay everyone the eight hours, but they are to leave the site at 3 o'clock and come back on Monday morning where we will get to the bottom of it and resolve the matters.
PN223
And are you aware of what's happened today at the site?---When I arrived at site this morning I spoke with Mr Cogill and he advised me that two of the six are not working, the others are working.
PN224
That's all I have at this stage, if the Commission pleases.
THE COMMISSIONER: Thank you. Mr Forsyth.
<CROSS-EXAMINATION BY MR FORSYTH [2.03PM]
PN226
MR FORSYTH: Mr Gittus, you said you're the HR manager for Downer at that site, that's correct?---That's correct.
PN227
Were you previously employed in a trade position with Downer or have you always been human resource?---No, not always but no, I don't have a trade qualification.
PN228
If the safety committee recommends that for a particular job employees be provided with gas monitors, would Downer gas monitors, if that was the safety committee's recommendation?---More than likely it would, yes.
PN229
But there's no guarantee?---It would depend on the circumstances but more than likely we would.
PN230
More than likely?---Yes.
PN231
If the safety committee didn't object to the provision of gas monitors to employees but didn't make any particular recommendation to that effect, what would Downer's view on that be?---In relation to issuing monitors?
**** DAVID NOEL GITTUS XXN MR FORSYTH
PN232
Yes, in relation to issuing them?---We wouldn't issue them if it wasn't a requirement of the Caltex permit to work system.
PN233
And you're familiar with the DHTU area site?---In general terms I am.
PN234
Okay. You're familiar with an area called Motor Alley?---I'm aware of where it s, yes.
PN235
And that's right next to the hydrochloric acid area of the plant, is that correct?---I believe so.
PN236
I suggest to you there's a potential for toxic gases to come from the hydrochloric acid area?---I'm not a safety professional so I can't answer that from that perspective. What I can say is that, you know, Caltex, they are the experts on running their site. They're the experts in what precautions need to be taken.
PN237
And the precautions that they think are to be taken are representative of the permits they provide?---That's correct.
PN238
And those permits are what Caltex believes are the minimum requirements to work safely on the job site?---The requirements, yes.
PN239
They're minimum requirements I suggest?---Correct.
PN240
That's correct. Now, following the incident on the 20th there were a number of measures that were put in place while the investigation
took place, that's correct?
---Correct.
PN241
And one of those measures that was put in place was that any work above the fin fan level personal gas monitors had to be provided
to employees, that's correct?
---Initially, no. Initially we weren't doing any work above fin fan level whilst the investigation was completed by Caltex.
PN242
Maybe you can explain to me what the fin fan level means, I'm like yourself, I'm not au fait with a lot of the technicalities here?---Okay. Well look, in very lay terms as I'm not a technical person, but in lay terms you've got a whole bunch of towers and columns in an oil refinery. At a particular level you have what they call fin fans which can be used for cooling and the like and they do tend to suck air and the thinking was that if people are working above the fin fan level, if there was a release on the ground the gas could be sucked through the fin fans and it could be dispersed over the people working above.
**** DAVID NOEL GITTUS XXN MR FORSYTH
PN243
Now, are you familiar with the area of the DHTU called Lubrosity?---No, I'm not familiar with it.
PN244
Area 24?---I'm not familiar with that either.
PN245
Those areas which are - well, Motor Alley, you're familiar with that area?---I am.
PN246
It's next to the hydrochloric acid area. If Caltex issues a permit for work in the Motor Alley which says that gas monitors are not required, or doesn't make reference to gas monitors is probably a better way of saying it, can Downer guarantee that there's no potential risk of exposure to toxic gases there?---At any refinery there is an element of risk. You know, we're not talking about a lolly shop, there are elements of risk at any refinery. The way of controlling of those risks, especially when work is to be done, is through the Caltex permit to work system. Now, I'm not an expert on each of the risks associated with each of the plants but what I can tell you is that Caltex, the people that issue the permits are experienced people, they're aware of the types of product and the types of hazards that are going through each plant and they make that assessment.
PN247
But Caltex, they issued the permits at the beginning of the day but Downer is not in any position, if its workers through its SPSA
process raise concerns about it were guaranteeing that those concerns are not legitimate. That is correct isn't it?
---The Caltex people do issue the permits at the beginning of the day and there are checks throughout the day and if people have
specific - specific issues they can ask for the Caltex operator to come back and recheck - - -
PN248
And that is if the Caltex operator is in the vicinity; or unless they go off site to go talk to their supervisor?---That is correct.
PN249
On Friday you were saying that following the safety committee meeting you directed the workers to complete work at 3 o'clock?---That is correct.
PN250
And not to return till Monday?---That is correct.
PN251
If it was not for the issue that had arisen in relation to the gas monitors, they would have done probably a further two hours overtime that day?---More than likely.
PN252
Ten hours on the Saturday, probably?---It could have been anything up to ten, yes.
**** DAVID NOEL GITTUS XXN MR FORSYTH
PN253
If I could just go back to the 20th, following the 20th one of the other measures that Downer implemented was the provision of approximately 14 gas monitors which were kept in the crib shed, is that correct?---There were 14 made available, I believe it was 14 - - -
PN254
But they were kept in the crib shed, is that correct?---I do not know if they were kept in the crib shed or not, but they were made available.
PN255
Made available. So employees used those 14 monitors depending on, might I suggest to you, their own SPSA assessments during that period, or if the permit provided?---If the permit provided they are always provided with a monitor. My knowledge is that they were available for use whilst we undertook the investigation into the gassing incident.
PN256
How many - I am not sure whether you have said this before - but how many electricians are there working in the DHTU area?---Look we - I am not - I am not sure exactly it varies, we have about 50 on site.
PN257
50 and there were 14 monitors?---That is correct.
PN258
Those monitors from what you were saying appear to have been distributed on the basis of SPSA assessments by the workers, aside from the ones required by permit?---They were requested by the workers, yes.
PN259
I would suggest to you as a result of SPSA assessment?---Yes. Well I do not know, but they were issued to the workers.
PN260
Following the act, the investigation on 5 January, those 14 gas monitors were removed and they were only provided per permit?---That is correct.
PN261
The six workers on the Friday still felt that it was unsafe to perform the jobs and therefore you made the decision - is it ultimately you who makes the decision about the provision of gas monitors going through the process that was worked out?---No, the ultimate person would be the project manager.
PN262
Who is that?---Mr Graeme Gilshenan.
PN263
Is that a Downer employee?---He is.
**** DAVID NOEL GITTUS XXN MR FORSYTH
PN264
He would do that on the basis of your recommendations?---On the recommendations of - - -
PN265
A group, including yourself?---Of the people concerned.
PN266
Now those workers raised that they thought they required gas monitors to perform their duty on Friday and Downer's was the position that that was not required, it was not in the permit the head contractor did not think it was required. The safety committee made no recommendation in relation to it, did not oppose it. They still had a problem with working the job without gas monitors?---Yes the - the men did refuse - did refuse to work based on they wanted a gas monitor. We then took them to speak with the head operator.
PN267
Yes, I think we are familiar with that one, but I mean ultimately it ended up with the concern still being an issue as to the provision of gas monitors and the direction being made that they were to complete work at 3 o'clock and return on Monday, that is correct?---Having gone through the process the men still wanted a gas monitor, that is correct.
PN268
Say today a number of employees wished to have a gas monitor for their job, the gas monitor in their group, went through the process again, while that process is going on what occurred on Friday would occur. They would be asked to return to the crib shed?---Correct.
PN269
If the safety committee made a recommendation for a gas monitor Downer would provide the gas monitor?---Again, more than likely.
PN270
More than likely. If the safety committee made no recommendation Downer would not provide a gas monitor?---The safety committee would probably say that there is no safety grounds for a gas monitor to be given.
PN271
Or they would not prevent, oppose or - - -?---That is right.
PN272
If that occurred then Downer's position would be that those employees were to finish work at 3 o'clock?---If that - if that was to be the case, if the safety committee - after going through the process, if the safety committee said there is no requirement for a gas monitor - - -
PN273
You would issue the same direction again?---We would then consider what we would do with those employees, yes.
**** DAVID NOEL GITTUS XXN MR FORSYTH
PN274
Did you offer them alternative work on Friday?---No.
PN275
Did you investigate alternative work on Friday?---We had a look at what other work was available - - -
PN276
When did that occur?---It occurred during the course of the day.
PN277
So it occurred while this process was going on?---We looked at what options there were for people to - what other options were available for people.
PN278
So while the safety committee was meeting to review the worker's concerns, Downer was already in a position where they were investigating what they were to do with the workers at the end of the day?---Correct.
PN279
Just excuse me Mr Gittus. My apologies Commissioner. I have nothing further Commissioner.
THE COMMISSIONER: Mr Coonan?
<RE-EXAMINATION BY MR COONAN [2.15PM]
PN281
MR COONAN: Thank you Commissioner. Just one minor point Mr Gittus, in that safety committee minutes, item number five, the reference there it says:
PN282
The safety committee while not accepting any further control is justified on safety grounds will not support, prevent or oppose those controllers.
PN283
Can you outline for the Commission what you understand that last bit to mean, will not support, prevent or oppose those controllers?---Yes,
the safety
committee - - -
PN284
Do you have a copy of that?---It is okay. The safety committee is a joint management employee safety committee. The test I understand, having spoken to the safety manager, is that where an employee believes - he believes the permit is inadequate or that they require additional precautions, they will test that for safety, that is the safety committee's role. That they would not - obviously if we want to give additional precautions the safety committee are not going to oppose it, that they will just test it for - test the validity of the permit system, they will test the validity of whether it is fair and reasonable what the people are asking.
**** DAVID NOEL GITTUS RXN MR COONAN
PN285
It has been put that that clause means that the safety committee would support an employee who demanded a gas monitor and that the
permit did not require it?
---That is not my understanding.
PN286
That is all I have if the Commission pleases.
PN287
THE COMMISSIONER: I just have one question for you Mr Gittus. This matter has been dealt with has it, in accordance with the safety procedures in the project rules?---I believe it has Commissioner, I have not got the project rules here. The project rules, from my recollection are very general in how matters are to progress. It talks about different precautions, different safety systems that Caltex have on the site.
PN288
The project rules are a document owned by Caltex is that right?---That is correct.
PN289
MR COONAN: I have nothing further if the Commission pleases.
THE COMMISSIONER: Very well, thank you.
PN291
MR FORSYTH: Well Commission, I suppose I can briefly speak if the Commission requires. I have a very brief outline. Very briefly Commissioner, we submit that the Commission should exercise its discretion to stop or prevent future industrial action which we say is occurring or is probable, threatened, impending or probable at the site for the following reasons.
PN292
Our submissions are that the respondent - the current practice the respondent has in place in determining whether personal gas monitors are required for work under permit is insufficient and as a consequence of that that process or practice, it is resulting in delays in the performance of work. Further, what occurred on Friday was that workers were effectively locked out as a consequence of their desire to work in a safe work environment. That, we would submit, will occur in the future because this dispute will continue to occur into the future. This issue will continue to be raised at the site into the future. Obviously such action, if the Commission classifies it as industrial action, if not protected action, would be unlawful as a consequence of the fact that there is a certified agreement that has not passed its nominal expiry date.
PN293
Further another matter which we say the Commission should take into its consideration is that on Friday, and there was nothing which was said by Mr Gittus today which indicates that this circumstance will change, the respondent in our submissions, has not adequately considered the alternative work available for employees who disagree with the respondent as to the provision of personal gas monitors. The certified agreement has a stand down provision which provides relevantly that the employee - the right to stand down an employee is subject to the employer ensuring that all options for usual work have explored ….. is implemented.
PN294
We would submit that on Friday that did not occur and that on the evidence of Mr Young and also the evidence given by Mr Gittus, that is unlikely to occur in the future. Mr Gittus did say that on the Friday while the safety committee meeting was going, they were exploring other options for work for employees who had concerns about working without gas monitors. Mr Young's evidence is that this fabrication work which can occur, that does not appear to have been considered and has not really been particularised exactly where employees would be moved to and what other work those employees would be doing.
PN295
It is sufficient to say that the employees are ready, willing and able to perform work on site, provided they work in a safe work environment and their work groups are provided with personal gas monitors. What the applicant's members are seeking is reasonably simple and a request which the respondent can reasonably be expected to meet, and that is gas monitors within a reasonable proximity of workers at all times. I mean there are gas monitors on site, there will be a few areas where gas monitors will not be within a work group area and gas monitors can be provided in those circumstances. We are not after one gas monitor per employee.
PN296
Those issues are going to continue, there are going to be issues - some of the areas of the DHTU area where employees are not going to feel safe working without the provision of those gas monitors and would reasonably hold the view that working without gas monitors is not safe. The Caltex permits are just a minimum, they are the minimum requirements that Caltex has decided are required for working on the site.
PN297
There is obviously an onus on employees under workplace health and safety legislation, to ensure their own workplace health and safety, employees are doing that through their SPSA assessments and those SPSA assessments, on occasion not all the time but on occasion, are indicating to those employees that personal gas monitors are required. They raised those issues with the employer and the employer puts them through a process which there is no real decision made at the end of the day in this process. The safety committee can say, "Well we do not oppose that", and the safety committee in the minutes of that safety committee meeting, they do not say they are going to knock it on the head, they say they are just not going to oppose or prevent.
PN298
Caltex have said, if you want to have more personal protection requirements on top of what is contained in the permit, we are fine with that. And effectively at the end of the day it is Downer, the respondent, who is saying, no, and knocking that on the head. We would submit that an issue which as you take into your discretion is that it is in the public interest for the workers to work in a safe environment. Workers should not be penalised or punished because they want to work in a safe work environment. The workers are not being unreasonable in these circumstances, they are only raising it, I think Mr Gittus said there are 50 electricians employed by Downer on site, six of them raised issues in relation to the provision of personal gas monitors. Those six would not have had any issue if the measures that were put in place between 20 December and 5 January were still in place. If those measures were still in place we would not be here.
PN299
But, as a consequence of Downer removing those interim measures that were put in place during that period and maintain their position that personal gas monitors are not required unless specified in the Caltex permit, this issue will continue to arise, workers will continue to be denied gas monitors and workers will continue to be stood down and locked out from the work site as a consequence of the respondent's decisions. We would submit that there is probable industrial action which is going to occur as a consequence of this process and we submit that that should be sufficient for the - that the Commission should exercise its discretion and to stop the pending or probable industrial action of the respondent.
PN300
THE COMMISSIONER: Thank you. Mr Coonan?
PN301
MR COONAN: Thank you Commissioner. Commissioner, primarily we state that to succeed in an application for an order under section 127 the applicant must satisfy the Commission of a number of matters. First of all that in fact employers are amenable to section 127 orders. I refer you to the decision of Mr Justice Dowsett in CFMEU v Moranbah North I think it is, where His Honour stated that in his view it would take a severe strangling of the language to submit or to suggest that an employer could be subject or could engage in industrial action.
PN302
However I submit they have not really taken that submission any further because even if we were amenable as an employer then there
is just no indication or no - there was no industrial action occurring. The applicant relies on two sections, first is one definition
of industrial action under part (a) the second under part (b). As you heard from the witnesses in respect to Mr Shaw, he said that
he has not been stood down nor has he been locked out. Mr Young, his own evidence was that what is occurring here is not industrial
action by the employer but industrial action by the employee. The employer has gone back and put in place its procedure that it
has had in place, with some modifications, for at least the five months that
Mr Gittus was there. On Mr Shaw's own evidence and Mr Young's own evidence, from the time that the company moved into the Brownfield's
work.
PN303
So that is the way and I think the question was purposely put to Mr Young, but as I understood the employer customarily did its work, if I could use that expression. So for a start the evidence from Mr Young clearly was that it was the employees who were engaging in industrial action. The exact words used of the ….. the question carefully put to Mr Young was:
PN304
So this is effectively a ban or a limitation by the employees?
PN305
To which he replied yes. I refer you to the decision of Senior Deputy President Kaufman in CPSU v Telstra Corporation Limited. In that matter the Commission - yes I have a copy for the Commission - I was not going to do it in detail but I just refer you to some particular aspects of the decision. There the Senior Deputy President dealt with the matters leaving aside the threshold issue about whether an employer was amenable to section 127 orders. At paragraph 30 the Senior Deputy President makes it clear that at least the second part of paragraph B:
PN306
The employer can never be amendable to section 127 orders because only employees could accept our offer for work.
PN307
Our submission is this when you look at the definition of industrial action subsection (b):
PN308
The ban or limitation or restriction in place here is a ban or limitation or restriction of workflow to the employees.
PN309
That is the clear evidence of the union's own witnesses. Further, that section (b) also then deals with work in accordance with the terms of a certified agreement. If you look at clause 28 of the certified agreement in the second last paragraph clause 28 is headed up:
PN310
Personal particular equipment; the employer shall issue on a loan basis all safety equipment and protective clothing including fire retardant clothing necessary for specific work tasks. Requisite safety equipment shall be worn.
PN311
We say that contrary to what the union suggests the employer in this matter, even if it is amenable to 127 orders, has offered for work in accordance with the provisions of the certified agreement. Mr Young's reply to me in evidence was that he agreed that the company was issuing the necessary PPE - and I emphasise the word necessary, you will recall I took him specifically to that point and he agreed that it was issuing the necessary safety equipment. So on that basis alone and on the basis of the decision of Mr Deputy President Kaufman, the company is not amenable to any orders under clause (b) of the definition of industrial action, it is just not engaged in industrial as defined in that section even if as I said an employer could be engaged in any industrial action.
PN312
That then brings us to the only other section relevant by the union, is section (a) of the definition. Again it talks about performance of work in a manner effective for that which is customarily performed or the adoption of a practice the result of which is a limitation, restriction or delay in the performance of the work. As I say again, the evidence clearly is that the only restrictions in place are restrictions by the union. The evidence again, and I emphasise clearly from Mr Young, was that it was the employees who have put limitations and restrictions on in relation to the employer carrying out the procedures that it has done for some at least five months Mr Gittus was there.
PN313
THE COMMISSIONER: Mr Coonan what about the situation where overtime was denied to employees who ordinarily, it seems on the evidence, would have been offered that overtime or at least expected to work that overtime, and the only reason that that overtime was denied to those employees was because the issue arose about these personal gas detectors and that matter was still going through a process of being resolved by the employer. As is apparently is its obligation under the certified agreement?
PN314
MR COONAN: Well Commissioner, my response is this, the employees were on industrial action. It would be improper in fact probably illegal for the employer to pay them.
PN315
THE COMMISSIONER: Are the employees engaged in industrial action if they genuinely believe that certain safety equipment is necessary and there is an agreed process in a certified agreement which says in the event of such a dispute it will be resolved in a certain way. Obviously that is not an instantaneous, it must be inherent in the parties when they agreed those words that that would take time. And the employer until that process is completed is not sure whether - well it can hardly send the people in to do work over which there is a process for resolving, and the process is not complete.
PN316
MR COONAN: Well with respect, Commissioner, I have lost the question.
PN317
THE COMMISSIONER: Okay the question is this, there is a process, it is agreed it is in the certified agreement, and that it must be - I am going to imply, unless you can convince me otherwise, that the parties in agreeing that process knew that it would take time to resolve and that it is about safety and that if there is a dispute about safety where an employee does believe that doing the work in a certain way exposes him or her to an unacceptable level of risk, then the employer surely until that matter is resolved or goes through the process, cannot direct that person to do that work.
PN318
MR COONAN: With respect, Commissioner, the employer can. The employee's only response is to argue that he is not taking industrial action because it is a matter under the exclusion which is subsection (g):
PN319
A reasonable concern about the imminent risk the employees held.
PN320
And there is no - - -
PN321
THE COMMISSIONER: Well it cannot be, because if the process is agreed - here is a dispute about a safety matter. There is an agreed process to deal with that and it will take time, that process. Then if an employee refuses to do the work whilst that process is completed until you do know whether or not they can be forced to do the task, then hasn't the employer agreed that work will not be done until the process is complete?
PN322
MR COONAN: Well Commissioner, that submission suggests that the employee comes in sits in the shed for ten hours on a Saturday at time and a half the first two hours and double time thereafter. Then comes back on Monday to have the safety committee review the matter.
PN323
THE COMMISSIONER: Well I am not the one who is scheduling the safety committee's meetings. I am more interested in your argument that an employee who holds a genuine concern about safety complies with their obligation in a certified agreement, is by your definition engaging in industrial action.
PN324
MR COONAN: Well if the Commission pleases, first of all on an evidentiary point, there is no evidence that the employees have complied with the provisions of the requirements of the certified agreement, no evidence at all.
PN325
THE COMMISSIONER: Well what are the requirements of the certified agreement?
PN326
MR COONAN: Well Commissioner it is not my application.
PN327
THE COMMISSIONER: No, but it is your submission.
PN328
MR COONAN: There is no evidence before you that the employees have complied with the provisions, even if I respectfully suggest it is relevant to the argument.
PN329
THE COMMISSIONER: But didn't they raise the issue? I am just asking that is all.
PN330
MR COONAN: Sorry?
PN331
THE COMMISSIONER: Didn't they raise the issue?
PN332
All disputes or grievances in relation to health and safety issues shall be resolved by using the safety procedure in the project rules.
PN333
So if someone comes along and says, I have got a safety issue, I want it dealt with in accordance with the project rules and my safety issue is that I cannot do that task because I believe I am being exposed to an unacceptable level of risk while I am doing that, unless I have got a personal gas monitor. You are saying that following that procedure that has been agreed the people are engaged in industrial action.
PN334
MR COONAN: Well if the Commission pleases, I again say there is no evidence of any of that.
PN335
THE COMMISSIONER: I accept that, forget the evidence. Factually you might be right about that, I do not want to debate the facts I want to debate the process.
PN336
MR COONAN: Well if the Commission pleases, with respect, it is the hypothetical and there is no evidence to support it. I submit it makes no relevance to whether they - - -
PN337
THE COMMISSIONER: But there is evidence to support it. I asked Mr Gittus, "Was this matter dealt with in accordance with" and I used the specific words, "The safety procedures in the project rules", and he said he thought it was.
PN338
MR COONAN: Yes, Commissioner, he thought it was and then however that is as far as it goes. There is no suggestion of what has happened since then has been the employees have acted in accordance with the project safety rules, no evidence at all. So up to Friday that might be the case, but there is no evidence of what has happened since Friday the employees have complied with the safety rules.
PN339
THE COMMISSIONER: That was my point about Friday though, you - anyway. See people agree these processes and when they are actually put in place, when all this happens, the processes are not all that clear. I just do not know how a person who follows a process agreed in a certified agreement, if that is what happened here, can be said to be engaging in industrial action, whether it be the employer or the employee.
PN340
MR COONAN: Well if the Commission pleases, you are engaged in industrial action if you have - if you follow the definition, and we say not just that we say, Mr Young's evidence himself was that the employees were - - -
PN341
THE COMMISSIONER: No but the definition excludes where there is an agreement by the employer to that action. And that is my point, if there is an agreement to that in a certified agreement, an agreement to that then your suggestion that employees are engaged in industrial action does not hold much water.
PN342
MR COONAN: Well if the Commission pleases, I respectfully disagree with your submission, but it still does not get us to the first base in the union's application.
PN343
THE COMMISSIONER: Yes.
PN344
MR COONAN: That industrial action is taken by the employer. There is no evidence of any industrial action by the employer. So if I can say Commissioner, even if I make this as an alternate submission, even if that is the case this would not - this is not the proper case for an exercise of the Commission's discretion to grant an order.
PN345
The application was made clearly on the basis of industrial action by the employees and not industrial action by the employer. We submit if the Commissioner is going to issue orders however we would make this point, first of all the order as requested is extremely wide, the order proposed is in relation to any industrial action in relation to employees of the company. It is not limited in any way to the matter in dispute, there is no other evidence of any other dispute, to that extent clause 3 is inappropriate in its present form.
PN346
Also, the period of operation of three months is also inappropriate. As I say, we make that submission on the basis without any resiling at all from the fact that there is just - the union has not as an evidentiary or as a legal point, crossed a threshold to prove that the employer has engaged in industrial action. I would finally refer you to some decisions a line of authority that were picked up by yourself in the decision on Flight West Airlines where the Commission held that if an employer introduces a practice and the employees object to that practice and that causes a delay in the work, then that is not an industrial act, that does not afford the definition of industrial action.
PN347
As the Commission quite rightly stated in that Flight West decision, that is a commercial decision taken by the employer and does not really give a definition of industrial action. That decision was followed in two other cases, The Age case, which is The Age Company v AMWU PR946290 and AWU v Nonferral Pty Ltd PR948977. We submit the Commission should not issue the orders and in fact the jurisdiction for those orders has not arisen. May it please the Commission.
PN348
THE COMMISSIONER: Mr Forsyth?
PN349
MR FORSYTH: Just very briefly Commissioner, what occurred to the six workers on Friday was at the direction of the employer. The employer directed them to the crib shed and directed them to leave the site at three and not return till Monday. The employees were ready, willing and able to perform their work on the provision of a gas monitor. The employees ask that the matter be referred individually pursuant to the agreed process to the safety committee that afternoon, and that was declined.
PN350
In relation to the submissions made on the breadth of the order, the period of three months contained within the draft order is in relation to the length of the project remaining and it has been put in there for that purpose because it is the union's concern that the industrial action will continue into the future and that is why the period of time there is set down as three months, that is the length of time left on the project. I have nothing else to - - -
PN351
THE COMMISSIONER: Mr Forsyth, you might be able to help me. What action do you want the employer to stop?
PN352
MR FORSYTH: We say the industrial action - there are two types of industrial action being engaged in here, one is the practice of refusing to provide the sufficient gas monitors which delays the work. Now we say that is industrial action and we think the respondent should be ceasing that form of industrial action and providing sufficient gas monitors for the workers to be able to complete the work.
PN353
Secondly, the other aspect of industrial action we say exists and is probable in the future is the ban, limitation or restriction on the performance of work by the employer locking out the employees. The example of which is on Friday, they did not get the two hours overtime on the Friday or the overtime on the Saturday. That is a punitive action by the employer because the employees have raised legitimate safety concerns. They have raised the safety concerns in relation to the gas monitors, they have asked that the agreed process be instituted and to go through and that has been refused and they have been locked out until the Monday.
PN354
We would be seeking that the respondent be stopped from locking out the employees in a similar way in the future and allowing the processes which are agreed to take their course and for those processes to be completed before the employer takes the action of directing the employees to leave the site or to conclude work.
PN355
That is effectively what we are seeking. When we raised these issues about the gas monitors we want them to be given a fair hearing, we want them to be taken to the safety committee and to go through the agreed process. We do not want to be locked out during the period that that takes, it is an agreed process which the employer has agreed - - -
PN356
THE COMMISSIONER: How do you mean locked out? By locked out you mean refused the opportunity to work overtime?
PN357
MR FORSYTH: Refused the opportunity to work. We would say that on the evidence of Mr Young there is alternative duties that can be performed. Even Mr Gittus has said that there is the ability to move the employees to other areas. And while that dispute over whether gas monitors are needed for a particular job, we do not think that our members should be missing out on the ability to earn an income or to be told not to attend site until the employer starts up the agreed process again on the Monday.
PN358
THE COMMISSIONER: But by any logical approach to all of this if the employer wanted one of your members to work in an area where the member believed that he or she needed a personal gas monitor and the employer decided that it was not going to provide one. The effect of your order is what? That the employer is compelled to direct that employee to undertake that task without a monitor?
PN359
MR FORSYTH: Well prior to standing the employee down or directing the employee not to attend, we say they should go through the agreed process. There is an agreed process in determining whether the employees' concerns - or in investigating the employees' concerns - - -
PN360
THE COMMISSIONER: And the agreed process is what?
PN361
MR FORSYTH: In the minutes of the safety committee meeting, which was I think JY3 of Mr Young's affidavit. On the Friday that did not occur, they were told to leave at three and not to attend Saturday and to attend back on Monday. Also under the - and this is obviously something which we would submit should be taken into consideration when the Commission is determining whether it should exercise its discretion or not, is that the provisions under the certified agreement in relation to standing down, as I stated before, are a stand down can only occur when the employer has investigated all other means of alternative employment. We say there are other alternative - - -
PN362
THE COMMISSIONER: But it cannot be a stand down, tell me why there has been a stand down here?
PN363
MR FORSYTH: Well we say there has been a lock out and we say they have been locked out.
PN364
THE COMMISSIONER: Okay, so there has been no stand down.
PN365
MR FORSYTH: There has been no stand down.
PN366
THE COMMISSIONER: Okay, there has been a lock out on your submission.
PN367
MR FORSYTH: My apologies Commissioner.
PN368
THE COMMISSIONER: And the lock out is said to be the refusal to allow employees to work overtime or offer overtime on the basis in which it would ordinarily have been offered?
PN369
MR FORSYTH: The customary work that is done on the site.
PN370
THE COMMISSIONER: That if the employer offers the overtime, lets say you got your order, the employer offers the overtime and the overtime is offered on the basis that you will undertake task X, task X is assessed by the employee and says, well I am not undertaking task X unless I have got a personal gas monitor, and the employer says, well we have assessed the risk here and in accordance with the process, lets assume all those processes are gone through, in accordance with the process our call is that an acceptable level of risk for undertaking task X can be achieved without a personal gas monitor. Where are we then?
PN371
MR FORSYTH: Well we would be seeking the employer to look for what alternative duties there are, whether that be at the BP refinery or whether that be fabrication - - -
PN372
THE COMMISSIONER: No, but they want them to do task X. You say they cannot take any industrial action but what you are left with is a situation where you have got an employee who you are offering overtime for a specific task but the employee, for safety reasons - well founded perhaps in the employee's view, but one with which the employer does not agree - refuses to undertake the task. It just seems to be this feeling a bit like a mouse on a treadmill, just keep running harder and having more enquiries and more discussion and ending up back at the same point.
PN373
That is that there is a fundamental significant difference between the parties here and there is no apparent process to resolve it. That is at the end of the day someone has got to make the call and the call ought be - to some extent I can understand because the call is indivisible, the employer carries an obligation to provide a safe place of work and to ensure that tasks are undertaken at an acceptable level of risk, my words not the statutory obligation. The employer exercises that right and makes that call and says, you are not getting a personal gas monitor. It seems to me that the call then lies with the employee, because I can never take that right away from the employee. If the employee does not want to take - they pack up their tools and they go home.
PN374
MR FORSYTH: Mm.
PN375
THE COMMISSIONER: Or at least say, don't put me there do something else. And if the employer says, well no I am not going to do something else, I am directing you to do that, then the employee does not have a choice. If he or she believes that doing that task that way would put him or herself at risk, an unacceptable level of risk in the employee's mind then the employee ought not do that task.
PN376
MR FORSYTH: Commissioner, can I just have - - -
PN377
THE COMMISSIONER: I have no apologies for that, the employee ought not to do that task. It is what happens next is the debate that after the employee says, well I am not going to do that.
PN378
MR FORSYTH: I suppose from our view Commissioner, that is almost another kettle of fish, what happens at the end of that process. What we are concerned about is when these issues are arising - we are saying that the failure to provide gas monitors in the first place is industrial action because it delays the work. When that dispute starts there is that agreed process of what occurs at the end of it, at that process, that that is an issue. But what we are saying is where this issue has been raised as it was on Friday and employees want the matter referred to the safety committee, in the interim they should not be locked out of the work site while that process is going on.
PN379
THE COMMISSIONER: So they should be offered overtime and provided with alternate duties or if there are no alternate duties they are to sit somewhere safe where they consider that it is safe.
PN380
MR FORSYTH: Friday afternoon, and this is just an example, this has occurred already, but Friday afternoon it was the decision of the respondent not to proceed with the safety committee. That is the evidence of Mr Young. Mr Gittus has said, "It is not going to be resolved today, go home we are not going to see you until Monday".
PN381
THE COMMISSIONER: And specifically when you say refer it to the safety committee, I take it that what that means is that that is in accordance with the five point protocol contained in CS2?
PN382
MR FORSYTH: That is correct, Commissioner.
PN383
THE COMMISSIONER: Right, you are saying that while that process is on foot, the employee ought not be disadvantaged.
PN384
MR FORSYTH: Penalised or punished.
PN385
THE COMMISSIONER: And by disadvantaged, specifically you submit that includes the offering of overtime?
PN386
MR FORSYTH: That is correct.
PN387
THE COMMISSIONER: So they should be offered overtime if an hour into the overtime the employer says, well look we have gone through that procedure we are now at the point where I am making the decision and here is the decision, do the work without the gas monitor, well that is when whatever happens next happens next. Is that what you are saying?
PN388
MR FORSYTH: That is correct, Commissioner.
PN389
THE COMMISSIONER: But while that protocol is on foot the employees should not be denied overtime or sent home.
PN390
MR FORSYTH: Should not be disadvantaged. That is correct.
PN391
THE COMMISSIONER: Without pay.
PN392
MR FORSYTH: That is correct, Commissioner.
PN393
THE COMMISSIONER: I understand.
PN394
MR COONAN: If the Commission pleases I would like to be heard on two points that were raised by yourself. The first is that with respect the five point protocol says nothing about - nothing can be read in there to say that the employee must be offered overtime while the process is gone through. I make the second point, in effect it is not the employer's decision to say gas monitors will not be issued, which delays the work, it is the employees' response to that decision, that is what causes the delay on the work. That is the basis of the decision in I think part of the grounds in the Telstra decision. The delay in the work is not as a result of the employer's action - - -
PN395
THE COMMISSIONER: I have the same view about employers as I do about employees, to me they are both included in the exemption at ENF. There is an agreed protocol, while the protocol has been in place neither party can be taking industrial action because there is an agreed protocol. The action is an authorised action until the matter is resolved in accordance with the protocol.
PN396
MR COONAN: Well if the Commission pleases, that is just not in the minutes, with respect.
PN397
THE COMMISSIONER: That is not in the minutes?
PN398
MR COONAN: That is not in the agreement.
PN399
THE COMMISSIONER: What is?
PN400
MR COONAN: That interpretation is that whilst all that goes on the employee must continue to be paid overtime and penalty rates and his travelling time each day and then so we are just like trying to unscramble the egg three day's down the track when the committee decides that he should not have been paid. Sorry if the committee decides that he should not have objected to the permit, and then what we go back and unscramble the egg and take the three day's pay off him? I think with respect the pays just did not get into that.
PN401
THE COMMISSIONER: I must admit I was looking at single time - if it was occurring in ordinary time. You accept in ordinary time that the employee would be paid while this matter is sorted out?
PN402
MR COONAN: Well that is what has happened, Commissioner.
PN403
THE COMMISSIONER: Yes.
PN404
MR COONAN: May it please the Commission.
PN405
THE COMMISSIONER: Very well, thank you. I will reserve my decision in this matter and what I will do is by lunchtime tomorrow provide each of you with either a decision and it is most likely with more detailed reasons to follow shortly thereafter. But obviously the call has to be made one way or another as quickly as is possible. I intend to do that and detail the reasons for reaching that decision will probably issue a little later on. Unless there is anything further I will adjourn the Commission.
<ADJOURNED INDEFINITELY [2.58PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
CRAIG JOHN SHAW, SWORN PN39
EXAMINATION-IN-CHIEF BY MR FORSYTH PN39
EXHIBIT #CEPU1 AFFIDAVIT CRAIG JOHN SHAW PN55
CROSS-EXAMINATION BY MR COONAN PN77
THE WITNESS WITHDREW PN90
PETER JASON YOUNG, SWORN PN92
EXAMINATION-IN-CHIEF BY MR FORSYTH PN92
EXHIBIT #CEPU2 AFFIDAVIT OF PETER JASON YOUNG PN99
CROSS-EXAMINATION BY MR COONAN PN116
RE-EXAMINATION BY MR FORSYTH PN173
THE WITNESS WITHDREW PN184
DAVID NOEL GITTUS, SWORN PN188
EXAMINATION-IN-CHIEF BY MR COONAN PN188
CROSS-EXAMINATION BY MR FORSYTH PN225
RE-EXAMINATION BY MR COONAN PN280
THE WITNESS WITHDREW PN290
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URL: http://www.austlii.edu.au/au/other/AIRCTrans/2006/86.html