[2019] FWC 3571

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Workers’ Union, The
v
MAS Australasia
(C2017/7093)

COMMISSIONER SIMPSON

BRISBANE, 23 MAY 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] On 21 December 2017, the Australian Workers’ Union (AWU) filed an application pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with the dispute settlement procedure in the MAS Ichthys Onshore Construction Greenfields Agreement (the Agreement). The dispute is brought against MAS Australasia Pty Ltd (MAS).

[2] Directions were issued for the filing of evidence and submissions and the matter was listed for hearing over three days from Tuesday 5 June to Thursday 7 June 2018. The parties were also directed to file an agreed Statement of Facts.

[3] A request for an adjournment of the hearing dates was granted and subsequent difficulties for both parties caused considerable delay in the matter being brought to final hearing. The Hearing was conducted on 11, 12 and 13 March 2019. At the hearing the AWU was represented by Mr Julian Noud of Counsel and MAS was represented by Ms Heather Millar of Counsel appearing by video link from Perth.

[4] The AWU called two witnesses, Union delegates Mr Lance Carleton, and Mr Robert Clayton and witness statements were filed for each of Mr Carleton, 1 and Mr Clayton2 on 17 April 2018, and a further statement was filed for Mr Clayton3 on 22 May 2018.

[5] MAS called four witnesses who all filed statements; Mr Antonio, 4 Mr Hammond,5 Mr Williams6 and Mr Linton.7

[6] The parties agreed 8 that the question for consideration before the Commission is:

“Should those employees who attended the workplace on 1 and 2 December 2017 receive payment as if they had worked on these two days?”

[7] As directed the parties also provided the Commission with an Agreed Statement of Facts as follows and confirmed the statement as agreed 9:

AGREED STATEMENT OF FACTS

The Respondent

1. MAS Australasia Pty Ltd (the Respondent) is a registered Australian private company – ABN 87 129 312 590.

2. The Respondent provides a range of scaffolding, rope access and associated manufacturing, construction and integrated services to the mining and resource industries.

3. The Respondent currently employs approximately 376 employees.

4. The Respondent was, at the relevant time, contracted to provide scaffolding services on the Ichthys Onshore LNG Facility in Darwin, Northern Territory (Project).

5. At the relevant time, the Respondent had over 500 employees working on the Project (Employees).

6. At all relevant times, the Employees were covered by the MAS Australasia Pty Ltd Ichthys Onshore Construction Greenfields Agreement (Agreement).

7. The Agreement was approved by the Fair Work Commission on 26 June 2014 and had a nominal expiry date of 3 July 2018.

8. The relevant personnel employed by the Respondent on the Project at the relevant time were:

(a) Justin Clements – Senior Scaffolding Superintendent;

(b) Neil Williams – HSE Manager;

(d) Stephen Linton – Senior Scaffolding Superintendent; and

(e) Tony Antoniou – Project Manager.

The Applicant

9. The Applicant is a registered organisation representing the interests of employees connected to work in various trades, agriculture, metal working, and assorted industries.

10. The Applicant’s presence on the Project at the relevant time included Employee delegates, and Organisers of the Applicant who frequently visited the Project under their rights of entry, pursuant to the Fair Work Act 2009 (Cth) (FW Act).

11. The Applicant has made an application for the Fair Work Commission (FWC) to deal with a dispute under section 739 of the FW Act (Dispute).

12. The Applicant represents the Employees in the Dispute.

13. The Applicant has sought payment for the Employees in respect of the periods over 1 and 2 December 2017.

Working hours on the Project

14. On the Project, the Employees:

(a) were employed on a full time basis;

(b) worked a 4 weeks on, 1 week off roster;

(c) (on dayshift) worked a weekly span of hours on the Project between 6:30am and 5:00pm Monday to Friday, and between 6:30am and 2:30pm on Saturdays;

(d) worked a standard 58 hour week, comprised of 36 hours paid at the ordinary time rate, 4 hours rostered day off accrual, 12 hours paid at time and a half rate and 6 hours paid at the double time rate.

15. The dayshift Employees’ meal breaks were:

Monday to Friday

(a) morning smoko – 10:00am to 10:30am (paid time); and

(b) lunch – 1:30pm to 2:00pm (unpaid time).

Saturdays

16. At all relevant times there were some Employees who were engaged to work nightshift.

17. Nightshift Employees worked the following hours:

(a) a weekly span of hours on the Project between 6:00pm and 4:00am Monday to Friday; and

(b) a span of hours on the Project over the weekends between 6:00pm Saturday and 2:00am Sunday;

18. Nightshift Employees’ meal breaks were:

Monday to Friday

(a) first smoko – 9:30pm to 10:00pm (paid time); and

(b) second break – 1:30am to 2:00am (paid time).

Saturday

Background

[8] On Wednesday 29 November 2017, a subcontracted employee tragically passed away in an accident at the Ichthys site. The employee was not a scaffolder. The following day on Thursday 30 November 2017, the 250 scaffolder employees (the employees) – who were subcontracted by JKC – were directed not to attend work, but were paid as though they had attended work.

[9] On Friday 1 December, the employees attended the worksite but did not perform their usual duties and in the afternoon remained in the crib rooms. On Saturday 2 December, again the employees attended for work however did not perform their usual duties and remained in the crib rooms.

[10] AWU delegates engaged in safety meetings with MAS on 2 December 2017, raising a number of concerns.

[11] MAS refused to complete payment for employees who had reported for work on these days but it says did not perform work, which was the basis for the dispute raised by the AWU. The application states that on both occasions, employees presented ready and willing to work but were unable to complete their usual duties as a result of the failure of MAS to adequately address safety issues.

[12] The AWU submitted that MAS failed to compensate employees with their regular wages on those two days in accordance with clause 13 of the Agreement.

[13] The AWU further submitted that some employees were instructed by MAS that they were to receive leave without pay for the second half of Friday 1 December 2017, while others were instructed they would be made to resume normal duties. All employees were told that they would be expected to work for a full day on Saturday 2 December 2017.

Relevant Legislation and Agreement provisions

[14] The dispute resolution procedure in the Agreement reads as follows:

“18.2 Steps in the Dispute Resolution Process

(a) Any disagreement or dispute in respect of any matters arising under the Agreement or the National Employment Standards (NES) will be dealt with as outlined in this clause 18.2.

(b) Subject to clause 18.2(c), a disagreement or dispute will be dealt with as follows:

(1) The Employee concerned shall raise the matter with the appropriate team leader for resolution.

(2) If not resolved, the Employee may raise the matter with the supervisor/superintendent of the Employer for resolution.

(3) If the matter remains unresolved, either the Employee or the supervisor/superintendent shall request a formal meeting with the Employer’s most senior manager on the Project Site, or that manager’s representative.

(4) At any stage of this process the Employee may elect to have an Employee representative in attendance.

(5) Once this dispute resolution process has been invoked, both the Employee and the Employer shall attempt in good faith to resolve the issue by utilising the above steps until resolution is achieved. In the event that resolution is not achieved, any party or the Employee may refer the matter to Fair Work Australia for conciliation and/or arbitration.

(6) While the above process is being pursued, work shall continue as normal. Failure to work within the process described in this subclause and/or the failure of any Employee to continue work as normal shall constitute a fundamental breach of the Agreement by the Employee(s) involved.

(c) Any disagreement or dispute relating to demarcation of Employee classifications or scope of work in relation to a matter under clause 23 will be dealt with as follows:

(1) The Party concerned shall informally raise the matter with the appropriate other Party or Parties for resolution.

(2) If not resolved, either Party shall require the other Party or Parties involved in the dispute or disagreement to attend a formal meeting to discuss the dispute.

(3) Any Employees involved in the disagreement or dispute may, at any stage of this process, elect to have an Employee representative in attendance.

(4) Once the Dispute Resolution Process has been invoked, all Parties involved shall attempt in good faith to resolve the issue by utilising the above steps until resolution is achieved. In the event that resolution is not achieved, but only in situations where disagreement or dispute has disrupted or adversely affected the Project or performance of any work on, related to or incidental to the Employer party’s scope of work, any Party may refer the matter to Fair Work Australia for conciliation and/or arbitration.

(d) While the above process is being pursued, work shall continue as normal. Failure to work within the process described in this subclause and/or the failure of any Employee to continue work as normal shall constitute a fundamental breach of the Agreement by the Parties or Employees involved.

(e) Any settlement of a dispute pursuant to this clause shall not vary the terms and conditions contained in this Agreement. It is a condition of employment that no industrial action be taken during the life of the Agreement. Industrial action of any nature will be contrary to the Dispute Resolution Process set out in this clause and a breach of the Agreement.”

[15] Section 19 of the Act provides:

“19 Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;

(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Note: In this section, employee and employer have their ordinary meanings (see section 11).”

[16] Sections 417(1) and 470(1) of the Act relate to prohibitions around industrial action:

“417 Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.

No industrial action

(1) A person referred to in subsection (2) 10 must not organise or engage in industrial action from the day on which:

(a) an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or

(b) a workplace determination comes into operation until its nominal expiry date has passed; whether or not the industrial action relates to a matter dealt with in the agreement or determination.”

“470 Payments not to be made relating to certain periods of industrial action

(1) If an employee engaged, or engages, in protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day.”

[17] Relevantly, s.84 of the Work Health and Safety (National Uniform Legislation) Act (WHS Act) states:

“84 Right of worker to cease unsafe work

A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.”

Submissions

[18] The AWU filed an outline of submissions on 17 April 2018, a further outline of submissions on 27 March 2019 and reply submissions on 8 April 2019. The AWU’s initial submissions argued that the employees who attended the workplace on 1 and 2 December 2017 should be paid as though they had completed their usual duties on those two days, on the basis that:

“I. It was the failure of the respondent to provide a safe working environment that prevented employees from performing their regular duties on 1 and 2 December 2017,

II. That the employee’s actions were in keeping with the legislative rights,

III. That the Respondent was unable to instruct Employees to take unpaid leave on 1 December,

IV. On these dates, Employees had a reasonable concern of an imminent risk to their health and safety, and;

V. There is nothing in the agreement that would prevent payment from being made to employees in these circumstances.” 11

[19] The AWU further submitted that the only two circumstances under which MAS is not obliged to make payment is if they are able to satisfy the Commission that:

“I. The actions of employees who reported for work constituted unprotected industrial action, or;

II. That the Agreement prevents payment from being made.” 12

Industrial Action and Health and Safety

[20] The AWU referred to s.474 of the Act saying it prevents employees from taking unprotected industrial action, including through refusal to work, and requires that payment not be made to employees in those circumstances. The AWU also referred to s.19(2)(c) of the Act.

[21] The AWU submitted that s.19(2)(c) gives effect to s.84 of the WHS Act, which gives employees the right to cease or not undertake work they consider to be a serious risk to their health and safety, where that risk emanates from an imminent or immediate hazard. 13

[22] In addition, the AWU relied upon the consideration of s.19(2)(c) in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v LCE Queensland Pty Ltd 14 (CEPU v LCEQ) and submitted:

“In that case, it was determined that the reasonable test for determining if an imminent risk to health and safety existed was whether or not employees were reasonably concerned that there was an imminent risk to their health and safety. The question of whether or not that risk could actually be substantiated is irrelevant.” 15

[23] The AWU submitted employees were instructed that following their period of unpaid leave on 1 December, they would be required to resume ordinary duties on 2 December. The AWU submitted that this was confirmed in an email sent by the Human Resources Manager, Mr Joel Fiddler, to various supervisors. 16 The email specifically advised supervisors that the employees who “go-slow” will be considered by MAS to be engaging in industrial action.17

[24] The AWU submitted that given that all employees in question are scaffolders, the words ‘ordinary duties’ should be taken to mean scaffolding, which includes a number of tasks which can be considered high risk, such as working at heights and in confined spaces. 18 The AWU submitted that the employees had a genuine belief that there was an imminent risk to their health and safety, namely due to the absence of correct safety equipment and procedures.19 These included:

“…issues relating to ERT response times procedure particularly in confined space locations, access to radios when performing high risk activities, the quality of safety harnesses, training in routine inspections, the correct stocking of safety kits and access to emergency kits including ‘gotcha’ and ‘snatch and grab’ kits.” 20

[25] The AWU submitted that the absence of essential safety equipment makes scaffolding an unreasonably dangerous activity and has the potential to put the lives of employees at risk in the course of their ordinary work duties. 21 The AWU submitted that the recent death of a colleague whilst working on site further heightened the perception of an imminent risk, and it was reasonably assumed that the safety issues that had been identified previously had potentially contributed to the colleague’s passing.22

[26] The AWU submitted that as the employees had a reasonable concern that there was an imminent threat to their health and safety, they were entitled to refuse to work.

[27] The AWU submitted that as per the decision in CEPU v LCEQ, 23 should it be established that a reasonable concern regarding an imminent risk to health and safety did exist, it is then necessary to examine the Agreement to identify if payment should be made.24

[28] The AWU submitted that it was also necessary to identify whether the Agreement would permit MAS to make employees take unpaid leave for the afternoon of 1 December. 25

[29] The AWU submitted that since the Agreement does not impede the right of employees to stop work when they have reasonable safety concerns, there is nothing in the Agreement which allows the Respondent to withhold payment when the employees had complied with their obligations under the Agreement.

[30] In its Outline of Submissions, MAS provided its version of events leading up to and including the dispute as follows:

“2. A few days prior, on 29 November 2017, a worker had died on the Ichthys site. The worker – who was not a scaffolder – had been employed by another subcontractor. The worker had been working in a confined space and his death was not the consequence of a fall from significant height.

3. On 30 November 2017, the Respondent employer, MAS, did not require the scaffolders to work and all of the scaffolders were paid as if they had worked.

4. On Saturday, 1 December 2017, MAS told the scaffolders that they would have a ‘soft start’ and would spend the morning working on safety procedures and, if they wished, inspecting their worksites. All employees were informed that they did not need to work at height at all on 1 December 2017. The scaffolders engaged in the safety reviews and the ‘soft start’ processes that morning.

5. Prior to lunchtime on 1 December, MAS informed the scaffolders that they would only be expected to return to alternative duties such as housekeeping and yard duties after their lunch break. They were told they would only be required to work at grade (meaning not at height). The scaffolders were further informed that if they refused to work that afternoon they would only be paid for a half day. None of the scaffolders did any further work that day.

6. Prior to their departure on 1 December 2017, the scaffolders were told that if they did not feel able to work in the coming days they should take them off and return to work on Monday, 4 December 2017.

7. On 2 December 2017, MAS instructed those scaffolders who attended work that they would be required to engage in yard work and other alternative duties. The scaffolders were reminded that they would not be required to work at height at all that day. MAS told the scaffolders that if they were not willing to return to work, they would not be paid.

8. On the morning of 2 December 2017, the AWU’s delegates met with representatives from MAS. The delegates explained their concerns and MAS made a number of commitments in response to those concerns.

9. Subsequently, the delegates returned to speak with the scaffolders. Despite the discussions and MAS’s commitments, the scaffolders again refused to carry out any work that day.

10. The scaffolders were not paid for the time they did not work on the afternoon of 1 December and the entirety of 2 December (the Claim Period).” 26

[31] MAS submitted the scaffolders were not rostered on 3 December, and those who attended work the following day began with a ‘soft start’ before resuming normal duties or alternative duties at grade. The work performed on 4 December was paid and these days are not in dispute.

[32] In response to the AWU’s claim, MAS submitted that it did in fact provide a safe work environment for the employees, both in respect of their usual duties at heights and the alternative duties at grade.

[33] It was further submitted that the refusal to carry out work on 1 and 2 December was a failure to fulfil their obligation to do so, or alternatively, was ‘industrial action’ as defined in s.19(1)(c) of the Act. MAS submitted that the employees’ refusal to perform work did not constitute an exception as set out in s.19(2)(c) because MAS doubted that the employees were motivated by a ‘reasonable concern’ about an ‘imminent risk to health or safety’ (s.19(2)(c)(i)), and because the employees refused to comply with MAS’s directions that they undertake alternative work that was deemed by MAS to be appropriate and safe (s.19(2)(c)(ii)).

[34] MAS submitted that the AWU bears the onus of proof for demonstrating that the work directed by MAS was unsafe, both in respect of the duties at grade and the duties at heights. It was MAS’ contention that the AWU could not adequately discharge this onus due to its evidence on the work environment being vague. The employees did not carry out work despite an extant obligation to do so and accordingly, were not paid.

[35] In the alternative, MAS argued that the employees’ refusal to perform work fell squarely within the Act’s definition of industrial action, and was not an exception as per s.19(2)(c). It also contended that since the actions of the employees constituted industrial action, it followed that ss.417 and 470 came into operation, which respectively prohibit industrial action during the life of an enterprise agreement and prohibit an employer from paying employees in respect of periods of industrial action.

[36] MAS disputed the AWU’s claim that the employees’ action could not be characterised as industrial action on the basis they considered the employees had a ‘reasonable concern’ about an imminent risk to their health and safety. MAS agreed with the application of the principle in CEPU v LCEQ by the AWU, in that it is sufficient for the employee to demonstrate a reasonable belief that the environment posed a risk to their health and safety and it is not incumbent on the employee to demonstrate that it actually posed a risk in fact. However, MAS submitted that part of the reasoning in that case was neglected in the AWU’s argument, specifically, the finding that there must be a reasonable basis for the belief in order for it to amount to a ‘reasonable concern’.

[37] MAS contended for a factual analysis of the circumstances in order to determine whether there was a reasonable basis for the employees’ concern. Relying upon evidence given by Health Safety Environment (HSE) Manager Mr Neil Williams, MAS referred to the safety meetings with the employees on 1 and 2 December 2017 at which the following concerns were raised:

• Whether the fatality on 29 November 2017 involved someone falling from heights;

• Whether the fatality involved the failure of a harness or lanyard;

• How much training the Emergency Rescue Team (ERT) had and whether the ERT had responded to the incident in a timely manner;

• Availability of emergency radios;

• Sufficiency of emergency kits; and

• Sufficiency of emergency training and drills.

Evidence

30 November 2017

[38] Mr Robert Clayton, a scaffolder and AWU delegate said prior to the events in question a number of harnesses and lanyards had been assessed by MAS workers as not being fit for purpose and failing to meet the required standard. 27 Mr Clayton said he arrived on site on Thursday 30 November 2017 and was officially told in a brief statement that someone had lost their life overnight and to sign on and off.28

[39] Mr Lance Carleton, also an AWU delegate and scaffolder said that he found out that the incident did not involve a MAS employee, and he later found out it was not a scaffolder in the morning of Thursday 30 November. He said he knew the incident occurred in one of the large tanks. 29

[40] Mr Clayton said that in discussions with workmates on Thursday 30 November (and 1 December 2017) he was told by a number of workmates that there had been significant Emergency Response delays in relation to the fatality and that a harness failure may have been involved in the incident. Mr Clayton said that it was the belief of many that it had taken the ERT forty minutes to reach and access the deceased worker. Mr Clayton agreed that the entire project was shut down on Thursday 30 November. 30

[41] Mr Antonio the Project Manager for MAS operations on the Ichthys site said he arrived at the site at 5.30am on 30 November and was informed by other staff members that on the night of 29 November an employee of another Sub-Contractor had died whilst installing insulation in a confined space within a tank on the Project site. He said he was notified by MAS’ client that the workforce was not required to perform any work on the Project as the whole site had been shut down due to the fatality. 31

[42] Mr Hammond, a scaffolding superintendent said on the morning of 30 November he was informed of what occurred on the night of 29 November. Mr Williams the HSE Manager for MAS on the Project said on 30 November he was advised of the fatality, and based on the information he received the employee of a sub-contractor had died whilst installing insulation in the TNK1 area of the Project site.

[43] Mr Linton a senior scaffolding superintendent with responsibility for dayshift crews working in the A23 area said he was informed on the morning of 30 November that another sub-contractor’s employee had died on the project on the night of 29 November and the MAS workforce did not work that day due to the fatality. 32

1 December 2017

[44] Mr Carleton did not attend work on Friday 1 December 33 and could give no first hand evidence concerning the events of that day.34 Mr Clayton also said he took the day off on 1 December 2017 as his mind was not on the job due to the tragic incident.35

[45] Mr Clayton said that he was aware given the incident that employees had concerns regarding a number of safety issues on site, including ERT response times and procedures for incidents in confined spaces, access to emergency radios when performing high risk activities, access to emergency kits, the correct stocking of them and training to use them, and whether or not a harness had been a factor in the fatality. He said these were all issues that existed on site for a long time and had been raised repeatedly by himself and other employees with management at toolbox meetings. Mr Clayton said that he understood that as a result of these issues, employees felt that returning to work would put their safety at an unreasonable risk. 36

[46] Mr Clayton said that on 1 December he had a conversation with Mr Fiddler by text message where Mr Fiddler advised employees they were able to take additional time off if required otherwise they would be expected to return and work as normal on Saturday 2 December 2017. Mr Clayton said that he advised Mr Fiddler he did not agree with that and thought that it was important for action to be taken to rebuild the safety relationship between management and the workers. 37 Mr Clayton said whilst he wasn’t at work on 1 December he understood the permit office was closed which meant no permits could be issued to go to work.38

[47] Mr Antonio said that he arrived for work at 5.30am on 1 December and was advised by MAS’ client that a “soft start” approach was required for the workforce to commence on Friday morning.

[48] He said at 6.30am he met with MAS’s Superintendents and Supervisory staff where he conveyed the message of a “soft start” and directed them to pass this message onto crews. He said based on his communications with the client the “soft start” would involve the following for MAS’ workforce:

(a) Review of all Job Safety Assessments (JSA’s).

(b) Review all Safe Work Method Statements (SWMS).

(d) Verification of all tags on equipment including scaffold/harness/rigging equipment.

(e) Various other checks and balances as per their normal work duties.

(f) Conduct a safety walk down on their worksite (at grade level only) with their Supervisor, to ensure that it is 100% safe.

(g) Housekeeping from when the workforce were last out on their work areas. 39

[49] Mr Antonio said throughout the day the workforce were clearly advised by supervisory staff (under his direction) that in the afternoon, following the “soft start” the expectation was that workforce would carry out housekeeping duties, which consisted of cleaning up all scaffolding materials in the yard and tidying away scaffolding equipment. He said under no circumstances were any workforce employees directed to work at height and that direction was clear. 40

[50] Mr Antonio agreed he was sent an email along with a group of other persons at 8.28am on the morning of Saturday 1 December by Mr Fiddler attaching a press release from NT WorkSafe which included the following:

“NT WorkSafe would like to correct the misinformation being reported by the media on the cause of the fatality at Bladin Point Construction site overnight. The fatality was not the result of a ‘falling from a great height’ as reported in one media outlet, or falling from a height after breaking through temporary flooring, as reported by another.

The deceased was working in a confined space installing insulation within a tank when the incident occurred. A prohibition notice was issued at 3.00am today stopping all insulation work within the tanks on the Bladin Point Construction Site.

Worksafe inspectors are currently back on site continuing their investigation.”

[51] The press release itself appeared to have been issued at 2.22pm on Thursday 30 November.

[52] Mr Antonio said that at about 2.00pm he returned to the A200 crib room where all of MAS’ workforce assigned to that area were gathered. Mr Antonio said that the supervisory staff for that area advised him that these employees were refusing to leave the crib room to take up their housekeeping duties as directed.

[53] Mr Antonio said that he addressed the workforce and the comments he received were mainly that they did not feel safe on site due to the recent fatality and lack of information available pertaining to the fatality. Mr Antonio gave evidence that he said that he understood but at that stage all that was required of them was that they inspect their work areas and carry out housekeeping duties such as loading a truck with materials laying around the site and that they did not need to do anything at height. He said he repeated himself many times. Mr Antonio claimed that no one raised any safety concerns about the housekeeping duties MAS had asked them to do. 41

[54] Mr Antonio said that in the end he addressed the workforce noting;

(a) MAS required the employees to return to work but would not require working at heights;

(b) If employees returned to work and continued working until the end of the day, they would be paid a full day; and

[55] Mr Antonio said that in response to these directives, several of the employees in the A200 crib room advised him that the workforce would not be leaving the crib rooms as they had safety concerns. Mr Antonio said he recalled that the workforce employees raised a specific concern regarding the training that the Emergency Response Team (ERT) on site received. He said the workforce did ask how long it had taken to try and rescue the person involved in the fatality. He said there was little information available so he responded that he would ask the client and come back to them. He said he did seek further information from the client regarding the fatality but they were not able to provide anything. 42

[56] Mr Antonio said that he was aware that after 2.00pm MAS’ entire scaffolding workforce on the Project refused to return to work that day and remained in their respective crib rooms. He became aware as he received reports from the supervisory staff on site. Mr Antonio said that at 4.45pm he returned to the A200 crib room where MAS’ scaffolding workforce were preparing to return to camp. He said that he, along with MAS’ supervisory staff, briefly spoke to the workforce providing them with the following information:

(a) MAS will be working an eight hour day Saturday 2 December;

(b) MAS expected its employees to attend to work as normal, and when employees turn up to work they were expecting them to be out with their crews ready to start at 6.30am;

(c) MAS confirmed that its work areas were safe and MAS had completed numerous walk downs with its HSR’s, HSE and Project Management;

(d) If employees were still feeling affected from the events of the week, they were asked to take the rest of the week off as unpaid leave or paid personal leave and come to work on Monday 4^th December 2017;

(e) If employees did not wish to attend work on Saturday they were required to phone in and advise MAS by 7.30am;

(f) MAS would not be paying any employees who turned up for work on Saturday and stayed in the crib rooms;

(g) If the employees did attend site and continued to refuse to work, this would be reported to the ABCC as industrial action;

(h) Employees were reminded of the Employee Assistance Program service available.

[57] Mr Antonio was taken to an email from Mr Fiddler sent to Mr Antonio and a number of others at 1.00pm on Friday 1 December. It was put to Mr Antonio one of the intentions of the email was for employees to be told they were required to perform their role as usual on the Saturday. Mr Antonio said it needs to be recalled the soft start had not yet happened and the Saturday morning was to be the beginning of the soft start. 43

[58] Mr Antonio said that at about 5.00pm he met with the supervisory staff responsible for MAS’ scaffolding workforce on nightshift. He said at the meeting he advised the nightshift supervisory staff of the message regarding the “soft start” and work requirements which was identical to the message for the dayshift. 44

[59] Mr Hammond gave evidence that he attended a meeting on the morning of 1 December involving Mr Antonio, Mr Fiddler and other dayshift superintendents and supported Mr Antonio’s evidence concerning advice given at the meeting, the soft start and what duties would be expected to be performed. His evidence was consistent with that of Mr Fiddler regarding what was communicated to employees at a meeting he attended at 6.30am in A100 crib room. He said he responded to questions from employees with all of the information he had.

[60] Mr Hammond said that he returned to A100 crib room at about 10.30am and directed the workforce to take part in a safety walk down of their work areas, and they were told they would not need to go up on the scaffolding, however the employees refused. Mr Hammond said that at this time he advised the employees that they were expected to return to work at 2.00pm after the lunch break, but they would not be required to work at height. He said at 2.00pm he returned to the A100 crib room and addressed the workforce and directed them to conduct safety walk downs, housekeeping and general yard duties. He said at no time did he direct employees to return to scaffolding work or working at heights. He said again the employees refused to return and remained in the A100 crib room.

[61] Mr Hammond said that at 4.30pm he returned to the A100 crib room where the employees were getting ready to leave. He said he presented information consistent with that referred to by Mr Antonio concerning what MAS required for the following day.

[62] Mr Williams said he took part in the meeting including superintendents, the Mr Fiddler and Mr Antonio on the morning of 1 December where he was advised MAS was implementing a soft start. He said he remembers the superintendents being directed that the workforce was not expected to carry out any work at heights.

[63] Mr Williams said he attended the A100 crib room at 6.30am and he addressed the workforce on the fatality. He said as a group, management, supervision and workers were to check areas for hazards, and no working at heights was to commence until all checks were completed. He said he answered a few questions and advised to review all JHA’s and SWMS as part of “safety re-focus”. He said as HSE Manager he directed each of his direct reports in the safety team to do the same with MAS’ workforce in other crib rooms.

[64] Mr Williams said at 7.30am with members of the safety team, supervisors, superintendents and project management, he commenced a safety walk of A100 and A200 that incorporated MAS’ main areas. He said during this walk down he did not identify any safety issues. 45

[65] Mr Linton said he received the NT WorkSafe media release. He said he attended the meeting of MAS management on the morning of 1 December and the decision to make a soft start. He said following the meeting he walked over to the A23 crib room at about 6am to assist supervisors to deliver the message. He said the employees were advised that there was to be a soft start, reviewing of JSA’s and SWMS documents and they were not being expected to work at heights. He said employees were told to conduct inspections of their work areas, inspect and retag all working at height equipment, stack and pack scaffold equipment at ground level, inspect barricading and conduct general housekeeping. 46

[66] Mr Linton said some employees advised him they felt unsafe and wanted answers to some of their questions as they were hearing rumours that the fatality occurred because of a harness or lanyard failing. Mr Linton said he responded that the NT WorkSafe had advised that the fatality did not occur as a result of a fall from height and it was not related to scaffolding. Mr Linton said he also reassured them that they were only required to work at ground level.

[67] Mr Linton said at 2.00pm he returned to the A23 crib room and spoke to the employees and instructed them that MAS was directing them to return to their work areas and conduct safety walk downs, general yard duties and housekeeping, and if they did that they would be paid for 10 hours, but if they refused to leave the crib rooms they would only be paid until 1.30pm. Mr Linton said the employees advised they were not going to leave the crib room because they still had safety concerns. He said he returned again at 4.30pm and advised the employees what MAS required on Saturday 2 December and read out an email received from Mr Antonio.

2 December 2017

[68] The AWU’s submissions disputed that the employees were instructed to perform other reasonable work or work not requiring them to work ‘at heights’, but submitted that even if they were, they would have still possessed the reasonable belief that there was an imminent risk to their health and safety. 47 Mr Carleton’s witness statement did not directly address this claim.

[69] Mr Carleton agreed he met with MAS management on 2 December 2018. He was asked if in the meeting the possibility of alternative duties was discussed. He said he didn’t recall discussing that himself. He recalled that Mr Tony Antonio was there. 48 During oral evidence Mr Carleton said he did not recall Mr Antonio saying that no one would be required to work at heights that day at the meeting on the morning of Saturday 2 December.49

[70] It was put to Mr Carleton that in the course of discussions on the Saturday morning involving Mr Antonio, Mr Clayton and himself, that they agreed with the idea of a soft start for MAS employees and would take it to the crew. He said if Mr Antonio raised that possibility he did not remember him doing that. 50 Mr Carleton was asked if Mr Fiddler or Mr Linton also said that employees were told they could do alternative duties on 2 December and he said he didn’t remember that.51

[71] It was put to Mr Carleton that Mr Hammond addressed employees in the A100 crib room on Saturday 2 December and he said he did not remember seeing Mr Hammond there. It was again put to Mr Carleton that evidence before the Commission will be that employees were not required to work at height and Mr Carleton’s evidence was to the effect that he did not recall that.

[72] In his oral evidence Mr Carleton agreed he was present at a meeting on 2 December with NT WorkSafe. 52 Mr Carleton said ERT and radios were discussed at the meeting. He said the meeting had a range of people from across the site and was about the incident. Mr Carleton claimed that JKC could not give much information at the meeting but that a harness was being used and that forensics had taken it and they couldn’t comment further.53

[73] Mr Carleton said the following at paragraph 14 of his statement:

“At this meeting, Robert and myself raised that there were numerous safety concerns that had led employees to feel that returning to work would be unsafe, including the quality of harnesses, emergency kits, ERT Response Times, emergency response drills, training for emergency kits, and lack of access to emergency radios.”

[74] It was put to Mr Carleton that where he listed the reasons that led employees to feel it was unsafe to return to work, the fatality is not included. 54 Mr Carleton’s oral evidence was to the effect that he accepted the fatality was not specifically mentioned, the facts concerning the fatality were not known and the specific concerns were those raised.

[75] The AWU submitted this was due to the fact that the safety issues were not merely limited to concerns around scaffolding but also, in particular, the ERT response times, radio GPS trackers, and the inherently risky nature of construction sites. 55

[76] Mr Carleton said the following in his statement about the meeting with MAS management on 2 December:

“16. It was concluded by the end of the discussion that no questions from the men had been adequately addressed, no information regarding the death of a co-worker on our site had been issued and no information from the principal contractor in charge of the site had been delivered regarding the continuing safety of workers on site and what was being done to mitigate any risks that may have contributed to the death.

17. I do not feel that this meeting achieved anything substantial, and failed to adequately acknowledge many of the concerns that had been raised by employees both in the past few days.

18. Following the meeting I returned to the Crib hut to discuss the situation with other AWU members.

…

30. At that meeting many of them reiterated they shared safety concerns regarding ERT Response Times, Radios and Gotcha kits and stressed that they did not feel safe returning to site.”

31. It was resolved at that meeting that, provided MAS followed through with their promise to provide additional radios on Monday, that we would return to work on that day, in light of the other commitments made to improve safety.”

[77] Mr Carleton said in his statement that he had made frequent requests to management at toolbox meetings and prestart meetings for radios and the radio system to be upgraded as they frequently experienced blackouts and loss of transmission. He said additionally there were not enough radios on site to supply workers who needed one. Mr Carleton said radios are essential equipment as they allow workers who are injured to advise response teams of their position. Mr Carleton said in his statement that his requests for additional radios had been made over a number of months however no additional radios were supplied until 5 December 2017. 56

[78] During his oral evidence he said the reference in his statement at paragraph 7 to 5 December was an error and that radios were supplied by 4 December as they were sourced from other areas.

[79] Mr Carleton said employees were also concerned about the suitability of harnesses. Mr Carleton said it was his understanding that the harness design was known to fail in certain circumstances. He said no offer was made to accommodate workers concerns. 57

[80] Mr Carleton said that ‘Gotcha Kits’ are used in emergency situations at heights to prevent serious injury and death, and were also a source of concern, with few employees receiving the necessary training to use them, and several kits were missing the necessary equipment. Mr Carleton said this was raised with the respondent and nothing was done about it. 58

[81] Mr Carleton said that emergency response times were a serious concern, with the crews responsible for this task not receiving the necessary training and practice, and this led to concerns regarding their ability to respond quickly and adequately to an accident or medical emergency. 59

[82] Mr Carleton said other safety issues include the lack of training and contingency plans should an evacuation be required including a refusal of the respondents management to acknowledge need for alternative muster points depending on the nature of an emergency. 60

[83] Mr Antonio said that there are two types of radio, a common radio and an intrinsically safe radio. He said Train 2 was live gassing so that is where intrinsically safe radios were. Mr Antonio said they actually had a surplus of radios. He said they bought more intrinsically safe radios but that was not because of the incident but because it was due to live gas coming on. 61

[84] Mr Antonio rejected the claim that he agreed during a meeting on the Saturday with the Union delegates that he would reallocate new radios. His evidence was that he said they would do a complete audit of the radios. He said the delegates asked for more radios and upon review there was no requirement for more radios. 62

[85] When Mr Carleton was asked what were the non-height related concerns, and he said mainly the radios and ERT response times. 63 Mr Carleton was asked what work members of the crew performed that day and he appeared to give evidence that they were at work because they were on site.64 His examples of the performance of work were communicating safety concerns and having group discussions about safety concerns.

[86] Mr Carleton accepted during his oral evidence that no one worked at grade on Saturday 2 December, however he also gave evidence that he did not consider employees refused to work which is difficult to reconcile with his own evidence. When Mr Carleton was asked if employees were asked to check equipment and procedures he said if they were he was not present. 65

[87] Mr Carleton was asked how ERT response times would be relevant to work at grade such as yard work, housekeeping duties, or safety checks. Mr Carleton said to get to the yard you had to walk past dangerous places. 66

[88] Mr Clayton was asked why employees didn’t want to go back to work even though they weren’t required to work at height. Mr Clayton said there were no permits to work. It was put to Mr Clayton that they could work at grade and he referred to licenses required to drive a forklift. 67 Mr Clayton maintained there was still a risk working at grade including manual handling and being run over by a forklift. Mr Clayton was asked if he raised these concerns about working in the yard with MAS and he said he did not directly do so. He said he could not remember if he raised it with a supervisor.68

[89] Mr Clayton said that on Saturday 2 December he reported for work and was asked to attend a meeting between Mr Antoniou, Mr Fiddler, Mr Moran Stark, Mr Carleton and himself. He agreed in his oral evidence this meeting was on the morning of Saturday 2 December. 69 He said at that meeting they discussed the safety concerns arising from the incident on the Wednesday night, as well as broader concerns with onsite safety, however no specific answers were provided, and they were told that many questions could not be answered due to limited information being available concerning the incident.70

[90] It was put to Mr Clayton that at paragraph 12 of his first statement he said that matters were discussed arising from the incident on Wednesday night at the meeting on the morning of 2 December with MAS representatives, however he had said in his oral evidence he didn’t know what happened. Mr Clayton said rumours had come through on the grapevine that it took over half an hour for ERT to arrive. 71

[91] In his oral evidence, when asked what issues he raised at the meeting, Mr Clayton said ERT response times and the fact that there was no real information coming through from the incident where a person had lost their life and there was speculation but no actual information. 72

[92] It was put to Mr Clayton that Mr Antonio said during a meeting on Saturday 2 December that employees didn’t need to work at height. Mr Clayton said the statement was not just coming from Mr Antonio, it was coming from quite a number of people, their superintendents, Moran Stark and lots of people were saying it. Mr Clayton explained that MAS wanted the employees out on the plate doing some housekeeping. Mr Clayton said the housekeeping was already done. 73

[93] Mr Clayton said that while some undertakings were given to supply additional radios and improve ERT Response times, no immediate commitments were given to improve onsite safety and supply information about what was being done to mitigate any potential safety shortcomings that had arisen from the death of the employee on Wednesday. Mr Clayton said that they relayed the information received from this meeting back to employees who advised that they still felt that returning to work was a serious risk to their health and safety. He said it was agreed to return to work on Monday. 74

[94] In his oral evidence Mr Clayton said that employees made the decision not to return to work because they didn’t feel comfortable with the fact that the information was not being provided as to what actually happened. He said that, the fact that ERT response times and all of the safety concerns raised were not being answered and a lack of radios to initiate first response contributed to the employees’ decision. 75

[95] Mr Clayton said that on the Saturday he also attended a briefing held by ‘NT WorkSafe’ in relation to the fatality. Mr Clayton said that at the briefing he asked an NT WorkSafe representative whether or not a harness failure had been the cause of death, and he said in response the representative nodded their head but was unable to confirm any specific details. 76

[96] Mr Clayton agreed in his oral evidence that the meeting with NT WorkSafe was separate and occurred after the meeting with MAS Management on the Saturday morning. He indicated that the meeting with NT WorkSafe was held at the JKC training rooms and began at 11.30 and went from an hour and a half to two hours. 77

[97] Mr Clayton said in his oral evidence that at the WorkSafe meeting it was confirmed that a harness was involved in the incident but they couldn’t elaborate, and that NT WorkSafe had not been able to see the harness as it was still in the hands of the police. 78 Mr Clayton said there was not much information, because NT WorkSafe could not provide enough information as to what led to the event. Mr Clayton was asked what happened after that information was relayed to employees and responded as follows:

“PN 372-- I mean, they knew roughly what happened through the grapevine, but once the information come through that it was a harness involved and it was a fall from height, they were a little bit – you know, a little bit disappointed at the fact that the information hadn’t come through earlier.”

[98] Mr Clayton confirmed no more information was given about the harness. 79 It was put to Mr Clayton that an inquest found there were issues in terms of safety procedures, not in terms of the harness. Mr Clayton said at that point that hadn’t been determined and it was still under investigation.80 Mr Clayton accepted that they still didn’t know anything about what had happened after the meeting with the NT WorkSafe.81

[99] Mr Antonio said that on Saturday 2 December he arrived at the site at 5.30am. He said he was advised by MAS’ site administrative staff that 66 scaffolding employees had called in to advise that they would not be attending the Project site and would be taking the day off as personal leave. He said this left around 270 employees who were due to attend for work that day. 82

[100] Mr Antonio said that at about 6.30am he was advised by supervisory staff that all of MAS’ scaffolding workforce employees who had attended the Project site that day were again refusing to leave their respective crib rooms to commence pre-start as directed.

[101] Mr Antonio said at about 7.30am Mr Fiddler and himself arranged for an urgent meeting with the AWU delegates on the Project to discuss the refusal of the workforce to return to work. He said at about 8.00am the two Union delegates met Mr Fiddler and himself in the A200 office area, where a discussion took over 2.5 hours.

[102] Mr Antonio said the Union delegates were told that NT WorkSafe had advised that the incident was not related to scaffolding, and that there was no indication that a harness had failed.

[103] Mr Antonio said he advised the delegates that he expected the workforce to inspect their areas and inspect their rigging, harnesses and lanyards and verification of all tagging requirements. He said the delegates agreed with this and confirmed they would relay this message to the workforce. He said when the delegates left he was quite confident that the delegates would speak to the workforce and convince the workforce that the soft start approach was the way forward. Mr Antonio claimed he said words to the effect:

“The guys just need to come out to the worksite and check their job site and conduct housekeeping. There is no expectation to get off the ground onto any scaffolds whatsoever. The very most we need is for the guys to put some boards on the trucks in a housekeeping role, but again anything they do will be firmly on the ground.”

[104] Mr Antonio said that about 10.30am the Union delegates went back to the Project site to commence further discussions with the workforce. Mr Antonio said he went to A200 at about 11.00am after smoko, and he saw one of his superintendents Mr Moran Stark talking to the scaffolding workforce employees trying to convince them to return to their work areas. He said he observed the employees refusing to leave the crib room, saying that the site was not safe. 83 Mr Antonio said he spent the next 45 minutes going to all of MAS’ crib rooms saying that MAS’ qualified safety personnel had conducted numerous walk downs and safety inspections of the proposed working areas and it had been confirmed safe to return to work.

[105] Mr Antonio said that at each meeting he reiterated the message that there was no requirement for them to work at heights; however the general response was that they did not want to move due to a general concern about safety. Mr Antonio said that he was later informed by Mr Fiddler that MAS’ scaffolding workforce remained in their respective crib rooms until they were collected by bus and returned to the camp at 2.30pm on 2 December. He said he was told by a nightshift supervisor that the entire scaffolding workforce assigned to work that night did not attend and instead opted to take the night as leave without pay.

[106] Mr Hammond gave evidence that at 6.30am on Saturday 2 December he noticed none of the employees were commencing their pre-starts so he walked over to the A100 crib room. He gave evidence that he repeated the information about what MAS expected, and repeated that working at heights was not required. He said following his speech employees told him they were going to stay in the crib room and again refused to go to their work areas.

[107] Mr Hammond said that about 10.00am he attended the A100 crib rooms and he again spoke to the workforce about what was expected. 84 He said again the workforce told him that they were going to stay in the crib room. He said he was aware that the workforce remained in the crib room until the busses arrived at 2.30pm and they returned to camp.

[108] Mr Williams said that on 2 December he arrived at the project at 5.30am and at about 8.00am he was invited to attend a meeting with Mr Antonio, Mr Fiddler and two AWU delegates Mr Clayton and Mr Carleton. He said at the meeting he addressed each one of the safety issues raised by the Union as best he could. He said the delegates requested that they have radios for the entire First Response Team, and double the amount of rope rescue kits with associated training. Mr Williams said he understood to arrange these items as soon as possible. Mr Williams said the radios and Gotcha kits came within a few weeks of this meeting. 85

[109] Mr Williams was asked if the commitment was given that the radios would be provided on Monday. He responded that the radios were provided as soon as possible, but they would review the radios that they had on the job, which were quite ideal radios. He said they would do their best to provide the FRT members with additional radios. 86

[110] Mr Williams said it was his understanding that following the meeting the Union delegates were going to speak with the MAS workforce in order to assure them the Project site was safe for them to return to work. 87

[111] Mr Linton said he commenced work at 5.20am on 2 December and held discussions with Mr Fiddler, HSE representatives and other superintendents. He said he reviewed an email from Mr Fiddler regarding directions to be given to employees. He said at 6.30am he walked to the A23 crib room spoke to employees and read out the directions. He said he told employees inspections had been done, no issues were found, it was safe to return to work and all work would be at ground level or at “grade” and that their work would include checking and tagging all of their equipment including harnesses. He said the employees advised they were staying in the A23 crib room. He said the reason they gave was that they still needed answers to why the fatality occurred. 88

[112] Mr Linton said that at 11.30am he returned to the A23 crib rooms and employees still refused to return to their areas of work. He said he again spoke to the employees and requested that they return to their work areas and carry out housekeeping or yard duties. He said the employees again refused. Mr Linton said he returned at 2.00pm and observed the employees preparing to return to camp and at 2pm observed employees boarding the busses to return to camp. 89

Monday 4 December

[113] Mr Carleton said that on Monday morning 4 December the overwhelming majority of workers felt it was the right time to return to work. Mr Carleton said a group discussion was held in the crib hut and it was decided to return to work. 90 Mr Carleton was asked what had changed on the Monday morning and he responded that he had received information that changes were going to be made regarding the radios. He also said the ERT was going to be more active and present and would provide them with the security that they felt they didn’t have. He said there was a lot of good information that came from the NT WorkSafe meeting.91

[114] It was put to Mr Carleton the evidence of Mr Williams and Mr Antonio would be that the radios did not come for a week or weeks, and Mr Carleton said that the radios were sourced from other areas. He said he was working in the crew when it received more radios. Mr Carleton said there were two types of radios, and one of the types would have had to be ordered, especially in the A200 area. He said they could use the older style radio in their area which wasn’t a live plant area. 92

[115] It was put to Mr Carleton that on Monday 4 December he returned to working at height. He said he did not recall if he worked at height that day. Mr Clayton appeared to accept that the workforce did return to working at height on Monday 4 December. 93

[116] Mr Clayton said in his second statement that at a meeting he attended on 2 December 2017, commitments were made by MAS that additional safety equipment, including extra emergency kits and emergency radios would be made available on Monday. Mr Clayton said it was for these reasons that himself and other employees decided to return to work on Monday, believing that while the site had various outstanding safety issues, there was no longer the same imminent risk as had existed on Friday and Saturday. 94

[117] In his oral evidence Mr Clayton said that the decision to return to work was taken on the Monday morning prior to pre-start. He said the decision was taken because MAS management were prepared to supply extra radios and Gotcha kits. 95

[118] Mr Antonio said that issues such as Gotcha kits, radios and lanyards were discussed with the union delegates on the Saturday and on the Monday MAS carried out some audits on the amount of equipment they actually had on site and from that through that week they set about ordering more Gotcha kits. He said they ordered more lanyards and they called an audit and had all the radios brought back in. He said he did not believe they ordered more radios because they had enough to get on with towards the end of the project. 96

Consideration

[119] The AWU argued in closing that MAS mishandled the exchange of information to the workforce which created suspicion and uncertainty in the eyes of employees already concerned by rumours circulating.

[120] The AWU also submitted that the failure to call Mr Fiddler to give evidence could give rise to an adverse inference that his evidence would not have assisted MAS. It was submitted the fact of a fatality raises serious safety concerns in the mind of a reasonable person and to suggest the concern was misplaced because of a lack of detail surrounding the fatality should be rejected.

[121] The AWU submitted that the meeting with NT WorkSafe was instructive and it put an end to speculation and rumour, and the important issue of ERT was discussed, and up until that point all that MAS was doing was reciting a press release. The AWU submitted that as MAS itself had little detail about the fatality, directing the workforce to do work even at grade may have carried risks.

[122] The AWU submitted that the evidence demonstrates that the delegates had legitimate and reasonable concerns about undertaking yard work and it is irrelevant that the workforce was offered work at grade.

[123] MAS submitted in closing that the employees cannot be paid for the periods on the afternoon of 1 December, and entirety of 2 December because;

a. The employees failed to complete their obligations pursuant to the work – wages bargain; and

b. The employees engaged in industrial action and MAS is accordingly prohibited from paying them for the relevant period pursuant to s.470 of the Act.

[124] MAS submitted that the employees actions on 1 and 2 December fell within the definition of ‘industrial action’ contained in s19(1) of the Act as the refusal to work clearly meets the definition.

[125] MAS submitted the AWU claim can only succeed if the Commission finds that the employees held a reasonable concern in respect of imminent risk to their safety both in relation to their normal duties and in relation to the alternative duties offered to them.

[126] MAS submitted that neither of the AWU witnesses attended work on 1 December and accordingly there was no evidence in support of the claim for payment on 1 December.

[127] MAS submitted in relation to 2 December;

(a) Mr Carleton entirely omitted from his written statement any reference to the NT WorkSafe meeting on 2 December;

(b) Mr Carleton could not recall key facts about what happened on 2 December including that MAS management repeatedly informed him and Mr Clayton that no employees would be required to work at height and the fact that the crib rooms were repeatedly addressed by MAS management about what the alternative duties would involve;

(c) Mr Carleton gave numerous different answers in response to the question ‘when did employees decide the risk to health and safety had passed and that they could return to work?”

[128] MAS submitted that Mr Clayton’s evidence was also unreliable including because he referred to a different witness statement which he had written but which was not filed, and evidence which he originally included in his statement was not in the version filed and no explanation was provided for this.

[129] MAS also submitted that Mr Clayton’s evidence was also inconsistent about whether harness failure was confirmed during the meeting with NT WorkSafe on 2 December.

[130] MAS submitted Mr Clayton and Mr Carleton contradicted each other in their written and oral evidence regarding whether alternative duties at grade were offered to employees, and whether additional radios were provided on Monday 4 December.

[131] MAS submitted that rather than having reasonable concerns about imminent risks to their safety and health, the employees were worried and concerned, in the sense of frustrations about the failure to address a range of safety issues which they considered important. However a lack of information about how a fatality transpired cannot itself be the basis for reasonable concerns about an imminent risk to health and safety pursuant to s.19(2)(c) of the Act.

[132] MAS submitted that the exception to industrial action in s.19(2)(c) would be impermissibly broadened and ripe for misapplication if the Commission were to hold that employees could refuse to work because they hold reasonable concerns about their health and safety in circumstances where they have limited information about the safety incident that involved a different trade, which occurred with a different employer, on a part of the site at which the employees are not working.

[133] MAS rejected the AWU’s submission that the test pursuant to s.19(2) is a subjective one and submitted it is an objective test.

[134] MAS also submitted the safety concerns were not ‘imminent’. MAS submit there was no material change in the circumstances surrounding the employees work environment before or after.

[135] MAS submitted that the weight of the evidence was that no additional radios were made available on Monday 4 December, and accordingly the fact the employees returned to work on Monday 4 December in materially the same circumstances as existed on 2 December demonstrates there was no imminent risk to employee’s on 1 and 2 December.

[136] Finally MAS says that all of the witnesses except for Mr Carleton gave evidence that alternative duties at grade were offered to the employees by MAS management.

[137] It is clear from the evidence that little detail was known by the wider workforce of the facts concerning the fatality that occurred on site on Wednesday 29 November 2017 at the times on Friday 1 December and Saturday 2 December 2017 when employees of MAS remained in the crib huts. This was because the Northern Territory police, the Northern Territory WorkSafe and others were conducting investigations and information was not being shared. It is clear from evidence that the NT WorkSafe press release issued on afternoon of 30 November clarified that the incident did not involve ‘falling from a great height’.

[138] It is completely understandable and to be expected that employees, particularly employees engaged in dangerous work such as scaffolders would still be coming to terms with what occurred, and trying to understand what caused the fatality especially given that little information had been shared with the wider workforce as at the 1 and 2 December.

[139] It is clear from the evidence that despite the position as put by the AWU, MAS had communicated to the workforce on both 1 December and 2 December that employees would not be required to work at height on those days and that it was attempting to initiate a soft start by having employees engaged in duties working at grade.

[140] I am satisfied that employees who attended for work on 1 and 2 December failed or refused to perform any work on the afternoon of 1 December and all of 2 December. The failure or refusal to perform work must be conduct in connection to a dispute of a particular kind. If the industrial action stands completely outside the area of disputation and bargaining this is relevant to determining whether the action is “industrial”. 97 I am satisfied that action taken by the employees was collective action that arose as a result of a dispute about whether the workplace was safe. That action was industrial in nature. The question then becomes, did the action fall within the exception in s.19(2)(c).

[141] In Ranger Uranium Mines Pty Ltd v FMWU 98, Nadar J of the Supreme Court of the Northern Territory in making an interlocutory judgement concerning admissibility of evidence in a Tort case concerning worker conduct at the Ranger Uranium Mine said the following in relation to a foreshadowed defence of justification related to an argument concerning the motivation of its members being the protection or promotion of their health and safety:

“Whether the motivating purpose for the conduct, being the protection and promotion of the health and safety of the defendants and fellow workmen, can amount to a sufficient justification may depend upon many factors. How seriously did the facts threaten health and safety? What efforts have been made in the past by the defendants (or others to their knowledge) to eliminate those facts? What responses have the plaintiffs made to such efforts? Is the issue genuine or is it a pretext to further a less worthy objective? What other methods, if any, were available to the defendants to achieve their purposes? Have other methods been tried? What proportion was there between the seriousness of any threat to the health and safety of the workmen and the extent of the damage likely to be suffered by the plaintiffs?”

[142] In AMWU v Rheem 99 Munro J said the following in dealing with an application to set aside an order to stop or prevent industrial action under s 127 of the Workplace Relations Act 1996 on the basis of a genuine belief about safety concerns.

“..It requires that the relevant industrial action be at least based upon the person taking the action having a genuine and reasonable belief about an imminent risk to the health and safety of that person or of others. In addition the action must be proportionate to the risk...”

[143] In a decision of Walton J, Vice President of the New South Wales Industrial Commission in Labour Council of New South Wales v Axis Metal Roofing 100, Walton J dealt with an application for an order pursuant to s.143 of the Industrial Relations Act 1996 (NSW) authorising strike pay. Walton J made a number of findings concerning the expression “Based on a reasonable concern for health and safety of employees” as found in the state legislation at that time which can be summarised as follows:

(a) Whether it is a “reasonable” concerns an objective assessment of the nature of the concern;

(b) A concern may be reasonable so long as it is not fanciful, illogical or irrational at the time the concern arises, without the benefit of hindsight and the knowledge of whether a real risk does in fact exist;

(d) The reasonableness must be assessed from the perspective of an ordinary and reasonable person in the position of the employees involved at the relevant time;

(e) The reasonable concern must continue during all times that the relevant industrial action is occurring; and

(f) Previous incidents, occurrences or beliefs may be relevant to a basis for a concern for health and safety in the circumstances.

[144] In a Federal Court decision of Gilmour J in ABCC v CFMEU 101 in relation to the expression “Reasonable concern” it was found as follows:

“Accordingly the issue is not whether certain matters did in fact constitute a risk to health and safety, but rather whether any employee reasonably held a concern about an imminent risk to their health or safety.

The applicant accepts, correctly in my view, that an employee may have a concern even though his or her concern arose only from something communicated by a union official. However, such a concern must still be objectively reasonable. It will not be reasonable merely because it was raised by a union official.”

[145] It is apparent from these decisions that the assessment as to whether the concern was a reasonable concern is an objective assessment, not a subjective one. Further the action must be proportionate to the risk.

[146] In the AWU’s case only two people gave evidence being the two AWU delegates. There was no direct evidence from any of the other employees who are the subject of the application and therefore the case is progressed on the basis that the Commission should infer based on the evidence of the two delegates that all of the other employees held a reasonable concern about an imminent risk to their safety. It is also relevant that neither of the delegates attended the worksite on 1 December so there is no direct evidence from the worksite on the day about the concern of employees in support of the case as it pertains to the claim for payment for the afternoon of 1 December.

[147] The word imminent means “likely to occur at any moment” 102 or “impending soon to happen”.103 In the ABCC v CFMEU case Gilmour J said that the concept of imminence describes the risk to employees’ health or safety. Accordingly, the probability of risk eventuating such that the employee is likely to be harmed or placed in an unsafe position is required to be considered.

Conclusion of s.19(2)(i)

[148] Similarly to the conclusion of Jessup J at paragraph 137 of the decision in Australian Building and Construction Commissioner v Australian Manufacturing Workers’ Union 104 (The Australian Paper Case) the evidence in this case is more consistent with employees having been worried or concerned that they had not received a proper explanation about the circumstances surrounding the fatality on site on the evening of 29 November 2017, and also because a number of other safety issued raised on their behalf had not been resolved, however I am not satisfied that the employees remained in the various crib rooms on 1 and 2 December because they held concerns about an imminent risk to their health and safety on site. The evidence indicates that the range of issues that the AWU had been agitating had been issues for some time before 1 and 2 December and their existence had not generated such a level of concern as to engage the exclusion in s.19(2)(c)(i) when objectively assessing the reasonableness of the concern proportionate to the risk being one that is impending or likely to occur at any moment. This case is distinguishable from the decision in CEPU v LCEQrelied upon by the AWU for this reason.

[149] The fact of the lack of information being shared about the fatality was clearly a source of worry or concern, however the NT WorkSafe press release issued on 30 November and communicated to employees on the morning of 1 December dispelled some of the rumours that had been circulating.

[150] In The Australian Workers’ Union v United Group Resources Pty Ltd 105it was held that a refusal to perform work because of a genuine concern regarding safety was not industrial action, however a failure to perform alternative duties that were available and offered was unprotected industrial action. Even if it is wrong to conclude that the first element being the exclusion in s.19(2)(c)(i) had not been met, the evidence establishes that alternative duties were available and offered by MAS involving the performance or work at grade.

[151] I am satisfied that those alternative duties were safe, appropriate to perform, and were refused. On that basis, because reliance on the exclusion in s.19(2)(c) requires satisfaction of both subsections 19(2)(c)(i) and (ii), the application would fail on the second limb of s19(2)(c) if not the first. In the circumstances s.84 of the WHS Act does not apply, and s.470 of the FW Act does apply.

[152] The AWU also submitted that MAS was not entitled to direct employees to take leave without pay. The evidence supports a conclusion that MAS did not direct employees to take leave without pay, but instead offered that as an option to employees if they decided they did not wish to attend for work.

[153] The answer to the question for arbitration is no.

COMMISSIONER

Appearances:

Mr J Noud of Counsel appearing for the Applicant.

Ms H Millar of Counsel instructed by ACG appearing on behalf of the Respondent.

Hearing details:

2019,

Brisbane:

March 11, 12, 13.

Printed by authority of the Commonwealth Government Printer

1 Exhibit 1.

2 Exhibit 2.

3 Exhibit 3.

4 Exhibit 4.

5 Exhibit 5.

6 Exhibit 6.

7 Exhibit 7.

8 Transcript PN 9 – PN 11.

9 Transcript PN 13 – PN 15.

10 Subsection (2) and subsequent omitted.

11 Applicant’s Outline of Submissions at [5].

12 Applicant’s Outline of Submissions at [24].

13 Applicant’s Outline of Submissions at [30].

14 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v LCE Queensland Pty Ltd[2013] FWC 2014.

15 Applicant’s Outline of Submissions at [32].

16 Applicant’s Outline of Submissions at [35].

17 Ibid.

18 Applicant’s Outline of Submissions at [38].

19 Applicant’s Outline of Submissions at [39].

20 Ibid.

21 Applicant’s Outline of Submissions at [40].

22 Applicant’s Outline of Submissions at [41].

23 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v LCE Queensland Pty Ltd[2013] FWC 2014.

24 Applicant’s Outline of Submissions at [53].

25 Applicant’s Outline of Submissions at [54].

26 Respondent’s Outline of Submissions at [2]-[10] (citations omitted).

27 Exhibit 3, paragraph 6.

28 Exhibit 2, paragraph 5.

29 Transcript PN 129-134.

30 Transcript PN 427.

31 Exhibit 4, paragraphs 3-4.

32 Exhibit 7, paragraphs 3-4.

33 Exhibit 1, paragraph 12.

34 Transcript PN 148.

35 Exhibit 2, paragraph 6.

36 Exhibit 2, paragraphs 7 – 9.

37 Exhibit 2, paragraph 11.

38 Transcript PN 427.

39 Exhibit 4, paragraph 6.

40 Exhibit 4, paragraph 7.

41 Exhibit 4, paragraph 9.

42 Exhibit 4, paragraphs 10-11.

43 Transcript PN 759.

44 Exhibit 4, paragraph 17.

45 Exhibit 6, paragraph 11.

46 Exhibit 7, paragraph 8.

47 Applicant’s Outline of Submissions at [46]-[47].

48 Transcript PN 151-152.

49 Transcript PN 155.

50 Transcript PN 161.

51 Transcript PN 173.

52 Transcript PN 85.

53 Transcript PN 112.

54 Transcript PN 186.

55 Applicant’s Outline of Submissions at [48]-[50].

56 Exhibit 1, paragraphs 5-7.

57 Exhibit 1, paragraph 8.

58 Exhibit 1, paragraph 9.

59 Exhibit 1, paragraph 10.

60 Exhibit 1, paragraph 11.

61 Transcript PN 589.

62 Transcript PN 594.

63 Transcript PN 213.

64 Transcript PN 223 – 225.

65 Transcript PN 228.

66 Transcript PN 243.

67 Transcript PN 443.

68 Transcript PN 450-455.

69 Transcript PN 354.

70 Exhibit 2 para 12, Exhibit 3, paragraph 9.

71 Transcript PN 80-81.

72 Transcript PN 357.

73 Transcript PN 515-516.

74 Exhibit 2, paragraph 13 -14.

75 Transcript PN 439-440.

76 Exhibit 3, paragraph 13-14.

77 Transcript PN 358-360.

78 Transcript PN 361.

79 Transcript PN 393.

80 Transcript PN 410.

81 Transcript PN 411.

82 Exhibit 4, paragraph 19.

83 Exhibit 4, paragraph 29.

84 Exhibit 5, paragraph 29.

85 Exhibit 6, paragraph 18.

86 Transcript PN 1361.

87 Exhibit 6, paragraph 23.

88 Exhibit 7, paragraph 17-20.

89 Exhibit 7, paragraph 21-25.

90 Transcript PN 247.

91 Transcript PN 272-274.

92 Transcript PN 295.

93 Transcript PN 507-511.

94 Exhibit 3, paragraph 11.

95 Transcript PN 502.

96 Transcript PN 577.

97 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 35 at para 120; AMWU v The Age Company Limited para 46 (2004) 133 IR 197.

98 Ranger Uranium Mines Pty Ltd v FMWU (1987) 54 NTR 6.

99 AMWU v Rheem (2003) AIRC.

100 Labour Council of New South Wales v Axis Metal Roofing (2004)131 IR 272.

101 ABCC v CFMEU [2009] FCA 1092.

102 Macquarie Dictionary.

103 Australian Concise Oxford Dictionary.

104 Australian Building and Construction Commissioner v Australian Manufacturing Workers’ Union [2017] FCA 167.

105 The Australian Workers’ Union v United Group Resources Pty Ltd [2010] FWA 14.

Australian Workers' Union, The v MAS Australasia