Australian Workers' Union v Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services
[2015] FWC 5447
•17 AUGUST 2015
| [2015] FWC 5447 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Workers' Union
v
Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services
(C2015/1969)
COMMISSIONER CLOGHAN | PERTH, 17 AUGUST 2015 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] This is an application by the Australian Workers’ Union (AWU) to deal with a dispute in accordance with a dispute settlement procedure (DSP).
[2] The AWU is in dispute with Veolia Environmental Services (Australia) Pty Ltd (Employer or Veolia).
[3] The application is made pursuant to s.739 of the Fair Work Act 2009 (FW Act).
[4] The DSP is contained in the Veolia Environmental Services Kwinana Industrial Services Enterprise Agreement 2012-2015 (Enterprise Agreement).
[5] The Enterprise Agreement applies to Veolia and its employees based at the Kwinana Industrial Services Depot in the classifications listed in Clause 7 of the Enterprise Agreement.
[6] At the hearing, the AWU was represented by Ms E Douglas, Legal and Industrial Officer. Evidence was given b Mr Aiden Walker, Operator.
[7] The Employer was represented by Mr J Uphill, Employee Relations Consultant. Evidence was given on behalf of the Employer by:
- Mr S Tunbridge, Manager, Kwinana Industrial Services (KIS);
- Mr A Jackson, Operations Supervisor, KIS;
- Mr M McGerr, Senior Human Resources Advisor.
[8] This is my decision and reasons for dispute on the AWU’s application.
RELEVANT PROVISIONS OF THE ENTERPRISE AGREEMENT
[9] The DSP at Clause 25 relevantly reads:
“25. SETTLEMENT OF DISPUTES
Any matter which arises between the parties in the application of the agreement shall be dealt with in the following way:
1. The matter shall first be discussed by the employee with their immediate supervision.
2. …
3. …
4. …
5. If the matter is still not settled it shall be submitted to the Fair Work Australia for interpretation, conciliation and if necessary arbitration on any matter.
6. Provided that before the FWA may arbitrate the matter or matters in dispute VES, the employee/s concerned and their representatives must agree to implement and abide by the outcome of the arbitration.
7. …
8. …”
[10] The employee and the AWU agree to abide by the outcome of the arbitration.
[11] Clause 10 is concerned with health and safety and reads in its entirety as follows:
“10. HEALTH AND SAFETY
VES shall have a Health and Safety Committee which will meet every three months or as agreed.
1. Each permanent depot of VES shall be entitled to elect a Safety Representative.
2. The Committee shall have equal numbers of management and employee members. The members shall elect a chairperson from amongst themselves.
3. The Chairperson may convene an emergency meeting of the Committee if, in the opinion of the Chairperson, there is a good reason to do so.
4. None of the above in clause 10 shall detract from the right and obligations of employees and VES under the various State Occupational Health and Safety Regulations.
Health and Safety issues shall be handled in the following way:
Step 1 Employees should raise any health and safety issues with their elected health and safety representative. The health and safety representative should then raise the matter with the relevant management representative.
Step 2 If there is no health and safety representative present, employees should raise health and safety issues directly with the management representatives.
Note: An employee may take all steps necessary, including leaving their workstation, to report an issue. Where practical, the employee should inform their supervisor before doing so.
Step 3: Should a resolution not be achieved, either party reserves the right to seek the assistance of the relevant authority.
The parties to this agreement are committed to the safe operation of plant and equipment.
Where it is has been established that VES employees may have been exposed to contaminates, VES in accordance with its obligations under the Health and Safety Act shall provide testing for such exposure.”
RELEVANT BACKGROUND TO DISPUTE
[12] Veolia provides cleaning services to a number of commercial clients on a contract basis
[13] One of Veolia’s clients is Cockburn Cement.
[14] Mr Walker commenced work with the Employer on or about 20 August 2007.
[15] On 9 December 2014, Mr Walker was allocated to work with Mr S Allen at Clockburn Cement’s Kwinana site (CC site).
[16] Mr Walker had worked at the CC site on two previous occasions.
[17] Prior to an incident, Mr Walker and Mr Allen completed and signed a Job Hazard Analysis (JHA) for the tasks to be completed at the CC site.
[18] One of the hazards identified on the JHA by Mr Walker and Mr Allen at the CC site is “traffic” and the potential for a “collision”. To mitigate or control the risk of a collision, both employees stated “obey the road rules”.
[19] Both Mr Walker and Mr Allen signed the JHA to say that, “I have read & fully understand the hazards and controls described in this JHA”.
[20] At approximately 11:30 am at the CC site, a loader reversed into a truck driven by Mr Allen in which Mr Walker was a passenger (traffic incident).
[21] Following the traffic incident, the Employer conducted an investigation. Following the investigation, Veolia terminated the employment of Mr Allen. Mr Walker was given a “First and Final Written Warning” on 6 January 2015 for his role in the traffic incident.
[22] The first and final warning relevantly reads:
“As discussed with you during the meeting, Veolia believe that as a passenger in the vehicle you had a joint responsibility with the driver to observe the site signage and communication procedure that provided a safe system of work for people entering the designated work area.
As an employee in the workplace, you have a duty of care to take reasonable care for your own health and safety and that of others who may be affected by your actions or omissions in the course of our employment. Veolia believe that you failed to exercise that duty of care, by not observing the site signage and communications procedure or taking reasonable steps to ensure the health and safety of yourself and others.
In determining our course of action, Veolia have taken your response and health and safety record into consideration, however given the seriousness of the incident and the potential for serious injury or harm to yourself and others, Veolia has decided to issue you with a final warning for the reasons outlined above.” 1
[23] The AWU is seeking that the first and final warning issued to Mr Walker be rescinded as it was not reasonable in the circumstances. The AWU contend that the traffic incident and what contributed to the traffic incident, and the resultant first and final warning, all relate to the application of Clause 10, Health and Safety. Accordingly, the Fair Work Commission (Commission) has jurisdiction to deal with the application.
[24] The Employer asserts that the first and final warning issued to Mr Walker was reasonable in all the circumstances. Secondly, that the Commission does not have the jurisdiction to determine the appropriateness, or otherwise, of the warning issued to Mr Walker.
[25] I now turn to the two issues arising from this application. Firstly, whether the Commission has the jurisdiction to deal with the application. And secondly, if the Commission does have the jurisdiction, whether the first and final warning was appropriate in all the circumstances.
CONSIDERATION
Jurisdiction of Commission to deal with the dispute
[26] Pursuant to s.739 of the FW Act, the Commission has power to determine a dispute, if the parties to the Enterprise Agreement, have agreed that the Commission can arbitrate on the matter.
[27] Clause 25 of the Enterprise Agreement provides that the Commission can arbitrate on “any matter which arises between the parties in the application of the Enterprise Agreement”.
[28] The “matter” in dispute between the parties is that Mr Walker was issued with a first and final warning for failing to exercise a duty of care when working at the CC site. Mr Walker’s insufficient care, related to the non-observance of signage, including a communication procedure at the CC site.
[29] The contract of employment between Veolia and Mr Walker contains an implied term, if it is not expressed, that he will perform his duties with reasonable care. In addition, there is the statutory duty pursuant to the Occupational Safety and Health Act 1984 (WA) to take reasonable care for his own health and safety and avoid adversely affecting the safety or health of any other person by act or omission at work.
[30] The Employer has a similar duty of care both in contract and in statute.
[31] The Employer asserts that Mr Walker did not exercise reasonable care and diligence while at work on the CC site. Mr Walker, while working at the site, was involved in a traffic incident. As a consequence of the traffic incident, the Employer incurred damage to the truck which resulted in a repair bill of $5 588. Presumably, the Employer also suffered the loss of the truck’s use while it was being repaired.
[32] Not unexpectedly, the Employer carried out an investigation. The Employer found a causal relationship between Mr Walker’s lack of care in observing the signage and the traffic incident. The causal relationship was close, relevant and contributed to the damaged truck.
[33] Can it be said that this matter relates to the application of the Enterprise Agreement? The AWU contend that the matter described above, relates to the application of Clause 10: Health and Safety.
[34] Clause 10: Health and Safety has not been drafted and arranged in a neat numbered order, consequently, I will refer to it in two parts.
[35] The first part of Clause 10 deals with a Health and Safety Committee (H&SC). The first part deals with when the H&SC shall meet, its composition and how the chairperson is elected. The first part also contains an aid or reminder, that the term of the Enterprise Agreement does not detract from the employees and the Employer’s rights and obligations, pursuant to state based occupational health and safety regulations.
[36] The second part of Clause 10 deals with how “health and safety issues shall be handled”. While “issues” are not defined, clearly there is a step by step escalating approach as to how health and safety matters are raised by employees and dealt with.
[37] Put simply, the first part of Clause 10: Health and Safety of the Enterprise Agreement deals essentially with the establishment of the H&SC. The second part of Clause 10 essentially deals with how safety issues raised by employees, are dealt with internally before being referred to the “relevant authority”.
[38] While Mr Walker’s matter can be generally characterised as relating to health and safety, it has nothing to do with the application of the Enterprise Agreement concerning the establishment of the H&SC or any issue which he has raised with an elected health and safety representative.
[39] By way of illustration, a matter can be referred to the Commission for “interpretation, conciliation and if necessary arbitration”. Mr Walker’s matter has not required interpretation by the Commission of the application of a term of the Enterprise Agreement. Interpretation is not required because the content of Clause 10 deals with general matters relating to health and safety and not with an employee alleged to have breached their general duty of care to an employer.
[40] The context and purpose of Clause 10: Health and Safety of the Enterprise Agreement is a considerable distance from the traffic incident which led to Mr Walker being disciplined with a first and final warning.
CONCLUSION
[41] For the above reasons, I am satisfied that the parties have not given the Commission the power to deal with the dispute pursuant to Clause 25: Settlement of Disputes of the Enterprise Agreement. Accordingly, the Commission does not have the jurisdiction, pursuant to s.739 of the FW Act, to deal with the application.
[42] In the event my conclusion is wrong relating to jurisdiction, I turn to the issue of whether a first and final warning was reasonable in all the circumstances.
Was a first and final warning reasonable in all the circumstances?
[43] On approaching the CC site, or red traffic Zone as it was also referred to, Mr Walker and Mr Allen would have passed a sign which states, “DANGER LOADER OPERATOR IN THE AREA” with a pictorial representation of a loader. A large hand written note states also “CH 24” 2.
[44] The next sign passed by Mr Walker and Mr Allen is a repeat of the sign above, except the words “CH 24” are not present. In addition, there is a sign which includes the words “WARNING, NO UHF, NO ENTRY”.
[45] The next sign passed by Mr Walker and Mr Allen reads “DANGER, LOADER OPERATOR IN THIS AREA” “WARNING CONTACT LOADER DRIVER BEFORE ENTERING AREA”.
[46] The next sign reads exactly the same as in paragraph [45] above with the inclusion of the word “EXIT”.
[47] Mr Walker gave evidence that his eyesight was fine 3.
[48] Mr Walker agreed in evidence that the signs related to any person who goes past them 4.
[49] Mr Walker agreed that the JHA was carried out only hours before both he and Mr Allen entered and undertook their tasks at the CC site.
[50] Mr Walker gave evidence that he would have alerted Mr Allen to the signage which required the loader operator to be contacted by two-way radio when on site, if he had seen the sign 5.
[51] Mr Walker also agreed in evidence that if the loader operator had been contacted on entering the site, it was more than likely that the traffic incident would not have occurred 6.
[52] Since commencing employment in 2007, Mr Walker has undertaken approximately 80 different training programmes. A number of those training programmes relate to safety.
[53] Mr Walker states a number of reasons why he considers the first and final warning unreasonable. In my view a number of the reasons are a distraction from the real reason why Mr Walker did not observe the signage.
[54] Mr Walker’s evidence is that, “I wasn’t paying attention to the road signs as I wasn’t driving” 7.
[55] The reason, according to Mr Walker’s evidence, as to why he wasn’t paying attention is that he was having a drink 8 and checking his mobile telephone for any “missed calls from family or work”9.
[56] Put simply and shortly, Mr Walker’s evidence is that he didn’t see the signs because he was doing other things.
[57] In support of his lack of attention to the signs, Mr Walker put the proposition initially, that the signs are only to instruct or warn drivers of vehicles, and not passengers 10. However, Mr Walker ultimately agreed, in evidence, that the signs relate to any person who enters the CC site11.
[58] Mr Walker was correct to reassess his evidence because the signs are applicable to all persons who approach them.
[59] Mr Walker, in his evidence, attempted to distinguish between his responsibility to observe and obey the road signs as a passenger and that of Mr Allen as the driver of the truck. When asked how such a responsibility should be apportioned, he agreed that it was a hard question to answer 12. It is a hard question to answer, because of Mr Walker’s attempt to designate Mr Allen and himself as the driver and passenger respectively. In my view, this is the wrong approach, both employees are classified as operators and have a responsibility and duty of care as operators. It is true that each was undertaking a different role and task when the incident occurred, however, that does not detract or absolve them, from their duty of care as employees.
[60] Ultimately, Mr Walker correctly, in my view, came to the conclusion that there is no difference in the responsibility of employees who are drivers or passengers in a workplace. While there may be some exceptions to this broad view, they are not relevant for the purposes of this incident. The additional responsibility of a driver is greater for an operator who is a driver on a designated public road.
[61] Mr Walker’s proposition of a division of responsibility is akin to saying that a Trades Assistant has a lesser responsibility to read workplace signs, when accompanying a trades person at the workplace. I am unable to agree with such a proposition.
[62] The issue of Mr Walker’s belief that he should have been inducted to the CC site is a distraction from the heart of the matter. The simple fact is that, whether an induction had or had not taken place, it would not have overcome Mr Walker not paying attention. Having heard the evidence, it is unlikely that an induction would have stopped Mr Walker from not paying attention; any such conclusion to the contrary, is speculation.
[63] The second issue raised by Mr Walker is that the truck did not have a two-way radio. The parties agreed that Mr Allen should have reported that the truck did not have a two-way radio as part of his pre-start check 13. However, even if Mr Walker was unaware of the missing two-way radio, if he had been paying attention to the signs, he would have realised that both he and Mr Allen could not enter the CC site without a two-way radio to make contact with the loader driver.
[64] Mr Walker’s inattention to the signs cannot be extinguished by either the belief that he should have been inducted to the CC site, or the lack of a two-way radio.
[65] While the Employer is able to impose a range of disciplinary penalties where it has found an employee’s conduct unsatisfactory, it chose to impose a first and final warning. The Employer imposed such a penalty because of Mr Walker’s refusal to acknowledge his wrong doing and that any further health and safety incidents may lead to further disciplinary action. In such circumstances, it is understandable that the Employer chose a penalty, while less than dismissal, was reasonable in the circumstances.
[66] For the above reasons, I am satisfied, even if I am wrong in relation to the jurisdictional argument, the first and final warning was reasonable in all the circumstances.
CONCLUSION
[67] Consistent with my reasons set out above, the application must be dismissed. An Order to this effect is issued jointly with this Decision.
COMMISSIONER
Appearances:
E Douglas,on behalf of the AWU.
J Uphill, on behalf of the Veolia.
Hearing details:
2015:
Perth,
5 August.
1 Exhibit A5 917)
2 Exhibit R5 (12)
3 Transcript PN192
4 Transcript PN199
5 Transcript PN202
6 Transcript PN203
7 Transcript PN172
8 Transcript PN173
9 Transcript PN174
10 Transcript PN196
11 Transcript PN199
12 Transcript PN273
13 Exhibit A3 (14)
Printed by authority of the Commonwealth Government Printer
<Price code C, PR570623>
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