BMC Welding and Construction Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2014] FWC 6242

[2014] FWC 6242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

BMC Welding and Construction Pty Ltd
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2014/3741)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 9 SEPTEMBER 2014

Alleged dispute regarding payment for lost time – direction on the day reflected a reasonable consideration that there was an immediate risk – payment allowed.

[1] On 2 April 2014, BMC Welding and Construction Pty Ltd (BMC) made an application pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with the dispute resolution procedure in the BMC Electrical & Instrumentation Enterprise Agreement 2010-2014 (the Agreement). 1

[2] The Agreement covers and applies to BMC, their employees in Victoria 2 and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[3] The dispute concerns electrical employees of BMC working on the Deinking Construction Project (DI Project) at the Australian Paper Maryvale Mill site (Maryvale Mill site) and a claim by the CEPU for payment for time lost on 22 March (four hours at double time), 28 March (four hours) and 31 March (four hours) in 2014. It arises in the context that on Friday, 28 March 2014 the relevant employees ceased work at the direction of a Health and Safety Representative (HSR) and undertook no work until the afternoon of Monday, 31 March 2014.

Brief background

[4] BMC is contracted to perform work, along with other contractors, on the DI Project for Australian Paper at its Maryvale Mill site. The work is undertaken on a fenced off construction site within the Maryvale Mill site, which is a Major Hazard Facility (MHF).

[5] Mr A Robertson is an employee of the CEPU who has worked at the DI Project since January 2014. Since January 2014, Mr Robertson has been the HSR for the electrical employees of the Applicant who work at the DI Project.

[6] The immediate context of the dispute involved an incident on Saturday, 22 March 2014 when an electrical worker employed by BMC sustained a cut to his wrist and attended the Maryvale First Aid Centre for treatment and then was taken to hospital for stitches. This followed an incident on 1 March 2014 when an employee of another contractor, Primaweld, was involved in an incident in which he sustained injuries.

[7] Following the incident on Saturday, 22 March 2014 a scheduled overtime day, employees ceased work and congregated in the site sheds on the basis that it was unsafe to continue work as there were no first aiders on the site. Mr Robertson, and officials of three other unions made certain demands for first aid coverage and related safety issues of Australian Paper’s management of the DI Project. BMC met some but not all of the demands. Mr Robertson advised BMC management that the CEPU members were stopping work because it was unsafe to continue work as there were no first aiders on the site. The employees remained in their sheds, until sent home by BMC management. Monday, 26 March 2014 was a rostered day off. Work resumed on Tuesday, 27 March 2014 although no overtime was undertaken on that day or the following day. Work ceased again at 11.00 a.m. on Friday, 28 March 2014 consequent to a direction from Mr Robertson on the basis of his view that working on the DI Project posed an imminent risk to the workers in his work group. No work was undertaken again until 1.30 p.m. on Monday, 31 March 2014 at which time an agreement was reached between BMC and the CEPU (and the other unions) in relation to the safety issues raised by the CEPU.

Jurisdiction to determine the dispute

[8] The dispute raises clause 15—Disputes Settling Procedure, of Part A (Service, Maintenance and Installation) of the Agreement. The disputes procedure deals separately with clause 15.1—Resolving Health and Safety Issues and clause 15.2—Resolving Other Issues.

[9] Clause 15.2 provides a procedure for the resolution of a “over permitted matters (as currently defined in the Fair Work Act), the application of this Agreement or the NES”. The dispute, in this case, concerns the application of elements of clause 15.1 of the Agreement and, in particular clause 15.1(b):

“Where the supervisor or the OHS Representative reasonably consider there is an immediate risk to the health and safety of any person they must immediately consult, and if the concern remains unresolved, they may, jointly or singularly, direct that work in that particular area, or by that particular method, cease (immediate risk means that there is a degree of danger which is likely to cause injury or disease before the risk can be eliminated).”

[10] Both BMC and the CEPU contend that the dispute about payment concerns the application of the Agreement and falls within the scope of the disputes procedure in clause 15.2—Resolving Other Issues, of the Agreement. I agree that the dispute falls within the jurisdiction afforded by the parties in their agreement. Both BMC and the CEPU agree that the dispute has progressed through the earlier steps within the process and had reached the point where, under clause 15.2(d) of the Agreement, either party may refer the dispute “directly to FWA for conciliation and/or arbitration”.

[11] The dispute was listed for conference on 3 April 2014 for conciliation. The dispute remained unresolved and was listed for arbitration, subject to directions for the filing of submissions and evidence. Evidence was heard on 18 and 19 June 2014 and a timetable for the making of written submissions was established.

Evidence

[12] Mr Robertson and Mr P Mooney gave evidence for the CEPU. Mr Mooney is an elected official of the CEPU with responsibility for organising its members who are employed by BMC.

[13] BMC brought evidence from:

(a) Four Australian Paper Managers at its Maryvale Mill site:

Mr P Guy, Health & Safety Manager;

Mr G Jones, General Manager Projects;

Mr R Wilkinson, Construction Manger, DI Project; and

Mr G Kyle, Project Construction Safety Manager and Advisor; and

(b) Three BMC Managers:

Mr D Pease, Project Manager for DI Project Contract C701;

Mr C Thompson, OHS Manager and

Mr C Strong, Electrical Project Manager, DI Project.

Submissions

BMC

[14] BMC submitted that overtime bans and demands for payment for lost time on 28 March and 31 March 2014 were part of an industrial strategy for the demand for payment for lost time on 22 March 2014 and the non-payment by BMC for time on 22 March 2014 was legitimate because the employees did not cease work on a “reasonable belief” nor was there ever an “immediate risk to health and safety”.

[15] In relation to the term “immediate risk to health and safety”, BMC submitted that a sense of immediacy or an impending risk needed to exist 3 and immediate risk is defined in the Agreement as “a degree of danger which is likely to cause injury or disease”.

[16] BMC relied on the observation of Justice Munro that reasonable concern by the employee about an imminent risk to his or her health or safety:

“. . . 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 taken must be proportionate to the risk. Dispute settlement procedures relevant to safety disputes at the site must have been fully complied with.” 4

[17] BMC submitted that clause 15(1)(b) of the Agreement requires that the HSR reasonably consider that there is an immediate risk which is likely to cause injury or disease before the risk can be eliminated. It submitted that the risk must be identifiable and of a nature that can cause injury or disease. Mr Robertson was unable to identify any specific issue of immediate risk on the relevant dates.

[18] BMC also submitted that there was no “immediate risk” in a manner described at clause 15.1(b) of the Agreement:

● Firstly there is a Safety Management Plan (SMP) for the DI Project and it incorporates the SMP of the Maryvale Mill site. The same SMP was also used for the construction of the Maryvale Mill site upgrade; and

● Second the term “imminent risk” in the Agreement would not extend to encompassing the first aid of an individual. Imminent risk is defined in the Agreement “as a degree of danger which is likely to cause injury or disease”. A literal reading of these words bearing in mind the meaning of imminent would mean that “imminent risk” is encompassing a situation where the principal injury is yet to occur.

[19] BMC submitted that it was not true that the DI Project had a lack of first aiders on site or lacked a first aid procedure. Rather:

● The DI Project SMP and Emergency Response Plan (ERP) was in place;

● Australian Paper had at all times a WorkSafe approved first aider and ERP in place, including a 24/7 First Aid Centre staffed by Level 3 qualified attendants; and

● BMC had in its workforce at all times sufficient Level 2 trained first aiders, more than sufficient to meet the Code of Practice for a high risk work environment.

[20] BMC submitted that the initial indecision in assessing the injured worker on 22 March 2014 was not enough to incite a reasonable consideration that there was an immediate risk to health and safety.

[21] BMC also submitted that immediate risk was neither a potential risk, nor apprehended risk and it could never encompass the provision of first aid at a particular certification level. In any event, BMC was providing first aid through its principal, Australian Paper. It submitted that Mr Robertson’s assessment of the safety of the DI Project Site on 22 March 2014 was not reasonably formed: he was unable to identify any immediate risk of injury or disease on any of the days when he directed the cessation of work and Mr Robertson had agreed that it was the “possibility”of injury that caused him to issue a cessation of work direction. Mr Robertson was unable to identify any immediate risk to health and safety from the circumstances he relied on to direct the cessation of work. The CEPU brought no professional or objective evidence to support the existence of such a risk.

[22] In relation to Mr Robertson’s concern about the first aid response on the DI Project, BMCsubmitted that the response had been accepted as effective up until the incident of 22 March 2014. It submitted that:

● “The Maryvale Mill is comprehensively covered for first aid and emergency response by a well-established First Aid Centre staffed 24/7 by qualified and experienced first aid staff” 5 since its commencement;

● “. . . previous injuries to workers on the DIP Project which were handled in accordance with the site procedures. No issues were raised regarding any imminent risk to health and safety of the workforce; despite the same first aid response” 6; and

● “The absence of a dedicated worker level 3 first aider” would not create a risk, let alone an imminent risk, and “is evidenced in the risk assessment” conducted by Mr Kyle, which showed “that the implementation of a level three first aider would not have any impact on risk”. 7

[23] BMC submitted that the Maryville safety plan was complimented by a site specific SMP from the commencement of the DI Project in January 2013 with the emergency and first aid response clearly outlined.

[24] BMC submitted that the adequacy of the first aid and emergency response was evidenced by the entry of WorkSafe Inspectors onto the DI Project site on numerous occasions and the absence of any identification of an “imminent risk to the health and safety of employees” by the employment of that first aid response. BMC further submitted that:

● there had been no WorkSafe improvement notices issued requiring any alteration to the current first aid response;

● work continued by the construction crews during the whole week that discussions over the demands occurred;

● no HSR issued a provisional improvement notice under the Occupational Health and Safety Act 2004 (Vic) (OHS Act);

● no WorkSafe inspector attended the site upon a request from a HSR; and

● when a WorkSafe inspector was contacted on Friday, 28 March 2014 no improvement notice was issued.

[25] BMC submitted that Australian Paper had a WorkSafe approved 8 and long standing system in place for emergency response and first aid response for the entire Maryvale Mill site,9 which was a designated MHF under the Occupational Health and Safety Regulations. The DI Project site does not have a separate emergency and first aid response; rather it incorporates the ERP for the Maryvale Mill site. The emergency and first aid response system described above is outlined in the Maryvale Mill site’s SMP, the DI Project’s SMP as well as both the Maryvale Mill site and DI Project inductions.

[26] BMC submitted that any inadequacies in the DI Project first aid response identified by Mr J Groves – WorkSafe Inspector, after the Primaweld incident on 1 March 2014, in his recommendations that a first aid “grab bag” and a first aid shed be available for the first aiders on the DI Project had been implemented by Australian Paper.

[27] BMC submitted that the ERP for the DI Project was sufficient and effective and there was never any immediate risk to health and safety. The confusion that may have arisen amongst employees was in regard to how to initially respond to an injury before enlisting medical or first aid assistance and was not enough to pose an immediate risk to injury or disease.

[28] BMC submitted that the DI Project site always complied with the Compliance Code for First Aid in the workplace because the contractors individually and collectively always had a sufficient number of Level 2 first aiders within their workforces and, at all relevant times, BMC also had a Level 3 first aider on site. BMC submitted that the concern of Mr Robertson about the availability of a Level 3 first aider does not provide a reasonable basis for directing the cessation of work. Mr Thompson held a Level 3 qualification and was on site on 22 March 2014.

[29] BMC submitted that the Commission should give weight to the way the previous safety issues have been dealt with on the DI Project site: when serious issues of safety have previously arisen which have posed a genuine risk of an immediate threat to the health and safety of employees, Australian Paper and the contractors have acted in a timely and appropriate manner under the site SMP and consistently with the terms of the Agreement. It also submitted weight should also be given to the fact that Mr Robertson was also quick to use his powers under the Agreement, often without a reasonable belief, as illustrated by incidents concerning a fire in the woodyard and a crane blocking the access way.

[30] BMC submitted that the fact that the CEPU employees continued working ordinary hours on Tuesday, 25 March to Thursday, 27 March 2014 does not support the contention that there was an immediate risk on the DI Project site and that Mr Robertson was unable to identify any change in circumstances that lead to the employees ceasing work on Friday, 28 March and Monday, 31 March 2014.

[31] BMC also submitted that a risk assessment of the ERP for the DI Project conducted by Mr Kyle and Mr G Martin, Electrical supervisor found there was very little difference in terms of risk when comparing the two scenarios of first aid response from a first aider on site or from calling 333 (the site emergency number) and that there was no reduction in risk by the introduction of a dedicated Level 3 first aider on site. Further, Mr Groves, when attending the site on 28 March 2014 did not make any ruling that the DI Project site was unsafe.

[32] BMC further submitted that an apprehension by the employees or their HSR which did not properly take into account the existing procedures in place was not sufficient to activate the substantial powers at their disposal under the Agreement. BMC submitted that properly viewed, the cessation of work on 22 March 2014 was a premature and unjustified stoppage, and the CEPU is now using the health and safety provisions of the Agreement to support an inappropriate claim for lost time for that day. It submitted that all subsequent unlawful action taken since then, being the overtime bans on 25, 26 and 27 March 2014 and refusal to perform work on 28 March and 31 March 2014 can be seen as industrial relations pressure in support of the claim for deducted pay for the 22 March 2014 stoppage, designed to place commercial pressure on their employer and the client, Australian Paper to concede to their claims.

[33] BMC submitted that the authorities in relation to the reasonableness of Mr Robertson’s direction are distinguishable on their own facts and cloud an otherwise straightforward definition in clause 15(1)(b) of the Agreement. It contended that the decision of Justice Jessup in Williams v Construction, Mining and Energy Union 10 was more to the point and did assess, and dismiss, the legitimacy of a cessation of work against the terms of a relevant enterprise agreement. It relied on the finding of Justice Jessup that the health and safety issue identified, whilst suggesting the site needed attention, was not one which rendered the site as one on which a worker could not be reasonably asked to work.11 As with the cases relied on by the CEPU, the conclusion of Justice Jessup was reached on the facts of the particular matter before him.

The CEPU

[34] The CEPU submitted that prior to 22 March 2014, Mr Robertson, as a HSR, had reason to exercise the powers under clause 15.1(b) of the Agreement, directing employees to cease work where he believed that an imminent threat was posed to their health and safety. On all these occasions the identified threat to safety was accepted as valid by BMC and the employees were paid for the time which they ceased work.

[35] The CEPU also submitted that the relevant background to the dispute was as follows:

(a) On Saturday 22 March 2014 an employee of the Respondent from the work group which Mr Robertson represented as HSR was injured. Mr Robertson was personally involved in the events following the safety incident and the arrangements for treatment of the injured employee and observed fundamental flaws with the safety procedures for the DI Project. He formed the view thatflaws were serious enough to pose an imminent risk to the health and safety of the employees he represented. Having been told by BMC that the issues could not be addressed until the following working week, Mr Robertson told BMC that he would be directing his work group to cease work because the site posed an imminent risk to health and safety and instructed the workers to cease work and to remain in the lunch sheds while the matter was discussed further. Eventually BMC instructed the workers to cease work and to go home for the day. The employees were not paid for the time they did not work.

(b) “On Tuesday, 25 March 2014 a meeting was held of the DI Project HSRs at which there was a report back from the Respondent and/or Australian Paper on the measures which had been taken to resolve the safety issues” Mr Robertson had raised. Mr Robertson “was satisfied with this response” 12 and the CEPU employees “worked as normal on this day”13 and on 26 and 27 March 2014.

(c) Work was performed as normal on the DI Project up until the following Friday (28 March 2014). On that day a meeting was called on by the OHS committee. At that meeting Mr Robertson was told by the BMC that:

• the person who he had been told was a Level 3 first aider was nottrained to that level;



• that a site specific first aid plan did not exist for the DI Project;



• that a SMP did not exist for the DI Project.

(d) Based upon this information Mr Robertson told BMC that he would be directing the employees in his work group to cease work as an imminent threat to their health and safety existed. He did so and the workers ceased work at approximately 11.00 a.m. and went to the lunch sheds where they remained until directed to go home by BMC. They were not paid for the time they ceased work

(e) On Monday, 31 March 2014 Mr Robertson and Mr Mooney were party to a meeting with a representative of BMC during which an agreement was reached on what would take place to resolve the safety issues at the DI Project. It took approximately half a day for this agreement to be reached and then confirmed in writing and signed by Mr Mooney. During this time the employees did not perform work as the cease work from the previous Friday was still in place. The employees were not paid for the time of the cease work on that day.

[36] The CEPU further submitted that two terms used in clause 15.1(b) of the Agreement require consideration: “reasonably consider” and “immediate risk”.

[37] In relation to “reasonably consider”, the CEPU relied on the judgement of Justice Barrett 14 in a matter concerning s.601GC(1)(b) of the Corporations Act 2001. Justice Barrett said that the term “reasonably considers” is interchangeable with the terms “considers on reasonable grounds or believes on reasonable grounds” and found that if a decision was made on reasonable grounds it must satisfy itself of two requirements:

“. . . first, that the relevant belief or opinion be actually held by the responsible entity; and, second, that facts exist that are sufficient to induce the belief or opinion in a reasonable person.”

[38] The CEPU also relied on the judgement of Justice Gilmour in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union 15in which the term “reasonable concern” was found to involve a higher standard of existing rather than the lower standard of “reasonable consideration” and cited a judgement of Justice Walton16 in which “a reasonable concern for health and safety of employees”was found to raise the following questions:

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

(c) There is no need to establish that an actual risk existed at the time;

(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 or safety in the circumstances.” 17

[39] Justice Walton found that, provided the concern was objectively reasonable: 18

“. . . the issue is not whether certain matters did in fact constitute a risk to health or safety, but rather whether any employee reasonably held a concern about an imminent risk to their health or safety.” 19

[40] The CEPU submitted, that in determining the dispute, the Commission must be guided by the following considerations:

“i. An objective assessment must be taken to deciding if Adam’s consideration of there being an immediate risk to health and safety were reasonable.

ii. Adam’s consideration of there being an immediate risk will be reasonable as long as it is not fanciful, illogical or irrational at the time that he had the belief and/or opinion.

iii. In determining if Adam’s belief that there was an immediate risk on the days in question was reasonable the Tribunal should not employ hindsight and/or the knowledge of whether a real risk did in fact exist at that time.

iv. There is no need for the Tribunal to find that an actual risk existed at the times that Adam held his belief.

v. The reasonableness of Adam’s belief on the various days should be assessed from the perspective of an ordinary and reasonable employee in Adam’s position at the time he formed his belief and directed the workers to cease work.

vi. Adam must have held his belief about the risk to health and safety at all times that the workers did not work due to his direction.

vii. Were there previous health and safety incidents, occurrences or beliefs which contributed to Adam’s consideration of their being a risk to health and safety on the three days he directed the workers to cease work.” 20

[41] In relation to “immediate risk”, the CEPU submitted that “immediate risk” to employee health and safety represents a lower level of risk before action under clause 15.1(b) of the Agreement can be taken than “immediate threat” 21 or “imminent risk”.22

[42] The CEPU drew on the judgement of Justices Lee and Finn in Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Limited, 23 to submit that the meaning of the word “immediate” is an elastic term with the tension of that elastic determined by the facts around which it is stretched. The CEPU rejected the BMC’s submission which sought to assign “immediate” a defined period of time.

[43] The CEPU submitted that, in relation to the current dispute, the term “immediate” to be assessed in the context of a high risk environment. It submitted that in the circumstances of a high risk workplace which fails to have a basic first aid procedure or to know if it has the currently trained personal to execute that procedure the risk to worker health and safety is immediate.

[44] The CEPU submitted that at the time Mr Robertson issued the direction to cease work due to health and safety risks on 22 March 2014, Mr Robertson held a belief that the DI Project was unsafe because of the lack of first aiders on the site or a first aid procedure: a reasonable belief in light of:

(a) His personal observations and involvement in the response to the injured worker on 22 March 2014 – characterised by indecision by management, the absence of qualified first-aiders and an apparent lack of awareness of the DI Project first aid procedure;

(b) Mr Strong’s response to Mr Robertson’s questioning about the level of first aid coverage at the DI Project on 22 March 2014;

(c) Mr Robertson’s understanding that from the OHS committee meetings that Mr Kyle was to be contacted in all cases of an injury and in Mr Kyle’s absence from the site on the day;

(d) The DI Project is a high risk construction site;

(e) Mr Robertson’s previous experience with incidents on the DI Project which had caused him to direct the workers to cease work while health and safety issues were addressed;

(f) Mr Robertson’s awareness of the incident on the 1 March 2014 when an employee of a contractor was injured and had to drive himself to the first aid office at the front gate and his conversation with Mr Kyle, prior to the 22 March 2014, in which Mr Kyle had admitted not being aware of a contractor being on the site; and

(g) At all times on the 22 March 2014 Mr Robertson believed that the risk existed, he articulated precisely what was needed to remove the risk and he agreed that when the Applicant was able to deliver on the three most pressing of his four demands the workers would return to work.

[45] In relation to the direction to cease work on the 28 March 2014 which continued to the 31 March 2014, the CEPU submitted that by the conclusion of a meeting on 28 March 2014, Mr Robertson had been provided with facts sufficient for him to hold the view that the DI Project posed a risk to the workers and directed the workers to cease work because of this risk.

[46] Prior to directing the workers to cease work he had “formed the view that working on the DI Project posed an imminent risk to the workers in my work group”. Mr Robertson had a basis for his belief:

● One of his concerns on the 22 March 2014 had been that there was not a Level 3 qualified first aider at the DI Project. He was assured on that day and again on the 25 March 2014 that Mr Kyle was Level 3 qualified, addressing a significant safety concern which Mr Robertson held as it went to the level of first aid expertise at the DI Project and the stocking of the first aid room. On the 28 March 2014, Mr Robertson was told by Mr Kyle that he was not a Level 3 trained first aider, which “undermined the agreement which we had reached with the Company the previous Saturday.” Further, the problem and risk which Mr Robertson believed existed still existed almost a week after the incident.

● At the meeting on the 28th March 2014, Mr Robertson was told that the DI Project did not have a site specific first aid plan or a SMP and the last site evacuation had been done at a time well before the arrival of most of the workers on the DI Project had arrived.

[47] The CEPU submitted that a SMP for the DI Project was not provided to Mr Robertson and the draft risk assessment for first aid prepared by Mr Kyle was not brought to his attention at the time he directed the workers to cease work on the 28th or the 31st March 2014. At the time that the safety considerations were addressed and a written agreement reached, Mr Robertson and the workers returned to their normal duties at the DI Project.

[48] The CEPU sought the following determination:

“i. That Adam acted reasonably when he considered that an immediate risk to the health and safety of employees existed when he directed them to cease work from the period 22 March 2014 to 31 March 2014.

ii. That Adam acted in accordance with the terms of clause 15.1 of the Agreement when he consulted in all cases with the Applicant prior to issuing a direction to the workers to cease work between 22 to 31 March 2014.

iii. That the workers at all times remained ready and willing to perform alternative work if so directed by the Applicant.

iv. That the terms of clause 15.1 require that the employees are entitled to be paid for all wages which they would have otherwise earned from their labour, if not for them having to cease work due to the threat to their health and safety, during the period 22 March 2014 to 31 March 2014.

v. That the Applicant must make payment to the employees for the wages they would have been paid had they worked their rostered hours on the 22, 28 & 31 March 2014.” 24

Consideration

[49] The CEPU contention that its members employed on the DI Project should be paid for time lost on 22 March (4 hours at double time), 28 March (4 hours) and 31 March (4 hours) in 2014 relies entirely on clause 15.1(b) of the Agreement and the proposition that in each case work was not undertaken on the basis that Mr Robertson, the CEPU HSR on the DI Project reasonably considered that there existed an immediate risk to the health and safety of the CEPU members, which justified his direction to them that work on the DI Project cease.

[50] Although a similar authority for a HSR to direct the cessation of work is provided under relevant health and safety legislation 25 and clause 15.1(j) of the Agreement provides that “[a]t all times, employees must not work in situations where there is a genuine risk to their health and safety”, the CEPU claim for payment was made entirely on the basis of clause 15.1(b) of the Agreement.26

[51] The dispute, in this case, concerns the application of elements of clause 15.1(b) of the Agreement:

“Where the supervisor or the OHS Representative reasonably consider there is an immediate risk to the health and safety of any person they must immediately consult, and if the concern remains unresolved, they may, jointly or singularly, direct that work in that particular area, or by that particular method, cease (immediate risk means that there is a degree of danger which is likely to cause injury or disease before the risk can be eliminated).”

[52] There is no dispute that consultation between Mr Robertson and relevant management occurred about the relevant occupational health and safety issue, prior to the direction to cease work was given and, on each occasion, the relevant employees remained available to undertake other work, as required by the terms of clause 15.1(e) of the Agreement. The question for determination is whether, in respect of some or all of the stoppages of work, Mr Robertson, in his capacity as a HSR, reasonably considered there is an immediate risk to the health and safety of the CEPU members, with immediate risk being defined in clause 15.1(b) of the Agreement as “that there is a degree of danger which is likely to cause injury or disease before the risk can be eliminated”

[53] The question which arises is whether, when Mr Robertson directed CEPU members to cease work, Mr Robertson reasonably considered there to be an immediate risk to the health and safety of any person, with immediate risk defined as there being a degree of danger which is likely to cause injury or disease before the risk can be eliminated.

[54] The question is not whether there was, at the relevant time, an immediate risk to the health and safety of any person but whether Mr Robertson reasonably considered there to be such a risk. That question is to be answered on the basis of an objective assessment and in relation to each direction by Mr Robertson to cease work: on 22 March and again on 28 March 2014 (and potentially any relevant change in circumstances, once a direction to cease work had been given, such that the continuation of the direction, once given, was no longer supported by a reasonable consideration that an immediate risk to the health and safety of any person existed). The question is to be answered in the context of the specific circumstances in which clause 15(1)(b) of the Agreement was utilised.

General background to the management of health and safety of the DI Project.

[55] The DI Project is being undertaken in a fenced construction area with the perimeter of the Maryvale Mill site. The Maryvale Mill site is set up as a MHF under occupational health and safety laws. It therefore has a very extensive first aid operating system in place to deal with first aid response and injuries that occur on site. It includes a first aid centre on site, located at the Gatehouse, which is fully manned 24/7 by a response team of level 3 first aid officers” (the Maryvale First Aid Centre), “trained in rescue and there is a fully functioning ambulance on site”. 27

[56] Mr Guy, stated:

“The Maryvale Mill is classified as a Major Hazard Facility (MHF) under Victorian OHS legislation and its permission to operate is subject to WorkSafe Victoria approval of a ‘Safety Case’ prepared in accordance with the Occupational Health & Safety Regulations 2007. The current Maryvale Safety Case, which includes emergency provisions, was approved without conditions for five (5) years from July 2012.” 28

[57] In case of an injury, “. . . if the injured worker in unable to be transported or the injury is severe, an emergency telephone number, “333” is called and this goes through to the Maryvale First Aid Centre. The Maryvale First Aid Centre sends an ambulance and medical response team to attend the site of the injury”. 29 Otherwise the injured employee is transported to the Maryvale First Aid Centre.

[58] The arrangements for the DI Project were utilised in respect of a “major Pulp Mill Upgrade (the Pulp Mill Project) from 2006 to 2008”, a construction project of a larger scale and employing more construction workers 30 and similar to those utilised by BMC for work at other MHF in the area.31

[59] Prior to commencing the DI Project Plant, Mr Kyle prepared a SMP, “The SMP incorporated Australian Paper’s first aid response and first aid facilities”. 32 When prepared in January 2013 no risk assessment for the first aid on the DI Project site was undertaken because the site “was in the bounds of the Maryvale Mill, and they had their own first aid centre and rescue and emergency procedures in place for the entire – entire mill”.33

[60] The Di Project safety plan 34 included:

“OHS-033 Emergency Management Plan

As per Australian Paper-Maryvale Emergency Management Plan

MS-EP-2916.023

OHS-034 First Aid – Emergency Alert and Call Out

First Aid

Australian Paper has a 24 hour, 7 days a week first aid facility located at the main gate. Call 333 or 51360333 to access this facility (response to site) or attend the facility directly.

As per Australian Paper-Maryvale

First Aid – Emergency Alert and Call Out

MS-WP-2816.006

First Response

The Construction Site has a first aid room intended for use as a ‘first response’ facility complete with a first aid bag for use by the site first aiders. A list of accredited first aiders is posted in all brew sheds and in the first aid room.

The First Aiders on site will provide first response to injuries and call 333 or 51360333 for AP first aid assistance as required.”

[61] The First Response section was added by revision number 3 on 12 March 2014, as a result of the safety incident of 1 March 2014.

The Primaweld incident of 1 March 2014

[62] The 1 March 2014 incident is relevant to the extent that it raised for the first time flaws in the first aid procedure and response in Mr Robertson’s mind. 35 On the 1st March 2014 a (non-BMC) “contractor performing DI Plant construction work sustained injuries” to both hands. He drove himself to the Maryvale First Aid Centre and “received emergency treatment and was then transferred by ambulance to hospital”.36 Mr Groves attended the site that day or on a later day and expressed a concern over the lack of nominated “first-responders” on the DI Project,37 the ability to identify first aiders38 and the provision of a “rudimentary first aid kit” – the “grab bag”.39

[63] The evidence of Mr Guy is that these matters were readily acceded to but expressed a concern that the responsive action departed from the administration of first aid by Maryvale First Aid attendants within the Maryvale Mill site procedures. 40

The Safety Incident of 22 March 2014.

[64] It is against that background that the incident of 22 March 2014 occurred and Mr Robertson directed the BMC electrical workforce to cease work because of an immediate risk to the health and safety.

[65] The incident is described as follows in the BMC incident report: 41

“Employee Mark Cheffers (Bugsie) responded to the injury and went to seek assistance from DIP site management and had difficulty locating a company vehicle to transport [the injured worker] to the APM Medical Centre (Site First Aid Procedure), they used another contractors vehicle and took [the injured worker] to the APM Medical Centre where his wound was dressed and he was transported to Latrobe Hospital casualty and received 3 stiches [sic] to the cut. Returned to work shortly after being attended to.”

[66] Mr Robertson was involved in the response to the injury shortly after it occurred, attending the DI Project first aid room to which the injured worker was taken. Managers Mr A Crowe, Mr B Herremen, Mr M Cheffers and Mr Strong were in attendance. 42 Mr Robertson observed a “reasonable deep cut” on the injured worker’s wrist.43 He noted a lot of “indecision” on the part of the Managers.44 “Eventually after about five minutes one of the Managers decided” that the injured worker “needed to be taken to the first aid room at the front gate to the site”.45 “BMC didn’t have a vehicle available” and Mr Robertson arranged to borrow a vehicle from another contracting company46 and drove the injured worker to the Maryvale First Aid Centre. Mr Robertson formed the view that no one in attendance in the first aid room “had even a basic understanding of what the DI Project first aid procedure was”.47 Mr Robertson formed a view that it was “unsafe to continue work as there were no first aiders on the site”.48

[67] BMC and Australian Paper Managers agreed in their evidence that:

● If somebody is injured, it is important to have a first aider there, to make an assessment of whether it is a serious injury or an emergency injury or a lesser injury; 49

● It is not satisfactory that where an injury occurs in a “high-risk workplace” there is “nobody who is first-aid qualified” in attendance; 50

● None of the persons who attended the injured worker on 22 March 2014 had a “current first aid qualification” 51 and the absence of a first aider to attend to the person at the construction site was of concern;52

● The confusion as to the vehicles was problematic; 53 and

● The response to the injury was “slowly managed”. 54

[68] Mr Robertson raised a number of his concerns with Managers about the first aid response to the injury:

● The absence of first aiders on the DI Project site; 55

● The absence of knowledge as to the identity of the first aiders on the site if they did not work for Australian Paper; 56

● The absence of an Australian Paper Safety Advisor on the site; 57

● The identification of the Level 2 first aiders by photographs; 58

● The provision of “green hats or stickers to be supplied to the first aiders so that they were easily identifiable in an emergency”; 59 and

● “A Level 3 first aider to be stationed in the first aid room within the DIP”. 60

[69] A central factor in the decision by Mr Robertson in his decision to direct that his members cease work on the basis of an immediate risk to the health and safety was the absence of first aid employees on the DI Project site (and means of identifying such persons).

[70] Following the cessation of work on 22 March 2014, a meeting of Managers and HSRs was conducted at which Mr Robertson stated that there was “not adequate first aid qualified personnel” on the DI Project. 61 He also raised the absence of a risk assessment to “demonstrate that the safety procedures which had been written for the Mill would be adequate for the DIP which was a high risk construction site”.62

[71] Mr Robertson advised that four matters needed to be resolved in order for workers to return to work:

(a) “There must be two first aiders from each work group on the DI Project so that there would be seven in total”;

(b) “We wanted green hats or stickers to be supplied to the first aiders so that they were easily identifiable in an emergency”;

(c) “A Level 3 first aider to be stationed in the first aid room within the DIP”; and

(d) “Photos of the first aiders to be placed on the wall in each of the DIP brew rooms so that people knew who they were”.  63

[72] Mr Robertson identified the first three issues as creating an “immediate risk to safety” and requiring immediate resolution. 64

[73] The Managers told the HSRs that the things asked for would be done but could not be given effect on the day and advised that Mr Kyle “was a Level 3 first aider”. 65 At that point workers were directed by Mr Strong to go home.66

[74] Mr Strong understood that seven employees working on the DI Project site had indicated that they held Level 2 first aid qualifications in their CVs. 67 He “offered to bring the first aiders in to the office to get them to confirm that they actually held a certificate in first aid and then offered to show those people to the workgroup and then also to show those people where the first aid facility was inside of the DIP plant”.68 Mr Strong also identified Mr Peter Thompson – BMC Supervisor to be a Level 3 qualified first aider and offered that he would “stand up in front of the workgroup and say, I’m Peter Thompson. I'm a level 3 first aider”69 Mr Strong was not aware, at the time whether they held current first aid qualifications and did not believe they needed to at the time.70

[75] At the conclusion of the meeting, workers were directed by Mr Strong “to go home”. 71

[76] Mr Kyle undertook a risk assessment following the incidents of 1 and 22 March 2014. It showed very little difference between “response from a first aider onsite or from calling 333” to obtain assistance from the Maryvale First Aid Centre. 72

[77] It is clear from the evidence that the response plan in the case of an injury to an electrical employee on the DI project site did not include first aiders at the DI Project at the time of the incident on 22 March 2014. In respect of the DI Project, the first aid response was based on first aid attendants from the Maryvale First Aid Centre. 73 The first aid facilities and the emergency response team for Maryvale were used to service construction projects.74 Mr Jones maintained that this remained an appropriate approach during the hearing,75 notwithstanding a contrary view expressed by Mr Groves on 28 March 201476 and the amendment of the DI Project SMP on 12 March 2014. Mr Guy remained of the view that access to first aid should only be available through the Maryvale First Aid Centre.77 The DI Project SMP78 initially made no provision for first aiders on the DI Project site, with first aid to be rendered through the Maryvale First Aid Centre. The amendment of the DI Project SMP to provide for first aiders on the DI Project site, their identification to the workforce and a “grab bag” on the DI Project site occurred on 12 March 2014, following the 1 March 2014 incident and the input of the WorkSafe Inspector.

[78] Notwithstanding the concern about the lack of “first responders” on the DI Project expressed by Mr Groves immediately following the 1 March 2014 incident and the amendment to the DI Project SMP on 12 March 2014 no first aiders on the DI Project had been appointed or identified by 22 March 2014. Whilst BMC was aware of employees who had indicated that they held first aid qualifications on their CVs, no employee had been appointed and trained under clause 25.6 of the Agreement to render first aid. 79 It was not until Tuesday, 25 March 2014 that employees were added to the Electrical Crew first aiders to the DI Project site list.80

[79] It is noted that the BMC incident report 81 in relation to the 1 March 2014 incident included as a “significant contributing factor” even “confusion of exact process for first aid treatment on-site after the incident”, even though that confusion did not contribute to the occurrence of the incident and the injury but to a less than adequate response to the incident and injury. On the evidence, confusion was also evident on 22 March 2014.

Conclusion in relation to the direction of Mr Robertson to cease work on 22 March 2014 and its continued operation for the remainder of 22 March 2014

[80] The question to be answered is not whether there was an immediate risk to the health and safety of CEPU members in the circumstances of 22 March 2014 but whether Mr Robertson reasonably considered there to be such a risk in the sense that there was a degree of danger which is likely to cause injury or disease before the risk can be eliminated. Mr Robertson perceived that and acted on his perception that on 22 March 2014 there were no adequate first aid qualified personnel on the DI Project 82 in order to provide an adequate first aid response.

[81] I find that to have been reasonably based in the circumstances where there were no persons appointed to and known to be providers of first aid to injured electrical workers at the DI Project site. The reasonableness of Mr Robertson’s consideration that the absence of first aiders at the DI Project site raised immediate threat to health and safety is supported by the “concern over the lack of nominated first-responders”, and the requirement for them on the DI Project expressed by Mr Groves in relation to the 1 March and 22 March 2014 incidents. 83 The inadequacies of the responses to the safety incidents at the site on 1 March and 22 March 2014 were related to the absence of immediate first aiders to participate in the immediate response and reinforced the reasonableness of Mr Robertson’s consideration.

[82] On 22 March 2014, there was no immediate risk in the sense of workplace conditions or practices which created an immediate risk of injury to CEPU members. 84 However, the concern of Mr Robertson was not about a particular issue likely to cause injury but about deficiencies in the processes in place to deal with any injury which might arise in a high risk workplace85 which created an immediate risk to the health and safety of an injured worker as a result of an inadequate response and treatment of an injured worker. That risk was immediate and arose from the reasonably based concern about the absence of persons appointed to render assistance as first aid employees at the DI Project site.

[83] There can be no suggestion that the direction to cease work on 22 March 2014 and the failure to remove the direction on that day was part of an industrial campaign to secure payment for the time following the cessation of work on that day. There can be no suggestion that any view offered or not offered by Mr Groves on 28 March 2014 informed Mr Robertson’s reasonable consideration of his direction under clause 15.1(b) of the Agreement.

[84] I find that, viewed objectively in the circumstances of 22 March 2014, Mr Robertson’s direction as a HSR to the electrical workforce on 22 March 2014 and his failure to reverse that direction on the day reflected a reasonable consideration on his part that there was an immediate risk to the health and safety of the electrical workforce.

[85] I find that BMC should pay the employees for unpaid scheduled overtime hours on that day – four hours and double time.

The cessation of the direction by Mr Robertson to cease work on Tuesday, 25 March 2014

[86] The electrical workforce returned to work on Tuesday, 25 March 2014 following a rostered day off on Monday, 24 March 2014. Following a discussion about progress of the company, Mr Robertson was satisfied that BMC had addressed the matters it raised on Saturday, 22 March 2014 to the extent that the “critical issue” of having the “first aiders at the site” had been achieved and believe that Mr Kyle had been identified as the Level 3 first aider in charge of the first aid room. Mr Robertson was “willing to wait for the outstanding issues to be completed”. 86

[87] Work continued on Wednesday, 26 and Thursday, 27 March 2014 although no electrician was available to undertake the regular overtime scheduled on those days.

The further direction by Mr Robertson to cease work on Friday 28 March 2014

[88] On Thursday, 27 March 2014 Mr Wilkinson “convened another extraordinary site safety committee meeting” to discuss the safety issues which had arisen from the 22 March 2014 incident. His evidence is that the HSRs reported “that they believed that AP was in breach of the OH&S Act and asked for an effective emergency response plan and a dedicated level 3 first aider, non-working, and at that point of time we were informed from the HSRs that they did not accept that the level 3 first-aid person provided by AP at the front gate was adequate”. 87 Mr Robertson’s recollection of the meeting focussed on the disclosure, at the meeting, that Mr Kyle “was not a Level 3 first aider”, which surprised him in light of assurances on Saturday, 22 March 2014 that he was.88 Notwithstanding this advice at the meeting, Mr Robertson “did not direct any of the workers in my work group to cease work”.89

[89] The electricians continued work on 28 March 2014 until around 11.00 a.m. when Mr Robertson again directed the electrical workers to cease work. 90

[90] The direction by Mr Robertson to again cease work followed a further meeting of the OHS Committee on 28 March 2014. The direction was given because Mr Robertson perceived that there was an immediate threat to health and safety because:

● “no site specific safety plan existed”; 91

● “no risk assessment of the DIP site had ever been conducted”; 92

● the disclosure that Mr Kyle was not a Level 3 first aider; 93

● “there was not a properly maintained first aid facility”; 94 and

● the failure to undertake a site evacuation since December 2013. 95

[91] Mr Robertson held the view that “only a Level 3 could properly manage the first aid room at the DIP so that we had confidence that if an incident occurred it would have the equipment to deal it”. 96

[92] Mr Robertson advised Mr Strong that he would remove the employees off the project because the site had no safety plan and this posed “an immediate risk to BMC electricians” 97 and because “Australian Paper was not providing a safe workplace”.98

[93] The ultimate resolution of the health and safety issues, 99 which resulted in the return to work on 31 March 2014 involved number of outcomes relevant to the concerns held by Mr Robertson:

● A review of first aid arrangements:

• The relocation of the first aid room;



• The training of the gate person to Level 3 first aid qualifications;



• A interim Level 3 first aider pending the completion of that training; and



• Ensuring that the first aid room was properly equipped

● A review of the DI Project SMP by an external consultant, focussing of rescue and evacuation plans and communication to the workforce; and

● The conduct of an emergency evacuation in that week, to be assessed by the OHS Committee

[94] The HSRs, including Mr Robertson, were content to have the employees return to work on the basis of this agreement, which implies that they were satisfied that there was no longer an immediate threat to health and safety on the DI Project site.

Conclusion in relation to the direction of Mr Robertson to cease work on 28 March and its continued operation until 31 March 2014

[95] On the evidence before me, it is not clear that Mr Robertson met his obligation under clause 15(1)(b) of the Agreement to consult with BMC about his concern that there was an immediate risk to the health and safety of electrical employees on 31 March 2014 before directing that work cease. Mr Robertson reached a view that due to a number of considerations, set out above, arising out of the OHS Committee meeting of 28 March 2014 that there was an immediate risk to health and safety. However, it is not apparent from the evidence that he conveyed the basis of those concerns to BMC, with a view to resolving them, prior to advising Mr Strong that he intended to direct the employees to cease work on the basis of those concerns.

[96] Those concerns included the absence of a DI Project site specific safety plan and the absence of a risk assessment of the DI Project. In fact there was a DI Project safety plan, which incorporated the Maryvale Mill site safety plan. During the OHS Committee meeting Mr Wilkinson advised that the Maryvale Mill site safety plans covered the DI Project. 100 The DI Project safety plan had been in place since January 2013101 and, as a result of the developments since 22 March 2014, that plan had been supplemented by the provision of DI Project first aid responders. Further a risk assessment had been finalised on 28 March 2014, although it was not presented to the meeting of 28 March 2014.102 Consultation about these concerns would have resulted in advice as to the existence of the DI Project safety plan and the risk assessment and, if requested, the provision of them to Mr Robertson.

[97] In any case, I am not satisfied that Mr Robertson’s direction as a HSR to the electrical workforce on 28 March 2014 and its continued operation until the return to work on 31 March 2014 reflected a reasonable consideration on his part that there was an immediate risk to the health and safety of the electrical workforce. Whilst Mr Robertson held concerns about the safety arrangements, which were addressed in the 31 March 2014 agreement, I am not persuaded that they could be reasonably held to be concerns about an immediate risk.

[98] The HSRs, including Mr Robertson were satisfied that there was no immediate threat to health and safety in light of the 31 March 2014 agreement. Relevantly, having regard to the concerns of Mr Robertson on 28 March 2014, it provided for a review of the DI Project SMP by an external consultant but with work resuming during the review, implying that there was no concern about an immediate threat to health and safety in relation to the adequacy of the plan. Further, the HSRs were content to have work undertaken pending an emergency evacuation in that week, so that the delay since the previous evacuation could not be said to support an immediate threat to health and safety, warranting the cessation of work.

[99] The most immediate change arising from the 31 March 2014 agreement was the review of first aid arrangements. The issues addressed in that regard – the location of the first aid room, the availability of a Level 3 first aider and an assessment of whether the first aid room was properly equipped do not support a conclusion that these issues, objectively viewed, founded a reasonable consideration that an immediate threat to health and safety existed. The absence of nominated DI Project Plant first aid responders had been addressed by supplementation of the DI Project safety plan by the provision of DI Project first aid responders since 22 March 2014. Whilst the absence of a Level 3 first aider was less than adequate, it did not, in the context of the DI Project safety plan and the availability DI Project first aid responders, support a reasonably based view that there was an immediate risk to the health and safety of the electrical employees.

[100] Although it is unnecessary to do so in light of my conclusion that Mr Robertson’s 28 March 2014 direction did not reflect a reasonable consideration on his part that there was an immediate risk to the health and safety of the electrical workforce, I will deal briefly with the BMC submissions in relation to the direction of Mr Robertson to cease work being an industrial tactic to pressure BMC into paying for time lost of 22 March 2014 and the outcome of Mr Grove’s visit to the DI Project site on 28 March 2014.

[101] BMC contended that Mr Robertson’s 28 March 2014 direction to cease work was motivated to pressure it to make payment for the time not worked on Saturday, 22 March 2014. The evidence is that Mr Robertson was motivated by a genuine concern about an immediate threat to the health and safety of his members associated with what he believed to be deficiencies in the safety and first aid procedures at the DI Project. Once those concerns were met, through the agreement of 31 March 2014, he rescinded his direction to cease work. Neither issues were raised which resulted in the agreement or the agreement itself involved the issue of payment for lost time.

[102] Whilst a claim was made by the CEPU for payment by the delegate 103 and by Mr Mooney after the 31 March 2014 agreement had been concluded104 and the non-working of overtime on 26 and 27 March 2014 appear to be related to that claim, the evidence does not establish the BMC proposition that the 28 March 2014 direction to cease work by Mr Robertson was a ruse to pressure BMC to make payment for time lost due to his directions under clause 15(1)(b) of the Agreement, rather than concerns about health and safety.

[103] Mr Groves attended the DI Project site on the afternoon of 28 March 2014 at the request of Mr P Clark – CFMEU official, to enquire into a direction to cease work by HSRs under s.74 of the OHS Act. He met with Mr Jones, Mr Pease, Mr Thompson and Mr Wilkinson. In the meeting, “Mr Groves stated that the DIP site was a construction site and was different to AP site proper and therefore should comply with the WorkSafe construction code for first aid which means provision of a properly equipped first-aid room and there should be a level 3 first aider available”. 105 Mr Jones asked “Do you think there is an imminent safety risk on the site and is it okay to continue to work?”,106 but did not receive a direct answer.107 The fact that Mr Groves did not issue a Prohibition Notice indicates that Mr Groves did not believe that there was an imminent risk which required the cessation of work at the time of his visit. However, it does not directly go to the question of whether Mr Robertson reasonably considered there to be an immediate risk to the health and safety of CEPU members. Quite properly, Mr Groves declined to make a ruling in relation to payment for time lost,108 that being the matter in dispute in relation to, in the current case, the operation of clause 15(1)(b) of the Agreement.

DETERMINATION

● Mr Robertson’s 22 March 2014 direction as a HSR to the electrical workforce on 22 March 2014 and his failure to reverse that direction on the day reflected a reasonable consideration on his part that there was an immediate risk to the health and safety of the electrical workforce;

● The electrical workforce remained available on 22 March 2014 to be relocated to alternative safe areas (if they were available) or other job sites; and

● BMC should pay the electrical employees for the scheduled overtime hours on 22 March 2014, which was not worked - four hours and double time.

SENIOR DEPUTY PRESIDENT

Appearances:

M Paynter on behalf of the Applicant.

K Reidy on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

June 18 and 19.

Final written submissions:

Applicant, 5 July 2014.

Respondent, 25 July 2014.

 1   AE885759.

 2   And for employees ordinarily based in Victoria, at any location at which the Employee is temporarily required to perform work outside Victoria.

 3   Patrick’s Projects Pty Ltd v Maritime Union of Australia, [2012] FWA 5614, at para 59 and Macquarie Dictionary meaning.

 4   Rheem - Rydalmere Plant Industrial Action Order 2002, PR929970, as cited in Monadelphous Engineering Associates Pty Ltd v Australian Workers' Union & Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, PR934966 at para 17.

 5   BMC submissions at para 13.

 6   BMC submissions at para 16.

 7   BMC submissions at para 18.

 8   Transcript, at para 711.

 9   Transcript, at paras 690 and 692.

 10 [2009] FCA 223.

 11 [2009] FCA 223, at para 101.

 12   CEPU submissions at para 16.

 13   CEPU submissions at para 17.

 14   ING Funds Management Ltd v ANZ Nominees Ltd, [2009] NSWSC 243, at paras 102–105.

 15 [2009] FCA 1092.

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

 17   Labor Council of New South Wales v Axis Metal Roofing, at para 111, cited in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union at para 38.

 18   Labor Council of New South Wales v Axis Metal Roofing, at para 113.

 19   Labor Council of New South Wales v Axis Metal Roofing, at para 112.

 20   Respondent Amended Final submissions dated 25 July 2014, at para 40.

 21 See s.74(1)(b) of the Occupational Health and Safety Act 2004 (Vic).

 22 See s.36(1)(g)(i) of the Building and Construction Industry Improvement Act 2005 (Cth).

 23 [2001] FCA 1758, at paras 8–10.

 24   Respondent Amended Final submissions dated 25 July 2014, at para 61.

 25 Section 74 of the Occupational Health and Safety Act 2004 (Vic).

 26   Transcript, at paras 413, 417 and 2069–2074.

 27   Exhibit BMC 16, at para 10 and BMC 5, at para 5.

 28   Exhibit BMC 5, at para 10.

 29   Exhibit BMC 7, at para 10.

 30   Exhibit BMC 5, at para 8 and Transcript, at paras 693–695.

 31   Transcript, at para 1506–1507.

 32   Exhibit BMC 7, at para 6, Exhibit BMC 5, at para 8 and Transcript, at para 300.

 33   Transcript, at para 868.

 34   Exhibit BMC 8.

 35   Exhibit CEPU 4, at para 26.

 36   Exhibit BMC 5, at para 14.

 37   Exhibit BMC 5, at para 14, Transcript, at paras 714, 831 and 912.

 38   Exhibit BMC 5, at para 14 and Transcript, at para 714.

 39   Exhibit BMC 5, at para 14 and Transcript, at para 1642.

 40   Exhibit BMC 5, at para 14.

 41   Exhibit CEPU 6.

 42   Exhibit CEPU 4, at para 35.

 43   Exhibit CEPU 4, at para 35

 44   Exhibit CEPU 4, at para 36.

 45   Exhibit CEPU 4, at para 36.

 46   Exhibit CEPU 4, at para 36.

 47   Exhibit CEPU 4, at para 37.

 48   Exhibit CEPU 4, at para 45.

 49   Transcript, at para 1562.

 50   Transcript, at para 2004.

 51   Transcript, at para 1564.

 52   Transcript, at para 1577.

 53   Transcript, at para 1574.

 54   Transcript, at para 899.

 55   Exhibit CEPU 4, at para 43 and 45, Exhibit BMC 10, at para 11.

 56   Transcript, at para 1265.

 57   Exhibit BMC 10, at paras 7 and 11.

 58   Transcript, at para 1355.

 59   Exhibit CEPU 4, at para 51.

 60   Exhibit CEPU 4, at para 51.

 61   Exhibit CEPU 4, at para 50.

 62   Exhibit CEPU 4, at para 50.

 63   Exhibit CEPU 4, at para 51.

 64   Exhibit CEPU 4, at para 52.

 65   Exhibit CEPU 4, at para 55.

 66   Exhibit CEPU 4, at para 55.

 67   Transcript, at paras 1269, 1350 and 1416.

 68   Transcript, at para 1268.

 69   Transcript, at para 614.

 70   Transcript, at para 1452.

 71   Exhibit CEPU 4, at para 55.

 72   Transcript, at paras 871 and 880.

 73   Exhibit BMC 7, at para 15.

 74   Transcript, at para 739.

 75   Transcript, at paras 1973 and 1995.

 76   Exhibit BMC 14, at para 5 and Transcript, at para 1975.

 77   Transcript, at para 811.

 78   Exhibit BMC 8.

 79   Transcript, at paras1425–1429.

 80   Exhibit BMC 13.

 81   Exhibit CEPU 6.

 82   Exhibit CEPU 4, at para 50.

 83   Exhibit BMC 5, at para 14, and Exhibit BMC 14, at para 6.6 and Transcript, at paras 714, 831 and 912.

 84   Transcript, at paras 501, 505, 511, 515 and 1698.

 85   Transcript, at para 505.

 86   Exhibit CEPU 4, at para 57 and Transcript, at paras 534 and 660.

 87   Transcript, at para 1686.

 88   Exhibit CEPU 4, at paras 60–61 and Transcript, at para 301.

 89   Exhibit CEPU 4, at para 62 and Transcript, at paras 304–305.

 90   Exhibit BMC 10, at para 34 and Exhibit CEPU 2, at para 17 and Transcript at para 1133.

 91   Exhibit CEPU 4, at paras 65 and 68 and Transcript, at para 555.

 92   Exhibit CEPU 4, at para 68.

 93   Exhibit CEPU 4, at para 65.

 94   Exhibit CEPU 4, at para 68.

 95   Exhibit CEPU 4, at para 65.

 96   Exhibit CEPU 4, at para 67 and Transcript, at para 301.

 97   Exhibit CEPU 2, at para 17.

 98   Exhibit CEPU 4, at para 68.

 99   Exhibit CEPU 3.

 100   Exhibit CEPU 4, at para 66.

 101   Exhibit BMC 8.

 102   Transcript, at para 1035.

 103   Transcript, at para 530.

 104   Exhibit CEPU 2, at para 25.

 105   Exhibit BMC 14, at para 6.6 and Transcript, at paras 1973–1982.

 106   Transcript, at para 1967.

 107   Transcript, at para 1963.

 108   Transcript, paras 1715–1717.

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