Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Lce Queensland Pty Ltd

[2013] FWC 2014

[2013] FWC 2014

FAIR WORK COMMISSION

DECISION

Workplace Relations Act 1996
s.709 - Application to FWC to have a dispute resolution process conducted (Div 5)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
LCE Queensland Pty Ltd
(DR2012/161)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 3 APRIL 2013

Summary: dispute over payment when work not performed - whether work not performed for reason of imminent health and safety risk - whether genuine - nature of reasonable belief - whether imminent - whether response proportionate.

[1] This matter concerns a dispute application (ostensibly DR2012/161) which was lodged on 10 January 2012 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) in respect of a decision taken by the employer, LCE Queensland Pty Ltd (“LCE”) to refuse to pay to their employees their ordinary rate of pay (plus other relevant allowances) for a period of four hours on Monday 26 September 2011.

[2] The matter which is now the agreed subject for deliberation is the following question:

Did employees of LCE Queensland who did not perform their ordinary duties on 26 September 2011 nonetheless have an entitlement to their ordinary wages and other payments under the terms of the LCE Queensland Pty Ltd and CEPU Electrical Division Queensland Union Enterprise Agreement 2009 - 2012?

[3] There is no contest between the parties that the relevant steps within the dispute resolution clause under the LCE Queensland Pty Ltd and CEPU Electrical Division Queensland Union Enterprise Agreement 2009 - 2012 (“the Agreement”) have been complied with and that the parties have conferred upon the Fair Work Commission (“the Commission”) the power to take steps to resolve the dispute, arising as it does from the terms of the Agreement. Notwithstanding any jurisdictional question as to the standing of the Agreement, the parties have agreed that I should publish the outcome of these proceedings in the ordinary manner (and not by provision of a copy to the parties only).

Background

[4] The elementary argument (as re-stated by Counsel for LCE) is that unless the employees were able to demonstrate a genuine, reasonable concern that their health and safety was at imminent risk, and that the withdrawal of their labour on 26 September 2011 was proportionate to that reasonable concern, they would be taken to have been absent from their duties pursuant to clause 10(f) of the Agreement. It is to this matter, re-stated, that the parties have sought my view.

[5] By way of background, clause 10(f) of the Agreement provides as follows:

10(f) Amount to be Deducted from Average Days Pay - An employee whose ordinary hours are arranged in accordance with clause 5.1 (Hours of Work) and who is paid wages in accordance with clause 10.1 (Employees Wages) and is absent from duty (other than on annual leave, long service leave, public holidays, paid sick leave, workers compensation, bereavement leave, or paid family leave), shall, for each day the employee is absent, lose average pay for that day by dividing the employee's average weekly rate by 5.

An employee who is absent from duty for part of a day, other than on paid leave, will lose pay for each hour, or part thereof, the employee is absent from duty at an hourly rate calculated by dividing the employee’s average daily pay rate by 7.0 where the employee is employed in the Coal Work Division and 7.2 where the employee is employed in other than the Coal Work Division.

[6] The essence of the dispute is a refusal by the employer to make full payments to its employees during a period in which the employees claim that they were unable to perform work at the Gold Coast University Hospital site (“the site”) because there was a reasonable concern on the part of the employees about an imminent risk to their health or safety.

[7] The employer claims that the circumstances were not such that the employees had such a reasonable concern or that the there was an imminent risk to their health and safety, and that the work was able to be performed safely elsewhere on the site and at the time. The employer also contends that the dispute occurred over a one and a half day period however it only refused to pay 4 hours of the total period of work in which duties were not performed over that period (which was in effect 1.5 days approximately).

[8] It appears that employees employed to work on the GCUH site were concerned about the level of dust in their working environment. The dust appears to have emanated from the Central Services Building (“CSB”), at least to some extent, but mostly so from levels two, three and four of the western and southern In-Patient Unit (“IPU”) buildings, where a group of contractors were cutting into gypsum wall panels (the product is known as Aquatough) without using the necessary control measures.

[9] The total floor area of the site is some 148,000 m². The areas affected by the build up in dust (which seems to be the IPU buildings in particular) was restricted to some 15,000 m².

[10] The concerns about dust on site appear to have emerged for the first time at the start of the week beginning 19 September 2011, which was the day on which the site CEPU delegate Mr Billy Bijoux contacted Mr Beau Malone (the CEPU organiser) about his concerns. There is no contest that the dust issue had been raised by the CEPU in that prior week.

[11] The gypsum wall panel product was an imported product and its use was novel on the site. That too is unchallenged.

[12] The CEPU contended that the wall panels presented potential health risks to the workforce. On examination of the Material Safety Data Sheet (“MSDS”), the CEPU formed a view that during normal use the product was not hazardous although it was recommended that for the purposes of handling procedures dust generation should be minimised and those handling the product should avoid breathing the dust.

[13] According to the CEPU, through the evidence of Mr Beau Malone, the MSDS notes that dust generated in the course of handling the wall panel:

“may irritate eyes, skin, nose, throat and upper respiratory tract. Persons subject to large amounts of this dust will be forced to leave the area because of nuisance conditions such as coughing, sneezing and nasal irritation. Laboured breathing may occur after excessive inhalation.”

[14] The recommended method of cutting, at least as claimed by the CEPU, is by scoring and snapping the panel board to minimise dust generation or by using a wet or vacuum saw.

[15] But on this occasion, and this was the nub of the problem, the contractors who were cutting the wall panels were using a power saw which created a very considerable volume of dust, it would appear.

[16] The MSDS also states that the wall panel contained crystalline silica in low amounts, but that:

“prolonged and repeated exposure to airborne free respirable crystalline silica can result in lung diseases (i.e silicosis) and/or lung cancer.”

[17] Mr Malone’s evidence was also that the MSDS stated that exposure to the dust may “aggravate pre-existing upper respiratory and lung diseases, including, but not limited to, bronchitis, emphysema and asthma”.

[18] It is contended that the employees raised their concerns with their employer but no steps were taken to implement any control measures to otherwise remove the dust on-site.

[19] The concerns thereafter were escalated to the elected Workplace Health and Safety Representatives (“WHSRs”) who referred the matter to the Site Safety Committee (“SSC”) in accordance with the Workplace Health and Safety Act 2011 (“WHSA 2011”). According to Mr Malone this occurred on Friday, 23 September 2011.

[20] It is contended that the Principal Contractor, Lend Lease, which is said to be the Person Conducting the Business or Undertaking (“PCBU”) for purposes of the WHSA 2011 took no action to address the issue of the presence of dust on the site. According to Mr Malone, the SSC representatives approached Lend Lease later in the day on 23 September 2011 about the concerns.

[21] On 26 September 2011 at around 7:30AM the SSC met once more but was unable to reach a unanimous view as to the dimensions of the safety issue.

[22] A site-wide meeting was then convened at around 9AM that day. At that time Lend Lease, the Principal Contractor, advised the materials were not hazardous and employees that the contaminated levels in the IPU South and IPU West (and arguably an area within the CSB) were closed for cleanup or decontamination operations, but work elsewhere across the site could be performed.

[23] The LCE employees were of the view that the advice from Lend Lease was not well founded. This was because the SSC had not been able to reach a position in relation to the effect on health of the dust and that the dust was evident in their work areas (and beyond the areas closed).

[24] Consequently, through their CEPU representative, they communicated their intention not to resume work until they were properly advised as to the safety risk associated with the dust and were redeployed to areas that were dust free.

[25] The employees were not therefore redeployed to other areas as they had generally indicated a refusal to return to work. I add that in their view, there was no area they had identified in which they were normally performing duties that were unaffected by the dust.

[26] It is argued that the SSC had been unable to determine whether or not the site was safe for employees to work, and that because of this an authorised person (Mr Warwick Holmes) of Workplace Health and Safety Queensland (“WHSQ”) attended the site pursuant to section 82 of the WHSA 2011 (on 27 September 2011, the following day) to determine the issues.

[27] It is said by the CEPU that Mr Holmes concluded that the level of dust on the site was unacceptable and that the control measures deployed were inadequate. The activity of cutting the gypsum wall panels was thereafter removed from site.

[28] The CEPU contended that it was then determined that it was safe to work on site in all areas other than the areas that were specifically identified as being contaminated. They are the levels identified with the above.

[29] The CEPU further contended that once this conclusion was reached, and it was conveyed directly to the LCE employees, they returned to work to perform their duties in areas other than the contaminated areas.

Consideration

[30] On 26 September 2011 these were the following circumstances at the site:

[31] There was an accumulation of dust in particular areas such as specified floors on the two IPU buildings. Dust had also moved through the wider building complex owing to wind and its then cavernous nature. The dust had been present since the prior week.

[32] The dust arose from the mechanical cutting of a new gypsum wall panel product by US company, Powerscope, called ‘Aquatough’.

[33] The presence of that product was novel on the site.

[34] Electricians work variously across the site, including at heights where dust settles in such areas as cable trays. Electricians appear to work often in close facial proximity to accumulated dust.

[35] The MSDS that was relied upon stated that the dust generated during the handling of the product may irritate eyes, skin, nose, throat, and upper respiratory tract et cetera. I have quoted this particular hazard identification in full above.

[36] Other hazards identified by the MSDS are as follows:

“Dust can cause mechanical irritation of eyes. If burning, redness, itching, pain or other symptoms persist or developed, consultant physician.”

[37] This hazard warning appears under the heading ‘Acute’.

[38] Under the heading ‘Chronic”, the MSDS reads as follows:

“The concentration of respirable crystalline silica measured in bulk samples [...] was less than 0.1 Wt%. Industrial hygiene testing, [...] Did not detect respirable crystalline silica in dust created during the cutting of [the product] by both the recommended score and snap technique and with the use of a power saw in a 10’ x 10’ room.

Panels do not release respirable dust in their installed state and therefore do not present any known health hazards when installed and properly maintained. Prolonged and repeated exposure to airborne free respirable crystalline silica can result in lung disease (i.e silicosis) and/or lung cancer. The development of silicosis may increase the risks of additional health effects. The risk of developing silicosis is dependent upon the exposure intensity and duration.”

[39] Under the heading “carcinogenicity classification”, the MSDS records that:

“all substances listed are associated with the nature of the raw materials used in the manufacture of this product and are not independent components of the product formulation. All substances, if present, are at levels well below regulatory limits.”

[40] The MSDS then sets out various first aid measures.

[41] Under the heading “medical conditions which may be aggravated”, the MSDS lists:

“pre-existing upper respiratory and lung diseases such as, but not limited to, bronchitis, emphysema and asthma. Pre-existing skin diseases such as, but not limited to, rashes and dermatitis.”

[42] Under the heading “Handling”, the MSDS states that users must:

“Avoid dust contact with eyes. Wear the appropriate eye protection against the dust. Minimise dust generation and accumulation. Avoid breathing dust. Wear appropriate respiratory protection against dust in poorly ventilated areas and if the [prescribed exposure thresholds which are set it in milligrams per cubic metre] is exceeded. Use good safety and industrial hygiene practices.”

[43] Under the heading “Engineering Controls”, the MSDS states that it is necessary to:

“provide ventilation sufficient to control airborne dust levels if the user operations generate airborne dust, use ventilation to keep dust concentrations below permissible exposure limits. Where general ventilation is inadequate, used processing closures, local exhaust ventilation, or other engineering controls to control dust levels below permissible exposure limits.”

[44] Under the heading “respiratory protection”, the MSDS reads in part:

“Wear [an approved] respirator equipped with particular passages when dusty in poorly ventilated areas and if the [airborne concentration threshold] is exceeded.”

[45] Under the heading “Other Personal Protective Equipment”, the MSDS states that users should:

“wear eye protection, safety glasses or goggles, to avoid possible eye contact, and that gloves and protective clothing to prevent repeated or prolonged skin contact should be used.”

[46] Under the heading “chronic effects/carcinogenicity”, the datasheet provides as follows:

“The concentration of respirable crystalline silica measured in bulk samples [of the product] was less than 0.1Wt%. Industrial hygiene testing [....] did not detect respirable crystalline silica in dust created during the cutting of [the product] by both the recommended score and snap technique and with the use of a power saw in a 10’ x 10’ room.”

[47] On its face the MSDS is replete with cautionary advice to users on the basis of a particular range of potential health implications, particularly if the concentrations of airborne dust are exceeded.

[48] No person on site at the time professed any technical expertise or professional capacity to convey a relative understanding of the contents of the MSDS. No technical or external expertise was introduced to discussions on 26 September 2011 to inform the debate that had emerged about the safety of the dust.

[49] Over the course of 26 September 2011, the only technical information at hand was the MSDS itself and the views conveyed by the Principal Contractor, Lend Lease at the mid morning meeting.

[50] The SSC had met that day to deliberate on the implications of the dust and had before it the MSDS. It had not come to a conclusion as to health and safety risk posed by the dust, it seems. That is, its position was indeterminate as no agreed position was reached. This in part may have been because the elected representatives and the WHSRs ceased to work cooperatively, which appears to have been generally known across the site.

[51] I have no evidence that the important work of the SSC was subject to interference and manipulation for collateral purpose or to gain a collateral advantage of some kind. Indeed, there is no evidence that there were other issues afoot and that the safety issue as agitated was a proxy argument.

[52] Because it had not determined the degree of hazard, the SSC had not determined to close the site. Lend Lease had declared the site open other than in respect of the various contaminated areas which were being cleaned, and it had conveyed as much to the employees at the site meeting at approximately 9AM on 26 September 2011.

[53] However, on the morning of 27 September 2011, the SSC declared the site closed because of the dust contamination. This action by the SSC is indicative, I reasonably infer, of the debate that had taken place within the SSC on 26 September 2011. The site meeting conducted by Lend Lease must be seen against this backdrop.

[54] There is competing evidence as to whether some or all of the employees on site returned to work after the Lend Lease statement at the 9AM site meeting. But even if it were so, the case before me was that the electricians worked in an environment which was peculiar to them (as it brought them into immediate respirable range of the dust).

[55] It may be the case that Workplace Health and Safety Queensland had conveyed to Lend Lease that the product presented a benign health risk, and that this was the basis of the information that Lend Lease conveyed to the workforce at the 9AM site meeting. The evidence of Mr Holmes of Workplace Health and Safety suggested as much.

[56] Yet there is nothing in the evidence however that supports a finding that the workforce was informed at the 9AM site meeting that the Lend Lease information was conveyed on the basis of advice from (the senior manager of) Workplace Health and Safety. The employees appeared to have laboured under the presumption, therefore, that the information conveyed by Lend Lease was the information provided by the principal contractor only, and was not given on the basis of any independent authority.

[57] Other circumstances were observed:

• the relevant floors in the two IPUs were closed for decontamination;



• employees were not permitted to return to those worksites to obtain their tools until the process had been completed; and



• the employees of one contractor had been observed using PPE, such as dust masks.

[58] In this wider context, the LCE employees indicated through their CEPU representative that they would not pursue alternative duties until such time as they had been advised by a competent official or on the basis of technical information that the dust from the Aquatough gypsum wall panel product was safe and did not present a threat to their health.

[59] The LCE Workplace Health and Safety Officer (“WHSO”) at the time, Mr McMahon, gave evidence that he was approached by LCE employees who questioned the safety of the dust on site but could give them no guarantees about its health effects:

Mr McMahon, did any of your employees approach you with concerns about dust in other parts of the site, other than the areas that were closed?---Yes.

And were you able to reassure them that it was safe for them to go back to those areas to work with that dust?---No, I couldn't give an assurance on that. 1

[60] There is no evidence to counter CEPU claims (even if at the level of hearsay) of dust presence more widely across the site, and which had settled in work areas of particular relevance to electricians. But as Mr McMahon indicated, he was aware of complaints of that kind.

[61] Mr McMahon was also aware of testing being done on the dust, but no results were at hand at the time (26 September 2011). Mr Bates, the Project Manager for LCE, also referred in his evidence to the fact that testing on the dust was being undertaking, and that this was known the workforce.

[62] The fact that testing on the dust samples was still being undertaken and had not concluded is a further feature of the circumstantial context in which the conduct took place. I add that I am unsure why such testing was being undertaken or by whom.

[63] A further circumstance is that LCE took no steps (on 26 September 2011) to direct its employees to perform work in areas in which it considered that there was no dust present and therefore no safety issue present. LCE took the view that once the CEPU, through the delegate Mr Bijoux, had indicated the workforce would not resume the performance of its duties until it had some authoritative information about the safety risks of the dust, it would not take steps to redeploy or to direct its workforce to any other areas on the site. I will discuss this matter a little further below.

Was the concern on the part of the LCE employees genuine?

[64] There is no evidence on which I could presume other than that the LCE workforce acted exclusively out of concern about the health risk arising potentially from the presence of dust on the site in relation to an unknown, imported building product. The concern had arisen in the previous week. No other claims were afoot at the time, and no collateral advantages were being sought in respect of any such (non-existent) claims.

Was the concern reasonably founded?

[65] Ultimately, the concerns were found to have no reasonable basis. That is, the Aquatough product seemingly presented a low level health hazard, comparable with or less than generally used gypsum wall panel products. The various health warnings were standardised statements and caveats and not at all indicative of a potent threat to health. As Mr Holmes, an inspector for Workplace Health and Safety stated, this much was recognisable by anyone who dealt with such product data sheets on a regular basis.

[66] The problem was, however, this was unknown at the time (on 26 September 2011).

[67] The presence of the imported product on site was novel.

[68] There was no technical expertise brought to the site or to inform discussion that was known to the employees concerned.

[69] Despite the issues that had arisen some time earlier and (in particular) the ease of access to inspectors from Workplace Health and Safety, there appears to have been a declaration simply that the site was open other than in the contaminated areas. The situation might have been averted in its entirety had an official from Workplace Health and Safety been requested to attend the site on 26 September 2011. As it was, the attendance on site of an inspector brought the matter to a close, albeit on the following day.

[70] The MSDS appeared to the untrained reader to indicate that the product could pose health risks on multiple levels.

[71] The LCE WHSO could provide no guarantees when asked if the dust was safe.

[72] Before proceeding, some discussion needs to be had about the basis on which a person might reasonably enter into a state of belief about a particular circumstance. Perhaps a person who holds a belief is required to have a foundation to that belief that is something more than a (passing) suspicion might require required. But a state of belief does not seem to connote definitive proof as such.

[73] The High Court has provided some commentary on the distinction between the foundation to a reasonable suspicion and a reasonable belief (albeit it in a criminal context and quite different to that before me now), which I think provides guidance:

13. In considering the sufficiency of a sworn complaint to show reasonable grounds for the suspicion and belief to which s.679 refers, it is necessary to bear in mind that suspicion and belief are different states of mind (Homes v. Thorpe (1925) SASR 286, at p 291; Seven Seas Publishing Pty. Ltd. v. Sullivan (1968) NZLR 663, at p 666) and the section prescribes distinct subject matters of suspicion on the one hand and belief on the other. The justice must be satisfied that there are reasonable grounds for suspecting that "there is in any house, vessel, vehicle, aircraft, or place - Anything" and that there are reasonable grounds for believing that the thing "will ... afford evidence as to the commission of any offence".

14. Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam (1970) AC 942, at p 948, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'" The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees [1966] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, "was unable to pay (its) debts as they became due" as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (at p 303):

“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’ Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s.(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors."

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. [my emphasis]. 2

[74] It appears to me on the basis of the circumstantial context at the time (on 26 September 2011), the LCE employees were seized by the resultant belief that their health was at imminent risk owing to the presence of a hitherto unknown dust-type which affected their particular working environment. The circumstances I have set out above provide a reasonable basis to that belief. There were elements of surmise or conjecture, to be sure. But these arose from an uncertainty about the factual situation, which warranted caution.

[75] I also make the following observations in addition about the kinds of circumstances that may have removed the grounds for the reasonable belief the employees reached in relation to their health and safety.

[76] If Lend Lease had communicated to the site workforce that its declaration that the site was otherwise open had been informed by the technical advice of a senior manager of Workplace Health and Safety Queensland, then the belief held by the LCE workforce would not have had the necessary factual foundation.

[77] There is no evidence, however, that there was any public communication of the independent technical advice that may have underpinned Lend Lease’s declaration at the site meeting.

[78] Equally, if an inspector from Workplace Health and Safety had been present on site on 26 September 2011, and had conveyed technical information about the MSDS, no reasonable basis to the employees’ belief would have existed. The inspector did not arrive on site until 27 September 2011. Perhaps if the SSC had been briefed by an inspector promptly on 26 September 2011, the entire matter may have been avoided and the committee would not have fallen into division (which buttressed employee concerns).

[79] If LCE had identified and then directed its employees to work in areas unaffected by the presence of dust, then the LCE employees could not have refused to work in such areas as there would have been no basis to a reasonable belief that their health was at imminent risk. But LCE did not so direct its employees. LCE - on the evidence before me - responded passively to Mr Bijoux’s indication that the workforce refused to perform duties on account of dust concerns.

Was the risk an imminent risk?

[80] Not all risks are imminent in nature, in so far as they are about to happen or occur, or are about to happen or occur across the entire site as opposed to an isolated or contained area. Timing and location are important.

[81] But the issue of the ingestion of dust from a novel source which had affected a wide area of the site over time - so it appears - and which had uncertain properties, is sufficient to meet the requirement that the reasonably held concern was imminent in a temporal sense (though it may not become physiologically symptomatic until a later point in time).

Was the response of the LCE workforce proportionate to the reasonable concerns it held?

[82] In the circumstances, my view is that the LCE workforce - in the particular context I have identified - had little choice other than to seek independent or technical advice before returning to work. Of course, the issue of proportionality would have been tested if the employees had been directed to work in areas on the site - and it was a very large site of some 150,000 square metres - that were unaffected by dust.

[83] But there was no such direction.

[84] LCE took the view that its workforce would not return to work under any conditions (though the preoccupation of that workforce seems on the evidence to have concerned the impact of the dust on their working environments).

[85] I concede that the evidence adduced over the course of the proceedings was mixed in regards to whether Mr Bijoux informed LCE that its workforce would not return to work, period, at any location on site, or whether the workforce concerns were limited to the dust and areas in which dust had settled over the week. Mr Bijoux’s evidence in part was as follows:

Is it the case that you then went off to speak with LCE managers - in fact you spoke with Mr Clay and told him that the fellows weren't prepared to return to work until they had greater safety assurances?---Correct, yes.

So at that point in time there hadn't been any redeployment take place?---None.

The message that you conveyed on behalf of the members that you were representing was that they're not going back until they've got a clearer assurance of safety?---Yes, until they were to find areas where they needed to work, yes.

I think that the issue with them was a safety issue and you communicated to Mr Clay that they weren't going to go back until the safety issue was cleared up - anywhere, on any part of the site?---I wouldn't have said "any part of the site". As I said, there were workers that did go back to those clean areas.

I would suggest to you that you communicated to Mr Clay that no-one was prepared to go back to work until the safety issue was sorted out?---I wouldn't have said that no-one was prepared to go back to work, but those - - -

But no-one did go back to work, did they?---No, no-one did go back to work.

And in terms of the safety issue being sorted out, what did the members want, as far as you were aware?---A clear answer on how bad the dust was. 3 [My emphasis]

[86] As cited above, Mr McMahon was aware the LCE employees were concerned about dust that had settled in areas other than those areas that were closed.

[87] If there was scope for confusion as to whether the employees were disposed to work in areas unaffected by the presence of dust or not (as opposed to areas that Lend Lease itself had declared open and closed), LCE did not press the issue with its workforce directly. It spoke only with Mr Bijoux. Indeed, LCE did not direct any of its employees to work in any particular locations following the morning site meeting. 4

[88] Throughout this period, I add, the SSC continued to meet intermittently. At 2.30 pm, around the end of the shift, it adjourned until the morning (and at that meeting the following day it declared the site closed). The issues in contention remained unresolved at the SSC level, over the course of the LCE employees’ refusal to perform duties on 26 September 2011.

[89] In the end, LCE’s workforce faced an uncertain safety situation. The LCE WHSR had not addressed their concerns (and his reference to testing being conducted may have exacerbated concerns). The SSC was locked in debate about the safety issues. The MSDS suggested the composition of the new product might create actual risks. No technical or authoritative interpretation of the MSDS expressly was at hand to underpin the Lend Lease declaration. No dust free areas in which to work had been designated or identified to which the LCE employees might have been redeployed.

[90] In such circumstances, the withdrawal of labour until the necessary explanations were provided seems to me to have been a proportionate and cautious response to the situation at hand. Of course, had the employees simply left work and not been in a position to accept re-deployment or further directions by remaining on-site, the outcome may have been very much different. That may be conduct that is not proportionate to the degree of risk. But this was not the case here.

Conclusion

[91] In my view, the LCE employees did not perform their work as ordinarily performed on 26 September 2011 because they held a genuine, reasonable concern that their health and safety was at imminent risk. As a corollary, the decision to withdraw their labour at that time was proportionate to that reasonably held concern. The LCE employees cannot be taken to have been absent from their duties pursuant to clause 10(f) of the Agreement, as a consequence.

[92] I add in concluding that my authority through the disputes clause and in the framework of the question the parties have agreed that I have considered in this matter is limited to conduct on 26 September 2011.

[93] Had I extended my inquiry into the conduct of 27 September 2011, I would have considered the precise time at which the SSC declared the site open (following the advice of Workplace Health and Safety) as opposed to the time at which the LCE workforce returned to work.

[94] It appears to me to have been an issue of indulgence to have required that the inspector (who had assisted the SSC) address the LCE workforce directly before they would return to work. And particularly indulgent further was the the conduct of a number of the LCE employees in relation to that inspector, which caused their meeting with him to be closed abruptly by the CEPU delegate.

[95] In my view, once the SSC had declared the site open, the LCE employees no longer possessed any reasonable basis to the concerns they had held over the previous day, and they ought to have returned to work immediately at that time, and not at a later time.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms K. Inglis, for the CEPU

Mr J. Dwyer of Counsel, instructed by ECA(Q) for LCE Queensland Pty Ltd

Hearing details:

2013

25 and 26 March

Brisbane

 1   Transcript of proceedings dated 26 March 2013, at PNS 1015-1016.

 2   George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 115 (20 June 1990).

 3   Transcript of proceedings dated 25 March 2013, at PNS 553-559.

 4   Transcript of proceedings dated 25 March 2013, at PNS 817; 889-893.

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