Construction, Forestry, Mining and Energy Union
[2012] FWA 2796
•22 JUNE 2012
[2012] FWA 2796 |
|
DECISION |
Fair Work Act 2009
s.526 - Application to deal with a dispute involving stand down
Construction, Forestry, Mining and Energy Union
(C2011/466)
The Association of Professional Engineers, Scientists and Managers, Australia
(C2011/5198)
vBeltana Highwall Mining Pty Ltd T/A Blakefield South Colliery
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 22 JUNE 2012 |
Applications pursuant to s526 of the Fair Work Act 2009 involving consideration of the application of s60 of the Coal Mines Health and Safety Act 2002 (NSW).
[1] This decision arises from two applications pursuant to section 526 of the Fair Work Act 2009 (the Act). These applications concern a period of four days when no work was performed underground at a colliery following the discovery of a mould infestation.
[2] The applications were lodged by the Construction, Forestry, Mining and Energy Union (CFMEU) Mining and Energy Division, Northern District Branch and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA). On behalf of their members both these organisations sought a finding that Beltana Highwall Mining Pty Ltd (Beltana) had stood down their members employed at the Blakefield South Colliery (the colliery) in circumstances not permitted by the Fair Work Act 2009 (the Act). Beltana opposed the applications and the consequential orders sought by both organisations.
[3] I heard these applications on 19 September 2011, 20 September 2011, 12 December 2011 and 2 March 2012.
[4] The following witnesses gave evidence for the Unions:
Mr Keith Shaw - Industry Check Inspector
Mr Shane Mullen - Crew Supervisor of the Blue Crew
Mr Shane Craig - Underground Electrician. Mr Craig also performs representative roles of Occupational Health & Safety Committee Member and Electrical Check Inspector. An employee of the respondent in Black Crew.
Mr William Davis - an employee of the respondent in Yellow Crew
Mr Peter Goodwin - Mining Technician. Member of the site Occupational Health and Safety Committee
[5] The following witnesses gave evidence for Beltana:
Mr Peter Adlington - Group Occupational Hygienist, Coal Services Proprietary Limited
Mr Mark Holland - Undermanager for the Blue Crew
Mr Greg Short - Undermanager for the Red Crew
Mr Ian Stevensen - Undermanager for the Yellow Crew
Mr Douglas Ashcroft - Undermanager for the Black Crew
Mr Brett Russell - Shift Undermanager
Mr Mark Munro - Operations Manager
[6] Sections 524 and 526 of the Act are set out hereunder.
“524 Employer may stand down employees in certain circumstances
(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:
(a) industrial action (other than industrial action organised or engaged in by the employer);
(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;
(c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
(2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:
(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and
(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.
Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.
Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).
(3) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period.
......
526 FWA may deal with a dispute about the operation of this Part
(1) FWA may deal with a dispute about the operation of this Part.
(2) FWA may deal with the dispute by arbitration.
Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(3) FWA may deal with the dispute only on application by any of the following:
(a) an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1));
(b) an employee in relation to whom the following requirements are satisfied:
(i) the employee has made a request to take leave to avoid being stood down under subsection 524(1) (or purportedly under subsection 524(1));
(ii) the employee’s employer has authorised the leave;
(c) an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (a) or (b);
(d) an inspector.
(4) In dealing with the dispute, FWA must take into account fairness between the parties concerned.”
(my emphasis)
[7] Resolution of this application involves a consideration of sections 60 , 174 and 175 of the Coal Mine Health and Safety Act 2002 ( CMHS Act) are set out below:
“60 Rights of employees
An employee who works at a coal operation has the right to remove himself or herself from any location at the coal operation when circumstances arise that appear to the employee, with reasonable justification, to pose a serious danger to his or her own health, safety or welfare.
......
174 Functions of industry check inspectors
The functions of an industry check inspector are:
(a) to review the content and functioning of the health and safety management system required under this Act or the regulations, and
(b) to investigate any complaint from an employee at a coal operation regarding health or safety, and
(c) to participate in investigations of events, occurrences or notifiable incidents, and
(d) to assist in the training of site check inspectors, and
(e) any other functions prescribed by the regulations.
175 Powers of industry check inspectors to suspend operations
(1) This section applies if an industry check inspector is of the opinion that:
(a) there has been a failure to comply with a provision of the Work Health and Safety Act 2011 , this Act, the regulations under either of those Acts or any applicable health and safety management system, and
(b) because of that failure there is a danger to the safety or health of persons at work at a place at the coal operation.
(2) If this section applies, the industry check inspector may serve on the operator of the coal operation a notice:
(a) stating that the industry check inspector is of the opinion referred to in subsection (1), and
(b) giving particulars of the industry check inspector’s reasons for being of that opinion, and
(c) giving particulars of the action which, in the industry check inspector’s opinion, should be taken to remove the danger.
(3) That notice may direct that any operations being carried on at the place be suspended.
(4) The notice must, if a form has been prescribed by the regulations for the purposes of this section, be in that form.
(5) An operator who is given a direction must immediately:
(a) comply with the direction, and
(b) advise an inspector of the giving of the direction.
(6) A direction ceases to have effect:
(a) on attendance by an inspector and an assessment of matters to which the direction relates, or
(b) on withdrawal, by instrument in writing, of the direction by the industry check inspector by whom it was given.
(7) An operator who fails to comply with a direction given to the person is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation (being a previous offender)-750 penalty units, or
(b) in the case of a corporation (not being a previous offender)-500 penalty units, or
(c) in the case of an individual (being a previous offender)-375 penalty units, or
(d) in the case of an individual (not being a previous offender)-250 penalty units.
(8) Despite a direction being given to an operator, the operator may cause work to be carried out in the place to which the direction relates for the purpose of preventing or mitigating danger.”
[8] From 5 January 2011 to 30 June 2011 the colliery was closed as a result of a fire and the consequent suppression and cleanup.
[9] It is common ground that after the colliery closure all workers were either found work at the colliery, at other collieries or paid.
[10] The colliery was sealed until 7 June 2011.
[11] On 7 June 2011 there was an inspection of the colliery by Mr Shaw, Industry Check Inspector and Mr Munro, Operations Manager.
[12] On 1 July 2011 the recommissioning of the colliery commenced.
[13] There was a further inspection of the colliery on 11 July 2011 on which occasion ventilation was identified as good. 1
[14] The only evidence of any sighting of mould in the colliery prior to 15 July 2011 was a sighting by one employee who was said to have discovered mould on 11 July 2011 and provided a sample to a Deputy. Mr Goodwin gave evidence regarding what he knew about the circumstances surrounding that discovery of mould.
“13. On Friday 15 July 2011, I commenced for work at 7.00am. I did not attend the pre-shift meetings given by the Undermanager’s as I was to attend the 7.30am re-entry team meeting (RET). ......Prior to the RET meeting I was approached by an electrician, Mich McLoughney. He approached me and Derek Duffie, the CFMEU Lodge Vice President. Mick said that he had concerns over the mould. He said there had been a lot of mould on the equipment he was working on and that he had raised it with the Deputy on Tuesday, 12 July 2011 and had asked the Deputy to take samples and nothing had happened. The samples were still in the fridge on that Friday. I had heard prior to this nothing at all about there being a mould issue underground. I have since inspected areas of the mould when being involved in the clean up process. The mould infestation underground was extensive. I had never previously seen a mould infestation to that extent. It’s hard to give an estimate of how much mould there was but it was on the belts and the cables and on some of the electrical boxes. If I just describe what was on the belts, the belts are approximately 47 pillars long so between four and five kilometres and it’s approximately 1.5 metres wide, the belts are double sided and top and bottom. There were areas of the belt that were blanketed and other areas were (sic) the mould was sparse. I would estimate about half the belt was blanketed with mould. I have seen mould underground but I have never seen anything like the infestation that I observed at the Colliery in 26 years of mining.” 2
(my emphasis)
[15] At 10 am Friday 15 July 2011 Yellow Crew left the colliery when a mould infestation was discovered in the shaft.
[16] On 15 July 2011 Mr Shaw was alerted to the mould infestation. He was informed that workers had left the colliery.
[17] At 4:30 pm on Friday 15 July 2011 Mr Shaw attended the colliery and conducted an inspection. Mr Russell, an Undermanager, spoke to Mr Shaw. Mr Shaw’s evidence regarding this conversation is set out below.
“......Mr Russell informed me there had been a mould identified underground. He informed me it was located at the most inbye part of the mains panel. A lay description of the location of the mould as informed to me was that it was located at the furthest part in the Colliery in the mains panel on some cables and parts of the conveyor belt. Mr Russell then provided me with a copy of an email from a Mr Gary Mace to read.” 3
[18] Mr Gary Mace is the Manager of Occupational Hygiene Services, Coal Services Pty Ltd. The function of Coal Services Pty Ltd is described below:
“3 Coal Services is 50% owned by the CFMEU and 50% by the NSW Minerals Council.
4 Coal Services as a company has a number of functions including:
- Operating a worker’s compensation scheme for the coal mining industry;
- Providing occupational health services to the coal mining industry including training, advisory, compliance and monitoring services; and
- Providing a rescue service for the coal mining industry.
5 Coal Services has an existing role monitoring the mine workplace atmospheres and advising the Respondent on appropriate controls (including respirators) for all dust exposures (including coal and silica dust) present at the Blakefield South Mine (the Mine). Coal Services also conducts training at the Mine.” 4
[19] Mr Mace’s e-mail of 3.48 pm 15 July is extracted below:
“At the present time we have no definitive answer on the species of mould that has presented at the mine, however our past experience in the mining environment has shown growths of Candida, Penicillium and Aspergillus Versicolor and the most common identified.
While it would be prudent to have the results to assist in determining the source and relative safety or toxicity that may be attributed to the mould; the following simple precautions should be used by persons working in the vicinity of any source.
The use of a respirator to ensure that any airborne spores are not inhaled.
The use of impervious gloves and long sleeved clothing to ensure that dermal contact is controlled.
The use of a cleaning agent such as a weak (10-50% bleach, white vinegar or detergent solution) to eliminate the mould.
Adherence to these procedures should provide for safe work in these areas until a positive identification and appropriate cleaning program initialised to eliminate the mould from the workplace.” 5
(my emphasis)
[20] Mr Peter Adlington is the Group Occupational Hygienist, Occupational Hygiene Services, Coal Services Pty Ltd. Mr Adlington's e-mail of 4:47 pm 15 July is extracted below:
“Subject: Mould
Hi Mark, this is the recommended course of action in relation to the mould growth discovered in and around the mine site - this action and recommendations are supplied by Mycologia Australia.
When cleaning and having direct contact with surfaces heavily covered in mould, workers should be protected by a P3 mask, wear rubber gauntlet type gloves and long sleeves shirts.
The method of cleaning, is to coat the affected surfaces with an 80% white vinegar and 20% water solution, applied to the surface by a spray system such as a garden sprayer. The surface should then be wiped down with a microfibre cloth, which should be rinsed continuously in a similar solution.
If the conveyor system is badly affected, the use of this same type of solution should be added to the spray system and any person working along this system during the clean-up process should also wear a P3 respirator. The mould will be killed on contact with the solution; this process should take less than a shift to totally cover the belt system with sufficient solution.
The tailings from the scrappers along the affected belt should be shovelled up and placed in a bio hazard bag, clearly marked and brought to the surface for appropriate disposal.
All other workers, not in direct contact with the heavily affected surfaces will be adequately protected by properly fitting P1 disposable masks.
Regards,
Peter Adlington” 6
[21] Mycologia Australia is an organisation with specialty knowledge of mould and its removal.
[22] Ms Heather Rowsell, a Senior Occupational Hygienist, provided advice. Ms Rowsell's e-mail is extracted below;
“Subject: microbial concerns
Hi Sam
As you’ve requested, I will summarise below the content of our discussions today, which is based on the information we have of the situation at this time.
- Visual identification of an unknown species of microbial (assumed) is covering portions of the conveyor, electrical cabinets and other surfaces in the pit.
- Workers advised management that they were uncomfortable working in the area where mould/microbials had been visually identified, and ceased working in the area.
- AECOM representative arrived on site and conducted a visual inspection of the area and collected samples of the microbials in areas identified by Xstrata personnel.
- Samples (bulk) will be analysed by an accredited lab, but the results of such analysis will not be available until Tuesday (at the earliest).
- It was not possible to collect air samples at this time due to lack of available equipment. This equipment will be sourced and air samples will be conducted as soon as possible, if agreed with Xstrata.
Questions posed by Xstrata and discussed today:
1. Which PPE could be worn to permit personnel to work comfortably and safely in areas with microbial growth?
- As Xstrata advised of the good air exchange occurring in the work area (210/s), and this is an excellent control for airborne contaminants. It was agreed that use of a P1 half-face respirator would be sufficient to address exposure to microbial particulates (spores). Should there be any toxigenic species of mould present, the air exchange rate within the work area would be sufficient to prevent any accumulation of volatile organic compounds.
- Respiratory protection should be used in conjunction with a respiratory protection program, including health assessments, fit testing, training. Etc.
2. Should further sampling be conducted?
- It is recommended that further sampling for airborne microbials be conducted, pending analysis results on the bulk samples taken today. Should it be found that there are species of concern present in the work area, then it is recommended that air sampling for microbials be conducted so that workers concerns regarding exposure can be addressed. If such sampling is not conducted, it will be difficult to prove if there is no cause for concern among the workforce.
3. How can we remove the mould?
- Microbial contamination can be removed from non-porous surfaces using soapy water or a mixture of water and no more than 5% bleach. Utilising bleach can introduce additional exposure concerns so it is important to have the necessary controls in place, should bleach be used. The most important feature of preventing regrowth of microbials is to remove one of the factors required for growth: generally these are moisture, a desirable substrate, and temperature.
4. Are there other precautions that can be taken, other than PPE?
- Other precautions that should be taken include preventing skin contact with microbials, so ensuring employees comply with a ‘long and long policy’. Good hygiene procedures should be followed, including hand washing prior to eating and not eating in areas where microbial contamination may be present.
5. Can the PPE noted above be used during cleaning of the mouldy surfaces/items?
- Once the analysis of the microbial samples has been reviewed, we will be able to provide more definitive guidance regarding cleaning of the mould and the required precautions to be taken/controls to be implemented. At this point in time, it is recommended that cleaning not commence until this information is available. That being said, a minimum of a P2 respirator with organic vapour (class A) filtering capability be used, as well as gloves, goggles and protective clothing is expected.
If you have any questions at any time, don’t hesitate to contact me.
Sincerely,
Heather Rowsell.” 7
(my emphasis)
[23] I shall refer to the e-mails of Mr Mace, Mr Adlington and Ms Rowsell as the e-mails or the advice of the experts.
[24] On 15 July Mr Shaw issued a Notice pursuant to section 175 of the CMHS Act. Mr Shaw's Notice applied to all underground parts of the colliery where mould was identified or detected. 8 There is no dispute that Beltana complied with every restriction or direction specified in paragraph 2 of the Notice. The Notice is set out below:
“NOTICE BY INDUSTRY CHECK INSPECTOR
Section 175 Coal Mine Health & Safety Act 2002
Notice Served On operator of Coal Operation: Blakefield South Mine Representative, Greg Short.
By Industry Check Inspector or his delegate: Keith Shaw
1. I hereby give notice that I am of the opinion that there has been a failure to comply with a provision of the Occupational Health & Safety Act 2000, the Coal Mines Health & Safety Act 2002, the regulations under either of those Acts or any applicable health and safety management system and because of that failure there is a danger to the safety or health of persons at work at a place at the coal operation. I am of that opinion for the following reasons:
There may be a threat to health & safety of workers at the mine due to the finding of mould underground.
2. I am of the opinion that the following action should be taken to remove the danger:
- This mould is to be analysed and results conveyed to the workforce as soon as known.
- Areas of mould underground to be identified and quarantined with no persons to work in the identified areas.
- Belt system to be fully isolated.
- Other work can be carried out in the mine.
- Inspections must be carried out wearing appropriate PPE, if inspections are necessary.
3. I direct that the following operations being carried on at the place be suspended:
Any place quarantined by this mine after inspection to identify areas of mould.
4. I advise you that pursuant to Section 175 of the Coal Mine Health & Safety Act 2002:
a. You must comply with this direction immediately; and
b. Advise an inspector of the giving of the direction.
5. The direction shall cease to have effect:
a. On attendance by an inspector and an assessment of matters to which the direction relates, or
b. On withdrawal, by instrument in writing, of the direction by the industry check inspector, or his delegate, by whom it was given.” 9
(my emphasis)
[25] “Isolated” in this context means padlocked with no access for use.
[26] Mr Shaw’s evidence regarding the terms of his Notice is extracted below.
“There was a need for the mould to be analysed to be able to effectively determine the risk of the hazard. Without the mould being identified or the spore’s concentration being known, there would have been a real concern to the employees about the nature of the hazard and the danger. I indicated that it had to be analysed and the results conveyed to the workforce as soon as they were known. I believed the mould to be located inbye and not wide spread in the Colliery so I indicated the action should be taken is that the areas underground be identified and those areas quarantined. As it was on the conveyor belt, I required the belt system was to be fully isolated. I knew the belt system was to be re-commissioned soon under the staged re-entry process and that this would significantly increase any hazard. I indicated that other work could be carried out in the Colliery to make it clear that the restriction to perform work was only in those areas which were to be quarantined and not other areas. As it was my understanding the mould infestation was identified inbye in parts of the mains panel and obviously the inspections had to be carried out wearing the appropriate PPE.” 10
(my emphasis)
[27] Mr Shaw gave evidence that a Notice issued by him is required to be complied with unless he removes it or there is an attendance by a Department Inspector. His evidence regarding Beltana’s compliance and the elimination or control of risks is set out below:
“MR SHARIFF: What you were directing was that the mould had to be identified and quarantined?---MR SHAW: Yes.
But that other work at the mine not in those quarantined areas could continue. Correct?---That was the meaning.
You knew that by issuing this notice the company was required to comply with it. Correct?---Correct.
To the best of your knowledge, that is exactly what the company did, it complied with the notice?---I believe so.
You've never alleged yourself nor do you have any evidence to suggest that the company didn't comply with your notice?---Nobody has told me anything to the contrary.” 11
and,
“MR SHARIFF: Would you agree that essentially the identification of hazards and the taking of steps to either eliminate or control them is what's referred to as a risk assessment?
---Assess the risk, yes.
A risk assessment involves that process of identifying a hazard and then taking measures to eliminate or control it. Correct?---Yes.
I take it you have control measures because some risks are such that they can't always be eliminated?---That's true.
So sometimes what needs to happen is that the risk has to be controlled until it can be eliminated or if can't be eliminated. Correct?---Yes, if it can't be eliminated. 12
(my emphasis)
[28] At 7 pm on Friday 15 July 2011 the Black Crew reported for work. They conducted a risk assessment and performed work in the drift, but not in the pit. Black Crew was paid for this work.
[29] Mr Shaw attended a meeting of workers on 15 July 2012. He recalls Mr Mace’s e-mail being read out to the meeting. 13He does not recall but does not deny that Mr Adlington’s email was also read out. He confirmed that Miss Rowsell, the hygienist, informed the workers that P1 or P2 masks would be good enough to guard against the risks of inhaling airborne spores.
“MR SHARIFF: Mr Mace had advised, hadn't he, that using respirators would be sufficient to guard against the risk of airborne spores not being inhaled. Correct?---That was against the types of spores that he had identified in underground mines previously.
And a hygienist also said to the workers, didn't she, that P1 or P2 masks would be good enough to guard against those risks. Correct?---They did but I believe that's assumptions. Nobody had identified what type of mould it was.
Just focus on my questions. Did the hygienist tell the workers that P1 or P2 masks would be good enough to guard against the risks?---Yes, she did I believe.
Where you there when workers asked her questions about the sufficiency of those masks?---I believe so.
Didn't she say in answer to questions asked by the workers that P1 masks should be sufficient to work in other areas of the mine in which mould had not been detected?---I believe that's the case, yes.
You heard this hygienist saying that P1 masks should be good enough, didn't you?---I think that's what she said, yes.
That didn't cause you to change any part of your notice which you issued under section 175, did it?---No, it did not.
You also heard the hygienist say, didn't you, that the report of the analysis from the mould samples would not be known for a few days, didn't she?---Yes, she did.
And that didn't cause you to change any part of your notice under section 175?
---No, it did not.
You identified, as we looked at in your section 175 notice, that there was a threat to health and safety of workers at the mine due to the finding of mould. Correct?
---I said there may be a threat to health and safety.” 14
(my emphasis)
[30] At 7 am on Saturday 16 July the Yellow Crew reported for work. They conducted a Job Safety Analysis (JSA). They refused to work underground. They were sent home at approximately 10 am. They were paid for a few hours of this shift.
[31] At 7pm on Saturday 16 July 2011 the Black Crew reported for work. Mr Craig, a witness for the CFMEU, gave evidence about the discussions had by the Black Crew at a work meeting to discuss the mould. All workers at the meeting were concerned about the word “should” in the phrase “should be sufficient" contained in Ms Rowsell’s report. Mr Craig’s evidence was that not all the men had been rostered to work underground on 15 July, but they were thereafter rostered to work underground. The men refused to work underground. They were sent home and were not paid for this shift.
[32] At 7 am on Sunday 17 July the Yellow Crew reported for work. They refused to work underground. They were sent home. They were not paid for this shift.
[33] At 7 pm on Sunday 17 July 2011 the Black Crew reported for work but refused to work underground. They were sent home and were not paid for this shift.
[34] At 10 pm on Sunday 17 July the Blue Crew reported for work but refused to work underground. They were sent home and were not paid for this shift.
[35] On Monday 18 July Mr Kennedy and Mr Mullen, APESMA's members, reported for work and conducted production meetings on the surface for 2 1/2 hours. Mr Mullen and Mr Kennedy were the supervisor and co-supervisor of the Blue Crew. Their counsel submitted:
"......Both attended work for the shifts that are known as the 18, 19 and 20 July shifts, although in each case they attended work at 10 pm the night before.
On each case they made clear their concerns about going underground in circumstances where there was unknown risks associated with mould and on each case they were told that they should go home if they weren't prepared to work underground. Your Honour will note on the evidence that on the second of those two days they both did two and a half hours' work before they were sent home and on the third of those two days they made it clear that they were prepared to work through to the 9 cut-through and yet were sent home in circumstances where the next day it was clear that they only had to work through to that 9 cut-through. So in those senses there are some subtle differences in the evidence in respect of my two members.” 15
(my emphasis)
[36] On 18 July there was an urgent meeting of the Occupational Health and Safety Committee which Mr Craig attended. He was paid for that attendance.
[37] At 3 pm on Monday 18 July the Red Crew reported for work but refused to work underground. They were sent home and were not paid for the shift.
[38] At 10 pm on Monday 18 July the Blue Crew reported for work but refused to work underground. They were sent home and were not paid for this shift.
[39] At 3 pm on Tuesday 19 July the Red Crew reported for work but refused to work underground. They were sent home and were not paid for this shift.
[40] At 10 pm on Tuesday 19 July the Blue Crew reported for work but refused to work underground. They were sent home and were not paid for this shift.
[41] On Wednesday 20 July Mr Shaw attended the colliery. He conducted a further inspection over 2 - 3 hours in the company of Mr Frame, Site Check Inspector, Mr Adrian McNab, Mr Russell, Undermanager and Mr Troy Straker, Ventilation Officer. Mr Shaw described the infestation on that day as extreme and far in excess of any other mould infestation he had ever seen. 16 He amended the s175 Notice and gave a copy of the amended Notice to Mr Tony Straker. A copy of the amended Notice is set out below.
“Vast amounts of mould sighted on conveyers.
High levels sighted (mould) on some cables & other places in the mine.
Due to the fact that reports are inconclusive and it has been reported to the mine that there is extreme concentrations/contamination in samples taken, the mine can be worked from the drift to 9T, from pit bottom to 13T after inspection of ‘F’ heading for any evidence of mould, and the drift conveyor can be entered.
The only persons to work inbye of 9T in the mine are deputies and colliery officials, persons may enter for the purpose of sampling.
Results of airborne samples taken on 19/7/11 to be communicated to the workforce.
The workforce shall be given all the information gathered on the mould including what the dangers are and the level of risk and controls to be put in place.
There must be evidence to back up this information.
The conveyor system must remain isolated.
Amendment to notice (5.20pm)
- Due to the fact that mould has been identified in a lighting control panel in 7E the mains work will now be restricted to 7E.
- Access to ‘F’ (indecipherable) via 7E is deemed to comply with this notice.
- If the lighting control panel can be adequately isolated or removed from the mine safely the mine can work to 9T.” 17
(my emphasis)
[42] At 3 pm on Wednesday 20 July the Red Crew reported for work. They undertook all duties and stayed for the duration of this shift. They were paid for this shift.
[43] At 10 pm on Wednesday 20 July the Blue Crew reported for work. They undertook all duties and stayed for the duration of the shift. They were paid for this shift.
[44] Mr Sherrell attended the colliery on a number of occasions. He did not issue any new restrictions or ban work underground outside the quarantined areas. He made no further recommendations.
[45] On Wednesday 20 July and Thursday 21 July Mr Shaw reported his findings to the various crews. He had a discussion with these crews and answered their questions. Mr Shaw’s evidence concerning these meetings is as follows:
“There were lots of questions from the employees and what was clear from the questions is they were very concerned about the hazards associated with the mould infestation and the lack of information provided to them. When I gave them my reports I also went to some lengths to report to them information that had been provided by the Respondent to me about the results of the assessments that had been undertaken of the mould. They were very hesitant to go into the Colliery. I read out reports that I had received due to the fact that the Colliery had not communicated the information contained in reports to the workforce. I reported to the employees that they were only to work outbye of 9 cut through as there was fresh air passing from behind them. The effect of the additional report was that about 80% of the Colliery would have been quarantined.” 18
(my emphasis)
[46] Mr Shaw gave evidence that he received a report from Mr Frame, Site Check Inspector and Occupational Health and Safety Committee Chairman. He also spoke to Mr Sherrell, Departmental Inspector, regarding the Risk Assessment that and safe work practices. Mr Shaw and Mr Sherrell agreed that both the Risk Assessment and the Safe Work Practice were appropriate. Mr Shaw agreed that it was appropriate for his Notice to be lifted. Mr Sherrell issued a Government Official Advice pursuant to section 150 of the CMHS Act 2002 and provided a copy to the company on 25 July 2011. 19
[47] On 25 July mould cleanup commenced.
[48] On 1 August the results of airborne sampling was known.
[49] The circumstances which Mr Endacott submitted contributed to the formation of a reasonable justification pursuant to section 60 of the CMHS Act, were summarised by him as follows:
“80. The circumstances that existed that contributed to the reasonable justification include but are not limited to:
- a. Mould is a biological hazard.
b. The conditions that existed with the sealing of the Colliery, the partial flooding and the heat source were conducive to the development of an extreme mould infestation.
c. The amount of mould present was extreme.
d. The hazard hadn’t been identified prior to re-entry. After it was raised by an employee, no action was taken for a number of days. The inspection systems failed to identify the hazard at an early stage after the re-entry process commenced.
e. The type of the mould couldn’t readily be identified until the test results were returned.
f. The airborne concentration of the mould spores could not be determined until the air sampling had been undertaken and the results received. No formal risk assessment was undertaken, other than that undertaken by the employees. Management declined to undertake a risk assessment of the hazard until it had received the results back from its analysis. When the results were received back the levels of the mould in both concentration and spores were high or extreme.
g. No Safe Work Practices (SWP’s) had been developed for working underground after the mould hazard was identified. When those SWP’s were developed after risk assessment the employees performed work in accordance with the SWP’s.
h. The Industry Check Inspector had issued a Notice on the Colliery on 15 July 2011 which limited workings in some areas and after inspection of the mould infestation had amended the Notice to limit entry to the Colliery other than for inspection purposes of approximately 98% of the Colliery. These Notices remained effective until lifted by the Department Inspector.
i. The comments of the occupational hygienist that ‘if such sampling is not conducted it will be difficult to prove if there is no cause for concern amongst the workforce.’
81. The Union and its members ask Fair Work Australia in taking into account fairness between the parties, that the employees who should not have been stood down under the circumstances and that Fair Work Australia find in favour of the Applicant in this matter.” 20
[50] Counsel for Beltana tested Mr Goodwin’s evidence regarding the extent of the mould infestation. Nothing arose which caused me to question his evidence. I accept that the infestation was as described by Mr Goodwin.
[51] There was some cross-examination of Mr Shaw as to whether or not telephone calls made to him by Mr Munro on 15 July 2011 had gone unanswered. The resolution of this issue cannot affect my determination of the application before me. I have therefore not addressed it. However, it is troubling to contemplate that an Industry Check Inspector might be unresponsive to an employer's telephone call, particularly in circumstances where a hazard has been identified.
[52] In relation to the inspections on re-entry Mr Endacott submitted that "..... mould or the possibility therefore should have been identified and considered in that risk assessment process but was not". 21
[53] I am not persuaded that there was any such failure. Beltana engaged in a proper process for the recommissioning of the colliery. Mould is a hazard. If mould had been identified as part of the re-entry inspections I am satisfied that it would have been noted and dealt with.
[54] However, the first notification of a mould infestation was made on 11 July 2011. This was not acted upon. I am satisfied that it is more likely than not that what was initially a small problem on 11 July 2011 had become a bit bigger problem by 15 July 2011. The failure to act on the 11 July 2011 notification was a safety failure. The possibility of a future failure of this kind should be dealt with by management.
[55] An issue relied upon by the unions was the failure of Beltana to perform a formal risk assessment. In the circumstances surrounding this incident, and taking into account the hazard involved, I consider that the investigative and preventive actions taken by Mr Munro on behalf of Beltana, including the use of experts, amounted to an appropriate risk assessment.
[56] There was an issue before me as to whether or not Mr Munro had made remarks about mould and its innocuous nature. In effect the evidence of various witnesses was that Mr Munro said that he did not consider an infestation of mould to be a serious threat to health and was aggressive and unco-operative concerning the provision of alternative duties and in conciliation.
[57] I am satisfied that it was likely that Mr Munro was irritated by the failure of rostered workers to work underground. This refusal to work underground occurred in the middle of the re-entry process, following a significant period when the colliery had been unproductive as a result of the fire on 5 January 2011. During that period all workers have been either paid or given productive work. It doesn't take much imagination to contemplate that this circumstance might be galling to management.
[58] It is likely in these circumstances that a Manager in Mr Munro’s circumstances might utter intemperate remarks. If it occurred, such conduct would be unhelpful and unsatisfactory. However, given my conclusions in regard to other issues, I do not think any benefit arises from my resolving this issue.
[59] There was a further issue before me regarding the effectiveness of the ventilation in the colliery. Mr Peter Goodwin gave evidence that the ventilation was not as good as it had been previously and that there was an ashy odour and humid atmosphere. 22 Other witnesses expressed a different view about the odour and humidity. I don't intend to traverse that evidence. I am satisfied that the ventilation in the colliery was to a satisfactory standard, although it may not have been as satisfactory as was experienced prior to the fire, and it may not have been as well ventilated at pit bottom as it was close to the fan.
[60] Mr Endacott raised the issue of the workforce’s previous training in the proper use of respiratory equipment.
“36. ......They had received training within the previous six weeks about how to select Personal Protective Equipment (PPE) in the form of masks and the required protection factor. That training was clearly to the effect that they were to know the contaminate and its concentrations, and without that you could not choose Personal Protective Equipment. ......”. 23
[61] Whilst I accept that the core of the training identified by Mr Endacott was to identify a contaminant and its concentration, in the present situation the contaminant was known. It was mould. The contaminant had been assumed to be the worst possible microbial spores and the concentrations were known to be high and assumed to be very high. It is on that basis that the experts made the recommendations on which Beltana acted. I consider the issue of previous training in this area to be a neutral consideration.
[62] Mr Endacott cross-examined Mr Adlington regarding the reliability of his conclusions as to the effectiveness of the recommended Personal Protective Equipment (PPE). The conclusion to which he hoped to persuade me was that, if Mr Adlington was truly satisfied as to the effectiveness of the PPE, further analysis was superfluous. 24I reject any inference that the referral for final toxicology tests reflected any unreliability or lack of genuineness in Mr Adlington's conclusions or conduct regarding the PPE. Control measures applied by Beltana were barricading, isolating and the provision of PPE. PPE was an interim step, to be taken before the final elimination of the mould by the cleanup and disposal process.25 I am satisfied that the toxicology testing was a prudent extra step. That is all.
[63] Section 60 of the CMHS Act is self-explanatory. It entitles workers to remove themselves from a location at a coal operation if circumstances appear, with reasonable justification, to pose a serious danger to their health, safety or welfare. The relevant policies of Xstrata are to the same effect.
[64] It is common ground between the parties that an infestation of mould is capable of being a hazard. It is clear that an employer has an obligation to ensure that any foreseeable hazard is identified and either eliminated or controlled.
[65] Mr Ashcroft acknowledged that it was legitimate for workers to have concerns about a significant mould infestation. 26 However, although Mr Ashcroft was of that opinion, he contemplated the expert advice made available by Beltana against the background of his own experience and concluded that it was safe to work underground within the restrictions placed on the workplace by Mr Shaw, with the PPE recommended by the experts.
[66] In this situation all of the relevant workers formed their own view as to whether or not there was a circumstance which posed a serious danger to their health, safety or welfare. Mr Craig’s evidence regarding the worker’s concerns is consistent with the concerns expressed by other witnesses.
“11. ......I and other crew members were concerned about the hazard of mould based upon the report we had received and we wanted more information. I knew mould to be a biological hazard that could cause illness. The crew was talking amongst themselves and the crew were asking amongst themselves and to the Undermanager as to what type of mould it was, had it been identified, how hazardous it was, and also questions about where it was located and how much there was. ......
......
13. ...... The crew had raised concerns that there was a lot of unknowns with respect to the hazard and that we had a concern about going underground without more information being provided and the hazards being appropriately assessed. The Undermanager, Mr Ashcroft, ......informed us Mr Munro wanted to speak with the shift representative who is Mr Grahame Brown. Mr Brown spoke with Mr Munro and returned. Mr Brown informed the crew that he had informed Mr Munro the employees were concerned about the mould and that it had not been properly identified and wanted more information. ......I had concerns about my health, safety and welfare if I entered the Colliery without further analysis being conducted. Other employees expressed the same concern to me and to others. It was view (sic) that mould is a hazard which could cause illness and detrimental health effects when I read the email from Ms Rowsell ‘PWG-22’. ...... The analysis had not been undertaken and as a result there could still be found species of concern present at work and that further sampling should be conducted so that workers concerns regarding exposure could be addressed. I was also concerned with comments that if it was not conducted it would be difficult to prove there was no concern amongst the workforce. To me that meant it could be difficult to establish there was no safety concern for the workforce. ......
14. Xstrata, which is the Company that ultimately owns and controls the Respondent, makes it clear that you are not to perform any duties or any tasks unless you are completely confident you are safe to do so. It is mentioned to us repeatedly and is in the not negotiable Safecoal rules. ......
......
16. The crew formed the conclusion that they still had concerns about their safety and they were reluctant to go underground without further assessment. ......” 27
[67] I have considered all of the evidence of the Union witnesses before me. I have considered the evidence of the Undermanagers Mark Holland, Greg Short, Ian Stevenson, Doug Ashcroft and Brett Russell. These witnesses gave evidence regarding the information and advice provided by them to the workers at the various meetings of all the crews. I am satisfied that the emails of Mr Mace and Mr Adlington, and the advice of Ms Rowsell, were more than adequately canvassed at those meetings
[68] P1 masks were recommended as safe for ordinary use to protect against exposure to worst-case microbial spores previously identified in collieries, and P2 or P3 masks and other protective clothing were recommended for the cleaning process. Ventilation was good and Beltana complied with Mr Shaw's Notice.
[69] I am satisfied that the workers understood that the effect of Mr Shaw’s Notice was that Beltana was only required to do those things set out in the Notice. Mr Shaw’s evidence regarding that work and Beltana's compliance is set out below:
“MR SHARIFF: What you were directing was that the mould had to be identified and quarantined?---MR SHAW: Yes.
But that other work at the mine not in those quarantined areas could continue. Correct?---That was the meaning.
You knew that by issuing this notice the company was required to comply with it. Correct?---Correct.
To the best of your knowledge, that is exactly what the company did, it complied with the notice?---I believe so.
You've never alleged yourself nor do you have any evidence to suggest that the company didn't comply with your notice?---Nobody has told me anything to the contrary.” 28
[70] It was clear to the workforce that Mr Shaw had not placed any further restrictions upon Beltana, notwithstanding his having been present as a party to discussions regarding apprehended risks at the meetings of the various crews. Mr Shaw was fully conversant with Ms Rowsell’s report and he heard her verbal report to the workers on 15 July 2011. Neither the concerns of the workers nor Ms Rowsell’s report caused him to amend his Notice to tighten the measures he had designated.
[71] Mr Shaw continued his Notice without amendment, and the Notice was clear to the effect that, so long as Beltana complied, work could be undertaken underground in all areas of the colliery not quarantined. Mr Sherrell did not amend the Notice.
[72] I am satisfied that the substance of the expert advice available to workers was sufficient to assure any worker rostered for underground work that the precautions recommended were sufficient for the control, if not the elimination, of any risk. The conduct of Beltana in complying with their obligations pursuant to Mr Shaw's Notice was objectively sufficient to protect their health, safety or welfare if they entered the colliery and performed work in areas not quarantined by DCI Shaw's Notice. I am not satisfied that there was any reasonable justification for a subjective view to the contrary.
[73] I am not persuaded that the fact that further testing was recommended to specifically identify the particular mould and its toxicity was sufficient justification for a doubt as to safety, amounting to a reasonable justification for refusing to go underground.
[74] At the core of the workers’ concerns was Ms Rowsell’s use of the phrase "..... should be sufficient" rather than the more positive "will” be sufficient. I am not persuaded that Ms Rowsell’s use of the word "should" was sufficient to give rise to any reasonable apprehension within the meaning of section 60 of the CMHS Act.
[75] There was no conflicting or distracting industrial agenda involved in the facts surrounding these applications. There was no basis for questioning the bona fides of the Union witnesses. I am satisfied that the witnesses for the Unions were honest, reliable witnesses and that their concerns were not a sham.
[76] The question is not whether the circumstances genuinely appeared to the workers to pose a serious danger to their health safety or welfare. The question is whether or not there was a reasonable justification for that conclusion. I am not satisfied that there was. I am not persuaded that the members of the two Unions had any reasonable justification to conclude that their health, safety or welfare was in any serious danger.
[77] The majority of workers did not perform their rostered duties as directed. They were not stood down by Beltana. Beltana has no obligation to pay these workers. I do not have to consider the availability of suitable work for these workers because I have determined that they have not been stood down.
[78] Some of the witnesses who are Undermanagers gave evidence that there might have been some surface work the workers could do. 29 The evidence of Mr Munro, Operations Manager for the colliery, was that he did not offer work to the workers who would not work underground for a number of reasons. One of those reasons was a lack of supervisors to supervise the men aboveground, because the supervisors were needed to work underground on inspections and quarantine work.30
[79] Mr Craig gave evidence that a number of workers, including Donald Cork, Ian Triggs and Graham Brown, had not previously been performing underground work when the mould infestation was discovered on 15 July. They were rostered on aboveground work. However, on 16 July those workers were rostered underground. I did not hear any evidence from those workers. If any workers were transferred from aboveground rostered work to underground rostered work, that transfer may be an inappropriate manipulation of the roster. This matter should be the subject of discussion and settlement between the parties. If such a change to the roster was established and the entitlements of the individuals so re-rostered cannot be settled, this application can be relisted before me for further hearing.
[80] Underground coalmining is one of the most dangerous areas of paid employment in Australia. A safety breach, any unexplained physical phenomena, or any hint of danger must be acted upon immediately. The most cautious and prudent treatment must be accorded to all apprehended hazards. No employee can be criticised in this environment for giving the broadest possible interpretation to the application of Section 60 of the CMHS Act and removing themselves from any situation where danger is apprehended at the earliest possible opportunity. Nothing in this decision is intended to read down this broad safety first and foremost interpretation of that section.
[81] Workers in the proximity of a known or apprehended hazard are entitled to remove themselves from that location immediately and are entitled to stay removed from that location until it is reasonable for them to return. It is reasonable for them to return when there is no longer any circumstance that appears to those workers, with reasonable justification, to pose a serious danger to his or her own health, safety or welfare.
[82] These applications are dismissed.
SENIOR DEPUTY PRESIDENT
1 Transcript PN331 - PN334
2 Exhibit CFMEU 4 para 13
3 Exhibit CFMEU 1 para 6
4 Exhibit Beltana 2 paras 3 - 5
5 Exhibit CFMEU 1 Tab KS-3
6 Exhibit Beltana 4 Attachment MH-1
7 Exhibit Beltana 4 Attachment MH-3
8 Transcript PN482
9 Exhibit CFMEU 1 Tab KS-4
10 Exhibit CFMEU 1 para 8
11 Transcript PN539 - PN543
12 Transcript PN199 - PN202
13 Transcript PN492
14 Transcript PN495 - PN504
15 Transcript PN38 - PN40
16 CFMEU 1 para 12
17 Exhibit CFMEU 1 Tab KS-9
18 Exhibit CFMEU 1 para 14
19 Exhibit CFMEU1 Tab KS11
20 CFMEU Submissions paras 80 - 81
21 CFMEU Submissions para 28
22 Exhibit CFMEU 4 para 11
23 CFMEU submissions para 36
24 Transcript PN3315
25 Transcript PN3322 - PN3328
26 Transcript PN4434 - PN4437
27 Exhibit CFMEU 2 paras 11 - 16
28 Transcript PN539 - PN543
29 Transcript PN4680 - PN4682 - Mr Brett Russell, Transcript PN3789 - PN3791 - Mr Holland and PN4078 - Mr Stevenson
30 Transcript PN5154 and PN5289 - PN5290
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