Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd

[2013] FWC 6893

[2013] FWC 6893

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Construction, Forestry, Mining and Energy Union
v
BHP Coal Pty Ltd
(C2012/6562)

Coal industry
COMMISSIONER SPENCER	BRISBANE, 12 SEPTEMBER 2013

Alleged dispute regarding disciplinary action taken.

[1] This decision relates to an application made by the Construction, Forestry, Mining and Energy Union (the Union/Applicant) pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act). The dispute, the subject of this decision, relates to disciplinary action taken by BHP Coal Pty Ltd (the employer/Respondent) in relation to employees, Mr Hughes and Mr Mann (the employees); both employees being members of the Applicant.

[2] The matter was brought before the Commission in conference but the dispute was unable to be resolved. Consequently the matter proceeded to formal arbitration. Directions were issued for the parties to agree upon the questions for arbitration. By agreement between the parties the question for determination is:

1. In all of the circumstances, was the disciplinary action taken by the Respondent against Mr Hughes and Mr Mann justified?

[3] Once the question was agreed Directions issued for the filing of submissions and evidence in preparation for the hearing. Both parties filed material in accordance with Directions.

[4] The matter was heard at the Mackay Courthouse. The Applicant was represented by Mr Chris Newman, Legal Officer of the Union. The Respondent was represented by Mr Ian Humphreys, Partner of Ashurst Australia.

[5] While not all the submissions and evidence in this matter are referred to in this decision, all of such have been taken into account.

Background

[6] Both employees are fitters in the Field Maintenance section of the Peak Downs mine site. At the time of the incident, the subject of this dispute, the employees reported to Mr White, a Supervisor of the Field Maintenance section. Mr White reported to Mr Gustafson, the Field Maintenance Superintendent. Mr Gustafson in turn reported to Mr Harris, the Maintenance Manager.

[7] On 30 October 2012 the Peak Downs mine site, operated by the Respondent, experienced a power failure at approximately 5am; just prior to commencement of the day shift.

[8] At the pre-start meeting on the day of the power failure Mr Hughes and Mr Mann were directed to perform maintenance on ‘Dragline DRE42’ (DRE42). The employees prepared to travel to DRE42 with Mr Hughes driving a truck with a crib hut and Mr Mann driving vehicle 12-47.

[9] When the employees arrived at DRE42, Mr White, the employees’ supervisor, as well as the operator of the dragline, were already present.

[10] It is not in dispute, that there was a bucket suspended from the boom of the dragline. It is important to note at this point, that the bucket and boom are significant in size and weight. The bucket was sitting at approximately 40 meters above the ground and has a weight of approximately 78 tonnes. The two ropes suspending the bucket, weigh, approximately 66 kilograms per meter, each. 1

[11] Mr White, the Supervisor, instructed employees to enter the site.

[12] It is also not in dispute that both employees, when entering the site, chose a path to drive that avoided them driving directly under the bucket. It is not in dispute that the paths chosen were however still under the boom or at the very tip of the boom.

[13] During the course of the day, those employees who had driven into the site were directed to report to the office. At this meeting employees were stood down on full pay.

[14] During this stand down period a safety investigation ensued which included the employees participating in interviews. At the conclusion of the safety investigation a disciplinary investigation was undertaken. Mr Hughes and Mr Mann were issued with a ‘Step 2’ warning as a result of the disciplinary investigation. The Union, on behalf of the employees pursued the matter through the disputes process and in response the ‘Step 2’ warning was downgraded by the Respondent to a ‘Step 1’ warning (the warning)

[15] It is the issue of the ‘Step 1’ warning which is subject of the dispute in this matter.

[16] As a result of the incident and resulting investigation, four employees were issued with a ‘Step 2’ warning. One employee accepted the ‘Step 2’ warning and did not challenge that action. The remaining three employees challenged the issuing of the warnings. After progressing the matters through the disputes procedure, with the involvement of the Applicant, the ‘Step 2’ warnings were downgraded to a ‘Step 1’ warning. A further one employee accepted this compromise by the Respondent. The remaining two employees are those employees the subject of this dispute.

Relevant provisions of legislation and the Agreement

[17] The dispute was brought pursuant to s.739 of the Act. Section 739 provides:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[18] Section 738 provides:

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or...”

[19] The dispute was brought pursuant to the terms of an enterprise agreement being the BMA Enterprise Agreement 2012 (the Agreement). The relevant term is clause 37 which provides in part as follows:

“37 Dispute Settlement Procedure

37.1 It is the intention of the Parties that any disputes arising in relation to the NES; or pertaining to this Agreement; or in relation to the application of the Accommodation Agreements (as referred to in clause 34 of this Agreement); or arising in the course of employment shall be dealt with in accordance with this clause.
...
37.16 Subject to clause 37.15, provided that all the above steps have been exhausted FWA may conciliate or where conciliation has been exhausted and the dispute remains unresolved, arbitrate in relation to the matter. Where a matter involving an individual Employee progresses to this stage, the Employee will be permitted to attend FWA proceedings on the same arrangements set out in clauses 38.13 and 38.14. If proceedings are brought on more quickly by FWA, the travel plan must be submitted immediately upon the listing of the matter by FWA and before travel commences.
37.17 In the circumstances set out in clauses 14(e) or 14(g), or by agreement under clause 37.15, FWA may:

(a) Conciliate in relation to the matter; or
(b) Where conciliation has been exhausted and the dispute remains unresolved, arbitrate in relation to the matter.
The parties to the matter are not required to first exhaust the above steps for the purposes of this sub-clause.

37.18 During any conciliation or arbitration proceedings before FWA under this clause 37, either party may choose to be represented by a legal practitioner.

37.19 If FWA issues a decision in writing under this clause:

(a) the decision and reasons for the decision will be provided in writing to the parties; and
(b) the decision shall be binding on the parties to the matter in dispute and persons bound by this Agreement.

37.20 Nothing in clause 37.19 removes the right of either party to a matter in dispute from appealing a decision of FWA, in accordance with the Act.
37.21 If a person who will be involved in any discussions, conferences or proceedings under this clause is not employed or reasonably available at the Mine, then that person may participate by teleconference or other remote means where possible, to expedite the process.
37.22 None of the arrangements in this clause otherwise limit the rights of the Parties at common law or under the Act.
37.23 The outcome of any matter dealt with in accordance with clause 37.10 will be recorded in writing but will not form a precedent for any other matter, either at that Mine or at any other Mine.”

Consideration of submissions and evidence

[20] The Applicant submitted that the issuing of the ‘Step 1’ warning was for entering an area with a known hazard. The Applicant contended that the issue for determination is whether the actions of the employees actually constituted entering an area with a known hazard.

[21] The Applicant summarised the actions of the employees on the day in questions as:

“Mr Mann and Mr Hughes’ statements show, that both employees commenced work at approximately 6am. Just prior to commencing shift a power failure occurred which affected the whole mine site. They were then directed to prepare the gear for and travel to DRE42 to perform maintenance on the machine when the power was restored.

The employees prepared the appropriate gear and drove to the area that DRE42 was working. Mr Mann was driving a medium vehicle and Mr Hughes was driving a truck with the crib hut attached.

Mr Hughes then states that, under instruction from his supervisor, who was already in the area, he entered via the route highlighted in PH1, and parked the crib hut.

Mr Mann states that after this Mr White requested that he enter the area and, taking the route highlighted in AM1, he did so.

At no time did either the supervisor or, more crucially, the operator signal or indicate that the area had a known hazard and that they were not to enter.

The operator in DRE42, explicitly told Mr Hughes that he could enter the area and park around the back of the dragline.

Further no signs or other warnings were in place that indicated that the area contained a known hazard.

The Applicant submits that at this stage neither employee was informed or made aware by any other employee that there was any known hazard in the area. Indeed to the contrary, the employees who were in the area and that the employees were taking instructions from, the operator of the dragline and their supervisor, all stated that they could enter into the premises.

It was then up to Mr Hughes and Mann to make an assessment of the potential risk in the area and to put in place controls to avoid any potential hazards.

Both employees state that they viewed the bucket hanging from the boom of the dragline and believed it to be a potential hazard. The employees then took the appropriate control measures to avoid the bucket by driving a path that took them around the bucket and not under it.

As seen from the statement of Mr Leggett, these paths are almost identical paths that dragline operators take around buckets that are in the air.

In addition both employees state that the power to the machine had been cut off. As Mr Mann states, when the power is cut off to a dragline, 8 brakes are engaged holding the rope and bucket in place. These brakes cannot be disengaged without either power or manually with the assistance of several employees. Therefore, both employees were aware that the ropes and bucket were incapable of moving without assistance. Indeed the Applicant submits that the machine was safer without power then if it had power.

The Applicant submits that if these actions were considered to be a failure to place adequate control and therefore misconduct, then any employee driving into a dragline area at any time and drove the route that the employees took would have to be deemed to be ‘entering into an area with a known risk.’” 2

[22] The Applicant submitted that neither the Supervisor nor the Operator indicated to Mr Hughes or Mr Mann that there was a known hazard in the area. In this regard the Applicant submitted that Mr Hughes was specifically instructed, by the Operator of DRE42 to enter the area and park “around the back of the dragline”. The Applicant further submitted that there were no signs or warnings in place that indicated that the area had a known hazard.

[23] The Applicant submitted that it was reasonable for the employees to rely on the instruction from the Operator and to comply with the directions from the Supervisor to the employees to enter the premises.

[24] The Applicant submitted that following these instructions it was for Mr Hughes and Mr Mann to assess the potential risk in the area and put in place controls to avoid potential hazards. 3

[25] In this assessment both employees gave evidence that they were aware of the bucket and took actions to avoid driving under the bucket. This involved both employees driving around the bucket but still under the boom or at the very tip of the boom. It was submitted by the Applicant, and was the evidence of Mr Leggett, a Dragline Operator, that the paths taken by the employees were almost identical to the course taken by dragline operators, when buckets are in the air.

[26] The Applicant further submitted that Mr Hughes and Mr Mann were aware that there was no power to DRE42. When the machine has no power 8 brakes are engaged holding the rope and bucket in place. It was the evidence of the employees that they were both aware that in these circumstances, the brakes cannot be disengaged without power or if done manually require the assistance of several employees.

[27] The Applicant referred to the evidence by Mr Scott Leggett. Mr Leggett has been an employee at Peak Downs mine for more than 9 years. He is a Dragline Operator of 4 years. He is also a trainer assessor and has recently completed his open cut examiner (OCE) license in September 2012. He has also been a member of the mine rescue team for 8 years.

[28] In relation to the routes driven as shown on the mud maps 4 Mr Leggett stated as follows:

“I can state that the route taken by Mr Hughes and Mr Mann are similar routes to the ones that dragline operators take when they drive around draglines when they are not in operation. We take this route nearly every day on either a dozer or cable tractor to perform my duties. I may even need to walk this route.

There is no way that a dragline operator could perform their duties without driving the routes taken by Mr Hughes and Mr Mann.

The only rule that is in place is that you do not drive under the bucket and that you always allow several metres around the bucket to ensure that, if debris from the bucket did fall, you could not be harmed.” 5 (added on transcript)

[29] The Applicant put to Mr Leggett the following three examples from the statement of Mr Gustafson raised in relation to potential hazards from the employees taking the routes they had:

“If power came back on and the bucket fell or was lowered to the ground while Mr Hughes was driving under the boom, the drag ropes would also fall or lower to the ground and potentially land on Mr Hughes' vehicle. The drag ropes consist of two 127 millimetre steel ropes, which together weigh 66 kilograms per metre. Given the bucket was suspended 40 metres above the ground at a point approximately two thirds the way along the boom, there would have been a total of 80 metres of drag rope between the bucket and the cabin. If this rope fell onto a vehicle such as 12-45, it would potentially split the vehicle in two;

Similarly, if the power had come back on and the dragline subsequently swung in either direction when Mr Hughes was driving under the boom, DRE 42's cabin, feet or other part of its housing could potentially have come into contact with Mr Hughes' vehicle. Again, given the size of DRE 42, any such contact would cause catastrophic damage to the vehicle;

The investigation estimated that the point at which Mr Mann drove under the boom was 10 to 15 metres from the suspended bucket. If the bucket fell to the ground (from a height of 40 metres) while Mr Mann was driving under the boom, there is potential for the bucket to swing towards Mr Mann and make contact with his vehicle when it hit the ground. DRE 42's bucket weights approximately 78 tonnes, and any contact with a vehicle such as 12-47 would cause catastrophic damage to the vehicle.” 6

[30] In the three scenarios that Mr Gustafson outlined above, Mr Leggett considered that, as the power to the dragline was out, there was no probability of these occurring. He stated that he is familiar with the Safework instructions relevant to the restricted dragline work area.

[31] Mr Leggett concluded that taking into account the circumstances of 30 October 2012, specifically, that the power was out and the routes taken by the employees were similar to those used by the dragline operators, he didn’t consider that the warnings were warranted.

[32] The Applicant relied upon the alleged representations to the employees that, they were not made aware of any potential hazards and were informed that they could enter safely.

[33] The employees were directed at the pre-start meeting to take the vehicles to perform a service on the dragline. The employees were also informed by Mr White that there was no power to the dragline. Mr Hughes stated:

“To get to DRE42 we had to drive through DRE17. I recall stopping at the call up sign for DRE 17. I called up to enter into the area but there was no response. I was then informed by Brett White that there was no power and no operators at DRE17 and to drive through.

I then went DRE42 and stopped at the call up sign and waited. I believe that it was about 6 am at this time. Andrew Mann arrived shortly after, driving a field maintenance truck.

Whilst I was waiting, I recall seeing the bucket suspended in the air.

After approximately 10 minutes, Brett White, who was already in the area, told me over the two way to bring the crib hut into DRE42 area.

I recall that the operator of DRE42 on two way said that there was plenty of room to put the crib hut down the side and on the back of the dragline.

As my supervisor and the operator stated to come into the area I thought that there were enough controls in place to enter and commence setting up the crib hut as required and they would have said something if they considered it to be a hazard. I also noted that there was no power to the machine at the time.

However, even though they said it was ok to come into the area, I did take note of the bucket on the dragline and considered that to be a hazard. To avoid this I took a path between the bucket and the dragline house driving as close to the house as possible.” 7

[34] And further:

“I believed that this was the safest route possible as this route ensured that I did not drive under the bucket. I could not drive behind the dragline as because of the cable and I could not drive in front of it because there was a bund wall.” 8

[35] And further:

“I recall that a few drivers were concerned about entering the area and communicated their concerns to Brett White but he required them to enter into the area. I recall that his tone was quite forceful and that he even threatened people to get them into the area.

I recall that a little later, Jason Zillmann placed a hazard report in about Brett’s actions in requiring us to come into the area when we could not do anything due to the lack of power and the way that he spoke to some of the other employees.

My personal opinion was that there was no need for us to be in the area as there was nothing we could do until the power came back on. I did think that the suspended bucket was a hazard and should be avoided by taking the route described in PH1 as this was the common practice for dragline operators driving in the dragline area.” 9

[36] The Applicant submitted that the ‘Step 1’ warning was unwarranted in the circumstances and should be removed from each of the relevant employee’s files.

[37] The Respondent submitted that Mr White advised at least some of the employees driving vehicles into the area surrounding the dragline park to the right of DRE42. The right side could only be accessed by driving under the boom.

[38] The Respondent accepted that none of the vehicles that entered the site drove under the suspended bucket.

[39] The Respondent referred to the Life Saving Rules, which stated:

“Never stand, walk or work under a suspended load or an unsupported roof (underground)” 10

[40] Both parties submitted that the Commission had jurisdiction to conduct an arbitrated hearing into the dispute. 11

[41] The Respondent raised during the Hearing, as part of the evidentiary case, information regarding the completion of the BMA Safe Pocket Book 12 by the employees. I have not attributed weight to the evidence of Mr Mann and Mr Hughes (given in very similar terms) regarding their completion of, at the time of entering the area in question, the BMA Safe Hazard Checklist (the Checklist), a blank copy of which was tendered into evidence.13

[42] Neither of their Witness Statements 14 made reference to completing the Checklist and further both witnesses confirmed that they had not raised the completion of the Checklist at any time before the Hearing. Mr Humphreys, for the Respondent, emphasised that it was ‘startling’ that neither of these experienced tradespersons and mineworkers, who were seeking the Commission to redress this warning for lack of compliance with safe operating procedure, had not referred to completing the checklist, prior to entering the witness box.

[43] Mr Hughes said he didn’t tick ‘yes’ to any hazards on the Checklist. Mr Mann’s evidence was that he ‘would’ve’ or to the best of his knowledge completed the checklist without identifying any hazards.

[44] Neither of these witnesses could be certain where they could now locate the booklet with the relevant allegedly completed Checklist from 30 October 2012.

[45] Both witnesses were however adamant that they had not been questioned during the investigation about whether they had completed the Checklist, and therefore had not volunteered such.

[46] Two different routes were taken by the employees. Mr Mann’s vehicle was smaller, in comparison to the vehicle being operated by Mr Hughes which was towing the crib hut. Mr Mann stated that Mr Hughes’ vehicle was three times the length of the vehicle that he was operating at the relevant time.

[47] Mr Mann stated that he selected the safest route for his vehicle. He didn’t follow the route taken by Mr Hughes.

[48] Neither party, called the Dragline Operator, undertaking that position, on 30 October 2012, to give evidence in the matter. However the evidence of Mr Leggett, an experienced Dragline Operator, was given in a very open manner. He indicated that he was not there on that shift. However he had significant relevant operating experience and involvement with this matter through discussions in the Lodge and at the ‘State Level Conference’ on this dispute, working through the disputes procedure.

[49] In relation to the Standard Work Instruction (Version 2.0 updated 13/3/13), titled “Entering a Restricted Dragline Work Area”, Mr Leggett’s evidence was that the version was predominantly the same as the prior version, in effect at the time of the incident.

[50] The 6 meter zone inside the dragline, is a red or exclusion zone, and the yellow zone is the radius of the boom and each has particular hazards associated with it.

[51] Those working in and around draglines on a daily basis are trained in this Standard Work Instruction. Page two of this instruction provides a depiction of the signage and general pre-start and inspection routines.

[52] Mr Leggett stated that as a general proposition, it was a standard requirement that vehicles kept out of the red exclusion zone, and also that if they came within this or the yellow zone they were operating in accordance with the procedures of this Standard Work Instruction.

[53] Mr Leggett stated that he didn’t consider the area presented a hazard due to the amount of controls in place that day.

[54] Mr Leggett further stated that this was not a normal service or maintenance day. In normal circumstances, the ropes would have been on the ground after the dragline set up.

[55] In summary terms the Applicant submitted that there was no known hazard in the dragline area on the morning of the incident, given that it was a known factor that the power to the dragline was out that morning. Further, it was submitted that the employees “took a safe and well practiced route around a potential hazard, the raised bucket”. For these reasons the Applicant submitted that the employees’ actions did not warrant any disciplinary action.

[56] The employees stated that the original ‘Step 2’ warning was issued for driving under a suspended load. The Applicant disputed this on behalf of the employees as it was argued that they did not drive under a suspended load. Further it was submitted that there was no definition of what a suspended load is The Respondent’s were not able to provide such a definition. However on the evidence provided of the logistics of the boom and the bucket in practical terms, both of these represented suspended loads.

[57] Whilst the employees acknowledge the presence of the suspended bucket, they claimed that, given there was no power to the dragline, and they had specifically selected their route to minimise the potential hazards, they had not placed themselves in danger.

[58] The Respondent considered that the boom and the bucket represented a suspended load and that therefore each employee was aware that the BMA Lifesaving Rule (extracted above) applied.

[59] It was accepted by the Respondent that neither employee drove under the dragline’s bucket however “the Respondent considered the boom, and in particular the dragline ropes which run along the length of the boom and from which the bucket was suspended, still constituted a suspended load for the purposes of BMA’s Life Saving Rules” 15.

[60] The Respondent later conceded that the definition of a suspended load in relation to a dragline was not clear and reduced the disciplinary action accordingly.

[61] However the Respondent considered that:

“driving under the ropes and boom of a dragline in circumstances where the ropes were supporting a suspended bucket constituted a hazardous situation; and

Mr Hughes and Mr Mann had either failed to identify this hazard and/or manage the hazard, as they should have done.” 16

[62] The Respondent also conceded that the situation encountered by the employees was irregular as normally, when service of the dragline was to be undertaken, the bucket of the dragline is on the ground, and the service area can normally be accessed without having to drive under the dragline’s boom. The circumstances of the incident were irregular as the power outage had left the bucket suspended above the ground.

[63] The Respondent recognised that there were ‘no procedures for maintenance employees setting out how to access a dragline when the bucket is still suspended and there is no other way to access the dragline other than by travelling under the boom” 17.

[64] When all of the circumstances of the incidences have been taken into account it is understandable that the Applicant Union and employees considered there was an element of harshness in the ‘Step 2’, and the later ‘Step 1’, Warnings. This is particularly so given that this was an irregular scenario, to perform service on a dragline, where the bucket is suspended due to the power outage, and there was no procedure for entry to such an area. Further that there was no definition of a suspended load.

[65] Further it has been taken into account that the employees were directed to this area to undertake the work.

[66] The major disparity between the parties’ arguments was that the employees maintained that no hazard existed because there was no power to the dragline. Whereas the Respondent emphasised that the power may have come back on, thus “the potential for a controlled or uncontrolled movement of the bucket and ropes arises” 18.

[67] A series of mitigating factors have been recognised, including the employees’ history of employment and Mr White’s direction to them to “park their vehicles to the right of DRE42, which necessarily involved them driving under the boom”. In addition other employees and a contractor (none of whom drove vehicles directly under the suspended bucket) queried this with Mr White or were concerned about the situation.

[68] The Respondent’s position with the remaining ‘Step 1’ warning was that the dragline’s boom and ropes were a hazard that should have been identified by the employees.

Conclusion

[69] The Commission does not need to emphasise to the parties at hand, that safety is a significant issue on a mine site. Repeatedly, these parties have demonstrated that they take safety seriously and expect adherence to safety procedures and policies for the protection of all, on an inherently dangerous worksite where safety breaches can have, and have had, grave outcomes. The situation in question was not one that was regularly faced by the employees and therefore there was no prescriptive response to follow. Such situations will arise on a mine site from time to time.

[70] However it is for these reasons that the Respondent argued that an employee would never be disciplined for taking a cautious, safety based approach, to a potential hazard. The circumstances of the direction to the employees have been acknowledged by the Respondent and for these reasons associated disciplinary action has been adopted with the Supervisor.

[71] It is with this in mind that it may be prudent for BMA, consistently with their submissions in this matter, to consider reviewing their policies and training in this regard and reaffirming to their employees that their safety is paramount and that they do have the option of raising genuine safety concerns prior to undertaking tasks.

[72] Each individual bears an onus on a mine site for their safety and the protection of others. BMA reinforce the importance of individual responsibility in their approach to safety and in their overall Safety Culture.

[73] This matter has had a number of relevant issues to consider and they have been addressed by the representatives with the luxury of time and hindsight, whereas the employees in this matter had to decipher a range of issues in a very short space of time.

[74] However the priority, in any situation that confronts a mineworker, is, and should be, safety. Safety of both the individual Mineworker, but also safety of all others who could be affected by their actions (or lack of). These employees are clearly experienced Mineworkers and this incident should not overshadow their record and length of service. However, the incident did involve a potential hazard and accordingly the safety of the employees was at risk.

[75] The situation invokes the application of the BMA Life Saving Rules. Accordingly, taking into account all of the other relevant factors as outlined, the disciplinary response reduced to a ‘Step 1’ Warning, was appropriate.

[76] The question for arbitration is answered as follows:

In all of the circumstances, was the disciplinary action taken by the Respondent against Mr Hughes and Mr Mann justified?

ANSWER: Yes.

[77] I Order accordingly.

COMMISSIONER

 1   Exhibit 6 at paragraphs 6-8

 2   Applicant outline of submissions at paragraph 15 - 27.

 3   Applicant outline of submissions at paragraph 23.

 4   Exhibit 1, Annexure PH1 and Exhibit 5, Annexure AM1.

 5   Exhibit 6 at paragraphs 6-8.

 6   Exhibit 7 at paragraph 36(a) to (c).

 7   Statement of Mr Hughes at paragraph 9 to 15.

 8   Ibid at paragraph 17.

 9   Ibid at paragraph 19 to 21.

 10   Respondent outline of submissions at paragraph 11.

 11   Applicant outline of submissions at paragraph 1. Respondent outline of submissions at paragraph 4.

 12   Exhibit 4.

 13   Exhibit 2.

 14   Exhibit 1 and Exhibit 5.

 15   Respondent outline of submissions at paragraph 12.

 16   Respondent outline of submissions at paragraph 16.

 17   Respondent outline of submissions at paragraph 21.

 18   Respondent outline of submissions at paragraph 28.

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