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

[2013] FWC 3557

[2013] FWC 3557

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
(C2013/3140)

Coal industry
COMMISSIONER SPENCER	BRISBANE, 11 SEPTEMBER 2013

alleged dispute regarding issuing of "Step 2" disciplinary warning.

[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 an employee, Mr Ashley Barnham, a member of the Applicant Union.

[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, by consent, in accordance with the disputes procedure. Directions were issued for the parties to agree upon the questions for arbitration. By agreement between the parties the questions for determination are:

1. Can Mr Ashley Barnham’s actions on 20 April 2011 be classified as a ‘failure to take reasonable action to ensure others are not exposed to an unacceptable level of risk as per the Coal Mining Safety and Health Act’ as alleged by the Respondent; and

2. If so, did his actions warrant a ‘step 2 – written warning’?

[3] Both parties submitted that the Commission had jurisdiction to conduct an arbitrated hearing into the dispute. 1

[4] Once the questions for arbitration were agreed Directions issued for the filing of submissions and evidence in preparation for the hearing. Both parties filed material in accordance with Directions.

[5] 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 Steve Smith, Partner of Herbert Smith Freehills.

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

Background

[7] The Applicant was employed by the Respondent at the Peak Downs mine site (Peak Downs) as a serviceman and has been employed by the Respondent for approximately 7 years and worked for a significant period of time in the Mining Industry; a period of over 30 years. It was submitted that he had never received a warning and never breached a policy. Mr Barnham has also been involved in mine rescue services. It is understandable that given his record he was very concerned about the imposition of the warning and understandable that the CFMEU brought the application and provided appropriate representation of him in the proceedings.

[8] On 20 April 2011 an incident occurred where a vehicle driven by Mr Barnham reversed into another light vehicle.

[9] Mr Barnham, and the driver of the light vehicle, reported the incident and made statements about the incident. On the next shift Mr Barnham was stood down, pending an investigation.

[10] An investigation into the event occurred, resulting in an investigation report being produced pursuant to the Coal Mining Safety and Health Act 1999 (Qld) (the Coal Mining Act).

[11] As a result of the investigation, the report, and discussions between the Respondent and Mr Barnham, a “Step 2” written warning (the warning) was issued by letter dated 6 May 2011.

[12] The disciplinary decision was made pursuant to Part 3 of the Respondent’s “Just Culture Decision Tree Form” 2which indicates the errors that occurred were :

“Not sounding horn 3 time[s] before moving backwards

Not selecting reverse and rolling backwards

Not using offside mirror after initial check and moving backwards”

[13] It is the issue of the disciplinary warning which is the subject of the dispute in this matter.

Relevant provisions of legislation and the Agreement

[14] 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.”

[15] 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

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”

[16] The dispute was brought pursuant to the terms of an enterprise agreement being the BMA Enterprise Agreement 2012 (the Agreement). This matter traversed the interchange between the 2007 and 2012 BMA Agreements. This matter was raised with the parties with both party conceding that there is no material difference between the two that is relevant to the determination in this matter.

[17] However, the incident the subject of this matter occurred during the operations of the 2007 Agreement. Clause 31 of the 2007 Agreement provided:

31. DISPUTES SETTLEMENT PROCEDURE

31.1 In the event of a dispute where a matter arises pertaining to this Workplace Agreement or in the course of employment, this procedure will be enacted, so that matters are dealt with at the local level to the maximum extent possible

31.2 When a matter arises, it shall in the first instance be discussed between the employee and the immediate supervisor involved.

31.3 If the matter remains unresolved, it shall be committed to writing and referred for discussion between the employee, a representative of the employee’s choice, if requested, and the relevant Department Manager (or in the event of their absence, their nominated representative).

31.4 If the matter remains unresolved, it shall be referred for discussion between the employee, a representative of the employee’s choice, if requested, and the General Manager (or in the event of their absence, their nominated representative)

31.5 If the matter remains unresolved and the employee’s nominated representative is a union delegate, the issue may, at the employee’s request, be referred to the appropriate National, District or State Union Officer or their Nominee who will discuss the matter with Senior Officers of the Company.

31.6 If the matter remains unresolved, it shall be referred for discussion between a senior officer of the Company and a representative of the employee’s choice.

31.7 Where the matter remains unresolved, the Company or employee, or employee representative of their choosing, may refer the matter to the AIRC or, by agreement of both parties, an agreed private arbitrator or mediator to conciliate on the matter.

31.8 By agreement, the Company, the employee and the employee's representative may bypass any of these steps in the interests of speedy resolution of the grievance.

31.9 Provided that all the above Steps have been exhausted, the AIRC may conciliate or arbitrate in relation to the matter in dispute.

31.10 For the purpose of making conciliation under this Clause effective, when conciliating, the AIRC shall be able to do any of the things listed in section 111(1) of the Act, excluding subsections 111(1) (d), (e), (h), (k), (p) and (q). In addition, when conciliating under this Clause, the AIRC can dismiss the matter or issue a statement or recommendation (but not a decision).

31.11 For the purpose of making arbitration under this Clause effective, when arbitrating, the AIRC shall be able to do any of the things listed in section 111(1) of the Act excluding sub-sections 111(1)(d), (e) and (k). In addition, when arbitrating under this Clause, the AIRC can dismiss the matter.

31.12 During any conciliation or arbitration proceedings before the AIRC under this Clause, either party may choose to be represented by a legal practitioner.

31.13 If the AIRC issues a decision in writing under this Clause, the decision and reasons for the decision will be provided in writing to the parties.

31.14 Where the AIRC issues a decision in writing under this Clause, it shall be binding on the parties and persons bound by this Agreement in accordance with its terms.

Summary of Applicant submissions and evidence

[18] The Applicant submitted that Mr Barnham did not contribute to the incident. The Applicant submitted that this was so, because the cause of the incident was the actions of the driver of the other vehicle. Mr Barnham, it was submitted did not contribute to the incident.

[19] The Applicant submitted that the actions of the supervisors (one of whom was the driver of the second vehicle which contributed to the incident) included a failure of the supervisors to make positive communication with either Mr Barnham or the operator of the vehicle that Mr Barnham was there to service. This action was submitted to be in breach of the Respondent’s policy the “Safe Operation of Vehicles and Mobile Equipment policy” (the Safe Policy).

[20] Further to this the Applicant submitted that the second vehicle was parked within 50 meters of the service truck operated by Mr Barnham. This was also submitted to be a breach of the Safe Policy.

[21] In relation to the incident the Applicant stated:

“In addition, he states that he would be surprised that the horn would have avoided the incident as the dozer had started up at the time Mr Barnham was reversing and that the sound of the dozer that was parked next to his service vehicle would have drowned out the noise of his horn.

But, regardless of whether or not the horn was sounded, if the supervisors had parked outside the 50 metre radius, as required, the incident would not have occurred.

The third item that the Respondent relied upon to state that Mr Barnham failed to take care, was the manner in which he reversed the service truck.

Mr Barnham states that when he reversed the truck, he had placed the truck in first gear and used the incline in which the truck was parked to reverse the truck backwards.

The Applicant submits that the Respondent’s “Safe Operation of Vehicles and Mobile Equipment” policy or indeed any other policy does not prevent employees from operating a truck in the manner that Mr Barnham performed.

Therefore, the Applicant submits that the cause of the incident was not the fault of Mr Barnham and that his actions cannot amount to a conclusion that his actions amounted for a failure to take reasonable care.

The Applicant submits that Mr Barnham’s actions did not amount to a “failure to take reasonable action to ensure others are not exposed to an unacceptable level of risk”. However, if the FWC does believe that the Mr Barnham’s actions, as described did amount to a failure as described, then the Applicant submits that the warning issued, step 2, is too harsh.

In disciplining Mr Barnham, the Respondent used their ‘guideline to fair play policy.’

This policy has a ‘just culture decision tree’ which splits incidents into two distinct sections intentional and unintentional. The Applicant submits that this incident would fall into the unintentional section due to the manner in which the incident occurred, with reference to the supervisors’ actions, and the damage caused as a result of the incident.

The Applicant submits that, under the policy, Mr Barnham’s actions, if judged to be a failure to take care, must be judged as a slip or lapse.

If considered to be a slip or lapse, then the Applicant submits that a step two warning is too harsh.

The Applicant submits that when you view any action that Mr Barnham took that could have been construed as a failure to take reasonable care, compared to the actions of the other employees and the damage caused for the incident, a step two warning is too harsh and a lesser, or no penalty, should have been issued.” 3

[22] The result of the breaches identified above was, in the Applicant’s submission, that Mr Barnham was unaware that the supervisors were in the area and that when Mr Barnham reversed his vehicle he was unaware of the light vehicle that was parked by the supervisors. It was submitted that if the supervisors had not made either of the breaches above then the incident would not have occurred.

[23] Mr Barnham stated:

“I recall that I explained to him that I believed the reason that the incident occurred was because Phil Thomas parked within the 50 metre buffer zone of my service truck.

Gary then stated to me words to the effect that supervisors can go and do what they like. He also stated words to the effect that they (the supervisors) don’t have to tell me what they are doing.

I recall being startled by this response and I replied with words to the effect that I don’t think that’s right.

Gary then responded with words to the effect that that is how it is.” 4

[24] Mr Barnham stated that the supervisors involved in the incident were not following critical safety procedures. It was put to Mr Barnham that even if he didn’t know supervisors were there he could have taken necessary precautions to reduce and eliminate risk.

[25] The Respondent issued the warning to Mr Barnham on the basis of the outcome of an assessment of the incident against the “just culture decision tree”. The just culture decision tree was utilised to consider the alleged breaches. The Applicant disputed the findings, which the Respondent relied upon, to support the safety breaches.

[26] The substance of the dispute primarily relates to a factual dispute regarding the conduct of the Applicant in relation to the safety breaches. The Applicant submitted that further consideration should also be had of the factual scenario in which the alleged inaction of the Applicant was said to have occurred and whether the inaction, if it occurred, would have contributed to the incident.

[27] The Applicant submitted that Mr Barnham’s evidence is that he did check his mirrors and believed that he sounded the horn. The Applicant also submitted that Mr Barnham was advised several times that he had done nothing wrong.

[28] The Applicant principally submitted that Mr Barnham’s actions or inactions did not amount to “a failure to take reasonable action to ensure others are not exposed to an unacceptable level of risk”.

[29] In this regard the Applicant submitted that the Respondent’s “guideline to fair play policy” (the Fair Play Policy) that includes the just culture decision tree refers to considering incidents in two categories; intentional and unintentional. The Applicant submitted that Mr Barnham’s actions (or inactions) were unintentional and should be considered a “slip or lapse” as that phrase applies under the Fair Play Policy.

[30] In the context of the submissions discussed above the Applicant submitted that the warning issued was too harsh. The Applicant was relying on the 50m exclusion zone, and the relevant precautions that were submitted that the other employees involved in the incident should have implemented. He considered that this zone and the positive communications were a protection. He considered his actions did not contribute to the incident. It was put to him that simply these two elements do not eliminate the need to engage in other safety practices. Mr Smith put to Mr Barnham that he was moving the vehicle and he agreed he didn’t walk around the vehicle and he didn’t specifically recall using the horn. The evidence is that the vehicle also was not put in reverse gear so the reversing alarm didn’t sound.

[31] The Applicant submitted that a lesser, or no penalty, should have been issued by the Respondent in relation to the incident. The Applicant submitted that the warning should be removed from Mr Barnham’s file.

[32] The evidence of Mr Pierce, District Vice President (CFMEU - Mining and Energy Division), was also taken into account. He referred to the standard operating process of and safe operation of vehicles and mobile equipments that he stated were in place at the time.

Summary of Respondent submissions and evidence

[33] The Respondent submitted that both of the questions for arbitration should be answered in the affirmative.

[34] The Respondent submitted that the Standard Operating Procedure 030-01 Mine Traffic Rules (the Traffic Rules) were in operation at the time of the incident and that the Applicant ought to have been aware of the Traffic Rules and the obligations it imposed upon him.

[35] The Respondent took into account that Mr Barnham, had not received positive communications from anyone entering his exclusion zone.

[36] The Respondent submitted that a safety investigation was conducted into the incident and that the safety investigation was a separate and distinct process to the disciplinary process against Mr Barnham. The Respondent submitted that the disciplinary process did not commence until after the findings of the safety investigation were available.

[37] Once the disciplinary process commenced a number of meetings occurred with Mr Barnham, along with his representative, and Mr Gary Morgan, the Ancillary Contract Maintenance Superintendant at the time of the incident.

[38] A meeting occurred on 6 May 2011 at which an opportunity was given to Mr Barnham to respond.

[39] Following this meeting Mr Morgan considered all matters raised by Mr Barnham in response, in conjunction with the material that was before him. The Respondent submitted that the recommendation to the Respondent that resulted from the disciplinary process was that a step 3 final written warning should be issued. The Respondent, after further consideration, downgraded this recommendation to a step 2 warning.

[40] In relation to the factual matters in dispute, the Respondent submitted that Mr Barnham did not continue to check his mirrors as the vehicle was reversing/rolling backwards.

[41] The Respondent submitted that any comments that may have been made to the Applicant, regarding his “fault” in the incident, were made prior to the investigation of the incident and therefore before the cause of the incident had been determined.

[42] The Respondent submitted that the Coal Mining Act defines an unacceptable level of risk as “risk that is not at an acceptable level”. It was further submitted that, what constitutes unacceptable in any context is to be determined on a case-by-case basis.

[43] The Respondent submitted that the result of the safety investigation was that the incident was caused by:

“a. No positive communication being used when the light vehicles entered within 50 metres of an active servicing area;

b. The light vehicles being parked to the left rear of the service truck, in Mr Barnham’s blind spot;

c. The reverse gear not being selected when the service truck moved backwards downhill, preventing the reverse alarm from sounding;

d. Horn signals not being used prior to the service truck moving backwards; and

e. No dedicated light vehicle parking area on the dump or demarcated service area in place.” 5

[44] Of these findings Mr Gary Morgan stated that causes (c) and (d) (extracted above) were attributable to Mr Barnham:

[45] Mr Morgan considered that had Mr Barnham followed the relevant safety rules, the accident could have been prevented. Mr Morgan stated “everything is around potential. The potential of accidents occurring on site and how to avoid them”.

[46] In response the Respondent submitted that had Mr Barnham continued to check his mirrors, rather than simply before moving the vehicle, he would have seen the vehicles parked behind his vehicle.

[47] Further the Respondent submitted that Mr Barnham’s evidence was not that he did beep his horn but that it was his “usual practice” to do so. The Respondent submitted that the evidence of the supervisors in the safety investigation was that they did not hear a horn.

[48] In concluding that Mr Barnham had not sounded his horn , Mr Morgan took into account that Mr Barnham couldn’t at the interview recall sounding his horn three times and the drivers of the light vehicles can’t recall hearing it:

“While I did not specifically refer to the Mine Traffic Rules during my meetings with Mr Barnham on 21 April and 6 May 2011, as an experienced operator with over 15 years’ experience, Mr Barnham should have been aware of his obligations under those Rules, which are generally industry-standard rules at any coal mining operation.

It is my understanding that at first, Mr Barnham said he could not remember blowing the horn. Mr Barnham now says he blew the electric horn on the steering wheel, rather than the air horn.” 6

[49] Mr Morgan stated that the actions that should have been taken to prevent the incident were:

“Under the Mine Traffic Rules, light vehicle drivers are obliged to make positive communication when entering within 50 metres of an active servicing area. This did not occur in the circumstances. Annexure GRM-9 is a copy of the Mine Traffic Rules.

The Mine Traffic Rules also require drivers of medium and heavy vehicles to sound their horn three times before moving their vehicle in reverse. After sounding the horn, and before starting or moving their vehicle, the driver is then required to pause for 10 seconds to allow people to move to a safe position. A medium or heavy vehicle must not be reversed unless:

The driver has checked the rear and sides of the vehicle to ensure it is free of any obstruction or other vehicle;

The driver has a clear view to the rear of the vehicle; or

The driver is being directed by another person who does have a clear view of the sides and the rear of the vehicle and positive communication methods have been established.” 7

[50] The Respondent submitted that had Mr Barnham put the vehicle into reverse, as was required, the vehicle would have sounded the reversing alarm which would have alerted the supervisors to move the other vehicles.

[51] The respondent submitted that a reasonable person in similar circumstances to that of the incident would have taken the steps that Mr Barnham failed to take.

[52] The Respondent submitted that the actions of Mr Barnham contributed to the incident in question and that the actions of others, in this case the supervisors, does not absolve Mr Barnham from his involvement in the incident.

[53] The Respondent submitted that the actions warranted the warning at the level it was issued at.

[54] Mr Morgan stated:

“In these circumstances, I would have expected a reasonable person to drive the truck in a forward direction around the dozer rather than reversing the truck or letting it roll backwards. If it was necessary to move the truck backwards, I would also expect a reasonable person to have engaged reverse gear (rather than first or neutral) and to keep an eye on his or her mirrors to ensure there was nothing behind the truck.

If Mr Barnham had continually looked in the mirrors while letting the truck roll backwards, the two light vehicles parked behind the truck would have come into his vision and the truck would not have made contact.

The Mine Traffic Rules also require drivers of medium or heavy vehicles to do a walk around their parked vehicle before driving off. If Mr Barnham had walked around his service truck, he would have seen the two light vehicles. If that had occurred, Mr Barnham would have been obliged to report that the drivers of the two light vehicles had parked within 50 metres of an active servicing area without making positive contact before doing so.”

[55] In response to the appropriateness of the disciplinary action the Respondent submitted that the step 2 warning was justified and appropriate. The status of Mr Barnham as an experienced mineworker and heavy vehicle operator as well as a member of the Mine’s rescue squad meant that Mr Barnham should have known his obligations under the Mine Traffic Rules. In addition the post-incident actions were taken into account:

“After the Incident occurred, a number of actions occurred at site to prevent the re-occurrence of a similar incident. This is consistent with the seriousness of the Incident. For example, the Preliminary Incident Details presentation (Annexure GRM-1) was rolled out to all employees. In addition, Mine management reviewed all light vehicle authorisations across the site and a restricted list of personnel authorised to operate light vehicles was developed. I believe that one way to reduce the number of light vehicle incidents is to reduce the number of people driving light vehicles on the Mine.

Other recommended actions are detailed on page 6 of the Investigation Report (Annexure GRM-2). To the best of my knowledge, all other actions were implemented by their target date, including three or four safety presentations to all employees at the Mine.

The Incident itself caused significant disruption to the Mine. As a high potential incident, BMA was obliged under the Coal Mining Safety and Health Act 1999 (Qld) to report the Incident to the Inspector. In addition, the Mine itself was shut down during the afternoon of 20 April 2011.” 8

Consideration

[56] The primary matter for determination is firstly a factual one. Did Mr Barnham fail to take the steps that are alleged? That is did he fail to beep the horn, put the vehicle into reverse and check his mirror.

[57] Mr Morgan stated:

“In response to paragraph 54 of the Barnham statement, I say that it would be expected at the Mine that if you need to move a vehicle backwards, you would engage reverse gear so that the reversing alarms would sound, letting people know that the vehicle is reversing. The reversing alarms are specifically fitted to every mobile piece of equipment at the Mine, including all light vehicles, trucks, tractors and dozers.

In response to paragraph 55 of the Barnham statement, I say that while engaging the truck in first or neutral gear did not in itself contribute to the incident, if Mr Barnham had engaged reverse gear, the reversing alarm would have sounded. Mr Thomas and Mr Smith would have then heard that reversing alarm and could have moved their light vehicles out of the way.

In response to paragraphs 56 to 59 of the Barnham statement, I say that:

a) Mr Thomas and Mr Smith were not solely responsible for the Incident. Mr Barnham’s actions contributed to the Incident occurring.

b) The ‘extra precautions’ which Mr Barnham refers to are actions he should have taken in any event to ensure he did not reverse into another vehicle, other equipment or any people.

c) While Mr Barnham may not have seen the vehicles parked behind the truck, he could have taken the following measures to avoid backing into them:

i) Walking around the truck before getting back inside to ensure there was nothing in the way;

ii) Blowing his horn three times before reversing;

iii) Engaging the truck in reverse gear to ensure the alarm sounded; and

iv) Continually checking his mirrors while reversing.”

[58] Primarily the Respondent characterised Mr Barnham’s actions as an unintentional lapse. In terms of the decision-making process Mr Morgan stated:

“My recommendation to issue Mr Barnham with a Step 3 Final Written Warning (which was subsequently downgraded to a Step 2 Formal Warning) took into account Mr Barnham’s failure to:

a) Blow his horns three times in accordance with the Mine Traffic Rules;

b) Select reverse gear when moving the truck backwards so that the reversing alarm would sound; and

c) Continue to check his mirrors while moving backwards.

In addition, I considered how the Incident could have been prevented if Mr Barnham had taken the above actions and the potential for the outcome of the Incident to be much worse, for example, Mr Barnham could have run over and killed or seriously injured a co-worker. I did not consider Mr Barnham’s length of service or any other factors when making my recommendation. However in my view, an employee with the same level of experience as Mr Barnham should know the applicable rules and regulations at the Mine and would not have acted in the same way as Mr Barnham.

In addition, I understand that Mr Barnham is a rescue squad member. Although I did not take Mr Barnham’s status as a rescue squad member into account when making my recommendation, Mr Barnham should have known about his obligation to secure the site after the Incident, rather than driving the vehicles to the service bay, regardless of what Mr Smith or Mr Thomas may have told him to do.” 9

[59] Mr Morgan stated that these actions had the potential to cause serious damage, injury or death. Mr Morgan was only directly involved in the consideration of the disciplinary action of Mr Barnham but he was aware that the supervisors involved, received a more severe disciplinary outcome at level 3 warning with an unpaid suspension.

[60] Mr Barnham’s actions were characterised as an unintentional lapse, with a high potential incident. An unintentional lapse does not mean that the conduct escapes discipline. The high potential nature of the actions, in that they could cause death or injury, was why Mr Morgan recommended that Mr Barnham be issued a step 3 warning. Whereas it was stated that a step 2 warning is less commensurate with serious incidents not a high potential incident.

[61] The incident was ranked as a high potential incident that is, a collision between vehicles, and under Coal Mining Health & Safety regulations an inspector must be informed and subsequently came to site.

[62] Mr Morgan chose not to argue that Mr Barnham’s actions caused the incident. However, Mr Morgan stated that Mr Barnham was accountable as he did not take precautions (as required by his duty of care obligations) to prevent the incident. The Respondent argued that Mr Barnham had a minimum duty to protect himself and others on the mine site.

[63] The Respondent’s “Just Culture Decision Tree” provides a flow chart to be used to assess the appropriate disciplinary outcome and further it contains the questions to be asked in assessing the matter under the Tree. These questions are:

“Was the error intentional or unintentional”

Was a safe operating procedure violated? If yes, were the procedures adequate and available?

Could an equally competend person make the same mistake? If no, were the deficiencies in training, experiences or selection?

Is there a history of unsafe actions in the individual or group?

For unintentional violations, was the error due to a mistake, slip or lapse and has the individual made s

olations, was the error due to cultural violation (generally not complied with) or was it due to a deviant violation (an individual deliberately chose not to comply with the requirement).

Intentional violations are more unacceptable than unintentional violations, with deviant violations being totally unacceptable and not tolerable. Cultural violation (sic) are no longer cultural when a line is drawn in the sand and it is clear the behaviour is no longer acceptable.

Where an individual makes repeated unintentional mistakes, slips or lapses the behaviour will be deemed unacceptable.” 10

[64] Mr Morgan’s evidence was that he didn’t take Mr Barnham’s safety and disciplinary history into account. However in the Respondent’s submission this history was considered in downgrading the warning from a level 3 to a level 2 warning.

[65] In a recent Full Bench decision regarding the dismissal of an experienced tradesman, for an alleged safety breach, the decision considered the factor of previous history can be factor both a positive and negative factor in considering disciplinary outcomes. The Full Bench said as follows:

“The other matters that are relevant include the length of service and previous history of the [employee]. The [employee] is experienced and has had a good record with the [employer]. These issues generally weigh in favour of the [employee’s] application. However, at the same time they weigh against the [employee]. A tradesman with his expertise and experience should readily acknowledge and be willing to participate in discussions about safer conduct.” 11

[66] Whilst the Applicant in the current matter did participate in the investigations, and his history should have been taken into account, this history and experience also indicates that given his knowledge and experience his conduct was not acceptable and warranted a disciplinary outcome.

Conclusion

[67] The Full Bench decision in GlaxoSmithKline Australia Pty Ltd v Makin 12 dealt with the review of decisions regarding unsafe work practices by the Commission. Whilst this matter specifically dealt with ‘public interest’ tests on appeal under the legislation at that time, the principle enunciated generally was that where significant error cannot be demonstrated in the decision as first instance to demonstrate a substantial injustice, such decision should not be interfered with. This correspondence to the current matter and the decision of the employer under review.

[68] Coal mines are inherently dangerous workplaces. For this reason safety procedures and policies are assiduously monitored by the employer and a high expectation of exacting adherence to them is required. As Mr Morgan stated in his evidence this approach to safe is all about avoiding the potential risk to people.

[69] The Respondent’s position was that although it was clearly recognised that the supervisors actions attributed to the incident, such did not negate Mr Barnham’s actions that also contributed to the incident.

[70] Taking into account Mr Barnham’s evidence regarding whether he blew the horn, on the balance of probabilities, Mr Barnham did not activate his horn three times as required. He further failed to utilise the reverse gear which would have activated the reversing alarm and therefore alerted those in his 50m exclusion zone.

[71] It is emphasised that those other employees entered this zone, without calling up Mr Barnham, and therefore making him aware that others had entered his zone and thus alerting him to their presence. However Mr Barnham’s obligations in engaging in the safe practice procedures are not dependent on the actions of others. As Mr Morgan stated the safety procedures are designed to take account of the potential risk, the potential for breaches to occur and therefore the procedures act as a further overlay to avoid the potential for further risk.

[72] In relation to checking his mirrors Mr Barnham’s evidence is not accepted. Mr Barnham maintained throughout that even with his continual checking of the mirrors whilst reversing he was not going to see anything until he was right on top of it. This cannot be accepted on the basis of the evidence, common logic or even the common experience of driving a car. The reasons why wing-mirrors are put on cars is so that you can see what’s behind the vehicle, particularly while reversing. On the balance of probabilities the Applicant did not continually check his mirrors or the incident would more than likely have been avoided as Mr Barnham would have seen the other vehicle as he reversed in an arc.

[73] In cross-examination the following exchange occurred:

“So at least on your evidence what you're just telling us, within a metre before the collision when you could have seen them at some point with the reversing camera looking straight down, and you hit them, you were no longer checking your mirrors or anything and so you drove off?---Yes, that's right.” 13

[74] If Mr Barnham had walked around his vehicle (whilst this requirement is disputed by the Applicant), if he had put the vehicle in reverse, hence sounding the reversing alarm and had he checked his mirrors whilst gradually reversing, the incident could have been avoided. The outcome of the incident, in safety terms, could have been grave.

[75] The partial defence submitted by the Applicant, that others didn’t take steps to prevent risk, is unacceptable of any person on a mine site. The operation of the workplace health and safety legislation in this area, and the operation of the policies and procedures of the Respondent are such, that a duty is imposed upon every person to take steps to avoid risk of injury. If every person was free to assume that everyone else would comply with safety policy and procedures and that therefore they did not need to take steps that were open to them, to reduce or eliminate risk then the entire purpose of safety legislation and systems would be defeated.

[76] A duty was on the other employees involved in this incident just as there was a duty on Mr Barnham to minimise risk. Those matters that Mr Morgan found attributable to Mr Barnham could easily have been avoided by taking steps which should be second nature to a mine worker of significant experience such as Mr Barnham.

[77] It is recognised that Mr Barnham was very concerned about the disciplinary outcome forming part of his unblemished record over a significant length of service.

[78] In considering all of the factors associated with this matter, if in the final assessment, Mr Barnham’s length of service, and record (which was free from disciplinary and safety breaches) had not been taken into account, this determinate would have ordered the reduction of the original warning to a lesser, Step 2 Warning. However, this final disciplinary response (of a Step 2 Warning), on a consideration of all of the material and for the aforementioned reasons is an appropriate response to Mr Barnham’s role (as set out) in this high potential incident.

[79] The questions for determination are answered as follows:

Can Mr Ashley Barnham’s actions on 20 April 2011 be classified as a ‘failure to take reasonable action to ensure others are not exposed to an unacceptable level of risk as per the Coal Mining Safety and Health Act’ as alleged by the Respondent

ANSWER: Yes, Mr Barnham’s actions, on 20 April 2011, can be classified as a ‘failure to take reasonable action to ensure others are not exposed to an unacceptable level of risk as per the Coal Mining Safety and Health Act’.

If so, did his actions warrant a ‘step 2 – written warning’?

ANSWER: Yes.

[80] I Order accordingly.

COMMISSIONER

 1   Applicant outline of submissions at paragraph 1. Respondent outline of submissions at paragraph 3.

 2   Statement of Gary Ross Morgan, Annexure GRM-7.

 3   Applicant submissions at 18 to 29.

 4   Statement of Ashley Barnham at 38 to 41.

 5   Respondent outline of submissions at paragraph 28.

 6   Statement of Gary Morgan at 34 to 35.

 7   Statement of Gary Morgan at 32 to 33.

 8   Statement of Gary Morgan at 49 to 51.

 9   Statement of Gary Morgan at 42 to 44.

 10   Statement of Gary Morgan Annexure GRM-6, Guideline to Fair Play.

 11   Haigh v Bradken Resources Pty Ltd [2013] FWCFB 2918 at [63].

 12   [2010] FWAFB 5343.

 13   PN245.

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