Patrick Projects Pty Ltd v The Maritime Union of Australia

[2012] FWA 5614

[2012] FWA 5614

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Patrick Projects Pty Ltd
v
The Maritime Union of Australia
(C2012/4363)

COMMISSIONER CLOGHAN PERTH, 11 JULY 2012

Alleged industrial action at Patrick Projects Pty Ltd in Henderson.

[1] On 28 June 2012, Patrick Projects Pty Ltd (“the Employer” or “Patrick Projects”) made application to Fair Work Australia for an order that:

● the Maritime Union of Australia (MUA);

● MUA officers, employees, agents and delegates (collectively described as “MUA Representatives”); and

● employees of the Applicant who satisfy the following criteria:

(i) who are (or are eligible to be) members of the MUA;

(ii) who are employed to perform work at the Australian Marine Complex (“AMC”) Henderson for the Gorgon Project; and

(iii) whose employment is subject to the Patrick Projects Pty Ltd AMC Cargo Handling Agreement 2012-2015 (collectively “the Respondents”)

stop organising and refrain from further organising or recommencing industrial action at the Patrick’s stevedoring operations at the AMC, Henderson, Western Australia.

[2] The application was made pursuant to s.418 of the Fair Work Act 2009.

[3] A hearing into the application took place on 29 June 2012. At the conclusion of the hearing, I made an Order known as the AMC Gorgon Project Prevent Industrial Action Order 2012.

[4] These are the written reasons for issuing the Order.

[5] At the hearing, Patrick Projects was represented by Mr D Fletcher, of counsel, Middletons. Evidence on behalf of Patrick Projects was given by Mr D Burton, Business Manager. The Respondents were represented by Mr L Edmonds of counsel.

RELEVANT BACKGROUND FACTS

[6] The AMC is located 23 kilometres south of Perth and is a supply base for the Gorgon Project.

[7] The Gorgon Project will develop the Gorgon and Jansz gas fields located within the Greater Gorgon Area about 130 kilometres off the north-west coast of Western Australia. The Gorgon Project is described as the largest single natural gas resource project in Australia’s history.

[8] Patrick Projects is primarily a marine transportation and logistics organisation and currently employs approximately 170 employees at the AMC to perform stevedoring work for the Gorgon Project pursuant to the Patrick Projects Pty Ltd AMC Cargo Handling Agreement 2012-2015 (“the Patrick AMC Agreement”).

[9] The Patrick AMC Agreement was approved by myself on 27 April 2012 and Patrick Projects commenced its stevedoring operations for the Gorgon Project at the AMC site on 29 April 2012.

[10] The Patrick AMC Agreement has a nominal expiry date of 30 June 2015.

[11] The RollDock Sun is a supply vessel for the Gorgon Project. The RollDock Sun is a heavy load carrier and sails under a Netherlands flag. The RollDock Sun is berthed at the AMC with what is described as a non-Australian or foreign crew.

[12] Initially, the RollDock Sun arrived in what was specified as the Fremantle Port precinct on or about 13 June 2012.

[13] Shortly after 13 June 2012, the Employer required, before the RollDock Sun relocated to the AMC, a Shift Manager and three elected health and safety representatives to “conduct an inspection to ensure it [RollDock Sun] was of suitable standard for us [Patrick Projects] to employ our people on, and that it was safe” 1. Approximately, 12 safety concerns were raised and provided to the vessel operator to remedy.

[14] By 25 June 2012, the RollDock Sun had relocated to Berth 5 at the AMC site.

[15] On 25 June 2012, a group of elected health and safety representatives and a MUA organiser boarded the RollDock Sun 2. Further, on 27 June 2012, approximately 10-15 employees were aboard the RollDock Sun as a working group3.

[16] On 26 and 27 June 2012, the Employer initiated a two day “stop for safety” initiative to resolve a variety of safety issues at the immediate work site. During the “stop for safety” elected site health and safety representatives, and other individuals, worked through safety related issues. All issues were resolved or a plan of action agreed upon. 4

[17] I now turn to safety meetings and related matters.

[18] On 29 April 2012, Patrick Projects commenced its contract at the AMC.

[19] The first meeting of the Health and Safety Committee (“the H&S Committee”) was on 9 May 2012 at 10:00 am. The meeting carried over matters from the previous contractor, Offshore Marine Services Pty Ltd (OMSA). At the meeting, two health and safety representatives advised that they had been working on a “man overboard system” to put to the H&S Committee 5. The meeting concluded at 3:00 pm.

[20] On the same day, 9 May 2012, at either 9:00 am or 7:00 pm, Mr James Stewart, an elected O&H representative, who was also at the H&S Committee meeting, issued a Provisional Improvement Notice (PIN) in relation to a man overboard procedure.

[21] Mr Stewart had formed the opinion that the Employer was contravening s.19 of the Occupational Safety and Health Act 1984 (WA). The grounds of this opinion are that the Employer was, “not providing a safe system of work in relation to adequate man overboard procedure supported by a risk assessment” 6 (my emphasis). I was not provided with the risk assessment. The PIN required the “matter” be remedied by no later than 20 June 2012.

[22] On 29 May 2012, Mr Andrew Dobbs issued a Stop Work Authority (SWA) on the Gavea Lifter which is a vessel which alternates between being a barge and a berth. For the purpose of this dispute, the Gavea Lifter is Berths 6 and 7 and is fixed to the ocean floor. Mr Dobbs considered that an “unsafe condition” existed because a man overboard procedure was not in place for Berths 6 and 7. Mr Dobbs was also present at the H&S Committee meeting on 9 May 2012.

[23] It is important to state that I received no evidence or submissions from either party to this application as to where the source or authority to issue a SWA comes from. Further, I received no evidence or submissions as to what safeguards or review processes are in place to ensure its purpose and administration is effective. I note that a SWA is not referred to in the Occupational Safety and Health Act (WA) 1984 (“the OSH Act”).

[24] On 30 June 2012, the SWA on Berths 6 and 7 was lifted notwithstanding the absence of a man overboard procedure on the condition that a number of controls were put in place.

[25] A further H&S Committee meeting occurred on 7 June 2012. Again, the man overboard system was discussed. The “Action List” records that:

Man Overboard Procedure 7

Action Proposed	Person Responsible	Proposed Close Out Date
Develop MOB with ATIVO support.	Don, M Canning, C Davies	1st June 2012
Develop Interim Procedure	Don, M canning, C Davies	Report 7/6/12
Amend JHA’s to reflect edge protection	Don	Report 7/6/12
Purchase and provide rescue kits to work stations	Scott	Report 7/6/12
Risk Assessment	Don	Report 7/6/12
Confirmation of MOB procedure in Fremantle Harbour	Damian	Report 7/6/12

[26] It is clear that an error has occurred on the proposed close out date of 1 June 2012 as it was before the meeting and also those actions for 7 June 2012 as it is the date of the meeting.

[27] On 21 June 2012, Patrick Projects provided for circulation, a “Prevention/Retrieval of person falling into water procedure”. It is notable that this is one (1) day beyond the PIN notice deadline of 20 June 2012.

[28] On 25 June 2012, Mr Wilkins originated a Job Hazard Analysis (JHA) in which one of the “potential hazards we [the employees] may be exposed to for this job” include “man overboard” in which the inherent risk is identified as “high”. Should the employees follow the procedure the residual risk would be “low”. It is notable that the risk “in the case of man overboard” as a result of a “slip” or “trip” or “fall”, is also described as “high” by the employee. However, if there is the existence of a man overboard procedure, the residual risk remains as identified by the employee, “high”.

[29] For completeness, I was provided with a one page Patrick Projects JHA Participant Manual dated 30 May 2012 as follows:

Potential Severity by Category				Likelihood of Occurrence
Level	Personal Injury	Environment	Cost of Incident	Improbable (Not known to have happened)	Occasional (Annual occurrence)	Frequent (Weekly Occurrence)
1	First Aid	Minor Impact	< $100,000	VL	L	M
2	LTI / Recordable Injury	Medium Impact	$100,000 / $500,000	L	M	H
3	Fatality / Permanent Disability / Multiple Recordable Injuries	Major Impact	> $500,000	M	H	H
Code	Meaning
VL	Proceed with due care.
L	Proceed with due care, additional controls should be implemented (if practical).
M	The task should only proceed once additional controls have been considered and discussed with the Work Crew Supervisor and On-Site Line Manger (or delegate).
H	Do not proceed. Task must be redefined or further hierarchy of control measures must be in place to reduce the residual risk.

[30] Finally, I was provided with a document referred to the Chevron Australia Pty Ltd “Work Procedure: Working Over Water” for the Gorgon Project Barrow Island LNG Plant.

INDUSTRIAL ACTION

[31] On 28 June 2012, a group of employees led by Mr Craig Wilkins was allocated the Lift On Lift Off (LOLO) tasks on the RollDock Sun vessel. The LOLO operations commenced at 6:00 am. At approximately 9:50 am, Mr Burton found that work had not commenced. Mr Burton formed the view that the LOLO team had sufficient time to complete pre work documentation and preparation, and directed the employees to commence work.

[32] After receiving direction for the LOLO team to commence work, Mr Wilkins presented Mr Burton with a SWA. Following a discussion, Mr Wilkins was asked to complete a JHA.

[33] Mr Burton returned at 10:40 am and asked the employees to commence work; the employees responded that they were not ready.

[34] On being asked by Mr Burton whether the employees were refusing to go to work, the employees responded that they were, but had not yet signed the JHA.

[35] Having completed the JHA process, the employees completed a “Step Back 5x5” safety process which took a further five to 10 minutes.

[36] Following the “Step Back” process, the employees divided into two groups. One group was directed to board the RollDock Sun for induction. The group proceeded to board the RollDock Sun until Mr Robert Smith called out to those who had boarded the vessel to leave as a SWA had been put in place.

[37] Mr Burton directed the employees to re-board the RollDock Sun. All of the employees did, with the exception of Mr Smith.

[38] At approximately 12:20 pm, Mr Burton returned to the RollDock Sun and was presented with two further SWAs.

[39] Mr Burton convened a meeting of the employees who advised him that they were willing to work in other areas but not on LOLO tasks on the RollDock Sun. Mr Burton advised that the issues which they had raised were being dealt with by the Safety Committee.

[40] Following the discussion, the employees were again directed by Mr Burton to return to LOLO tasks on the RollDock Sun at approximately 12:45 pm; the employees refused. As a consequence, Mr Burton directed the employees to the amenities room while he considered alternative courses of action.

[41] At 2:40 pm, the Applicant filed this application with FWA. At approximately 3:00 pm, Mr Burton served the application on the relevant employees.

[42] On the following day, Mr Burton addressed the LOLO team which comprised of the same employees and directed them to carry out the LOLO tasks on the RollDock Sun; the employees again refused.

[43] At the time of the hearing, the employees continued to refuse to carry out the LOLO tasks on the RollDock Sun.

RELEVANT LEGISLATIVE FRAMEWORK

[44] The FW Act provides at the relevant parts as follows.

● Section 19 - Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

(2) However, industrial action does not include the following:

(a) ...

(b) ...

(c) action by an employee if:

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3) ...

● Section 417 - Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.

No industrial action
(1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:

(a) an enterprise agreement is approved by FWA until its nominal expiry date has passed; or
(b) a workplace determination comes into operation until its nominal expiry date has passed;
whether or not the industrial action relates to a matter dealt with in the agreement or determination.

Note: This subsection is a civil remedy provision (see Part 4-1).
(2) The persons are:

(a) an employer, employee, or employee organisation, who is covered by the agreement or determination; or
(b) an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.

● Section 418 - FWA must order that industrial action by employees or employers stop etc.

(1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420.
(2) FWA may make the order:

(a) on its own initiative; or
(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) …

PATRICK PROJECT’S SUBMISSION

[45] Patrick Projects submits that the action of the employees is industrial action within the meaning of s.19 of the FW Act.

[46] Further, the Employer submits that the industrial action is not excluded in accordance with placitum 19(2)(c)(i) of the FW Act in that “the action was and is based on a reasonable concern of the employee about an imminent risk to his or her health or safety”.

[47] Accordingly, Patrick Projects submits that the industrial action is unprotected as the relevant provisions of Part 3-3, Divisions 2 and 3 of the FW Act are not applicable. Consequently, unprotected industrial action was, at least, happening and, it follows, that the Tribunal must make an order for such action to stop, not occur and not be organised.

RESPONDENT’S SUBMISSION

[48] Mr Edmonds submitted, on behalf of the Respondents, that there is no unprotected industrial action occurring.

[49] Since the Employer took over the site on 29 April 2012, employees have raised the need for “man overboard procedures”. In the absence of such procedures, the issuance of a PIN, SWAs and the creation of a JHA constitutes a situation where there is an imminent risk to the health and safety of employees.

[50] Accordingly, Mr Edmonds submits that the application should be dismissed.

CONSIDERATION

[51] At the conclusion of the hearing, I stated that there were a number of issues which disturbed me regarding submissions and the evidence. I trust these become apparent in the subsequent paragraphs.

[52] The Respondents submitted that no unprotected industrial action was occurring because there was a reasonable concern by the employees of an imminent risk to their health and safety. However, the Respondents elected not to call any direct employee evidence and relied upon documentary material submitted through the Employer’s witness.

[53] The provisions of the FW Act applicable to this application are relatively prescriptive. The Tribunal needs to be satisfied firstly, that the employees’ concerns are reasonable, and secondly, that an imminent risk to the employees’ health and safety is present.

[54] In the absence of direct evidence from the employees, the Tribunal was invited by Mr Edmonds to draw an inference that the employees had a reasonable concern that, at the time of the refusal to perform work, there was an imminent risk to their health and safety.

[55] In such circumstances, it may be appropriate, because of a lack of evidence from the employees, to simply dismiss the assertion and issue the orders as sought and take the matter no further. However, I consider it important to set out my views on the provisions of the FW Act, and the evidence both documentary and oral, presented to the Tribunal.

[56] Firstly, the exclusion provisions to the meaning of industrial action in s.19 of the FW Act are relatively prescriptive. The action taken is excluded if it “was based on a reasonable concern of the employee about an imminent risk to his or her health or safety”. The provision is not some elastic condition which can be stretched to fit anything relating to a person’s health or safety. Further, it is not a condition which can be satisfied by expressing one’s emotions only.

[57] Consequently, it is reasonable to ask the question of how do you satisfy the condition of a reasonable concern about an imminent risk to an employee’s health and safety.

[58] The Australian Concise Oxford Dictionary defines “reasonable” as “having sound judgment, sensible, moderate, within limits of reason...ready to listen to reason...not greatly less or more than might be expected...tolerable, fair”. In summary, reasonable is not self defining but objective within the context of the action.

[59] The ordinary meaning of “imminent”, is “impending, soon to happen” 8.

[60] Thirdly, in the absence of direct employee evidence, the drawing of an inference from the Employer’s evidence and documentary material, should also be sound, reasonable and not an exercise in speculation or conjecture.

[61] I now turn to the specific oral evidence and documentary material provided to the Tribunal.

[62] In the absence of a man overboard procedure when commencing cargo handling at the AMC on 29 April 2012, the Employer and the MUA agreed to continue with OMS safe working procedures, or in their absence, the Kellogg Joint Venture Gorgon “KJV” safe working procedures.

[63] While the Respondents, for obvious reasons, wish to focus on what has occurred since 29 April 2012, when Patrick Projects took over the AMC contract, it is relevant and appropriate, to consider the fact that for approximately two (2) years before, there did not exist a man overboard procedure.

[64] Consequently, if there was a reasonable concern about the imminent risk to health and safety, the employees nonetheless continued to work in the absence of a man overboard procedure and opted to have the matter progressed through the H&S Committee. For this reason, the potency of the Respondents’ arguments have to be assessed in terms of both reasonableness of any concern and the alleged imminent nature of the risk.

[65] I now turn to what was referred to as the KJV safe working procedures 9. These procedures are contained in the “Chevron Australia Pty Ltd, Work Procedure: Working Over Water for the Gorgon Project, Barrow Island Plant”. It is immediately apparent that the document was not created for the AMC work site. Despite being a Chevron Australia Pty Ltd document, its scope relates to “Company” or KJV Controlled Sites10. Notwithstanding my attempt to obtain clarification on the scope of the clause, I am still uncertain as to its applicability, especially with such references to the “KJV Site Construction Manager” as having the role and responsibility to ensure “full compliance with the requirements of these procedures”11. I suspect that reliance upon such a document would have been confusing to employees at the work site.

[66] Despite such confusion over the status of the above document, the evidence from Mr Burton was that the Employer purchased floatation devices, floatation lighting, retrievable devices and several other pieces of equipment and initiated the development of a training programme. The current situation was summarised by Mr Burton when he gave evidence:

“...so we’re are working our way - as we continue to do so - to ensure that we have best practice.” 12

[67] While the Respondents were able to take “pot shots” at the Employer, I was left with the impression that, consistent with the commitment given to the H&S Committee, Patrick Projects was improving and working towards a safer system of work from 29 April 2012 prior to the establishment of a site specific man overboard procedure on 21 June 2012. In forming a view of whether an employee has reasonable concerns, it is appropriate, in my view, to consider what the Employer has done and is doing to assuage any concerns.

[68] I now turn to the JHA.

[69] Mr Edmonds submitted simply speaking, that the JHA concluded that a high risk existed in relation to the LOLO of the RollDock Sun and “with respect”, that it is not open to the Tribunal to go behind such an assessment. Accordingly, if the JHA identified a hazard of there not being a man overboard procedure, which is a high risk, the employees should not, and must not, commence work.

[70] I am not able to agree with Mr Edmonds’ straight jacket. In my view, if it appears to the Tribunal that the JHA has been misapplied, or there exists other material available to justify a departure from the stated assessment, the Tribunal should re-assess the assessment. Paragraph 19(2)(c) of the FW Act does not exclude action taken as a result of material in a JHA. Rather, it requires the Tribunal to assess whether the action resulted from a genuine and reasonable concern of the employee about an imminent risk to their health and safety. The assessment in any applicable JHA(s) may form part of the Tribunal’s consideration but the Tribunal must still be satisfied that the concern exists (i.e. it is genuine) and that it is reasonable.

[71] The assessment process in Section D of the JHA is based upon a risk score calculator in Section B. With respect to a man overboard, there is no dispute that a potential fatality exists. However, that has to be balanced against the likelihood of an occurrence to give an overall inherent risk. According to two employees, including Mr Wilkins, the inherent risk is high 13.

[72] The only evidence received by the Tribunal of a “man overboard” was from Mr Burton who stated that in his six (6) years with the Employer, he had not known of such an occurrence at a Patrick controlled facility or elsewhere.

[73] The assessment of the risk is an empirical evaluation of the risk of a hazard occurring and the potential consequences. The assessment is a judgement evaluation and should be an examination of all the circumstances - essentially a thought process. Having examined the risk score calculator, I am unable to reconcile an outcome of a high risk ranking when the likelihood of the hazard occurring is improbable or not known to have happened. My inability to reconcile the high risk rating is compounded further when another employee makes the judgement that an inherent “high risk” ranking exists due to the absence of a man overboard procedure, but the residual risk, after having brought into existence a man overboard procedure, is also high. In my view, these facts again reduce the potency of the assertion that employees had a reasonable concern of an imminent risk to their health and safety, as a result of not having a man overboard procedure.

[74] The precise SWAs which were issued on 28 June 2012 were not identified or tendered in evidence. What was tendered in evidence is a SWA for the Gavea Lifter on 29 May 2012 because an “unsafe condition” existed because a man overboard procedure was not in existence. Again the risk is identified as high. On the following day, the SWA was lifted subject to certain controls being implemented. While I observe that the SWA is essentially a “tick box” description “of what concerns you”, it relates to “unsafe condition” and not necessarily a condition which imposes an imminent risk to an employee’s health and safety 14. As a ground to demonstrate an imminent risk, I am satisfied that such a “reporting card” as provided in evidence, in these circumstances, should be given little weight.

[75] I now turn to the PIN provided by the Respondents to infer that there were reasonable grounds of an imminent risk to the health and safety of employees. It is notable that the PIN refers to a “safe system of work” and not an imminent risk to the health and safety of employees. However, more importantly, Mr Stewart, as the elected safety and health representative, came to the conclusion that there was not an imminent risk to the health and safety of employees because he provided the Employer with nearly six (6) weeks to remedy the circumstances. In my view, this situation reduces the force of the Respondents’ claims.

[76] Further, despite submissions that employees are entitled to cease work pursuant to the OSH Act 15, no evidence was provided that any employee has exercised that option available to them under the OSH Act or under clause 14 of the Agreement in terms of referral of the dispute or inspection by an inspector of WorkSafe or other statutory authority.

[77] Finally, in all the circumstances, I note that the Employer in less than two (2) months from commencing the contract has produced a “Prevention/Retrieval of Person Falling Into Water Procedure”. While I am not convinced that such a title will stand the test of time, what is relevant is to observe such progress relative to what had not been in place previously. Such a factor must be taken into consideration when determining whether the employees have reasonable grounds about an imminent risk to their health and safety.

[78] I now turn to the “elephant in the room”.

[79] The Employer, correctly, in my view, raised but did not press the contention that the safety aspect of the dispute was “window dressing”. The real reason for the industrial action is the Respondents’ concerns that Chevron Australia Pty Ltd has facilitated the engagement of the RollDock Sun which allegedly is crewed by exploited and underpaid third world labour when Australian seafarers are willing and able to do the work.

[80] I am not required to determine, in this application, whether there is an elephant in the room or not. The Respondents asserted that such controversy is irrelevant. However, the Employer’s exhibits, especially the publication by the MUA Communication Unit lent plausibility and reliability if not sufficiency, to their argument.

[81] In conclusion, at the end of the hearing having heard submissions and considered the evidence both oral and documentary, I was satisfied that unprotected industrial action was happening and probably would continue. Accordingly, for the reasons outlined above, I issued an Order (PR525801) to stop and prevent industrial action.

COMMISSIONER

Appearances:

Mr D Fletcher of counsel for the Applicant.

Mr L Edmonds of counsel for the Respondent.

Hearing details:

2012:
Perth,
29 June

 1   PN 141

 2   PN 156

 3   PN 156

 4   PN 156

 5   Exhibit R1

 6   Exhibit R2

 7   Exhibit R3

 8   Australian Concise Oxford Dictionary

 9   PN 65

 10   Exhibit R5

 11   Exhibit R5

 12   PN 173

 13   Exhibit R4

 14   Exhibit R2

 15   PN 524

Printed by authority of the Commonwealth Government Printer

<Price code C, PR525837>