FWC 7505
FAIR WORK COMMISSION
Fair Work Act 2009
Hansen Yuncken Pty Ltd; Hansen Yuncken Pty Ltd & Leighton Contractors Pty Ltd T/A HYLC Joint Venture; Leighton Contractors Pty Ltd
Gareth Deegan; Lauchlin Duif; Tim Gudgeon; David Mead; Carmine Palumbo; Malcolm Vass; Stephen Wise; David Worgan; Pius Carey; Chris Flaherty; Matt Hourigan; Jack Merkx; Glen Metcalfe; Ron Shaw; Jim Spyro; Michael Tsesmelis
SENIOR DEPUTY PRESIDENT O’CALLAGHAN
ADELAIDE, 26 SEPTEMBER 2013
Alleged industrial action by employees who work on the new Royal Adelaide Hospital project site who are employed by: Hansen Yuncken Pty Ltd; and Leighton Contractors Pty Ltd c/- HYLC, Level 3, 18 North Terrace, Adelaide SA.
 On 10 September 2013 Hansen Yuncken Pty Ltd and Hansen Yuncken Pty Ltd & Leighton Contractors Pty Ltd T/A HYLC Joint Venture and Leighton Contractors Pty Ltd (the Joint Venture) made an application for an order pursuant to s.418 of the Fair Work Act 2009 (the FW Act). That application was made relative to un-named employees who work for the Joint-venture on the new Royal Adelaide Hospital construction site (the nRAH).
 The application was the subject of a hearing later that same day. There were no employees present or represented at that hearing. At the hearing I expressed concern at the extent to which the application was not specifically directed toward named employees and had not been demonstrably served on any such employees. The Joint Venture advised that it was seeking s.418 orders against specific employees who, it is alleged, were engaging in unprotected industrial action at that time. I requested that notice of the application and a planned further hearing on 11 September 2013 be served on those employees to whom the order was proposed to apply (the nominated employees), by courier on 10 September 2013.
 The application was the subject of a further hearing on 11 September 2013. At this hearing the Construction, Forestry, Mining and Energy Union (CFMEU) appeared and advised that it was representing the majority of the employees in respect of whom the Joint Venture sought that the order cover. The Joint Venture confirmed that a copy of the application and advice of the hearing had been sent by courier to the home addresses of the employees proposed to be covered by it.
 The application was amended pursuant to s.586 of the FW Act so as to identify the names of those nominated employees. The Joint Venture provided some material in support of its amended application. The CFMEU expressed concern that not all of the nominated employees had been advised of the hearing and it sought an adjournment accordingly. That request for an adjournment was granted. After hearing from the Joint Venture and the CFMEU I issued an Interim Order 1 pursuant to s.420 against the nominated Joint Venture employees. That Order provided that industrial action, not continue, be engaged in, organised or encouraged.
 The matter was listed for hearing on 18 September 2013. At the commencement of this hearing, the CFMEU requested another adjournment on the basis that it had not had adequate time to consider substantial additional material provided by the Joint Venture in support of the amended application. The CFMEU did not oppose the continuation of the Interim Order until the matter was properly heard. I note that, in the course of this hearing the Joint Venture agreed to provide time record information to the CFMEU with respect to the employees which it sought to be covered by the Order.
 The matter was the subject of a further hearing on 24 September 2013. At this hearing the Joint Venture provided evidence in support of the making of the s.418 Order.
 The evidence of Mr Johns, the Joint Venture Industrial Relations Manager went to the service of the application on the employees proposed to be covered by it. Mr Johns’ evidence went to the events of 10 September 2013 when the nominated employees refused to return to work after expressing concern over various safety issues. His evidence went to other stoppages of work which occurred in June, July, August and September which he asserted were linked to various safety concerns. These safety concerns included concerns over safety evacuation procedures for employees who may be injured, toilet cleanliness and water pressure issues.
 Mr Johns’ evidence went to explain the Joint Venture safety procedures, policies and protocols and to his attempts to rely on these detailed safety management procedures and approaches which did not provide for unauthorised industrial action.
 Mr John’s provided attendance records for the employees he asserted had been taking unprotected industrial action over the previous four months. His evidence went to how he determined the employees involved in this action.
 Mr Nunweek is the Joint Venture Logistics Manager. His evidence went to the events of 10 September 2013 and the circumstances under which the nominated employees refused to work and expressed concern over access to first aid crane equipment. Mr Nunweek’s evidence also went to the nature and basis for what he alleged were unauthorised stoppages of work on various other specified dates. He advised that, since a pay deduction occurred on 7 August 2013, some employees had refused to work overtime in accordance with customary arrangements and directions and that work had proceeded on a much slower basis than would normally have been the case. Mr Nunweek’s evidence also went to discussions which had occurred with the employees and their representatives relative to a first aid box used to lift injured workers from a work site and to the extent of the Joint Venture compliance with the relevant Australian Standards in this respect.
 The CFMEU, as the representative of the nominated employees, did not call evidence in this matter with the exception that it provided, prior to the hearing, advice of an absence relative to a Mr Davies who was, at that time, a nominated employee, undated photographs of amenities, cranes and the Australian Standards regarding crane usage.
 The Joint Venture advised, again prior to the hearing, that it was no longer pursuing the application with respect to Mr Davies.
 The Joint Venture position was that the nominated employees had been, up until the time the application was made, engaging in frequent unprotected industrial action in the form of stoppages of work, a refusal to work overtime and reduced work outputs and, further, that most of this industrial action was taken on the basis of assertions that it was related to safety concerns which were not based on any reasonable concern about an imminent risk to employee health and safety such that work, or attendance at the nRAH was not possible. The Joint Venture asserted that the frequency with which this action had occurred since July 2013 meant that the requirements for the essential making of an order pursuant to s.418 were satisfied.
 The position of the nominated employees was that the application did not enable an order of the nature sought in that the individuals involved in various alleged unprotected actions were not satisfactorily identified. Further that, to the extent that the nominated employees had engaged in industrial action that action was specifically and legitimately related to reasonable concerns about health and safety risks. The CFMEU, on behalf of the nominated employees, argued that an order could not properly be brought against only 16 employees and that the records relied upon to identify the employees and establish the times of the alleged actions were inherently flawed.
 Section 418 states:
“418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC 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;
the FWC 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) The FWC 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) In making the order, the FWC does not have to specify the particular industrial action.
(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”
 I am satisfied that the application was served on the nominated employees and that those employees had the opportunity to participate in the proceedings in this matter. The hearing on 18 September 2013 was adjourned at the request of the representative of the nominated employees so as to enable the CFMEU to obtain further instructions.
 I am similarly satisfied that the absence of evidence presented by the CFMEU as the representative of the nominated employees, reflected a decision made in that regard that was not a consequence of the hearing arrangements.
 The Joint Venture employees are covered by either of two agreements:
• The Hansen Yuncken Pty Ltd Enterprise Agreement 2012 or
• The Leighton Contractors Pty Ltd and CFMEU South Australia Enterprise Agreement 2011-2015 (the Agreements).
 Neither of the Agreements has reached its nominal expiry date.
 The Joint Venture has outlined to me, and provided documented evidence of its management of safety issues through an extensive documented and collaborative process with employees. That management process reflects a high priority attached to safety issues and incorporates recognition of legislative safety requirements.
 The New Royal Adelaide Hospital Design and Construction Occupational Health and Safety Plan 2 (the Joint Venture OHS Plan) conforms with the relevant Australian Standard and is subject to regular review. It details safety responsibilities, the application of legislative obligations, consultation arrangements and processes for the resolution of safety issues. It specifies an employee’s capacity to cease to refuse to carry out work if they have a reasonable concern about a serious risk to their health or safety. These concepts are defined:
“11.1.a Reasonable Concern
The test of “reasonable concern” shall take into account the following:
11.1.b Serious Risk
The test of “imminent” shall be based on that it is self-evident of there is an experience from previous incidents that an adverse incident will immediately occur without a stop to the specific work activity.”
 The Joint Venture OHS Plan then details the process for the resolution of issues of this nature. Clause 11.2(f) states:
“11.2.f Stopping Work
While an issue is being dealt with, work shall continue as directed and uninterrupted. The following exceptions to this are:
1. If a worker ceases work pursuant to s84 of the WHS Act, or
2. If the HSR directs that work ceases pursuant to s85 of the WHS Act.
In either case, the worker and/or the HSR must comply with the relevant provisions of the WHS Act before ceasing work.
If work ceases, workers and the HSR must comply with the following:
1. Work must only cease in the area where workers are exposed to the imminent risk to their health and safety. In all other areas of the Site work shall continue as normal.
2. Each worker who ceases work must immediately remove themselves from an imminent risk and report to their supervisor and the Site safety manager.
3. Each worker must make themself available to carry out suitable alternative work. If there is no work immediately available then the worker must wait in a suitable location for directions.
4. Workers must not leave site other than to the emergency evacuation point (and only in the case of there not being a safe and appropriate part of the site for workers to wait).”
 I have concluded that the Joint Venture OHS Plan has been implemented such that it represents a reasonable direction to employees.
 I have also noted that both of the Agreements detail dispute resolution procedures which enable unresolved dispute to be addressed.
 Further, I note that the Work Health and Safety Act 2012 relevantly states:
“84 Right of worker to cease unsafe work
A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard.
86 Worker to notify if ceases work
A worker who ceases work under this Division (otherwise than under a direction from a health and safety representative) must—
(a) as soon as practicable, notify the person conducting the business or undertaking that the worker has ceased work under this Division unless the worker ceased work under a direction from a health and safety representative; and
(b) remain available to carry out suitable alternative work.
 I have been referred to two occasions in July and August 2013 when work was stopped due to inclement weather. One of those circumstances was referred to me pursuant to s.739 of the FW Act. 3 I have not further considered those circumstances in the context of this application as I am satisfied that the agreement reached in that matter means that unprotected industrial action relative to inclement weather is now unlikely and improbable on the nRAH project.
 On the evidence before me, I am satisfied that various employees refused to work or left work without authorisation on a number of occasions in June, July, August and September 2013. In each instance, the evidence of Mr Johns and Mr Nunweek confirms that these instances were linked to safety issues or concerns. The 25 June 2013 instance related to low water pressure in a particular amenities block. The 16 July 2013 instance related to a concern about the cleanliness of a particular toilet block. The 31 July and 1 August 2013 instances followed an incident where an employee twisted his knee and was subsequently evacuated from the site. The 31 August and 2 September instances also followed an incident where an electrical contractor employee received an electrocution shock and was subsequently evacuated from the site. I note that the relevant work safety authorities were called to investigate this incident and subsequently issued the contractor with a safety improvement notice relative to the matter but that concerns relative to the evacuation procedures were expressed to the Joint Venture. The 10 September 2013 instance followed concerns over a second first aid box for use with the crane for evacuation purposes. I have concluded that these stoppages were not related to improvement notices or to actions taken by authorised safety personnel or health and safety representatives. Further, no action was subsequently taken by the employees who ceased work to then report to their supervisor and the site safety manager.
 There is no evidence before me that contradicts the evidence of Mr Johns and Mr Nunweek in these respects.
 Consequently, I have concluded that this industrial action either occurred for no specific reason or, more likely, was related to site safety concerns. If it occurred for no specified reason, the actions of those employees who participated must constitute unprotected industrial action. Given the more likely event that it was action taken relative to safety concerns, I have considered whether, on the material before me, those actions constitute unprotected industrial action.
 In ABCC v CFMEU 4 Gilmour J considered the extent to which employee safety concerns justified industrial action. That decision was made in the context of the Building and Construction Industry Improvement Act 2005. There are some clear differences between that legislation as it then applied and s.418. However, I have adopted the position that, if I concluded, on the evidence before me, that the industrial action was based on a reasonable concern by employees about an imminent risk to his or her safety it may not be regarded as protected industrial action.
 In ABCC Gilmour J addressed this issue in the following terms:
“109 In Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers’ Union Of Australia (1987) 54 NTR 6 at 9, Nader J of the Supreme Court of the Northern Territory outlined the following factors relevant to a determination of whether action taken by the respondent Union was justified. Ranger had sued for alleged economic torts. The union said its conduct was justified because its motivating purpose was the protection and promotion of the safety of the workers. His Honour outlined the following factors:
(a) How seriously did the situation threaten health and safety?
(b) What efforts had been made in the past by the workers (or others to their knowledge) to eliminate that risk?
(c) What response has the employer made to reduce the risk?
(d) Is the issue genuine or is it a pretext to further a less worthy objective?
(e) What other methods, if any, were available to the defendants to achieve such "less worthy objective?"
110 This approach to justification is a useful, if imprecise, analogue for whether action taken in this case was “based on a reasonable concern” under s 36(1)(g)(i). Munro J in AMWU v Rheem Australia Pty Ltd (PR929970, AIRC, 9 April 2003) at  thought it to be so in respect to a predecessor provision namely s 124 of the Industrial Relations Act 1988 (Cth).
111 In Labor Council of New South Wales v Axis Metal Roofing (2004) 131 IR 272, Vice President Justice Walton considered whether, under s 143(5) of the Industrial Relations Act 1996 (NSW), a strike was based on a reasonable concern for health and safety of employees. There was no requirement for the concern for health and safety to be an imminent risk. Nonetheless his Honour considered the concepts of “imminence”, “seriousness”, “proportionality” and “justification” which would be relevant to the exercise of the Court’s discretion:
(a) Whether it is a “reasonable” concern involves an objective assessment of the nature of that concern;
(b) A concern may be reasonable so long as it is not fanciful, illogical or irrational at the time the concern arises, without the benefit of hindsight and the knowledge of whether a real risk does in fact exist;
(c) There is no need to establish that an actual risk existed at the time;
(d) The reasonableness must be assessed from the perspective of an ordinary and reasonable person in the position of the employees involved at the relevant time;
(e) The reasonable concern must continue during all times that the relevant industrial action is occurring; and
(f) Previous incidents, occurrences or beliefs may be relevant to a basis for a concern for health or safety in the circumstances.
112 Accordingly the issue is not whether certain matters did in fact constitute a risk to health or safety, but rather whether any employee reasonably held a concern about an imminent risk to their health or safety.
113 The applicant accepts, correctly in my view, that an employee may have a concern even though his or her concern arose only from something communicated by a union official. However, such a concern must still be objectively reasonable. It will not be reasonable merely because it was raised by a union official.
114 The word “imminent”, in this context, means “likely to occur at any moment”: Macquarie Dictionary Online 2009. The concept of imminence describes the risk to the employees’ health or safety. Accordingly, the probability of risk eventuating such that the employee is likely to be harmed or placed in an unsafe position requires to be considered.
115 Even where a building site conforms to legislative or industry standards, there will always exist risks to health or safety. The question however is whether there exists an "imminent risk" to health or safety for the purposes of s 36 of the BCII Act.”
 In AFMEPKIU v Rheem Rydalmere Plant Industrial Action Order 2002 5 Munro J also considered the concept of genuine and reasonable belief about an imminent risk to employee safety.
 I have applied the approach set out in both of these matters. In doing so, I note that those approaches are consistent with the concept of “reasonable concern”, “serious risk” and “imminent” defined in the Joint Venture OHS Plan.
 On the evidence before me, none of the safety issues linked to the stoppages of work on the specified dates in June, July, August and September represent reasonable concerns about imminent serious risks to employee health or safety. In each case, the safety issues should have been considered through the normal consultation process or, in the event that this did not resolve the concern, through the appropriate dispute resolution process. No basis for a stoppage of work has been established to me.
 Specifically relative to the 10 September 2013 incident, I note that the CFMEU has provided me with the Australian Standard 6 relative to the safe use of cranes. No evidence of a breach of this standard has been established, and in fact, the Joint Venture evidence is indicative of safety standards which conform to all relevant requirements.
 In overall terms, I have concluded that the industrial action which occurred on those nominated dates was unprotected industrial action and that any purported assertion that it reflected a right or capacity to cease work is incorrect.
 I have considered the extent to which I can be satisfied that the nominated employees participated in some, or all of this unprotected industrial action such that I could then conclude that those employees were taking industrial action or that, with respect to them, it was threatened, impending, probable or being organised.
 The evidence of Mr Johns was that:
“I have reviewed employees pay records and swipe-card readings in relation to the above mentioned incidents. Some of the pay records were not readily available and so this list may be incomplete.
These records demonstrate that either the employee left site before their customary finishing time, or had pay deducted for participating in the industrial action. This list does not include those who left site to attend the union rally on 12 August 2013.
Attachment “DJ16” is a summary of each of the named respondents and whether they participated in the industrial action referred to above by reference time and/or wage records.” 7
 The position of the CFMEU as the representative of the nominated employees was that this approach was flawed. The CFMEU had the opportunity to provide evidence to support its position in this respect. Absent evidence from the nominated employees I have reviewed the approach adopted by Mr Johns and the Time and Wages records 8 provided to me.
 I have concluded that each of the nominated employees participated in at least three separate incidents of unprotected industrial action linked to safety issues. Leaving aside authorised leave occasions, the nominated employees generally participated in each instance of this unprotected industrial action.
 I have considered whether, for the purposes of s.418(1)(a) the relevant time for consideration of whether protected industrial action is happening is the time at which the application is made or a later time. I think it must relate to the time at which the application was made. In this instance, an Interim Order was issued and, I am advised that this order was complied with by the nominated employees. It would be illogical if the mandatory issuing of that Interim Order pursuant to s.420 then altered the considerations required by s.418.
 Notwithstanding this, I am concerned that uncertainties about the identification of the nominated employees at the time the application was made means that, at that time, I could not have been certain that each of the nominated employees had been taking industrial action.
 In terms of s.418(1)(b) there is no evidence that unprotected industrial action is threatened or impending. However, the history of unprotected industrial action instances over the last four months clearly demonstrates that unprotected industrial action, linked to safety concerns is probable in the future. This evidence indicates that it is probable that the nominated employees will not comply with the Joint Venture OHS Plan and the legislative approach to Occupational Health, Safety and Welfare which restricts the cessation of work. Further, I am satisfied that the issue which prompted the industrial action on 10 September 2013, namely the crane first aid box, together with other normal safety issues which must be expected to arise on a construction site of this magnitude, mean that it is probable that further unprotected industrial action of a character similar to that in the past four months, will occur and will involve the nominated employees.
 In terms of s.418(1)(c) I note the evidence of Mr Johns 9 and Mr Nunweek10 establishes that one of the nominated employees, Mr Merkx is an employee who is “the site delegate and health and safety representative”. Whilst the evidence indicates that Mr Merkx took a leading role in the discussions which preceded the industrial action on 10 September 2013, I am not satisfied, on the evidence currently before me, that I should conclude that, relative to the industrial action over the last four months, that Mr Merkx, or any other nominated individual was organising industrial action.
 The evidence of Mr Nunweek was that:
“In addition to these stoppages, since employees had pay deducted arising from the incident on 7 August 2013, some employees have adopted a number of practices, including:
a. Refusing and/or failing to work overtime in accordance with custom and practice and/or directions.
For example, some of the crane crews have decreased the number of hours that customarily worked. It has become increasingly common for employees to finish work at the completion of their ordinary hours despite working overtime being customary and available and necessary at all times.
Attached to this affidavit and marked “MN8” are sample timesheets for the crane crew employees involved in this incident for the months of June and August. The timesheets are stored in separate locations and these were the records that I was able to obtain in the timeframe. Some individual timesheets are missing from the compilation.
b. Work has proceeded on a much slower basis during the day. For example, the previous custom and practice was to life two packets of formwork pans at once, now often only one will be lifted (pans are the deck for the formwork system). Instead of lifting two bundles of frames, only one bundle will be lifted. Instead of listing multiple bundles of reinforcing rods, only one bundle would be lifted at a time. Employees have not raised any of these issues as safety issues, they have simply adopted these practices themselves.
c. Last week an employee refused to lift reinforcing ligages unless they were placed in a lifting box, despite our lifting practices having been specifically risk assessed as safe, and toolboxed with employees and having been customarily lifted in this manner.
36. As far as I am aware, the practices referred to in the paragraph above continuing.” 11 (sic)
 Given that I have concluded that further unprotected industrial action is probable, I have not found it necessary that I reach a conclusion about this evidence other than to note that it appears to be undisputed evidence of further unprotected industrial action.
 Section 418(1) requires that, as I have concluded that unprotected industrial action is probable, an Order to stop that action must be issued.
 The CFMEU, representing the nominated employees, argued that the Full Federal Court decision in TWU of NSW v AIRC 12 was authority for the position that the nature of the application made in these circumstances and the absence of the necessary particularity with respect to the persons involved in industrial action prohibited the making of an Order.
 That decision was made pursuant to a precursor to s.418 in its current form. Given the current provisions of s.418 and the extensive steps taken in this matter to enable the nominated employees to be represented and to present evidence, I do not consider that this section in its current form precludes making an Order of a general nature relative to the nominated employees.
 Further, I have considered the alternative position put by the CFMEU, to the effect that, if I concluded that an Order is to be made, I should take into account the previous good history and intentions of the nominated employees. The evidence clearly indicates that unprotected industrial action has been taken in conjunction with safety issues. No evidence of changed employee commitments with respect to adherence to the Joint Venture OHS Plan and the legislative safety obligations has been provided to me such that I should conclude that, notwithstanding the experience of the past four months, further unprotected industrial action is improbable.
 Consequently, an Order (PR542567) reflecting this decision will be made. I have decided that Order should operate for a period of six months. Over that time I anticipate that the parties will become accustomed to the resolution of safety issues without any related industrial action.
 Given the submissions put by the CFMEU about the nominated employees’ good character, I draw to the attention of those employees that this Order does not diminish the importance of safety issues. It does not prohibit involvement in the management of those issues consistent with the Joint Venture OHS Plan and the relevant legislation. It is, however, important that the nominated employees appreciate that a failure to comply with this Order could give rise to serious personal consequences. It would be desirable that the CFMEU provide clear advice to its members in this respect.
L Dooley Construction, Forestry, Mining and Energy Union.
T Earls and D Johns appearing for Hansen Yuncken Pty Ltd and Hansen Yuncken Pty Ltd & Leighton Contractors Pty Ltd T/A HYLC Joint Venture and Leighton Contractors Pty Ltd.
September, 10, 11, 18 and 24.
2 Exhibit H3, Annexure DJ1
4  FCA 1092
5 AIRC PR929970
6 AS 2250.1 1993
7 Exhibit H3, paras 69, 70 and 71
8 Exhibit H4
9 Exhibit H3, para 12
10 Exhibit H5, para 12
11 Ibid, paras 35 and 36
12  FCAFC 26
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