DECISION

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Maritime, Mining and Energy Union
v
Sydney International Container Terminals Pty Ltd T/A Hutchison Ports Australia Pty Limited
(C2020/3220)

Alleged dispute about any matters arising under the enterprise agreement - work stoppage - COVID-19 safety risk - whether reasonable concern of a serious risk arising from an immediate, imminent or impending hazard - whether employees entitled to payment for time rostered but not worked under clause 8.18 of the enterprise agreement.

[1] The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant/Union) filed an application pursuant to s.739 of the Fair Work Act 2009 (the Act) in respect of a dispute with Sydney International Container Terminals Pty Limited T/A Hutchison Ports Australia Pty Limited (SICTL/employer). The application seeks to have the Fair Work Commission (the Commission), in accordance with clause 13 – Issue Resolution of the Sydney International Container Terminal Pty Limited (SICTL) and Brisbane Container Terminals Pty Limited (BCT) and Maritime Union of Australia (MUA) Enterprise Agreement 2015 (the Agreement) resolve a dispute relating to the non-payment of wages for the period 6 April 2020 to 11 April 2020.

[2] The Agreement has a nominal expiry date of 25 November 2018 but continues to operate as no replacement agreement has yet been negotiated and agreed. 1 The dispute concerns application of subclauses 8.18 and 8.19 of the Agreement which read as follows:

“8.18 Where Employees have a reasonable concern of a serious risk arising from immediate, imminent or impending hazard, work may cease in the immediate vicinity until the issue is investigated and dealt with in accordance with established processes.”

8.19 During any period for which work has ceased, the employer may assign any employees whose work is affected to suitable alternative work. There shall be no loss of pay where work has ceased consistent with the procedure set out in Clause 8.17.”

[3] The Union have sought that the Commission make orders resolving the dispute by:

a) determining that employees otherwise rostered on to work between 6-11 April 2020 ceased work pursuant to clause 8.18 of the Agreement;

b) determining that these employees were entitled under clause 8.19 of the Agreement to be paid for time they were rostered on to perform work between 6-11 April 2020 but did not attend work;

c) ordering the respondent to pay these employees’ wages they otherwise would have been entitled to had they worked the shifts they were rostered to perform between 6-11 April 2020. 2

[4] It is understood that the remedies sought by the Union have application to 236 shifts missed by employees 3 who were rostered at various times to work between 6-11 April 2020 but did not do so. The Union contends this was due to the operation of clause 8.18 extracted above.

[5] On 6 May 2020, the matter was allocated to my Chambers, and the employer was directed to file a preliminary response to the application and the matter set down for a conciliation conference on 18 May 2020. The matter was unable to be resolved at the conference and it was listed for hearing. Leave was granted pursuant to s.596(2)(a) of the Act for both parties to be legally represented.

Commission’s jurisdiction to deal with dispute

[6] The Union requires the Commission to determine a matter said to arise under the Agreement being a right for employees to cease and be paid for work where they have a reasonable concern of a serious risk arising from (an) immediate, imminent or impending hazard.

[7] The Union application is filed pursuant to s.739 of the Act. Section 739 of the Act is titled Disputes dealt with by the Fair Work Commission, and states at sub-s.739(1):

“This section applies if a term referred to in section 738 requires or allows the Commission to deal with a dispute.”

[8] Further, sub-s.739(4) states:

“If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, however described, the Commission may do so.”

[9] Clause 13 - Issue Resolution of the Agreement contains a process for resolving disputes. The clause states at 13.1:

“In the event of a dispute arising in the workplace in regard to the application of this Agreement, the National Employment Standards, or any matter pertaining to the employment relationship the procedure to be followed to resolve the matter shall be as follows:”

(My underline)

[10] Under the terms of the dispute procedure discussions between the parties is first required and if the matter remains unresolved it is to be referred to the ‘National level’.

[11] Subclause 13.4 then provides that the Commission may arbitrate the dispute after first attempting to resolve the matter including by conciliation which as discussed above was held before the Commission on 18 May 2020, but a resolution was not reached and the Union subsequently requested that the matter be listed for arbitration.

[12] The Commission's jurisdiction to deal with the application therefore arises from the Issue Resolution procedure in the Agreement and the operation of s.739(4) of the Act.

[13] In effect the parties have agreed to submit their dispute for resolution by a third party (the Commission), in doing so the Commission does not exercise judicial power, but a power of private arbitration. 4

[14] Where arbitration is conducted under a dispute resolution procedure in an enterprise agreement the outcome is not an “order” but a determination that is binding on the parties by virtue of the parties being bound by the agreement. The enforcement of a dispute resolution determination is not an enforcement of an “order” but enforcement of the outcome of a dispute resolution procedure in an agreement as a matter of contract. 5

Background

[15] The employer is a stevedoring business that operates a terminal 49 hectares in size in the Port Security Zone at Port Botany. The site has four berths, 1300 metres of quay line, two x 600 metre rail sidings and an onsite empty container storage facility. The business runs 24-hours a day and is one of three stevedoring businesses in Sydney. 6

[16] The worksite operates 3 x 8 hour rotating shifts each 24-hour period, 7 days a week and two 12 hour maintenance shifts 7 days a week. 7

[17] The dispute to be determined relates to a work-stoppage said to be the result of the COVID-19 pandemic. It also occurs in the context of negotiations for a replacement enterprise agreement. The enterprise agreement negotiations commenced in late 2018, during which employees have engaged in protected industrial action in the form of bans on overtime and extension of shifts.⁸

[18] On 16 March 2020, the employer released a COVID-19 policy. The measures contained within the policy were the subject of dispute between the Union and the employer.

[19] On 3 April 2020, an employee of SICTL (first employee) reported to the employer that she had tested positive to COVID-19 (first notification).

[20] Following this notification, the employer contacted SafeWork NSW and the NSW Department of Health.

[21] Operations at the employer’s Port Botany site were suspended for a 48-hour period and commercial cleaners were engaged to undertake a ‘deep clean’ of plant, machinery and buildings at the work site. Medical officers conducted enquiries and contact tracing exercises. The employer advised 17 SICTL employees that their details had been passed on to the NSW Department of Health. None of the 17 employees tested positive to COVID-19. A pre-allocation shift of the Work Health and Safety (WHS) Committee of SICTL was arranged to meet with management ahead of a planned re-opening of the site, for 6 April 2020.

[22] On 5 April 2020, a second employee (second employee) of SICTL reported testing positive to COVID-19 (second notification) after being in close contact with the first employee outside of the workplace. The second employee had not attended the work site at any time in which he was infected with COVID-19. 9

[23] At 9:31pm on 5 April 2020, Ben Kreger, a Health and Safety Representative (HSR) employed by SICTL issued a direction that work cease pursuant to s.85 of the Work Health and Safety Act 2011 (NSW) (WHS Act). The direction was sent by email and reads as follows:

“To Whom It May Concern:

1. I am a Health and Safety Representative for the purpose of Division 3 of the Work Health and Safety Act 2011 (NSW). (WHS Act)

2. I am employed at the Hutchison Port Botany site, Sydney International Container Terminals Pty Ltd, Gates 8150 -160, Foreshore Road, Botany NSW 2019.

3. As a HSR, I have been made aware of two operational employees who are positive with COVID-19. They work at the Hutchison Port Botany workplace.

4. I have been made aware that both employees have been at work in the workplace in close contact with numerous other employees in the recent weeks

5. The employees who are positive to COVID-19 have also used machinery and other amenities used by other employees. There is a real potential that COVID-19 has been spread in the workplace and has been in contact with "frequently touched areas". There has been in close proximity to significant numbers of employees over the time this breakout has occurred. There has been use of vehicles to and from points of work including at meal break times going out to pick buy meals. There has been use of the first aid bus and the lashing bus. There has been use of the amenities kitchen area, food preparation area, vending machines, turnstiles, toilet, shower, car-pooling, common work stations i.e. ASC ops clerical.

6. Hutchison as the PCBU has failed to put in place safe systems of work which include, but are not limited to: COVID-19 testing for employees; adequate sanitising and decontamination of the worksite following the positive COVID-19 testing; systems of social distancing, separation of work and separation of workers; COVID-19 protocols training; provision and adherence of relevant information from the World Health Organisation; adequate colour coded COVID-19 protocols signage; thermo laser guns or temperature tests before work.

7. Hutchison as the PCBU has also failed to put in precautionary steps to prevent the spread of COVID-19 including installing hand sanitiser until the last few days. They have further failed to put in place appropriate contracted environmental cleaning of the worksite as well as signage that displays time cleaned.

8. I have taken advice this afternoon from a legally qualified medical practitioner regarding COVID-19 and the workplace.

9. As HSR, I direct that workers cease work in accordance with s85 of the WHS Act as there is 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, namely COVID-19 contagion

10. In accordance with s85(3) of the WHS Act, I believe that the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction. In dealing with this serious and immediate or imminent risk, the PCBU has withheld significant health and safety information from the workforce.

11. In accordance with s69(2)(a) of the WHS Act, I exercise my power as a HSR for all work groups as there is a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard, being COVID-19, that affects or may affect a member of another work group.

Ben Kreger

Health & Safety Representative” 10

(My underline)

[24] On 7 April 2020, a Zoom meeting occurred between representatives of the Union, WHS Committee members (including Mr Kreger), and Dr Kerry Chant, the NSW Chief Medical Officer. At the meeting, the advice of Dr Chant was that employees should return to work as it was safe to do so. 11

[25] On 8 April 2020, a memorandum was sent from Mr John Willy, the Chief Executive Officer (CEO) to all employees of SICTL. The memorandum read as follows:

“Yesterday I attended a meeting with Dr Kerry Chant who holds the position of NSW Chief Medical Officer. The meeting was organised by Warren Smith (National Official at the Maritime Union of Australia). In view of the importance of the meeting, I also permitted the following employees to attend:

1. Simon Euers;

2. Paul Wallington; and

3. Ben Kreger, HSR.

The purpose of the meeting was to have Dr Chant review the steps that have been taken to date with respect to our employee that unfortunately tested positive for the COVID-19 virus, having contracted the virus on a domestic airline flight on 19 March 2020.

The meeting was also an opportunity for all parties to explain any concerns and to have verified the practices and procedures that have subsequently been put in place to minimise any potential for infection within the workplace.

Dr Kerry Chant, NSW Chief Medical Officer, advised as follows:

1. The South East Sydney Local Health Department Public Health Unit found the efforts of Hutchison Ports Sydney genuine and yielded information that allowed NSW Health specialist contact tracing team to implement their Close Contact Tracing Procedures successfully, especially in circumstances where we verified data with the infected employee.

2. Of the 17 names provided by Hutchison Ports Sydney Dr Chant confirmed that 15 had been placed into mandatory self-isolation. They identified 3 social Close Contacts not related to the workplace.

3. The 15 individuals in mandatory self-isolation are currently well and NOT symptomatic, as such if these individuals become symptomatic in future they have not been at work whilst infectious.

4. Dr Chant hoped this would provide workers with peace of mind and NSW Health remained committed to speaking and supporting individuals who were concerned about their proximity to the infectious employee.

Dr Kerry Chant stated that, in her opinion, employees at our site should return to work. Whilst I have been prepared to work with the union and the HSRs on a constructive approach to the implementation of these initiatives, it has been disappointing to receive what appears to be a list of unrealistic demands by the MUA. Unfortunately, it would seem that some employees have chosen to engage in industrial action by refusing to attend and work their allocated shifts. I have been presented with a number of demands which, as I understand it, remain impediments from the perspective of the union to a return to work. These demands include:

1. The introduction of unlimited paid special leave for various circumstances including Special Paid Leave for all self-isolation period including COVID-19 cases arising outside of the workplace;

2. The shortening of shifts;

3. Temperature testing at the gate;

4. Special Paid Leave for employees that the union describes as "vulnerable" (indigenous and persons over the age of 70);

5. The disclosure of employee names who are COVID-19 positive.

We have advised the union and the HSRs that the company is not willing to agree to the introduction of these new entitlements (which are not part of our Enterprise Agreement or policies). Our approach to assisting our employees in the current circumstances will be informed always by the needs of the individual and we will continue to address any issues or genuine concerns based upon the circumstances of that individual's situation.

It should be noted that we (sic) on this occasion we voluntarily provided paid leave for 17 employees who may have had contact with the individual and have done the same on previous occasions for employees returning from overseas travel. We have also provided a range of assistance to these individuals and we are pleased to report that, of those who chose to be tested and were able to be tested, that none have informed us of a positive result.

We remain of the view that we have put in place a number of initiatives to deal with the circumstances of the individual employees. Whilst noting that the last day that this individual was onsite was over 8 days ago. We believe that there is no impediment to people returning to work. The failure of workers to present to work on Monday 6 April 2020 onwards is already causing commercial losses for the business and has the potential to now seriously impact upon the service of vessels over the Easter period. This has the potential to impact upon the take home pay of many employees at a time of great economic uncertainty. This type of industrial action is unnecessary and has already impacted essential supplies to hospitals. We urge employees to return to work and continue to support essential supply chains for Australians during this time of community crisis.

Finally, we would like to set the record straight. Hutchison Ports Sydney at no time concealed information related to a positive COVI0-19 diagnosis. Hutchison Ports Sydney acted promptly, worked cooperatively with statutory regulators and immediately implemented measures that were not essential including a suspension of operations to undertake a deep clean. We value our people above all else.

These are unprecedented times, we hope that our employees and their families are staying safe during this period, and we know that together we will get through these tough times.” 12

(My underline)

[26] At 5:19pm on 11 April 2020, Mr Benjamin (Ben) Kreger advised SICTL by email that he was lifting his cease work direction. 13 The employees who were rostered to work during the period from 6 April 2020 until 11 April 2020 were not paid for the shifts where they were rostered to work but did not attend. The Union relies on clauses 8.18 and 8.19 of the Agreement to contend that these employees are entitled to be paid for this time and are entitled to have any leave deducted for absences during this period re-credited.

[27] The employer contends that, when considering all the available evidence, there could not have been a ‘reasonable’ concern of a serious risk arising from an immediate, imminent or impending hazard. Further, the employer argues that the making of an order to the effect sought by the Union would be contrary to the Act and/or the Agreement. Further, the employer contends that the stoppage of work was unprotected industrial action taken to advance industrial claims and demands and, therefore, it is prohibited from paying employee wages for the period of 6 April 2020 to 11 April 2020 due to the operation of s.474 of the Act.

Union evidence and submissions

[28] In prosecuting its application, the Union relied on the witness evidence of:

•  Mr Benjamin (Ben) Kreger – SICTL employee and HSR

•  Mr Warren Smith – Assistant National Secretary, CFMMEU (Maritime Union of Australia Division)

•  Ms Natalie Wasley – SICTL employee and HSR

•  Mr Simon Euers – SICTL employee and HSR

Evidence of Benjamin Kreger

[29] Mr Kreger is an elected Health and Safety representative pursuant to the WHS Act and works as a stevedore at the Port Botany terminal. Mr Kreger is a member of the WHS Committee.  14

[30] On 16 March 2020 he received an email from SICTL management attaching a COVID-19 Policy, he subsequently received various amendments to the policy.

[31] On 25 March 2020. Mr Kreger contacted the Assistant State Inspector John Whatman from SafeWork NSW to ask questions relating to workplace health and safety as COVID-19 had become a widespread issue in the community and he was concerned that if one employee contracted COVID-19 it could spread in the workplace. Mr Whatman stated he would call him back but failed to do so. 15

[32] Mr Kreger stated he was not satisfied that the measures introduced by his employer were adequate. There was insufficient hand sanitiser, gloves and facemasks available to all employees working at the terminal and social distancing was not possible for many employees.

[33] Mr Kreger stated that he attended a voluntary WHS Committee meeting on 26^th of March 2020 as he was concerned about the risk of COVID–19 spreading in the workplace. Mr Kreger stated that on various occasions in late March 2020. He spoke to Chris Barber, Manager HSEQ for SICTL, about concerns over inadequate personal protective equipment (PPE) and cleaning products.

[34] On 3 April 2020 he received a text message notification prior to his night shift commencing, advising him not to attend. Mr Kreger attended a joint Employee Representative Committee (ERC) with Union officials and WHS Committee meeting, held by telephone during which he was made aware that an employee had tested positive to COVID-19.

[35] On 5 April 2020 there was a joint WHS Committee and ERC telephone meeting. A Dr Lim who is a General Practitioner in Parramatta was invited to the meeting to give advice on testing and the infectious nature of COVID-19. Mr Kreger stated that at the start of the meeting, he was advised by a colleague of a second COVID-19 positive notification and that the employee was a member of Mr Kreger’s panel. Mr Kreger stated that during the meeting Dr Lim advised that people who had been in contact with either of the two confirmed COVID-19 positive employees should be tested or go into self-isolation and offered to organise testing. Mr Kreger stated that, based on this advice, he booked a test for the following day. 16

[36] Also, on 5 April 2020 he received an email from SICTL management attaching a Memorandum and amended COVID-19 policy. At 9:30pm that day as a HSR under the WHS Act he issued a cease work direction to all workgroups pursuant to s.85 of the WHS Act as he had concerns that continuing work in the workplace could result in an immediate or imminent risk to employees’ health and safety.  17 Mr Kreger stated that he issued this direction because the employer was rostering employees for the next day and he did not believe it was safe to have the site open.18

[37] Mr Kreger stated that, at about 4:00am on 6 April 2020, he advised SICTL that he was attending a COVID-19 test that morning. Mr Kreger stated that he had a test at 10:00am that morning and on 8 April 2020, he received advice that he had tested negative.

[38] Mr Kreger stated that, at about 10:30am on 6 April, he became aware of an email from Mr Barber, Manager HSEQ, responding to his cease work direction. The email from Mr Barber requested a meeting take place at 11:00am. Mr Kreger stated that, after reading the email, he contacted Mr Barber and requested to have his Union represent him at the meeting. The meeting did not take place as he could not obtain Union representation at the time. 19

[39] Mr Kreger stated that, also on 6 April 2020, he became aware of a memorandum issued by SICTL that incorrectly referred to his cease work direction as a “PIN” (Provisional Improvement Notice) and stated that it had been “stayed” by a SafeWork Inspector. Mr Kreger’s evidence was that, after seeing the memorandum, he contacted SafeWork Inspector John Whatman who advised that a SafeWork NSW Inspector could not stay a cease work direction. 20

[40] Also, on 6 April 2020 Mr Kreger attended a telephone meeting with the ERC, WHS Committee, Union officials and SICTL management at 6:00pm. He stated that during this meeting Mr Whatman from SafeWork said that “if the concerns aren’t addressed by Hutchison, the workers should not return to work”. 21 Although under cross examination, Mr Kreger accepted that Mr Whatman said that unless the concerns of workers are addressed they do not appear likely to return to work.22

[41] After this meeting Mr Kreger sent SICTL an email requesting them to inform the workforce that their memo of 6 April 2020 was incorrect in terms of its reference to a PIN and it being stayed by SafeWork.

[42] On 7 April 2020 there was a meeting between employee representatives, Union representatives, SICTL management and the NSW Chief Medical Officer Dr Kerry Chant. Mr Kreger recalled Dr Chant stating that “workers who are concerned are invited to contact NSW Health to obtain suitable advice in relation to whether they are a close contact and need to be tested”. 23

[43] In cross examination Mr Kreger accepted that Dr Chant stated at the meeting that there was no reason for employees not to return to work because all the isolated employees are well and if they do develop COVID-19 symptoms they were not in the workplace when they were infectious. 24 Mr Kreger also accepted that Dr Chant stated at the meeting that the process from the employer was a good process and there is no reason for any other workers not to go to work now.25

[44] On 9 April 2020, Mr Kreger emailed Mr Whatman from SafeWork to ask about the employer’s obligations to inform employees about the cease work direction that was in place. Mr Whatman responded by stating that the employer should inform workers of the directive by the HSR in relation to s.85 of the WHS Act.

[45] Mr Kreger stated that on 10 April 2020, there were numerous phone meetings with the Union, WHS Committee members and SICTL management to finalise a COVID-19 safe operating procedure (SOP). Mr Kreger stated that the existing COVID-19 policy did not adequately address the risk to employees. 26 Following notification that the SOP had been agreed to, Mr Kreger notified the employer at 5:19pm on 11 April 2020 that he was lifting the cease work direction he had issued pursuant to s.85 of the WHS Act on 5 April 2020.27

[46] Mr Kreger stated that, apart from the SOP, the following measures satisfied him that it was safe to return to work:

a. Further close contacts being identified, tested for COVID-19 and directed to not attend work and to self-isolate;

b. Separation of shifts;

c. Separation of toolbox areas;

d. Staggered mealtimes;

e. Increased cleaning;

f. Provision of masks, gloves and hand sanitiser for all employees;

g. Allocation of COVID coordinator for 7 days to oversee and implement controls set

out in the Safe Operating Procedure; and

h. Formation of COVID Committee to continually monitor and review COVID controls.

Agreement to train and educate employees on COVID controls set out in the Safe Operating Procedure. 28

[47] During cross examination, Mr Kreger was taken to the email memorandum to employees from Mr John Willy, the CEO sent on 8 April 2020, which stated that he had been prepared to work with the Union and HSRs on a constructive approach to the implementation of initiatives it had, and that it was disappointing to receive what appears to be a list of unrealistic demands of the MUA. 29

[48] Mr Kreger did not accept that he was attempting to obtain a number of concessions that were pursued by Mr Warren Smith and was simply trying to establish a safe workplace and implement controls. 30

[49] Mr Kreger stated that he did not return to work until 14 April 2020 as he was observing his own cease work direction. 31

Evidence of Warren Smith

[50] Mr Smith has been the Assistant National Secretary of the Construction, Forestry, Maritime, Mining and Energy Union, The Maritime Union of Australia Division since 2009. In his role as Assistant National Secretary, Mr Smith stated that he is in constant communication with MUA members of the Employee Representative and WHS Committees at stevedoring companies across Australia.

[51] Mr Smith stated that waterside workers were particularly exposed to COVID-19 due to a number of factors including:

• Working in close proximity in sweaty conditions;

• Constant swapping of machinery and workstations;

• Shared amenities and meal room and toilets;

• Radios and iPads transferred between workers;

• Shared vehicles; and

• Shared walkways, gates, ladders, door handles and shared meal room items i.e. microwave etc. 32

[52] Mr Smith stated that in a telephone conversation with Ms Mihalopoulos on 18 March 2020, he outlined the following ways in which the employer could have done more to limit the spread of COVID-19 and which he said were reflected in ongoing Union demands:

a. Tracing to be undertaken by COVID-19 Committee and communicated to Union representatives, WHS-ERC-Branch;

b. Special COVID-19 leave to reduce occurrences of marginally ill people attending work;

c. Information to the workforce to be improved;

d. That all workers be tested for COVID-19;

e. Company contacting workers daily;

f. Specific rules around social distancing not general applications;

g. Procedures and checklists; and

h. Best practice application of health and safety measures. 33

[53] Mr Smith stated that, between 24 March 2020 and 2 April 2020, the Union and the employer engaged in a series of discussions by phone and email regarding the effect that protected industrial action at the work site was having on COVID-19 safety measures. Mr Smith stated that he was told by Ms Mihalopoulos that protected industrial action was negatively affecting COVID-19 safety measures. Mr Smith stated that he took these comments as an excuse by SICTL to either stop employees from taking protected industrial action or to not implement further COVID-19 measures or both. 34

[54] Mr Smith stated that, from around 1 April 2020, he was being constantly reminded by employees of shortages of sanitiser at the work site. 35

[55] Mr Smith stated that he received a telephone call from Ms Mihalopoulos in the early afternoon of 3 April 2020, informing him of a positive COVID-19 case amongst the SICTL workforce. Mr Smith responded that he was disgusted that the employer would continue operations until around 1:00pm when they had been notified at 8:00am on the same day. 36 In cross examination Mr Smith accepted that he made a demand to Mr Mihalopoulos that at risk/vulnerable employees have access to paid special leave.37 Mr Smith further accepted that he stated to Ms Mihalopoulos that there would be no return to work until everyone was tested and isolated for 14 days and that SICTL guaranteed employees will be paid during this time.38

[56] On 4 April 2020, Mr Smith emailed the SICTL CEO John Willy, stating, inter alia:

“The workforce remain ready and willing to work conditional upon HPA agreeing to the following in the interests of the health and safety of the workforce and the community.

1. All workers who have worked in the HPA Port Botany terminal since the 24th March are to be tested for COVID-19 and not return to work until medically cleared.

2. A deep cleaning of the facilities is to be undertaken and verified. While HPA have agreed to a cleaning process it was agreed further information would be sent to the Union regarding the high quality and professional nature of the cleaners that would be engaged. It was further agreed that confirmation would be provided to satisfy the Union 's position that every contact surface a worker could come into contact with in the terminal is to be cleaned including all machinery.

3. A suite of ongoing COVID-19 related safety measures are to be agreed between the Sydney Branch and the Port Botany WHS and Union committees.” 39

[57] Mr Smith stated he was first made aware on 5 April 2020 during one of the Zoom meetings he had that day that there was a second positive COVID-19 case amongst the SICTL workforce. He stated that he spoke to Ms Mihalopoulos by phone that day and in an email she said that there could be no rational concerns about the safety of the site given the infected person was last at the workplace on 31 March 2020 and due to the extensive deep clean of the site. 40

[58] Mr Smith stated that he first became aware of the cease work direction when Mr Euers forwarded a copy of the email containing the cease work direction on 5 April 2020. 41

[59] On 6 April 2020, Mr Smith sent an email to the NSW Ministry of Health due to concerns over SICTL’s approach to determining COVID-19 close contacts. The Chief Medical Officer Dr Chant contacted Mr Smith by phone later that day to organise a Skype meeting for 7 April 2020.

[60] On 6 April 2020, a telephone meeting was convened between representatives from the WHS Committee, ERC, MUA, HPA and SafeWork NSW. Mr Kreger explained that the cease work direction issued because there was a concern that it was not safe for employees to return to the terminal. 42 Mr Smith stated that at the end of the meeting Mr Whatman a NSW work safe inspector stated that the risks have not been addressed and the workers shall not return to work.43

[61] At the meeting on 7 April 2020 Dr Chant set out the basis of the current understanding of how COVID-19 is transmitted, including the timeframe as to when someone is infectious. Mr Kreger again articulated the reasoning for employees’ concerns including deficiencies about the contact tracing process. Mr Euers raised concerns about contact transmissions in amenities, machines and meal rooms and all work areas frequented or shared.

[62] Mr Smith stated that he outlined what was seen as deficiencies in the contact tracing process and the lack of workforce involvement. Mr Smith stated at the meeting that there was need for cooperation in determining close contacts and the need for workers and the Union to be involved and for all the shifts where a COVID-19 positive employee worked to be identified to the WHS Committee and the MUA. Mr Smith stated that he said that the SICTL contact list was deficient and that NSW Health should accept a supplementary list from the Union. 44

[63] During the meeting Dr Chant asked for SICTL to share information previously withheld from employees and the Union with respect to the shifts that positive COVID-19 employees had worked. Dr Chant asked for the MUA to provide another possible COVID-19 contact list to the Department of Health compiled from information by the employees where the MUA identified gaps in the employer’s close contact determination methodology. 45

[64] During cross examination Mr Smith accepted that Dr Chant had made statements that included that there was no reason for employees not to return to work because the isolated workers were well and that if any isolated worker developed COVID-19 symptoms they would not have been infected at the worksite. 46

[65] Mr Smith stated that he had a telephone conversation with Mr Paul McAleer (Divisional Branch Secretary of the Sydney Branch of the Maritime Union of Australia Division of the Union), Ms Mihalopoulos and Mr Willy on 8 April 2020, where he outlined a number of measures he felt would give the workforce comfort regarding safety in the wake of COVID-19, these included:

i. Special COVID-19 related paid leave
ii. Consistent cleaning of shared machines and workstations
iii. Protocols around shift times to avoid mass gatherings
iv. Temperature and health checks
v. Provision of gloves and PPE
vi. The appointment of a COVID-19 Facilitator
vii. Ongoing information regarding contact tracing 47

[66] During cross examination, Mr Smith accepted the account of the meeting provided by Ms Mihalopoulos in her witness statement. 48 Although Mr Smith explained that employees finishing 30 minutes prior to the normal shift time would not leave the worksite but would wipe down shared services, levers, seats, handles and so on. It would also allow employees approximately 15 minutes to absent themselves before the next shift commenced work.49

[67] Mr Smith stated that he received a response by email from Ms Mihalopoulos the following day disagreeing with his proposals for special paid COVID-19 leave and appointment of a COVID-19 facilitator.

[68] On 10 April 2020, he supplied a list of further names of possible close contacts to Dr Chant, which he stated was his final involvement with SICTL on the matter.

Evidence of Natalie Wasley

[69] Ms Wasley gave evidence regarding the nature of work undertaken by SICTL employees at the Port Botany site. Ms Wasley has been employed as a Phase 1 stevedore since 22 May 2017 and was elected as a HSR on 28 November 2019, a member of the Employee Representative Committee since February 2019 and a member of the COVID-19 Sub Committee since it was established on 4 April 2020.

[70] Ms Wasley stated that Phase 1 employees are full-time permanent stevedores who work an irregular roster and conduct work such as securing and un-securing containers to vessels (lashing) and shuttle driving. Phase 1.5 employees are the permanent stevedoring employees who work a regular roster, and perform duties such as crane driving, stacker driving and act as shift leaders.

[71] Ms Wasley gave evidence regarding an ERC meeting that occurred on 18 March 2020. She stated that at the meeting employees discussed how the protected industrial action being undertaken on site could be modified to allow COVID-19 control measures, such as shift leaders and team members starting 30-minutes early. 50 It was her evidence that protected industrial action, such as bans on upgrades after shifts commenced; bans on extensions; bans on overtime; and bans on shifts starting outside normal start times had been ongoing since 30 January 2020.

[72] Ms Wasley stated that, in response to employee suggestions regarding altering protected industrial action, employee ERC representatives were advised that the employer’s position was that protected industrial action should be lifted before these measures could be implemented. 51

[73] Ms Wasley’s evidence was that she was concerned about workplace transmission of COVID-19 from the outbreak of the pandemic due to the employees sharing machinery, workstations, break areas, close contact work practices, the 24-hour operation of the terminal and the fact that shared surfaces were not professionally cleaned between shifts. 52 She stated that NSW Health recommendations such as keeping 1.5 metres apart and not touching shared surfaces were not things that employees could avoid when working.53

[74] Further, Ms Wasley stated that, in her view PPE was not readily available prior to April 2020. 54 She stated that on various occasions in late March 2020, she raised concerns about the inadequacy of PPE and cleaning products available.55 Ms Wasley referred to one occasion, which occurred on 25 March 2020, where she personally purchased hand sanitiser for the work site.56

[75] Ms Wasley gave evidence regarding the first COVID-19 notification. She stated that shortly before 1:00pm on 3 April 2020, she received a generic text message from SICTL management telling her an email memo had been sent by the company. The memorandum from the CEO Mr Willy stated that a SICTL employee had tested positive to COVID-19, and the site would undergo an environmental clean in accordance with Commonwealth Government Guidelines from 2:00pm that day. 57

[76] Ms Wasley then attended a joint ERC and WHS Committee meeting from 4:45pm to 6:00pm that evening. During the meeting, Ms Wasley was advised that the work site was closed for a ‘deep clean’. 58

[77] On 4 April 2020, Ms Wasley attended a joint meeting of the ERC and WHS Committee. It was at this meeting that Ms Wasley was informed of the identity of the first COVID-19 positive employee. Ms Wasley was also advised by Mr McAleer of the Union that the site would be closed until 10:00pm 5 April 2020 and that all employees would be on full pay. 59

[78] Ms Wasley gave evidence regarding the second employee COVID-19 positive notification. She stated that on 5 April 2020 at about 3:42pm she received a memorandum from SICTL advising of a second employee positive COVID-19 result. 60 That evening Mr Kreger issued his cease work direction.

[79] Ms Wasley stated that she was concerned about the high traffic, shared work environment at the work site. On every shift she worked she shared either a light vehicle such as a ute or shuttle bus or shuttle carrier with up to three other employees. 61 Ms Wasley also stated she had concerns with the SICTL identified ‘close contacts’ as they did not take into account a number of situations.62

[80] At 6:00pm on 6 April 2020, a telephone meeting with the ERC and WHS Committee was conducted during which Ms Mihalopoulos confirmed the second employee positive COVID-19 test. 63 Also in attendance was Mr Whatman, a SafeWork NSW Inspector.

[81] At 5:57pm on 7 April 2020, Ms Wasley received a text message from SICTL. The message read as follows: 64

“Dear Employee, your details have not been sent to NSW Health as a potential close contact in relation to COVID-19 positive case announced on 3 April 2020. If you worked any shifts between on 24-27 March and 30-31 March 2020, and are concerned that you are a potential close contact, you can contact the NSW Health team at SESLHD-PublicHealthUnit-COVID-19response@health.nsw.gov.au This team are aware of the positive COVID-19 case in our workplace and can directly assist you with your concerns. If you have any questions, please contact our COVID-19 Contact Officers or the WHS Committee. Thank you. Hutchison Ports Sydney”

[82] Ms Wasley stated that she contacted NSW Health on 8 April 2020, as she was concerned that she had been in close contact with the first employee on 31 March 2020. On 9 April 2020, Ms Wasley was tested for COVID-19. Ms Wasley received a negative test result on 12 April 2020. She stated that NSW Health advised that she isolate until 14 April 2020. 65 Ms Wasley stated that she felt comfortable to return to work at this stage due to the increase in cleaning of shared equipment, machinery and high touch surfaces during each shift.66

[83] Ms Wasley stated that she was not involved in the Zoom Conference with Dr Chant on 7 April and did not receive any direct information from Dr Chant.  67

[84] At 5:19pm on 11 April 2020, Ms Wasley stated that she received an email from Mr Kreger stating that he was lifting the cease work direction covering the site issued by himself under s.85 of the WHS Act. 68

[85] In cross-examination, Ms Wasley stated that the work site was closed from 2:00pm on 3 April 2020 for a deep clean, ahead of a proposed return to work on 6 April 2020. 69 Ms Wasley was rostered to return to work on 7 April 2020 but did not, based on observing a cease work order.70 Later during cross examination Ms Wasley’s evidence was that she did not attend for work on 7 April as she had concerns that she had worked shifts with the first COVID-19 employee, and was unsure how long the virus could remain on surfaces and that she did not consider there was adequate separation in the workplace71 and later stating she believed there was an imminent risk to safety.72

Evidence of Simon Euers

[86] Mr Euers is employed as a ‘Level 5 Shift Leader’ and has worked for the employer since 2013. He has been a HSR since 2013 and a member of the WHS Committee since 2015.

[87] Mr Euers gave evidence regarding a WHS Committee meeting that occurred on 16 March 2020. Mr Euers stated that the meeting was primarily focused around developing an initial COVID-19 policy for SICTL and starting to look at solutions to minimise the risk of infection in the workplace. It was Mr Euers’ evidence that the issue of availability of items such as cleaning wipes, masks, gloves and other protective equipment and measures were discussed as COVID-19 had become a major health issue and concern. 73

[88] Mr Euers stated that, at the meeting, a draft document titled COVID-19 Policy was tabled by SICTL. It was Mr Euers’ evidence that employee representatives present raised a number of issues with this document as it was very generic with a large portion of it referring to 'work at home' arrangements that only related to SICTL's corporate and administration staff and it providing only very basic measures of control for operational employees. 74 Mr Euers stated that, in his opinion, the policy was inadequate for dealing with risk for operational employees.75 The policy was released to employees in a memorandum sent later that day.

[89] Mr Euers stated that he understood from discussions with fellow employees that the employer required all protected industrial action to be removed as a condition for employees coming in 30 minutes early as a control measure to stop the risk of COVID-19 transmission at entry/exit points. 76

[90] On 23 March 2020, Mr Euers received a memorandum attaching an updated copy of the COVID-19 policy (version 2).  77 On 25 March 2020, he received a memorandum attaching a further updated copy of the COVID-19 policy (version 3).78

[91] On 26 March 2020, he attended a WHS meeting held to deal with COVID-19 control measures where concerns regarding shift changeover, early starts for Shift and Team Leaders and the availability of PPE were discussed. 79

[92] SICTL advised that they wanted to implement staggered start times as a control measure which was rejected by the employee representatives. 80

[93] On 3 April, Mr Euers received an email from SICTL containing a memorandum from the CEO advising that an employee had tested positive to COVID-19. 81

[94] With regard to this notification, Mr Euers stated that an employee who reported to him advised him that this employee worked six shifts before getting tested and receiving the positive result. Mr Euers stated that this was also around the time of the Ruby Princess incident and anxiety in the workplace was very high. 82

[95] On 4 April 2020, Mr Euers attended a Zoom meeting of ERC and WHS Committee members at which concerns were raised concerning the COVID-19 positive employee communication. Ms Mihalopoulos stated that the employer had followed what NSW Health had advised and there was also a matter of privacy of the individual. Ms Mihalopoulos also stated that sufficient measures were in place to stop employees being exposed to COVID-19. Details regarding the deep clean of the work site were explained by a SICTL representative. Mr Euers also recalled that a Union representative raised concerns that the largest risk to the workforce was from one another and that the workers had no way of knowing who was infected. 83

[96] Mr Euers stated he was advised on 5 April 2020 of the second positive COVID-19 notification. As a result of this development Mr Euers was of the view that there was a possible cluster outbreak of COVID-19 at the work site. 84 He stated that the second employee worked in his team.

[97] As a result of the second notification, the Union organised a meeting on the same day (5 April 2020) which was attended by Union officials and employee WHS Committee members and Dr Eric Lim. Dr Lim is a general practitioner with a practice based in Parramatta who specialises in workplace injuries. Dr Lim explained that anybody who felt they may have been exposed should self-isolate and be tested for COVID-19 at the end of the isolation period. Dr Lim said that testing may not be accurate unless done correctly 14 days after exposure. 85 Mr Euers took from this that it was not safe to return to the work site.86

[98] Mr Euers’ evidence was that on 5 April 2020, he received his allocation for work commencing at 6:00am the following day. Mr Euers stated that he was concerned about the potential of a cluster forming in the workplace and that there was an imminent risk to health and safety if workers performed work. 87 On the evening of 5 April 2020, Mr Kreger issued the cease work order.

[99] Mr Euers did not attend work on 6 April 2020. He stated that he received a memorandum by email from SICTL which said, inter alia:

“Please note that the PIN is now the subject of a review by SafeWork NSW and,

accordingly, the PIN was "stayed" at 06:17 am this morning by Assistant State

Inspector, SafeWork, John Whatman.” 88

[100] A meeting was held on 6 April 2020 between employee representatives, SICTL representatives and Mr John Whatman (SafeWork NSW Assistant State Inspector). It was the evidence of Mr Euers that, during the meeting, Mr Whatman said words to the effect that he could not see employees returning to work until the control measures sought by the PCBU 89 were in place and that “the risk to workers has not been resolved”.90

[101] Mr Euers attended a further Zoom meeting on 7 April with employee representatives and the NSW Chief Medical Officer, Dr Kerry Chant. Mr Euers evidence was that, during this meeting, Dr Chant advised that anyone who thought they may have been exposed to the virus should get tested and self-isolate until they receive the results. 91

[102] Mr Euers stated that employee representatives engaged with SICTL on a SOP on 9 April 2020 and 10 April 2020 with a commitment to resume operations on 11 April 2020. 92 Mr Euers stated that the SOP included the following measures:

a. Entire separation of incoming and outgoing shifts

b. Toolbox allocations in small groups

c. Employees notified of which toolbox area to attend via their work text orders

the previous day

d. Education on correct methods of use of and disposal of PPE, handwashing, etc

e. Correct wipe down procedures before and after each shift rotation and shared

surface use 93

[103] Mr Euers stated that he returned to work on 13 April 2020, after the cease work direction was lifted and an in-principle agreement had been reached with SICTL regarding the SOP. The SOP enabled employees to go straight to their designated toolbox areas and then in a controlled managed timeframe go to their lockers in small groups and proceed to their point of work. This controlled the number of employees in communal areas at any one time. 94 Mr Euers stated that without this arrangement he would not have felt safe to return to work.95

[104] Mr Euers stated that the SICTL had no means of determining who has COVID-19 and therefore the imminent risk could be applicable to any employee. 96

[105] During cross examination Mr Euers stated that in addition to holding a reasonable concern of a serious risk of an immediate, imminent or impending hazard he was also adhering to the cease work direction in not attending work. 97

[106] Mr Euers accepted that at the Zoom meeting held on 7 April 2020, with Dr Chant that she stated words to the effect that as isolated employees have no COVID-19 symptoms and are well and therefore could not have been contagious at work there is no reason for any of the other employees not to attend work. 98

Construction of the relevant Agreement clauses

[107] With reference to the construction of the relevant Agreement clauses, the Union stated that the correct approach which should be adopted is the approach as set out in WorkPac Pty Ltd v Skene, 99 that the construction of an enterprise agreement turns on the language used, which must be understood in light of its industrial context and purpose.100 A purposive approach to interpretation is appropriate and a narrow or pedantic approach should be eschewed.

[108] On the construction of clause 8.18 of the Agreement, the Union submitted that the noun 'hazard' in clause 8.18 refers to things causing a danger, peril or difficulty. 101 In the context of clause 8.18, 'hazards' are hazards related to health and safety. The adjectives 'immediate, imminent or impending' convey that the hazards dealt with by the clause are ones which are about to occur in the sense they are 'immediate or imminent'; or may occur at some future but not too distant point, in the sense that they are 'impending'. It said, therefore, that the 'serious risks' captured by clause 8.18 do not have to pertain to hazards to which employees are currently exposed.102 The provision extends to hazards which employees may be exposed to, for example, if they comply with an instruction by the employer to attend work or perform certain work.103 The applicant submitted that a ‘serious risk’ was any risk that is not trifling.104

Reasonableness

[109] The Union submitted that employees refused to attend for work between 6 – 11 April 2020 based on a reasonable concern of serious risk arising from an immediate, imminent, or impending hazard, being the transmission of COVID-19 at the workplace. It wasn’t until 11 April, following the lifting of the cease work direction and after SICTL had agreed to institute an appropriate SOP that the hazard was dealt with and employees returned to work.

[110] The Union submitted that the use of the word ‘reasonable’ imports a measure of objectivity into the test, 105 and cites the decisions in George v Rockett and anor106 and Essential Energy v WorkCover Authority of New South Wales107 as authority for this proposition. It submitted that the inquiry which must be made is whether there were reasonable grounds for concerns by employees that if they attended for work, they may be at risk of COVID-19 exposure. It submitted that this is to be assessed against what was known, or reasonably capable of being known by employees at the time.

[111] The Union submits that, at the time of the first and second employee COVID-19 notifications, the COVID-19 pandemic was at a point where orders restricting movement and social interactions pursuant to s.7 of the Public Health Act 2010 (NSW) had been made and that it was the ‘height’ of the pandemic. 108 The Union submitted that, at the relevant time, there were concerns amongst the workforce.

[112] In support of its argument the Union submitted that: 109

•  There had been no training in SICTL’s COVID-19 policy beyond brief toolbox talks, and no dedicated enforcement (i.e. COVID-19 marshals);

•  Although the policy relied on the use of PPE, as a matter of reality there were insufficient supplies available, including at common areas such as meal rooms;

•  The nature of the work performed on the site meant that employees necessarily had to share machinery, facilities and were often in close contact (for example, when lashing)

•  No measures to reduce the risk of people ignoring minor symptoms in favour of work – i.e. paid pandemic leave – had been implemented;

•  At least one employee had worked while infectious, and there was a possibility that another had;

•  SICTL had required employees to continue work after becoming aware that a worker had attended the site while infectious;

•  The information being distributed by SICTL was either incomplete or inaccurate; and

•  A trained HSR had issued a cease work direction on the basis of his assessment of risk

[113] The Union put their case on the basis that the safety concerns of employees were held collectively by the workforce as per WHS Committee discussions and complaints made via the Committee. 110 The Union stated that there is no evidence to the contrary on this point.111 The Union referred to the decision in ABCC v Ingham112 as authority for the proposition that, as a matter of law, the concerns may be established without evidence from each individual employee being required.113

[114] Accepting that Mr Kreger only had authority to issue a cease work direction on behalf of his workgroup, 114 the Union submitted that SICTL misleadingly and falsely informed its employees that the cease work direction issued by Mr Kreger had been ‘stayed’ by WorkSafe when this was not the case. A WorkSafe inspector had informed employees and representatives of SICTL that Mr Kreger’s cease work direction was not ‘stayed’ and that employees should not return to work, unless and until their concerns about the transmission of the virus had been addressed.115

Unprotected industrial action

[115] The Union rejected any suggestion employees were involved in unprotected industrial action. The issue was about safety measures rather than industrial claims. In reply submissions, the Union addressed SICTL’s contentions that to make the orders sought would contravene s.474(1) of the Act and thus s.739(5) of the Act. The Union submitted that the argument was misguided. It stated that if the Union was successful in the present proceedings, the work stoppage cannot be considered industrial action. 116 On the other hand, if the Respondent is successful, the issue would not arise.117 The Union described the argument regarding industrial action as a ‘red herring’.118

Relief sought

[116] The Union referred to the contention of the employer, first raised in the preliminary response to the application, which was filed on 15 May 2020, that the orders sought by the Union would be an impermissible exercise of judicial power by the Commission. The Union submitted that the orders sought could be granted by the Commission fulfilling its function of consensual private arbitration of the dispute.

[117] The Union drew the Commission’s attention 119 to the decisions in Bristow Helicopters v Australian Federation of Air Pilots (Bristow Helicopters)120 and Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney.121The Union submitted that the present matter involves an application under s.739 of the Act. As such, authority derived from s.738 and s.739(4) empowers the Commission to make orders to resolve the dispute. As such, the present matter was distinguishable from Bristow Helicopters. The Union submitted that the function of the Commission is to make a finding that resolves the dispute in a binding way, simply saying that the Commission agrees with one party is not enough, an order is needed giving rise to obligations.122 The Union submitted that an order of the Commission for the payment of wages to the affected employees would be entirely prospective and create a new standing right, rather than an enforcement of existing rights.123

[118] The Union submitted that the Commission should order that wages be paid to employees who were rostered to work during the relevant period but did not attend work based on their reasonable concern of a serious risk arising from an immediate, imminent or impending hazard.

SICTL’s evidence and submissions

[119] Evidence on behalf of SICTL was provided by Mr Geoff Hughes, Manager – HR and Training and Ms Harriet Mihalopoulos General Manager, Human Resources and Industrial Relations.

Evidence of Mr Geoff Hughes

[120] Mr Hughes commenced employment with the employer in 2016 in the role of Manager HR and Training.

[121] Mr Hughes stated that whilst stevedoring employees working 8-hour shifts worked in gangs and perform their tasks in collaboration, the day-to-day tasks are not performed in close proximity to other employees. There are normally eight maintenance employees rostered during the day shift Monday to Friday and four maintenance employees rostered on night shift. 124

[122] Mr Hughes stated that he became aware of an employee having tested positive to COVID-19 on 3 April 2020 following which at approximately 1:00 pm on 3 April he advised by telephone Mr Paul Keating, Assistant Branch Secretary, Sydney of the Union that an employee had tested positive for COVID-19. He told Mr Keating that SICTL was taking the necessary steps and will be shutting down for 48 hours to perform a deep clean of the terminal and that they were working with NSW Health regarding contact tracing and following their guidance and that employees will be contacted separately if they are deemed to be close contacts.

[123] The site was closed from approximately 2:00 pm that day until 6 April 2020 to perform a deep clean and to work with and implement recommendations made by NSW Health. 125

[124] On 5 April 2020, he received a telephone call from a second employee advising that they had tested positive to COVID-19. 126

[125] Mr Hughes stated that the employee advised that the employee’s last day at the work site was an evening shift on 28 March 2020 and that the employee believed he had contracted COVID-19 having been in personal contact with the first COVID-19 positive employee outside the workplace. 127 The employee stated that based on advice he had received and his current symptoms he would have only been contagious for the past couple of days to which Mr Hughes replied as he had been off work for a week it would not appear he was contagious while at work.

[126] The employee requested that Mr Hughes keep confidential and not disclose the mode of transmission and the fact that he had met with the female employee after picking her up from Sydney Airport on around 19 March 2020. 128 The employee then proceeded on a period of leave for 14 days but did not return to the worksite until 20 April 2020 having taken a further period of annual leave. On checking SICTL records Mr Hughes confirmed that the second employee had not worked on a shift with the first employee since 11 February 2020 being a period in excess of 54 days.129

[127] Mr Hughes stated that when the site reopened at 6:00am on 6 April 2020, employee shift allocations recommenced. Mr Hughes observed that shift allocators who are covered by the Agreement attended and worked their shifts as directed and continued to do so during the relevant dispute period. 130

[128] Other employees who were allocated shifts and requested to attend work and did not do so, notified of their non-attendance via the SICTL absence hotline. The hotline is a component of SICTL’s management systems where an employee who is unable or unwilling to attend site and work a rostered shift is required to call a pre-recorded service prior to commencement of the shift. 131

[129] Mr Hughes stated that he attended the Port Botany site at 8:00am on 6 April 2020 and that there was a WHS Committee meeting scheduled at 8:30am that day. Mr Hughes stated that by the time of the meeting, he had become aware that employee Committee members had called the hotline stating they would not be attending for their rostered shifts for the following reasons:

(a) Paul Wallington called the hotline and advised he would not be attending his rostered shift because "he was unfit and would provide a doctor's certificate";

(b) Simon Euers called the hotline and advised "he was sick";

(c) Ben Kreger called the hotline and advised he would not be attending because of a

"COVID related" reason;

(d) Sam Withell called the hotline and advised he had a "Work Health and Safety

meeting with management at 8:00am but would not be coming to terminal due to

COVID-19 contamination"; and

(e) Ross Pettett called the hotline and advised he would not be attending because of the

"cease work order". 132

[130] One employee Committee member, Mr Peter Smith attended for his rostered shift at 6:00am and performed basic operational duties but was sent home at approximately midday and paid for his shift. 133

[131] Mr Hughes stated that the objective of the WHS Committee meeting on 6 April 2020, was to conduct a walk-through of the terminal and facilities with the WHS Committee members and to go through the deep cleaning of the terminal and facilities that had taken place over the weekend on 4 and 5 April 2020. 134 He stated that the meeting was cancelled because only one of the employee Committee members (Peter Smith) had attended for work.135

[132] Mr Hughes’ evidence was that later that day (6 April) he observed a number of employees arriving at work for the 2:00pm evening shift who had parked their cars in the car park. Around 1:45pm he observed Paul Garrett, Assistant Branch Secretary of the Union standing outside the entrance of the work site addressing a group of approximately ten employees. 136 It was Mr Hughes’ evidence that of the 21 employees rostered to work the afternoon shift commencing at 2:00pm that day only three attended. A number of the employees he had earlier observed enter the car park had not entered the building. Mr Hughes stated that he met the three employees who did attend for work in the meal room and one employee asked what was going to happen for the shift. Mr Hughes responded that he would let them know and went to view the Closed Circuit Television on a computer screen located in the office where he observed Mr Garrett addressing employees.

[133] Mr Hughes received a telephone call between approximately 1:50pm and 1:55pm from the Shift Manager on his work landline who stated that the three employees in the lunchroom have been approached by someone from the car park who has told them they should leave as they are not required to attend the shift.

[134] Approximately 15 minutes later, Mr Hughes went downstairs and into the meal room to speak to the three employees who advised him that a Rima EL-Hayek, a stevedore who holds no authority to direct employees, had told the three employees that they were not required to work the evening shift as it was not going ahead.

[135] Mr Hughes stated that of the 21 employees rostered to work the 2:00pm evening shift. 15 employees advised the reason they were not working their rostered shift was to comply with a cease work order. 137

[136] Mr Hughes gave further evidence regarding the attendance and non-attendance of stevedoring employees for their rostered shifts for the period from 6 April 2020 to 11 April 2020. The predominant reason given by employees for not attending the shift as directed was to comply with a cease work order/direction. Other reasons given (when one was provided) included that they were sick, taking carers leave, needed to attend a COVID-19 test or were awaiting the results of a COVID-19 test.

[137] In cross examination Mr Hughes accepted that there was a risk that SICTL’s operating system did not correctly identify all periods in which an employee worked when infectious. 138

Evidence of Harriet Mihalopoulos

[138] Ms Mihalopoulos the General Manager, Human Resources and Industrial Relations stated that in the period from 6.00am on 6 April 2020 to 11 April 2020 inclusive, a number of stevedoring employees at the employer’s Port Botany site who were rostered to work did not attend and as such were not paid for their non-attendance. The total number of employees who can be rostered to work is approximately 280 and work is conducted over three eight-hour operations shifts and two twelve-hour maintenance shifts in any 24 hour period.

[139] Ms Mihalopoulos stated that the day to day work of stevedores can be performed in an environment where they are not in close proximity with other employees. 139 There is a 45-minute break on each shift where stevedores are relieved of their duties. Stevedores have the potential to be in close contact to each other in the following circumstances:

•  Arrival/departure from shift

•  Toolbox talks

•  Meal breaks

•  Within the ROS Room

•  Shift Leader Office

•  Tower Clerk Office

[140] Ms Mihalopoulos gave evidence about the COVID-19 initiatives implemented by SICTL prior to the first employee notification on 3 April 2020. Ms Mihalopoulos stated that these initiatives included:

(a) Implementation of a COVID-19 Workplace Policy on 16 March 2020

(b) Appointment of 3 x COVID-19 Contact Officers on 16 March 2020

(c) Provision of PPE to all employees where required for their role

(d) Introduction of signage and implementation of procedures to ensure and maintain physical distancing measures at work. The zoning of various points of work and common areas including but not limited to ROS room, allocator room, change rooms and meal room with floor markings to ensure physical distancing was practiced and maximum occupancy per 4 square metres was not breached

(e) Introduction of individual backpacks for employees to take to points of work including plant and machinery which contained hygiene and cleaning equipment, including supplies of gloves, wipes, anti-bacterial gels to ensure that the employee could adequately prepare the point of work/equipment prior to the commencement of work and/or at the conclusion of any shift

(f) Introduction of the nominated managerial responsibility of the Pandemic Disease Manager and Deputies and the appointment of employees to these temporary management responsibilities on 25 March 2020

(g) Introduced and conducted toolbox talks for all workers regarding protection from

COVID-19 infections and communication of COVID-19 Workplace Policies

(h) Development and publication of a HSEQ circular with fundamental rules

(i) Introduction of a Safe Operating Procedure for dealing with COVID-19 on 19 March 2020

j) Availability of paid annual leave to any employee who wished to be absent from the workplace and granted access to personal leave in advance of accrual on application

(k) Establishment of a screening process whereby all employees who were returning to the Port Botany Site following a period of leave were contacted by a representative of SICTL and required to share information with respect to activities whilst on leave, including information concerning overseas travel and/or exposure to persons believed to be infected with COVID-19

(l) Creating separate access and egress to the terminal, including instructions on when employees were permitted to access the terminal prior to their shift commencing 140

First COVID-19 notification

[141] Ms Mihalopoulos gave evidence regarding her knowledge of the first employee notification. On 3 April 2020 she received a phone call from Chris Barber the HSCQ Manager who informed her that a female stevedoring employee had advised him that she had tested positive to COVID-19. Mr Mihalopoulos stated she was aware that the employee was being tested as the employee had previously advised that NSW Health had advised her to isolate having been on a domestic aircraft flight where another passenger had been diagnosed as COVID-19 positive. As a result of this advice the employee decided to have a COVID-19 test. 141

[142] Ms Mihalopoulos stated that the employee had last attended site on 31 March 2020. Following advice of this positive test Ms Mihalopoulos asked Mr Barber to contact the NSW Department of Health while she contacted SafeWork NSW. 142 Ms Mihalopoulos’ evidence was that a SafeWork NSW inspector advised her to make a report on the standard reporting hotline, but that a SafeWork inspector would not need to attend the site as it was not a SafeWork reportable incident.143

[143] SICTL then voluntarily ceased all operations at the Port Botany site that day 3 April 2020 and work did not resume until 6 April 2020. During this period and in the absence of employees, a deep clean was undertaken. It was Ms Mihalopoulos’ evidence that the decision to close down the site from 2:00pm on 3 April 2020 was not a requirement of NSW Health or SafeWork NSW but a decision of the employer. 144

[144] Ms Mihalopoulos states that she was responsible for drafting a memorandum (COVID-19 Update 4) sent out on 3 April to all employees via email by the CEO Mr Willy. 145

[145] During a telephone conference call on 3 April 2020, Ms Mihalopoulos stated that Mr Warren Smith of the Union made a number of demands of SICTL including that at risk/vulnerable employees have access to paid special leave, that the site shutdown should be for 14 days and that employees would not return to work until there was a guarantee they would be paid during this time. These demands were not agreed to by SICTL. 146

[146] On 4 April 2020, following the 3 April notification, Ms Mihalopoulos sent a COVID-19 Update (6) via email to employees which stated, inter alia, that SICTL had engaged a contractor with experience in cleaning COVID-19 infected sites and advised that:

"The clean commenced at 16:00 on 3 April 2020. We are working closely with the cleaning contractors and anticipate that the site will be ready late Sunday, 5 April 2020. Prior to commencing work however we will engage the WHS Committee on day shift 6 April 2020 with our plan to resume landside operations at 14:00, 6 April 2020. It is intended for limited Maintenance work to commence in isolated areas at 06:00, 6 April 2020."  147

[147] In line with advice and recommendations from NSW Health, SICTL undertook a review of potential close contacts of the employee to assist the NSW Health contact tracing exercise.

[148] In summary, Ms Mihalopoulos stated that SICTL took the following steps to ensure the safety of employees at the Port Botany worksite following the first employee COVID-19 notification:

(a) contacted and sought the assistance of both SafeWork NSW and the NSW Department of Health

(b) voluntarily ceased all operations at the Port Botany Site and suspended all employee access to the site for the period commencing 2.00pm on 3 April 2020 with a resumption of operations at 2.00pm on Monday 6 April 2020

(c) engaged appropriate, qualified and experienced commercial cleaners to commence a "deep clean" of all plant, machinery and buildings at the Port Botany Site in the absence of employees working at the Port Botany Site in the period commencing 4.00pm on 3 April 2020 and concluding 2.00 pm on Monday 6 April 2020

(d) after the completion of enquiries and tracing exercises by medical practitioners from NSW Department of Health COVID-19 Response Team, SICTL advised 17 employees at the Port Botany Site that their personal details had been provided to the NSW Department of Health. SICTL recommended that the 17 employees seek the guidance of the NSW Department of Health on their personal situation. None of the 17 employees nominated subsequently reported any positive test results for COVID-19. The employees were not required to utilise their personal leave and were paid their wages for the period of absence from the workplace

(e) arranged for a separate pre-allocation shift for members of the WHS committee to meet with management at 8.00 am on Monday 6 April 2020 ahead of the planned re-opening of the Port Botany Site to employees at 2.00pm on 6 April 2020 148

[149] Ms Mihalopoulos stated that the proposed meeting with the WHS Committee was described as a site inspection, however, only one of six employee WHS representatives who were requested to attend work and participate in the meeting arrived at site for the meeting, as such the meeting did not proceed. 149

[150] An email from a Paul Wallington a WHS Committee member was received at 8:25am stating that in the circumstances of having two positive COVID-19 results in the workplace over the last few days, WHS representatives feel is not safe to meet face-to-face and request that any meetings be held via an online meeting platform. 150

Second COVID-19 notification

[151] On 5 April 2020 Ms Mihalopoulos stated that she was informed by Geoff Hughes of a second employee COVID-19 notification. A male stevedoring employee had on 5 April 2020 disclosed to Mr Hughes that he had previously met outside of work hours in March 2020 with the female employee who had earlier tested positive, but not at the Port Botany site. The employee wished to keep confidential the facts and circumstances in which he had met the first employee outside of the work environment in March 2020.

[152] The employee advised that he had tested positive to COVID-19 and would be absent from work until his medical practitioner confirmed his availability to return to work.

[153] Ms Mihalopoulos stated that the NSW Department of Health was satisfied that the second employee did not attend the workplace at any time in which he was infected or potentially contagious with COVID-19. 151

[154] The second employee was absent from the site in the period between 28 March 2020 and 20 April 2020. The last occasion on which the first and second employee had worked together was on 11 February 2020 being six weeks prior to the female employee having travelled on domestic airline flight which was the source of her COVID-19 infection. 152

Cease work direction of Mr Kreger

[155] Ms Mihalopoulos stated that she received an email from Mr Kreger on Sunday 5 April 2020 at 9:31pm. Mr Kreger’s email stated that he had been made aware of two operational employees who were positive with COVID-19 and that they had been at the workplace in close contact with numerous other employees in recent weeks.

[156] Mr Kreger’s email stated that there was a real potential that COVID-19 had been spread in the workplace and that the employer had failed to put in place safe systems of work. The email stated that as a HSR he directed workers in all work groups cease work in accordance with s.85 of the WHS Act based on a reasonable concern that to carry out work would expose workers to a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard, namely the COVID-19 contagion. Mr Kreger stated that he believed the risk was so serious immediate or imminent that it was not reasonable to consult before giving the direction. Mr Kreger’s email stated that he had taken advice from a ‘legally qualified medical practitioner’. The email concluded with Mr Kreger stating that he was exercising his power as a HSR for all workgroups. 153

[157] On the same evening at 10:59pm, Mr Chris Barber, the Manager HSEQ sent an email to Mr John Whatman Assistant State Inspector SafeWork attaching Mr Kreger’s email and referring to the issuance of a Provisional Improvement Notice by Mr Kreger. It was Ms Mihalopoulos’ evidence that, upon receipt of the cease work email Mr Barber proceeded on the basis that the email was a PIN. Mr Barber’s email to Mr Whatman states that SICTL was putting the PIN into dispute under s.100 of the WHS Act and requested that SafeWork appoint an inspector to review the PIN urgently. 154

[158] At 5:33am the following day, Monday 6 April 2020, Mr Whatman responded to Mr Barber asking for a copy of the PIN.

[159] In response to this request at 5:37am Ms Mihalopoulos sent an email to Mr Whatman confirming that SICTL had received a ‘purported PIN from Mr Kreger on 5 April at 9:31pm and provided a copy of the email sent by Mr Kreger.

[160] Ms Mihalopoulos attached to her witness statement an email then received from Mr Whatman at 5:51am which included the following sentence:

“The PIN is stayed for the duration of the review by the regulator of the HSR PIN.” 155

[161] Mr Barber then responded in detail to the cease work email from Mr Kreger at 10:03am on 6 April 2020 156 to Mr Kreger and all of the HSRs and concluded by stating:

"In view of the steps taken by the Company and the time periods, we believe there can be no credible basis for the belief expressed by you, that there is at present a serious and/or immediate threat/risk to health and safety of workers at the site.

We invite you on an urgent basis to engage with us at 11.00am today on an open consultation, and request that you provide us with the evidence and information you have considered to establish reasonable belief of a contravention of the WHS Act, and clarity on which provision you believe has been contravened. Please join me at 11.00am on the following conference call details…”

[162] Mr Barber in his correspondence continued to characterise the notification from Mr Kreger as a PIN which Ms Mihalopoulos stated was the understanding also shared by the Assistant State Inspector SafeWork, John Whatman. 157

[163] At 1:18pm on 6 April 2020, Mr Whatman sent an email to Ms Mihalopoulos and Mr Barber stating that he had had a conversation with Mr Kreger who had advised him that he had not issued a PIN but had utilised s.85 of the WHS Act. Accordingly, the statutory obligation to stay the PIN pursuant to s.100 of the WHS Act (when a review is requested) will be withdrawn.

[164] An email reply from Nathan Donato, Assistant Branch Secretary of the Union was received 10 minutes prior to the 11:00am meeting, advising that the meeting would need to be rescheduled to allow Mr Kreger to have representation and for full attendance. Upon reading the email response from Mr Donato, Ms Mihalopoulos formed the view that the proposed meeting would not occur but sent an email to Mr Donato at 10:52am, requesting that the meeting proceed. However, no HSRs dialled into the meeting and the meeting did not take place. 158 Ms Mihalopoulos stated that she had not intended to participate in the meeting with the HSRs, as a Zoom meeting was arranged between representatives of SICTL management and Union officials at the same time, this meeting proceeded.

[165] The 22-day shift employees rostered to work that morning did not attend other than the single HSR representative, who attended for the 11:00am meeting that did not proceed. 159

[166] At the Zoom meeting with Union officials, Ms Mihalopoulos stated that Mr Warren Smith stated that employees were not returning to work until everyone who had worked on site after the first COVID-19 positive employee last attended the worksite is tested and the worksite has been isolated for 14 days. 160 Ms Mihalopoulos states that she responded that the employee had not been on-site for 6 days and there had been a deep clean and potential close contacts are being isolated and measures have been put in place to protect all employees on site.161

[167] Ms Mihalopoulos stated that approximately 21 employees were rostered to work the 2:00pm evening shift which consisted mainly of tasks where employees worked independently, as there was no vessel in port. Fifteen of the rostered employees called the hotline and advised they were not working based on the cease work direction, two employees called the hotline and stated they were not working due to COVID-19 related reasons and one employee advised he was not working due to sickness.

[168] Ms Mihalopoulos stated that in an email she sent to Mr Smith at 12:49pm that day she advised Mr Smith that she would like to take up the opportunity to meet with representatives of NSW Health and requested that it occur as a priority and stated that in her view there were no impediments for work to continue. Ms Mihalopoulos’ email then listed eight reasons why work should continue. 162 Ms Mihalopoulos also stated that she sent to Mr Smith that afternoon (via email) details relating to the contact tracing methodology and deep cleaning process that had taken place.163

[169] Following receipt of the email from Mr Whatman advising that Mr Kreger had not issued a PIN, Ms Mihalopoulos realised there had been some confusion about the nature and intent of Mr Kreger’s notice and she forwarded an email to Mr Whatman at 2:54pm on 6 April 2020 requesting, pursuant to s.89 of the Work Health and Safety Act 2011, that WorkSafe NSW urgently appoint an inspector to attend the site as the cessation of work has the potential to significantly impact upon SICTL’s business. Further it was noted that there been no attempt by Mr Kreger to carry out any consultation or attempt to resolve the matter prior to him issuing the cease work direction. 164

[170] Mr Whatman indicated that he would assist, and a Zoom meeting was arranged for 6:00pm that day (6 April 2020).

[171] In attendance at the Zoom meeting were employee, Union and SICTL representatives and SafeWork NSW Assistant State Inspector Mr John Whatman. Ms Mihalopoulos’ evidence was that during the meeting Mr Whatman stated that he was unable to make a binding decision or order a return to work. Inspector Whatman suggested that the parties attend a meeting with the Chief Medical Officer of NSW.

[172] Ms Mihalopoulos stated that the following day, 7 April 2020 three operational shifts and two maintenance shifts were to be worked. Of the 52 stevedoring employees rostered to work on the day shift, none attended the worksite. Of the seven maintenance employees rostered to work the maintenance day shift, six failed to attend and advised they were complying with the cease work order and one employee stated they were sick. 165

[173] Of the 31 stevedoring employees rostered to work on the evening shift on 7 April, only one employee attended and then left site without authority 10 minutes after the commencement of the shift. Of the four maintenance employees rostered to work the evening maintenance shift, three employees advised they were not attending because they were complying with the cease work order and one maintenance employee advised they would not be attending because they were sick. Of the 28 stevedoring employees rostered to work on the night shift only 6 attended site and worked. 166

[174] Ms Mihalopoulos stated that a Zoom meeting was arranged for 1:30pm on 7 April 2020 to be attended by representatives of the Union, the WHS Committee and management. The meeting was delayed for one hour as an email had been received from Mr Paul McAleer of the Union seeking a number of outcomes which had not been part of previous discussions with the WHS Committee. The new demands included:

• Future positive cases be reported to the WHS Committee Chairperson, in addition to SICTL

•  Contact tracing to be undertaken by a newly formed COVID-19 Committee and communicated to Union representatives, WHS Committee and ERC Committee

•  Employees who have COVID-19 symptoms and or “vulnerable” must notify the employer and self-isolate on full pay without making use of accrued personal leave

•  Temperature testing to be undertaken by a Safety Facilitator (Marshal) 167

[175] At 4:00pm that day a Zoom conference call was arranged with the Chief Medical Officer of NSW Dr Kerry Chant at the instigation of Mr Warren Smith. 168 Ms Mihalopoulos gave evidence that during the meeting, Dr Chant stated that:

“If any of those patients (SICTL employees) who are currently in isolation by us develops symptoms now they were not in the workplace infectious….

The isolated employees may still test positive for COVID-19 which would be a workplace transmission but there is no reason for any other workers not to go to work now because the isolated employees are well, they have no symptoms and therefore could not have been at work whilst infectious so employees should attend for work. The process from Hutchison had genuine efforts, was a good process and we don't believe anyone has been misclassified as a close contact. I ask Hutchison to again provide details of the shifts worked to your employees raise these issues with the WHS committee and we can provide an email address of our COVID-19 response team for employees who are still concerned. You need to stress to employees if they have symptoms do not come to work."

(My underline)

[176] The meeting did not finish until approximately 6:30pm. Ms Mihalopoulos stated that, at the conclusion of the meeting, her understanding was that there was no reason why employees would not return to work.

[177] Following the meeting, at 7:02pm, Ms Mihalopoulos in response to a short telephone discussion with Mr Donato of the Union immediately following the Zoom meeting, sent the following email to Mr Donato:

“Thank you for your call earlier. We believe that the advice from CMO is very clear that there is no impediment to return to work. All other matters we commenced discussing today can continue whilst there is a return to work. We are not available to continue this evening. We look forward to continuing this very important process with the MUA, the HSRs and the WHS Committee."

[178] On 8 April 2020, Ms Mihalopoulos assisted with the preparation of the memorandum sent out by Mr John Willey, the CEO set out in [25] above which advised employees that Dr Chant had stated that in her opinion, employees should return to work. 169

[179] On the same day, Ms Mihalopoulos received an email from Mr Donato which stated:

“The union are standing by awaiting your contact to set up a meeting to work through the controls that will assist in aiding the Cease Work Order to be removed, in turn ensuring members can return to a safe work environment with confidence as soon as possible.”

[180] Ms Mihalopoulos responded that afternoon by email to Mr Donato, in the following manner:

“You attended the meeting yesterday afternoon arranged by your union with the HSR where you were told in no uncertain terms by perhaps the most senior NSW government advisor concerning COVID-19 that there was no impediment to our employees returning to work. You did not attempt to contradict this advice.

I find your email sent at 8 April 2009 as disingenuous. No doubt, you would have John’s memo from this morning. The industrial action must stop so that we can all get back to the task of restoring the terminal to full operations so that important goods are available to the Australian public.

The document that you referred to as the “cease work order” should be withdrawn. Employees should return to work as directed. Discussions can continue and will continue with respect to any genuine issues or concerns.” 170

[181] Ms Mihalopoulos stated that following the meeting with Dr Chant, SICTL continued to roster employees to work between 8 April and 12 April 2020. Ms Mihalopoulos’ witness statement provided a table of shifts between this period which indicated that the majority of stevedoring employees who were rostered to work during this period did not do so. However, there were a smaller number of stevedoring employees who did present for work and worked their shift as rostered during this period. 171

[182] At 1:00pm on 8 April 2020, Ms Mihalopoulos attended a Zoom conference with representatives of the Union at which additional control measures were discussed. On behalf of the Union Mr Smith put forward a number of demands or requirements that were not agreed to by SICTL which included:

•  Special COVID-19 related paid leave;

•  Additional cleaning services, using a cleaning provider nominated by the Union;

•  Employees ceasing work 30 minutes before completion of their shift and be paid;

•  Health screening to be performed by Union members prior to accessing the site;

•  Contract (sic) tracing to be performed by the Union; and

•  Appointment of a paid COVID-19 safety facilitator. 172

[183] Mr Smith explained that employees finishing half an hour early would allow the contracted cleaners to undertake the cleaning. 173

[184] Ms Mihalopoulos discussed with Mr Willy areas that could be agreed upon, however shortly after the meeting she received an email from Mr Smith which suggested that the Union demands raised during the meeting had been agreed to by SICTL, Ms Mihalopoulos replied on 9 April to 2020, stating that:

"Notwithstanding the title of your email, we don't have an agreement at this point of time. We will only reach agreement on these important issues when all items have been agreed and if necessary, signed off This discipline must be applied to our negotiations as I am very aware of the preparedness of your union to form its own view as to what has or has not been agreed." 174

[185] Ms Mihalopoulos’ response to Mr Smith also confirmed that the following matters were agreed in principle, subject to the necessary documentation. These matters were expressed as follows:

1. Cleaning, subject to reviewing the items referred to on the list of “measures document” which we take to mean the email from Paul McAleer on 7 April 2020.

2. Protocols around shift times through best endeavours and implementing some controls from HPB, SOP.

3. We have rejected the use of temperature testing at this time, but as an alternate we are prepared to implement daily help screens through text messages.

4. Our approach to gloves and PPE will always be subject to the needs of individual employees and groups of employees and reasonable availability of PPE in the current pandemic environment.

5. The sharing of contact tracing information provided to NSW Health on the current case 175

[186] Ms Mihalopoulos’ response also stated that there were two items that continue to prevent a comprehensive agreement being reached; the special COVID-19 related leave and the temporary COVID-19 Facilitator. 176

[187] Ms Mihalopoulos stated that she had a telephone conversation on 9 April 2020 with Mr McAleer in which he stated that employees wanted to get back to work. During the call Mr McAleer queried whether shifts not worked would be paid. Ms Mihalopoulos stated that she considered that shifts not worked to be industrial action and would not be paid since Dr Chant said employees should come to work. 177

[188] Shortly after this telephone discussion Mr McAleer sent an email which stated, amongst other things:

“As just discussed, the MUA HSR’s have agreed to the parameters as set out in your email, along with other agreed matters as set out in the document we were working from” 178

[189] Ms Mihalopoulos stated that notwithstanding Mr McAleer’s email, work did not resume as normal and stevedoring employees continued not to attend rostered shifts. 179

[190] In respect of the evidence of Mr Kreger, Ms Mihalopoulos expressed the view that the concerns in his cease work directive were not accurate in that:

(a) Whilst it was correct that two employees of the Respondent had tested positive for COVID-19, neither employee had contracted COVID-I9 at work at the Port Botany site

(b) Both employees had not been at work in the workplace in close contact with "numerous other employees in the recent weeks"

(c) At the time of Mr Kreger articulating his concerns at 9.3l pm on 5 April 2020, the entire Port Botany Site had been closed to all employees from 2.00pm on 3 April 2020. The Port Botany Site had been the subject of a professional deep clean

(d) To the extent that the NSW Department of Health (armed with the data provided by SICTL) had determined a list of potential close contacts. Each one of these deemed close contacts:

(i) were removed from the Port Botany Site, or not permitted to return to the Port Botany Site, effective 3 April 2020.

(ii) had not tested positive to COVID-l9; and

(iii) were permitted by SICTL discretionary paid leave to be absent from the Port Botany Site for the 14-day period on and from 3 April 2020.

(e) In addition to the deep clean that had occurred at the Port Botany Site during its closure over the weekend of 4-5 April 2020, SICTL already had in place a number of cleaning initiatives for machinery as well as restrictions on how and when employees could move around the site all aimed at reducing any opportunities for individuals to gather together, including the zoning of common areas to ensure physical distancing, introduction of overflow meal rooms, installation of signage and instructions with respect to exit and entry, installation of instructions and signage in relation to maximum capacity of rooms and vehicles;

(f) At the time of Mr Kreger issuing the Cease Work email, SICTL was not in a position to require COVID-l9 testing for all employees, nor was this type of testing available (in the absence of symptoms or deemed close contact) or deemed necessary by the NSW Department of Health; and

(g) Temperature testing had been a matter discussed with the WHS Committee and excluded by SICTL on the basis that it was not recommended by Safe Work NSW. 180

[191] Ms Mihalopoulos stated that a SOP had been in place since the conclusion of the 17 March 2020 WHS Committee meeting. Following discussions including with members of the WHS Committee between 10 and 15 April 2020, the SOP was formally amended and issued on 15 April 2020. 181

[192] Ms Mihalopoulos stated that having been involved in both the enterprise agreement negotiations and responding to protected industrial action and her involvement in COVID-19 discussions there was no attempt by SICTL to link the two subject matters. One form of protected industrial action that was being undertaken was an unlimited number of bans on shifts starting outside the nominal start times. The staggering of the start and finish times of employees was a matter discussed in COVID-19 discussions, but this could not be implemented while there was protected industrial action being taken on shifts starting outside the nominal start times. 182

[193] A similar consideration applied to the staggering or changing of meal breaks in that the Agreement did not permit SICTL to vary the start or finish times of meal breaks. 183

[194] In respect to Mr Euers’ evidence that SICTL had done nothing to eliminate congestion at the start and end of shifts, Ms Mihalopoulos stated that SICTL had put in place a number of initiatives to avoid any potential physical congestion of employees entering and leaving the site at the start or end of shifts. Access and exit turnstiles were separated to ensure separation and direction of traffic. Employees were instructed as to when they were permitted to access the site prior to the start of the shift. 184

[195] Ms Mihalopoulos did not accept the evidence of Ms Wasley that appropriate personal protective equipment was not readily available at the site at the time Mr Kreger issued his cease work direction.

[196] Ms Mihalopoulos stated that SICTL had put in place adequate measures with respect to shift changes and had completed a deep clean of the site. Further, a number of initiatives in respect to safe work practices including lashing and/or work performed in or around a vessel had been put in place.

[197] With respect to lashing, which has the potential for employees to be in close proximity with each other, Ms Mihalopoulos stated that initiatives such as the provision of masks, gloves and sanitiser; minimising the number of personnel allocated to lashing shifts and restricting access to contact with vessel personnel who were not employees of SICTL were all implemented and included in the SOP as early as 19 March and remained operative as at 6 April 2020. 185

Submissions of SICTL

[198] SICTL submitted that the claim before the Commission was an attempt to:

•  Enforce a term of the Agreement; and/or

•  Make an order which is inconsistent with the Agreement and the Fair Work Act 2009 186

[199] SICTL further submitted that the stoppage of work by employees from 6 April to 11 April 2020 was taken in order advance the industrial claims, therefore s.474 of the Act operates to prohibit payment of any wages for this period. 187

[200] SICTL did not challenge the submissions of the Union regarding the proper construction of the relevant provisions of the Agreement but submitted that any safety concern was not ‘reasonable’ in the circumstances.

[201] It was submitted that following the advice of the first employee COVID-19 positive test on 3 April 2020, SICTL undertook a number of steps to ensure the health and safety of its employees at the Port Botany worksite:

Contacted and sought assistance of both SafeWork NSW and the NSW Department of Health;

•  Voluntarily ceased all operations at the worksite and suspended all employee access to the site from 2:00pm on 3 April 2020 until recommencing operations at 2:00pm 6 April 2020;

•  Engaged appropriate, qualified and experienced commercial cleaners to commence a deep clean of all plant, machinery and buildings at the worksite, commencing at 2:00pm on 3 April 2020;

•  After the completion of enquiries and tracing exercises by medical practitioners from a COVID-19 Response Team from the Department of Health, advised 17 employees at the Port Botany site that their personal details have been provided to NSW Health. None of the 17 employees reported any COVID-19 positive test results, which was advised to the Union and representatives of the WHS Committee on 6 April 2020. These 17 employees were paid their wages for the period of absence from workplace; and

•  Arranged for a separate pre-allocation shift for members of the WHS Committee to meet with management ahead of the planned re-opening of the site at 2:00pm on 6 April 2020.

[202] Upon being advised of the second employee COVID-19 positive test on 5 April 2020, SICTL submits that:

•  NSW health was satisfied that the second employee did not attend the workplace at any time at which he was infected or potentially contagious;

•  The employee was not permitted to attend the workplace until he received a medical clearance; and

•  The employee was not rostered to work on 6 April 2020, and did not attend work between the period 7 April to 20 April 2020.

[203] The employer submitted that clause 8.18 of the Agreement dictates that the "concern" must be a reasonable concern of a serious risk arising from immediate, imminent or impending hazard. The evidence properly assessed at the point of each employee's cessation of work discloses no such basis for a reasonable concern to be held at the relevant time. SICTL submitted that they had initiated a number of COVID-19 initiatives which included 188:

•  A COVID-19 workplace policy had been implemented since 16 March 2020 and amended in consultation with the HSR and the WHS Committee;

•  Three COVID-19 officers had been appointed;

•  PPE was made available where required;

•  Signs and policies encouraging social distancing were in place;

•  Individual backpacks were available for employees to take to work locations which contained hygiene and cleaning equipment;

•  Introduction of the nominated managerial responsibility of Pandemic Disease Manager and Deputies, with appointment of employees to these temporary responsibilities;

•  Introduced toolbox talks for workers regarding protection from COVID-19 and communication of COVID-19 policy;

•  Developed a Safe Operating Procedure for dealing with COVID-19;

•  Annual leave made available to employees who wished to be absent from work;

•  Granted access to personal leave in advance of accrual on application;

•  Ensured that any employee who was to return to the Port Botany site following a period of leave was required to submit information with respect to their activities whilst on leave;

•  Engaged with the proper authorities and acted on their advice; and

•  A deep clean of the workplace had been undertaken.

[204] In respect of the second employee COVID-19 positive notification on 5 April 2020 the NSW Department of Health was satisfied that this employee did not attend the work site while either infected or contagious and did not return to site until 20 April 2020.

[205] SICTL submitted that, in light of the measures undertaken to deal with COVID-19, and the views expressed by the NSW Chief Health Officer, any imminent safety concern could not be seen as reasonable in the circumstances. 189

[206] The advice of the Chief Medical Officer, provided on 7 April 2020, at a Zoom meeting in the presence of various site Health and Safety representatives and the Union, that there was no reason for employees not to go to work was conveyed to all appropriate employee representatives. Notwithstanding this advice, the Union continued to pursue their industrial claims and demands in directly and indirectly encouraging members at the site to engage in industrial action until commencement of the night shift at 10:00pm on 11 April 2020.

[207] It was submitted that employees commenced their individual cessations of work progressively from 2:00pm on 6 April 2020, which varied from individual to individual with reference to the shift or shifts that were progressively rostered to be worked in the period up until 11 April 2020. During this period no employee had contracted COVID-19 at the worksite.

[208] Based on the above, SICTL submits that where employees chose not to attend work it could not have been based on a reasonable concern of a serious risk arising from any imminent or impending hazard in the workplace that would permit the employee to cease work pursuant to clause 8.18 of the Agreement.

[209] In respect of the three employee witnesses who provided evidence it was submitted that there was no credible basis for these employees to have a reasonable concern of a serious risk arising from an immediate, imminent or impending hazard at the worksite.

[210] On the above basis, there was no immediate imminent or impending hazard at the site at the time work ceased on 6 of April 2020 nor any basis for any reasonable concern of a serious risk to the health and safety of employees.

Unprotected industrial action

[211] SICTL submitted that, in response to provision of advice to the Union regarding the first employee COVID-19 positive result, the Union through its officers and delegates at the Port Botany site, both advanced and pursued a number of claims relating to new terms and conditions of employment for stevedores employed at the workplace. These claims included: 190

a) A new form of paid "special leave" (in addition to paid personal leave) for the benefit of any employee exposed to or potentially exposed to COVID-19, including additional leave for what the Union described as "high risk employees";

b) The introduction of a new paid position and/or classification to be known as “Safety Facilitator”;

c) An amendment to the responsibilities of Health and Safety Representatives at the Port Botany Site to conduct any subsequent tracing exercises of employees at the direction of NSW Department of Health;

d) Paid overtime for Shift and Team Leaders to prepare for the toolbox talks related to the communications to workers of COVID-19 initiatives and policies;

e) Relaxation in the information (including proof of illness) to be supplied by employees in the event of an application for paid personal leave. This claim was described by the Union as requiring the employer to permit employees to make use of their accrued personal leave in circumstances of self-isolation and/or individual concerns relating to COVID-19; and

f) A requirement that the employer engage:

i. a training organisation nominated by the Union, to deliver COVID-19 awareness training at the Port Botany Site;

ii. a cleaning contractor nominated by the Union at the Port Botany Site; and

iii. a medical practice (based in Parramatta) nominated by the Union to conduct, at the expense of the employer, COVID-19 testing of every employee at the Port Botany Site.

[212] SICTL submits that it advised the Union that the above claims were in excess of those previously sought in the enterprise bargaining process which had commenced in January 2019. SICTL advised the Union it would not agree to these claims. 191

Relief sought

[213] SICTL submitted that any order requiring the payment of wages for the period in question is, in effect, an application for enforcement of an industrial instrument and one that the Commission does not have power to make. 192

[214] SICTL stated that the Union’s submissions that an order of the Commission for the payment of wages for shifts rostered but not worked the period from 6 April 2020 until 11 April 2020 would be a ‘new standing right’ should be rejected. 193

[215] It was submitted that, in any event, the matter should be resolved in favour of the SICTL for the reasons outlined above. 194

Consideration

[216] In this matter the Commission must determine whether:

(a) employees had a concern(s) about a serious risk arising from an immediate, imminent or impending hazard (to their health or safety);

(b) the concern was reasonable; and

(c) the failure to attend rostered shifts during the relevant period was based on that reasonable concern.

[217] The concept of immediate/imminent or impending describes the risk to the employees’ health or safety. The word “imminent”, in this context, means “likely to occur at any moment,” and ‘impending’ means ‘about to happen; imminent’ 195.

[218] I accept that, as put by the Union, 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 immediate/imminent or impending risk to their health or safety. I further accept that an imminent, immediate or impending threat of a workplace transmission of COVID-19 can be considered a hazard posing a serious risk to health and safety.

Reasonable concern

[219] Clause 8.19 of the Agreement provides that there shall be no loss of pay to an employee 196 who ceases work on the basis of holding a reasonable concern of a serious risk arising from an immediate, imminent or impending hazard. In this dispute the hazard has been identified as the risk of transmission of COVID-19 at the worksite.197

[220] It is noted that the WHS Act provides (for all intents and purposes) the same right for an employee to cease or refuse to carry out work if they have a reasonable concern that to carry out work that would expose them to a serious risk to health or safety, emanating from an immediate or imminent exposure to a hazard. 198

[221] The significant difference between the WHS Act’s right for an employee to cease work and that provided under the Agreement is that the terms of clause 8.19 of the Agreement bestow an additional entitlement that there is to be no loss of pay where the requisite reasonable concern held by an employee results in their cessation of work.

[222] In the Supreme Court of the Northern Territory decision Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers’ Union of Australia 199, Nader J outlined a number of factors relevant to whether matters of health and safety could amount to sufficient justification for action taken by a Union:

i. How seriously did the situation threaten health and safety?

ii. What efforts had been made in the past by the workers (or others to their knowledge) to eliminate that risk?

iii. What response has the employer made to reduce the risk?

iv. Is the issue genuine or is it a pretext to further a less worthy objective?

v. What other methods, if any, were available to the defendants to achieve such "less worthy objective?

vi. What proportion was there between the seriousness of any threat to the health and safety of employees and the extent of damage to the employer’s business.

[223] These factors were said by Gilmour J of the Federal Court to be a useful guide as to whether action taken was based on a reasonable concern about an imminent risk to health or safety. 200 A similar position was taken by Munro J in AMWU v Rheem Australia Pty Ltd.201

[224] The above factors are in my view also useful in this matter subject to the necessary revision to fit the specific wording of clause 8.18 of the Agreement.

[225] A number of witnesses gave evidence in this matter which is summarised above. In providing their evidence reference was made as to what other persons who did not give evidence, purportedly said or did. This includes Mr Whatman, Dr Chant, Mr McAleer, Mr Garrett, Mr Donato, Mr Barber and Rima EL-Hayek, who did not provide any evidence in the present matter and were not called by either party.

Cease work direction

[226] Section 69 of the WHS Act provides that a health and safety representative for a work group may only exercise powers under the WHS Act in relation to matters that affect or may affect workers in that group. Mr Kreger, as a HSR, was a representative for a particular group.

[227] Sub section 69(2) provides an exception to the restriction to exercising powers under the WHS Act to the HSR’s own work group and extends the exercise of power to all work groups only if there is serious risk to health or safety emanating from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group where the HSR for another work group is found after reasonable enquiry, to be unavailable.

[228] The cease work directive of Mr Kreger applied to all workgroups and was issued at 9:31pm, Sunday, 5 April 2020. Mr Kreger’s evidence did not indicate that he had made any enquiry about the availability of HSRs in other work groups prior to issuing his direction which purported to cover other work groups. 202

[229] Section 85 of the WHS Act - Health and safety representative may direct that unsafe work cease provides that a direction to cease work may not be given unless the matter is not resolved following consultation with the employer, unless the risk is so serious and immediate or imminent it is not reasonable to consult before giving the direction. However, the HSR must carry out the consultation as soon as practicable after giving the direction. 203

[230] Mr Kreger does not appear to have arranged for any consultation after issuing his direction and was contacted the following day 6 April at 10:00 by email from Mr Barber requesting that he attend a meeting at 11:00am that morning. This meeting did not proceed on the basis that Mr Kreger could not obtain Union representation at the time. 204

[231] Mr Barber, Manager HSEQ, Ms Mihalopoulos, General Manager, Human Resources and Industrial Relations, and Mr John Whatman, Assistant State Inspector WorkSafe NSW, all appear to have initially erroneously categorised Mr Kreger’s cease work direction as a PIN, which it clearly was not.

Actions of SICTL

[232] I accept that, prior to being advised on 3 April 2020 of the first positive employee COVID-19 test result, SICTL had acted to the best of its ability to ensure the health and safety of its workforce at the Port Botany site by implementing a number of COVID-19 initiatives which included having: 205

a) Published a COVID-19 Workplace Policy on 16 March 2020 (which was further amended in consultation with the WH&S Committee) 206;

b) Appointed three COVID-19 officers;

c) Provided PPE, including face masks and gloves, to all employees where required for their role;

d) Introduced signage and implemented procedures to encourage and maintain physical distancing measures at work, including:

i. establishing separate entry and exit turnstiles (one-way process) when entering and exiting the terminal; 207;

ii. lunchroom and training room tables separated, and markings applied to ensure 1.5 metre separation;

iii. commenced separate toolbox meetings in different rooms with restricted numbers of attendees.

e) Introduced individual backpacks for employees to take to work locations, including plant and machinery which contained hygiene and cleaning equipment, including supplies of gloves, wipes, anti-bacterial gels to ensure that the employee could adequately prepare the place of work/equipment prior to commencement of work and/or at the conclusion of any shift;

f) Introduced the nominated managerial responsibility of the Pandemic Disease Manager and Deputies and the appointment of employees to these temporary management responsibilities;

g) Introduced and conducted toolbox talks for all workers regarding protection from COVID-19 infections and communication of COVID-19 Workplace policies;

h) Developed and introduced a Safe Operating Procedure for dealing with COVID-19;²⁰⁸

i) Made available annual leave to employees who wished to be absent from the workplace; 209

j) Granted access to personal leave in advance of accrual (on application); 210

k) Ensured that any employee who was to return to the Port Botany site following a period of leave was required to submit information with respect to activities whilst on leave, including information concerning overseas travel and/or exposure to persons believed to be infected with COVID-19;

l) Provided individual refillable hand sanitiser bottles to all staff on shift;

m) Made available hand sanitiser dispensers at all terminal entrances and in common areas accessible to all staff;

n) Established cleaning duties for the First Aider role including the responsibility to wipe down lunch tables and kitchen surfaces prior to and after meal breaks, and at the end of the shift; 211 and

o) Introduced and communicated to employees a document described as the "Fundamental Rules."²¹²

[233] I also accept that having been advised of the first employee COVID-19 positive test SICTL took further steps to protect the health and safety of its employees which included:

a) Seeking assistance from WorkSafe and NSW Health

b) While not required to, ceasing all site operations and suspending employee access to the site from 2:00pm, 3 April 2020

c) Commencing a ‘deep clean’ of the site undertaken by commercial cleaners

d) Advising 17 employees that their personal details had been provided to NSW Health after the completion of tracing by the NSW Department of Health COVID-19 Response Team

e) Employees deemed to be a close contact were paid for the period of absence from the workplace

f) Recommending that employees concerned about possible contact with the first employee contact the NSW Department of Health

g) Arranging for a separate pre-allocation shift for the WHS Committee to meet with management prior to the recommencement of work on the site  213

[234] It also appears that neither WorkSafe nor the Department of Health were critical of the measures undertaken by SICTL. I am satisfied that after the first employee COVID-19 positive test notification to SICTL on 3 April 2020 that SICTL acted promptly and appropriately.

Advice of NSW Chief Medical Officer

[235] At the 7 April 2020 Zoom meeting, the NSW Chief Medical Officer Dr Chant made a number of comments to the effect of:

There was no reason for workers not to go to work because the isolated employees are well and have no symptoms, therefore, could not have been at work while infectious so employees should attend for work. 214

[236] While Dr Chant was not called by either party to give evidence in this matter, no witness that attended this meeting 215 and gave evidence disputed that words to this effect were stated by Dr Chant. In cross examination Mr Kreger, Mr Smith and Mr Euers accepted that Dr Chant stated on 7 April 2020 that there was no reason employees should not return to work.216

[237] There is no evidence that any attendee at this meeting disputed the advice of Dr Chant that employees should return to work. The advice of Dr Chant that employees should attend for work was not referred to in any of the witness statements of the Union.

[238] The purpose of the meeting with Dr Chant was described by Mr Euers as follow:

“The purpose of the meeting was to understand how the COVID-19 virus spreads and what was the best (way) to deal (with) this in circumstances where there were confirmed cases in the workplace.” 217

[239] The following day, 8 April 2020, Mr Willy at around 10:27am sent to all employees a COVID-19 Update 9 Memorandum which in the main reported on the meeting with Dr Chant which included her comments that employees should return to work.

[240] Mr Kreger and Mr Euers attended the meeting with Dr Chant. Ms Wasley stated in cross examination that she received a copy of all memorandums sent by Mr Willy the CEO. 218

Was there a reasonable concern?

[241] At the time of this dispute the knowledge around COVID-19 was limited and a pandemic had been declared. The Australian population was generally concerned with the serious health repercussions of contacting COVID-19 and the employees of SICTL were no exception. This concern was shared by SICTL which had, as set out above, commenced developing a policy in conjunction with WHS representatives to deal with the pandemic at the worksite and mitigation strategies that could be adopted at the worksite well prior to the cessation of work.

[242] On notification of the employee COVID-19 notifications SICTL contacted both SafeWork NSW and the NSW Department of Health and upon the second notification temporarily shut down the worksite and commenced a deep clean of the site.

[243] Mr Kreger in issuing his cease work direction refers to the advice of a general practitioner. 219 The direction issued at 9:31pm on Sunday 5 April 20020 states at [8]:

“8. I have taken advice this afternoon from a legally qualified medical practitioner regarding COVID-19 and the workplace.”

[244] During cross examination Mr Kreger stated:

“None of us were medical experts, that's why we were trying to get advice from medical experts” 220

[245] At the Zoom meeting of 7 April, Mr Kreger, the Union and the other employees present were privy to advice first-hand from a medical expert at the highest level in NSW.

[246] As stated in the evidence of Mr Smith, employee concerns about COVID-19 transmission at the workplace were explained during this meeting to Dr Chant by Mr Kreger and Mr Euers. While being made aware of these issues the Chief Medical Officer still expressed her professional view that employees should return to work.

[247] While Dr Chant’s attendance at this meeting was arranged by the Union presumably on the basis that her guidance and expertise would be useful for the parties, the Union witness evidence did not adequately deal with why Dr Chant’s advice that employees should return to work was not followed.

[248] Despite receipt of this advice Mr Kreger did not rescind his cease work direction and did not return to work; stating he was observing his own cease work direction and trying to work through controls to lift his cease work direction. Of the controls that were sought, Mr Kreger accepted that not all were agreed to by SICTL. 221

[249] On 8 April Mr Smith from the Union forwarded an email to Ms Mihalopoulos at 6:28pm proposing a number of measures to resolve the safety issues wherein he concluded that a prompt response from SICTL would allow the Union to engage the WHS Committee and workforce to secure an orderly and prompt return to work in the safest possible environment. 222

[250] The Union correspondence stated that:

•  there should be Special COVID-19 related leave in certain circumstances,

•  it agreed that contact surface cleaning and all other required cleaning as agreed on the measures document is implemented,

•  the Union will remove reference to shifts finishing 30 minutes early on the basis that there is an ability to access and egress the terminal without interaction between shifts with at least a five-minute gap between shifts,

•  temperature testing be explored with the COVID-19 Committee,

•  gloves and PPE be readily available to employees in line with the measures document,

•  a temporary Covid-Facilitator be engaged for a period of one week on each shift; and

•  SICTL provide de-identified information to the Union, the WHS and the COVID-19 Committee with respect to assisting with any close contact tracing arising from the two positive COVID-19 related cases.

[251] On Wednesday, 9 April 2020, at 12:54pm Ms Mihalopoulos replied to Mr Smith stating that a number of matters were agreed in principle but did not agree to the provision of special COVID-19 related leave and the appointment of a temporary COVID-19 Facilitator.

[252] Ms Mihalopoulos’ evidence was that following the email exchanges, she had a telephone conversation with Mr Paul McAleer on 9 April 2020, where Mr McAleer in referring to Ms Mihalopoulos’s email the same day stated:

“everyone wants to get back to work we will more or less agree with what is sent.”

[253] Ms Mihalopoulos stated that Mr McAleer queried whether employees would be paid for not working and was advised by Ms Mihalopoulos that the work stoppage was considered industrial action and it would not be paid. 223

[254] As stated at [188] above, shortly afterwards Ms Mihalopoulos received an email from Mr McAleer which stated:

“As just discussed, the MUA HSR’s have agreed to the parameters as set out in your email, along with the other agreed matters as set out in the document we were working from.”

[255] The email further stated:

“It is disappointing that you continue to assert this is industrial action and that this topic will be seen as such. Obviously we find this offensive but will work through that through legal mechanism” 224

[256] Despite the events of 9 April 2020, employees did not return to work until the 2:00pm shift on 12 April. 225

[257] It is clear that following the meeting with Dr Chant, the Union at least, continued to press claims that it saw as being a resolution to employees returning to work, some which were agreed to by SICTL and others not agreed and subsequently not further pursued by the Union. Mr Kreger’s evidence was that changes to the SOP and other measures agreed to satisfied him that it was safe to return to work.

[258] Having sought the advice of Dr Chant, which was that it was safe to return to work, and that advice being relayed to all employees, a return to work did not occur.

[259] Based on the above it has not been demonstrated to the Commission’s satisfaction as required under 8.18 of the Agreement that a concern of a serious risk which was immediate, imminent or impending could have been reasonably held by an employee on being informed of the advice of Dr Chant.

[260] I accept that up until receiving the advice provided by Dr Chant at the meeting held on 7 April 2020, that employees would have been justified in ceasing work based on holding a reasonable concern of a serious risk (to health and safety) arising from the COVID-19 pandemic (the hazard), which was immediate, imminent or impending. As noted above, knowledge of COVID-19 was limited at this stage and the Australian public were generally concerned about the risk of transmission and two employees has tested positive, although not through a worksite transmission.

[261] I note that there were employees also covered by the Agreement who continued to attend the workplace who presumably did not have the same concern, in particular Shift Allocators. However as put by the Union, safety risks are matters “about which minds can reasonably differ.” 226

[262] The worksite had been closed since 2:00pm, 3 April, a ‘deep clean’ had been undertaken by commercial cleaners, SafeWork NSW and NSW Health had been engaged, a potential close contacts tracing exercise had commenced and the Chief Medical Officer had stated that employees should return to work.

[263] It is further noted that on 5 April 2020 Mr Kreger and all HSRs were advised in an email from Mr Barber that the second employee who had tested positive to COVID-19 had not worked on site during his period of potential infection 227 and had not been at the worksite for six days.

[264] On 6 April 2020 members of the WHS Committee who did not attend the scheduled Committee meeting phoned the hotline and provided varying reasons for their non-attendance as set out in Mr Hughes witness statement. Reliance on Mr Kreger’s cease work direction was a common reason provided to the hotline for shifts not worked by employees. Complying with a cease work direction may provide a legitimate reason for not attending the worksite but without more it does not equate to an employee themselves having a reasonable concern of a serious risk which was immediate, imminent or impending.

[265] While employees and the Union were entitled to continue to seek improvement in the existing COVID-19 management at the worksite, a reasonable concern of an imminent, immediate or impending serious risk could no longer be justified following receipt of advice from the 7 April Zoom meeting where employee concerns were raised and the advice of Dr Chant was to return to work.

[266] In its application the Union submit that it is not obliged to provide evidence from each individual employee in respect the 236 missed shifts. I accept that each and every employee need not provide evidence at least where there is a common and consistent response. 228

[267] The claims of Mr Smith made to SICTL and in particular a claim for special paid leave was put in cross examination to the three employee witnesses. The witness evidence did not support a conclusion that employees were engaging in industrial action in ceasing work as opposed to having their safety concerns alleviated 229 and I am not able or prepared on the evidence to draw an inference that the cessation of work was in pursuit of industrial claims.

Conclusion

[268] In view of the above, it is the decision of the Commission as the nominated arbitrator for disputes regarding the application of the Agreement that employees were entitled to hold a reasonable concern of a serious risk arising from immediate, imminent or impending hazard being the transmission of COVID-19 at the workplace up until receipt of the advice of the NSW Chief Health Officer at the Zoom meeting held on 7 April 2020, commencing at around 4:00pm and finishing at approximately 6:30pm. 230

[269] As per clause 8.19 employees are entitled to no loss of pay for shifts not worked where they did not do so on the basis of holding this concern until they were in receipt of the Chief Medical Officer’s advice that they should return to work. For the bulk of employees this advice was conveyed in the memorandum from the CEO and sent to employees in an email on the morning of 8 April 2020. On this basis, and providing employees a reasonable period in which to access their email and consider the advice a return to work for these employees should have commenced no later than the 6:00am dayshift operations on 9 April 2020.

[270] The employees who personally attended the meeting held with Dr Chant and received her advice that they should return to work first hand on the afternoon of 7 April 2020 should have been available for any shift they may have been rostered for from 6:00am 8 April 2020.

Determination

[271] In resolution of the dispute and based on the above conclusions the following arbitral determination is made:

1. Wages be paid to employees who attended the Zoom meeting on 7 April 2020 with Dr Chant who were rostered to work for any shift between the period:

•  Commencing at or after 6;00am - 6 April and commencing before 6:00am - 8 April 2020,

but did not attend their rostered shift based on their stated reasonable concern of a serious risk arising from an immediate, imminent or impending hazard.

2. Wages be paid to all other employees who were rostered to work for any shift between the period:

•  Commencing at or after 6;00am - 6 April and commencing before 6:00am - 9 April 2020,

but did not attend work based on their stated reasonable concern of a serious risk arising from an immediate, imminent or impending hazard.

DEPUTY PRESIDENT

Appearances:

L Saunders of Counsel on behalf of the Union

P Brown, Solicitor, on behalf of SICTL

Hearing details:

2020

Sydney

In person

12, 13August 2020

By Teams

17 August 2020

By Telephone

11 September 2020

Final written responses:

Union

18 September 2020

SICTL

18 September 2020

 1   S.58(2)(e) of the Act.

 2   Applicant’s outline of submissions dated 22 June 2020, at [36].

 3   Applicant’s final written submissions filed on 8 September 2020, at [2b] (at [19] it is stated that there were ‘200-odd shifts missed’).

 4   Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission (2001) 203 CLR 645 at 657, [31].

 5   Bernard Terence Bastian Pulle v Commonwealth of Australia acting through the Secretary of the Department of Parliamentary Service [2011] FWA 7462, at [71] (Lawler VP); Metropolitan Fire and Emergency Services Board v United Firefighters’ Union of Australia; Garth Duggan [2016] FWCFB 8120, at [60-61].

 6   Witness statement of Warren Smith dated 22 June 2020, at [4-5].

 7   Witness statement of Geoff Hughes dated 27 July 2020, at [15].

8 Witness statement of Simon Euers dated 22 June 2020, at [29].

 9   Witness statement of Geoff Hughes dated 27 July, at [8] (Although Mr Hughes conceded there was a risk he had attended while contagious, see Transcript of Proceedings, PN 1723- PN 1725).

 10   Witness statement of Benjamin Kreger dated 22 June 2020, at Annexure BK13.

 11   Witness statement of Harriet Mihalopoulos dated 27 July 2020, at [97] (it is accepted that Ms Wasley was not in attendance at this meeting).

 12   Witness statement of Harriet Mihalopoulos dated 27 July 2020, at Annexure HM 35.

 13   Witness statement of Benjamin Kreger dated 22 June 2020, at Annexure BK24.

 14   Ibid, at [3].

 15   Ibid, at [12].

 16   Ibid, at [26].

 17   Ibid, at [28].

 18   Reply statement of Benjamin Kreger dated 4 August 2020, at [8].

 19   Witness statement of Benjamin Kreger dated 22 June 2020, at [31].

 20   Ibid, at [32].

 21   Ibid, at [33].

 22   Transcript of Proceedings, PN 533.

 23   Witness statement of Benjamin Kreger dated 22 June 2020, at, [36].

 24   Transcript of Proceedings, PN 562.

 25   Ibid, PN 567.

 26   Witness statement of Benjamin Kreger dated 22 June 2020, at [44].

 27   Ibid, at [46].

 28   Ibid, at [47].

 29   Transcript of Proceedings, PN 588.

 30   Ibid, PN 578.

 31   Ibid, PN 574.

 32   Witness statement of Warren Smith dated 22 June 2020, at [11].

 33   Ibid, at [14].

 34   Ibid, at [16].

 35   Ibid, at [20].

 36   Ibid, at [23].

 37   Transcript of Proceedings, PN 665.

 38   Ibid, PN 668 & PN 677.

 39   Witness statement of Warren Smith dated 22 June 2020, at [24].

 40   Ibid, at [30].

 41   Ibid, at [33].

 42   Ibid, at [39].

 43   Ibid, at [39]; Reply statement of Warren Smith dated 4 August 2020, at [3]; Transcript of Proceedings, PN 682 & 685-687.

 44   Ibid, at [41-42].

 45   Ibid, at [43].

 46   Transcript of Proceedings, PN 714 & PN721.

 47   Witness statement of Warren Smith dated 22 June 2020, at [45].

 48   Transcript of Proceedings, PN 733.

 49   Ibid, PN 748-749.

 50   Witness statement of Natalie Wasley dated 22 June 2020, at [25].

 51   Ibid, at [25].

 52   Ibid, at [17].

 53   Ibid, at [53].

 54   Ibid, at [20].

 55   Ibid, at [28].

 56   Ibid, at [31].

 57   Ibid, at [39]-[40].

 58   Ibid, at [41].

 59   Ibid, at [45].

 60   Ibid, at [49].

 61   Ibid, at [53].

 62   Ibid, at [54].

 63   Ibid, at [55].

 64   Ibid, at [59].

 65   Ibid, at [83].

 66   Ibid, at [84].

 67   Reply statement of Natalie Wasley dated 4 August 2020, at [13].

 68   Witness statement of Natalie Wasley dated 22 June 2020, at [80].

 69   Transcript of Proceedings, PN 977.

 70   Ibid, PN 828 & PN 876.

 71   Ibid, PN 979.

 72   Ibid, PN 1198.

 73   Witness statement of Simon Euers dated 22 June 2020, at [22].

 74   Ibid.

 75   Ibid.

 76   Ibid, at [32].

 77   Ibid, at [34].

 78   Ibid, at [48].

 79   Ibid, at [52].

 80   Ibid, at [62].

 81   Ibid, at [65].

 82   Ibid, [70].

 83   Ibid, at [75]-[76].

 84   Ibid, at [82].

 85   Ibid, at [84].

 86   Ibid, at [83].

 87   Ibid, at [93].

 88   Ibid, at [99].

 89   Person Conducting a Business Unit.

 90   Witness statement of Simon Euers dated 22 June 2020, at [106].

 91   Ibid, at [110].

 92   Ibid, at [121].

 93   Ibid, at [124].

 94   Ibid, at [128].

 95   Ibid, at [130].

 96   Reply statement of Simon Euers dated 5 August 2020, at [15].

 97   Transcript of Proceedings, PN 1550 - PN 1553.

 98   Ibid, PN 1568.

 99   [2018] FCAFC 131.

 100   Applicant’s Outline of Submissions dated 22 June 2020, at [14].

 101   Ibid, at [25].

 102   Ibid, at [26].

 103   Ibid.

 104   Ibid, at [27].

 105   Ibid, at [7].

 106   (1990) 170 CLR 104, at 112.

 107   [2012] NSWIRComm 83, at [24].

 108   Applicant’s Outline of Submissions dated 22 June 2020, at [1].

 109   Applicant’s Final Submissions filed 8 September 2020, at [9].

 110   Final Submissions of 8 September 2020, at [17] (referencing Australian Building and Construction Commission v Ingham [2019] FCA 1052 at [152-154], [158]); Transcript of Proceedings, PN 2817-20 & PN 3010.

 111   Ibid.

 112   [2019] FCA 1052, at [152]-[154]; [158].

 113   Applicant’s Final Submissions filed 8 September 2020, at [18].

 114   Ibid, at [10].

 115   Applicant’s Outline of submissions dated 22 June 2020, at [32].

 116   Applicant’s Reply Submissions dated 5 August 2020, at [13].

 117   Ibid.

 118   Ibid.

 119   Transcript of Proceedings, PN 3125-3136.

 120   [2017] FWCFB 487.

 121   [2020] FWC 4623.

 122   Transcript of Proceedings, PN 3135.

 123   Ibid, PN 3135.

 124   Witness statement of Geoff Hughes dated 27 July 2020, at [16].

 125   Ibid, at [3].

 126   Ibid, at [8].

 127   Ibid.

 128   Ibid, at [9] (It is noted that this information now appears to be common knowledge).

 129   Ibid, at [10]-[12].

 130   Ibid, at [22].

 131   Ibid, at [22].

 132   Ibid, at [25].

 133   Ibid, at [26].

 134   Ibid, at [27].

 135   Ibid.

 136   Ibid, at [34].

 137   Ibid, at [41].

 138   Transcript of Proceedings, PN 1725.

 139   Witness statement of Harriet Mihalopoulos dated 27 July 2020, at [14].

 140   Ibid, at [19].

 141   Ibid, at [29].

 142   Ibid, at [41].

 143   Ibid, at [43].

 144   Ibid, at [48].

 145   Ibid, Attachment HM 18.

 146   Ibid, at [53].

 147   Ibid, at [58] and Annexure MH 19.

 148   Ibid, at [30].

 149   Ibid, at [61-62].

 150   Ibid, at [63] and Annexure HM 21.

 151   Ibid, at [38].

 152   Ibid.

 153   Ibid, Annexure HM 22.

 154   Ibid, Annexure HM 24.

 155   Ibid.

 156   Ibid Annexure HM 23.

 157   Ibid, at [67].

 158   Ibid, at [74].

 159   Ibid, at [77].

 160   Ibid, at [78].

 161   Ibid.

 162   Ibid, Annexure HM 28.

 163   Ibid, Annexure HM 29.

 164   Ibid, Annexure HM 30.

 165   Ibid, at [92].

 166   Ibid, at [92].

 167   Ibid, at [93] and Annexure HM 31.

 168   Ibid, at [97].

 169   Ibid, at [102].

 170   Ibid, at [105] and Annexure HM 36.

 171   Ibid, at [106].

 172   Ibid at [107].

 173   Ibid, at [109].

 174   Ibid, at [114].

 175   Ibid at [115] and Annexure HM 38.

 176   Ibid.

 177   Ibid, at [118].

 178   Ibid, at [119].

 179   Ibid, at [120].

 180   Ibid, at [123].

 181   Ibid, at [126].

 182   Ibid, at [129] and [131].

 183   Ibid, at [130].

 184   Ibid, at [132].

 185   Ibid, at [141].

 186   Respondent’s Outline of Submissions dated 27 July 2020, at [1].

 187   Ibid, at [35].

 188   Ibid, at [6]-[7].

 189   Ibid, at [31]; and Respondent’s Final Submissions dated 7 September 2020, at [57].

 190   Ibid, at [8] and Respondent’s Final Submissions dated 7 September 2020, at [25].

 191   Ibid at [27-28].

 192   Ibid, at [41]; and Respondent’s Final Submissions dated 7 September 2020, at [72].

 193   Transcript of Proceedings, PN 3153.

 194   Ibid, PN 3221.

 195   Macquarie Dictionary Online 2020.

 196   Subject to work having ceased consistent with the procedure set out in clause 8.17.

 197   Applicant’s Submissions of 22 June 2020, at [3].

 198   S.84 Right of worker to cease unsafe work, it is noted the Agreement also uses the word ‘impending’.

 199   (1987) 54 NTR 6 at 9.

 200   Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092, at [109].

 201   (PR929970) Unreported, Australian Industrial Relations Commission, 9 April 2003, at [45].

 202   Transcript of Proceedings, PN 374.

 203   S.85(4).

 204   Witness statement of Benjamin Kreger dated 22 June 2020, Attachment BK 14.

 205   Respondent’s Final submissions dated 7 September 2020 at [11].

 206   Witness Statement of Harriet Mihalopoulos dated 27 July 2020, Annexure HM l.

 207   Ibid, Annexure HM 7.

208 Ibid, Annexure HM5.

 209   Ibid, at [19(j)].

 210   Ibid.

 211   Ibid, Annexure HM4.

212 Ibid, at [19(h)] and Annexure HM4; Transcript of Proceedings, PN 130.

 213   Respondent’s Final submissions dated 7 September 2020, at [13].

 214   Witness statement of Harriet Mihalopoulos dated 27 July 2020, at [97].

 215   Ben Kreger, Warren Smith, Simon Euers and Harriet Mihalopoulos.

 216   Transcript of Proceedings PN 567, PN 721 and PN 1568.

 217   Witness statement of Simon Euers dated 22 June, at [108].

 218   Transcript of Proceedings, PN 850-852.

 219   Witness statement of Benjamin Kreger dated 22 June 2020, at [24].

 220   Transcript of Proceedings, PN 324.

 221   Transcript of Proceedings, PN 591-595.

 222   Witness statement of Harriet Mihalopoulos dated 27 July 2020, at [111] and Annexure HM 37.

 223   Ibid, at [118].

 224   Ibid at [119].

 225   Witness statement of Benjamin Kreger dated 22 June 2020, at [48].

 226   Transcript of Proceedings, PN2915.

 227   Witness statement of Harriet Mihalopoulos dated 27 July 2020, at [66] and Annexure HM 23.

 228   It was never made clear to the Commission exactly how many employees were making the claim.

 229   Transcript of Proceedings, PN 597 (Mr Kreger); Transcript of Proceedings, PN 1241-1284 (Ms Wasley); Transcript of Proceedings, PN 1509 – 1520 (Mr Euers).

 230   Witness statement of Harriet Mihalopoulos dated 27 July 2020, at [98].

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