IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

SITTING AS

THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL

PARTIES THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS-WESTERN  AUSTRALIAN BRANCH AND ANOTHER

APPLICANTS

-v-

PCH GROUP LTD AND OTHERS

RESPONDENTS

CORAM COMMISSIONER S M MAYMAN

HEARD THURSDAY, 25 AUGUST 2005, WEDNESDAY, 31 AUGUST 2005

DELIVERED FRIDAY, 21 OCTOBER 2005

FILE NO. OSHTB 7 OF 2005

CITATION NO. 2005 WAIRC 02863

CatchWords Occupational Safety and Health Act 1984 – s 28(2) referral to the Occupational Safety and Health Tribunal for payment for refusal to work over health issue – s 26(1) – imminent and serious harm to health – order issued granting payment – relationship to Industrial Relations Act 1979

Result Order issued for payment

Representation 

Applicants Mr D. McLane on behalf of the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers – Western Australian Branch

Ms K. Scoble (of counsel) on behalf of The Construction, Forestry, Mining and Energy Union of Workers

Respondents Ms L. Gibbs (of counsel) on behalf of PCH Group Ltd, RCR Tomlinson Limited, RCR Maintenance Pty Ltd and FORTER

Reasons for Decision

1         Following the hearing into this matter the Occupational Safety and Health Tribunal (“the Tribunal”) ordered payment to be made as sought by the applicants and stated it would issue its reasons later.  These are those reasons.

Background

2         The Automotive Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch (“the AMWU”) referred a claim on 16 August 2005 to the Tribunal seeking pay and entitlements for those persons performing work, whether as an employee, contractor, sub-contractor or employee sub-contractor (to be referred to in these reasons as “the employees”), of the respondents on 11 and 12 August 2005 at Burrup Fertiliser Site (“the site”).  The application was referred under s 28(2) of the Occupational Safety and Health Act 1984 (“the Act”).  The Tribunal convened a conference for the purpose of conciliating between the parties on the issue of pay and entitlements for some 700 employees on 11 and 12 August 2005 who ceased work over an alleged occupational health issue at the site.

3         During the conciliation conference it became clear that the application had failed to identify all relevant respondents and the Tribunal, having regard to the powers conferred on it by the Industrial Relations Act 1979 (“the IR Act”) divided application OSHT 7 of 2005 into two parts; OSHTA 7 of 2005 and OSHTB 7 of 2005, to enable those respondents with employees on site who were not present at the conciliation conference to have access to conciliation and, if necessary arbitration by way of separate application, namely OSHTB 7 of 2005.  The Construction, Forestry, Mining and Energy Union of Workers (“the CFMEU”) sought leave to be joined to the application.  Leave was granted by the Tribunal and the CFMEU was joined by consent to OSHTB 7 of 2005. 

4         The AMWU lodged an amended application identifying the relevant respondents under OSHTB 7 of 2005 as PCH Group Ltd, RCR Tomlinson Limited, RCR Maintenance Pty Ltd and FORTER (“the respondents”). 

Issue for determination by the Tribunal

5         Conciliation proceedings held in OSHTB 7 of 2005 were unable to resolve the dispute and the matter was referred for hearing and determination.

6         It is for the Tribunal to determine whether, on balance, that the refusal to work by the employees on 11 and 12 August 2005 resulted from a genuinely held belief that to continue to work would expose them, or others, to the risk mentioned in s 26(1) of the Act.  The test in matters of this kind is not whether the employee in question believes that it is unsafe to work, but whether he or she has reasonable grounds to believe that to continue to work would expose themselves or other persons to a risk of imminent and serious injury or imminent and serious harm to their health.

Submissions by the applicants

7         The AMWU and the CFMEU (“the applicants”) seek payment of behalf of the employees of the respondents as if they had worked on Thursday and Friday, 11 and 12 August 2005 respectively.  The applicants submitted there were reasonable grounds for the employees of the respondents to believe that it was unsafe to continue to work following a series of events at the site leading up to and including the afternoon of 11 August 2005. 

8         The applicants submitted that the matter before the Commission was materially the same as  the details and submissions put forward in OSHTA 7 of 2005 some weeks earlier.  The applicants, for the sake of expedience rely on the submissions made during OSHTA 7 of 2005 and adopted that the facts and principles submitted in that matter were adopted and submitted for the purposes of OSHTB 7 of 2005. 

9         In conclusion, the applicants submitted that the employees of the respondents were entitled to those earnings they would have earned on 11 and 12 August 2005 based on the submissions put in OSHTA 7 of 2005 and this matter.  That employees, whether on day or night shift, ought receive such earnings. 

Submissions by the respondents

10      Counsel submitted that the employees of the respondents, in this case some 80 employees, were not entitled to payment and benefits for 11 and 12 August 2005 as if the employees had worked, given it was the respondents’ submission there was no serious and imminent risk to the employees’ health arising from the identification of asbestos on the site.

11      The respondents adopted the submissions and principles put in respect of OSHTA 7 of 2005 including that up until the afternoon of 10 August 2005 no employee was aware there was asbestos on site.  On the morning of 11 August 2005 discussions were held with the safety union representative to deal with the asbestos issue and work continued as usual throughout the day. 

12      There was a minor variation between this matter and OSHTA 7 of 2005 in the submissions made by counsel for the respondent namely:

“In relation to RCR Tomlinson Limited and RCR Maintenance Pty Ltd we would adopt those submissions also save for that if the employees were aware that asbestos was on the site, then those two respondents accept that the employees would have probably believed there was a serious and imminent risk to health.  So that is the only difference in terms of submissions that we make.”

(Transcript page 3)

Conclusions of the Tribunal

13      The Tribunal’s determination and considerations in this matter are on all fours with the evidence, submission and conclusions in OSHTA 7 of 2005 and for the purposes of these reasons the Tribunal relies on those findings.  Importantly, the Tribunal finds that on 11 and 12 August 2005, whether day shift or night shift, there were reasonable grounds for the employees to believe that to continue to work on the site would expose the employees to a risk of imminent and serious harm.  The site was at that stage, and remained, subject to an improvement notice.  Importantly, the respondents’ submission acknowledged to varying degrees an appreciation that the knowledge and belief of employees on the site might consider there existed a serious and imminent risk to health.  In making its decision, the Tribunal has had regard for the definition of “reasonable grounds to believe” as considered in George v. Rockett (1990) 170 CLR 105 at 116 by Mason CJ, Brennan, Dean, Dawson, Toohey, Jaudron and McHugh JJ:

“The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exist: the assent of belief is given on more slender evidence than proof.  Belief is an inclination of the mind towards assenting, rather than rejecting, a proposition on the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.”

14      The respondents submitted that the employees left the site without authorisation and such an action was contrary to s 26(2)(a) of the Act.  The Tribunal finds to the contrary as an exemption operates under the provision in circumstances where employees concerned have reasonable grounds to believe that to remain at the site would expose them to an imminent and serious risk to their health.  Having regard to submissions of the applicants in this matter and indeed the views expressed by the respondents regarding the employees’ belief and in accordance with equity, good conscience and substantial merit of the case, the Tribunal finds that in terms of the site on the days of 11 and 12 August 2005, there was no known safe place of work and the employees did have “reasonable grounds” for their belief. 

15      In making its determination the Tribunal has had regard to s 51I of the Act, taking into account s 26(1) of the Industrial Relations Act 1979.  The Tribunal finds that the employees on the site ought to receive pay entitlements for 11 and 12 August 2005, whether on day shift or night shift.

16      An order has already issued reflecting these reasons for decision.