T5764 & T5767
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Mines and Metals Association (Incorporated) and The Australian Workers' Union, Tasmania Branch AND The Australian Workers' Union, Tasmania Branch and Australian Mines and Metals Association (Incorporated)
Industrial disputes - Pasminco Metals EZ Works, Risdon - Casting Division - asbestos - occupational health and safety issue - arbitrated REASONS FOR DECISION These applications for dispute hearings, which were joined at the outset, were made under Section 29 of the Industrial Relations Act 1984 and concerned the same dispute at the Pasminco Metals EZ Works, Risdon. The dispute arose on Thursday, 17 August 1995, after repair work on inlet brickwork in the number 2 Holding Furnace (the furnace) in the Casting Division (the Division) had exposed asbestos. Work in the Division had stopped to enable the uncovered asbestos to be re-sealed and the Division to be declared safe for work to resume. The Division was a full shift-work area working around the clock, seven days a week. The shifts were of 12 hours duration termed `day shift' (7:30 am - 7:30 pm) and `night shift' (7:30 pm - 7:30 am). The relevant health and safety authorities had been brought in and the furnace itself had been sealed off. In accordance with the Company's current asbestos policy, specialist asbestos removers and cleaners had been engaged to clean up the whole area of the Division. During the main and initial work lay-off because of the asbestos exposure, in accordance also with the Company's policy, the employees involved were given alternate work or took time off against their annual leave entitlements. The Division was declared safe by the Mines Department late on the night of Friday, 18 August 1995. Normal work in the Division resumed with the day shift on Saturday, 19 August 1995. In all, after the resumption of normal work, three shifts worked according to roster. The workers on the fourth shift after the resumption (the fourth shift) (a night shift), requested that further tests for asbestos be taken prior to its commencing work on the night of Sunday, 20 August 1995. The Company through its supervisors especially the Acting Operations Superintendent, first advised the fourth shift that tests would only be carried out if work commenced, but, if work did not commence there would be no pay. The fourth shift left the site except for the Union's shift delegate who remained at work for some time longer discussing the circumstances with the supervisors. It transpired that the Acting Operations Superintendent, without telling the fourth shift, had actually requested the tests soon after he had been asked to do so by the workers: unfortunately, by the time the Union's shift delegate was made aware that the tests were in train, the fourth shift had left the site. Pasminco Metals EZ (the Company) claimed that members of the Australian Workers' Union, Tasmania Branch (the Union) were "refusing to undertake duties in a work area that had been declared safe by an appropriate authority" and the Union counter-claimed that the Company had "failed to pay wages to employees reasonably engaged in a stoppage over an occupational health and safety issue". The Union originally sought payment for 9.5 hours for the time lost on 20 August 1995, but, later sought and was granted leave to amend its application to include a further 45 minutes for payment when the fourth shift did not commence work at the start of its rostered shift on Thursday, 24 August 1995 payment for that period having been denied also. The Company claimed that once the asbestos had been exposed it had complied with every requirement in ensuring workplace safety whilst containing the asbestos and cleaning the work area. A decision in 1988 by the then Commissioner King (T1670 of 1988) was relied on by the Company. That decision, in circumstances not quite the same as in this case, rejected payment to workers (also at the Risdon Zinc Works) for time they lost on strike over the then Company's alleged failure to adequately ensure their safety. The Company submitted that that decision ought to be followed in this case especially under the test quoted in it, "for this claim to succeed there must be a genuine or genuinely perceived `safety' issue which has not been addressed by the Company, thus leaving employees concerned for their personal safety or long-term well-being". With the aid of exhibits and two witnesses the Company sought to show that it addressed the safety issue in this case in an exhaustive and correct way. The Company outlined in detail how the problem was dealt with from the time the asbestos was uncovered on Thursday, 17 August 1995, until the disputed action on Sunday, 20 August 1995, when the fourth shift left the site before commencing work. The remedial action included bringing in official Mines Department representatives to advise and supervise the sealing of the immediate area and the clean-up, the taking and testing of samples, the closing down of all production in the Division, advice to the various shifts as to what was happening and the re-commencement of production after the Mines Department had declared the area clear and safe. The witnesses for the Company were the Acting Operations Superintendent of the Division, Mr John Chomley, and a team leader from another shift, Mr Stanley Matson, who had been brought in to tell the fourth shift all the events and procedures that had taken place in rectifying the situation so that work could resume. The team leader who reported had with him a copy of a Safety Incident Report made out on Sunday, 20 August 1995, by the Acting Operations Superintendent and a copy of an Analysis Report from a State Government analyst. There was some disputation as to just how much these reports were referred to and relied upon by the team leader reporting events to the fourth shift prior to the commencement of work, but, it was not disputed by anyone that the reports were available in any case at the time in what was called the Communications Folder which was well known and available to all. The team leader reporting had left the site and said he was surprised later when he heard the fourth shift had departed because there had been little or no reaction to his report and no requests for further testing. The Company submitted it was in the public interest that this matter be decided in its favour because the Union's claim brought all the law and precedents under unnecessary scrutiny including:
The Company repeated that it should not be penalised when it had done everything in its power and complied with all proper requirements and significantly, the fourth shift in a note to management of Sunday, 20 August 1995 accepted the results of the testing that had already taken place. Two other decisions were also relied upon by the Company, one was by Commissioner Watling in matter T5724 of 1995 (a few days prior this case). The Company quoted as follows from that decision in support of its position: "Having considered all the submissions and exhibits presented during the course of this matter, I have decided not to issue an order on the respondent to pay the wages of night shift employees for the hours they withdrew their labour on 22 June 1995, for the following reasons: 1. Whilst recognising that it may be a very unsatisfactory practice to - (a) have the shot skip full; (b) leave open the skimmer door and; (c) not have a shift "hand over" nevertheless, I have not been persuaded that all those things placed employees in a position whereby they were reasonably entitled to believe that a safety hazard existed and the hazard was of such a nature as to justify them taking strike action. 2. The onus was on the applicant to demonstrate that the alleged safety hazards were of such a nature that the employees had reasonable grounds to conclude that, had they continued to work in that environment, there would have been an inordinate risk of personal injury or a potential to seriously impair their health. As that onus was not satisfied it leaves me no alternative but to reject the application for what could be called "strike pay" and I so order." In the other matter T1719 of 1988, the Company quoted the words of Commissioner King in his decision:- "On an issue as emotive as the hazards in the work-place associated with the handling of asbestos materials, I must rely on the evidence of `experts'. In this matter the evidence of Dr Stewart and the two Government officials has been critical to my considerations. By contrast much of the evidence of the employees was emotive and having regard for the more informed evidence of the `experts' must be discounted." After the Company had completed its primary submissions, at the request of the Union, an inspection of the Division was arranged and all parties, including the Commission were made fully aware of the nature and layout of the workplace particularly the furnace and its surrounds. For evidence the Union relied mainly on a witness, Mr Kevin Tomkins (the Union delegate), who was a Grade 5 Operator in the Division and also the Union delegate for the fourth shift. The Union delegate confirmed most of the facts mentioned by the Company, but, had different views on some of them. There was some disagreement as to facts, but, not so much as to seriously question any of the witnesses. The Union delegate made it quite clear that the members of the fourth shift were quite concerned about the ever-present dust in the Division. He also said that the Communication meeting at the start of the shift when work did not proceed was not all that informative and the discussion about the situation did not really get under way until later. The Union delegate also said that the analyst's report was not clear and indicated to him that asbestos was present in two forms in all areas. Rightly or wrongly it seems the confusion arising from the format of the analyst's report was a key factor in the action taken by the fourth shift on Sunday, 20 August 1995. The Union delegate said that the Safety Incident Report and the Analyst's Report (Exhibit P6) had not been presented at the Communication meeting, but, had been passed around the members of the fourth shift and discussed after the meeting. The Union delegate had previously worked in an asbestos mine and his father had died from asbestosis. He confirmed that "exposed asbestos kills". When asked why further explanations had not been requested by members of the fourth shift at the Communication meeting, the Union delegate said such reluctance was a typical situation and many workers were nervous in the presence of a management representative. The Union delegate stated more than once that members of the fourth shift decided individually to leave the site; it was not a formal group decision to do so. The Union made the following submissions:-
In all the circumstances the Union submitted that the Company had been responsible for the asbestos exposure and therefore when the fourth shift had refused to work on account of safety, the Company should have paid the wages lost. The circumstances surrounding the stop-work by the fourth shift for 45 minutes on Thursday, 24 August 1995, were that the Company had been requested to test for asbestos after some lumps of asbestos had been found inside the furnace on top of the solidified dross. The fourth shift had gone outside the Division whilst the lumps of asbestos had been removed. They had been told then by the Company that they would lose pay for the time off if they stopped working. In its final response the Company made the point that during all the times in question there had been no occupational health risk in that, even when asbestos had been detected a few times, the amount did not exceed the safe limit of 0.1 fibres per millilitre. This safe limit was mentioned in the Acting Operations Superintendent's Safety Incident Report as follows, "All airborne measurements for asbestos were below the Work Safe Exposure Standard of 0.1 fibres per ml of air. < 0.01 f/ml is the minimum limit of detection." This criterion was not disputed. The Company submitted that the Division had been declared safe by the Mines Department after extensive tests and the Company had complied with all safety procedures and statutory requirements, hence the actions of the fourth shift had been unwarranted and should not be paid for by the Company. As to the Union's witness, the Union delegate, the Company said:
The Company submitted that it was untenable for it to be expected to go outside procedures and results required by the relevant safety act and having abided by those requirements, the Company ought to be able to require its employees to work as instructed in accordance with Clause 13(f)(i) of the Award. In relation to the dust the fourth shift suspected to be contaminated with asbestos, the Company said asbestos could not have come from the furnace because it had not been operated since the asbestos was exposed and was sealed off. Reference was made by the Company to the decision of Commissioner King in matter T1670 of 1988, wherein the Commissioner said "... there must be a genuine `safety' issue which has not been addressed ...": in this matter the Company claimed that the safety issue had been addressed properly and the asbestos had been contained.
It was in the public interest, the Company said, that payment for time off in cases like this should only be granted in exceptional circumstances and this was not such a case. In the public interest also the Company's production should be maintained because lost production meant lost orders and reliability reduced. The Company was at a crucial stage in its existence and any threat to its on-going development was also a threat for Tasmania. DECISION I am not prepared to accede to the Union's claims in these matters. The criterion specified by the then Commissioner King in 1988 (T1670 of 1988) was sound and I accept that it applies to this case. The key words in that criterion were "... there must be a genuine or genuinely perceived `safety' issue which has not been addressed by the Company ...". In holding to Commissioner King's criterion I make the following points about the circumstances in this case:
In this case there was a genuinely perceived safety issue, but, I am satisfied the Company addressed the situation adequately and conscientiously. It would have been unreasonable for the Company to cast aside all the rehabilitation and testing work it had organised just so as to alleviate the concerns of the fourth shift before it resumed work. I am also satisfied that the concerns of the fourth shift, although understandable, were unreasonable in that prior to resuming work they were seeking a repetition of something that had already been carried out adequately and properly. As to the fourth shift's concerns I make the following observations:
I regard the second claim by the Union in the same light as the first. The pieces of asbestos found on top of the dross in the furnace were solid pieces inside the furnace and I am satisfied they constituted no safety threat. The Union's claims in these matters are dismissed and I so order.
P A Imlach Appearances: Date and place of hearing: |