Richard Smith & AWU-FIME Amalgamated Union and Aiton Australia Pty Ltd [1995] IRCA 239

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 94/2611 B E T W E E N RICHARD SMITH & AWU-FIME AMALGAMATED UNION Applicants A N D AITON AUSTRALIA PTY LTD Respondent Before: Murphy JR Place: Melbourne Date: 8 June 1995 REASONS FOR JUDGMENT Introduction In this application under Part VIA of the Industrial Relations Act (the Act) the first named applicant (the applicant) alleges that the termination of his employment by the respondent on 2 December 1994 was not for a valid reason and was harsh, unjust or unreasonable. The applicant seeks reinstatement to his position as a rigger with the respondent and payment of remuneration lost. The following witnesses were called: The applicant; Mr Nijenhuis, a fitter and fellow Occupational Health & Safety representative of the respondent; Mr Terry Lee, State Organiser of the applicant union; and Mr Roy Woeltjes, Rigging Supervisor of the respondent. For the respondent the Court heard from Mr Gary Burslem, Quality Assurance and OHS officer, and acting Site Construction Manager; Mr Garry Anderson, Project Manager; and Mr Glen Orr, Site Manager and Construction Manager of the respondent. The respondent is a building contractor involved in the manufacture and installation of steam pipe used in the construction of Unit 2 of the Loy Yang B Power Station in the Latrobe Valley in Victoria, for the SECV. It has also been involved in Unit 1 of the same project. The applicant had previously been employed by the respondent on the first unit of the power station over the period February 1991 to December 1992. He had a couple of other short periods of employment with the respondent and in September 1993 he commenced as a rigger and scaffolder on Unit 2 of the Loy Yang B Station. In those duties, he was involved in a work team known as the heavy lifting team. In addition to that, he performed other duties driving trucks and a fork lift. He was also a member of the rescue team, and held a First Aid Certificate. THE COURSE OF EVIDENCE The evidence in this case focused on three specific issues which the applicant said impacted on the decision of the respondent on 2 December 1994 to terminate his employment. It is proposed to consider each of these issues in turn. THE X20 ISSUE Both the applicant and Nijenhuis, a Fitter, attended an Occupational Health & Safety (OHS) course in February 1994 and were duly elected as OHS representatives. They tended to perform their duties in co-operation with each other although they were in different workgroups. Each Friday they would perform a Safety Walk together with Burslem, the respondent's OHS Officer, and an SECV representative. In September 1994 a welder reported to management suffering nausea while welding a particular type of steel pipe, X20. The matter was brought to the attention of the two OHS representatives, who raised it with Burslem. He assured them that the practices presently adopted by the respondent were safe, but he would make enquiries. The representatives also made their own enquiries with their Unions. Subsequently Burslem produced a 4 year old report, which made reference to possible adverse health effects from a component of that particular steel. Nijenhuis gave evidence that he had difficulty obtaining a copy of this report from Burslem. After the report was obtained the representatives saw the matter as very serious, and a meeting of all the work crew was called. Management was called to address this meeting, but during the meeting Burslem and the other management left. They did this on the basis that the matter was becoming an industrial issue and should have been addressed as an OHS issue to be determined within the designated work group, namely the welders and those closely associated with them. At this time employees placed a ban on further work with X20 until the safety issue was resolved. Subsequently the OHS representatives arranged a meeting with the Department of Labour and at that meeting, or subsequently, it was agreed that an outside consultant would conduct tests to seek to replicate the conditions for welders on the site. The report was prepared by the consultant and handed to Anderson. The OHS representatives attempted to obtain that report from him but he declined until he had properly considered it. Subsequently Lee became involved, and he was advised by Anderson that after the report had been returned to the consultants for editing changes it would be provided in due course to the OHS representatives. A few days later the report was received by Anderson and then distributed to the OHS representatives. The report was damaging to the respondent because it did indicate that employees had been exposed to levels of exposure well above those recommended. Upon receipt of the report by the OHS representatives, there was a meeting of employees involved and a list of demands was made upon the respondent. This included implementation of the recommendations of the report and the provision of letters detailing the exposure of each of the welders to the toxic material. The company agreed to implement the report and the demands. Subsequently additional equipment was obtained and after some teething problems with the new equipment work on the X20 steel resumed. The applicant, corroborated by Nijenhuis, claimed that from the time of the X20 incident the company's attitude to them as OHS representatives changed adversely. Their evidence was that because of their activities as OHS representatives it had caused the respondents welding program to get out of balance and cost additional monies not budgeted for in the project. They claimed the respondent resented this. Nijenhuis also claimed that Burslem was on occasions short with him when he raised OHS issues. After work resumed on the X20 steel Orr ordered that the applicant and Nijenhuis no longer conduct a joint safety walk. He claimed that this was to return to the position on Unit 1 where the safety walks were separately conducted for each designated work group. The respondent's representatives denied that there had been any change to its attitude to safety or to the applicant following the X20 incident. Burslem could not remember ever being short with Nijenhuis. The respondent did concede however, that the incident had caused its program to become unbalanced but maintained that it had been able to continue other welding work while the workban was in place. Anderson was emphatic that the respondent acted properly after the hazard was brought to its attention. In cross-examination the applicant conceded that the Respondent had acted reasonably. He maintained, however, that aspects of the matter, namely the letters to employees, were only just being completed at the time of the hearing. THE SECOND ISSUE The second incident relied on by the applicant was an industrial dispute involving a former employee of the respondent, Barry. Barry had resigned but had not then been paid a week's pay, which was regarded as normal on the project. Further, the employee, although originally due to start work at another company in Western Australia, had this employment terminated, allegedly as a result of information which flowed indirectly from, or via, another employer on the project. In November 1994 industrial action in the form of a half day stoppage, work bans, and a one week strike resulted, before the issue died a natural death. The applicant gave evidence that he and other employees who were subsequently retrenched had been active in this particular industrial dispute. Barry had been the employee first involved in the X20 matter. THE THIRD ISSUE A third incident which the applicant raised was an incident the result of a difference of opinion between the applicant and Lasagne, a welder, as to how to approach a particular task. The applicant left the site one afternoon. As a result of this, a counselling session involving the work team occurred, and that was the end of the matter. The applicant no longer worked in close proximity to Lasagne in performing his duties.