Industrial Relations Commission of New South Wales CITATION: Notification under section 130 by Sydney Water Corporation of a dispute with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch re: threatened restrictions. [2005] NSWIRComm 1120 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch PARTIES: Sydney Water Corporation FILE NUMBER(S): 2170 of 2004 CORAM: Bishop C Industrial Dispute - Orders sought by Union increasing manning levels - Stand-by fitter position - Safety issues raised - Isolated sites - Second fitter usually called out - Time spent waiting - Cost factors - Intervention in managerial function. CATCHWORDS: Held - Appropriate safety procedures, training in place - Additional measures identified to overcome isolation issue - Impossibility to eliminate unforseen risks - Sufficient safety procedures - Insufficient reason to intervene in management decision - Application for Orders dismissed. Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 1983 Ambulance Service of New South Wales and Broken Hill Town Employees' Union [2004] NSWIRComm 73 (31 March 2004) at 11 and 13 Australian Workers Union v Caltex Refining Co [1990] NSWIRComm 6 (3 December 1990) BHP (AIS) Pty Limited v the Australian Workers' Union, New South Wales [2004] NSWIRComm 1053 (3 October 2003) BHP Steel (JLA) v Australian Workers Union, NSW Branch [2003] NSWIRComm 189 (3 July 2003) BHP (AIS) Pty Ltd v Australian Workers Union re: Restructure Slab Castor Section [2003] NSWIRComm 1052 at 8 Department of Water Resources v Australian Workers Union, New South Wales Branch [1992] 43 IR 76 at 80 Federated Eng Drivers & Firemens Assoc and Electricity Commission [1994] NSWIRComm 1 (14 January 1994) at 371 In re Dispute Between the Federated Engine Drivers and Firemen's Association of Australasia (Coast District) and the Broken Hill Pty Company Ltd (Re Appointment of Driver of Soaking Pit Crane) [1950] IR 371 CASES CITED: In re Iron and Steel Works Employees (Australian Iron and Steel Limited - Port Kembla) Award [1955] IR 663 at 665 In re Steel Works Employees and Engine Drivers, &c. (Australian Iron and Steel Limited - Port Kembla) Awards [1956] AR 855 at 859 and 860 John Lysaght (Australia) Ltd v Automotive Metals and Engineering Union and Anor [1994] NSWIRComm 31 (7 April 1994) John Lysaght (Australia) Ltd - Port Kembla - Slit Recoil Line Award [1994] NSWIRComm 18 (21 March 1994) at 99 John Lysaght (Australia) Ltd - Port Kembla - Slit Recoil - Pay Award [1993] NSWIRComm 99 (15 December 1993) OneSteel Manufacturing Pty Ltd and Australian Worker's Union, New South Wales re manufacturing strategy and trial procedures [2003] NSWIRComm 198 (20 June 2003) Re Cram, Ex parte NSW Colliery Proprietors' Association Ltd [1987] CLR 117 F.C. 87/030 HEARING DATES: 04/21/2004 DATE OF JUDGMENT: 07/26/2005 Mr Ian Morrison Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch LEGAL REPRESENTATIVES: Mr Danny Fitzgerald Sydney Water Corporation DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 26 July 2005 Matter No IRC 2170 of 2004 IN THE MATTER of a Notification under section 130 by Sydney Water Corporation of a dispute with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch re: threatened restrictions. DECISION [2005] NSWIRComm 1120 1 This matter concerns a notification made pursuant to S.130 of the Act by Sydney Water Corporation ("SWC") of a dispute with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch ("AMWU"). 2 The dispute was notified to the Industrial Registrar on the 7 April 2004 and was in the following terms:- "The question, dispute of difficulty concerns the following industrial matter:- The issue in dispute relates to the number of mechanical staff in the Illawarra area rostered on standby in order to maintain out of hours services in connection with Sydney Water Corporation's water and sewerage systems. Employees are threatening to impose restrictions on being called to perform mechanical trades work in the Illawarra area from 8 April 2004 unless an additional mechanical tradesperson is placed on the Illawarra standby. Work restrictions in regards to standby by mechanical trades employees has the potential to impact on public health and/or the environment. The relevant award is the Sydney Water Award 1994 (reviewed). Clause 62 of the award sets out a procedure for dispute resolution. The members of the AMWU have not followed the procedure. SWC seeks the assistance of the Commission in resolving this matter." 3 The matter was listed for compulsory conference before the Commission in Wollongong on the 21 April 2004 at which time conciliation took place. 4 The parties were directed to confer and the matter set down for report back on the 1 June 2004. The status of on-going discussions between the parties was further reported back to the Commission on 1 July. 5 Following further conciliation on the 18 August 2004 the Commission issued the following Recommendations: "1. That safe training on the issue of completion of Safety Work Orders be undertaken of all persons involved in this dispute; 2. That Safety Work Order forms be supplied to all those persons so that, following the training that is to be provided, Safety Work Orders can be completed where a safety issue arises at a particular site; 3. Any site that already has a Hazard ID Sheet, all of those ID sheets should be reproduced in folder format and provided to the Union and its members so that; (i) A check can be made as to whether those Hazard Sheets are up to date; (ii) If it is considered that additional information is necessary to be provided for those Hazard Sheets then that is to be put down in documentary form and provided back to Sydney Water so Sydney Water can indeed follow that up; (iii) Consideration is to be given by Sydney Water to the requirement of responding to a site within one hour and whether that can be amended to making oneself available for the work within one hour rather than necessarily attendance at the site; 4. The parties are to give consideration to the Union proposal that Illawarra members with the AMWU withdraw themselves from the standby roster altogether and the roster is simply accommodated from Sydney. 5. In the alternative consideration is to be given by the members of the AMWU to continuing to work as current until such time as this matter can be arbitrated." 6 As no settlement of the underlying dispute appeared likely a certificate of Attempted Conciliation was issued pursuant to s.135(2) on 18 August 2004. 7 The matter was listed for further report back on 29 September 2004 to enable the parties to give consideration to and hold discussions on the issues raised in the Commission's Recommendations prior to any fixing of hearing dates and issuing of directions. 8 On 29 September 2004 after hearing further from the parties in conciliation the Commission issued the following further Recommendation. "As an interim measure, I recommend that Sydney Water Corporation pay an allowance of $1 per day to employees, members of the AMWU involved in this dispute who make themselves contactable in respect of cl 18 of the Sydney Water Award 1994 (Review). I note that the Sydney Water Corporation, until this matter is concluded by arbitration, will not require members of the AMWU called out after hours to attend Sydney Water Corporation facilities such as sewer pumping stations or water pumping stations on their own where they have identified genuine personal safety site hazards as per the standard procedures to be applied." 9 The matter was set down for hearing and inspections in Wollongong on 12, 14 and 15 April 2005. Directions were issued as to both the filing and exchange of witness statements and of the form of orders sought by the AMWU. 10 The matter was listed for further mentions on 4 and 11 March and also 18 March 2005 at which time the hearing dates were amended at the request of the parties to Thursday 21 and Friday 22 April 2005. 11 Appropriate arrangements for inspection of relevant SWC sites on 21 April were also determined. 12 On 21 April 2005 inspections took place at the following SWC sites in the Illawarra area. WS 229 Lawrence Hargrave Drive, Stanwell Park SPS 237 Armour Street, Bellambi SPS 114 Bank Street, Wollongong 13 The hearing took place subsequently on 21 April at the Industrial Relations Commission Wollongong. 14 At the hearing Mr Morrison an official of the AMWU appeared and called the following members as witnesses: Zoran Muveski - Fitter and Machinist SWC. (Exhibit 3) Greg Fitzpatrick - Fitter and Machinist SWC. (Exhibit 4) 15 Mr Fitzgerald, the Human Resources Manager, appeared on behalf of the SWC and called the following witnesses: Greg Belsito - SWC Manager Electrical and Mechanical Maintenance. (Exhibit 5) Jennie Thompson - SWC Health and Safety Manager. (Exhibit 6) 16 The AMWU sought the following Orders:- "That there be two fitters placed on standby in the Illawarra and both are to be called out when a callout is required." 17 The Grounds and Reasons for such Orders were:- "That it is unsafe for a single fitter to respond to an out of hours callout." 18 The particulars of those Grounds were as follows:- "1. There is steep terrain and loose gravel. 2. At particular sites no mobile telephone reception. 3. There is bad lighting. 4. Not all sites have security gates. 5. Redback spiders are often present in the valve Chambers. 6. On occasions deadly snakes have been sighted. 7. Fitters are often required to wait at isolated sites on their own for ours whilst awaiting another fitter to arrive. 8. There is an increasing incidence of the public abusing and assaulting fitters." INSPECTIONS 19 Three SWC sites were inspected as nominated by the parties. 20 At each site the particular features of the site from both a task and safety concern were outlined. The procedure for completing the risk assessment for the site was outlined including inspection of the relevant Hazard Identification sheet. 21 The Stanwell Park site was set off the road in bushland and required the climbing of a steel ladder. 22 The other two sites were in residential areas and consisted of brick structures housing the SWC equipment. 23 All sites were fenced off and had lockable gates. The suburban residential sites had grassed surrounds and are subject to an outside maintenance contract. 24 The Commission also had the opportunity of observing the work vehicles and equipment used by the fitters on call-outs. 25 Both parties had the opportunity of drawing to the Commission's attention matters they considered of relevance to the issues in dispute. EVIDENCE AMWU 26 Mr Muveski and Mr Fitzpatrick have been employed by SW as Field Service Fitters in the Illawarra area for some years (19 and 12 years respectively). 27 Their responsibilities included the service and maintenance of SWC's 5 sewerage treatment plants and other SWC assets in the Illawarra area. As part of their duties they were required to be available on stand-by for out of hours emergency service calls ("call-outs"). An allowance is received for being on stand-by. Such call-outs whilst on stand-by usually occur during the night. 28 SWC only had one person on stand-by in the Illawarra compared to Sydney where 3 fitters were on stand-by for each of the 3 sewerage treatment plants plus 3 additional fitters across the rest of the three Sydney network areas. There was a stand-by roster and it rotated with a fitter on stand-by for a seven day period Wednesday to Wednesday. 29 In around 2001 SWC reduced from 2 to 1 the number of fitters on stand-by in the Illawarra area because of the high cost of having 2 employees on stand-by. 30 Both men believed having only one fitter on stand-by to respond to call-outs raised serious safety issues. Their main concern was that they had to attend a site alone after nightfall and if a second fitter was required they had to wait for some time for that second fitter to arrive. If a second fitter was required that person came from Sydney and it could take up to two hours or more for him to arrive. 31 Some of the safety issues concerned the fact that when they arrived at a site there was potential to have an accident and in that event there was no way for the on-call fitter to get assistance. 32 Mr Muveski deposed that some of the sites were dangerous for the following reasons: · Steep terrain and loose gravel; · No mobile phone reception; · Bad lighting; · Not all sites have gates; · Redback spiders are often present in the valve chambers; · On occasion deadly snakes have been sighted. 33 The above issues had been discussed with Mr Belsito from SWC in or around October 2004, and his response was to report them in order for the problems to be fixed. 34 However, Mr Muveski believed that even if those problems were fixed it would not control the safety issues as the call-out fitter was still alone on arrival at a site. A site risk assessment was still required to be carried out, the fitter was still alone and there were still dangers involved. 35 He gave the example of the possibility of being bitten by a spider or snake with no-one there to help him. This would be even more treacherous if one was at a site with no mobile phone reception. 36 Mr Fitzpatrick also deposed as to "a recent dangerous situation" he was placed in on 3 February 2005. He had to call for a second fitter to assist with the call-out and had to wait over 3 hours for him to arrive. 37 On a call-out the fault goes to the service desk and schedulers in Sydney. There is now a co-ordinator for the Illawarra and he is notified and he then forwards the job onto a fitter. Mr Fitzpatrick said that if the co-ordinator determined he was going to call-out a second fitter he would tell him so he was aware of that when he went to the site. However initially he did not know at that stage how long it would take for the second fitter to get there. He would be then rung back and told who was coming and how far away they were. 38 Mr Muveski's protocol was to leave the house within 15 minutes and make an attempt to attend the site if it was a priority 6, which it normally was. A P6 should be responded to within 1 hour, a P5 - 3 hours, a P4 - 24 hours, a P3 the next working day, P2 - within a week and P1 within a month. 39 The standard procedure followed when arriving on a call-out was to conduct a risk assessment on arrival. A decision was then made as to whether another fitter was required for assistance in completing the task required. If the problem was assessed as a major one then another fitter was always required. This happened the majority of the time. No work could be conducted until the other fitter arrived. 40 Their main concern was with arriving at a site and after investigating the problem and calling for another fitter waiting in an isolated spot where the terrain wasn't the best for half an hour or 1 to 2 hours. He usually waited in front of the gate or opened the gate and waited on the premises. 41 If they were to arrive together that would eliminate the waiting time. They would be able to attend the site, get the job done and get out of there. 42 The fault could take anything from 1 hour to 5 hours to correct. There was no set time for a task. 43 A typical task on call-out was a pump choke - a street conveyor blocked. There were an average of two call-outs per week, however if the weather was bad there could be a lot more calls. They could get up to 6 or 7 on a weekend. 44 Mr Muveski recalled an incident where he had been abused by an intoxicated member of the public when he arrived at a call-out. The man had threatened to call Mr Muveski's superiors and the police. 45 Mr Muveski reported the incident to higher management. He also conceded that the abuse occurred after the second fitter had turned up. 46 He also agreed that safety was a priority over response time. 47 He also conceded that if SWC then did not require them to stay at the site whilst waiting for the second fitter then "they would be happy with that". 48 It was conceded some sites were not that bad but there were some where they wouldn't be comfortable waiting there. He also agreed that they didn't want to wait around for 2 or 3 hours, as you could get fatigued and the job could then drag out. It was also a convenience issue. 49 All sites had their particular problems and the environment could change at any time and varied with the weather. 50 Mr Muveski expressed concern that if they drove up to a site and then drove off again to wait for assistance that wouldn't come as meeting their obligation. Mr Belsito could turn up in the meantime and want to know where they had been if they came back after an hour and a half from waiting for the second fitter. 51 In exchanges between Mr Muveski, Mr Fitzgerald and the Commission, it was established that if Mr Muveski attended a site within an hour and made the assessment that another fitter was required and called for one then that satisfied SWC's one hour response requirement. SWC 52 Mr Belsito's role is to look after mechanical and electrical maintenance services to SWC Sewerage Pumping Stations, Treatment Plants and Service Reservoirs. 53 Mr Belsito deposed as to a comparison of SWC Metropolitan operations with Illawarra operations and manning issues on stand-by which can be summarised as follows: Metropolitan Illawarra Population: 3,7000,000 300,000 Area: 13,000 sq km not provided Service Reservoirs: 216 47 Pumping Stations: 129 14 Sewerage Systems: 22 - 7 ocean outfall 5 treatment plants 15 inland treatment works Pumping Stations: 656 68 Field Service Fitters: 80 9 54 Mr Belsito deposed that prior to 1999 2 fitters were on stand-by in the Illawarra region and paid a stand-by allowance. However, following a review of SWC operations it was determined that only one stand-by fitter was required. 55 This decision was based on the limited number of call-outs arising and the ongoing capital investment to improve system reliability. It was considered that the system of risk assessment in place together with the ability to call-out another fitter minimised any potential risks to fitters' safety. 56 There were ten fitters on stand-by in the Sydney Metropolitan area. They totalled through the 90 fitters all up on a one in six week basis similar to the rotation in Wollongong. Mr Belsito deposed as to the history of the Illawarra stand-by roster and the industrial dispute about the previously agreed arrangements. 57 In the 12 months to March 2005 fitters on stand-by in the Illawarra responded to a total of 82 emergency call-outs - 45 involving the network and 37 involving sewerage treatment works. That gave an average of 1.6 call-outs per week. This figure of less than 2 call-outs per week had remained fairly constant over recent years. Mr Belsito did not expect that figure to deviate in the future even given changes in the weather. It would go lower because the system was more reliable. New areas would also have new systems. There was also a continual programme to upgrade and improve the system. There were call-outs where it was clear the task would involve 2 fitters and that could be organised before the stand-by fitter went out. However in most cases the stand-by fitter made the assessment and called for the second fitter. 58 Mr Belsito acknowledged that the majority of call-outs involved 2 fitters. However, having only one fitter on stand-by in the Illawarra was still the most cost effective and efficient way for SWC to have the work undertaken. 59 It was an operational decision of SWC to determine where the resources came from and how employers were sent to a job based on their skill knowledge and ability to respond within operational constraints to SWC. The costs to SWC of an additional fitter on permanent stand-by was $30,000 per year. 60 Mr Belsito was not aware of any reports made to the relevant O H & S Committee of safety concerns raised by either Mr Muveski or Mr Fitzpatrick since the implementation of the one fitter on stand-by system in 1999. 61 Mr Belsito addressed the particular safety concerns raised by the two men in their evidence and deposed that the Affidavit of Ms Thompson addressed the safety procedures in place at SWC under its O H & S policy to address potential risks encountered by employees in the course of their work. 62 The procedures were based on a system of risk assessment and included access to another fitter when a stand-by fitter was on a call out. In addition there was access to security personnel through an SWC 1800 security telephone number. 63 In relation to the issue of attending sites alone there was the availability of security assistance via the 1800 number where an employee ascertained any danger arising from people in the vicinity. 64 There was no requirement by SWC that an employee must wait in the dark at a site. Arrangements could be made by the call-out fitter to meet with either the second fitter or a security officer at a chosen location. 65 Mr Belsito pointed out that even if there was a second fitter on stand-by that would not necessarily ensure that a call-out fitter would not arrive at a site alone. 66 Approximately 18 months ago he advised staff in the Electrical and Mechanical Division that if their safety concerns were due to mobile phone reception then CDMA phones could be made available. Only 3 requests had subsequently been made by employees located in Sydney. 67 Mr Belsito deposed that SWC had complied with all Recommendations of the Commission concerning safety issues and detailed how that compliance had been achieved through the following:- · reinforcement of training about safety work order forms, · provision of a sufficient supply of work order books to employees, · checking all hazard IDs' were up to date with any necessary additional information provided, · provision of folders containing all Hazard Identification sheets for assets in both the Network area and asset management system in the Illawarra to all employees, · employees were to review those documents and identify further specific site hazards. No response to date had been received by SWC, · The interim additional allowance of $1 per day as per the Recommendation of 29 September 2004 had been paid by SWC as a "phone allowance for call-out". 68 It was Mr Belsito's evidence that the SWC had no record of any incidents involving the three respective sites inspected prior to the hearing being reported since 1999. 69 Mr Belsito confirmed the response times referred to in the Union's evidence. Whilst SWC has a one hour response time to certain incidents as per its Customer Service Charter, in line with SWC's Health and Safety Policy and its legal obligations that was subject to any personal safety requirements of its employees. SWC did not and never had required that its employees' personal safety be overridden by proposed response times. 70 Mr Belsito said that whilst he thought that the time limit of their customer charter was to attend the site and start work within the hour they don't do that rigorously. He further agreed that it a fitter turned up at a site and did a risk assessment and called for another fitter that would count as response within an hour. Completing the risk assessment was part of the job. However, if a person felt his personal safety was at risk then he had no problem putting that down as non-compliance and debating the issue later. His first priority was safety. 71 The first issue was to do the risk assessment. That was the initial log. Depending on what the issue was they may take it further and put a system in place to overcome the problem in the future. That may relate to notifying the Police or an engineering solution like additional lighting, or take an additional person such as another SWC employee or a security guard. 72 Mr Belsito confirmed that an employee on stand-by received an additional 26 hours pay per week as per the award. This was in addition to the actual 4 hour minimum call-out provision of 2 hours at double time two hours at double time and a half and overtime rates for any hours in excess of the four hours. It was not necessary to be on stand-by to be called out. There were also rest break provisions applicable. 73 In assessing the cost benefits of having only one person on stand-by in the Illawarra Mr Belsito had factored into the costings travel time and total time for the job etc. If they could come up with the arrangement they used to have before the bans they would be happy. 74 Mr Belsito also said that the Illawarra fitter on stand-by could be called out to a Sydney job. They tried to use Sydney stand-by fitters for the Illawarra from the southern region of Sydney however that was not always possible and sometimes a Sydney fitter had to travel from a further distance. 75 There were two electricians on stand-by for two reasons. Firstly the electricians had more jobs to respond to than the fitters. Secondly there was a legislative requirement that because they were working on a "live" system that an observer had to be present. Isolation procedures also had to be put into place. 76 Ms Thompson gave detailed evidence about SWC's Health and Safety strategies, policies and procedures relevant to the issues in dispute and the safety concerns raised by the Union. 77 Annexed to her Affidavit were the following documents concerning O H & S issues:- · Sydney Water's Health and Safety Policy dated February 2003. · Sydney Water's Hazard Identification and Risk Assessment Process issued 6 January 2003. · List of Work Method Statements issued to Mechanical and Electrical Maintenance networks, and three sample Work Method Statements: 'Mechanical Electrical Maintenance Work Method Statement - Access/Egress of Reservoirs', 'Mechanical Electrical Maintenance Work Method Statement - Pump Assembly Inspection/Repair", and 'Mechanical Electrical Maintenance Work Method Statement - Building/Machinery Well/Ventilation Unit Inspection/Repair'. · Sydney Water's Hazard IDs for Sydney Water's Illawarra SWPs and WPSs. · Sydney Water's Security Policy issued 22 October 2002. · Sydney Water Safety Lesson dated 19 September 2003. · Sydney Water's 'Dealing with Aggression at Work Sites' procedure dated 3 February 2004. · Sydney Water's marked Incident Recording System printed on 19 March 2005. · Sydney Water's Health & Safety Standard: HS057 - Lone/Isolated Worker. 78 Ms Thompson responded specifically to the safety concerns raised by Mr Muveski and Mr Fitzpatrick and said they were all addressed by the various policies and procedures in place at SWC as detailed in the various annexures listed above. 79 SWC employees were encouraged to identify hazards posed by the physical and natural conditions at a site. Risk assessments should be undertaken prior to commencing any work and following the identification of additional hazards. 80 Due to the physical nature of some sites elimination of risk was not reasonably practicable. SWC saw its obligation as seeking to control such risks by adopting safe work practices, providing training, appropriate information and prescribing the use of personal protective equipment. 81 Ms Thompson outlined the risk assessment training provided to employees including Mr Muveski and Mr Fitzpatrick. 82 Part of the risk assessment process involved using the HIDRA risk assessment matrix to determine the likelihood of a particular consequence or impact of any additional hazards on site which had not been identified in SWC's generic work method statements (WMS's). 83 There were hazards that could be identified before they actually attended for work particularly at sites they knew well. If they got to a site and found a tree branch down for example they would identify that as a hazard and either control it by getting around it or stop work until it was rectified. 84 Fitters were provided with generic WMS's which described how to carry out their tasks having regard to safety, quality and the environment. Some examples of WMS's were:- · Access/egress of Reservoirs; · Assembly Inspection/Repair; · Building/Machinery Wall/Ventilation Unit Inspection/Repair. 85 The WMS's contained 3 levels of information in that they: · identify possible hazards associated with various procedures undertaken by SWC employees, · identify potential risks arising from those hazards, and · describe safety controls for the purpose of eliminating or controlling the risk identified. 86 An example was given of one of possible risks associates with the WMS's "access/egress of reservoirs" as "slip/trip/fall" The ladder observed at Stanwell Park was also given as an example of adverse weather conditions where the rungs could become slippery when wet and require extra care. There were then described six appropriate safety controls to control those risks. There was a similar procedure described for dealing with poor lighting. 87 In addition each unmanned SWC site has a hazard identification box where the site Hazard Identification document (Hazard ID) was kept which listed local site hazards. All SWC Sewerage and Water Pumping Stations had Hazard ID's. Copies of all Hazard ID's for the Illawarra region were annexed to Ms Thomson's Affidavit. 88 Ms Thompson also detailed the security measures put in place after September 2001 that involved the introduction of a Security Policy in October 2002 to develop SWC's capacity to deter, detect, delay and respond to criminal and antisocial activity. The aim was also to protect and support SWC employees. The Policy provided for appropriate resources, training and education for employees, as well as appropriate reporting procedures. 89 At the beginning of 2003 an 1800 Security phone number was introduced and employees were encouraged to use it in any matter involving a threat to their personal safety. The contract provided that the security guard was to respond within half an hour of receiving the call. 90 As a result of an assault of an SWC employee in Sydney (outside normal working hours) SWC issued a "Safety Lesson" to highlight the need to consider personal safety in connection with the work environment. 91 In February 2004 a further procedure was introduced for all field employees concerning aggression at work sites. One of the three guiding principles was "do not compromise your own wellbeing". The procedure actively discouraged any employee from entering any site where they perceived their security or safety was threatened. 92 An example was given of the only known incident involving verbal threats to stand-by fitters in the Illawarra and documentation about that incident was attached to Ms Thompson's Affidavit. 93 Staff could always call Police or the 1800 security number and request a security guard meet them by arrangement and accompany them. Employees had the option of waiting off-site for the security guard. 94 Ms Thompson had reviewed the SWC's Incident Reporting System to ascertain all incidents reported by stand-by fitters since 2001, and extracted information on Illawarra incidents. There was a total of 34 incidents 19 involved fitters with 6 of those 19 occurring outside of normal hours. 3 involved motor vehicle accidents. Only 2 incidents involved members of the public (eggs thrown at a vehicle outside employee's home and verbal abuse by public). 95 There was only one incident reported dealing with safety concerns raised by Mr Muveski and Mr Fitzpatrick and that incident report noted that there were at least two fitters present at the time. 96 SWC has a procedure in place for employees working alone or isolated from emergency services. Remote area access had been assessed as an acceptable risk for employees with a safe system of work in place. 97 Where employees undertake a risk assessment at a site and identify that the risks and hazards do not provide for a safe system of work they have the additional control of being able to call a second fitter or a security guard. They were not required to work alone without a safe system of work. This was all detailed in the Lone/Isolated Worker Policy. 98 SWC were currently working on drafting a Fatigue Policy. Basically anyone who feels fatigued has the right to say they are fatigued to their manager and would not be expected to attend a job if they were fatigued. 99 If they became too fatigued after a call-out and needed alternative transport home they had the right to contact someone or if they became too fatigued to carry on the job. It was their responsibility to put up their hand and say "I'm too fatigued." 100 Ms Thompson made it clear that there was no requirement for the fitter to stay at the site to wait for the second fitter. They would meet at a mutually agreeable site. SUBMISSIONS 101 Mr Morrison for the AMWU submitted that it was indisputable that there was a need for fitters to be on stand-by; that every job required two fitters to attend and many of the jobs had a pre-determined time to attend. 102 The majority of call-outs were of the P6 or P5 priority. A fitter wouldn't be called out on stand-by for a job to be done within 24 to 48 hours. 103 Whilst SWC said it had undertaken a financial balance the AMWU submitted why couldn't an Illawarra fitter be called in to perform call-out work if they were on stand-by? The evidence showed that a single fitter attended the site, does a risk assessment and then another fitter is called in. Alternatively during the dispatching of the initial fitter the second fitter was called in by the co-ordinator. 104 However, it was the position of the first fitter that arrives on site that was the concern as that was when they were exposed to the dangers highlighted in the Union's application. After the site inspection the Commission could envisage the possible damages that the first fitter could face. 105 Mr Morrison submitted that it was no use hypothesising on the variety of things that could occur, it was "simply good enough, we say, to assert that anything that could be envisaged, could occur." 106 The evidence supported the fact that the second fitter coming from Sydney takes at least an hour to get to a site. The concern was what happens during the time the single fitter is at the site alone. Those were the issues that should be of concern to the Commission. 107 If the Commission did not grant the Orders as sought then the issue became what are the alternatives. The concern of the members was their health and safety. The reality was they had no choice but to sit and wait in a safe location until the second fitter arrived and then both fitters would proceed to the site. 108 However if the members chose to do that, where did that place SWC with regard to their licence arrangements with the Environment Protection Agency. 109 The AMWU sought a commonsense solution to what was a "false economy" on the part of SWC. It satisfied the balance sheet but it flew in the face of a logical solution to a work practice. 110 Further, a second fitter on stand-by in the Illawarra could be utilised in the Sydney region. A second fitter on standby would address concerns that were unique to the Illawarra region due to the nature of the area. 111 Mr Fitzgerald for SWC clarified for the Commission that the provision of the $1 per day telephone allowance contained in the Interim arrangements recommended on 18 August 2004 would continue and that allowance was now incorporated in the new SWC Award in clause 39. The interim arrangements had been working well at the local level. 112 There was further clarification that just because someone was not on stand-by didn't mean that person could not be called out. However, in that situation there was no obligation to respond to the call-out. 113 It was further clarified in an exchange between the parties and the Commission that the AMWU didn't intend that a fitter would simply wait at a safe location for the second fitter on every occasion. 114 A fitter on arriving at a site would do a risk assessment first. If that risk assessment was that there was an apparent dangerous situation or anti-social behaviour in evidence the fitter would not stop but proceed to a safe location. However the appropriate form would subsequently be filled out identifying the problem. If necessary the security number would be called and a security guard called out. 115 Mr Fitzgerald referred to the Orders sought by the AMWU and submitted that the evidence of SWC and in particular Ms Thompson showed that each of those concerns was addressed. SWC had in place a proper safety management system. At the core of that system was the risk assessment procedure. Also the evidence of Ms Thomson was generally unchallenged by the AMWU. 116 Mr Fitzgerald submitted that the proper assessment and application of the principles about disputes regarding staffing levels supported the view that the Commission, whilst having the discretion to decide such issues, should not lightly interfere with the affairs of business and management or the right of an employer to manage its own affairs. 117 Industrial Tribunals have generally recognised that they will not interfere with the management of business unless they are satisfied that the intervention was warranted because unjust or unreasonable demands or conditions were imposed on employees or where safety issues arose. 118 Further, any decision made to interfere with the management of a company should be made cautiously notwithstanding the recognition that employees have a legitimate interest in the consideration of the conditions under which they work. 119 There was no evidence in these proceedings of industrial injustice. Allegations had been made about safety issues. It was not the role of the Commission to intervene and assume the role of the employer but to assess whether there was the imposition of unsafe work practices. 120 In making such a determination the Commission relies on experts such as Work Cover Inspectors and work safety committees. SWC evidence in this matter was from Ms Thompson who could indeed, because of her position, be considered a safety expert. 121 The cases showed that it had been recognised by the Commission that it was only appropriate for the Commission to intervene in management practices in extreme cases. No such extreme case existed in this matter. 122 Whilst manning could be increased in certain circumstances there was also a recognition that if there was over-manning the employer was entitled to review and reduce manning. That was not an issue. 123 The onus was on the AMWU to establish that the work its members were called on to perform on each shift was more than a fair shift's work under the conditions under which the work was to be performed. 124 Mr Fitzgerald took the Commission to specific passages in support of his submissions in the following cases - 1. Ambulance Service of New South Wales and Broken Hill Town Employees' Union [2004] NSWIRComm 73 (31 March 2004) at 11 and 13 2. Australian Workers Union v Caltex Refining Co [1990] NSWIRComm 6 (3 December 1990) 3. BHP (AIS) Pty Limited v the Australian Workers' Union, New South Wales [2004] NSWIRComm 1053 (3 October 2003) 4. BHP Steel (JLA) v Australian Workers Union, NSW Branch [2003] NSWIRComm 189 (3 July 2003) 5. BHP (AIS) Pty Ltd v Australian Workers Union re: Restructure Slab Castor Section [2003] NSWIRComm 1052 at 8 6. Department of Water Resources v Australian Workers Union, New South Wales Branch [1992] 43 IR 76 at 80 7. Federated Eng Drivers & Firemens Assoc and Electricity Commission [1994] NSWIRComm 1 (14 January 1994) at 371 8. In re Dispute Between the Federated Engine Drivers and Firemen's Association of Australasia (Coast District) and the Broken Hill Pty Company Ltd (Re Appointment of Driver of Soaking Pit Crane) [1950] IR 371 9. In re Iron and Steel Works Employees (Australian Iron and Steel Limited - Port Kembla) Award [1955] IR 663 at 665 10. In re Steel Works Employees and Engine Drivers, &c. (Australian Iron and Steel Limited - Port Kembla) Awards [1956] AR 855 at 859 and 860 11. John Lysaght (Australia) Ltd v Automotive Metals and Engineering Union and Anor [1994] NSWIRComm 31 (7 April 1994) 12. John Lysaght (Australia) Ltd - Port Kembla - Slit Recoil Line Award [1994] NSWIRComm 18 (21 March 1994) at 99 13. John Lysaght (Australia) Ltd - Port Kembla - Slit Recoil - Pay Award [1993] NSWIRComm 99 (15 December 1993) 14. OneSteel Manufacturing Pty Ltd and Australian Worker's Union, New South Wales re manufacturing strategy and trial procedures [2003] NSWIRComm 198 (20 June 2003) 15. Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd [1987] CLR 117 F.C. 87/030 125 Mr Fitzgerald submitted there had been no change made by SWC to existing practices. The only change had been bans imposed by the employees concerned. This was somewhat remedied by the interim arrangements. 126 There was no evidence to suggest that manning levels were insufficient. On the contrary there was evidence of the clear system by which fitters could arrange for appropriate manning levels for the work to be performed on call-out. 127 It was also agreed by one Union witness that it was a "convenience issue" as well as a safety issue. 128 There was no requirement for a fitter to undertake the work of 2 or 3 people. If an extra fitter was required he called an extra fitter. Whilst some tasks cold be performed by a single fitter Mr Belsito conceded the majority of tasks required two fitters. 129 Based on the evidence and the examples given by the Union's witnesses as to safety issues it had not been established that the manning levels raised safety concerns. 130 Indeed the description of hazards contained in Mr Fitzpatrick's Affidavit were just that - hazards. The evidence showed that they all had been identified and dealt with by SWC in its safety systems and risk assessment procedures. 131 In conclusion Mr Fitzgerald submitted that in applying the general principles he had referred to, the following matters should be taken into account by the Commission: · Whether the manning levels impose any unjust or unreasonable demands or conditions on employees - they do not. · Whether the manning levels impose unsafe work practices - they do not. · Following the established principles in manning disputes the Commission should exercise caution before substantially interfering with the management of Sydney Water's business. The application of the AMWU should be dismissed. CONSIDERATION 132 I have carefully considered the evidence and submissions in this matter together with the useful background provided through the site inspections. 133 I have to say that following the site inspections I have extreme difficulty in accepting the AMWU's submission that the safety issues as outlined in the ANWU's evidence are not satisfactorily addressed by the extensive safety procedures the SWC has in place. 134 In addition during proceedings there was clear and unequivocal clarification of the following issues:- · Safety of employees comes first with SWC. · The stand-by fitter called out is not expected to wait for any second fitter outside the site gates if that is either in an isolated area or there is a concern that there are persons in the vicinity that may pose a risk or threat. · The stand-by fitter on call-out can arrange to wait and meet the second fitter at a safe nearby and practical location and the two fitters can then proceed to the site. · If upon arriving at a site, and before entering the site to do the risk assessment, any perceived threat or danger to the fitter is observed (such as members of the public acting suspiciously etc.) then the fitter can essentially drive on by. However, in that case the fitter should report the incident appropriately and contact either the Police, the 1800 security number and his coordinator. · The actual physical undertaking of the risk assessment at a site is the commencement of the job and the response time of completing that risk assessment within the hour would satisfy SWC's contractual obligations in relation to a P6. · In any event such issues are SWC's responsibility and not an employee's, provided that correct and appropriate procedures have been followed by the employee. 135 It is also clear that following the earlier Recommendations made by the Commission any safety issues employees may have had are more likely to be able to be addressed prior to an employee proceeding to a site. 136 I particularly refer to the provision of all Hazard ID Sheets for each site to each employee. 137 The employees have also had the opportunity of input as to whether any Hazard ID sheet for any site needs updating. That will obviously be an on-going process. 138 Each employee is therefore clearly in a position to be well aware prior to going to the site of the nominated hazards for any site visited both relating to the nature of tasks that might arise and the physical environment of the site. 139 I would therefore envisage that it really would be the out-of-the ordinary events such as a hazard arising from bad weather (fallen tree, or rocks) or members of the public acting inappropriately that could not be taken into account. Those events cannot possibly be predicted. SWC is quite right in saying that provided there is a safety procedure system is in place based on a risk assessment process then that is sufficient to accommodate such eventualities. 140 I agree. The individual fitters have received, in my view, sufficient training and information to be able to appropriately respond to any potential risk. The risk assessment becomes crucial to this process as does the reporting of anything not previously encountered so that, if necessary, appropriate action or procedures can be put in place in the future. 141 The fact that two electricians are always called out together in emergency situations I do not consider relevant. It is quite clear that there is a regulatory requirement for a second person to be present due to the fact that "live" electricity is involved. 142 Just because, invariably it would seem, a second fitter is required to be called out does not automatically mean there should be a second fitter on stand-by in the Illawarra. 143 I accept that there are costs involved in having a second fitter on stand-by. SWC is entitled to make appropriate decisions as to how to best resource their operations from a financial point of view. 144 The cases relied on by SWC are entirely relevant to this matter. I note that in Department of Water Resources v Australian Workers Union New South Wales Branch, Cahill V P observed at p. 80: ".......................... The evidence shows, for example that financial considerations might result in having some work deferred, or done at less frequent intervals. In my opinion it is for the employer to determine what work is to be performed. That having been determined, it is then a case for the tribunal to decide, upon application being made on behalf of the employees performing the work, and having regard to the work required to be performed and the conditions applicable, whether any manning award at variance with the employer's desires is warranted." 145 The appropriate principles to be applied by the Commission are succinctly summarised by Cantor J in 1950 in re Steel Works Employees and Engine Drivers &c (Australian Iron and Firemen's Association of Australasia (Coast District) and the Broken Hill Proprietary Company Limited as follows: "First, an employer has the right to manage his own business in his own way; secondly, the Commission will not interfere with this right unless it is satisfied that intervention is justified because in the exercise of this right unjust or unreasonable demands or conditions are imposed, because the action of the employer is taken in bad faith or amounts to victimisation or oppression or the like. However, where the Company has introduced a new system of working the Commission will readily intervene in relation to ancillary matters such as where it is shown that the manning laid down by the Company is insufficient to carry out the work required or if the working conditions are such that they warrant the awarding of specific spell time or special rates of remuneration." 146 These principles are still relevant and applicable today and were followed by Sams DP in Re: Ambulance Service of New South Wales and Broken Hill Town Employees Union. 147 In determining that the Union had not established a case that the roster proposed by the Ambulance Service required its members to perform work which is unjust or unreasonable Sams DP observed: "52 Fourthly, not only did the Union bring no evidence of any actual disadvantage or unfairness visited upon its members, but much of it's case was predicated on speculation of what might happen in a particular isolated situation. (The training issue was one such example, where a detailed submission was argued about two day training courses which are no longer conducted). 53 It is trite to observe that it would be wrong of me to decide this case (or any other for that matter) on speculation; no matter how well motivated and dedicated the Union advocates were. That is not to say that some disadvantage or unfairness may not arise in the future. But that is not the evidence before me in this case. Should any problems arise, it can be addressed at the appropriate time in accordance with the relevant provisions in the Act." 148 I reject as unreasonable the submission of Mr Morrison that "it was simply good enough........ to assert that anything that could be envisaged could occur" and that that was sufficient to warrant a second fitter on stand-by. 149 Clearly not every single remote possibility can ever be covered but the SWC clearly have the appropriate safety procedures, if followed by employees, to minimise those risks as far as humanly possible. 150 Having had the benefit of the site inspections my views on this matter are only reinforced. 151 I also had the opportunity of viewing the SWC vehicle driven by the fitters and observed it had was equipped with spotlights. 152 With the exception of the Stanwell Park site I consider the sites in residential areas pose no significant safety risk. Certainly no issues of spiders or snakes were apparent. I note in relation to snakes and spiders I would expect fitters to dress in appropriate work gear with long pants (not shorts). 153 Those sites were reasonable well-maintained and well lit. Any threat posed by members of the public could only be infrequent and can be adequately dealt with through the 1800 security number and the undertaking by SWC that no fitter needs to wait at the site alone but can wait at a safer nearby location. In addition if the threat was perceived immediately upon arriving the fitter could keep on driving and make the appropriate reports and take appropriate steps to contact either Police or the 1800 security numbers. 154 If mobile phone reception is a difficulty then SWC has said CDMA radios are available for the fitters. I note from the evidence that to date no request has been made for a CDMA radio by any fitter in the Illawarra. 155 In relation to the Stanwell Park site I certainly have a concern about the lighting at both the ladder and along the bush path to the SWC installation. 156 However, I am sure that issue could be addressed from an engineering point of view by either the running of a cable to the top of the ladder with a light that could be switched on at the bottom of the ladder or perhaps the possibility of recessed solar lights along the path (fixed in place so they couldn't be removed) similar to the solar lighting available for gardens or the surrounds of buildings. 157 Certainly if there are other poorly lit bush sites that could be looked at by SWC. However, poor lighting is still not a sufficient reason for having a second fitter on stand-by. 158 It seems to me that in reality the inconvenience factor in having to wait for the second fitter to come from Sydney is the real motivating force behind both the original bans and the Orders sought. 159 I can appreciate the frustration of having to sit and wait for an hour or two for a second fitter to arrive and only then proceeding to do the job which might only take half an hour rather than being able to go in with a second local fitter and do the job in an hour all up for example yet still be paid for four hours' work. 160 Yet the fact remains that whilst the Illawarra stand-by fitter is waiting for the second fitter he is being paid at penalty rates and will continue to be paid penalty rates if he ends up being out for longer than 4 hours. There are also the Award protections of appropriate rest breaks before normal work commences on the next shift. 161 It is always open to the Illawarra fitters to again make themselves available to be called out to support the stand-by fitter and thus reduce the time spent waiting at a site. 162 Having carefully considered all the evidence and the submissions of the parties I am unable to find there is any justification for the intervention of the Commission in SWC's managerial right to determine appropriate manning levels for fitters on stand-by in the Illawarra. 163 The Union's application for Orders is dismissed. 164 The Commission expects that any bans or limitations in place by AMWU members in the Illawarra concerning fitters on stand-by or responding to call-outs should be immediately lifted. 165 This dispute is now terminated. E A R Bishop Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.