Industrial Relations Commission of New South Wales CITATION : Notification under s130 by Australasian Meat Industry Employees' Union, Newcastle & Northern Branch of a dispute with Dairy Farmers re protective clothing [2001] NSWIRComm 314 PARTIES : Australasian Meat Industry Employees' Union, Newcastle & Northern Branch Dairy Farmers FILE NUMBER: IRC3274 of 2000 CORAM: Harrison DP Application for personal protective clothing - exposure to rain, wind and cold temperatures - refusal to share rainwear - warm jacket claimed CATCHWORDS : Held - Employer proposal of all weather coat upheld - exposure of extremely limited nature - employees not required to share coat which is to remain property of employer LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 08/13/2001; 09/17/2001 DATE OF JUDGMENT: 11/30/2001 APPLICANT Mr J Davis AMIEU LEGAL REPRESENTATIVES: RESPONDENT Ms K Barratt Employers First JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 30 November 2001 Matter No IRC 3274 of 2000 Notification under section 130 by Australasian Meat Industry Employees' Union, Newcastle and Northern Branch of a dispute with dairy farmers re protective clothing DECISION [2001]NSWIRComm314 1 The notification in this matter was filed on 7 July 2000 by Australasian Meat Industry Employees' Union, Newcastle and Northern Branch ('the Union') notifying a dispute with Dairy Farmers ('the company'). The notification described the particulars of the dispute in the following terms: i) AMIEU members who are required by the company to take samples to the laboratory external to their workstation during the night have requested that the company supply a warm jacket as part of their personal protective equipment. ii) The members have applied the disputed procedure and have requested these jackets through their workplace union representative in the first instance, followed by a request from the Union Secretary. iii) The company has agreed to supply one jacket which is to be available for any one person however, this has not been an acceptable resolution. iv) The Union requests the assistance of the Industrial Relations Commission including the possibility of a workplace inspection." 2 The matter was initially allocated to Mr Commissioner Redman who conducted various conciliation proceedings prior to reallocation of the matter to the Commission as presently constituted. 3 A Certificate of Attempted Conciliation was issued on 12 June 2001 consequent upon which the matter was subject to proceedings for the purpose of directions to set a schedule for inspection and arbitration proceedings. 4 An inspection of the Company's facility at Hexham took place on 13 August 2001. Present during the inspection were Mr J Davis of the Union and Ms K Barratt of Employer's First, acting on behalf of the company, with Mr G Collison. 5 The matter then proceeded to arbitration on 17 September 2001. Mr J Davis continued his appearance on behalf of the Union with Mr D Stace and Mr C Staikos. Ms Barratt continued her appearance on behalf of the company with Ms W Crawford. 6 Mr Davis brought evidence from Mr Darren Stace, employed by the company in the Special Products section at the Hexham facility. 7 Ms Barratt brought evidence from Mr Graham Collison, employed by the Company as Branch Manager of the Hexham facility. 8 The application seeks an order that the company provide a warm jacket as part of personal protective equipment to Union members who are required by the Company in the course of their duties to convey product samples to the laboratory, situated external to other work stations, during the night. 9 During the course of conciliation a trial was proposed whereby the Company would provide wet weather, knee length coats for shared use by specific employees between the hours of 6.00 pm to 6.00 am in the following circumstances: Evaporator Building - Custard Section One coat will be available in the section for the use of the employee rostered from 10pm to 6am who is required to take samples to the Laboratory. Milk Agency Two coats will be available in the section for the use of the employees rostered from 6pm to 10pm and the employee rostered from 10pm to 6am who are required to take samples to the Laboratory and go to Milk Intake. Special Products One coat will be available in the section for the use of the employee rostered from 6pm to 10pm and the employee rostered from 10pm to 5am who are required to take samples to the Laboratory and go to Milk Intake. Cottage Cheese One coat will be available in the section for the use of the employee rostered from 6pm to 10pm and the employee rostered from 10pm to 6am who are required to take samples to the Laboratory and go to the wash water plant. 10 This proposal remains the company contention as the appropriate and proper measure in all circumstances. THE EVIDENCE 11 The evidence of Mr Darren Stace is that he has been employed by the company for approximately four years and works primarily in the Special Products Section. 12 Mr Stace deposed that he works day, afternoon and night shifts on a rotating roster. His evidence is that during the shift he may go outdoors to perform the following tasks (ex 1): · travel to the section after clocking on in the amenities block, · go to the toilet · return to the amenities block for meal breaks and rest pauses · take samples to the Laboratory · to collect chemicals and · return to the Amenities block to clock off 13 The evidence discloses that Mr Stace is approximately 198cm tall and has difficulty at times in securing properly fitted, company issued work clothes. 14 The evidence of Mr Stace is that he was initially issued with 11 sets of clothing, each set consisting of white linen trousers, smock and cap. The clothing is required to be worn in order to satisfy hygiene regulations. Clothing of this type is issued to each employee and is laundered by the company. Mr Stace deposed that at times he is required to use more than two sets of clothing on a shift due to having become soaked during the course of his duties. In these circumstances he would be without clothing for the next shift, requiring him to draw from general stores or borrow from other employees, wherein size and fit become an object of difficulty. 15 Mr Stace acknowledged that it is the company's policy that employees keep themselves warm by wearing other personal clothing underneath the uniform provided. 16 Mr Stace deposed that he had difficulty with this practice at times, putting that on exceptionally cold nights he found it necessary to wear a shirt and jumper underneath the white uniform jacket, which then restricted his movement. 17 It is Mr Stace's evidence that he was aware that in the evaporator room and milk receival area the employees are provided with warm nylon jackets by the company. 18 Mr Stace conceded that the employees in the milk receival area are required to walk outside a fair bit, however his view is that the employees in the evaporator room are primarily engaged in operating computer terminals and are only occasionally required to walk outdoors at night in attending to truck movements. 19 Mr Stace's evidence is that employees in the tanker wash section who are also provided with a warm nylon jacket, spend some 50% of their time outdoors at night. It is his evidence that on a busy evening he could be required to make up to ten trips to the laboratory, requiring him to traverse outdoors between his work station and the laboratory. 20 Mr Stace deposed there would be particular difficulties in employees wearing a shared jacket given that different employees require difference sized clothing. He also deposed that a particular employee is allergic to perfume, and if required to share a jacket would come into contact with the perfume worn by female employees. 21 Mr Stace further deposed that on occasion he had become wet from rain and chilled by cold winds. He put that he experienced muscle shivers and fatigue due to exposure to cold conditions and found it difficult to concentrate and do his work properly in those circumstances. 22 Mr Davis tendered a copy of the National Guidelines for Health and Safety in the Meat Industry (ex 3), which details risk assessment and risk control factors where working conditions fall below 19C. Mr Davis supported this with a cold hazard information sheet produced by the Workers Health Centre, UTLC of South Australia. 23 Mr Davis argued that employees were affected by rain and wind chill factors, submitting that the average daily minimum temperature at 9.00am was 7.3C in June 2001, 16.9C in July 2001 and 6.9C in August 2001 as recorded by the Australian Bureau of Meteorology at Williamtown RAAF Base, which he put was in reasonable proximity to the Hexham facility. 24 Mr Davis submitted that the average daily maximum wind speeds recorded by the Bureau of Meteorology were 17.5 km/h in June 2001, 17.0 km/h in July 2001, and 23.5 km/h in August 2001, putting that the wind effect further reduced the temperature and which the subject work was undertaken. 25 Mr Davis further supported his argument by reference to a wind chill table for measuring the cooling effect of wind, which reveals an increasing reduction in effective temperature as ambient temperature decreased and wind speed increased. 26 Mr Davis argued that exposure to cold temperatures and wind chill factor produces a potential for cold stress and physiological effects on employees and that it was unfair and unreasonable for the company to provide jackets for workers in other sections whilst refusing to provide jackets to those employees subject to these proceedings. 27 Mr Davis submitted that the company has failed to carry out a risk assessment despite having a duty of care under the Occupational Health and Safety Act to do so; putting that potential for accidents increases when workers are exposed to temperatures below 17C. 28 The evidence of Mr Collison is that he has been employed by the company since 1985 and is currently employed in the capacity of Branch Manager and as such is responsible for the activities of the company's Hexham facilities. 29 Mr Collison deposed that he was aware of the claim which he put affected approximately 20 employees rostered through rotating afternoon and night shifts. The afternoon shift commences at 2.00 pm and finishes at 10.00 pm; the night shift commences at 10.00 pm and finishes at 6.00 am. 30 Mr Collison deposed that employees working these shifts are entitled to a 20 minute meal break and 10 minute rest pause; and that the company has installed toilets and meal facilities in or near work areas in all areas, other than the cottage cheese room and the special products area, so employees do not have to go outside during the course of their shift. 31 Mr Collison conceded that on occasion employees are required to take samples to the laboratory during the course of the afternoon and night shift. 32 Mr Collison's evidence details these requirements in the following terms: Milk Agency 33 This section is staffed by one employee per shift who may be required to make a maximum of four trips to the laboratory of approximately one minute 4 seconds to and from for each trip. 34 Mr Collison deposed that bottling in the milk agency is often completed prior to the commencement of the afternoon shift and accordingly employees are not required by the laboratory on these occasions. Cottage Cheese Area 35 This section is staffed by one employee per shift. Mr Collison deposed that often market requirements do not require production on afternoon or night shift, though where this does occur up to four samples per shift may be required in the laboratory, a journey of some 44 seconds to and from for each trip. Mr Collison deposed that toilet facilities are available to employees in the cottage cheese area, either in the milk agency, accessed internally, or the evaporator building some 24 seconds walk away. 36 Mr Collison's evidence is that it takes approximately one minute 56 seconds for an employee to walk from the amenities block to the cottage cheese area. Special Products Section 37 This section is staffed by one employee per shift. Mr Collison deposed that the Special Products section is one minute 20 seconds walk from the amenities block and some 40 seconds walk from the laboratory. The employee concerned may be required to take a maximum of five samples to the laboratory during a shift. Evaporator Building 38 One employee is rostered to work in the custard mixing area located in the evaporator building on night shift. 39 It is Mr Collison's evidence that the area is a one minute 41 second walk from the amenities block and that internal access is available to alternate toilet and meal areas. His evidence is that the employee in the custard mixing area may be required to take a maximum of four samples to the laboratory during the shift, some 46 seconds walk to and from for each trip. 40 Mr Collison conceded that the company does provide nylon work jackets and wet weather gear to employees who regularly work outside as part of their normal duties. Mr Collison's evidence is that employees who work in the factory are supplied with a company uniform consistent with the required standards for food factories and export establishments and that this clothing is specifically designed to allow employees to wear warm clothing under the uniform in winter if desired. 41 Mr Collison's evidence is that the company undertook an assessment of the claim having regard to their occupational health and safety responsibilities and, in an attempt to resolve the matter, made an offer in August 2000 for the provision of one nylon jacket for each work area to be worn over the company provided uniform and laundered regularly by the company. 42 This proposition was rejected on the basis of the shared use of the jacket. Mr Collison put that the company made a further offer in May 2001 for trial of a wet weather/all weather coat, again rejected by the union. 43 At point 47 of his statement of evidence Mr Collison details the company's proposition and the reason therefor in the following terms: 47. In the latest offer the Company made an offer of shared wet weather/all weather coats, as opposed to shared nylon work jackets for five principle reasons: · The provision of shared wet weather coats is consistent with the Company policy on other sites; · The nylon work jackets do not keep out wind or rain, whereas the wet weather/all weather coats do keep out wind and rain; · The nylon work jackets are waist length whereas the wet weather/all weather coats are knee length which further deals with the wind chill concern; · The nylon work jackets can pose safety risks at night (given that they are dark colours) whereas the wet weather/all weather coats address safety concerns (given that they are bright yellow); and · The nylon work jackets are not readily adaptable to different heights and weights whereas the wet weather/all weather coats are readily adaptable to different heights and weights. 44 The evidence of Mr Collison is that employees have the option of providing their own jackets to wear to and from the central amenities and their work areas, and that specific storage facilities are provided in the work area for that purpose. 45 Mr Collison rejected any contention that employees are required to continue work without a change of clothes where they may have become wet; and rejected the assertion that the company had not complied with its duty of care under the Occupational Health and Safety Act. 46 Mr Collison deposed that he was unaware of any data which supported the union's contention in respect to the wind chill factor. Mr Collison put that the employees subject to these proceedings may be required to spend only minimal time outside during their shift as distinct from employees to whom jackets are provided and who, as a regular feature of their duties, must work substantial periods in the open. 47 Ms Barratt relied upon the evidence of Mr Collison to support her argument that the proposition of provision of an all weather coat which would adequately protect employees from rain and such wind chill factor as may exist is an appropriate measure in all of the circumstances. 48 Ms Barratt put that such an arrangement will also resolve issues raised by the union as to size and fit and be consistent with company policy on other sites. 49 Ms Barratt submitted that provision of a nylon work jacket as claimed by the union is not justified on the evidence. CONSIDERATION 50 There is no evidence in these proceedings as to practice on other sites. 51 There is no evidence in this matter having regard particularly to minimum requirements of employees to take samples to the laboratory, which justifies or supports the intervention of the Commission to provide the provision of a warm nylon jacket to each employee. 52 The submissions of Mr Davis in regard to working in cold conditions are misdirected. An examination of the scientific material tendered by Mr Davis reveals that this material is primarily and predominantly directed at employees working in coolrooms or exposed areas of low temperature for sustained periods; and has diminished relevance in the intermittent and brief contact found in the present circumstances. 53 There is, in my view, no issue of inequality between these employees and those who are required to work for substantial parts of their shift outside the production facilities. 54 I find there is no case made out for the personal issue of a warm nylon jacket to each employee subject to these proceedings. 55 It is not however unreasonable for the company to be required to provide protection from the elements in the form of the all weather coat of the type proposed by the company. This coat will remain the property of the company. 56 It is in my view not appropriate that employees be required to share this coat. It is not beyond the capacity of the company to provide an all weather coat of an appropriate size and fit for each employee whilst rostered on afternoon or night shift in the effected areas. Where employees are replaced by others during the course of the shift, due to absenteeism or for whatever reason, it is appropriate that an all weather coat be issued for use by the replacement employee whilst rostered and returned to supervision at the end of the shift or shifts for which the replacement employee is required. 57 I so determine. oo0oo 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.