Industrial Relations Commission of New South Wales CITATION : Alstom Power Pty Ltd v Australian Workers' Union, New South Wales and anor [2000] NSWIRComm 180 Alstom Power Pty Ltd PARTIES : Australian Workers' Union, New South Wales Automotive Food Metals Egnineering Printing and Kindred Industries Union, New South Wales Branch FILE NUMBER: IRC 3869 of 2000 CORAM: Harrison DP CATCHWORDS : Payment of wages for time lost due to reasonable concern for health and safety - strike pay refused LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 1983 HEARING DATES: 08/21/2000 DATE OF JUDGMENT: 09/05/2000 APPLICANT Mr Brian Evans Agent for Alstom Power Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Mr M Stoker for AWU Mr G Mohan for AFMEPKIU JUDGMENT: - 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 5 September 2000 Matter No IRC 3869 of 2000 Notification under s.130 by Alstom Power Pty Ltd of a dispute with The Australian Workers' Union, New South Wales and another re payment for lost time. DECISION 1 This matter arises by notification pursuant to s.130 of the Industrial Relations Act 1996 ('the Act') by Alstom Power Pty Ltd ('the Company'). The notification, filed by telephone advice at 10.10am on Monday, 7 August 2000, advised of a dispute with The Australian Workers' Union, New South Wales (AWU) and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (AFMEPKIU) ('the Unions') concerning claims for payment for lost time by employees at the Redbank Power Station construction site in the Hunter Valley. The notification advised of a stoppage of work on site on Friday, 4 August 2000 to Monday, 7 August 2000 with a return to work but further action pending. The notification sought urgent listing in Newcastle. 2 The matter was subject to compulsory conference proceedings at 3.00 pm on the day of notification. In those proceedings Mr B Evans appeared as agent for the Company with Mr Hardy. Mr G Mohan appeared for the AFMEPKIU and Construction, Forestry, Mining and Energy Union (New South Wales Branch) (CFMEU) with Mr B Griffin. Mr S Wyatt appeared for the AWU with Mr Preston. 3 Mr Mohan and Mr Wyatt put that employees had withdrawn from the workplace area and retired to the site amenities due to a concern that dust generated by a refractory lining contractor, identified as York Linings International Pty Ltd ('York Linings'), posed a threat to the health and safety of employees. Mr Mohan, supported by Mr Wyatt, put that the employees of Alstom Power Construction & Services (C&S) had raised concerns in respect to the substance/s used by York Linings, and their failure to contain it within the refractory work area, at a number of toolbox meetings in recent times without remedy to the situation. 4 Mr Evans described the events of Friday, 4 August 2000 as commencing with a start up meeting of employees at which the issue of airborne dust was raised and concern expressed by unidentified individuals that the substance used had been banned in some states and had carcinogenic properties. This led to employees seeking access to the material safety data sheets (MSDS's) and were apparently given an incorrect document by their immediate management, resulting in delegates seeking further information from project management. Employees of C&S and some unidentified sub-contractors returned to the site amenities while the information was sought. Consideration of information obtained resulted in demands by employees for rectification and containment work to be undertaken. Employees left the site at about 3.00 pm on Friday, 4 August 2000 and returned to commence work at 7.00 am on Saturday, 5 August 2000. The rectification and containment work was not completed, resulting in employees refusing to commence work and ultimately leaving the site around 8.30 am that day. 5 Mr Evans submitted that on Monday, 7 August 2000 employees attended for work at 7.00 am and, following a further meeting, delegates spoke with Company officials concerning the issues, during which a claim for payment for time lost on Friday, 4 August and Saturday, 5 August 2000 was made. Mr Evans put that following an inspection of the site by Company officers a determination was made that employees would not be paid for time lost on Friday and Saturday as the Company regarded this as a strike. 6 It was Mr Evans' submission that refusal to pay for time lost on Friday, 4 August and Saturday, 5 August precipitated a further meeting of employees who commenced strike action in support of their demand for payment, leading to the instant notification. 7 Mr Evans submitted that employees who hadn't left the site were at the time of proceedings in the amenities at the site; noting that those remaining were a significant number, whom he put were quite clearly on strike. Mr Evans submitted that the Company did not regard the issue as a question of safety, and sought support for this view from the fact that on Friday, 4 August 2000 an occupational hygienist from HLA Envirosciences Pty Ltd (HLA) had conducted dust sampling tests on site, a copy of which was given to all employees. Mr Evans added: "The amounts of dust, whilst at times are high, occur only when certain things take place, like a bag of product is tipped into a hopper and there is a significant cloud of dust but is a momentary things and settles down very quick." 8 Mr Evans emphasised that the tests showed that all occurrences are within the Work Safe Australia allowable limits, submitting that officials, delegates and employees were aware of that. 9 Mr Mohan, supported by Mr Wyatt, refuted these assertions, submitting that the problem arises not only when bags of product are tipped and mixed but during the course of the spraying process, and that failure to contain the dust results in it being carried to all areas of the site. Mr Mohan and Mr Wyatt put that on inspection of the site on the morning of 7 August 2000 scaffolding had not been appropriately tagged and containment measures had not been completed. Mr Mohan and Mr Wyatt submitted that the actual MSDS's were not given to employees until Saturday, 5 August 2000, and that employees did not see the results of the airborne dust samples until later. 10 Mr Mohan, supported by Mr Wyatt, further submitted that employees left site on Friday, 4 August and Saturday, 5 August at the direction of Company officials, and they attended to work on Monday, 7 August to work through the various disputes procedure processes to examine those areas that continued to pose a risk to health and safety; and to participate in the rectification and containment process but were denied the opportunity to do so. 11 The proceedings then turned to an examination of those particular matters of rectification and containment that required attention in order to effect a return to normal operations. Mr Mohan placed payment for the time lost on Friday, 4 August and Saturday, 5 August 2000 high on the list of priorities. The parties attention was then drawn to s.143 of the Act which prohibits strike pay and were pressed to address those matters, other than issues of payment, that continued to be of concern. 12 These matters were identified as: · a commitment by the Company to ongoing monitoring of dust on the site; · an examination of scaffolding around the immediate work area, which it was alleged had not been correctly tagged, and the rectification of any deficiency; · a commitment to erection of an enclosure around the immediate refractory work area in addition to that in place in order to keep dust from being distributed to other parts of the project; and · an arrangement for the Occupational Health and Safety (OH&S) Nurse on site to monitor health issues reported, it being alleged that some employees with sore throats and skin rashes were blaming the exposure to refractory dust for these symptoms. 13 Mr Evans agreed to all of these measures. 14 These arrangements then provided the basis for resumption of normal work and a consideration of the unresolved issues. These were identified as falling into three segments: · Specific material handling procedures and the health and safety issues arising therefrom. · The claim for payment going to whether the circumstances encountered and actions of the relevant parties on Friday, Saturday and Monday, 4, 5 and 7 of August 2000 attract the intervention of the Commission to authorise or order payment pursuant to s.143 of the Act. · An apparent problem of communications on the site. The Unions maintain that this issue has been raised at a number of toolbox meetings without correction. However, in the proceedings of 7 August 2000 both Mr Mohan and Mr Wyatt, (the latter putting that he is on site once or twice a week) have never been advised of a problem nor asked to act on behalf of members to expedite correction in accordance with the disputes settlement procedure contained in the project's industrial agreement. 15 Material handling issues and associated health and safety matters are the collective responsibility of the parties to be actioned as required through the mechanisms of the Occupational Health and Safety Act, not the least of which is the on-site OH&S committee. 16 The failure of the Company to take effective action as a consequence of toolbox meetings is itself lamentable. The failure of employees to bring such matters to the attention of the officials of the registered industrial organisations to which they belong is absolutely incomprehensible. The Unions are there to represent the interests of employees in accordance with established and agreed disputes settlement procedures when direct representation fails to produce an adequate or reasonable response to a genuine concern . 17 The proceedings on 7 August 2000 were adjourned on the basis that the unions pressed an application for recovery of wages pursuant to s.143 of the Act; and that the Company reject that claim. I formed the view that conciliation was not possible on this matter and accordingly a Certificate of Attempted Conciliation was issued and subsequently conveyed to the parties and the President of the Commission as required by legislation. Arbitration proceedings were scheduled for Friday, 11 August 2000, subsequently deferred at the request of the Unions to Monday, 21 August 2000. 18 In the proceedings of 21 August 2000 Mr Stoker appeared on behalf of the AWU with Mr Wyatt and Mr Preston. Mr Mohan appeared for the AFMEPKIU with Mr Radley. Mr Evans appeared on behalf of the Company with Mr Hardy. 19 Mr Stoker reported that consequent upon the proceedings on 7 August 2000 normal work had resumed on site. It was established during the course of these proceedings that afternoon shift employees had at no time ceased work as apparently the refractory lining operations do not occur on the afternoon shift and accordingly no apprehension of a risk to health or safety emerged. 20 Mr Stoker pressed a claim for payment for employees involved of four and a half hours pay in respect to Friday, 4 August 2000; a payment of four hours pay in respect to Saturday, 5 August 2000; and six hours pay in respect to Monday 7 August 2000. 21 Mr Stoker brought evidence from Mr A Preston, a leading hand/boilermaker/rigger employed by C&S at the Redbank site; and Mr S Radley, an employee of C&S at the Redbank site from 12 January 2000 and a member of the on-site OH&S Committee. 22 The evidence of Mr Radley was provided in affidavit form (exhibit 14). Mr Preston and Mr Radley were subject to cross examination by Mr Evans. 23 Mr Stoker further relied upon statements executed by employees, admitted without objection and not required for cross examination. These are: · Exhibit 8 - Statement by Mr G Hubbard, crane driver, and Mr J Davies, dogman · Exhibit 9 - Statement by Mr R Kidd, an employee of Stelform Engineering employed at the Redbank site. · Exhibit 10 - Statement by Mr H Garlick, an employee on site. · Exhibit 11 - Statement by Mr J Johnston, pipe fitter, written on behalf of himself and a crew of 17 personnel. The statement is signed by Mr Johnston and each of the crew members. · Exhibit 12 - Statement by Mr E Stashynsky, a welder. · Exhibit 13 - Statement by Mr G Wardle, an employee of Stelform Engineering at the Redbank site. 24 Mr Stoker further tendered notes of toolbox meetings which record the issue of airborne dust emanating from refractory operations being discussed. 25 Mr Stoker also tendered MSDS's for the refractory material in question, identified as Karrelit SF49LC, exhibit 4; Karrelit H-81LC, exhibit 5; and Moral Coolcast 120LWK, exhibit 6; and a report from HLA dated 4 August 2000 on airborne particulates sampling, exhibit 7. 26 Mr Evans brought evidence from Mr N Hardy, employed as construction manager at the Redbank site by C&S; and Mr S Wallace, employed as site quality and safety manager by C&S at the Redbank site for the past three months. 27 Mr Evans further relied on documentary evidence tendered in compendium form, exhibit 16, which contains: · Notes of toolbox meetings of 29 June 2000; the supervisor's reply of 29 June 2000; · Notes of toolbox meeting 13 July 2000 (also exhibit 1, tendered by Mr Stoker), and supervisor's reply thereto; · Notes of toolbox meeting 20 July 2000 and supervisor's reply thereto; · Notes of toolbox meeting 27 July 2000 (also exhibit 2, tendered by Mr Stoker) and supervisor's reply thereto; · Notes of toolbox meeting 3 August 2000 (also exhibit 3, tendered by Mr Stoker), and supervisor's reply thereto; · Notes of toolbox meeting 10 August 2000 and supervisor's reply thereto. 28 Exhibit 16 also encloses MSDS's for Karrelit H-45 ARG; Karrelit H-81LC; Moral 80 PK; and Karrena Insulating Products in addition to those tendered by Mr Stoker. 29 Mr Evans assisted in an understanding of the client contractor arrangement on site by provision of a Redbank Power Station organisation chart (exhibit 15) and offering clarification in the following terms. 30 At the commencement of the Redbank project ABB Power Generation was the employer respondent to the site agreement. Subsequent to winning the contract and approval of the site agreement ABB Power Generation worldwide merged with Alstom Power to become ABB Alstom Power. In late 1999/early 2000 Alstom Power purchased the fifty percent shareholding of ABB and the operating entity is now Alstom Power Limited. Alstom Power Construction & Services Division (C&S) are a principle and major contractor to Alstom Power. There are a number of other direct contractors to Alstom Power, including York Linings, and a number of subcontractors engaged on the project. THE EVIDENCE 31 The evidence of Mr Preston and Mr Radley confirms the outline of events put by Mr Mohan and Mr Wyatt in the proceedings of 7 August 2000. This evidence adds further detail to those events, such as that from Mr Preston that when he sought information from the employees of York Linings in respect to the material used he was rebuffed in an aggressive and hostile manner, resulting in him discontinuing that line of enquiry. 32 The evidence of Mr Radley is that the issues were raised with Mr Costa Tsiolkas, the senior site representative of Alstom Power (the client and site manager so far as C&S is concerned) at 11.40 am on 4 August 2000. The evidence of Mr Radley details further discussions with and enquiries to Mr Tsiolkas and other management representatives of Alstom Power. The evidence of Mr Radley and Mr Preston details discussion of a number of initiatives and a consensus that washing down the area was impractical as this action would result in the creation of another hazard from collection of water at the base of the boilers. 33 These events are supported by the affidavits of evidence admitted without objection or contest. 34 These statements further detail compliance with requests by management for groups of employees to work in areas unaffected by refractory dust to unload a vehicle. The statement of Mr Hubbard (exhibit 8) deposes that two crane crews, totalling five people, were involved in the unloading of a truck and were told that they were on "job and knock", i.e. do the job, go home and get paid for the day. Mr Hubbard deposes that that work was finished at 2.45 pm and that employees left the site in accordance with management's instructions. 35 Mr Hubbard further deposes that on arrival at work on Saturday, 5 August 2000, he was under the impression that employees were instructed by management to await action to enclose the dust affected areas. Mr Hubbard further deposes he was subsequently surprised when word filtered through that he had been told to go home at about 9.30am, despite the fact that they had received clear instructions on Friday afternoon, 4 August 2000 to come to work on Saturday. 36 The deposition by Mr Hubbard further states: "On Monday morning a report back meeting was held to discuss the Commission's findings from Friday and we then voted to return to work pending the companies attitude regarding payment for Friday and Saturday. The whole site then returned to work for approximately two hours when we were informed that no pay would be forthcoming for any of the three days involved (Fri, Sat and Mon). 37 Mr Hubbard contends that three hours on Friday, 4 August and two hours on Monday, 7 August 2000 were physically worked by everyone on site. 38 The deposition of Mr Kidd (exhibit 9) is that he was instructed by Mr Barrett, the site project manager for Stelform Engineering (his employer) to sit in their lunchroom until such time that the site was declared safe; at approximately 3.00 pm Mr Barrett informed him they would be sent home at that time because nothing further could be done that day; and that he was told he would be paid until his normal finishing time. 39 The deposition of Mr Wardle (exhibit 13), also an employee of Stelform Engineering, is consistent with that provided by Mr Kidd. 40 The deposition of Mr Garlick (exhibit 10) states: "On the morning of Friday, 4th August a member of Alstom Management and Graham Howlett (Safety Co-ordinator) stood on the back of a ute at a mass meeting in the car park. At the said meeting the member of Alstom Management recognised there was a problem and said that they were going to erect scaffolding and hang hessian off it around the problem areas. He advised us to sit in the crib huts until such was done. Which we did as was instructed, until such time that Management sent us home. 41 The evidence of Mr Stashynsky (exhibit 12) details an occasion on which he was welding from a swinging stage underneath Boiler Module No 1 with colleague, Mr Evans, when they were both covered in a thick cloud of white dust from ducting above. Mr Stashynsky deposes both were "coughing uncontrollably and came down to find everybody at the crib sheds." Mr Stashynsky details enquiries of the project manager as to his concerns and his response was that they were to "have a coffee fellas, we will sort it out". Mr Stashynsky further deposes that on the afternoon of Friday, 4 August 2000 they were told to come to work on Saturday, which he did, and was subsequently sent home. 42 The evidence of Mr Hardy is that he arrived on site around 9.30 am on Friday, 4 August 2000 and observed the lack of activity on site and was informed that a meeting was currently taking place that involved the site safety committee and site management. Mr Hardy deposed that he attended that meeting from approximately 10.00 am and ascertained that the problem was dust emanating from the refractory linings work site. Mr Hardy further deposed that he noticed that there were several copies of MSDS's on the table at that meeting and that most members of the OH&S committee that were present were referring to copies thereof. Mr Hardy further deposed that this was the first occasion he had seen the MSDS's and immediately noticed the headline qualification that the material was non-hazardous. Mr Hardy deposed that he concurred with Mr Radley and Mr Preston that, notwithstanding this notation, there were levels of exposure that could cause concern; and agreed to arrange for air quality testing to be undertaken. Mr Hardy deposed that at this time Mr Preston expressed a sentiment that employees wanted to return to work, which he found encouraging. 43 Mr Hardy then detailed discussions between himself and Mr Radley concerning isolation of the refractory area by bunding off the particular parts of the site which were of concern. These were identified as the two entries to the furnaces on Boiler Unit 1 and Boiler Unit 2 where York Linings had a mixing station; and that if they were able to tape off an area surrounding the mixing station employees would not be required to work on those areas. Mr Hardy deposed that he was of the view that this would be adequate, however further consideration by a meeting of employees rejected these measures. Employees required a complete cessation of dust generation which Mr Hardy deposed was beyond his authority as he could not direct or control the operations of York Linings as it is not a sub-contractor to C&S. Mr Hardy deposed that all he could do was to direct his employees to work in other areas of the site. Mr Hardy deposed that he left the site at around 11.30am to 12 noon and noted that on his departure approximately half the motor vehicles were no longer there, causing him to inform management remaining on site that in his opinion this proportion of employees had left. 44 When questioned in respect to the concentration of dust, Mr Hardy's evidence is found at page 60 of transcript in the following terms: "There is a high concentration of settled dust around the mixing area and there is a concentration - or there was a concentration of the remains of the mixed material on the scaffolding adjacent to the entry to the furnace, the result of a mixed refractory actually being spilt, pouring down that scaffolding. Apart from those two areas and notwithstanding the areas directly involved with spraying, such as inside the furnace or inside the cyclones or inside the cyclone manifolds, no other area has a heavy concentration of that dust." 45 Mr Hardy estimated that some ten percent of the site area was affected by dust exposure. 46 In cross examination Mr Hardy was taken to the lack of response from toolbox meetings at which the issue of dust exposure had been raised. Mr Hardy deposed that all that could be done within the power of C&S had been done; the matter had been referred to site management under the control of Mr Tsiolkas for its consideration, however he could not direct or control the activities of another contractor on site. 47 It is Mr Hardy's evidence that when he joined the meeting on the morning of Friday, 4 August 2000, he first noticed that the MSDS subject to consideration referred to "brick" and it was obvious to him that it was not the correct sheet. He then enquired as to the particular substance of concern and was informed that it was Karrelit SF49LC, to the best of his recollection. Mr Hardy added that he understood that York Linings were using all substances subject to the MSDS's tendered in these proceedings. 48 The evidence of Mr Wallace describes the process of communication and interaction between the employees and supervisors in the toolbox meetings and the subsequent action of supervisors. Mr Wallace deposed that supervisors were asked to contact York Linings direct if there was a concern at any particular time and that York Linings were to monitor the actual dumping and filling of the chute with refractory to control the dust. 49 The evidence of Mr Wallace details a number of approaches to York Linings with various initiatives to contain dust in the time prior to 4 August 2000 as a result of the issues being raised in the toolbox meetings. 50 Mr Wallace deposed that occasions had arisen where a supervisor, Mr Millard, had raised the matter with the manager of York Linings who had taken immediate action to wet down the refractory material to suppress dust. 51 Mr Wallace deposed that, in consultation between himself and Mr Howlett, then the site safety officer for Alstom Power project management team, it had been resolved to request York Linings to control dust by wetting down of the actual chute and placing a tarpaulin over the base of the dump chute. 52 The evidence of Mr Wallace is that Mr Preston had been given a copy of the MSDS's prior to 4 August 2000, an assertion denied by Mr Preston and I think of little relevance to these proceedings. 53 Mr Wallace further provided evidence concerning medical examinations of persons alleging they had contracted flu like symptoms and/or skin rashes from exposure to the refractory dust. Medical examination at the time of proceedings is inconclusive, though leaning in the direction that the symptoms experienced are not related to the dust. That is a matter to be pursued in its own right and not relevant in these proceedings which are directed to the issue of entitlement to payment pursuant to s.143 of the Act. 54 The evidence of Mr Wallace confirms that of Mr Hardy that a decision was made to call an industrial hygienist to measure levels of airborne particulate on the site on Friday, 4 August 2000. Mr Wallace further deposed that arrangements were in place to continue the monitoring of airborne particulate on site. 55 The reports obtained from the initiatives of 4 August 2000 were introduced into evidence. The first obtained, dated 4 August 2000 (exhibit 7), is single page A4 document addressed to Mr Tsiolkas containing a table of inspirable particulate sampling results at various locations at the Redbank site. The haste in which this document was prepared is obvious from the table heading which refers to the Telstra Civic Centre Newcastle site and the date of 10 July 2000, whilst the detail in the body of the table is clearly that from the Redbank site. The table is followed by a note that "The Worksafe exposure limit TWA value for respirable silica is 0.2 mg/m3." The majority of registrations in the data table are in excess of this level. There is nothing on exhibit 7 which differentiates the type of material measured, leaving open a conclusion that these measures were silica related. 56 All of the MSDS's carry the notation "Not classified as hazardous according to criteria of Worksafe Australia". Mr Hardy identified Karrelit SF-49LC as the most relevant data sheet, it details the ingredients as: Aluminosilicate mineral; Alumina, calcined; Refractory cement, high alumina; Silico-aluminate material, calcined; Amorphous silica, (fume); Quartz; Sodium phosphate compounds; and details the personal protective equipment and storage and transport requirements in the following terms: Personal Protection Protective Equip. The following personal protective equipment is recommended: Class L particulate respirator (disposable, cartridge or canister) for dusts. Safety glasses. If any gunning operations are performed, chemical goggles or full faceshield must be work. PVC or rubber gloves. Safety boots with reinforced, protective toecaps. Overalls or similar protective apparel. Apply barrier cream to exposed skin, e.g. forearms. Respirators should comply with AS1716 (Respiratory Protective Devices) or an equivalent State or Territory authority, and be used in accordance with AS1715 (Selection, Use and Maintenance of Respiratory Protective Devices. Storage and Transport Storage Keep the material dry at all times to prevent Precautions: hydration of the cement with consequent loss of strength properties. Other Storage Note that this product contains small amounts Info. of crystalline silica; repeated inhalation of these dusts can cause pulmonary fibrosis. Ensure that adequate ventilation is maintained, and wear a dust respirator if conditions necessitate. 57 The MSD's for other materials are expressed in similar terms. 58 Exhibit 17 is a further report directed to Mr Tsiolkas dated 6 August 2000 which provides details of inspirable dust and respirable dust readings at various locations and offers the following recommendations: Worksafe Australia National Exposure standards are detailed in their publication "Exposure Standards for Atmospheric Contaminants in the Occupational Environment" Third Edition, issued in May 1995. In New South Wales, work environment regulations are administered by the WorkCover Authority which use Time Weighted Average (TWA) concentrations set by Worksafe Australia as guides for the control of occupational health hazards. During periods of continuous daily exposure to an airborne contaminant, these TWA exposures permit excursions above the standard provided they are compensated for by equivalent excursions below the standard during the working day. The results of sampling for inspirable and respirable dust are shown in Table 1. The sampling results show the average levels of inspirable and respirable dust calculated using the volume of air sampled and the total amount of dust collected during the sampling period. Results are expressed in milligrams per cubic metre of air (mg/m3). … …. All results were below the recommended exposure limits with the exception of the respirable dust sample taken in the Toggle Duct areas. Employees working in this area shall be supplied with appropriate personal protective equipment (PPE) before entry into this area. Employees working in close proximity to all refractory materials and activities shall be supplied with appropriate PPE where required. The work areas where refractory products are used should be enclosed utilising tarpaulins or similar plastic materials to minimise the liberation of dust outside the areas where refractory materials are being used." 59 Exhibit 18 is communication from Mr Tsiolkas, Site Manager, to Mr Brian Smith, Site Manager for C&S at the Redbank site, conveying a further report by HLA, also dated 6 August 2000, which details the results of dust sampling at Redbank Power Station Unit 1 on 5 August 2000 measuring inspirable dust, respirable dust, respirable silica as quartz, and respirable silica as Cristobalite. All of the respirable silica readings are less than 0.01. The general advice contained in this report is the same as quoted above from exhibit 17. SUBMISSIONS 60 Mr Stoker, supported by Mr Mohan, submitted that the evidence demonstrated a reasonable apprehension for the health and safety of employees and accordingly, their conduct in withdrawing from the affected area was appropriate and should attract the intervention of the Commission to require and authorise payment for the time lost as a result therefrom. 61 Mr Stoker, supported by Mr Mohan, further submitted that on Friday, 4 August and Saturday, 5 August 2000 employees left the work place at the express instruction of management and were entitled to be paid pursuant to their contract of employment for that time. 62 Mr Evans submitted that the employees took industrial action, which does not attract the intervention of the Commission pursuant to s.143 of the Act; and that any concern for health and safety held could and should only apply to those employees required to work at the base of the boiler in the immediate vicinity of the refractory mixing area which was one crew of employees only, not the entire site. Mr Evans further submitted that these employees withdrew, leaving no capacity for direction to other work. 63 Mr Evans submitted that it was only Mr Millard, the supervisor of the boiler crew, who had instructed his crew to go to the site amenities. Mr Evans submitted that removal of those employees to a safe place is consistent with the Act. 64 Mr Evans submitted that employees of other contractors and sub-contractors continued to work on the site during the course of these events, holding no apprehension for their health and safety, and that the employees of York Linings continued to operate without concern, which he put was further supportive of an argument that the employees of Alstom Power C&S had acted unreasonably in the circumstances and should not receive payment for the time claimed. CONSIDERATION 65 Section 143 of the Act provides as follows: 143 Strike Pay prohibited (1) An employer who pays any remuneration or provides any other financial benefit to an employee in respect of time spent by the employee in engaging in industrial action is guilty of an offence. Maximum penalty: 100 penalty units. (2) The employer is not guilty of an offence if the payment of the remuneration or provision of the financial benefit was authorised or ordered by the Commission. (3) The Commission may, on the application of an industrial organisation of employees, authorise the payment of remuneration or the provision of financial benefits that would otherwise constitute an offence under this section. The Commission may, instead, order the employer to pay any such remuneration or provide any such benefit if it considers it appropriate in the circumstances. (4) The Commission may authorise or order an employer to do so: (a) only if the applicant satisfies the Commission that the relevant industrial action was based on a reasonable concern for health or safety, and (b) only to the particular employees whose health or safety caused that concern. (5) For the purposes of this section, industrial action is not based on a reasonable concern for health or safety if the employees whose health or safety is alleged to be involved have engaged in industrial action instead of complying with a direction by the employer: (a) to move to a specified safe place in the work place or to another suitable workplace, and (b) to do other appropriate and available work there if required. (6) In this section, employer includes a person acting on behalf of the employer. 66 I am satisfied that the evidence presents an overwhelming argument in favour of payment of the employees for the time lost on Friday, 4 August and Saturday, 5 August 2000. 67 The arguments advanced by Mr Stoker and Mr Mohan that employees had reasonable cause for concern in respect to their health and safety is sustainable on the evidence. 68 The notes of toolbox meetings taken collectively prove that the issue of airborne dust emanating from refractory operations was raised on a number but not all occasions; and that the general tenor of reply was that C&S management were unable to direct or control the management of York Linings and that this was an issue for site management and the matter referred accordingly. 69 There is some evidence from Mr Wallace of direct approach to York Linings by C&S supervisors, however the results must be viewed as inadequate and insufficient. 70 The events in this matter lead to a conclusion that there was a breakdown in site co-ordination and an inappropriately low priority ascribed to the issues of dust control and communication. The consistent line of argument is that the material is non-hazardous and exposure within allowable limits prescribed by Worksafe Australia. Other than the disputed evidence that Mr Preston had requested the MSDS for the material a week prior to the dispute, there is no evidence of any communication of the material qualities, Worksafe Australia limits, the criteria by which the material is declared non-hazardous or air quality monitoring prior to the events of 4 August 2000. 71 Further, the argument advanced that the employees acted at the instruction of management and accordingly are entitled to payment is also sustained. 72 The evidence supports the conclusion that employees ceased work on Friday, 4 August 2000 as a result of concern for their health and safety and that the employees subsequently acted at the direction of the site management of C&S and the project managers, Alstom Power. The evidence also supports the conclusion that employees attended to the site on Saturday, 5 August 2000 at the direction of management and then conducted themselves in accordance with management direction. 73 Employees were provided with information from MSDS's and the initial airborne dust report in a manner which holds greater probability of increasing apprehension rather than diminishing it. The MSDS's all show amounts of silica in the material, whilst the first airborne dust report (exhibit 7) is open to interpretation that airborne silica levels are being exceeded. The fact that subsequent reports (exhibit 17 and 18) reveal this not to be the case is welcome news to all parties; however, these reports, both dated 6 August 2000, were not available on 4 and 5 August 2000. 74 When introducing exhibit 18, the most detailed airborne dust report, Mr Evans noted that he had been handed the document by those assisting him at the bar table and had not seen it previously. This leads to an unsettling conclusion concerning the quality of communication on site, which appears symptomatic of this event. 75 The assertion that other employees of other contractors and in particular the employees of York Linings, held no concern is not a defence. The issue to be resolved is whether those employees expressing a concern held reasonable grounds for that concern. 76 The submission by Mr Evans that s.143 (4)(b) limits consideration to one crew of employees working in the immediate area of the mixing station, identified by Mr Hardy as some 10 percent of the site, is not supported upon the evidence. 77 Notwithstanding debate between Mr Evans and some witnesses concerning prevailing winds upon the site, there is no precise meteorological evidence of the conditions on 4 and 5 August 2000. However, there is unrefuted evidence that the refractory dust was not contained and escaped from the boiler area in a number of ways which gave rise to a reasonable concern by employees across the site. 78 In consideration of the limitations posed by s.143 (5)(a) and (b), there is no evidence that employees were directed to other work. On the contrary, the evidence is that employees were instructed by management to go to the amenities, the only further instruction to work being to those required to unload a truck, which was complied with. The instruction to all other employees was to go home. 79 There is no evidence that supervisors of those crews not working in the area identified by Mr Hardy instructed the relevant employees to return to their duties. 80 The submission by Mr Evans that the management of Alstom Power are not authorised to direct or instruct the employees of C&S is unsustainable in this case. 81 Section 143(6) of the Act defines employer to include a person acting on behalf of the employer. The unrefuted evidence is that the situation was beyond the control of the management of C&S and had indeed been taken over by management of Alstom Power. The airborne dust sampling initiated by Mr Hardy resulted in reports directed to Mr Tsiolkas of Alstom Power, who involved himself in discussion with employees of C&S, as did Mr Howlett, the then Alstom Power Safety Officer, and other unidentified members of Alstom Power staff. 82 The evidence of Mr Hardy that a number of employees had left site by noon on Friday, 4 August is far too imprecise and subjective to be accepted. Mr Hardy makes no more than an estimate from observation of the car park whilst driving past. There is no evidence in these proceedings of the attendance and timekeeping procedures applied at the Redbank site by any of the employers engaged there. 83 In consideration of the events of Monday, 7 August 2000 the evidence is that the principle issue of concern on that occasion was payment for time lost on Friday, 4 August and Saturday, 5 August 2000. While there were some residual issues of concern canvassed in these proceedings on Monday, 7 August 2000 those matters were not the issues upon which the employees ceased work. Accordingly, the prohibition to payment prescribed by s.143 of the Act limits intervention of the Commission in respect to that occasion. 84 Orders are made in respect to Alstom Power Construction and Services Division as they are the only employer party to these proceedings. I note from the evidence that certain sub-contractors, one identified as "Stelform", others not so identified, are said to be in similar circumstances. The lack of direct involvement of those employers in these proceedings prevents specific determination in respect thereto. To the extent each of these employers are in the same or similar circumstances as Alstom Power Construction and Services Division, a separate application for authorisation or order pursuant to s.143 of the Act is required. Leave is reserved to the Unions to make such application in these proceedings. ORDERS Pursuant to s.143 of the Industrial Relations Act 1996 Alstom Power Construction and Services Division are ordered to make payment to all employees reporting for work on Friday, 4 August 2000 for the full ordinary shift rostered for that day, and on Saturday, 5 August 2000 the minimum payment of four hours as prescribed by clause 15.6 of the Redbank Power Station Construction Agreement. I so order. 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.