Industrial Relations Commission of New South Wales CITATION: Construction, Forestry, Mining and Energy Union (New South Wales Branch) (on behalf of Adam Finch) and Watertech Resources Pty Ltd/Kembla Watertech Pty Ltd [2005] NSWIRComm 1085 APPLICANT Construction, Forestry, Mining and Energy Union (New South Wales Branch) PARTIES: RESPONDENT Watertech Resources Pty Ltd/Kembla Watertech Pty Ltd 1241 FILE NUMBER(S): 1242 of 2003 CORAM: Patterson C LEGISLATION CITED: Industrial Relations Act (NSW) 1986 EXTEMPORE JUDGMENT DATE : 06/02/2005 Rita Mallia LEGAL REPRESENTATIVES: Brian Evans DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: PATTERSON C 9 June 2005 Matter No IRC 1241 of 2003 Construction, Forestry, Mining and Energy Union (New South Wales Branch) (on behalf of Geoff Horsnell) and Watertech Resources Pty Ltd/Kembla Watertech Pty Ltd Application by Construction, Forestry, Mining and Energy Union (New South Wales) on behalf of its member Geoff Horsnell re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 Matter No IRC 1242 of 2003 Construction, Forestry, Mining and Energy Union (New South Wales Branch) (on behalf of Adam Finch) and Watertech Resources Pty Ltd/Kembla Watertech Pty Ltd Application by Construction, Forestry, Mining and Energy Union (New South Wales) on behalf of its member Adam Finch re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1085 1 This application for relief was filed by the Construction, Forestry, Mining and Energy Union, Construction & General Division, New South Wales Branch (the "Union") on behalf of its two members, Geoffrey Horsnell and Adam Finch, whose employment was terminated due to their having committed a "serious breach of Company and Client Safety Procedures." 2 The respondent, Watertech Resources Pty Ltd (named incorrectly, it seems, as Kembla Watertech Pty Ltd), had been contracted to Sydney Water to provide maintenance services, by a re-lining program, to certain of its sewage mains network throughout the Blue Mountains area. 3 The re-lining process is divided between two work crews of people – the "liners" and the "cutters." The "liners" insert a continuous sleeve within the original (earthenware) pipes sealing off any ruptures or cracks running from one manhole access point to the next. As the new lining, or sleeve, also has the effect of closing off all consumer outlets where they feed into the main line these junctions must then be re-opened by the cutting crew. 4 Clearing of the junctions is performed by a robotic device, on wheels, fitted with a dome-style cutting tip, brushes and camera. Once inserted into the pipe it is operated by cable and guided by a closed-circuit television console fitted within the works vehicle controlling its travel from one junction to the next with the camera providing a view of work in progress. 5 Due to the potential hazards associated with gaining access to, and working within and around, open sewage mains the employer schedules a series of induction training and employee updates by reference to its obligations pursuant to the Occupational Health and Safety Act, 2000, contractual requirements according to client (Sydney Water) expectations as complemented by its own "Watertech Safety Management Plan." Induction training, a program of four days' duration, is provided by the Mines Rescue Service with the balance being generally supplied by the respondent's own OH&S Manager in the form of periodic ("tool box") meetings, whereupon employees are frequently required to undertake an objective testing procedure as confirmation of their understanding and acceptance of the need for strict compliance. Brief records are kept of the "tool box" meetings – the date, venue, those present and the issues discussed and determined. 6 The applicants' dismissals have their genesis in events which occurred on the morning of Saturday, 8 February 2003 when, as members of the cutting crew, they encountered difficulties associated with the cutting device becoming jammed within the pipe. 7 Recently elevated to foreman, Geoffrey Horsnell had been responsible for both the lining and cutting crews assigned to a job in Durham Lane, Springwood. With the lining process completed the lining crew, consisting of four employees, moved on to the next job approximately five kilometres away. 8 The cutting crew, normally consisting of two men, Mr Horsnell and his offsider, Adam Finch, had opened a manhole for access and, once satisfied that the access point was safe from toxic/inflammable gases took steps to lower the cutting device into the newly-lined pipe and proceed to operate it according to plan. 9 However, once the cutting device had reached the final junction, in that section, approximately "30cm" before the next manhole downstream, it is claimed to have become stuck allegedly due to a change in grade of the pipe's direction. 10 Concerned, they say, at the probability of sewage surcharge (back-flow to the neighbourhood residences) in the event that the final junction could not be promptly re-opened the pair considered the options available for dislodging the cutting device in order that the job could be completed without delay. 11 Following a so-called "risk assessment" the downstream manhole was opened, claimed to have been initially tested for gases present, and an extractor fan installed upstream for on-going purging of the line. Mr Finch then entered the second hole, said to be approximately "2 metres" deep, by a ladder situated within the hatch. 12 With Mr Horsnell located at the CCTV console, approximately 40 to 60 metres distant whilst within eye-shot of Mr Finch's entry-point, and in contact by two-way radio, the machine was freed "in approximately two minutes," the cutting completed and a brush replaced "without further complication." 13 When Mr Finch was exiting the manhole he was approached by a person (Christopher Troy) who identified himself as a Sydney Water employee stating he had come to investigate resident complaints of sewage odours in the area. Asked what he had been doing in the manhole Mr Finch said he had "just changed a brush tip (which had been performed during his freeing up of the cutting device)." When asked if he had noticed "an odour" he replied in the negative. 14 As Mr Troy left the area Mr Finch returned to the "top" manhole (upstream and near the vehicle/CCTV control point) and continued "pulling cables for brushing of junctions." 15 On the following Monday, 10 February, Christopher Troy despatched an email to his principals in the following terms: "Henry (Pisanko), On Saturday 8/2 a contractor was observed opening and entering a (sic) approx 2.4m deep mh at the corner of Durham Lane and Boomerang Rd Springwood. The man was questioned as to what he was doing, he stated that a brush to finish the liner was being inserted. This man was alone but in radio (walkie-talkie) contact with another operator. No gas testing was observed. For your information and action …" This was passed on to the respondent for action and response. 16 Once management had identified Messrs Horsnell and Finch as being the subject of Sydney Water concerns, arrangements were made for each to be individually interviewed by William Garrett, State Divisional Manager and Nicolous Roode, OH & S Manager on Friday 14 February. Each interview was then adjourned, in turn, by the operators being placed on suspension, with pay, pending further consideration upon their supplying a written report to management by the following Monday. 17 The handwritten reports being furnished accordingly, Messrs Garrett and Roode considered their content and implications and referred their views to senior management, whereupon a decision was taken to terminate the services of Geoffrey Horsnell and Adam Finch with one week's pay in lieu of notice. 18 When the applicants were later informed of their dismissals on that day they were each presented with a termination notice expressed in the following terms: "17th February 2003 Attention (Geoff Horsnell/Adam Finch) In regards to the alligation (sic) made by Sydney Water representative that on the 8th February 2003 at Durham Lane and Boomerang Street Springwood you allowed you (sic) offsider to open and enter a maintenance hole approximately 2/4 metres deep without § Any proper safety equipment o Gas monitoring equipment o Harness, Tripod o Self Rescuer § Entered Confined Space without safety man Further to the investigation undertaken by Kembla Watertech with regard to your major breach of safety rules and procedures, the following has been confirmed: § By your own admission, you did enter confined space without observing appropriate safety rules § You were aware of the safety rules for entry into confined space. Further to warnings issued in Tool Box meetings, face to face meetings and the memorandum of 24 September 2002 (ref: RPM011) regarding major safety breaches and the consequences for employee's (sic) found doing so, your employment with Kembla Watertech has been terminated effective immediately. All entitlements you have with Kembla will be fully paid on Tuesday 18th February 2003. Signed, Kembla Watertech Pty Ltd Billy Garrett Divisional Manager" 19 The "memorandum of 24 September 2002" mentioned above had been issued at tool-box meetings held on that day, or on the following day, under signature of the respondent's General Manager, Richard Petterson: "Kembla Watertech Pty Ltd (Kembla) has recently recorded an increase in the number of Health and Safety incidents occurring on our work sites. They have included a number of different issues from as basic as not wearing hard hats to entry into a confined space without the appropriate safety equipment. As communicated to you in our Safety Meetings, Kembla will not compromise on safety in any way. This means that every one of us is responsible for their own safety, and as responsible work mates, we should all be looking out for one another's safety as well. If you see someone about to do the wrong thing, stop them and remind them of their obligation to their own safety. Breaches of Health and Safety rules will lead to disciplinary action and major breaches could result in your termination. It is essential that we work together to build a safe work place." 20 A record of the meetings had been produced and circulated by Mr Roode: "Toolbox Meeting On the 24th and 25th of September a meeting was called of all employees at Blaxland yard and Strathfield yard in regards to an incident on the Blue Mountains contract No 21321 in Leura where a supervisor entered a confined space without any safety equipment. Richard Petterson Kembla Watertech's General Manager and Nick Roode the OHS&R Manager addressed our employees and sub contractors on the legality of failure to follow · Confined space procedures as to the OH&S Act 2000 · Contractual Requirements from our Client (Sydney Water) · Kembla Watertech Safety Management Plan The employees were again instructed that under no circumstances will a safety breach of this magnitude be tolerated, and if employees do not want to follow the safety rules then they will not be employed with this company. The supervisor in question has be (sic) reprimanded and a written warning will be issused (sic) Attached is a list of employees who attended this toolbox meeting" Reference to the attendance list of the meeting held on 24 September confirms, by their own signatures, that Messrs Horsnell and Finch were present. 21 Further reference to a combination of the applicants' respective experience on the job and their recorded attendance at prior training sessions/tool box meetings confirms their knowledge of appropriate safety considerations to be applied when, inter alia, accessing/entering confined spaces such as sewage maintenance/man holes (reference exhibit 9). Neither applicant denies such knowledge. 22 However, they each claim their breach to have been the product of a genuine concern for the possibility of sewage back-flow into residences as the cutting device continued to remain unresponsive to the remote controls. Physical intervention was necessary and, in the absence of a third crew-man being readily available, alternative steps to established procedure were adopted. 23 Compliance with correct procedure would have required three people present – one to operate the controls whilst observing the CCTV, a second to enter the manhole, with a third to lower him in via a harness and lifeline attached to a tripod and 3:1 ratio pulley arrangement. Should the second man encounter difficulty, such as to be overcome by fumes or fire, the third man would be capable of immediately extracting him from the danger area by "winching" him to the surface. 24 Mr Horsnell states that due to the rugged terrain in the area being serviced it was not uncommon for a cutting device to become "stuck" in the pipes. Previously, he claims that his frequent requests for a third man to be regularly assigned to the cutting crew was largely ignored. And, whilst he had considered calling assistance from the lining crew, located 5 kilometres away, on this occasion he considered that such a request would have been unnecessarily disruptive to their work progress. 25 However, as noted in the termination letters, the absence of a harness, line, tripod and stand-by man was not the sole factor in their breach of procedure. Whilst the monitoring of gas levels had been measured from the original manhole opened to receive the cutting device, and an extractor fan had been installed therein, it seems that no continuous readings were taken of the other hole downstream which had been entered by Mr Finch. "COMMISSIONER: Q. And, am I to understand, before you got in the hole, you didn't take another test? A. That's right, not in that hole, when we'd – it would have been reading from the top manhole – Q. And you didn't take the monitor with you? A. No. Q. Could there have been a different reading at that hole as against the top hole? A. Yes, possibly, but like I said, with the manhole open and we've got the exhaust fan sucking upstream, the pipes only – I think it was 150 mil pipe, but you've got a 600 hole into the open up top; its sucking all that oxygen in and through. So, like I said, I felt safe in doing so and there was – Q. And there was only one monitor between you, right? A. Correct, that's the way it is. One on board." 26 The breach was compounded further by Mr Finch entering the hole without arming himself with a "self rescuer" (portable emergency breathing/resuscitation device such as that used by miners). Had he been confronted with fumes such as to render him unable to breathe freely and independently this device would have provided him an alternate air supply for up to approximately 20 minutes. 27 And, whilst Mr Horsnell claims, in the circumstances, that Mr Finch was not placed at serious risk due to the fact that they were in radio/walkie-talkie contact, neither party provides evidence as to whether this equipment is so insulated as to render it safe for use in a confined space where flammable gases may be present. 28 His further claim that he could view Mr Finch up to torso level by medium of the CCTV monitor is challenged by Mr Roode who describes the camera as being fixed to the robotic device so as it faces the opposite direction. In other words, according to him it faces the direction travelled rather than the direction to be travelled. Whatever the true position, the evidence is lacking in this regard since a simple photograph might have sufficed. 29 By reference to the OH&S Act and its Regulations (Division 9: Working in Confined Spaces) the respondent's OH&S Policy and Procedures set out in sufficient terms the strictures applying to work carried out in confined spaces e.g: "Wherever work has to be carried out in a Confined Space, all relevant regulations must be strictly adhered to. The regulations define a "confined space" in relation to a place of work, as a space of any volume, which a person may enter or be allowed to enter, and in which: THE ATMOSPHERE IS LIABLE TO BE CONTAMINATED AT ANY TIME BY DUST, FUMES, MIST, VAPOURS, GAS OR ANY HARMFUL SUBSTANCE – OR THAT THE ATMOSPPHERE IS LIABLE AT ANY TIME TO BE OXYGEN DEFICIENT AND INCLUDES BUT NOT LIMITED TO THE FOLLOWING – : OPEN TOP SPACES OF MORE THAN 1.5 METRE IN DEPTH SUCH AS PITS OR EXCAVATIONS WHICH ARE NOT SUBJECT TO GOOD VENTILATION : PIPES, SEWERS, SHAFTS, DUCTS AND SIMILAR STRUCTURES. All employees entering a Maintenance Hole must have a current Confined Space Certificate. Standby persons must also have a Confined Space Certificate. Ensure that a Confined Space entry Permit is on site, and completed with relevant information before entering confined space. Ensure Gas Testing is undertaken, and gases are at an allowable level and documented on "confined space entry permit." When gas reading is not at an acceptable level the following procedure is to be adopted: Record the levels on the "confined space entry permit" Ventilate line by: (a) Remove downstream maintenance hole lid, and if possible remove at least one more lid. Force ventilate by means of fans or blowers. (b) Wait 20 minutes then retest and record second reading. (c) If levels are still at an unacceptable level replace all lids. (d) Inform your supervisor immediately. Under no circumstances is any person to enter an Access chamber with an unacceptable gas reading ..." 30 The Policy goes on: ":A gas monitor must be in the maintenance hole, wherever there is a person in the maintenance hole. :A self-rescue breathing set is easily accessible for each person in the maintenance hole. :A safety harness is to be worn when entering maintenance hole, and that it is attached via a lifeline to a fully extended tripod ..." 31 In their evidence Management witnesses, William Garrett and Nicolous Roode, express their disbelief in the applicants' reasons for physical intervention by Mr Finch to dislodge the cutting device which was claimed to have been jammed in its piping track. By the fact of Mr Finch changing a brush-tip, with the use of relevant tools not considered to be ordinarily carried on his person, they consider this to have represented the sole purpose of the manhole entry. It was nothing less than a "short-cut" designed at completing the cutting task earlier than otherwise would have been the case. 32 They consider, also, that the presence of the Sydney Water officer following a resident's complaint as to "odours" would have been the product of their action in using the extractor fan as it would have been drawing fumes from the entire downhill sewer conduit. 33 Originally listed for conciliation on 8 April the matter was adjourned for the parties to confer further and restored to the list for report back and further conciliation on 24 April whereupon it was adjourned again further, for the parties to confer, and advise by 16 May. 34 Two attempts at listing for hearing in August and, later, in October were vacated due to illness and finally proceeded over two days in December 2003 and concluded by final submissions in writing filed in April and June 2004. Regrettably, this decision has been delayed due to a protracted series of illness concerning myself. CONSIDERATION 35 Whatever benefit may have been gained by the applicants adopting a so-called "short-cut" in completing their cutting and brushing process earlier than otherwise would have been the case does not emerge from the evidence for they were scheduled to move on to the next job which, at that time, was occupied by the lining crew. That job, then, would be completed by Messrs Horsnell and Finch. 36 The work was being performed on a Saturday which, I assume – for the evidence does not disclose otherwise – would have attracted overtime penalty rates for time worked as distinct from payment for "job and finish." 37 But, whatever their motives the facts speak for themselves in respect to their non-compliance with their most important obligations to the fundamentals associated with access and entry to the downstream maintenance manhole. 38 Examples of such failure by other employees in the past has, as known to the applicants by their attendance at "toolbox" meetings, led to disciplinary action for the offenders – including the dismissal of two foremen. 39 By their own training and experience both applicants were well-versed in the procedures to be followed even if the cutting device required physical intervention in order for it be freed. Indeed, both men were highly regarded by management for their general competence and application. Mr Horsnell had, in 2002, received an award for "employee of the year." 40 And I have no doubt that management's decision to dismiss was not the product of a rush to judgment. A detailed report was prepared – both for the respondent's CEO and Sydney Water with whom the respondent must maintain trust. 41 The decision to dismiss also, according to the evidence of Mr Garrett, would also represent a considerable inconvenience to the respondent in filling the vacancies since "good cutters are hard to get." 42 However, the applicants' wilful departure from the most basic safety requirements in this matter can only be regarded as very serious indeed and, at the very least, would seem to display a degree of complacency which the employer is entitled, indeed obliged, to regard as unacceptable. 43 Having entered many such confined spaces myself when conducting inspections on Sydney Water sites in respect to other matters, I truly fail to understand how Mr Horsnell may have expected to effectively extract Mr Finch from the maintenance manhole had he been overcome by toxic fumes/inflammable gases. 44 Both men seem to have under-estimated or ignored the potential hazards and, therefore, the need for strict compliance. To do otherwise is to place themselves and, perhaps, others also at unnecessary serious risk. 45 Hardly the subject of error in technical judgment, there can be no reasonable acceptance by an employer – or an employee for that matter – for such complacency and wilful disregard to the strictures that apply. The conduct of Messrs Horsnell and Finch, in my view, can only be described as a breach of multiple proportions and one which, fortunately, did not lead to tragic personal consequences. 46 In consideration of all of the material placed before the Commission, whether or not it is mentioned here, I conclude that the respondent's decision to dismiss either applicant is neither harsh, unreasonable or unjust. Accordingly, the applications are dismissed. R J Patterson 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.