Industrial Relations Commission of New South Wales CITATION : Labor Council of New South Wales and others and Axis Metal Roofing and others [2004] NSWIRComm 53 APPLICANT Labor Council of New South Wales on behalf of the Constuction, Forestry, Mining & Energy Union (New South Wales Branch) and others PARTIES : RESPONDENT Axis Metal Roofing and others FILE NUMBER: IRC 7718 & 8525 of 2001 CORAM: Walton J Vice-President CATCHWORDS : Industrial action - Strike pay - Interpretation of s143 - Legislative intent - Purpose of statutory scheme - Orders or authorisation - s143(4)(a) - "Based on a reasonable concern for health and safety" - Subjective or objective test - Actual risk not required - Reasonable concern arising from lead paint at construction site - Entire site affected - Collective concern - s143(4)(b) - Meaning of expression "only to the particular employees whose health and safety caused that concern" - Burden of proof - Discretionary considerations - Effect of award - Commission recommendations - Milestone incentive payments - Orders to be made. Industrial Arbitration Act 1940 Industrial Relations Act 1991 s218 s219 Industrial Relations Act 1996 s143 Industrial Relations Act 1998 (Cth) s124 Industrial Relations Act 1999 (Qld) s241 LEGISLATION CITED : Interpretation Act 1987 s9(1) Occupational Health and Safety Act 1983 Occupational Health and Safety Act 1984 (WA) s26 Occupational Health and Safety Act 2000 s8 s91 Occupational Health and Safety Regulations 2001 Workplace Relations Act 1996 (Cth) s4(1) Alstom Power Pty Limited v Australian Workers Union [2000] NSWIRComm 180 Australian Meat Industry Employees Union v Australia Meat Holdings Pty Ltd [1996] NSWIRComm 223 Automatic Fire Sprinklers Proprietary Limited & Another v Watson (1946) 72 CLR 435 Briginshaw v Briginshaw (1938) 60 CLR 336 Caltex Australia Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch & others re casual rate of pay [2002] NSWIRComm 1082 Re Equal Remuneration Principle (2000) 97 IR 177 Federated Miscellaneous Workers Union of Australia v Wattyl Queensland Pty Limited (1992) 41 IR 429 CASES CITED : Fox v GIO Australia Ltd (2002) 56 NSWLR 512 Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 160 ALR 489 Malec v JC Hutton Pty Ltd (1990) 169 CLR 438 New South Wales Teachers Federation and TAFE Commission (unreported, Matter No. IRC 111 of 1997, Schmidt J, 26 September 1997) Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Thompson v Goold & Co [1910] AC 409 at 420 Transport Workers Union of Australia, New South Wales Branch v Kwikasair Express, a Division of TNT Australia Pty Limited (unreported, Matter No. IRC 138 of 1994, McKenna C, 2 August 1994) Western Mining Corporation v Australian Workers Union (1990) 70 WAIG 3525 HEARING DATES: 12/12/2002; 12/13/2002; 02/14/2003; 05/13/2003; 05/14/2003; 07/14/2003; 08/21/2004 DATE OF JUDGMENT: 03/31/2004 APPLICANT Mr M Gibian of counsel INSTRUCTED BY: Ms N Carl Labor Council of NSW RESPONDENTS LEGAL REPRESENTATIVES: Mr D Murray The Master Builders' Association of NSW INTERVENOR (Central Sydney Area Health Service) Mr A McInnes of counsel INSTRUCTED BY: Mr S Nettleton Blake Dawson Waldron JUDGMENT: - 166 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Walton J, Vice-President 31 March 2004 Matter No. IRC 7718 of 2001 LABOR COUNCIL OF NEW SOUTH WALES ON BEHALF OF THE CONSTRUCTION, FORESTRY, MINING & ENERGY UNION (NEW SOUTH WALES BRANCH) & ORS v AXIS METAL ROOF & ORS Application for authorisation and order for payment of remuneration and other financial benefits under s143 of the Industrial Relations Act 1996. Matter No. IRC 8525 of 2001 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Leah Management Services Pty Ltd Application by Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union for authorisation and order for payment of remuneration and other financial benefits under s143 of the Industrial Relations Act 1996. DECISION [2004] NSWIRComm 53 INTRODUCTION 1 This matter arises from site-wide industrial action between 14 September 2001 and 3 October 2001 during the stripping out and refurbishment of part of the Concord Repatriation General Hospital ("the site"). The building project was governed by a consent award known as the Concord Repatriation & General Hospital Redevelopment Project Award 2001 ("the award"). The parties to the award are specified in the instrument as: the Labor Council of New South Wales ("the applicant"), the "Construction, Forestry, Mining & Energy Union", the "Communications Electronics and Plumbing Union (Plumbing Division)", the "Australian Manufacturing Workers Union", the "Electrical Trades Union of Australia" and Hansen Yuncken Pty Ltd ("Hansen Yuncken", the Construction Manager for the project). 2 On 26 November 2001, the applicant applied to the Commission on behalf of the Construction, Forestry, Mining & Energy Union New South Wales branch ("the CFMEU"), the Electrical Trades Union New South Wales branch and the Plumbers & Gasfitters Employees Union New South Wales branch for benefits pursuant to s143 of the Industrial Relations Act 1996 ("the Act") in matter IRC 7718/01. There were twenty respondents to this application: Axis Metal Roofing Pty Ltd, Ace Facilities Management Pty Ltd, Allstaff AirConditioning (NSW) Pty Ltd, Automatic Fire Protection Design Pty Ltd, Australian Health Care, Bill Watson Industries Pty Ltd, Cator Pty Ltd, Cemac Building Products Pty Ltd, Consolidated Quality Products Pty Ltd, Contrax Plumbing Pty Ltd, Danlaid Contracting Pty Ltd, De Martin & Gasparini Pty Ltd, Delta Pty Ltd, Fugen Holdings Pty Ltd, G James Glass & Aluminium Pty Ltd, Greyton Pty Ltd, Ralph M Lee Pty Ltd, Savcor Pty Ltd, Schindler Lifts Aust. Pty Ltd and Hansen Yuncken Pty Ltd. The applicant sought an order that the respondents pay wages and milestone incentive payments for the strike period to those employees who stopped work. 3 At the same time, the CFMEU filed similar applications arising from the same dispute against Danlaid Contracting (NSW) Pty Limited, Savcor Pty Limited, Wideform Constructions Pty Limited, Bill Watson Plastering Pty Limited, Fugen Holdings Pty Limited and De Martin & Gasparini Pty Limited: respectively, matters IRC 7263, 7264, 7265, 7266, 7267 and 7268 of 2001. The following respondents were represented by the Master Builders' Association ("MBA") in each proceeding to which they were a party: Axis Metal Roofing Pty Ltd; Bill Watson Industries Pty Ltd; Cator (NSW) Pty Ltd; Fugen Holdings Pty Ltd; Savcor Pty Ltd; Hansen Yuncken Pty Ltd; and Wideform Constructions Pty Ltd. 4 On 30 November 2001, leave was granted for matters 7263, 7264, 7265, 7266, 7267 and 7268 to be discontinued and the Commission directed that the balance of the proceedings would continue in matter number 7718/01. The Commission further granted leave to the CFMEU to join the respondent in matter 7265/01, Wideform Constructions Pty Limited, to matter number 7718/01, subject to any submission from that respondent. No such submission was made. 5 By letter dated 30 November 2001, in accordance with the Commission's direction, the CFMEU notified the unrepresented respondents referred to above of the directions for the hearing of the matter made that day in court, the nature of the claim against them and the timetable for proceedings. During the course of the proceedings the Commission also notified the unrepresented respondents of directions hearings. Other than the respondents represented by the MBA, not one has appeared in these proceedings. 6 On 21 December 2001, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the AMWU") commenced an application against Leah Management Services Pty Ltd arising from the same dispute. This matter, IRC 8525 of 2001, was joined to 7718/01 on 31 January 2002, with liberty to apply to reverse the joinder should there be any residual issue. To date, no such application has been made. Although there was no formal acknowledgement that the Labor Council would from that date represent the AMWU, Ms Carl, Industrial Officer of the Labor Council, advised the Commission before the hearing commenced that the union parties had a common interest, and that the Labor Council would appear together with the AMWU. Mr M Gibian of counsel would represent both entities. From this point, references to the applicant in this judgment should be taken to include the Labor Council, the CFMEU and the AMWU. Leah Management Services Pty Ltd, although notified by the Commission by telephone of two directions hearings did not appear in these proceedings. 7 On 30 July 2002, by consent, the applicant filed a notice of discontinuance against De Martin & Gasparini Pty Limited (which leave is granted) leaving the following respondents in the combined proceedings 7718/01 and 8525/01: Axis Metal Roofing Pty Ltd, Ace Facilities Management Pty Ltd, Allstaff AirConditioning (NSW) Pty Ltd, Automatic Fire Protection Design Pty Ltd, Australian Health Care, Bill Watson Industries Pty Ltd, Cator Pty Ltd, Cemac Building Products Pty Ltd, Consolidated Quality Products Pty Ltd, Contrax Plumbing Pty Ltd, Danlaid Contracting Pty Ltd, Delta Pty Ltd, Fugen Holdings Pty Ltd, G James Glass & Aluminium Pty Ltd, Greyton Pty Ltd, Downer RML Pty Ltd (formerly Ralph M Lee Pty Ltd), Leah Management Services Pty Ltd, Savcor Pty Ltd, Schindler Lifts Aust. Pty Ltd, Wideform Constructions Pty Limited and Hansen Yuncken ("the respondents"). Throughout the proceedings the applicant drew no distinction between the unrepresented respondents and those represented by the MBA and I shall follow the same course, unless stated otherwise, subject to this: references to submissions or forensic enquiry made by or on behalf of the respondents can only refer to those respondents represented by the MBA, no other respondent having appeared. Further the project was managed by Hansen Yuncken. It had an overarching responsibility for industrial and safety issues at the site before and after the industrial action commencing on 14 September 2001 and its employees represented the project's interests during the industrial dispute on and from 14 September. Thus, when I refer to the "management" in this decision I refer to Hansen Yuncken. 8 On 29 July 2002 the Central Sydney Area Health Service ("the Intervenor"), who paid for the project, sought and (without objection) was granted leave to intervene on behalf of the respondents. Each respondent contracted (either directly or as a subcontractor) with the New South Wales Department of Public Works and Services, on behalf of the Intervenor. 9 On the first day of the hearing, 20 September 2002, the applicant filed in court a document titled "Further and Better Particulars of the Concern for Health and Safety". In court, the applicant stated that the reasonable concern existed in relation to the entire site and all workers on the site from 14 September 2001 except for the areas and workers specified in the table extracted below (in whose case the concern ceased on the recorded date): Contractor Area of Site Date from which work safe Contrax Plumbing External 20 September 2001 Schindler Lifts Pty Ltd Public side of hospital 21 September 2001 Cator Pty Ltd, Fugen Pty Ltd and Leah Pty Ltd Loading dock, ground floor east infill and western curtain wall 26 September 2001 Bulk of the remaining contractors Stairways, ground floor and level 1 28 September 2001 10 In addition, the Particulars stated that further health and safety issues discovered on 28 September 2001 gave rise to a reasonable concern for the health and safety of "the remaining workers" for the period 28-29 September 2001. Work resumed on the next available work day: 3 October 2001. 11 The applicant filed an amended application on 5 August 2002 and sought leave to proceed on the basis of that application at the second day of the hearing, 25 September 2002. The Commission noted that the applicant's amended application was filed in relation to matter 7718/01 only. In the absence of any objection by the respondents or the Intervenor, leave was granted to amend the application and it was admitted as an exhibit. The amended application incorporated the following table (described as persons who may be interested in or affected by the application) correlating a number of contractors with various locations on the site: COMPANY NAME DETAILS ACE PAINTERS West infill 1, 2 and 3 AHC West infill 1, 2 and 3 and Level 2 AUTOMATIC FIRE PROTECTION West infill 1 and 3 and level 2 BILL WATSON Levels 4, 5 and 6 CATOR West infill, ground, 1, 2 and 3 Levels 1, 2 and 3 CEMAC West infill, ground, 2 and 3 CONSOLIDATED West infill ground, 1, 2 and 3 and level 2 DANLAID West infill, ground, 1, 2 and 3 Level 2 DOWNER RML Every level and basement and main power room FUGEN East infill, lower ground and ground, basement and level 1 G. JAMES West infill ground, 1, 2, 3 and 4 and level 2 GREYTONS West infill ground, 1, 2, 3 and 4 and level 2 HANSEN YUNCKEN All levels KPD West infill 1, 2, 3 and level 2 LEAH Levels 1, 2, 3, 4 and 5, level8 and plant room OSBUILD Levels 2, 3, 4, 5 and 6 PLANET FIX West infill levels 1, 2 and 3 Levels 1, 2, 3, 4, 5 and 6 SAVCOR Levels 2, 3, 4 and 5 SYDMEC Basement, levels 1, 2, 3 and 4 Level 8 and plant room WALKER & FRAZER Basement, West infill 1, 2, 3, 4 and level 2 WIDEFORM East infill levels 4, 5 and 6 12 Some of the contractors mentioned in this amended application are respondents; some are not. Not all respondents are included. No party raised this anomaly, or suggested that the newly-referred to contractors should be joined as respondents, despite the obvious implication that they may have employed workers who had not been paid as a result of the dispute. 13 On 14 July 2003, in response to submissions by the Intervenor and observations from the Bench that the terms of the orders sought were unclear, (notably the phrase "bulk of the remaining contractors" in the Particulars table), and in the absence of any objection, the applicant was granted leave to file and serve a further amended application. It was filed on 23 July 2003 after the close of oral submissions, and disclosed the following amendment: the phrase "bulk of the remaining contractors" in the table above had been replaced by "remaining contractors" and draft orders referred to "remaining respondents". The persons described in schedule B as being interested in or affected by the application once again corresponded to the respondents in matter 7718/01. There was no mention of the additional contractors named in the previous amended application and nothing in the further amended application changed the fact (alluded to above) that these contractors were outside the scope of any order which may be made in these proceedings. Nature of the Proceedings 14 Broadly speaking, the Commission may make an order pursuant to s143 if the industrial action was based on a reasonable concern for health and safety. Such an order must be restricted to employees whose health or safety caused the concern. In general terms, the applicant said that the industrial action was based on a reasonable concern for health and safety due to the presence of lead paint on the site. The respondents and the Intervenor conceded the presence of lead paint (in some measure) but denied that it could reasonably be regarded as a risk, particularly one affecting all employees across the entire site for the whole period of the industrial action. They also alleged that employees breached provisions of the award relating to safety and dispute resolution. According to the respondents' construction of s143, such breaches would preclude the operation of the section altogether or alternatively warrant the Commission exercising its discretion to refuse the application. 15 The following factors are relevant to the safety issue: the presence of lead dust (created by the reduction of flaking paint or by processes, such as the sanding, grinding or drilling of painted surfaces), the dispersal of any such dust, and the employment of safety practices which could minimise the risk of contamination during exposure to lead dust. The case raises issues of statutory construction, construction of the award and the relationship between the two, as well as complicated factual issues. SUBMISSIONS 16 The parties gave extensive oral and written submissions. Although the parties filed a statement of agreed matters and issues on 19 June 2002, comparatively little of factual significance was agreed. Given the complexity of this matter, I have included a lengthy (but not exhaustive) summary to delineate the issues argued before the Commission. I will attend to the submissions relating to the construction of s143 in more depth in later sections of the judgment. Submissions for the applicant 17 On 14 February 2003, Mr Gibian advised the Commission that written submissions filed by the AMWU on 11 February 2003 would be subsumed in his submissions on behalf of the applicant. During Mr Gibian's submissions, Mr Jenkins with Mr O'Brien appeared on behalf of the AMWU but did not address the Commission. No submissions were put on behalf of the AMWU independently of those put by Mr Gibian. 18 In summary, Mr M Gibian made the following submissions. Construction of Section 143 19 At common law, employees are not generally entitled to be paid for time spent on strike. The discretion conferred by s143(3) was intended to ameliorate this principle in the case of industrial action based on health and safety concerns. Hence it can be described as a beneficial provision. 20 The discretion conferred by s143 is broader than equivalent Commonwealth, West Australian or Queensland provisions which variously refer to "serious" or "imminent" risks or introduce a requirement that the industrial action be proportionate to the concern. It is also unfettered, in contrast to the equivalent provision in the Industrial Relations Act 1991 which required the Commission to consider a number of factors. 21 The stipulation that industrial action must be "based on" a concern for health or safety necessitates a subjective assessment of the motivation for the industrial action. 22 Whether the concern was "reasonable" involves an objective assessment from the perspective of a "reasonable person in the same situation". A concern may be reasonable if it is not fanciful, illogical or irrational. 23 It is not necessary to establish an existing risk: s143 directs attention to whether industrial action was based on a reasonable concern for health and safety, rather than on the existence of a risk or detriment to safety. 24 Imminence of any risk and the proportionality of any action should be considered in the exercise of the Commission's discretion and do not form part of the threshold requirement of s143(4)(a). In this case the risk to the health of workers was imminent and the industrial action was proportionate and justified. 25 Here, the industrial action was based on concerns that employees may be exposed to lead contaminants arising from lead paint on the site. Sequence of events 26 An organiser of the CFMEU, Mr Duff, visited the site on 1 August 2001 and raised a number of safety matters including flaking lead-based paint in the basement. Mr Duff returned on Friday 14 September 2001 to inspect remedial work in the company of management and the safety committee. 27 Mr Duff then asked for relevant paperwork. Union representatives and the safety committee were given for the first time two reports by New Environment Management and Technology Pty Limited ("New Environment"): a Hazardous Materials Survey Report dated 30 August 1999 ("the Report") and a report analysing paint samples dated 21 February 2001 ("the Lead Paint Analysis Report"). 28 Without the Report, and being ignorant of the extent of lead-based paint on the site, neither Mr Duff nor the safety committee had been able to assess the potential hazard. 29 The Report recorded the presence of extensive lead-based paint, recommended its removal and recommended precautionary measures to protect workers. 30 Once the extensive presence of lead-based paint had been established by the Report, flaking paint should have been removed and paint in good condition should have been sealed. Alternatively, the Report recommended the removal of all paint with a specially fitted vacuum cleaner. More than twelve months later, none of the recommendations had been followed. 31 In particular, there was no safe work method statement to contain any lead contaminated dust which may have been produced during the refurbishment. This raised a real concern that the site had been contaminated through the creation and dispersion of lead-contaminated dust. The safe work method statements referred to by the respondents did not meet this charge: that produced by the demolition contractor did not refer to lead-based paint, and the painting contractor's safe work method statement was created after 14 September 2001. 32 Contrary to the respondents' submission, there was no evidence that a large proportion of the paint had been removed between the date of the Report and 14 September 2001. In fact, Mr Jansen, Hansen Yuncken's senior project manager with overall responsibility for the project, gave evidence that no work had been done to remove any lead paint. 33 On 14 September 2001, at approximately midday, a site meeting of all workers was convened. Mr Duff and Ms Peggy Trompf, director of the Workers' Health Centre, spoke to the workers about the Report, particularly in relation to lead-based paint. The workers expressed concern "about lack of information concerning health hazards and risks" and resolved that productive work would stop until a report on the identified risks (especially those relating to lead paint) was provided by the Workers' Health Centre. 34 The workers left the site at approximately 2pm, shortly before normal finishing time. 35 Contrary to the respondents' submission, there was no evidence that anything prevented Hansen Yuncken from engaging Australasian Technical Services Pty Limited ("ATS"), a licensed asbestos removalist and hazardous materials specialist, to commence rectification work immediately. 36 On Monday, 17 September, 2001, two inspectors from the WorkCover Authority visited the site and issued two improvement notices relating to lead-based paint. The absence of prohibition notices cannot be taken as evidence that it would have been safe for work to proceed. The inspectors' attendance was brief and they were not asked to determine whether work should continue. 37 That same day the Workers' Health Centre provided an interim report confirming potential risks and the likelihood of exposure to contaminants. The applicant submitted that if it should fail in its submission that the Report provided the basis for a reasonable concern, the interim report independently gave rise to such reasonable concerns. 38 On 18 September 2001 the parties attended a conciliation conference at the Industrial Relations Commission and agreed upon work to rectify the hazard. 39 There is no evidence to support the respondents' submission that from 18 - 27 September 2001 union delegates prevented work. Delays were due to the absence of industry accreditation and work method statements, both of which were required by the award and both of which were enforced by Mr Hendy, the chairman of the safety committee and an employee of Hansen Yuncken. According to Mr Archibald (employee of Hansen Yuncken, the elected site delegate and a member of the safety committee) and Mr Janson, delays to rectification work were also due to a shortage of specialist rectification employees. 40 Rectification proceeded in the manner agreed by the parties: clearance certificates were required before work recommenced in any area. There was no evidence to support the respondents' submission that Mr Duff would not accept clearance certificates. Although the respondents complained in submissions of impediments to rectification and refusal to work in safe areas, Hansen Yuncken did not raise any such concerns before the Commission on 26 September 2001. 41 Mr Duff inspected the site with the safety committee on 28 September 2001 and identified fresh health and safety concerns which ultimately resulted in the attendance of WorkCover inspectors who issued four prohibition notices and five improvement notices. 42 Prohibition notice 143155, which noted a failure to institute safe work procedures for the treatment of hazardous substances, made the workers particularly concerned that rectification of the original hazard was not proceeding safely. 43 At a safety meeting on 28 September 2001 workers were informed of these fresh concerns whereupon most workers continued the strike that day and the next. Monday 1 October 2001 was a public holiday and the next day was a scheduled industry rest day. Work recommenced on 3 October 2001. Lead as a hazard 44 The concern about exposure to lead contaminants was reasonable. Lead contamination is a well known health risk and it was reasonable for the workers to be concerned about it: the potentially serious effects of lead accumulation may include damage to vital organs and the distortion of red blood cell production. Accumulation is a particular concern for construction workers who may have been exposed to lead throughout their working lives. 45 The lead-based paint at the site was extensive, and, according to Ms Trompf following her inspection on 14 September 2001, a significant proportion was cracking and flaking. The Report noted that dust surrounding flaked paint contained lead. Although a subsequent report by New Environment dated 24 September 2001 described the condition of the painted surfaces as "generally sound to fair", with some areas "poor to very poor", the authors of the subsequent report did not undertake a comprehensive inspection and the evidence of Ms Trompf should be preferred. 46 There is no evidence to support the respondents' contention that large areas of the site were unaffected by lead paint: in fact it is contradicted by Mr Janson's concession in cross-examination that the East and West infills were connected to structures which are covered by existing paintwork. 47 At the time of the strike, lead paint was being disturbed by the removal of cement and painted render, the drilling of walls, and the use of cable chasers. This created a risk of lead contamination through dust creation and dispersal. The evidence of the site manager who commenced at the site on 3 September 2001, Mr Franklin, relied upon by the respondents to dispute this assertion referred to dust-inhibiting measures on chasers only. 48 Precise lead levels could not be known until tests had been conducted and reported. The first report disclosing results of appropriate testing (that of New Environment dated 25 September 2001) was not available until 25 September 2001. The Workers' Health Centre report was provided at about the same time. These reports confirmed the existence of dust with high levels of lead. 49 Safe work methods should have been implemented to protect workers from exposure and prevent the dispersal of contaminated dust. Ms Trompf, Mr Wade Wyatt (the Managing Director of New Environment) and Mr Hendy all agreed that documented safe work methods were paramount to ensure that safe procedures were followed. Without documented procedures, there was a clear risk that even low levels of lead dust would result in high lead levels in blood. 50 The safe work method statement dated 4 October 2001 (introduced following the dispute) required the following measures: barricaded work areas; drop sheets to collect debris; dampening surfaces to prevent dust; regular wiping down and cleaning up; the use of personal protective equipment, personal hygiene practices and waste disposal; and training in and supervision of such measures. Mr Wyatt rejected the respondents' suggestion that this statement was influenced by industrial considerations. 51 It was reasonable for workers to remain concerned (and abstain from working) until appropriate rectification work had been completed and clearance certificates had been issued. Clearance certificates were issued by Airsafe Occupational Health Consultants ("Airsafe") on 19 September 2001 for the amenities; 27 September 2001 for the ground floor and fire stairs; and 28 September for level 1. Further certificates were issued for other areas of the site following the strike. Section 143(4)(b) 52 In response to written submissions for the Intervenor, the applicant attempted to specify the affected workers and the period during which they were affected for the purposes of s143(4)(b) by referring to the following table from its Further Particulars of the Concern for Health and Safety, tendered during oral submissions (as a submission, rather than as evidence): Contractor Area of Site Date from which work safe Contrax Plumbing External 20 September 2001 Schindler Lifts Pty Ltd Public side of hospital 21 September 2001 Cator Pty Ltd, Fugen Pty Ltd and Leah Pty Ltd Loading dock, ground floor east infill and western curtain wall 26 September 2001 Bulk of the remaining contractors Stairways, ground floor and level 1 28 September 2001 53 In response to questions as to the appropriate form of any order in favour of the applicant (given the uncertainty of the phrase "bulk of the remaining contractors", the number of respondents, and the fact that this had changed in the course of the proceedings) during oral submissions, the Commission was referred to the table above. 54 Subsequently, as described earlier in the judgment, the applicant was given leave to file a further amended application which changed the phrase "bulk of the remaining contractors to "remaining contractors" and, in proposed draft orders, referred to "remaining respondents". 55 According to the proposed draft orders the abatement of concern for the contractors referred to in the table subsisted to 28 September 2001 only: all employees were the subject of concern from 28 September 2001 to 2 October 2001, following the prohibition and improvement notices issued by WorkCover on 28 September 2001. Section 143(5): direction to work 56 The respondent did not present any evidence that, during the strike, any areas had been identified as unaffected by the lead paint hazard; what work (if any) was available in such areas; that the necessary materials and equipment were on hand for that work to commence immediately; or that any directions were given to employees to do other work. These matters are entirely within the knowledge of the respondents and it should be inferred that such evidence does not exist. The only evidence of directions given by Hansen Yuncken indicated that employees attending the site from 19 September 2001 were instructed to go home or transferred to other sites because there was no work available. Milestone Incentive Payments 57 The strike took place over two milestone periods, and two Milestone Incentive Payments have been withheld. As remuneration or financial benefits withheld "in respect of time spent engaging in industrial action", the Commission has jurisdiction under s143(3) to order their payment. Section 143(3) should not be read as confining the Commission to the making of an order for money which was otherwise lawfully due. Whether or not the workers complied with the award is a discretionary consideration, and does not preclude jurisdiction. The award provides that if a milestone is not achieved, workers may still receive Milestone Incentive Payments under clause 9.4.4 if the Project Monitoring Committee agrees that extenuating circumstances applied. In this case, the Project Monitoring Committee did not consider whether the dispute constituted an extenuating circumstance. A strike based on genuine health and safety concerns should be so regarded and the Commission should exercise its discretion to order payment. 58 The union parties and workers complied with the award "in a practical manner" and the Commission should not exercise its discretion against the applicant on the basis of any minor infraction. In practice, the procedure described in clause 6.7 was not strictly followed. 59 In particular, the applicant disputes the contention of the respondent and Intervenor that the award was breached in relation to the safety committee's role during the dispute: in fact, the safety committee was "involved" throughout the dispute. The evidence does not support the assertion that by the time the safety committee met on 14 September 2001 the workers had already left the site. 60 The applicant also disputes the respondents' contention that, by leaving the site, the workers breached the award. In fact, the applicant contends that at all times the workers were available for work on the site and under the direction of Hansen Yuncken and their employers. 61 It seems that the award requires workers to remain on site to facilitate rectification work. In this case, Mr Wyatt agreed that rectification work could constitute a hazard if not done properly, and Ms Trompf and Mr Wyatt both stated that the rectification work should have been undertaken by experienced contractors rather than the usual workforce. Submissions for the respondents 62 In summary, Mr D Murray, Industrial Advocate, who appeared on behalf of the MBA, made the following submissions: 63 In addition to being covered by the award, the project was covered by the New South Wales Government's Code of Practice for the Construction Industry. Construction of Section 143 64 The onus is on the applicant to satisfy the Commission that the relevant industrial action was based on a reasonable concern for health and safety. In assessing whether the concern was reasonable, the Commission should impute to the workers the knowledge and views of the safety committee. 65 In addition to the objective assessment of whether the concern was reasonable, s143 also contains a subjective element: did the workers hold a concern? There is not sufficient evidence in this case to establish that there was in fact a concern held by the employees. 66 The respondents did not make any submission that the industrial action may have been based on issues other than health or safety concerns. Sequence of events 67 Before demolition work started, Hansen Yuncken commissioned New Environment to prepare a hazardous materials report in 1999 to identify and manage any risk arising from lead paint or asbestos. New Environment produced the Report. The contractor who stripped the building was advised of the results of the Report and required to prepare and abide by suitable safe work methods for working with dust and asbestos. Although the work method statement did not specifically refer to lead, the dust suppression measures, hygiene, and personal protective equipment referred to were clearly appropriate for lead dust. 68 Mr Hendy knew of the Report, had access to it, and knew that the painting contractor would start in late 2001. New Environment's Lead Paint Analysis Report dated 21 February 2001 was provided to tenderers for the painting contract in or about early September 2001. 69 In August 2001, only a limited amount of work on the site, such as cable chasing, involved lead processes. According to Mr Franklin this was done with wet-sawing equipment to suppress dust. Workers were issued with dust masks, required to use them, and did wear them when carrying out tasks such as drilling. 70 The only other process conducted at that time and described by the applicant as a risk was the use of the Kanga-hammer to cut chunks of plaster off the walls. According to the evidence this would not produce inspirable lead dust. Further, it is not a "lead process" within the terms of the relevant Occupational Health and Safety regulations. 71 By September 2001, a large proportion of the paint identified in the Report had been removed during the stripping out: only limited areas of lead paint remained. Two new structures (the East and West Infills) were under construction a long way from previously painted surfaces. 72 On 1 August 2001, Mr Duff inspected the entire site, starting at the basement. He raised a large number of safety issues, one of which was the possibility of lead-based paint on the basement walls. In the following days the safety committee conducted further inspections to consider the issue of lead paint and its rectification. Although no lead processes were taking place, Hansen Yuncken acceded to Mr Duff's request that the paint in the basement be sealed by the application of new paint. In a meeting on 9 August 2001 the safety committee cleared the issues raised by Mr Duff. The issue of lead paint was not raised again, notwithstanding further inspections by the safety committee, including one on 13 September 2001. 73 On 14 September 2001, Mr Duff inspected the basement at about 7:30am. He then called a stop-work meeting which continued for the remainder of the morning; and, in breach of the code and the award, the workers left the site at approximately midday. 74 Mr Duff then called a meeting with the safety committee and site management where he alleged that there was lead paint in the basement and stairwells and demanded that the Workers' Health Centre inspect and report. Hansen Yuncken had already summoned the Workers' Health Centre and offered to rectify the stairwells, but Mr Duff refused to permit rectification or other work until the Workers' Health Centre provided a report. This was expected to take some days. 75 On 17 September 2001, a few workers attended the site and they left soon afterwards. The WorkCover inspectors who attended that day issued two improvement notices but no prohibition notice. This shows that the inspectors, who were the final arbiters of safety under the award and the code, had determined that it was not necessary to stop work; only to effect some improvements over the following days. In fact, the specialist contractor was ready to rectify the hazard immediately. 76 Following Hansen Yuncken's Notice of Dispute, the matter came before the Commission on 18 September 2001 and the parties committed to agree upon a rectification process. In fact, contrary to undertakings given to the Commission, the unions delayed rectification: the contractors were prevented from starting for days, until union preconditions (such as written evidence of payments into redundancy and superannuation trust funds) were met. Work in areas considered safe by management and the safety committee was not permitted. Industrial action from this date onwards could not be described as being based on reasonable concerns for health and safety: work was not continuing because of the requirement for paperwork. 77 Consequently the dispute reverted to the Commission on 26 September, resulting in a direction that the parties meet with a WorkCover inspector on site and comply with his determination. The next day the inspector, Mr DuBois, agreed that work involving the drilling or grinding of painted surfaces could commence once a work method statement was developed and all other work could commence in areas cleared by New Environment. Mr DuBois accepted the clearance certificates issued by New Environment early on 28 September 2001 in relation to the access stairs, Ground Level and Level 1. 78 However, work did not recommence on 28 September 2001: Mr Duff called a stop-work meeting; indicated that the clearance certificates would not be accepted; and (with Mr Miller of the CFMEU) commenced another site inspection, stopping any recommencement of work. Four prohibition notices and five improvement notices were then issued by Mr DuBois. 79 The prohibition notices related to peripheral activities: the stacking of sand on pallets (unconnected with the project); scaffolding away from the main building (which was in the course of being pulled down); a hoist; and the removal of allegedly hazardous substances (viz, some disposable overalls which had not in fact been used in the removal of allegedly contaminated dust). Work, including rectification work, could have proceeded but did not. 80 On 3 October 2001, WorkCover lifted the prohibition and improvement notices, but work had still not recommenced in the cleared areas when the parties came before the Commission again. Sams DP then issued a direction that work recommence which it finally did later that day. Lead as a hazard 81 The concern about lead contamination on 14 September 2001 was not reasonable. The issue had been dealt with to the apparent satisfaction of the safety committee following Mr Duff's visit of 1 August; taken up with contractors whose work would directly disturb lead paint (demolition contractors and painters); and there was no supervening event (such as a new work area or a new trade starting work) on 14 September 2001 which made exposure to lead paint a fresh concern. In fact, Ms Trompf advised workers at the meeting of the simple measures required to control the risk, such as hand-washing. 82 Mr Jansen's comment that all paint could be treated as lead paint was not an admission and must be seen in the context of the industrial dispute: he was attempting to illustrate that even if all walls were covered in lead paint, there would be no hazard unless the surfaces were heated, ground or sanded. 83 If there is a risk of ingestion or inhalation, exposure to lead is a well-known hazard in the building and construction industry. Lead paint, of itself, does not present a health risk. The risk of ingestion or inhalation depends upon the concentration of lead, how finely divided the material is and the distance from the source. According to the Occupational Health and Safety Regulations 2001, lead processes (processes likely to release finely-divided lead or lead vapour which may be inhaled) include sanding, buffing, or heating surfaces coated with paint containing more than 1% lead. 84 The use of lead processes triggers mandatory controls, and it must be asked whether a concern might reasonably be held in the absence of such processes. 85 At the site on 14 September 2001 there were limited quantities of comparatively coarse flakes of paint, with comparatively low concentrations of lead in underlying paint layers, bound in a waterproof acrylic matrix. 86 According to Mr Wyatt, who inspected the site a number of times, paint flakes would not travel far from their source. Mr Wyatt also gave evidence that if there were processes which produced dust from lead paint, the risk a few metres away from the processes would be insignificant. 87 Mr Wyatt described the hazard as insignificant and Ms Trompf found no evidence of inhalable or inspirable lead. The lead levels in dust samples were generally low. 88 Large parts of the site were unaffected by lead paint, including the new East and West Infill structures and the work outside the building such as the fire service installation in Hospital Road. Any concern in relation to these areas could not be reasonable. 89 Appropriate steps to manage any risk posed by lead paint were no more than those which would apply to similar dust-generating work in the absence of lead paint: the use of dust masks, washing hands before eating, and refraining from smoking in the workplace. These procedures were already in place. The fact that more stringent procedures were adopted in accordance with the work method statement created following the dispute reflects industrial expediency, rather than any shortcoming in the original approach. 90 Even if there had been a reasonable concern on 14 September 2001, it could not be sustained following the inspection by WorkCover on 17 September 2001 and the absence of prohibition notices. 91 The specific and limited issues identified on 28 September 2001 were insufficient to justify a stoppage of all work across the site. Section 143(5): direction to work 92 Section 143(5) is raised squarely in these proceedings. By 14 September, communication between employers and employees was, as a practical matter, communication between Hansen Yuncken and Mr Duff. Mr Jansen specifically requested work to proceed and Mr Duff refused that request. That exchange was repeated on a number of occasions, particularly in the second week, when there was a refusal to work in areas considered to be safe by the safety committee. This contention is supported by the minutes of the safety committee meetings. Milestone Incentive Payments 93 To successfully claim Milestone Incentive Payments the applicant must satisfy the Commission that the conditions for payment under the Award have been met. Otherwise, the Commission does not have jurisdiction to order payment. Alternatively, if the Commission considers that it does have jurisdiction, as a matter of discretion, payment should not be ordered in view of the failure of the employees to comply with the dispute resolution procedures and the conditions precedent for such payments under the award. 94 The unions and the workers failed to comply with dispute resolution procedures and safety procedures under the award. These failures extended over two milestone periods, and consequently the milestone payments for these periods should be forfeit. Submissions for the Intervenor 95 In summary, Mr A McInnes, solicitor (now of counsel) and Mr S Nettleton, solicitor, who appeared on behalf of the Intervenor, made the following submissions. Construction of Section 143 96 The applicant's submission that s143 should be regarded as a beneficial provision is incorrect, as is its related submission that the Commission need not, in the exercise of its discretion, consider issues such as imminence, seriousness, proportionality or justification. In fact, such considerations are in accordance with the text and underlying policy of the Act: to ensure the prevention or early resolution of industrial disputes. In this scheme, the prohibition against strike pay is an important deterrent which should be lifted only where a reasonable concern for health and safety can be shown. As such, s143(4) should be strictly confined and the discretion should be exercised accordingly. 97 Sections 143(4)(a) and (b) are thresholds which must be crossed before the Commission's discretion is engaged. The onus to satisfy the Commission is placed squarely on the applicant. 98 The word "reasonable" requires a consideration of whether the industrial action was a reasonable response to the concern for health and safety. Otherwise, the word "reasonable" would have very little work to do. This imports the idea that there must be something about the concern that is immediate or urgent or imminent such that industrial action is warranted. The less imminent or urgent a concern, the less able the applicant would be to argue that the concern was reasonable. 99 A "reasonable concern for health and safety" can only be a concern which is both reasonably held and which provides a reasonable or rational basis for the commencement of industrial action. Further, the concern must exist at the commencement and throughout the course of the industrial action. 100 When industrial action is taken in clear breach of an award provision specifically designed to deal with concerns about safety, that breach raises serious doubts about whether any concern for health and safety could be described as reasonable. 101 Acceptance of the applicant's submissions that (a) contaminant had been dispersed throughout the site, and (b) that only appropriate testing could determine the extent of the hazard would mean acceptance of the proposition that the applicant would have been entitled to maintain the strike until the respondents could prove to the applicant that there was no risk. Such an inversion of the onus would be inconsistent with the scheme of s143. Sequence of events 102 The applicant's significant reliance on the Report is misplaced. Firstly, following the Report, demolition work (in accordance with safe working procedures) had cleared much of the paint referred to. Secondly, the chairman of the safety committee, Mr Hendy, was aware that the Report existed. He intended to review it and to require a safe work method statement from relevant contractors before the commencement of any work he believed could give rise to a lead hazard. 103 On Mr Hendy's evidence, Mr Duff had been aware of lead-based paint at the site before 14 September 2001 and that Mr Hendy had dealt with issues concerning lead based paint. Given Mr Duff's central role in the dispute on 14 September 2001, and the evidence of his preceding discussions with Mr Hendy on the subject of lead paint (with opportunities to raise the very issues raised on 14 September), it cannot be said that on 14 September 2001 there was a reasonable concern for health and safety due to lead paint. 104 Further, there were well-known health and safety procedures on site which were not followed. Concerned workers should have notified the safety committee (of which Mr Duff was not a member) so that it could review the matter, inspect the site, and decide what should be done. The fact that this procedure was not followed indicates that there was not a reasonable concern for health and safety. 105 The only evidence relied upon by the applicant to establish that the strike was based on a reasonable concern for health and safety is that of one employee, Mr Archibald, who was a union delegate. Most of his evidence is hearsay. In fact, the Intervenor suggested that one may infer from the evidence of Mr Hendy (who described the sequence of events) that this dispute was more to do with control of the site, than with safety. This oblique suggestion of a possible alternative motivation for the industrial action was never developed by the Intervenor into a direct submission that s143 did not apply because the industrial action was not based on a reasonable concern for health or safety, but rather an ulterior purpose held by union officials or members. 106 The applicant's allegation that the workers had lost confidence in the Construction Manager to appropriately manage safety on the site of the project, and that this gave rise to a reasonable concern for health and safety, is contrary to the evidence. 107 It was not open to the unions and relevant employees to form the view, reasonably, that work should stop, when WorkCover inspectors had attended the site on 17 September and did not issue any prohibition notice. 108 If there really had been a reasonable concern, the employees or unions should have notified the Intervenor (given that substantial parts of the site continued to function as a hospital) so that it could have taken steps to safeguard its staff and patients. They did not, and it can be inferred that the applicant did not genuinely hold any such view. 109 The Commission should reject the applicant's submission that the matters identified by WorkCover inspectors on 28 September 2001 gave rise to a reasonable concern for health and safety. None of them can be regarded as affecting the whole of the site, and the fact that no sub-group of employees has been identified means that the applicant has failed to satisfy s143(4)(b). The notice relating to disposal of hazardous substances was not, contrary to the suggestion made by the applicant, connected to any hazard arising from lead paint. The notice related to a pair of overalls which, according to the evidence, had been worn by the hoist driver and had not been exposed to paint dust. 110 The safe working method statement of 4 October 2001 was developed "under duress" in a conciliation, and the site manager, Mr Franklin, gave evidence that, in essence, there was no change to the way in which work was done following the dispute on 14 September 2001. Lead as a hazard 111 Save for the submission that the whole site was contaminated by dispersal of fine lead dust (a critical part of the applicant's case, given that the application is on behalf of all workers), work which had been completed before 14 September 2001 was not capable of giving rise to a reasonable concern for health and safety as at 14 September 2001. 112 Both Mr Wyatt and Ms Trompf gave evidence that the risk of ingesting lead, which was already low (the lead being neither finely divided nor found in relatively high concentrations), could be reduced even further by taking simple and basic hygiene precautions. This evidence, combined with the applicant's concession that "lead-contaminated dust is a well known hazard on building sites" negates the claim that industrial action was a reasonable response to the existence of lead-based paint. Section 143(4)(b) 113 Section 143(4)(b) is designed to focus the inquiry on a smaller group of employees in respect of whom there may be a reasonable concern for health and safety where those employees form part of a larger group of employees taking industrial action. 114 There has been no serious attempt by the applicant to meet the requirements of s143(4)(b), and its contention that the concern applied to all of the workers must fail. If the Commission cannot be satisfied that it can identify particular employees as required by s143(4)(b), the whole of the application must fail. 115 The application, as framed, means that the applicant must satisfy the Commission that, in respect of all employees of the respondents and for the entire period in question, the relevant industrial action was based on reasonable concerns for health and safety alleged by the applicant to have existed. 116 Although the applicant had attempted to narrow the claim by reference to the table in its Further Particulars of the Concern for Health and Safety, there was no evidence to indicate that employees of a particular contractor were working in a particular area that was subject to a particular risk for a particular period of time. Section 143(5): direction to work 117 Clause 6.7.1 of the award (an award made by consent) provided that: If a safety problem has been identified by the Safety Committee, work shall cease only in areas immediately affected by a reasonable concern as to the existence of an imminent risk to health and safety. Work in other areas shall continue without interruption and all employees shall remain on site . 118 This clause was specifically designed to ensure that safety disputes could be dealt with effectively and efficiently. In breach of the award, the employees were not on site to assist with rectification work which the applicant now says was required. The applicant's submission that there was no failure by workers to be available for work cannot be accepted in circumstances where the employers notified the Commission of an industrial dispute, seeking an order that the workers return to work. There was work which could have been performed had the employees not been on strike. 119 The Safety Committee continued to meet throughout the strike and posted up on the notice board minutes indicating areas of the site where work was available. Milestone Incentive Payments 120 The Commission should consider, in the exercise of its discretion, and particularly in relation to the milestone incentive payments, the breaches of the award by the unions and employees. 121 Mr Jansen gave evidence that the milestone incentive payments were withheld because there had been a breach of the award, not because of the prohibition on strike pay under s143. Under the award, milestone incentive payments are conditional upon strict adherence by the unions and employees to provisions in the award relating to safety and dispute resolution. Accordingly, they are not payments in respect of time spent by employees engaging in industrial action and the Commission does not have power to order payment under s143. Alternatively, because the award provisions were breached, regardless of s143, there is no entitlement under the award to the milestone incentive payments. As a matter of discretion, the Commission should not order their payment. 122 The applicant raised the issue of "extenuating circumstances" in relation to the milestone incentive payments. Such circumstances relate only to whether the relevant milestone periods/times are met, not to the precondition of strict compliance with the award. LEGAL FRAMEWORK 123 Section 143 of the Act states: SECTION 143 STRIKE PAY PROHIBITED 143(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. 143(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. 143(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. 143(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. 143(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 workplace or to another suitable workplace, and (b) to do other appropriate and available work there if required. 143(6) In this section, employer includes a person acting on behalf of the employer. 124 The award contains the following relevant provisions: 4.2 Objectives The objectives of this Award are: … · To assist in completing the Project ahead of time and in accordance with the Construction Milestones set at Clause 9 of this Award; … · To provide the foundations for a cooperative and non-adversarial approach to all industrial relations issues; … · To ensure that all Parties ensure a safe workplace on the Project [sic] that safety concerns on the Project are managed in an effective and constructive manner; … · To provide an effective means for managing industrial and safety disputes without disruption to the Project. · To gain a commitment from all the parties to minimise disruption to the Hospital during the construction period. … 6. HEALTH, SAFETY & ENVIRONMENTAL REQUIREMENTS … 6.7 Safety Procedures 6.7.1 The Parties to this Award agree to do all things practicable to maintain the site in a safe condition. If a safety problem has been identified by the safety committee, work shall cease only in areas immediately affected by a reasonable concern as to the existence of an imminent risk to health and safety. Work in other areas shall continue without interruption, and all employees shall remain available on site to carry out work in areas not immediately affected and/or to carry out rectification works. Priority will be given to rectifying unsafe access areas. If any access areas are unsafe, employees will use an alternative safe access. … 6.7.3 Should a safety dispute arise over whether one or more work areas are safe or not, the Parties agree that the following procedures shall apply. (a) Employees shall not leave the Project unless directed to do so in the event of an emergency; (b) Immediate inspection of the affected work areas will be carried out by both the Construction Manager and the safety committee [sic]; (c) The Safety Committee in conjunction with the Construction Manager will select the sequence of inspections of areas. (d) The inspection shall identify the safety rectification work required in each area; (e) As safety rectification work is agreed for each area, all relevant Employees shall immediately commence such rectification works; (f) Upon verification that such rectification has been completed, normal work will resume progressively in each area; (g) Should any dispute arise as [sic] the rectification work required to any area, a party may call upon a WorkCover inspector. Where a WorkCover inspector is called in the parties agree to be bound by the determination of that inspector. … 9. COMPLETION OF PROJECT AND MILESTONE INCENTIVE PAYMENTS … 9.2 The parties to this Award agree that Milestone Incentive Payments shall be made provided that the Construction Milestones are met. The parties recognise that this link is aimed at providing an incentive for improved performance and the reduction of any barriers to the achievement of the Construction Milestones. The parties intend that this will ultimately provide a certainty in the programme of construction to the benefit of the Client. … 9.4.2 Payment of the Milestone Incentive Payments shall be conditional upon and linked to the achievement of Construction Milestones established and referred to above at, or prior to, the Completion Dates specified above. It shall further be conditional upon strict adherence by the Unions and Employees to the provisions of this Award including, but not limited to, those provisions relating to safety, inclement weather and resolution of disputes. … 9.4.4 In the event that a Milestone is not achieved by the Completion Date and there are no extenuating circumstance(s), the Project Monitoring Committee shall meet to discuss the reasons for failure to meet the Milestone by the Completion Date. No payment will be made against achievement of that Milestone, unless the Project Monitoring Committee agree that extenuating circumstances apply. Such discussions shall aim to produce recommendations or suggestions for changes to work and/or management practices that may ensure that all future Milestones are met by the specified Completion Date/s. If in the following period(s) work catches up to allow achievement of the subsequent Milestone(s), then a payment shall be made and shall include payment(s) for the preceding Milestone(s). … 12. DISPUTE SETTLING PROCEDURE 12.1 Project Disputes Procedure The Parties shall use their best endeavours to prevent disputes arising on the Project. In the event that disputes do arise, the following procedures will apply: 12.1.1 Any matter of concern to an employee or group of employees shall be at the first instance raised with their supervisor by the employee(s) concerned or their union delegate. The employee/s concerned and the supervisor shall make all reasonable efforts to discuss the matter and attempt to resolve the issue/s in dispute. 12.1.2 Where a problem persists, Employers shall recognise the rights of an elected union delegate to take up the matter with the employer's Site Representative and a representative of the Construction Manager. The delegate/s, the employer representative and the Construction Manager's representative shall make all reasonable efforts to discuss and resolve the matter/s in dispute. 12.1.3 Where the issue/s in dispute cannot be resolved after the above procedures have been followed, the matter shall be referred to the relevant union official, employer representative and Construction Manager representative, all of whom shall make all reasonable efforts to discuss and resolve the matter/s in dispute. 12.1.4 Where the Parties fail to resolve the dispute in accordance with the above, the Parties reserve the right to refer the matter to the Industrial Relations Commission for resolution. 12.1.5 Whilst the above procedure is being affected, work shall continue normally in accordance with the status quo as established by the award, this Award or the relevant enterprise agreement. 12.1.6 No party shall be prejudiced as to final settlement by the continuance of work in accordance with this clause. Legal principles 125 The principal legal issues arising for determination in this matter can be broadly summarised as follows: 1 What is the nature and purpose of the statutory scheme contemplated by s143 of the Act? 2 How are the words "based on a reasonable concern for health or safety" in s143(4)(a) to be interpreted? 3 How are the words "only to the particular employees whose health or safety caused that concern" in s143(4)(b) to be interpreted? 126 I turn then to a consideration of each of these questions, including a consideration of any subsidiary questions that either arose from the principal questions or which were raised by one or more of the parties in the course of the proceedings. The submissions of the parties going to each of these issues are set out earlier, however where necessary or appropriate, they are summarised again in the following discussion. What is the nature and purpose of the statutory scheme? 127 In my view, the clear and evident purpose of s143 is to prohibit remuneration or other financial benefits being afforded employees in respect of any period that those employees are engaged in industrial action unless such payments are authorised or ordered pursuant to the section. 128 The purpose of s143 is evident from the construction of the section, which not only proscribes the making of payments to employees in respect of periods of industrial action, but renders it an offence to do so. The section, by establishing the liability for such an offence at the source (that is, the employer), acts as a deterrent to payments to employees for periods of industrial action by preventing employers from making any such payments unless authorised to do so. 129 Section 143 must also be construed having regard to the statute as a whole. I note the following passage from the judgment of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited recently in Fox v GIO Australia Ltd (2002) 56 NSWLR 512 at 523: [69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. (See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ.) The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". 130 In this respect, I note that s143 falls within Chapter 3 of the Act, which is devoted to the resolution of industrial disputes. By prohibiting payments to employees during periods of industrial action, s143 is consistent with, and reinforces, the dispute resolution processes established by the Act, which favour more orderly forms of dispute resolution, by conciliation and arbitration, over industrial action (which is not to say that the Act precludes the taking of industrial action in appropriate circumstances). This construction is also consistent with the overall objects of the Act, which are set out in s3 of the Act and include the following: (a) to provide a framework for the conduct of industrial relations that is fair and just, … (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, … (g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality, … 131 The purpose of the section is illuminated by the legislative history of the provision. The legislative prohibition, such as it is, on payments to employees in respect of periods of industrial action was introduced in New South Wales by ss218 and 219 of the 1991 Act, fundamentally altering the law as it was under the Industrial Arbitration Act 1940. Those provisions were in the following terms: 218 PAYMENTS OF WAGES ETC. IN CONNECTION WITH INDUSTRIAL ACTION PROHIBITED A person who pays wages or provides benefits, or both, in respect of time spent in engaging in industrial action, is guilty of an offence unless payment of the wages or provision of the benefit is authorised by the Commission under this Part. Maximum penalty: 100 penalty units 219 COMMISSION MAY AUTHORISE WAGES OR BENEFITS (1) [Authorised payment] The Commission may, on the application of an industrial organisation of employees, authorise the payment of wages or the provision of a benefit that would otherwise constitute an offence under this Part. (2) [Employer to pay] The Commission may authorise an employer to pay wages or provide a benefit: (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 the reasonable concern. (3) [Non-compliance with direction] For the purposes of subsection (2), 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 work place; and (b) to do other appropriate and available work there if required. (4) [Commission to regard] In considering whether or not to act under subsection (1), the Commission is to have regard to: (a) the beliefs reasonably and genuinely held by the employees; and (b) the actions of the employees; and (c) the actions of the employer; and (d) a report assessing the existence or otherwise of a hazard to health or safety by an inspector appointed by the purposes of the Factories, Shops and Industries Act 1962 or by an inspector appointed for the purposes of another Act, being an inspector whose functions relate to workplace safety. 132 The Explanatory Note to the Industrial Relations Bill 1991 stated that: The Part also prohibits (except with the Commission's authorisation payment of wages or benefits in respect of time spent engaging in industrial action. 133 The Minister for Industrial Relations, in his Second Reading Speech, added: Further, the bill prohibits the payment of wages or benefits in respect of time spent engaging in industrial action - that is, strike pay - and attaches a monetary penalty to such an offence, unless such payment is authorised by the commission. 134 It is noted that the Explanatory Note to the Industrial Relations Bill 1996 included the following statement regarding Part 4: The Part contains miscellaneous provisions, including continuation of the prohibition on employers providing strike pay. 135 The applicant agreed with the proposition that the purpose of s143(1) is to prevent payments to employees in respect of periods of industrial action, and as earlier noted, it submitted that the Act thereby reinforced what was said to be the common law position. The applicant submitted that "the section is beneficial in its effect by permitting the Commission to order the payment of workers and breaking from the longstanding common law principle that employees have no entitlement to payment in respect of time they are on strike". 136 The parties agreed in their submissions that there is no entitlement at common law to payment in respect of any period that an employee is engaged in industrial action. The principle establishing a link between the entitlement to remuneration and the performance of work can be found in the classic statement of Dixon J in Automatic Fire Sprinklers Proprietary Limited & Another v Watson (1946) 72 CLR 435 at 465: A contract for the establishment of the relation of master and servant falls into the same general category of agreements to pay in respect of the consideration when and so often as it is executed, and is, therefore, commonly understood as involving no liability for wages or salary unless earned by service , even though the failure to serve is a consequence of the master's wrongful act. It is, of course, possible for the parties to make a contract for the payment of periodical sums by the master to the servant independently of his service. ... But, to say the least, it is not usual. The common understanding of a contract of employment at wages or salary periodically payable is that it is the service that earns the remuneration and even a wrongful discharge from the service means that wages or salary cannot be earned however ready and willing the employee may be to serve and however much he stand by his contract and decline to treat it as discharged by breach. [Emphasis added] 137 There can be little doubt that an employee is not entitled to payment under a contract of employment if the employee fully refuses to work during a strike. Support for that proposition can be found in Csomore & Another v Public Service Board of New South Wales (1986) 10 NSWLR 587 at 595: Unless an employer waives the usual requirement of a contract of employment that an employee perform the full range of work properly assigned to him or unless the award under which the employee works makes a contrary provision, payment of wages is conditional upon performance by the employee of the full range of work assigned or, at least, a readiness and willingness to do so. 138 However, the principle in Automatic Fire Sprinklers is not without controversy. What is commonly described as a principle of "no work no pay" does not recognise a myriad of possible exceptions (some of which are described in Csomore), for instance, where an industrial award makes specific provision for the exclusive circumstances in which an employer may withhold remuneration (thereby ousting the common law), where there has been part performance of an employee's duties, or where a contractual arrangement contemplates the payment of remuneration notwithstanding selective work bans or limitations. I note in this respect that Creighton, Ford & Mitchell in their text Labour Law (The Law Book Company Limited, 2nd Edition, 1993) wrote (at [7.12]) that "although it is highly unlikely that an employee could establish a contractual entitlement to wages in respect of a period when on strike, it is not unknown for employees to establish such an entitlement as a matter of industrial practice. This is most likely to occur in situations where the strike related to a bona fide health and safety issue, or where the employer is adjudged deliberately to have provoked a dispute". 139 However, in my view, it is simplistic to contend, as the applicant did, that the common law exclusion of payments to employees who fail to perform work under a contract warrants a conclusion that s143 is ameliorative or beneficial in nature. On the contrary, it provides a substantial restriction on pay during industrial action, subject to specific exceptions. There is no general common law limitation on the payment of remuneration to an employee by an employer during any period that the employee is engaged in industrial action. Nor was there any statutory impediment, prior to the introduction of ss218 and 219 of the Industrial Relations Act 1991 ("the 1991 Act") precluding the exercise by the former Industrial Commission of New South Wales (under the Industrial Arbitration Act 1940) from making, in the exercise of its discretion, an award or order providing for such payments. In such circumstances, the introduction of ss218 and 219 in the 1991 Act (as amended by s143) significantly altered the industrial landscape by restricting the capacity of an employer to conclude an agreement to pay employees during periods of industrial action, and confining the powers of an industrial tribunal to award or order such payments. When seen in this way, the provision is principally directed to the strict confinement of payments to employees engaged in industrial action. 140 I note that the applicant relied, in this respect, on the decision of Munro J in Federated Miscellaneous Workers Union of Australia v Wattyl Queensland Pty Limited (1992) 41 IR 429 in support of its contention that "the purpose of the discretion conferred by s143(3) would appear to be to ameliorate the unfairness of this principle in circumstances in which industrial action is based on health and safety concerns". 141 The decision in Wattyl relates to a provision of the then Industrial Relations Act 1988 (Cth) which imposed restrictions on payments to employees in relation to periods of industrial action. Section 124 of that Act was in the following terms: Limitations on powers of Commission relating to payments in relation to periods of industrial action 124(1) Subject to this section, the Commission is not empowered to deal with a claim for the making of a payment to employees in relation to a period, whether before or after the making of the claim, or before or after the commencement of this section, during which those employees engaged, or engage, in industrial action. (2) Subsection (1) does not prevent the Commission dealing with a claim for the making of a payment to employees in relation to a period before the making of the claim but after the commencement of this section during which those employees were engaged in industrial action where the Commission is satisfied that the industrial action was justified by a concern on the part of the employees: (a) that was reasonable; (b) that was about their health or safety; and (c) that arose in relation to matters within the reasonable responsibility of the employer concerned. (3) Where the Commission is satisfied as to the matter mentioned in subsection (2) in relation to some, but not all, of the employees, the Commission is only empowered to deal with so much of the claim as relates to the employees in relation to whom the Commission is satisfied. 21. The applicant's submission refers to the following passage in Wattyl (at 430): The function of s124(1) of the Act is to exclude the Commission from exercising powers otherwise available to deal with claims relating to payments in relation to periods of industrial action. A limitation on the use of the Commission's powers is indistinguishable from and in legal effect the same as an exclusion from the Commission's jurisdiction. Subsection (2) limits the exclusion from jurisdiction by permitting the Commission to exercise whatever powers would otherwise be available to deal with claims relating to periods of "justified" industrial action. 142 In my view, the decision in Wattyl does not support the proposition contended by the applicant that the discretion in s143(3) is available to ameliorate the harshness of s143(1). Rather, the passage cited by the applicant goes to jurisdiction: the case establishing that, inter alia, the satisfaction of the criteria in s124(2) is a necessary condition precedent to the exercise of power under that section. In my view, whilst the Industrial Relations Act 1988 (Cth) (as amended by the Workplace Relations Act 1996 (Cth)) may assist in the interpretation of s143 (such as the words "reasonable concern"), they shed little light on the nature and purpose of that section. 143 In my view, the correct approach to the interpretation of s143 is that, whilst prohibiting the payment of remuneration to employees in respect of periods during which those employees were engaged in industrial action (and thereby reinforcing the preference for methods of dispute resolution other than industrial action), the legislature has recognised the significance of occupational health and safety in the workplace, and established a limited exception to the prohibition in s143 to encompass industrial action that is "based on a reasonable concern for health or safety" (noting that there are other limitations in the section). Such an approach is appropriate in the context of changes to the regulation of occupational health and safety in New South Wales following the introduction of the Occupational Health and Safety Act 1983 and the significant prospect of social reform brought about by the legislation. In light of the increased attention given to occupational health and safety, the appearance of an exception of this kind in ss218 and 219 in the 1991 Act is unsurprising. 144 The Intervenor submitted that the discretion conferred by s143(4) to authorise and/or order payment in respect of any period an employee was engaged in industrial action provided only a limited exception to the penalty provision in s143(1), and that "the Commission ought to confine very strictly the class of occupational health and safety matters in which industrial action will be held to be justified, and … it is necessary to exercise the discretion in a manner which has the effect of doing so". I agree. In my view, whilst recognising the importance of occupational health and safety in the workplace, the legislature did intend to strictly confine the circumstances in which the Commission may exercise a discretion to authorise or order a payment to employees, to only those particular circumstances contemplated by s143(4). 145 The parties presented different views as to the relevance of certain adjectival limitations on the word "reasonable". The applicant submitted that the Commission need only be satisfied that the concern for health or safety be reasonable, and that there was no requirement: 1. that the concern relate to "an imminent risk" to health or safety (as in s4(1) of the Workplace Relations Act 1996 (Cth) and s241 of the Industrial Relations Act 1999 (Qld)); 2. that the concern relate to a "risk of imminent and serious injury or imminent and serious harm" to an employee's health (as in s26 of the Occupational Safety and Health Act 1984 (WA)); or 3. that any industrial action be a "justified" response to the concern for health or safety (as in s124(2) of the Industrial Relations Act 1988 (Cth)). 146 The Intervenor, however, submitted that "the Commission would be acting in accordance with both the text, and the underlying policy, of s143, by considering whether or not the concern for health and safety was "imminent" or "serious" or "proportionate" or "justified". 147 I accept the submissions of the applicant in this regard. There is no warrant, in my view, to create any additional adjectival limitations to the word "reasonable" beyond the limitations prescribed by the words of s143(4). Such an approach is consistent with accepted principles of statutory interpretation. As was clearly stated in Thompson v Goold & Co [1910] AC 409 at 420: "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do". 148 That being said, I also accept the submission of the applicant that concepts such as "imminent", "serious", "proportionate" and "justified" will be relevant to the exercise of the discretion of the Commission under s143. However, there is no warrant, in my view, in either the language or purpose of the provision, to impose further confines on the exercise of that discretion by limiting the class or nature of health or safety concerns otherwise encompassed by s143(4). 149 The applicant presented its submissions as to the limitations on the Commission's jurisdiction under s143 in a number of subtly different ways. Initially, the applicant submitted that "the central requirement imposed by section 143 is that the Commission may authorise or order the payment of remuneration or financial benefits if the industrial action was based on a reasonable concern for health and safety", and that "the only restriction upon that discretion is that the Commission may order the payment of remuneration or other financial benefits only to those employees whose health and safety caused that concern". 150 Subsequently, the applicant submitted that s143(4) operates to impose two limitations on the Commission's discretion to authorise or order payments. Firstly, the Commission must be satisfied that the industrial action was based on a reasonable concern for health and safety. This limitation, according to the applicant, operates as a condition precedent. Secondly, the Commission's discretion is limited to those employees whose health and safety was the cause of the concern. 151 How then do the words of limitation in s143(4) operate? The Intervenor submitted (which submissions were adopted by the Respondents) that the Commission's discretion to award payments that would otherwise offend the penalty provision in s143(1) is exercisable provided that each of two requirements are met, being the requirements set out in s143(4)(a) and (b) respectively and further that "It is not correct to submit that sections [143(4)(a) and 143(4)(b)] are limitations on the Commission's discretion. Rather, they are thresholds which must be crossed before the discretion can be exercised". 152 Broadly speaking, I accept the submissions of the Intervenor as to the operation of s143(a) and (b) (and the submissions of the applicant as to s143(a)). However, in my view, these provisions are restraints on the power to exercise any discretion otherwise reposing in the Commission under s143(4). I do not find it helpful, therefore, to describe those jurisdictional limitations as being "threshold", "prerequisite" or "conditions precedent". Certainly the legislature was seeking in s143(4) to confine the circumstances in which relief may be given, however the extent to which those circumstances are confined, particularly by s143(4)(b), may be assessed either at the threshold or alternatively at some later stage of the proceedings. 153 I note that there was no dispute that once the requirements of s143(4) have been met, the Commission has a discretion (save for s143(5)) to consider whether, in the circumstances of a particular matter, any authorisation or order for payment should be made. These contentions were, in my view, correct. The word "may" in s143(4) is plainly discretionary in the context of this section. Section 9(1) of the Interpretation Act 1987 states: (1) In any Act or instrument, the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion. 154 The remaining issues go to the extent of Commission's jurisdiction to exercise its discretion pursuant to s143(4) to authorise and/or order payments to employees in respect of periods of industrial action. I turn then to those questions. Section 143(4)(a) - "based on a reasonable concern for health or safety" 155 The second question for determination is how the words "based on a reasonable concern for health or safety" limit the Commission's jurisdiction. 156 Subsection (4)(a) can be reduced to three essential elements: 1. there must be industrial action; 2. the industrial action must be based on a concern for health or safety; and 3. the concern must be reasonably held. 157 As to the first element, "industrial action" is defined by the Act as follows: industrial action means a strike by employees or a lock-out by an employer, and includes: (a) a practice relating to the performance of work, adopted in connection with an industrial dispute, that restricts, limits or delays the performance of work, or (b) a ban, limitation or restriction affecting the performance of work, or the offering or acceptance of work, that is adopted in connection with an industrial dispute, or (c) any failure or refusal in connection with an industrial dispute to attend for work or to perform work, but does not include any action taken by employees with the agreement of their employer or any action taken by employers with the agreement of their employees. 158 The existence or otherwise of industrial action will be a question of fact, and is the least troublesome aspect of this provision. 159 The second element requires that the relevant industrial action be "based on a concern for health or safety". 160 The issue that is raised is whether these words require that there be a subjective element to any assessment under s143(4)(a). The applicant submitted that the words "based on" involve a subjective assessment of the motivation for the industrial action, inferred from surrounding events. No submissions in this regard were made by the Intervenor or the respondent. The applicant relied on the decision of McKenna C in Transport Workers Union of Australia, New South Wales Branch v Kwikasair Express, a Division of TNT Australia Pty Limited (unreported, IRC 138 of 1994, McKenna C, 2 August 1994) (at 14) in support of that contention. McKenna C recited (without necessarily accepting) the submission put by the employer in that matter: "the Commission cannot be satisfied on the evidence that the industrial action was based on beliefs reasonably and genuinely held about fears for health or safety. On the contrary, the evidence leads to the conclusion that the industrial action was a collective gesture designed "to teach the company a lesson" as a protest about alleged infractions concerning dangerous goods and, perhaps, Kwikasair's own rules". 161 However, I am not satisfied that McKenna C reached a conclusion as to subjectivity as contended by the applicant, stating rather that "I do not consider it necessary to determine what "test" should be applied. Plainly, each case turns on its own facts". 162 The question of subjectivity was also discussed in Caltex Australia Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch & others re casual rate of pay [2002] NSWIRComm 1082 (14 November 2002). In that matter, Connor C considered the subjective nature of the test in s143(4)(a) and held, (at 10): I consider that Mr Morrison summarised the situation correctly when he describes the test that I am obliged to apply as both subjective and objective. The test is subjective in that I must place myself in the position of the employees in determining whether or not they were genuine in their fears on safety grounds. and then at 11: For a number of reasons, I do not believe that there is justification to pay the employees for any time lost on Wednesday, 13 February, 2002, Thursday, 14 February, 2002 and Friday, 15 February, 2002. On those days I do not consider that their refusal of work was "reasonable" in terms of s143(4)(a). Firstly, there was nothing to really support the assertion that there had been any instances of H2S inhalation at that time. Secondly, the advice the employees received from Mr Bond and the members of the safety committee on Wednesday, 13 February, 2002 should have allayed any concerns which the employees felt. Thirdly, the regular Caltex maintenance crews remained at work at that time, confirming in their mind that they considered the site safe. Fourthly, I am satisfied from the evidence that Mr Lee offered the employees alternative work away from the DHTU or the SRU if they continued to have concern over the safety of those two units, bringing into play the provisions of s143(5). More importantly, the cessation of work on those three days is, in my opinion, so linked with the claims of an industrial character that were being pressed at that time by the AMWU, the CFMEU and the AWU that it is impossible for me to distinguish where the industrial matters end and the safety concerns start. This is one particular omelette that it is not really possible for me to unscramble now. 163 The words "based on" were considered by Weinberg J in Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission and Another (1998) 160 ALR 489 at 504: The phrase "based on" where it appears in a statute is obviously capable of bearing different shades of meaning. It can, of course, be understood as denoting a relationship of cause and effect, either in the traditional "but for" sense or perhaps in a narrower "substantial and operating cause". And again at 509: There is, however, nothing "unreasonable or unnatural" in my view, in treating as encompassed within the phrase "based on" the meaning of "by reference to", rather than the more limited meaning of "by reason of". As I indicated earlier, it is obvious that the phrase "based on" is capable of bearing different shades of meaning. It should not, in my opinion, be read in a manner which would tend to defeat the objectives which underlie the statute. Those objectives are to be ascertained from its nature, its scope and its terms. 164 In my view, the words "based on" in the context of s143(4)(a) mean "by reason of". This interpretation is consistent with the purpose of the section, as earlier discussed, and sits comfortably with the legislature's desire to confine the scope of the exception to the prohibition on payments to employees for periods of industrial action by connecting access to that exception directly with its operative cause, being the relevant health or safety concern. However, in my view, the concept of "subjectivity" as presented by the applicant, that is, as requiring an assessment of the motivation of employees, is both misleading and incorrect. 165 Industrial action (in the form of a strike) involves, by definition, more than one employee. Given that industrial action is by its nature a collective activity and that s143 stipulates that such activity will be an offence unless the reason or basis for that activity to be a concern for health or safety, it follows that any such concern must be considered to be a concern of the group engaged in the industrial activity. It is not to the point, therefore, that the industrial motivation of each employee engaged in a strike has not been expressed. Nor does it defeat this proposition that it would be difficult to determine a "collective mind", as the relevant "basis" for the industrial action may be inferred from the surrounding circumstances. 166 A similar approach was adopted by Cahill J in Australian Meat Industry Employees Union v Australia Meat Holdings Pty Ltd [1996] NSWIRComm 223 (20 December 1996). In that matter, Cahill J had regard to the evidence presented regarding industrial action taken at an abattoir following the receipt of a bomb threat. That evidence related to a refusal by employees to commence work until they were satisfied that an adequate search of the premises had been conducted. Cahill J determined that the employees' conduct was based on a concern for health and safety until such time as police informed them that they were confident the bomb threat was a hoax. His Honour's determination of whether the employees' concern was "based on a reasonable concern for health or safety" was made having regard to the surrounding circumstances, that is, the receipt of the bomb threat (establishing the basis for a reasonable concern). That concern subsequently ceased to be reasonable upon receipt of information provided by the police that the threat was a hoax. 167 It follows that the relevant inquiry is not the subjective motivation of particular employees, but whether the relevant industrial action was based on a bona fide concern for health or safety, that is, whether there was a bona fide belief that there was a health or safety risk. As was reasoned by Weinburg J, the words "a reasonable concern for health or safety" take their meaning, or "shades of meaning", from the statutory context. In this case, the section falls within that part of the Act which regulates industrial disputes, which by definition involves the regulation of the collective behaviour of employees. That context demonstrates that the Commission may be required to consider the "concerns" of a group of workers (being those collectively engaged in the relevant industrial action) rather than, necessarily, the individual subjective intention or motivation of a worker or each worker in such a group. 168 Further, there is no basis, in my view, to compound the requirements derived from the words "reasonable concern" in s143(4) as proposed by the Intervenor, that is, that it must be demonstrated that each worker must have a concern which is reasonably held, and there must also be an objective assessment to show that there exists a reasonable or rational basis for the taking of industrial action. Such an approach improperly blends the question of whether a bona fide concern is held with the objective assessment of whether there is a reasonable basis for that concern. 169 I turn then to the third element required to attract jurisdiction under s143(4)(a). That is, having established that employees have engaged in industrial action based on a concern for health or safety, s143(4)(a) requires that the concern be "reasonable". I have no doubt, and there was no dispute amongst the parties or the Intervenor in this matter, that the requirement that any concern for health or safety be reasonable involves an objective assessment of the nature of that concern. Such an approach is consistent with authority, for instance, the decision of Schmidt J in New South Wales Teachers Federation and TAFE Commission (unreported, IRC 111 of 1997, Schmidt J, 26 September 1997) where her Honour held (at 30): It was common ground between the parties that the concern dealt with in ss143(4)(a) is the concern which each teacher had for his or her own safety and that such a concern must be measured on an objective basis and at the time the industrial action in question was taken. I agree with this approach to the construction of the 1996 Act. 170 I turn then to consider the nature of that objective test. There are five matters which require particular attention in that respect. 171 First, there is some merit in the following submission made by the applicant: "the jurisdictional threshold imposed by section 143(4)(a) is only that the industrial action be "based on a reasonable concern for health and safety". The jurisdictional threshold imposed by section 143(4)(a) is less stringent than imposed by equivalent provisions in other jurisdictions. It does not contain express requirements that the concern relates to an imminent or serious threat to health and safety or that the industrial action [has] been proportionate or justified. Parliament must have intended the section to have a wider operation than the equivalent provisions. It is submitted that a concern may be reasonable for the purposes of the section so long as it is not fanciful, illogical or irrational. 172 There was no real opposition to this contention by either the respondent or the Intervenor. I am not averse to expressions such as "not fanciful, illogical or irrational" as aids to understanding and examining what is a "reasonable" concern. Further, these expressions are consistent with the meaning of the word "reasonable", which is defined by the Oxford English Dictionary as "rational". In my view, an assessment of whether a concern is "not fanciful or illogical" is an appropriate assessment to be made at the time the concern arises, that is, without the benefit of hindsight and the knowledge of whether a real risk to health and safety does in fact exist. 173 Secondly, the applicant made submissions as to whether the expression "a reasonable concern for health or safety" required the demonstration that an actual risk existed at the time of the industrial action. In the applicant's submission, it does not matter that the concern is subsequently shown to pose no real risk. Again, there was no real opposition to this contention by the respondent or the Intervenor. 174 I note that this conclusion is supported by the decision of a Full Bench of the Western Australian Industrial Relations Commission in Western Mining Corporation v Australian Workers Union (1990) 70 WAIG 3525 (at 3530): There was ample evidence to make a finding that the workers were reasonably entitled to believe that a hazard existed so as to justify the action taken. Indeed, in the light of the knowledge available to the workers at the time, in the light of the notorious nature of arsenic, in the light of the evidence of their fears, substantially corroborated by Mr O'Driscoll, the only witness called for the appellant at first instance, and within section 26 of the Occupational Health, Safety and Welfare Act 1984, there were reasonable grounds to believe that to continue to work would expose them to a risk of imminent and serious injury or imminent and serious harm to their health. That might not be the case now given the same circumstances and further reliable information as to the effects of arsenic. However, we make no judgment on that. However, it was quite reasonable then. 175 I do note, however, that the legislative scheme in Western Australia differs to that found in s143 in that, rather than creating a "health or safety exception" to a prohibition on payments to employees engaged in industrial action, the Occupational Safety and Health Act 1984 (WA) confers a right on an employee to refuse to work in certain circumstances, and a corresponding entitlement to continue to receive pay and benefits if the employee does so. Section 26 of the Occupational Safety and Health Act 1984 (WA) is in the following terms: 26 Refusal by employees to work in certain cases (1) Nothing in section 25 prevents an employee from refusing to work where he has reasonable grounds to believe that to continue to work would expose him or any other person to a risk of imminent and serious injury or imminent and serious harm to his health. (1a) In determining whether an employee has reasonable grounds for the belief referred to in subsection (1) it is relevant to consider whether an inspector has attended the workplace upon being notified under section 25(1) of the risk and whether — (a) the measures, if any, required by the inspector to be taken to remedy the matters giving rise to the risk have been taken; (b) the requirements, if any, of the inspector to remedy the matters giving rise to the risk have ceased to have effect; or (c) the inspector has determined that no action is required to be taken under this Act. (2) An employee who refuses to work as mentioned in subsection (1) shall forthwith notify his employer and, if there is a safety and health representative for the workplace concerned, such safety and health representative, and the matter shall be regarded as an issue to which section 24(1) applies. (2a) An employee who refuses to work as mentioned in subsection (1) shall not leave the workplace concerned until the employee has notified the employer under subsection (2) and that employer has authorized the employee to leave that workplace. (2b) Subsection (2a) does not apply if the employee has reasonable grounds to believe that to remain at the workplace concerned would expose the employee to a risk of imminent and serious injury or imminent and serious harm to his or her health. (3) An employee who contravenes subsection (2) or (2a) commits an offence. 176 Section 28(1) is in the following terms: 28 Entitlements to continue (1) An employee who refuses to work as mentioned in section 26(1) is entitled to the same pay and other benefits, if any, to which he would be entitled if he had continued to do his usual work. 177 I am satisfied, therefore, that s143 does not confine power to authorise or order payment to circumstances where there is a demonstrable risk to health or safety per se, but to circumstances where there is demonstrated a "reasonable concern" for such matters. The distinction, in my view, could not have been more plainly drawn by the legislature in s143(4). An alternative formulation or restriction may have been easily incorporated in the section to produce a different result. Accordingly, provided the concern was reasonably based (that is, not fanciful, illogical or irrational), it is inconsequential to the question of jurisdiction that subsequent evidence establishes that there was in fact little or no risk to health or safety. Such evidence may, however, be relevant to the exercise of discretion, particularly where the "actual nature" of the risk becomes apparent in such a way as may demonstrate that the foundation for the concern vanished at some point during the industrial action. 178 This approach is entirely consistent with that of Cahill J in Australia Meat Holdings. Similarly, Connor C in Caltex Australia Limited held (at 21): In terms of s143(4)(a), for employees to receive payment for wages lost there must be "…a reasonable concern for health or safety…" It is not necessary, in my opinion, to establish that there was a genuine safety problem on which their refusal to work was based. 179 Thirdly, the applicant submitted that "the reasonableness of the concern must be assessed from the perspective of an ordinary and reasonable person in the position of the employees involved. It is appropriate to consider the position of "a reasonable-person-in-the-same-situation". Neither the respondent nor the Intervenor made submissions as to the perspective from which the reasonableness of a concern for health or safety should be assessed. In the circumstances, I am inclined to agree with the applicant. What must be examined objectively is the perception of the "ordinary employee" faced with the same issues or situation. That is not to say that such an assessment would involve a subjective consideration of the individual views of the actual person in the situation. To do so would introduce a significant element of subjectivity into what is an objective test. 180 Fourthly, there was a discussion as to when the reasonableness of a concern for health or safety should be determined. The applicant submitted that a concern for health or safety must be considered "in light of the circumstances that existed and the information available at the time the industrial action took place": (see Alstom Power Pty Limited v Australian Workers Union [2000] NSWIRComm 180 at [70]). The Intervenor contended, however, that "It is also clear that there is a temporal element in "reasonable concern for health and safety"; that is the concern must exist at the time of the commencement of industrial action, and must continue for the whole of the period of industrial action (or at least, must continue for the whole of the part of that period for which payment is sought)". I agree with the Intervenor's submission that the reasonable concern for health or safety must continue during all times that the relevant industrial action is occurring. However, it is unnecessary to determine whether that assessment is strictly jurisdictional or discretionary in nature, as in either case the absence of a reasonable concern limits the basis for the Commission to authorise or order payments to employees. Any payment authorised or ordered under s143(3) may only be made in respect of the period during which the requirements in s143(4)(a) and (b) continue to be met. Put simply, a concern for health or safety is reasonable until it ceases to be reasonable. Beyond that period, there is no basis for industrial action of the type that would be caught by s143(4)(a). 181 Finally, the applicant submitted that it may be relevant in a particular case to take into account evidence concerning previous incidents affecting the health and safety of employees when determining whether a concern for health or safety is reasonable. In support of this submission the applicant relied on TWU v Kwikasair (at 12) where McKenna C held: In this case, the only conclusion that can be reached, in the light of the WorkCover advice, is that Mr Fletcher and the employees based the industrial action on a reasonable concern for health or safety. Moreover, the effect of the earlier health or safety incidents, culminating in the incidents on 28 October, created a belief in the minds of the employees that the respondent was unable or unwilling to establish a safe system of work for handling dangerous goods. This can separately and legitimately form part of a reasonable concern for health or safety. 182 It is not unfeasible that such considerations may be relevant to a determination of whether a concern was reasonable. However, s143 does not dictate that such factors be considered, and each case must turn on its own facts. Whether any previous incidents, occurrences or beliefs bear upon the taking of industrial action on the basis of a concern for health or safety at any given time will be a matter of assessment as to whether the concern was reasonable having regard to the relevant circumstances (and may also impact on the exercise of the Commission's discretion). Section 143(4)(b) - "only to the particular employees whose health or safety caused that concern" 183 The third primary legal issue involves two questions of interpretation relating to s143(4)(b): firstly, to what extent does s143(4)(b) limit the Commission's jurisdiction to authorise or order payments under s143(3); and secondly, how does the Commission measure and give effect to that limitation? 184 As earlier discussed, there is no doubt that s143(4)(b) operates to limit the employees who are entitled to payment authorised or ordered under s143(3). Section143(4)(a) refers to the "industrial action" being based on a reasonable concern for health or safety, whereas s143(4)(b) speaks of "the employees whose health or safety caused that concern". 185 The interpretation of the section is not without difficulty given the wording of s143(4)(b). However, in my view, having regard to the purpose of s143 as earlier discussed, s143(4)(b) should be read as limiting the employees to whom an employer may be authorised or ordered to make a payment, to those employees who are affected by the health or safety concern. Thus, the reference to "caused that concern" should be read, in my view, as being a reference to those employees who engaged in the industrial action and were relevantly within the scope of the health and safety issue. This is simply an extension of the requirement that the employee had not only a bona fide belief, but must objectively have been capable of forming the required concern. Section 143(4)(b) does not derogate from my earlier conclusion that the "reasonable concern" is tested against the group's determination to engage in industrial action rather than individual motivation per se. Section 143(4)(b) would not have been necessary if s143(4)(a) operated so as to confine the operation of the provision to a particular group based on a demonstration of the motivation of each employee. 186 I note that such an interpretation appears to have been accepted at the time the predecessor to s143, being ss218 and 219 of the 1991 Act, was introduced. During parliamentary debate, the following statement regarding s219 was made (and was not disputed by the Minister for Industrial Relations): The bill contains ridiculous clauses concerning health and safety. Safety problems may develop on site. The bill provides that only the few workers affected by a safety issue that results in strike action can be paid during the strike, whereas other striking workers on site cannot be paid, notwithstanding their action having solved the safety problem. 187 The second subsidiary issue under this heading caused some greater debate between the parties, in particular, the extent to which the measure of "reasonable concern", and therefore the application of any authorisation or order, involves a subjective assessment of the beliefs held by individual employees. According to the applicant, there is no requirement that evidence be adduced concerning the subjective belief of each employee as to their concern for health or safety. Further, if a concern is held for the health or safety of all workers at a particular workplace, it is not necessary to "individually particularise the employee whose health and safety caused that reasonable concern". 188 However, the Intervenor argued that the applicant has failed to identify with precision the particular employees whose health or safety was the subject of relevant concern. The Intervenor submitted that "the fact the Applicants have elected to argue their case on the basis of the whole of the workforce engaged on the site means that this is the onus which they must discharge. If the Commission cannot be satisfied that it can identify particular employees as required by s143(4)(b), the whole of the application must fail." The Respondents' adopted the Intervenor's submissions in this respect. 189 As earlier discussed, the relevant question is whether the Commission may be satisfied that the employees engaging in industrial action held the requisite concern, being a bona fide concern about a health or safety risk when tested objectively. I agree with the Intervenor's submission that: Section 143(4)(b) is designed to focus the inquiry on a smaller group of employees in respect of whom there may be a reasonable concern for health or safety where those employees form part of a larger group of employees taking industrial action. 190 Thus, the fact that employees engaged in industrial action is not, of itself, conclusive of the issues arising under s143(4)(b). A concern for health or safety that had no rational basis will not satisfy the objective criteria necessary to establish jurisdiction under s143(4). Clearly, a concern for health or safety may exist at a particular workplace, giving rise to industrial action, undertaken by any number of employees, for a variety of reasons which are largely irrelevant to considerations under s143. 191 However, I do not agree with the submissions of the Intervenor that the applicant, in order to satisfy the requirements of s143(4)(b) (whether or not it seeks relief for the whole or part of the workforce) needs necessarily to prove the circumstances of each employee (in the sense of the establishment of proof only by reference to the particular circumstances of an employee). Not only does this face the difficulty of being inconsistent with the operation of s143(4)(a) (in so far as the proposition proceeds from the erroneous premise that the 'concern' for the purpose of s143(a) may not be discerned from evidence concerning the circumstances and acts of a group of employees taking industrial action), it is wrong as a statement of the burden and standard of proof required to satisfy s143(4)(b). As will be later discussed in this decision, what is required is proof, on the balance of probabilities that an employee or some group of employees were employees "whose health or safety caused the requisite concern". Findings of fact General Matters Inspection 192 Due to the factual complexity of this case, and the importance of determining the nature of work and state of the site at various locations, on the application of the applicant the Commission conducted an inspection of the project on 12 September 2002. Photographs of the site taken at the time of the dispute and at the time of the view were also admitted. In order to clarify the general layout of the site, I include as an annexure to this decision the general site plan (which was annexed to Mr Jansen's first affidavit) in the judgment. 193 The semicircular protrusions at the extremity of each wing mark the staircases. Mr Duff 194 The applicant applied to the Commission for leave to rely on two affidavits of Mr Duff, notwithstanding that he would not be available for cross-examination. Following argument, leave was granted on 27 September 2002 pursuant to rule 122(3) of the Industrial Relation Commission Rules 1996 (although certain aspects of the affidavits which were objected to were not admitted). I extract the following passage from the interlocutory judgment in relation to the weight which should be given to Mr Duff's evidence: Firstly, the affidavits admitted in the absence of cross-examination will be affected in terms of the weight which may be afforded that evidence which was properly conceded by Mr Gibian in his submissions today. That detriment may, having regard to the nature of the contest of the evidence, including any corroboration given of the evidence of Mr Duff, be significant. However, that needs to be judged at the end of the day, having regard to the entirety of the evidence and the balancing of such conflict as may exist in the evidence. The Presence of Lead 195 Various matters bear on the extent to which lead may have presented a hazard on the site and I intend to review the evidence on each aspect in turn: the manner in which people absorb lead and its consequences; lead standards; the extent to which the paint on the site contained lead; the condition of the paint on the site and the location of paint in poor condition; work which may generate dust (including when it took place or was due to take place); the amount of loose dust or flakes and the extent to which it may pose risk. This analysis is conducted in order to assist a general understanding of the risk at the site without detracting from the legislative scheme which requires the assessment of whether a "reasonable concern" existed as to the health and safety of employees. Lead Absorption and its Consequences 196 The evidence which explains how lead can present a hazard comes from three sources: New Environment's reports dated 30 August 1999 (the Report), 21 February 2001 (the Lead Paint Analysis Report) and 24 September 2001; Ms Trompf; and Mr Wyatt. 197 Lead can be absorbed by inhalation, ingestion or skin absorption. Once absorbed, lead cannot be expelled. It accumulates in the body and can harm every organ, particularly the brain, kidney and reproductive system. Lead may be stored in a person's bones for twenty to thirty years whence it can enter blood circulation. Lead can distort red blood cell production (in some cases leading to anæmia) and lead poisoning in children can give them learning difficulties. 198 Fine dust (for example, from the sanding of lead-based paint) is more easily ingested or inhaled than coarse flakes from peeling paint. According to New Environment's report dated 24 September 2001, the higher the concentration of lead in dust, and the greater the quantity of afflicted dust, the higher the potential for absorption. However, Mr Wyatt noted that even low levels in dust could produce elevated blood levels in the absence of "good hygiene". For this reason, both Mr Wyatt and Ms Trompf agreed that it was very important to document and enforce good hygiene practices at work. 199 Under cross-examination, Ms Trompf cautioned that lead was very easily and readily ingested (hence, the importance of washing hands before eating), and monitoring inhalation by itself may underestimate the hazard. Larger particles which could be ingested (but not inhaled) may not be included in the assessment. 200 Children, who are particularly susceptible to lead poisoning, may be exposed to lead dust brought home on clothing or footwear from building sites. This would explain the recommendation in the Report (discussed below) that workers should shower and change clothing before leaving the site. 201 Under cross-examination, Mr Wyatt agreed that it was well known that many older buildings had a high content of lead paint; that construction or refurbishment work in such a building presented a potential hazard that workers may ingest high levels of lead and that New Environment would recommend an assessment of the risks posed by paint on a site before work commenced. Standards 202 Various standards which govern lead were referred to in the expert evidence. In summary: · The Environmental Protection Authority Guidelines set the acceptable level of lead in residential soil at 300ppm and in soil on an industrial site at 1,500ppm-; · There is no standard of an acceptable level of lead in dust; · Paint with lead levels which exceed 1% should be managed in accordance with AS 4361.1-1995, Guide to Lead Paint Management, Part 1: Industrial Applications; · The lead content of dust from paint with lead levels between 0.25% and 1% may exceed the criteria set out in NOHSC 1012 (1994) (National Occupational Health and Safety Commission, National Standard for Control of Inorganic Lead at Work); · NOHSC 1012 (1994) defines "lead processes" as including any machine sanding or buffing of surfaces coated with paint with lead levels exceeding 1% and any process applying (among other things) oxy-acetylene to weld, cut or clean the surface of any metal which is coated with paint with lead levels exceeding 1%. In oral evidence, Ms Trompf stated that in her opinion, the use of angle grinders, routers and chasers would be included in this definition. Under cross-examination, Ms Trompf reiterated her opinion that the standard would include applications of machine process likely to drive the material into an inhalable fraction. This interpretation was not challenged by Mr Murray, who sought to distinguish processes which give rise to a fine dust from processes which give rise to "large chunks". · By way of contrast, Mr Wyatt distinguished work which involved chasing out sections of the wall and affixing components to it from the definition of lead processes referred to above. In his affidavit, Mr Wyatt stated: "Such a process can be quite dusty in that the cement render or plaster on the wall is disturbed, but that is quite different from dry sanding of lead paint surfaces or heating such paints with a high temperature flame". This distinction was not elaborated or justified during Mr Wyatt's oral evidence, apart from an indirect suggestion in chief that heat may facilitate lead absorption, and a concession in cross-examination that lead dust itself presented a hazard. However, in cross-examination Mr Wyatt conceded that safe work method statements should have been in place to regulate work which "disturbed the lead based paint". This concession, together with New Environment's recommendation in the Report that lead dust be removed (discussed below), satisfies me that, notwithstanding Mr Wyatt's distinction on the definition of "lead processes", work which created lead dust constituted a risk. · The WorkSafe Exposure Standard for airborne lead containing dust is 0.15mg/m3. Ms Trompf gave evidence that this standard is based on an eight hour work period, and meaningful testing of air for lead contamination should take place over an eight hour period during active work with two monitors: personal sampling of workers and a static monitor at a fixed distance in order to determine the extent of the hazard. · The Exposure Standards for Atmospheric Contaminants in the Occupational Environment Guidance Note NOHSC 3008 (1995) and National Exposure Standards NOHSC 1003 (1995) set a maximum time weighted average daily exposure limit of 1.5mg/ m3 of lead in air in an occupational environment. The relevant difference (if any) between this standard and the WorkSafe Exposure Standard was not explained in the evidence or submissions. · New Environment referred to a different Australian standard in their report dated 24 September 2001: Guide to Lead Paint Management Part 2 Residential and Commercial Buildings Australian Standard AS 4361.2 1998. The report cites this standard as specifying surface lead dust loadings for the purposes of clearance inspections after lead paint management activities, and it is referred to in New Environment's subsequent clearance certificates. According to Mr Wyatt's affidavit, AS 4361.2 1998 covers the methods of testing for lead paint, management of lead paint, procedures for stabilisation, procedures for paint removal and the protection of personnel. Lead Content of Paint and Dust on the Site 203 At various stages during the hearing, the respondents took issue with the inference that all painted surfaces could be treated as containing some lead-based paint. Indeed, in answer to Mr Archibald's uncontroverted evidence that during an inspection on 17 September 2001, Mr Jansen stated that all paint should be regarded as lead-based paint, the respondents were at pains to point out that this was not evidence that the walls were, in fact, covered in lead-based paint. Rather, the respondents contended that it was an assumption made to hasten a resolution of the industrial dispute. According to Mr Jansen's explanation under cross-examination, he proposed this premise to obviate the need to test every wall. In his view, since no lead processes were taking place at the time, it did not matter whether the paint contained lead or not. 204 The reports of New Environment and Ms Trompf present the evidence (such as it is) of paint which indisputably contained lead. Unsurprisingly, not every painted surface was tested and the evidence before the Commission related to samples from various parts of the site. However, the authors of the Report stated that "old paint containing lead is probably present as an under layer on many of the painted surfaces". This conclusion was reinforced by the Lead Paint Analysis Report which recorded more than 1% lead in eleven of eighteen samples and recommended care in relation to all of the remaining samples due to risks that the dust from dry-sanding such paint could contain sufficient lead to exceed the criteria set out in NOHSC 1012. New Environment's final report dated 24 September 2001 noted that the lead content of paint at the hospital varied from undetectable to 11% and of dust samples from 100ppm to 4,310ppm. In thirteen of the twenty-three dust samples taken by New Environment on 20 September 2001, the lead content exceeded 300ppm. 205 Ms Trompf's Report on Analysis of Airborne Asbestos Fibres, Synthetic Material Fibres and Lead Paint included analysis of 15 dust samples and 8 paint-chip samples, collected on 17 and 18 September 2001. Five of the paint chip samples contained more than 1% lead and five of the dust samples contained more than 300mg of lead. Paint in Poor Condition and its Location as at 14 September 2001 206 The Report provided the first description of the condition of the paint at the site: The exterior paint on the walls and windowsills along the south-western face of the 10 and 30 wings is in poor condition with paint cracking and flaking off surfaces. 207 The respondents and the Intervenor contended that a significant proportion of lead paint had been removed during the demolition phase, but did not specify the locations from which paint had been removed. 208 On the other hand, Mr Archibald gave evidence that, as at 14 September 2001, three wings remained, with roughly three external walls, and that the surface paint on rendered patches of the external walls and on concrete columns was in various stages of disintegration, flaking in part. According to Mr Archibald's third affidavit and his oral evidence, the walls, steel banisters and underside of the staircases in all stairwells were also covered by flaking paint. 209 Mr Duff stated that on 14 September 2001 there were significant areas of flaking paint remaining in the basement area, and that only the entrances to the area had been properly scraped and sealed following his earlier complaint. 210 Ms Trompf inspected the site on 14, 17 and 18 September 2001 and described the paint in her interim report dated 17 September 2001: At this inspection it was noted that there are extensive surfaces still covered in existing paintwork on all levels. The paint in many areas, including stairs, windows and columns is loose and flaking. 211 Mr Wyatt stated that he attended the site on approximately six occasions following 14 September 2001. According to New Environment's Lead Paint Hazard Management Report dated 24 September 2001, on a scale of sound, fair, poor, very poor or extreme, generally the painted surfaces within the hospital refurbishment area were in sound to fair condition. In some locations, such as the white painted external window frames, the paint condition was poor to very poor. 212 New Environment's report dated 24 September 2001 included the following recommendation: in areas where the paint was in poor to very poor condition, loose flaking paint should be vacuumed and scraped off; any remaining paint should then be encapsulated with a dilute PVA emulsion. 213 Clearance certificates dated 19, 27 and 28 September 2001 and 5, 9, 10 and 12 October 2001 issued by Airsafe referred to the scope of rectification work undertaken by ATS. In particular, the certificates recorded that ATS had encapsulated existing paintwork in the following areas: the internal areas of the fire stairs of wings 10, 20 and 30 (in each case from the lower ground floor to the seventh floor); the central pillars within the ground floor of the new east infill area; and the outside area and lift lobby of level 8. From this, I infer that the paint in these areas was in poor to very poor condition as at 14 September 2001. 214 In conclusion, I find that as at 14 September 2001, the following areas of the site were affected by flaking paint or paint in poor condition: rendered patches of the external walls and concrete columns; the walls, steel banisters and underside of the staircases in all stairwells from the lower ground floor to the seventh floor; the basement area; the white painted external window frames; the central pillars within the ground floor of the new east infill area; and the outside area and lift lobby of level 8. These areas remained affected until they were rectified on dates referred to in the section "Course of Events" below. Dust-creating work 215 In his second affidavit, Mr Archibald, who started working at the site in late May 2001, described dust-creating work to the following painted surfaces (which he believed to have been painted with lead paint): · The removal of steel windows and cutting of the resultant scrap metal with grinders and oxy-cutters by employees of RMA in January, and from May to August 2001. Mr Archibald consulted the site induction books for these dates, but the relevant pages were not produced to the Commission. Mr Archibald stated that although this process involved applying heat to lead-based paint, the workers wore goggles but no masks. · The use of grinders to repair the concrete slabs where the windows had been removed. This work was done by employees of Savcor Pty Ltd ("Savcor") in Wing 10 in June and July. They had completed half of this work in Wing 20 by 14 September 2001. · The removal of damaged cement render with kanga hammers by employees of Bill Watson Pty Ltd, before the application of fresh cement render. This work to internal walls where they had been severed from external walls during demolition continued throughout 2001, from January through to the dispute and afterwards. Mr Archibald also gave evidence of having done this himself. · The removal of cement render by gyp-rockers, before fitting gyp-rock sheets. · The use of cable-chasers by electricians to cut grooves for the fitting of electrical cables. This process started in May and continued after September. 216 Under cross-examination Mr Archibald agreed that workers undertaking the work he had described above would have been required to wear dust masks, although he did not know if this requirement was recorded in a safe work method statement. 217 According to Mr Janson's affidavit dated 15 March 2002, there were no "lead processes" taking place on the project in the early part of September. Mr Janson elaborated that there was no sanding or buffing of painted surfaces, nor was there any flame-cutting or heating of painted surfaces. In his affidavit dated 1 July 2002 Mr Jansen referred to the site diary of Mr Adrian Murphy, foreman for the project, for 12, 13 and 14 September 2001 to support his assertion that, on these days in particular, no "lead processes" were taking place at the site. 218 Mr Jansen's evidence was echoed by the affidavit evidence of Mr Franklin who stated that by the time he joined the site in early September 2001, the demolition had been completed, leaving bare floor slabs and columns, completely open to the air on both sides. Electrical, mechanical and hydraulic services were being installed progressively, followed by dry-wall partitioning. According to Mr Franklin, similarly relying upon a technical definition of "lead processes", none of this work involved sanding, buffing or direct heating of any existing painted surfaces. 219 Under cross-examination, however, Mr Franklin agreed that between 3 and 21 September 2001 work which disturbed painted surfaces took place, including drilling; the removal of cement render (described by Mr Franklin under cross-examination as "probably a lit [sic] bit superficial"); and the use of chasers (with a hose attached to control the dust: "wet soiled".) 220 Mr Jansen also conceded under cross-examination that work such as cable chasing, drilling painted surfaces and cutting painted steel windows with oxy cutters and welders had taken place before 14 September 2001, without any specific work practice that addressed any lead paint hazard. 221 In his affidavit, Mr Murphy (who started at the site on 19 February 2001, and estimated that he spent about 95% of his time on-site) stated: 5. During the time I was on site there was never any sanding or grinding of the previously painted surfaces. There was some limited oxy-cutting of previously painted steel early in the period, but all of this that I observed was done in accordance with a Safe Work Method Statement which included the wearing of respirator and goggles. No oxy-cutting of previously painted surfaces was taking place after about the beginning of August. 222 Under cross-examination Mr Murphy agreed that during March 2001 refurbishment was taking place, and that during refurbishment there were a number of work processes that disturbed painted surfaces including the removal of cement render from walls and columns, the removal of steel windows, the use of cable chasers and drilling through walls to attach fittings. 223 According to Mr Hendy, refurbishment work after demolition got underway in July 2001. At paragraph 4 of his first affidavit Mr Hendy stated: In about July 2001 I had been informed that there would be people coming in to repaint the window frames later in the Project. I was aware that a report had been done identifying lead paint prior to this time. Until the repainting was due to start however, there was no "lead process" taking place, such as sanding or heating the existing paint. I am familiar with what lead processes are and what they require in terms of risk control. I understood that when the repainting was to start it would be done under "lead process" conditions, but I left this issue at that for the time being, until repainting was scheduled to begin. 224 Mr Hendy elaborated in his second affidavit that before the commencement of any work which he believed could give rise to a lead hazard (such as grinding or buffing) he would have read the Report and required an appropriate safe work method statement. 225 Mr Hendy, too, conceded under cross-examination that each of the work processes described by Mr Archibald above took place "during a period immediately preceding this dispute and going on afterwards", and that each of these processes disturbed painted surfaces. 226 I note that Messrs Jansen, Franklin, Murphy and Hendy carefully restricted their evidence to "sanding or buffing of painted surfaces or flame cutting or heating of painted surfaces" in the first half of September 2001 and made concessions which accorded with Mr Archibald's evidence. In general, I found Mr Archibald to be a witness of credit, whose evidence was often corroborated by a contemporaneous daily record: the Supervisor's Site Diary of Savcor, completed by Mr Peter Mitchell, (the "Savcor Site Diary") (annexed to Mr Archibald's second affidavit and admitted without objection). I accept Mr Archibald's evidence of work processes on the site which disturbed painted surfaces and created dust, and the dates Mr Archibald attributed to them. In particular, I accept that grinders, kanga hammers and cable-chasers were all being used either on, or immediately before 14 September 2001, and, by implication, (there being no evidence that such work was to finish that day), upon the resumption of work following the dispute. Loose dust: location and dispersal 227 On 17 September 2001, Ms Trompf observed a build-up of flaking paint on the floors and stated that she obtained a large quantity of lead paint chips and dust samples from heaps of broken wall plaster on the floor. She also noted dust build-up on the window sills. According to Ms Trompf, if contractors continued to work in these areas they would be taking dust home in their clothes and dust would be dispersed throughout the site. Her final report dated "September 2001" noted that there was a significant amount of lead dust on the floors and window sills of the site. 228 In cross-examination, Mr Murray suggested to Ms Trompf that the low lead reading for the dust sample taken from the amenities room contradicted her assertion that lead dust was being dispersed around the site. In reply, Ms Trompf stated that the sample may have been taken from the table, and not the floor. In re-examination, Ms Trompf stated that dust could be distributed around the site by clothing, or, more particularly, footwear. Environmental factors such as wind or the speed of work could also contribute to dispersal. 229 Mr Archibald gave evidence that the floors, which were covered in concrete, sported numerous step-downs and hollows which contained general residue from demolition including lead paint flakes and lead paint dust. 230 According to the recommendations in New Environment's report dated 24 September 2001 (some ten days after the commencement of industrial action), the lead in the dust levels was low to moderate, and limited access to the site presented no risk to health. Access to all areas could be permitted for limited work such as inspections or non-dust generating work. However, subsequent reports and clearance certificates produced by New Environment, prepared before work recommenced, noted samples with elevated lead levels in the following ceiling spaces: the pathology department on the ground floor; the Fine Needle Aspiration Clinic; the office of Dr BPC Lin; Anatomical Pathology Office; Main Laboratory; the office of Dr Hughes; the First Aid Room in 30 Wing on Ground Level; corridor in 30 Wing on Ground Level; Senior Pathologist room in Pathology Section. 231 Under cross-examination, Mr Wyatt agreed that: · paint which had flaked off would be ground into smaller particles if people were working in the area; · New Environment had recommended in the Report the removal of lead dust because the dust itself represented a hazard; · dust would be moved around to some extent; and · workers moving around the site, and construction work going on, would arouse dust which had settled on a surface. 232 In re-examination, Mr Wyatt expressed an opinion that the risk from dust on the site was essentially insignificant: Q. You were asked about lead dust and the risk posed by lead dust and you answered that it depended on the amount, the concentration and the potential ingestion - what was your assessment of those factors during the time from 14 September onwards based on your examination of the site? A. First of all, the dust levels in the building for a demolition site or a construction site were fairly low in 2001 so there wasn't that much dust around. The level and concentration of the lead in the dust was not particularly high and so the risk associated with the hazard, was, in my opinion, barely insignificant - or insignificant. Q. Specifically in different parts of the site, for example the east infill, the new works? A. I don't think there was any risk there. Q. And the west infill was also a new work, what was-- A. Virtually no risk or no risk. Q. And the area outside, near Hospital Road, what was the -- A. The area outside, which is in the open, the risk of exposure there is such that it would be insignificant. Q. You were also asked a number of questions about dust being produced from flakes of paint that fell. Based on your examination and based on your expertise, how likely would dust be [sic], as a matter of inhalation or ingestion of lead itself? A. Not material because the flakes of - the lead in the building was in fairly good condition and any flakes - they get finer as they get worked under foot but they would not get up into the air and be inhaled. Q. So even with traffic, are you saying they would not float upwards? A. I'd imagine so. Q. Would lead dust persist in the area? A. Very fine dust from petroleum fumes can persist for some time but lead based paint would settle pretty quickly. Probably within an hour or something like that, at the most. Q. How would the concentration vary with the distance from the source? A. Initially - it's a few metres back from the source, the lead in the air would be insignificant. 233 This opinion was somewhat at odds with the recommendations of his own company in the Report that lead dust be removed with a specialised filter and with his concessions under cross-examination that lead dust should be removed because it was a hazard, and that dust would be moved around to some extent. 234 Bearing in mind that the present inquiry seeks to determine whether there was a reasonable concern on the part of the workers, as distinct from an actual risk, I do not consider that it is necessary to reconcile the evidence relating to dust on the site other than to accept that, as at 14 September 2001, and until it was removed upon the dates referred to in clearance certificates, there was a significant amount of lead dust on the floors and window sills of the site and that this dust contained lead to varying degrees. I also accept that paint flakes on the floor could be ground into finer particles which may be inhaled, although the likelihood of this occurring is in dispute. 235 Nor do I consider that it is necessary to resolve Mr Wyatt's evidence on the basis that it may be relevant to whether it was reasonable for a concern to subsist. This is because Mr Wyatt's evidence on re-examination is contrary to the tenor of the reports, work method statements and clearance certificates his company made available to the parties during their attempts to resolve the dispute. There was no evidence that, during the dispute, New Environment advised the workers that the risks from lead dust on the site were practically insignificant: on the contrary, the reports consistently suggested that it was a matter for concern and recommended its removal. Course Of Events The Safety Committee and Safety Induction 236 Mr Hendy gave detailed evidence of the safety committee and its workings in his second affidavit dated 25 June 2002. The safety committee was formally established in November 2000 and held its first meeting on the 21st of that month, during which Mr Hendy was elected chairman. 237 The safety committee comprised a member of each trade working on the project, a representative from Hansen Yuncken and from time to time, other members (such as the fire safety officer for the hospital.) The role of the committee was to identify safety matters, to ensure that such matters were communicated to management, and to ensure satisfactory resolution of any matters raised. The primary work of the safety committee was to conduct safety walks, which were generally conducted weekly, and then to discuss in a meeting any issues which may have arisen. In August and September 2001 these safety inspections would often take between four and four and a half hours. Minutes of safety committee meetings would be distributed to the office and foreman of each contractor; to each member of the committee; and posted on the First Aid notice board. 238 Before commencing work on the site, each employee was taken through a site induction booklet and advised that any safety concern should be raised with the employee's foreman, Mr Hendy, site management or a member of the safety committee (identifiable by a sticker on their helmet). The site induction booklet for the project referred to a range of possible hazards on site, including falling, flammable chemicals and welding hazards but did not specifically refer to any hazard created by lead paint. Before August 2001 239 Anticipating the presence of lead paint and asbestos due to the age of the hospital, the project manager instructed New Environment to prepare a Hazardous Materials Survey Report. New Environment consultants Messrs Anthony Camus and Jason North prepared the Report (dated 30 August 1999) on the asbestos and lead-based paint identified in Building 69 of the hospital. The Report 240 The Report dealt primarily with asbestos, and secondarily with lead. In relation to lead paint, the Report noted that: 1. Most of the painted surfaces had under-layers containing lead; 2. Exterior paint along the south-western face of wings 10 and 30 was in poor condition (cracking and flaking); and 3. Where paint had flaked off, the surrounding dust contained lead. 241 The authors recommended that: 1. In the absence of a clear standard for acceptable levels of lead in dust, 300ppm should be adopted (being the limit for lead in soil at residential sites under the EPA guidelines); 2. Lead dust should be removed using a vacuum cleaner fitted with HEPA filters; 3. Lead paint could be left in place provided that it was in good condition (unlikely to flake or reduce to dust), but in a project like this removal would probably be preferable; 4. Lead can be absorbed by inhalation, ingestion or through the skin and appropriate removal methods and environmental and OH&S precautions must be employed; 5. To protect workers from lead contamination, they should wear "respiratory protection", wash before eating or smoking, shower before leaving the site and leave work clothing at the site. 242 In the subsequent Lead Paint Analysis Report dated 21 February 2001 New Environment reported on eighteen samples of lead-based paint taken from the following locations: Wing 10 (level 4 and between levels 4 and 5); level 1 of the bridge between buildings 69 and 71; level 1 of the lift lobby; and the staircase to Wing 69 between the ground level and level 1. 243 Mr Camus concluded that the lead in eleven of the paint samples exceeded 1.0%. He advised that these painted areas should be managed in accordance with AS 4361.1-1995 "Guide to Lead Paint Management, Part 1: Industrial Applications". He further recommended that care should be taken with paint containing lead levels between 0.25% and 1.0% (ie, the balance of the samples) because the dust from dry-sanding such paint could contain sufficient lead to exceed the criteria set out in NOHSC 1012. 244 Mr Jansen gave evidence that the Report was included in the tender for demolition work, and that the successful contractor, Delta Pty Ltd, ("Delta"), was required to produce and adhere to a safe work method statement consistent with the recommendations of the Report. The unsigned safe work method statement of Delta annexed to Mr Jansen's affidavit dated 15 March 2002 refers specifically to asbestos as a hazard, and to the "asbestos report", but not to lead or lead paint. While the statement contains various provisions to protect workers from dust inhalation (including the use of dust masks, extractor fans to divert dust to open areas and fine films of water to suppress dust) there is no reference to protection against the ingestion of dust. A copy of the safe work method statement was given to Mr Hendy as chairman of the safety committee. Stages of Work 245 In evidence similar to that of Mr Franklin referred to earlier under the heading "Dust-Creating Work", Mr Jansen described the site following demolition: 3. In the first significant phase involved [sic] the stripping out and partial demolition of the existing structure, leaving only [b]are slabs and columns. … 6. Following the demolition phase inground services were installed to the new infill structures, followed by piling and the erection of the reinforced concrete structure of the East infill and structural steel structure of the West infill. 246 Mr Murphy stated at paragraph 4 of his affidavit: 4. The nature of the project is to fully refurbish the existing 10, 20, 30 wings of the 69 building. By the time I arrived in February 2001 all floors were 90% stripped out with only a few minor existing services to be removed. The floors and columns had been stripped back. There was still minor demolition work happening, which occurred over the following couple of months and was essentially complete by August. 247 Mr Archibald contradicted the description of the site comprising bare floor slabs and columns, open to the air: according to Mr Archibald existing walls on each level of the wing remained. Under cross-examination, Mr Archibald stated that following demolition, three wings remained, with roughly three external walls, but the presence of scaffolding "cut a lot of the openness out". I accept Mr Archibald's description of the site following demolition. 248 Further detail of work taking place at the site in 2001 was described earlier under the heading "Dust-Creating Work". Other incidents before August 2001 249 Mr Archibald gave evidence (supported by a hazard report of the same date and referred to in the applicant's amended chronology) that on 11 May 2001 the foreman for Allstaff Pty Ltd, Mr Noel McDougall, alerted the safety committee and Hansen Yuncken to the discovery of a pipe with asbestos lagging in the basement. The pipe was covered and taped, and plumbers and medical gas-fitters continued to work in the area. 250 The statement of agreed matters and issues suggests that this took place in August 2001. Other witnesses, such as Mr Franklin and Mr Hendy, described this episode as having occurred in September 2001 (see the chronology below) and Mr Franklin described two such pipes in the basement. This may explain the two dates. In any event, I do not consider that it is necessary to resolve these issues given the clear concession by counsel for the applicant on 13 December 2002 that the applicant did not rely upon any allegations of asbestos to establish a reasonable concern for health and safety: the sole basis for concern was the existence of lead-based paint and potentially lead contaminated dust on the site. This concession superseded the express references to asbestos in the amended application which was filed on 5 August 2002 and tendered on 25 August 2002. 251 Contrary to Mr Hendy's evidence that lead paint had not been raised as a safety issue before Mr Duff's comments on 1 August 2001 (discussed below), Mr Archibald described a complaint in early 2001 that there may be lead paint in the site amenities shed. According to Mr Archibald, the site amenities shed was consequently repainted. August 2001 252 Mr Duff accompanied the safety committee on a site inspection of all levels of Building 69 on Friday 1 August 2001 following which he raised seventy-four safety issues in a Safety Rectification Notice. Mr Hendy considered that many issues were trivial, such as the requirement to remove brooms from the amenities shed, and to install new coat-hooks. Mr Duff replied by affidavit that the removal of coat-hooks at eye height was not a trivial matter; they represented a hazard, should someone fall. 253 The penultimate issue on Mr Duff's list was the possibility of lead paint in the basement. According to Mr Hendy's first affidavit, Mr Duff stated that the flaking paint in the basement should be "rubbed back and painted". Mr Duff denied making this comment, advising that he would not have prescribed what should be done. In accordance with my ruling on the admissibility of Mr Duff's evidence, and my opinion of Mr Hendy as a witness of credit, I accept Mr Hendy's description. Mr Hendy was concerned that rubbing the paint would increase the hazard, but agreed to paint over it, which was done the following Monday by Delta's specialist team ATS. Mr Hendy stated that no other area of paint was identified as a problem at that time. 254 The minutes for the safety committee meeting of 9 August show that the committee discussed the issues raised by Mr Duff and agreed that each of the issues had been rectified, or endorsed Mr Hendy's decision that they did not need rectification. (There were only about five such issues, including the installation of a flyscreen in the amenities shed and the removal of hooks from the lunch-room.) 255 Mr Hendy later called Mr Duff to advise him that the safety committee had approved the actions taken in response to Mr Duff's safety rectification notice. This, although supported by the minutes of the safety committee, conflicts with Mr Duff's uncorroborated affidavit evidence that during his site inspection on 14 September 2001 he considered that many of the issues he had raised on 1 August had not been rectified. As above, I prefer the evidence of Mr Hendy. September 2001 256 According to Mr Jansen, by the beginning of September 2001 the two new "infill" structures had been completed and workers had started the installation of interior dry-wall partitions, windows and external cladding. They were also installing services progressively and starting some tiling and joinery. Work on the ground floor and levels 1, 2 and 3 of the 10 Wing had progressed to the stage of floor-laying and final internal work, but had not started on levels 4 to 7 of the 10 Wing. The contract for painting was put to tender at about this time, and Hansen Yuncken gave tenderers a copy of the Lead Paint Analysis Report. The successful contractor would be required to comply with a safe work method statement appropriate for work on paint containing the levels of lead shown in the Lead Paint Analysis Report. 257 Under cross-examination, Mr Janson agreed that there were no steps to remove paint in poor condition or reseal painted surfaces at any time up to 14 September 2001: Q. If I can just make sure I have got what you are saying correct, there were no steps taken to remediate painted surfaces prior to September 2001? A. No. Q. But in your view you say there was simply no need for that to occur because of the type of work that was going on up to that point in time? A. And the report also indicated it wasn't necessarily lead paint. Q. If we can just understand what had happened up to what steps had been taken in relation to this issue up to September 2001, there had been a report done prior to the commencement of the project? A. Yes. Q. A statement of 30 August 2001? A. Yes. Q. If you can't remember the date just take it from me? A. Yes. Q. And that dealt with a number of different hazards on the site including the lead paint issue? A. Yes. Q. And some further sampling had been done resulting in a report dated 21 February 2001? A. That's right. Q. Now in your affidavit you also refer to a safe work method statement for the demolition contractor? A. Yes, that's right. Q. You also refer to a safe work method statement for the painting contractor? A. Yes, that's right. Q. That's the entirety of the measures that were taken to address the existence of lead based paint on the site up to 14 September 2001? A. That is correct bearing in mind there was no work being done on the windows at that stage. Q. If you could just answer my question, that was the entirety of the steps taken up to that point in time? A. Yes. 258 Mr Jansen also agreed under cross-examination that until the painting contractor submitted a safe work method statement on 24 September 2001 there was no work practice in place that specifically addressed any lead paint hazard. Mr Archibald's evidence corroborated that of Mr Jansen on this point: although Mr Archibald wore a mask to protect himself from dust when drilling, he stated that he had not been advised to follow precautions to prevent lead contamination such as washing before eating or smoking; showering daily before leaving the site; or leaving work clothes at the site to avoid taking lead dust home. To his knowledge, none of the workers had been advised to take the protective measures recommended in the Report. 259 I am satisfied that, despite having been commissioned and written more than twelve months' earlier, none of the recommendations in the Report had been implemented by 14 September 2001, other than the action taken in direct response to Mr Duff's complaint of 1 August 2001, and the repainting of the site amenities shed referred to by Mr Archibald. This finding is particularly based on: 1. Mr Archibald's evidence that he had not been advised to follow any measures to protect himself from lead contamination; 2. Mr Jansen's clear concessions that neither lead dust nor lead paint (in good or bad condition) had been removed and that, up to 14 September 2001, nothing had been done to address the existence of lead-based paint on the site other than the provision of the Report to the demolition contractor and to potential painting contractors in order that suitable work method statements could be developed for those two activities; 3. The fact that (other than the painting safe work method statement discussed below and the general safe work method statement dated 4 October 2001, discussed later in the judgment) neither the respondents nor the Intervenor adduced any evidence of safe work method statements which referred to the potential hazard of lead paint, nor the implementation of any such statements or safety procedures, despite the fact that such evidence, (assuming it existed), should have been easy for Hansen Yuncken to produce; and 4. Mr Hendy's evidence that the site induction booklet for the project referred to a range of possible hazards on site, including falling, flammable chemicals and welding hazards but did not specifically refer to any hazard created by lead paint. 260 I note as an addendum to (b) that painting work was not due to start until September 2001 and the work method statement was not in fact produced by the successful contractor until 24 September 2001. 261 As mentioned above, Mr Franklin gave evidence that, on about 5 September 2001, Mr Hendy told him that there may be some asbestos lagging around a pipe in the basement, and the two went to inspect. This inspection revealed one pipe which had already been taped up by Mr Archibald (according to Mr Archibald, in May or early June) and another suspect pipe, and the two decided to close the basement area with signs and tape pending the removal of the lagging by licensed asbestos removalists. Workers were required to see Hansen Yuncken management before working in the basement. Both of these actions were noted in the minutes of the safety committee meeting held on 7 September 2001. Air monitoring tests for asbestos fibres carried out on 13 September 2001 by New Environment showed negligible asbestos fibres. 262 Counsel for the applicant submitted that the matter of the asbestos lagging was relevant to determine whether there had been a departure from safety committee procedures before 14 September 2001, contrary to Mr Hendy's affidavit evidence that those procedures had always been followed until the dispute. Cross-examination of Mr Hendy established that Mr Hendy inspected the basement and closed the area before the safety committee was informed or inspected the basement. 13 September 2001 263 According to Mr Archibald's first affidavit, on 13 September 2001 an electrician member of the safety committee complained about asbestos in the basement. Mr Duff's evidence suggests that lead paint was also an issue: 3. On Thursday the 13 September 2001, I received a phone call from Mr Geoff Prime from the Electrical Trades Union asking me if I could go down to Concord Hospital because the electricians working in the basement area on that site had complained about the existence of asbestos lagged pipes and lead paint. 264 Mr Archibald does not specify to whom the electrician complained, although I infer from the evidence extracted above that it was to Mr Duff. 14 September 2001 265 According to Mr Archibald, Mr Duff and Mr Saliaderre of the CFMEU visited the site on the morning of 14 September 2001 at approximately 7.15am in response to the electrician's complaint. Mr Duff stated that he attended at 6.30am. The statement of agreed matters nominates 7:30am. This is the first of several times on that day about which the evidence varied. I do not consider it necessary to resolve the variations except to the extent necessary to determine the proportion of the working day affected by industrial action. 266 Messrs Duff and Saliaderre, members of the safety committee (including Mr Archibald, Mr Hendy, Mr Bulham, Mr Kalser and Mr Young) and Mr Franklin inspected the basement (which had been sealed off) to view the two asbestos-lagged pipes. Mr Duff described "significant areas" of flaking paint on the basement walls, noting that the quality of the paint in the area was poor. He considered that despite his complaint on 1 August 2001, only the entrances to the basement had been properly scraped and sealed. 267 Mr Duff gave evidence that after this inspection he retired to management offices to contact WorkCover, but did not describe whether or not he in fact did so, or, if he did, what transpired. Mr Jansen gave evidence that he called WorkCover later that day, after the site meeting, but was advised that there were no inspectors available to attend that day. 268 Mr Archibald's first affidavit describes what happened after the safety inspection that morning: 6 After investigating the contaminated area, we returned to the site shed to undertake discussions with Company management, Mr John Franklin, about the issue of asbestos exposure and requested the Company provide any paperwork in relation to asbestos exposure. At the time Mr Franklin produced a report known as the New Environment Hazardous Materials Survey Report , dated July 1999 [sic]…I believe that this was the first time that this report was made available to the Committee. 7 After considering the report I became aware for the first time that there was extensive lead based paint throughout the site. The Committee employee representatives, and the workers once advised, were concerned about these hazards and were particularly concerned that they were not informed about their existence. 269 Messrs Hendy, Franklin and Duff also gave evidence that the Report was produced in this meeting. Although Mr Duff could not specifically recall, he thought that the Lead Paint Analysis Report was also provided at this meeting. Mr Jansen did not refer to the production of the Report at all. There was no evidence to contradict Mr Archibald's belief that it was the first time that the Report was made available to the safety committee; nor was there evidence of anyone being informed of the Report (other than the painting contractors, who had not started work at the time, and Mr Hendy, as discussed below). 270 Mr Archibald gave evidence, which was not objected to, that once the employee representatives on the safety committee and the workers learnt of the Report they were concerned about the hazard and concerned that they had not been informed. Mr Archibald gave further evidence (again, which was not objected to) that the foreman of Allstaff Pty Ltd, Mr Noel McDougall, said that he had not been informed of the lead and asbestos hazards. 271 The affidavit of Mr Hendy sworn 25 June 2002, referred to by the Intervenor in submissions, supported the evidence of Mr Archibald: 20 … I recall that at the time that I was told about the existence of the lead paint on the Project (ie. in or about May or June 2001), I recognised that it may, at some point in the future, represent a hazard which would need to be dealt with by the formulation of an appropriate work method statement. I did not consider there to be a hazard until any lead process work was to take place. I was aware that a report existed which referred to the existence of lead paint and had in mind the need to review that report prior to any work that I believed could give rise to a lead hazard, such as grinding or buffing, being done on the site. … 21 Prior to 1 August 2001, I am not aware of any worker raising the issue of lead-based paint with me either during any of the Safety Committee walks, or on any of my daily walks of the site. Nor am I aware of the matter being raised by any other member of the Safety Committee. 272 Cross-examination of Mr Hendy as to his knowledge of lead paint elicited a confusing reference to having read a "letter" and, consistently with his affidavit, the statement that he was aware of the Report and had "viewed it" on the company file: Q. You say that you were told of the existence of lead paint on the project in around May, June 2001, is that correct? A. I was advised of it, yes. Q. By that do I take it to mean you were advised verbally? A. No. I was shown a letter and I was advised verbally and my question was: when that work commences we would address the issue when that time comes around, essentially, something like that. Q. That was the first time you became aware of the existence of lead paint on the project? A. Yes. Q. You were aware that a hazardous material report was produced by New Environment prior to the project commencing? A. I was aware of the letter. I did read the letter and, as I repeat, I believed it would only become an issue when the work would be commenced in the area of lead paint. Q. If you could just answer the questions that I am asking you. The question I asked you was - are you aware that a report entitled "Hazardous Materials Survey Report" - was completed by New Environment in 1999? A. Yes. Q. Are you aware that it refers to the existence of lead paint on the project? A. Yes. Q. I take it you mean you had not had cause to, prior to May or June 2001? A. I viewed it and it was on the company file. 273 Mr Hendy's evidence about the site meeting (which I refer to below) was even clearer: during a heated meeting of all site workers about safety he was questioned about flaking paint and could only refer to Mr Duff's visit of 1 August 2001 but not to anything contained in the Report. In fact, he stated that he was "waiting for management to give [him] the reports", and "did not have any" paperwork. I infer from Mr Hendy's evidence above, and from his evidence about the site meeting that, at the time of the site meeting, he: · had not read the Report, nor the Lead Paint Analysis Report; · was unaware of the extent of the problem; and · was unaware of the recommendations made in the Report. 274 On the basis of the evidence of Messrs Archibald, Duff and Hendy (including the inferences drawn above) and lack of any positive evidence to the contrary (which, if it existed, should have been easy for the respondent to adduce), I am satisfied that neither the unions nor the workers were aware of the Report or its contents (save to the extent of Mr Hendy's limited awareness, described above) until the Report was produced by Mr Franklin on the morning of 14 September 2001 at a meeting of the Safety Committee, union officials and management some time before the site meeting. This is particularly apparent given the evidence of Mr Archibald that the meeting was to discuss concerns about asbestos, and that the request for paperwork related to that hazard only. 275 According to Mr Murphy, an employee of Hansen Yuncken and foreman of the project, whose evidence was corroborated by Mr Jansen, Mr Duff demanded that Mr Murphy be "removed from the site", alleging that Mr Murphy had been withholding information and victimising unspecified workers. Mr Duff disputed the language attributed to him but did not contradict the essence of the allegation. After much discussion, it was agreed that Mr Murphy would be removed from the safety committee, whereupon he left the meeting. Although there is a conflict as to whether this happened before or after the site meeting, I do not consider that it requires resolution in order to determine this matter. 276 In response to the concerns expressed by the committee and Mr Duff about the exposure of workers to hazardous substances, Mr Jansen, agreed to ask Ms Peggy Trompf of the Workers' Health Centre to assess the risk and to provide a report about the exposure to lead paint and asbestos. According to Mr Archibald, this meeting concluded at about 10.45am. 277 Ms Trompf gave evidence that in response to Mr Jansen's telephone request at approximately 11.30am, she attended the site at "about lunchtime". Ms Trompf did not have a detailed memory of that morning, but she stated that she met Mr Jansen, quickly toured the building site with him and perhaps another manager "John", and then attended the site meeting. Mr Jansen also gave evidence of this brief inspection with Ms Trompf, and that he remembered her expressing concern about flaking paint in some areas. Mr Franklin described taking Ms Trompf through the site "from the basement up through the various floors". 278 A site meeting of approximately 180 workers was then convened to appraise the workers of health and safety issues: Mr Archibald gave evidence that it was to inform the workers of the Report and its implications; Mr Duff stated that it was to inform them of the results of the safety inspection that morning. Mr Archibald stated that before the site meeting productive work had taken place from approximately 6:30am to 12pm. According to Mr Archibald, "everyone" attended the site meeting which lasted from approximately 12.00pm to 2.00pm. There is an overwhelming inference (and no evidence to the contrary) that the employees of each respondent (being contractors at the site during the relevant period) attended the meeting. Mr Archibald's evidence as to the time of the meeting is supported by the evidence of Ms Trompf that she attended the site at "about lunchtime" and then attended the site meeting. 279 Further, the Savcor Site Diary records the following two entries for 14 September 2001: "…at approx 11.30am, I was informed that there would be a complete site meeting at 12.00 noon in regard to safety issues" and "Delays/Disruptions: CMFEU meeting 12.00 - 2.00pm". As noted earlier, the Savcor Site Diary for the period 14 September 2001 to 11 October 2001 was annexed to Mr Archibald's second affidavit and was neither objected to nor called into question. As an uncontroversial contemporaneous record, particularly when read with corroborative evidence, the Savcor Site Diary represents a reasonably objective and reliable account of activities on the site during the dispute which pertained to Savcor. In some circumstances, this evidence can be extrapolated rather than being restricted to one contractor. In others, given the absence of any clarifying oral evidence, it is ambiguous. 280 The evidence of Mr Murphy (who was not cross-examined on this point) and Mr Franklin as to the time of the mass meeting differs. They described it as having been called between 8am and 8.30am. Under cross-examination Mr Franklin conceded that he may be wrong as to time. Mr Hendy gave evidence that the site meeting took place in the morning and that the workers left the site "at about noon". Mr Jansen stated that no more than one hour's work took place that day, but says that he was called to a meeting with Mr Duff at about 10.30am, suggesting that the site meeting must have been convened some time after. 281 On the balance of probabilities, I accept the evidence that the meeting took place from approximately 12pm to approximately 2pm and that productive work took place beforehand. The Site Meeting (14 September 2001) 282 Mr Hendy described the meeting in his first affidavit: 18 It was a long meeting, which went all morning. During the meeting I was called away to show the asbestos removal contractors where the suspect pipe was. I then got a phone call to return to the meeting and explain what was going on with the basement. I explained that the basement was closed and signs and tape were up as a precaution. I said there was a pipe that had been cut and was encapsulated waiting for instruction to come back to me. 19 Then I was asked about the flaking paint in the stairwell to the basement and other floors. All I could say was that Alan Duff raised the issue in relation to the basement when we did a safety walk on Wednesday 1 August 2001, and by the following Monday it was painted over and cleaned up. 20 Alan Duff asked me for the paperwork and I said I did not have any. Alan Duff then asked me about the asbestos report and I said I have not received it yet. 21 A site worker asked me "why don't you have the paperwork?" and I said "I have not got it from management as they were waiting to get instructions". 22 Alan Duff then asked me "who was the person that has not given you the paperwork? You are the chair person" I did not want to name anybody, so I repeated "I am waiting for management to give me the reports". Alan Duff then insisted "on behalf of everybody here, who was it" I then said "Adrian Murphy is in charge of the basement". 23 Alan Duff then asked me to "get Adrian Murphy down here". I phoned Adrian Murphy and he said he could not come down to the meeting. Alan Duff then said to the site workers "let's go up on site and find him". We started up the stairs with lots of site workers. There was some commotion. A worker then saw that Adrian had gone downstairs and was going in to the site office. 24 The meeting was then closed and Alan Duff told everybody to go home until Monday, and the workers left the site about noon. A meeting was then called between the safety committee, unions and management. 283 Mr Archibald did not recall Mr Duff telling everyone to go home until Monday and Mr Duff denied it. According to Mr Archibald, Mr Duff read sections of the Report to the assembled workers at the meeting and then Ms Trompf described the risks of exposure to lead and protective measures which could be taken. 284 The admissible evidence of Mr Duff's on the mass meeting was brief. From his affidavit dated 6 February 2002: 13 On the same day we also conducted a site meeting to report to the workers what had been found on the inspection. 14 …The workers stopped productive work. 285 And from his affidavit dated 5 April 2002: 8. At the mass meeting, before this meeting with management, the workers had voted to accept the report and the recommendations of the Workers Health Centre before productive work would take place. It was clear from the tone of the meeting that the workers had lost all confidence in Hansen Yuncken management to deal with the hazards associated with hazardous substances on site. 286 Ms Trompf stated that the major topic at the meeting was lead and she was asked to comment on lead as a health hazard. At this stage, she had not received a copy of the Report. When asked in chief whether she could remember what she said to the meeting in detail, Ms Trompf replied: A. Well, I would have pointed out an issue that the ingestion of lead to a degree is hazardous to health, I would have urged people to be extremely careful with their hygiene, to not eat, drink or smoke without washing quite carefully, discussed the issue of taking contaminated clothing home and clothes and boots, and being careful not to do those things - yeah, and I probably talked about the actual effects. 287 Under cross-examination, Ms Trompf stated that she did not advise the workers to leave the workplace; she did not consider that it would have been appropriate for her to do so. There was no evidence as to whether, during the site meeting, Ms Trompf referred to the extent of any lead paint on the site. Under cross-examination, Ms Trompf stated that she discussed lead at the site meeting because Mr Jansen had advised her that there was a lead hazard on the site. 288 Mr Archibald stated at paragraph 11 of his first affidavit that: I recall at the meeting that some of the workers were angry that they had not been informed about the asbestos in the basement and Mr Hendy, the Committee chairmen [sic] advised the meeting that he had not been informed until very recently. The meeting was very heated. 289 And in oral evidence: Q. And on 14 September, you say in your affidavit, that the site meeting resolved to stop work? A. Yes, there was a lot of heated discussion about not being told what the state was like, to report, and it came down to the safety chairman saying that a lot of information wasn't forthcoming and then we had Peggy Trompf and a couple of [sic] spoke about the effects of the hazards on the site and they had a bit more discussion and there was - a resolution put to the floor that because of the risk to health rather than safety that the men were not to return back to the site till it was safe and they started leaving and it's just after two o'clock. Q. And there was a process agreed to determine whether it's going to be safe or not? A. Well, the discussion was that one to get an independent company in to do the analysis, and risk analysis, that sort of thing to find out what the procedure would be to make it a safe place. 290 And under cross-examination: Q. I put it to you that in fact the reason that people made that decision to leave was because they were angry about the information issue, that was the situation, wasn't it? A. No, that was why they put on the complaint, that they wanted Adrian Murphy removed from the site. Alan Hendy the safety chairman, they pointed the finger to him and he put his finger to the foreman. He said he wasn't receiving information. Everyone wanted action against Adrian Murphy. Q. They were angry about the situation and angry that they would leave the site? A. They wanted something done with Adrian Murphy then because of the risks involved, Peggy Trompf and the other union officials saying what was involved, the lead issue, the asbestos, they considered it was not safe to stay on site and find out exactly what was going on. 291 The Savcor Site Diary referred to what happened at the site meeting in similar terms to the evidence of Mr Archibald: The CFMEU site meeting went for approx 2 hours, during which time the site was informed that a safety report back in July 1999 "had just been found" that showed that there was asbestos in the basement area's [sic] and lead in all the paint, both internal and external of which no contractor was ever informed. A vote was taken and it was resolved that the site would stop work immediately because it was unsafe (safety issue) and no work would commence until the site was made safe. … After the meeting was concluded I called all the boys together and advised them that until such time as the paint on and around the windows was tested we would continue with all the internal works where there was no lead paint. 292 According to Mr Archibald, at the conclusion of the meeting the assembly passed a resolution to stop productive work pending the provision of a report on asbestos and lead hazards. The CFMEU and other unions were to ask Hansen Yuncken for copies of relevant paperwork such as safe work-method statements, and to discuss rectification with Hansen Yuncken. The workers then left the site at approximately 2pm. According to Mr Archibald's oral evidence, at this point the workers were told that they should keep in contact with the foreman, and that they would be notified through their employers when the site was ready for work to resume. In re-examination, when asked whether Ms Trompf set out a process for a return to work, Mr Archibald explained that she was primarily talking about the risks and health problems associated with lead and asbestos, particularly the risks of transporting dust home from the site. 293 The evidence relating to the site meeting establishes that the meeting was heated; that Mr Duff read sections of the Report to the assembled workers; and that lead contamination was a key issue during the meeting. I am satisfied, on the basis of the evidence extracted above, and as a corollary to my earlier finding of general ignorance of the Report, that the first time that the workers who attended the site meeting were told of the Report, and that lead-based paint represented a potential hazard on the site, was during the site meeting. 294 I am also satisfied that, following disclosure of the Report, the workers who attended the meeting were genuinely concerned for their health and safety. Mr Archibald gave express (albeit hearsay) evidence on this point; the entirety of the evidence compels such an inference in any event. The Report raised serious health and safety issues (as did Ms Trompf, who attended the meeting and gave advice) and proffered recommendations. In addition to discovering at the meeting that the Report had been withheld from them, and that their safety committee chairman had not read it and could not satisfactorily answer questions about it or the safety hazards it addressed, the workers would have known from personal experience of the site (or could reasonably have inferred from the ignorance of their safety committee chairman) that recommendations in the Report had not been implemented; that there was paint in poor condition at various locations throughout the site; that dust creating work had been performed on painted surfaces for some months; and that no safe work method statement specifically addressing the potential hazard of lead ingestion had been identified. The fact that the meeting was heated and volatile (in addition to witnesses' descriptions of it as such, this is evidenced by the challenge to Mr Murphy) is evidence that concern was held by all of those attending (and I note that there was no evidence to the contrary). The evidence of the meeting established that a vote was taken as to whether the workers would stop work because the site was unsafe and not recommence until the site was made safe. This vote was carried, and there was no evidence that anyone demurred. In fact, the evidence established that all workers who attended the meeting acted on the vote and left the site. 295 Mr Murphy described in his affidavit the following exchange with Mr Hendy, presumably during the course of the site meeting (which Mr Murphy did not attend): 9. At about 11 am I received a phone call from Allan Hendy, the chairman of the site Safety Committee. He said something to the effect that "Allan Duff wants you down on Level 1 right away because the men want you to answer some questions." I felt from what was said that I was going to be victimised, so I spoke to John Franklin [Mr Murphy's supervisor] about it. He told me that I should not go and that there is a process that they must go through. About 15 minutes later John received another call from Allan Hendy. John said the same thing to Allan: "there is a process they must go through. If they want to speak to us, they get the Safety Committee together and meet us in the meeting room" or words to that effect. 296 This was consistent with Mr Franklin's evidence. According to paragraphs 30 and 31 of Mr Duff's second affidavit: 30. Mr Murphy is a company representative on the site Occupational Health & Safety Committee. The workers at the mass meeting had been asking Mr Hendy, the Committee Chairman, many questions about the asbestos issued [sic] raised. Mr Hendy could not answer these questions. For example, he was asked from the floor why he had no knowledge about the asbestos on the site. I recall that he answered that he had not seen the report about it. The men were insistent about who had access to the relevant documentation. Mr Hendy reported that it was Mr Murphy who had access to the relevant information. 31. Mr Hendy called Mr Murphy on the phone to come to the meeting to address the workers. I deny Mr Murphy's allegation that he would have been victimised. The workers were angry that important information about hazards on the site had not been disclosed to them prior to their commencing work on the site. 297 In his second affidavit, Mr Hendy stated that Mr Duff's response to safety concerns - calling a site-meeting - was not the way that safety issues had previously been handled on the project. According to Mr Hendy, the safety committee should have met to discuss any issues raised, carried out any necessary inspections, and then been given the opportunity to recommend any appropriate course of action or rectification. On this day, by the time the safety committee was able to meet, Mr Duff had sent the workers home. 298 Various allegations were made by the respondents and the Intervenor about the safety committee's role that day, and whether or not alleged failures to comply with "standard procedures" (which may or may not have been studiously observed in the past; in my view, this is inconsequential) resulted in a breach of the award. The evidence established that following an initial inspection that morning the safety committee became aware of the existence and extent of the problem (by virtue of the Report) at the same time as the union officials (before the site meeting) and that, at the meeting during which this occurred, in response to the concerns expressed by both the safety committee and by Mr Duff, Mr Jansen agreed to ask (and did ask that very morning) an independent expert, the Workers' Health Centre, to assess the risk and provide a report. Clearly, the safety committee was involved in the initial inspection; the discovery of the potential scope of the problem; and the decision to involve an independent expert to delineate the problem, all of which occurred before the site meeting. In the site meeting, the chairman of the safety committee confessed to the workers that he had not yet received "the paperwork" from management, and could only comment on flaking paint in the basement: not other floors. Further, both Mr Duff and Mr Jansen contacted WorkCover (the arbiter nominated by the award in the event of a dispute as to rectification) that day. It is difficult to imagine that the safety committee could have contributed anything more to this unfolding safety issue, once the immediate decisions had been taken and acted upon and the parties were effectively restricted to waiting for more information after the weekend. In fact, the role of the safety committee had been greatly deprecated by management's approach to this safety issue to such an extent that it simply could not be rectified by the process of consultation which was attempted on 14 September 2001. After the Mass Meeting 299 According to Mr Archibald's first affidavit, after the mass meeting the safety committee reconvened with Messrs Duff, Saliadarre, Franklin, Jansen and Ms Trompf until approximately 3.30pm or 3.45pm. Mr Duff advised Mr Jansen of the workers' resolution, and relayed the workers' concern that they had not been advised of the asbestos and lead paint hazards. Mr Duff proposed that Ms Trompf produce a report on the hazards and this was agreed by the meeting. 300 Mr Jansen gave this affidavit evidence of the meeting: 15. At about 1pm a further meeting took place between myself, John Franklin Alan Duff and our safety committee. Alan Duff said, "there's no safe access to the site due to the lead paint in the external stairwells, so the men have voted to leave the site." I said "as issues have been identified, we should have the opportunity to rectify any of the issues". He said "no work is to be carried out until the Workers Health report and recommendations are complete." I said "that's going to take days. It's unnecessary the basement can remain closed, and we can get ATS to rectify the stairwells immediately". ATS is a licensed asbestos removal and hazardous material specialist. Mr Duff said "No, workers have agreed at the meeting that no rectification work can commence until Worker's Health's report is tabled". I said "You're denying us the opportunity to rectify the problems you've raised and stopping the speedy return to work." Mr Duff said, "it's the decision of the workers". I said "I want to be really clear on this: you are denying us the opportunity to rectify these issues which could be quickly rectified". He said, "no work is to occur until the report is tabled". The meeting then broke up, and by that time all the workers had left for the day. 301 Under cross-examination Mr Jansen reiterated his insistence that Mr Duff would not allow rectification work to proceed. This was supported by the affidavit evidence of Mr Hendy, who added that he felt that the matter had "gone past the point of being a safety issue", and that he and the safety committee were being by-passed in a dispute between the union and site management. 302 Mr Franklin gave the following affidavit evidence of this meeting: 15. Following the stop-work meeting the Union Organisers and Safety Committee met with myself and Stephen Janson. Mr Duff started by saying something to the effect of: "There's asbestos and lead on the job. You've known about it and didn't tell us. There's two resolutions come out of the meeting: 1st To remove Adrian Murphy off the site 2nd Commission a full report by Workers Health in relation to lead paint and asbestos on the whole job. Stephen Janson said: "I have no problem inviting Workers Health to site, but if there was a concern regarding lead paint, on the stairs for example, I'll organise resources to come in over the weekend and address it". This idea was condemned by Mr Duff who said: "nothing will happen until a full report by Workers Health is received". As far as Adrian Murphy was concerned, it seemed to me that there was some personality clash, so it was proposed that Adrian would stay on the job, but that I would take his place on the Safety Committee. This was accepted. 303 Mr Duff denied and Mr Archibald did not recall Mr Duff saying "there's no safe access to the site due to lead paint in the external stairwells, so the men have voted to leave the site". Mr Duff recalled saying "Until you can prove it's not lead paint there should be no access to that part of the building". 304 Similarly, Mr Duff denied the comments attributed to him by Mr Franklin, and particularly denied saying that no work was to take place until the report and recommendations were complete, alleging that he said instead: · "The workers want Adrian Murphy off the job because he has withheld safety information from them. The workers want the Workers Health Centre to do a report and possible health checks."; · "It's the decision of the workers to wait for the Workers Health Centre to provide a report."; and · "Rectification can carry on as long as it is done by specialists properly trained in accordance with their work method statements." 305 Mr Archibald agreed with Mr Duff that there was nothing preventing Mr Jansen from organising rectification work. The evidence established that ATS in fact started rectification work on 19 September 2001, after Ms Trompf's preliminary report but six days before her final report, and five days before New Environment's next report. According to Mr Archibald, the meeting also discussed who could work on site during rectification and it was agreed that the hospital gas suppliers should be allowed on site. There was no further evidence (nor were there any submissions) concerning the hospital gas suppliers: whether they were allowed on the site; whether they in fact worked and if so, on what dates; or, indeed whether they were one of the respondents. I infer that they were allowed on the site to carry out work. 306 Under cross-examination, Mr Archibald conceded that, at the time of the strike, the following work was taking place in areas where there was no lead paint: plumbers working "outside the road"; plumbers excavating inside the café; brickwork near the community shed; and construction inside the scaffold but in the new construction of the western and eastern fills. However, Mr Archibald stated that none of these areas were sealed off from the areas which did contain lead paint. Further, Mr Archibald stated that although a fair proportion of trades were working outside the main part of the structure, this was only part of their work at the time. For example, three or four bricklayers may have been working outside, but 10 to 15 would have been working inside. 307 In oral evidence Mr Archibald stated: There was a motion on the floor at the meeting that there would need a report assessment done on what should be done for, and if they could organise what work would have to be done to make the job safer, so that after that was passed it was then mentioned that they wanted to start rectification work on the Saturday and then there was a bit of a cost argument about it and they can't start until they found out just what they were going to do first and the meeting just stopped abruptly there after that discussion. 308 In cross-examination, Mr Archibald elaborated that no-one at the meeting knew what Mr Jansen was referring to when he mentioned rectification work, because the relevant concerns and hazards had not been identified; that was why they had requested a report. 309 He further explained in re-examination that rectification work could not commence straight away, and that an external contractor was required, because rectification of hazardous problems should be done by a licensed contractor. 310 It is clear that this meeting agreed to instruct Workers Health Centre to report on the lead and asbestos hazards, and it is also clear that "rectification" was discussed. I accept that Mr Jansen proposed that ATS start "rectification" of the stairwells immediately, and I accept that there was a general resistance on the part of the union representatives to work proceeding in the absence of a report from the Workers' Health Centre. It may be that Mr Duff stated that no rectification work was to proceed until Workers' Health Centre had produced a report. However, there was no evidence before the Commission (and no basis for inferring) that a practical proposal for rectification had been suggested and rejected. Mr Archibald stated clearly that no-one knew what rectification work Mr Jansen was proposing. Even Mr Hendy, who referred in cross-examination to the two opposing sides in the meeting, did not give any evidence of an identifiable proposal or its possible utility. On the contrary, New Environment's recommendations had been studiously ignored (and there was no evidence that Mr Jansen was reconsidering them), and the Workers' Health Centre had been instructed that very afternoon by Mr Jansen to ascertain the scope of the problem and to formulate a plan for rectification. It was clearly unsatisfactory for Mr Jansen to propose an unconsidered programme of rectification in advance of the report commissioned by him on that very subject and such a response demonstrates a lack of recognition of Hansen Yuncken's obligations under the Occupational Health and Safety Act 2000. 15 and 16 September 2001 311 According to the affidavits of Messrs Jansen and Franklin, no-one worked on 15 September 2001, although Saturday was a work day. The Savcor Site Diary suggested that Savcor employees attended the site but were told by a CFMEU representative that there was to be no work on the site until it was made safe, and that no-one should return to work until contacted by either the CFMEU or Hansen Yuncken. This attendance by Savcor to ascertain whether there was any work, and the direction by the CFMEU representative that workers would be contacted either by the union or by management, and the indication that no work was available at this stage (pending the commencement of rectification work) is further evidence of the genuine nature of the dispute at this stage as one based on concerns for health and safety. On subsequent occasions, Savcor were directed by Hansen Yuncken that there was no work. 312 Sunday, 16 September 2001, was not a working day on the site. 17 September 2001 313 According to Mr Archibald, the only workers on site on 17 September 2001 were those of Hansen Yuncken, "the Ali-Mac (hoist) driver, the nipper and the Chairman of the Safety Committee". Mr Franklin stated that the only workers to attend were the gyprockers of Cator Pty Ltd (who stayed for an hour) and Hansen Yuncken employees. Mr Jansen stated that 28 employees of Cator Pty Ltd, four plumbers from Contrax Plumbing Pty Ltd and four employees of Hansen Yuncken attended, but remained in the sheds and did not work. 314 Two WorkCover inspectors (Mr Robert DuBois and Mr Stephen Cooper) attended the site with Mr Archibald, Mr Duff, two AMWU representatives, Mr Jensen, and Mr Franklin. During the group's inspection, Hansen Yuncken gave the inspectors a copy of the Lead Paint Analysis Report. 315 The inspectors issued two improvement notices. Improvement notice number 238426 stated that Hansen Yuncken's contravention of s8 of the Occupational Health and Safety Act 2000 was likely to continue and required Hansen Yuncken to ensure that "all areas where persons must perform their duties is [sic] identified for lead contaminants" and to ensure the development and implementation of procedures for working with lead-based paint by 21 September 2001. The subject matter of the notice was echoed by the two AMWU representatives, who questioned how the workers could know whether they had been exposed when the lead paint had not been identified. Mr Jansen said that they could assume that all paint was lead-based. Mr Jansen stated that Hansen Yuncken was already complying with this direction: New Environment's Lead Paint Analysis Report identified the lead paint and Hansen Yuncken had required the successful painting contractor produce a safe work method statement for working with lead paint. 316 Improvement notice number 238466 required Hansen Yuncken to ensure that access areas were free from "danger of contact with lead surfaces", noting in particular the risks arising from flaking or damaged paint surfaces, or surfaces upon which work was being carried out. 317 There was a dispute between the parties as to whether the various floors of the building could be reached by alternative means. Messrs Franklin and Jansen asserted that they could via an internal stairway or the man and materials hoist. In evidence which was not contradicted, Mr Duff stated that he did not recall anyone from Hansen Yuncken suggesting at the time that these were viable alternatives. Mr Archibald gave evidence that the internal stairs provided access to the ground level only; gyprock sheets blocked access to all other floors. In cross-examination, Mr Jansen agreed that the internal staircase was barred at the first floor to prevent public access to that part of the hospital, but contended that, had the hospital required, it could have been removed. 318 The respondent made much of the fact that WorkCover issued improvement notices, rather than prohibition notices, and emphasised that WorkCover did not state that work could not proceed. I reject the contention that the absence of a prohibition notice or "stop-work" direction by WorkCover (particularly when no-one was working at the time) can lead to the inference that the site was safe for work. Section 91 of the Occupational Health and Safety Act 2000 empowers an inspector appointed by the WorkCover Authority to issue improvement notices in the following circumstances: 91 Issue of improvement notices (1) If an inspector is of the opinion that any person: (a) is contravening any provision of this Act or the regulations, or (b) has contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated, the inspector may issue to the person a notice requiring the person to remedy the contravention or the matters occasioning it within the period specified in the notice. 319 If one presumes regularity (and this is appropriate as there was no contrary evidence) then the Improvement Notices (which were not challenged by the respondents) evidenced the view of the Inspectors that there was, or was likely to be, a contravention. This evidence clearly negates the contention that, because an Improvement Notice, rather than a Prohibition Notice, was issued, the site was safe (or that there was a reasonable basis for the respondents to act upon the assumption that it was). 320 Ms Trompf returned to the site on 17 September 2001. She, too, was given a copy of the Lead Paint Analysis Report. With the benefit of both of New Environment's reports, she advised Mr Jansen that New Environment's tests did not need to be repeated; that analysis would take time (up to five days); and that Hansen Yuncken should treat the entire site as a hazard and immediately implement control measures rather than wait for a new report. According to Ms Trompf's affidavit, Mr Jansen insisted on a new report, and Ms Trompf accordingly collected samples for analysis. 321 Later that day Ms Trompf provided an interim report to Hansen Yuncken. The detail of this report is discussed in a later section of this decision. In essence, Ms Trompf noted: · extensive surfaces of existing paintwork; · flaking paint in many areas; and · risk of lead contamination through dust. 322 She recommended (among other things): · the development of suitable work method statements, which might require the removal of lead paint (a step which was later confirmed [on 27 September] by the parties as a step necessary to be taken in writing for the full resumption of productive work in all areas affected by lead paint, dust or flakes); · formal training for workers in safe work practices; · appropriate respiratory protection; and · removal at the site and laundering of contaminated clothing. 323 Given Ms Trompf's advice to Mr Jansen that it was not necessary to repeat New Environment's tests and that analysis would take time, and given that she provided an interim report that afternoon (lacking only the laboratory results of sampling insisted upon by Mr Jansen, which, according to Mr Wyatt's affidavit, essentially replicated New Environment's chemical analysis), I reject the suggestion by the respondent that the recommencement of work was unreasonably delayed by the unions' insistence upon a final report by the Workers Health Centre (which was not provided until 25 September 2001). There was no evidence that Ms Trompf's interim report, nor her advice that further testing was unnecessary, were communicated to the workers or union representatives. In fact, the safety committee minutes for the meeting on 24 September 2001 record that they were still waiting for the Workers' Health Centre report. An alternative scenario is that Mr Jansen was unhappy with the interim report and delayed its circulation, in the expectation of a different result in Ms Trompf's final report, or in the subsequent report he commissioned from New Environment. 324 Mr Jansen instructed the MBA to lodge a Notice of Dispute with the Commission. 18 September 2001 325 The Savcor Site Diary recorded that all Savcor personnel, and other contractors such as the plumbers, electricians, plasterers and bricklayers attended the site at 7.00am to find the entire site locked and closed. According to Mr Franklin, approximately 140 men attended and stood by. Otherwise, no productive work took place. The Savcor Site Diary continued: At approx 8.00am some contractors were advised to go home, however when I asked Richard Hansen from H+Y he was unable to give me a direction. The CFMEU arrived at approx 8.15am and after a short meeting we were advised that nothing had changed since Friday and that there was no work today. We were advised to report back to work at 7.00am tomorrow for an update of any developments. I spoke to Richard Hansen and informed him of the above and he said that it was OK and that I'd see him in the morning. With that, the crew was dismissed and we will all reassemble at 7.00am tomorrow. 326 Mr Franklin stated that all workers left the site at approximately 11.00am, but did not specify at whose direction. The Savcor Site Diary noted that advice was sought from Mr Hansen of Hansen Yuncken before any decision was made that Savcor employees could leave the site, but stated that "he was unable to give me a direction". 327 This description of events was largely supported by Mr Archibald's affidavit, although both he and Mr Duff described them as having taken place the following day. Mr Archibald also stated that, at the meeting, the workers accepted that "where productive work could take place that would occur" and that neither the CFMEU nor any other union directed the workers to leave the site. There was no evidence to contradict this, and as I generally accept Mr Archibald as a witness of credit, on the balance of probabilities I accept his evidence that neither the CFMEU nor any other union directed the workers to leave the site (although plainly, the resolution of 14 September 2001 applied). I also accept that the contractors and employees were advised that they should report for work the following day and that Savcor did not leave until directed to do so by Hansen Yuncken. 328 The parties attended a hearing at the Commission before Sams DP where (according to the evidence of both parties) the following remedial actions were agreed: · The amenities block would be cleaned by wet wiping and the air-conditioning filters would be replaced; · From top to bottom, flaking paint in the stairwells would be cleaned; the stairwells would then be sealed, and inspected by the Workers' Health Centre and the safety committee; · Other areas would be rectified in the following manner (area by area): the area would be sealed off; loose paint scraped off; sealed with two coats of acrylic paint; residue would be cleaned up, bagged and removed in an appropriate fashion in accordance with the relevant work method statements and standards; the area would then be investigated and deemed safe. · inspections would be conducted by the safety committee and the Workers' Health Centre as a prelude to the progressive return to work; · there would be site transfers for workers if no work was available on site; otherwise they should present themselves on site and be paid for lost time if authorised by the Commission; and · Workers were to meet on site on 19 September 2001 at 7.00am 329 According to Mr Franklin, Hansen Yuncken considered that, if this procedure was followed, some productive work could commence immediately, and there would be a progressive return to full operation "within a matter of days". 330 Once again, the evidence established the workers' intentions at this stage, by their willingness to return to work subject to safety considerations. This was reinforced by the general agreement before the Commission that there was a problem, and the intention that, subject to authorisation, the workers would be paid. 19 September 2001 331 The evidence clearly established that from 19 September 2001, following the proceedings before the Commission, a procedure was put into place to regulate available work, or transfers to other sites, at the direction of Hansen Yuncken. Mr Archibald gave the following unchallenged evidence in chief on the subject: Q. If I can just take you to after the 14th when the workers left the site, was there any arrangement as to how they would be made available to work on the site when it became safe? A. They were just told that they would be notified through their employers when the site was ready to resume work, so just keep in contact with the foreman, that sort of thing. If it's okay they'd return back to work. Q. Was a different arrangement put in place the following week? A. Yes, it was changed at the Commission on Tuesday. The arrangements were changed that the workers return to the site, turn up to work as normal, report to your foreman and then you wait to be told whether there was work, or it was up to the foreman or the charge on the job whether you would stay and what time you would leave. So everyone would turn up for normal work and when you turn up for work, you would be told whether there was work for you and what time you were to stay there till. Q. Who judged whether work was available? A. Your foreman or whoever was in charge would be notified by management on the site. Q. From what time did that arrangement commence? A. That started on the Wednesday after the Commission on Tuesday, which was the 19th. 332 Mr Archibald thought that Messrs Franklin and Murphy required some workers to sign an attendance sheet (such as the Savcor Site Diary). If work could not be provided, it was up to the individual contractors to decide what the workers were to do. Mr Archibald's evidence was supported by the Savcor Site Diary for 19 September 2001 (and, indeed, the following days of the dispute): all Savcor personnel attended for work on 19 September 2001 and were directed by Mr Murphy that there was no work, and that they could stay or go. They left. 333 Under cross-examination, when presented with the Savcor Site Diary for 19 September 2001, Mr Jansen agreed that the process described by Mr Archibald had been put in place. Mr Jansen also agreed that Hansen Yuncken arranged for contractors' employees to be transferred to other sites, if they so wished. Mr Franklin's evidence was also consistent with such an arrangement: he stated that approximately 125 men ("a bit over half the usual workforce") attended the site for work that day and that some trades were starting to organise transfers to other sites. 334 Unfortunately, the evidence of the manner in which this procedure was followed was not as uniform as the evidence of its adoption. There was conflicting evidence as to whether work was performed, whether the CFMEU impeded the resumption of work, and whether directions were given that no work was available. 335 The issue of whether or not Hansen Yuncken directed workers that no work was available gave rise to a direct conflict. On the one hand, the Savcor Site Diary provided a consistent, impartial record of many such directions to Savcor by Hansen Yuncken personnel, such as Mr Murphy, including on 18, 19, 20, and 21 September 2001. On the other hand, Mr Jansen flatly denied directing any contractor to leave the site in the absence of available work that week. However, as noted above, he was presented in cross-examination with the entry from the Savcor Site Diary for 19 September 2001. In this context he agreed that the process described by Mr Archibald had been put in place and that Hansen Yuncken would arrange transfers to other sites if the contractors wanted. He further agreed that one of Mr Murphy's primary responsibilities as foreman was communicating with the contractors. Although it was never specified, I infer that the "other sites" were sites managed by Hansen Yuncken, and I also infer from Mr Jansen's evidence that although Hansen Yuncken may not have specifically directed workers to other sites, it clearly consented to and participated in the process by "arranging" the transfer. 336 In this case, I prefer the evidence of Mr Archibald and the Savcor Site Diary that Hansen Yuncken directed Savcor that no work was available to Mr Jansen's denial that any such direction was given in the week beginning Monday 17 September 2001. Such a finding does not bear upon questions of whether work was available to be performed by any other contractor, and, if so, whether it was performed. This is an appropriate juncture to record my observation that the evidence of Messrs Jansen and Franklin tended, on occasion, to be coloured (or perhaps exaggerated) by a partisan approach to events during the dispute, and should be treated with a degree of caution particularly where it conflicted with more credible evidence. 337 The issue of whether any general work (as distinct from rectification work) was available to be performed (and, if so, whether it was performed) must be assessed on a daily basis. On 19 September 2001, the safety committee met to develop appropriate measures to comply with the procedure agreed by the parties before the Commission the day before. The minutes noted that ATS had started rectifying the amenities sheds and that tool boxes had been placed at the hoist for cleaning by ATS. (Mr Archibald explained that by this date, many of the workers were being transferred by their employers to other sites and needed their tools for this reason.) There was no other reference in the minutes to work being performed, or whether work (other than rectification work) was available. Airsafe issued a clearance certificate for the site sheds, ground floor corridor and adjoining rooms. Given the Committee's later approach of listing when such work was available (and assuming a regularity of approach), it may be concluded that, on the balance of probabilities, as no such 'safe' work was identified at this time, it was not available. 338 Mr Franklin and Mr Jansen stated that all workers who had attended the site and representatives of the CFMEU, AMWU, ETU and CEPU attended a "stop work meeting" at about 7am to inform workers about the proceedings at the Commission the day before. Mr Archibald also gave evidence that a mass meeting occurred that day, and stated that "it was accepted by the workers that where productive work could take place that would occur". According to Mr Franklin, who was not cross-examined on the events of 19 September 2001, about an hour after this meeting, Mr Duff said to him and Mr Jansen that: "the site is still unsafe: floors, egress and amenities [are] contaminated with lead. Everyone is going to go home again as obviously there are no areas anyone can work." whereupon all the workers left for the day. Mr Jansen noted that ATS workers and the safety committee remained, which is consistent with the safety committee minutes. 339 Mr Duff denied the statement attributed to him by Mr Franklin above; Mr Archibald did not recall him saying it; and Mr Jansen did not refer to it. 340 Mr Franklin stated that Mr Duff then informed him of the following concerns held by the workers (which were referred to in the minutes of the safety committee meeting and which Mr Archibald recalled being raised but Mr Duff did not): · that asbestos may have escaped from the basement into the ventilation risers; · that the ground around the outside of the building was unsafe due to paint flakes which may be tracked into the amenities; · that the filters in the air-conditioning units in the amenities may have been contaminated; and · that a safe work method statement was required for the retrieval of tool-boxes, which were assumed to contain lead paint flakes. This safe work method statement was to include "the use of the ATS specialists, wearing full mask, disposable overalls and booties, enclosing the hoist in plastic for the movement of the boxes, and full decontamination and certification of each toolbox by ATS". 341 Mr Franklin stated that Hansen Yuncken met these concerns: air monitoring of the basement and riser had yielded a negative result; they agreed to change the air-conditioning filters (I note that this had already been agreed at the Commission the day before); and produced a safe work method statement for the retrieval of workboxes in an effort "to get the men back to work". 342 In his affidavit, Mr Archibald described some productive work on 19 and 20 September 2001: As the rectification work commenced there was some productive work occurring, namely, by employees of the Company and the plumbing contractor. Other workers were directed to work in areas in front of the hospital between the kitchen and the emergency department where possible and other workers were transferred to other sites. The gyprock sub-contractor and the metal trades sub-contractor were unable to provide work for their employees at this stage. 343 On the balance of probabilities, I prefer the evidence of Mr Franklin, corroborated as it was, in part, by Mr Archibald, and the minutes of the safety committee, where it conflicts with the evidence of Mr Duff. In particular, I accept the statements attributed to Mr Duff by Mr Franklin. However, at this point, whilst I am prepared to infer on the basis of this evidence a disposition on the part of Mr Duff to be unhelpful , (and perhaps not entirely reflecting the spirit of the agreement reached in the Commission on the previous day), I do not consider that the evidence establishes that his conduct actually impeded available productive work at this stage. Indeed, his statement broadly reflected the state of affairs at the site at this point. 344 There was no dispute that the site meeting voted to do work as and when it became available and there is evidence that there was no contrary behaviour on the part of the workers. It is important to recall that at this stage, there was a significant amount of dust on the floors and window sills of the site; there were also the areas which were affected by flaking paint; and rectification work was in its infancy. I note that there was no evidence of any specific work areas which were available for work on this day but not worked (in contrast to the minutes of later safety committee meetings); nor was there any evidence of a specific direction to work which was disobeyed. Further, Savcor was directed to leave by Hansen Yuncken, rather than by the CFMEU. In particular, I note Mr Archibald's evidence that Hansen Yuncken employees and employees of the plumbing contractor, Cator Pty Limited, performed some work on 19 and 20 September 2001 and the safety committee minutes record the attendance of representatives of Cator Pty Limited, Ralph M Lee and De Martin Gasparini which supports Mr Archibald's evidence that some trades remained after the mass meeting that day. 20 September 2001 345 Again, after attending the site at 7.00am, Savcor personnel were advised by Mr Murphy that there was no work and that they could go home, which they did. Mr Franklin gave evidence that the plumbers started working outside the front of the hospital, hundreds of metres from Building 69, but that they stopped during the morning due to concerns that the ground could be contaminated, and then left. Mr Jansen echoed this evidence, stating that 27 plumbers from Contrax Plumbing worked about 500m from the building but then ceased work at about 11.00 am or 12.00pm when representatives from the CEPU and ETU arrived. Such conduct is plainly indicative of an unreasonable resistance on the part of the unions to the resumption of work in an area where there was no continuous basis for a reasonable concern relating to lead-based paint, and I note that the applicant agreed in its "further and better particulars" that it was safe for Contrax Plumbing to work in external areas from 20 September 2001. 346 Impatient with waiting for the Workers' Health Centre report, Mr Jansen instructed New Environment to take and analyse samples of dust and paint from the site. He also sent a memorandum "to all contractors" reiterating the points agreed between the parties at the Commission and stating that: We confirm that WorkCover advised that work could proceed on site under certain conditions. However, this was refused by the CFMEU. Hansen Yuncken had also developed procedures for workers to return to work on Monday 17th September and we were also prevented from that action by the decisions of the workers on site and the CFMEU. 347 Despite the fact that each attendance by WorkCover at the site during the industrial action was well-documented in various forms and the subject of clear evidence, there was no evidence of any such advice by WorkCover at this stage, and Mr Jansen failed to specify the conditions he attributed to WorkCover or the procedures purportedly developed by Hansen Yunkcen. It is difficult to reconcile these assertions with the process agreed at the Commission two days earlier, and which was conceded by Mr Jansen in cross-examination. In any event, I refer to my earlier finding on the activities of the unions (and the impact of these activities) at this stage and my later conclusions regarding the lack of ATS functions by this date. I do not accept the proposition stated in this memorandum. 21 and 22 September 2001 (Friday and Saturday) 348 The safety committee agreed at a meeting that (a) Schindler Lift employees should be allowed to return to work because their work was on the public side of the building, isolated by temporary partitioned walls, and that (b) ATS's work method statement was under review and should be finalised before they started work on the paint. The minutes further noted that: · in response to concerns by the plumbers about the external grounds, Hansen Yuncken had agreed to institute additional precautionary measures such as air monitoring; · at this stage, most contractors were working at other sites; and · work could proceed in the external area west of the curtain wall and the sprinkler/pump runs, and the "external roof of TMG and new kitchen", because these areas were unaffected by lead paint. 349 The only evidence of any work being done (other than rectification work by ATS) was Mr Archibald's statement that Hansen Yuncken's employees "cleaned up" on the weekend of 22 and 23 September 2001. According to Mr Hendy, whose evidence I accept, despite the fact that the safety committee had agreed that there were limited areas where work could proceed, only remediation work was taking place. It follows that, despite a determination from the safety committee, Schindler's Lifts Pty Limited did not return to work on this date. (I do not consider that Mr Hendy's evidence conflicts with the evidence of Mr Archibald, as "cleaning up" could be better described as remediation work, rather than productive work). 350 I note that, as before, in relation to Contrax Plumbing, the applicant conceded in its further and better particulars that from 21 September 2001 it would have been safe for Schindler Lifts Aust. Pty Ltd to work on the "public side of the hospital". There was simply no basis upon which a "reasonable concern" pursuant to s143(1)(a) could be said to exist at this time for this contractor and the limitation in s143(4)(b) applied to them. However, other than the specific mention of Schindler Lifts Aust. Pty Ltd, there was no evidence as to the nature of the work which could have been performed in the areas mentioned by the safety committee, nor the contractors who could have performed it. The evidence (which I summarise below) leads me to infer, on the balance of probabilities, that workers attended the site with the intention to work (if it was safe) but left when it became apparent that there was no work available which fitted that description. 351 New Environment monitored the air that day for lead concentration, and both samples yielded very low concentrations (less than 0.01 milligrams of lead per cubic metre of air) but I note that no dust-creating work was being performed at the time. I do not consider that this, of itself, would be sufficient to obviate the reasonable concern, because rectification had not concluded and the risk was multi-factored. 352 As before, the Savcor personnel attended for work and were directed by Mr Murphy to go home, because there was no work. Mr Mitchell advised the Savcor workers that there would be no work on Saturday 22 September 2001 because the site was still closed. Mr Archibald gave evidence that Hansen Yuncken also directed other contractors, such as the gyprockers and sheetmetal workers, that there would be no work on 22 or 23 September 2001. Mr Jansen stated that approximately 70-80 employees attended the site for work on 21 September 2001, but left between 7.00am and 11.00am. This is consistent with Mr Archibald's evidence. There was no evidence (or submission) that there was any direction by a union official for workers to leave the site this day, and (as discussed earlier in the judgment) I prefer Mr Archibald's evidence that other contractors were directed by Hansen Yuncken to leave the site (as part of its dealings with the safety risk or other management considerations), corroborated as it was by the Savcor Site Diary, to Mr Jansen's blanket denial of giving any such direction. 353 Mr Archibald stated that ATS had completed rectification to the site sheds and amenities and had started preparatory work on the ground floor of the stairwells. 354 Mr Jansen stated that he contacted the Workers' Health Centre to be advised that the report was not ready and would not be ready until 25 September 2001. 23 September 2001 (Sunday) 355 Mr Jansen gave evidence that five employees of ATS continued rectification to the three staircases until the wind became too high through the open sides of the building, and they proceeded to work on level 1. 356 According to Mr Archibald, by Sunday 23 September 2001 the ground floor was being cleaned, and, in addition to ATS's full complement of workers, another contractor (with five employees), Ross Mitchell and Associates Pty Limited ("RMA"), had been engaged to start rectification on 24 September 2001. Australasian Technical Services Pty Limited's Rectification Schedule 357 It is appropriate to interrupt the chronology at this point to encapsulate the evidence going to the progress of rectification work. As earlier stated, ATS is licensed to remove asbestos and hazardous material. The respondent's allegation that the unions and workers obstructed the work of ATS on the basis of "paperwork" could, if substantiated, have a significant bearing on whether the progressive return to work agreed at the Commission was unreasonably delayed. There was no suggestion that ATS were asked to undertake rectification work on 17 September 2001, and the parties agreed that ATS's full complement of workers, plus those of an additional contractor, RMA, were rectifying the site from 24 September 2001. Hence, any dispute regarding deliberate obstruction to the rectification work being carried out by ATS must be confined to, at most, the six-day period 18 - 23 September 2001, the last day being a Sunday. 358 Mr Archibald was cross-examined about delays to ATS's rectification: Q. If we go to your affidavit, the reasons for the delay concerned your not being satisfied with certain paperwork, isn't that the case? A. Knocked back for a couple of reasons, firstly the 12 new employees didn't have a green card so they had to sit to get their green cards. Q. You described as part of the reasons and I am taking you now to paragraph 21 of exhibit 3, which was your first affidavit. The subcontractor had not registered the new employers [sic] for superannuation, redundancy payment contribution and workers compensation top-up insurance? A. That is right. Q. So they couldn't start for several days? A. They couldn't start because they hadn't a green card. They went off site, sat the green card test that the construction business has to do, come back to the site. We found that out when their work method statement wasn't up to scratch, so four things wrong. Q. All this rectification work, because of these issues, green card, superannuation paperwork, top-up paperwork? A. Work statement, which I think is pretty critical with the job. They were docked, that was the main reason they stopped. Q. I am putting to you this, that it was the want for some paperwork that this rectification process was delayed for several days? A. Well, you call green card paperwork. Q. With green cards, these workers you say didn't have a green card. Is it your view everyone in the industry should have a green card without exception? A. The Worksafe that is not my control, that is the chairman of the safety committee, that is his jurisdiction. 359 However, Mr Archibald denied that either he or the union delayed rectification work and gave the following evidence in re-examination: Q. You were asked some questions about whether rectification work could commence straight away after the Friday [14 September 2001]? A. Yes. Q. You said in your evidence that there was a need for an outside contractor to do that work. Why did you say that? A. Well, you are talking about hazardous problems on the job, so any work to rectify those problems would have to be done by a licensed contractor, the workers with the appropriate ticket to do those jobs. Q. To your knowledge, how would the construction manager go about getting those workers in? A. Well it came out in one of the meetings, I think it was the second meeting on Thursday or Friday, that they were having difficulty because the public works would only let them use contractors that had already been used on the trucks which was ATS and Ross Mitchell, so they couldn't just get anyone to come and do the job. They only used those two contractors and I don't think they had the staff to employ 12 new employees, it took to the final week to get the numbers, Ross Mitchell didn't want to start on the Monday. Q. Which Monday? A. Monday the -- Q. Are we talking about the first week? A. The following Monday, they came in on the Friday [14 September 2001] and did all the paperwork and they said they'd start Monday [17 September 2001], they didn't want to work on the weekend. So he got the numbers on Saturday or Sunday because they had a full crew, 20 odd guys on and they have got guys off other jobs they had going at the same time. I don't think they would have got the number of guys Monday or Tuesday. 360 Mr Jansen agreed under cross-examination that during the week commencing 17 September 2001, ATS had problems finding enough staff to do the job that week, but contended that the problem was exacerbated by union requirements for paperwork. Q. During the week commencing 17 September, ATS had some problems getting enough staff, didn't they? A. Yes, but I think that was compounded by the requirement of some other paperwork and not due to straight numbers. There was a problem with having some documents with regard to their superannuation paperwork and things like that. They were not able to start even though they were on site. Q. Again, if you come back to my question: they had a problem getting enough staff to do the job that week? A. Yes, I guess it is fair to say that, yes. Q. It is also true to say that you tried to get Ross Mitchell to try and have people that week but they were unable to do that? A. Yes, they came later. Q. It was the following week, Monday the 24th? A. Yes. Q. The fact that they were unable to provide sufficient employees to some extent at least delayed the rectification work taking place? A. I think, as I said, part of the delay was also due to the other matter of the paperwork being in place. 361 Mr Jansen stated that on 18 September 2001, "the five employees of ATS" started rectifying the staircases, in accordance with the improvement notice. Mr Archibald's affidavit stated that they actually started work on the amenities that day. Mr Franklin asserted that on that day CFMEU representatives stopped the ATS employees from working, pending "insurances, redundancy fund contributions, 24-hour income protection insurance, and superannuation, as well as Safe Work Method Statements". This was denied by Mr Archibald. In the light of my consideration of Mr Archibald as a witness of credit; his cross-examination (extracted earlier) which suggested that the paperwork issues related to ATS's new employees, and also suggested that the requirement for a "green card" resulted in a delay of no more than a day ("They went off site, sat the green card test that the construction business has to do, come back to the site"); the nature of the paperwork (which pertained to issues usually raised at the commencement of employment); and my earlier observations of the partisan tendencies of Mr Franklin's evidence, I do not accept Mr Franklin's uncorroborated contention that the five existing workers of ATS were prevented by the CFMEU from proceeding with rectification on 18 September 2001. I find, on the balance of probabilities, that the paperwork issues related to ATS's new employees only. 362 Mr Jansen stated that eleven ATS employees were working on 20 September 2001, and that five ATS employees worked on the weekend of 22 - 23 September 2001. Mr Archibald gave evidence that on 21 September 2001 ATS had completed rectification to the site sheds and amenities and had started preparatory work on the ground floor of the stairwells. The minutes for the safety committee meeting that day, attended by Messrs Hendy, Franklin, Archibald and two contractor representatives, recorded the following general item: ATS SWMS under review. Finalisation before start on paint. Currently only concentrated on amenities and tools up to date. 363 I conclude from the evidence that, as Mr Archibald stated, Hansen Yuncken were restricted by the public works to using ATS and RMA for rectification work; and that, through no fault of the unions, RMA would not or could not start work until 24 September 2001. The delay arose in part from a shortage of workers available to perform rectification work. I further find that the decision of the safety committee, (comprising management, worker and union representatives), that ATS's safe work method statement should be finalised before rectification of the paint, cannot be attributed to any obstructive or unreasonable conduct on the part of the unions involved in the industrial action (which I would note does not include the Labor Council) and indeed, could not be described as obstructive or unreasonable. I note my earlier finding that the union demands for paperwork other than industry induction related to the new ATS employees only. Certainly the unions could have adopted a more co-operative approach at this point to the implementation of rectification work. However, while there is evidence to infer that, independently of the issues relating to industry induction or the safe work method statement, there was some additional delay to the work of ATS employees arising from requests for paperwork relating to insurances, redundancy fund contributions, and superannuation, I conclude on the balance of probabilities, that at this stage of the rectification programme, given the independent limitations on contractors available to do this work, and the amount of work completed by the ATS contractors who were available, that if there was any additional delay occasioned by the unions, it was not significant. 24 September 2001 364 The Safety Committee met and recorded the following minutes: · ATS's safe work method statement had been approved and they were rectifying stair access from the top down; · Still waiting for the Workers' Health Centre report, but New Environment were now involved; · No real contracting work was happening inside the building; as a precautionary measure, until reports were produced by consultants, only specialist rectification workers were inside, completing two staircases and level 1. · Work could proceed in the following areas: loading dock; ground floor of the east infill; A&E, Pathology, GDU, and Pharmacy; western curtain wall, underneath, external area; sprinkler pump and fire control room, west side; lift shafts; and lift lobbies. 365 I note that representatives of Hansen Yuncken, Cator Pty Ltd, Savcor Pty Ltd, Ralph M Lee Pty Ltd and De Martin Gasparini attended this safety committee meeting, and I infer that, in accordance with Mr Hendy's evidence of the usual practice after safety committee meetings, the minutes of this meeting were distributed to each attendee; by facsimile to the office of each contractor which was then engaged on the site; and posted on the first aid notice board near the site office. 366 Mr Hendy repeated his evidence that, despite the fact that the safety committee had agreed that there were areas where work could proceed, only remediation work was taking place. Mr Jansen agreed with Mr Hendy that no productive work was taking place and the evidence of Mr Archibald referred to below supports a finding to that effect. In the absence of any evidence to the contrary, I accept that this was the case. Again, the Savcor Site Diary recorded that Savcor personnel attended and were sent home by Mr Murphy on the basis that there was no work. Mr Mitchell of Savcor recorded that "the cleaning of the site" had not finished. 367 Mr Archibald stated in his affidavit that he remembered work starting in the areas nominated by the safety committee on Wednesday 26 September 2001. This is reflected in the applicant's "further and better particulars" table which records that work in these areas was "safe" for Cator Pty Ltd, Fugen Pty Ltd and Leah Pty Ltd from 26 September 2001 and I infer that the work to be performed by these contractors was the work Mr Archibald referred to. The applicant did not adduce any evidence nor make any submission to justify this delay of two days on the part of these contractors and I find, in accordance with the determination of the safety committee and the evidence of Messrs Hendy and Jansen, that these contractors were notified of the determination of the safety committee that it was safe for work to commence in the described areas from 24 September 2001; and that they could have worked on 24 and 25 September 2001 in the described areas but did not. 368 I accept that by 24 September 2001 it was unreasonable for Contrax Plumbing and Schindler Lifts Aust. Pty Ltd employees to refrain from working; and it was unreasonable for Cator Pty Ltd, Fugen Pty Ltd and Leah Pty Ltd employees to delay work for an additional two days. Those employees could have performed work in areas which were noted by the safety committee as being safe for work. This fact had been notified to all contractors; and no work was being performed in these areas by the aforementioned five contractors. There were early signs of some resistance by Mr Duff from 19 September 2001 but the acts were spasmodic and, in any event, either ineffectual, (given the modest level of rectification of unsafe areas in that period (and the correspondingly limited area available for work) or reflected the unsafe condition of most aspects of the site. The events of this day (and 25 and 26 September) also gave some indication of such an attitude, but again, did not materialise as an actual impediment, except for the areas earlier referred to when safe work was not performed. 369 Mr Duff stated that he attended the site to monitor rectification and was told by Mr Franklin that the stairs required a lot of work. In evidence which I do not accept (given my earlier discussion of the events of this day and the unfolding events that I have described), Mr Duff stated that he was not, at any stage, advised of any frustration or concern on the part of Hansen Yuncken at the progress of rectification. 25 September 2001 370 As noted above, the safety committee had determined that work could proceed in the following areas: loading dock; ground floor of the east infill; A&E, Pathology, GDU, and Pharmacy; western curtain wall, underneath, external area; sprinkler pump and fire control room, west side; lift shafts; and lift lobbies. Mr Archibald gave evidence that this work started on 26 September 2001 and I infer from this that no work took place in those areas on 25 September 2001. 371 Mr Murphy informed Savcor personnel at 7.00am that there was no work, but that they should wait in the amenities shed until further notice. At approximately 10.45am Mr Murphy advised Savcor of work to be done on the Western infill area; Mr Mitchell of Savcor inspected the area with Messrs Murphy and Franklin and agreed that it was safe. However, the change room area contained boots, clothing, hard hats and safety vests which still had dust on them and, according to the Savcor Site Diary, were "deemed to still be "contaminated" (by whom, was not explained). The personnel returned to the clean shed while Messrs Mitchell, Murphy and Franklin agreed that those clothes should be replaced with new ones. Messrs Murhpy and Franklin then informed Savcor at approximately 11.30am that they would not be needed for the rest of the day and that they could go home. 372 According to Mr Jansen, 25 ATS workers continued rectifying the staircases and level 1 of the east infill. Mr Jansen gave evidence that he received New Environment's draft report (dated 24 September 2001) in the morning, and that he was advised by Mr Wyatt that clearance "reports" would commence that afternoon. There was no evidence as to when New Environment's final report was produced. According to the applicant's amended chronology, Ms Trompf's report dated September 2001 was provided to Hansen Yuncken this day. 373 Ms Trompf made recommendations which have been referred to earlier. As noted previously, New Environment's report included the following recommendation: in areas where the paint was in poor to very poor condition, loose flaking paint should be vacuumed and scraped off; any remaining paint should then be encapsulated with a dilute PVA emulsion. On the basis of my earlier finding and the evidence of the areas cleared by the safety committee by this stage, (viz external areas and the public side of the hospital; the loading dock, ground floor east infill and western curtain wall) I am satisfied that the following areas of the site were at this stage affected by flaking paint or paint in poor condition: rendered patches of the external walls and concrete columns; the walls, steel banisters and underside of the staircases in all stairwells from the lower ground floor to the seventh floor; the basement area; the white painted external window frames; the central pillars within the ground floor of the new east infill area; and the outside area and lift lobby of level 8. However, the fact that some areas of the site had not yet been "cleared" by the agreed process, does not give rise to the inference that it was reasonable for all work to have ceased. On the contrary, as I have found, it was unreasonable with respect to the aforementioned five contractors. 26 September 2001 374 Savcor attended and were directed by Hansen Yuncken to sweep and clean up general rubbish in the Western Infill area. In the course of this work, they were directed by Mr Murphy to stop, because of the dust, and to return to the site shed, where they sat until 10.30am. Mr Murphy then advised them that there was no work and that they were free to go home. 375 As noted above, Mr Archibald gave evidence that on 26 September 2001 work commenced in the areas described as safe by the safety committee at its meeting on 24 September 2001. In particular, he stated that employees of the following contractors commenced work: Cator Pty Limited, the gyprocking contractor; Fugen Pty Ltd, the bricklaying contractor; Schindler Lifts Aust. Pty Ltd, the lifts contractor; and Leah Pty Ltd, the sheetmetal contractor. 376 Mr Archibald and representatives of the CFMEU attended a further hearing at the Commission and Sams DP recommended that WorkCover attend the site to facilitate a procedure for the return to work, although Mr Archibald disagreed with Mr Jansen's contention that such a procedure was to be based on New Environment's report alone. According to Mr Duff, Mr Murray complained of "delaying tactics"; again, in evidence I find difficult to accept, Mr Duff stated that this was the first he had heard of such a complaint. 27 September 2001 377 Savcor personnel were again directed to wait in the shed until further notice. At 10.30 am they were advised by Mr Murphy that there was no work and that they could go home. The Savcor Site Diary for the day also recorded a site meeting: A group of CMFEU Delegates including Alan Duff (organiser) then addressed a meeting of all contractors on site and informed us of the current position between the CMFEU, H+Y and the Industrial Relations Commission. Basically nothing has changed and WorkCover will inspect the site today to determine whether it is a safety issue or an industrial dispute and report back to the commission who will make the necessary orders . [Emphasis added.] 378 The advice to the assembled contractors that "nothing has changed" was clearly disingenuous and misrepresented the actual state of affairs: that some areas had been cleared for work; that two reports had been furnished, with recommendations; and that rectification was proceeding apace. In a development to my findings that some work was being unreasonably impeded from 24 September 2001, this evidence makes it clear that the unions' activities were contrary to its undertakings to the Commission; were having a real effect at a practical level (work was being impeded: see the reference to Mr Jansen's affidavit below); and suggests that, at a broader level, other considerations, such as industrial considerations (or, as the Intervenor submitted, efforts to "control" the site) were in play. 379 Mr Jansen, Mr Hendy, Mr Archibald, Mr Wyatt and Mr McVeillage of New Environment, Ms Trompf, Mr Franklin, Mr Duff, WorkCover inspectors Mr DuBois and Mr Lee, the Energy Union, Mr Murray of the MBA, and representatives of some of the contractors also attended a meeting at the site at approximately 11.00am. According to the minutes: · Ms Trompf stated that some paint and lead samples had significant levels of dust; Mr Wyatt that the levels of hazardous dust were within the normal range and that air monitoring had been negative. · Mr Jansen noted that no work (like drilling or chasing) would take place on existing paint surfaces without work method statements in place; · Mr DuBois noted the following requirements before the recommencement of work: i. Clearance certificates to be obtained for all areas; ii. Work method statements must be prepared and adopted for tasks which would disturb existing paint; iii. If paint was not to be disturbed, no work method statement would be required. · Clearance certificates were shown to WorkCover for the following areas: amenities/loading dock; Ground Floor/East Infill; all three staircases; and Level 1. There was no issue that these conformed with the requirements imposed by the WorkCover inspectors. 380 Ms Trompf stated in her affidavit that at this stage no proper safe work method statements had been produced (despite having been recommended in her interim report of 17 September 2001) and there did not appear to have been any progress in developing one. For this reason she did not consider that it would have been safe for normal work to resume. However, Ms Trompf did not dispute Mr DuBois's conclusion (agreed to by Mr Jansen) that work method statements would be required for tasks which would disturb existing paint but that other tasks could proceed in cleared areas. 381 According to the parties' statement of agreed matters and issues, at the conclusion of the meeting those present, including Mr DuBois, agreed that work (other than work involving drilling or grinding of painted surfaces) could commence in those areas in relation to which a clearance certificate had been issued. 382 In the absence of any evidence to the contrary, I accept the implication in Mr Jansen's affidavit ("on this basis [ie, what had been agreed at the meeting], work should have been able to restart") that work generally did not in fact recommence until the morning of 28 September 2001. 28 September 2001 383 A clearance certificate was issued on 28 September by New Environment in relation to the access stairs, Ground Level and Level 1. Airsafe issued a clearance certificate in respect of "internal surfaces, Level 1, Building 69". By reference to its amended table (see paragraph 13 of this decision), the applicant accepted that all contractors could return to work this day in these areas (subject to the fresh matters discussed below). 384 Mr Hendy chaired a site safety meeting attended by, amongst others, Mr Keenan and Mr Miller (the Occupational Health and Safety Officers for the CFMEU), Ms Leigh Rhiannon (Upper House Member for the Greens), and members of the media. According to the Savcor Site Diary, the meeting was conducted on the helipad to inform the workers of "the current impass [sic] between themselves and H+Y". According to Mr Archibald, there were about 85 workers on site, and employees were apprised of the progress of rectification work at the site safety meeting. 385 According to Mr Archibald, the following contractors worked after the site safety meeting: ATS, Contrax plumbing Pty Ltd, Hansen Yuncken, Leah Pty Ltd, Cator Pty Ltd, Fugen Pty Ltd, Australian Health Services, and Schindler Lifts Aust. Pty Ltd. 386 Mr Janson gave evidence that Mr Duff instructed ATS employees to stop rectification work because "they were not adhering to their agreed SWMS" and because there were paint flakes on the ground outside. Mr Duff could not recall "directly stopping the rectification work", but deposed that he did raise concerns regarding the encapsulation of the stairwell. Mr Archibald did not believe that ATS were stopped by Mr Duff, but gave evidence that they modified their work practice to ensure that the hoist would not be contaminated with any lead dust. 387 Mr Duff then conducted a site inspection with Mr Keenan and Mr Miller following which he issued Hansen Yuncken with three Safety Rectification Notices. Mr Hendy deposed that most issues were "fairly minor" and "readily fixed"; that all workers were stopped while the inspection was conducted; and that "…some of the issues arose because the workers were told to leave what they were doing, rather than having the opportunity to make the work safe before they stopped". The safety issues raised by Mr Duff in the Rectification Notices ranged from a wobbly pie warmer to the possible existence of lead paint and alleged lack of dust control. 388 Mr Duff then contacted WorkCover, who attended the site later that day and issued Prohibition Notice numbers 143153, 143154, 143155 and 143156, and Improvement Notice numbers 238410, 238411, 238412 and 238413. 389 The Prohibition Notices were issued for the following reasons: a "Unsuitable scaffolding, different types of scaffolding mixed to support six levels of scaffolding. Scaffolding has loose timbers on U heads" (Prohibition Notice 143153); b "Bags of sand on damaged pallets. Danger of persons getting injured by pallets collapsing" (Prohibition Notice 143154); c "Persons are placed at immediate risk resulting from the removal of hazardous substances including lead based paint. Safe system of work have not be [sic] determined covering all aspects of this process. Observed were: · containers of haz subs not labelled · haz subs in access areas · workers involved in process not aware of control measures. (Prohibition Notice 143155); and d "Hoist intercom system is damaged, hole in the roof of ladder attached with wire" (Prohibition Notice 143156). 390 The Improvement Notices were issued for the following reasons: a "Persons may be exposed to risk due to unsafe systems of work involving electrical leads and equipment" (Improvement Notice 238410); b "Persons may be exposed to risk resulting from construction fencing not built in accordance with Australian Standards and used to prevent access to hazardous areas" (Improvement Notice 238411); c "Persons may be exposed to risk of injury resulting from excavation bordering access way" (Improvement Notice 238412); and d "Plant used onsite have no log book with maintenance records complying with monthly inspections" (Improvement Notice 238413). 391 Mr Hendy explained in his first affidavit, in unchallenged evidence which I accept, that: 31…[the Prohibition Notices] concerned scaffolding, sand on damaged pallets, allegedly hazardous waste, and a damaged intercom in the hoist. The scaffold wasn't actually in use, and the pallets weren't actually on our job - they belonged to some work being done for the Hospital directly and had nothing to do with the Project. The allegedly hazardous waste was a set of disposable overalls in a bin, which had been worn by the hoist driver and not exposed to paint dust. In any case these Prohibition Notices would not have significantly impeded safe work on the Project. The problems were quickly fixed however, and by the weekend they had been complied with. 32. The WorkCover inspectors also issued five Improvement Notices relating to electricals, fencing on a small excavation outside the building and away from the main work areas, log books for the excavator, and access to first aid facilities….These were mostly addressed on the spot or the next day. 392 I note from Mr Hendy's evidence above and Mr Archibald's concession in cross-examination that the prohibition notice in relation to "hazardous substances" related to the storage of a pair of disposable overalls which may or may not have been exposed to lead dust. 393 Mr Archibald gave evidence that work stopped across "the areas that were involved with the prohibition notices" and stated in cross examination: Q Yet work stopped across the whole site? A Well, I mean, when you say the whole site, the whole site wasn't working, you had 20 odd ATS guys doing remedial work and you had 20 or 30 guys working on site in different places. 394 I infer that, as a practical matter, all work which had resumed on 28 September 2001, stopped. This inference is supported by the direct evidence of Messrs Jansen and Hendy. 395 After waiting in the sheds for a direction, Savcor personnel were advised by Mr Murphy at 12.30pm that there was no work and that they should go home; that there would be no work on 29 September 2001; and that they should not return until Wednesday 3 October 2001 (1 October being a public holiday and 2 October being a rostered day off). They left the site at approximately 2.00pm. 396 It is clear that by 28 September 2001 the unions involved in the industrial action (which did not include the Labor Council), in the form of Mr Duff, were looking for any opportunity to obstruct or prevent the resumption of legitimate work in flagrant contravention of their undertakings to this Commission (in the course of the Commission's dealing with the industrial dispute) and the solemn promises they voluntarily accepted in the award. 29 and 30 September 2001 (Saturday and Sunday) 397 According to Mr Archibald, work proceeded to rectify the matters covered by the WorkCover Prohibition and Improvement notices. Mr Janson deposed that no other work occurred on the site. 1 October 2001 398 Monday, 1 October 2001 was the Labour Day public holiday. Mr Archibald deposed that some workers from Savcor, Cator Pty Ltd and Hansen Yucken "turned up and undertook productive work". 2 October 2001 399 Tuesday, 2 October was an industry rostered day off. Mr Archibald deposed that some workers from Savcor, Cator Pty Ltd and Hansen Yucken "turned up and undertook productive work". 3 October 2001 400 According to the applicant's further amended application, there is no claim for any order or authorisation for remuneration for 3 October 2001 or any following day (other than to the extent that the second milestone period continues to 18 October 2001) and a detailed examination of subsequent events is therefore not necessary. 401 WorkCover inspectors attended the site and cleared all notices except a minor item concerning the "Alimak" hoist; the CFMEU held a site meeting with workers; Mr Jansen issued a direction to work; and, according to Mr Archibald, employees of Wideform Pty Limited, the formwork contractor, returned to work (although he did not specify at what time), as did employees of Allstaff Pty Limited and AHS Pty Limited. The following new trades also undertook productive work: painters, tilers and vinyl layers. 402 Tellingly, the parties attended the Commission again and, according to Mr Jansen, Sams DP directed an immediate return to work, failing which ""orders" would be issued". Mr Jansen deposed that work then recommenced from approximately 11.00am. Mr Archibald conceded that "Deputy President Sams recommended that the parties confer and [that] productive work commence". 403 The Savcor Site Diary stated that: Savcor personnel on site and ready for work at 7.00am. Adrian Murphy from H&Y advised that there was no work at present and to remain in the sheds until further notice … At approx 11.00am [I] asked Adrian Murphy if there was any work for us for the day, and he advised me that Ground Floor and Level One were clear to work. I explained to Adrian Murphy that whilst we were more than prepared and happy to return to work, we had no available work on either the Ground Floor or Level 1. He understood this and advised us that we were free to leave the site as there was no work for us. I kept both SB and PD informed of all matters during the day before leaving the site at approx 11.30am. 4 October 2001 404 The safety committee met to review the progress of rectification of matters raised by WorkCover on 28 September 2001. 405 New Environment provided Hansen Yuncken with a work method statement dealing with the risks arising from working with lead paint: the "Work Method Statement for Lead Paint Surfaces". Messrs Jansen and Hendy gave evidence that the manner in which dust-creating work was conducted changed following the production of this work method statement. Specifically, areas where dust-creating work was done were barricaded off, drop sheets were used, surfaces were dampened, regular clean-ups were enforced and additional hygiene requirements were introduced. 406 A site meeting was convened by the unions, and employees were told of the outcome of the hearing the previous day at the Commission. The Savcor Site Diary stated: A vote was taken to return to work in all areas which had been cleared and had a written clearance certificate issued. These areas were the Ground Floor and Level 1 only. Milestone Incentive Payments 407 There were two milestone incentive payments which were withheld during the period of the industrial action (this was advised by letters dated 8 October 2001 and 19 November 2001). These were for the following milestone periods: 27 August 2001 to 24 September 2001 (the first period) and 25 September 2001 to 18 October 2001 (the second period). 408 According to Mr Archibald, the first milestone related to the practical completion of level 2 west infill, but it was clear as at 14 September 2001 that that milestone was not going to be met. A Project Monitoring Committee meeting was scheduled for 17 September 2001 and Mr Archibald contended that, at this meeting, (which was not in fact held on 17 September 2001), he expected the milestone to be adjusted. The Project Monitoring Committee, in fact, met on 18 December 2001. The minutes of that meeting revealed that a milestone incentive payment for the period 19 October 2001 to 19 December 2001 was made (based on the completion of the pouring of concrete on 19 December 2001), but no payment was approved for the milestone periods ending 24 September and 18 October. 409 The Project Monitoring Committee did not make any assessment as to whether extenuating circumstances may have warranted payment of the two milestone incentive payments which were withheld. There is no evidence that any application was made to the Committee for such relief. Further, Mr Jansen confirmed in cross-examination that any such extenuating circumstances were not discussed at the Project Monitoring Committee meeting on 18 December 2001. Consideration 410 The application of s143 to the factual circumstances of the industrial action in question in this matter and ultimately the exercise of any discretion by the Commission in that respect is assisted by the dissection of the strike into the discrete time periods discussed below. 14 September 2001 411 The Commission has found that, following the disclosure of the Report at the site meeting, the workers who attended the site meeting held on 14 September 2001 were genuinely concerned for their health and safety due to the presence of lead-based paint on the site (and the corresponding prospect of contamination of the site and them with lead dust) and the fact that a report had been commissioned a year earlier, referable to that occupational health and safety issue, but none of the recommendations had been either comprehensively reviewed by the safety committee (having regard to the chairman's ignorance of them) or followed. I note, in this respect, the earlier discussion of legal principle in this judgment that a "concern" in the statutory sense may be inferred from the collectively expressed opinion of employees assembled at a union meeting and from relevant surrounding circumstances (although, in this case, there was unchallenged evidence of the requisite concern). 412 The Commission has also found that there was an overwhelming inference that the employees of each respondent (being contractors at the site during the relevant period) attended the meeting. As discussed earlier in this decision, s143(4)(b) limits, however, the employees to whom an employer may be authorised or ordered to make payment, to those employees who are affected by the health or safety concern or, put differently, those for whom there was a rational basis for holding a bona fide belief that a risk existed to their health or safety. Analysis of the requirements of s143(4)(b) should not confuse the evidentiary tasks of the parties. These proceedings are not criminal proceedings. In order to satisfy the requirements of s143(4)(b), the applicant must satisfy the Commission, as a matter of fact, on the balance of probabilities, that a sub-group (which could be equal to the whole) of those employees engaging in industrial action were affected by the health or safety concern. The requirements of the civil burden of proof were reiterated by the Commission in Re Equal Remuneration Principle (2000) 97 IR 177 at paragraph [67]: …To the extent that that inquiry involves the determination of issues of fact, that is to be approached in the traditional and usual manner of fact finding before courts and tribunals. That is, the determination of such issues is on the basis of the traditional test of finding "on the balance of probabilities": see Malec v JC Hutton Pty Ltd (1990) 169 CLR 438 at 642-643. It is not necessary to make findings on the basis of notions of absolute certainty. Such an approach to fact finding, which seemed to be pressed upon us at various stages of the proceedings, if not by the advocates then at least suggested by some of the witnesses, represents a significant misunderstanding of the nature of the role of courts and tribunals in the common law system of adjudication. 413 Having noted that the civil burden of proof does not require absolute certainty, it is important to bear in mind the High Court's discussion of the importance of context in Briginshaw v Briginshaw (1938) 60 CLR 336: factors such as the seriousness of an allegation or the gravity of the consequences flowing from a particular finding will affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. Here, a determination of reasonable satisfaction must be influenced by the interpretation of s143(4) as a limited exception (which should be confined strictly) to the general prohibition on strike pay in s143(1). 414 Bearing in mind the appropriate burden of proof, and the statutory context, I am satisfied on the balance of probabilities that, on 14 September 2001, all employees were affected by the concern (in the sense referred to in s143(4)(b)). All of the evidence which substantiated the employees' reasonable concern at that stage suggested that the serious hazard which had been identified affected the entire site: most painted surfaces contained lead-based paint; the hazard was manifested by the ingestion or inhalation of fine particles of lead dust; there was dust throughout the site at the time but no evidence to indicate clearly whether the lead levels in the dust in any particular areas were "safe"; work at the site at the time included dust-creating work; there was no evidence to suggest that any areas of the site were free from the hazard; no general rectification had been instituted in response to the hazard (or the earlier received report); and there were no safe work method statements to limit the risk of exposure not only for those performing dust-creating work but for all other employees coming into contact with the dust. 415 The foregoing paragraphs summarise my conclusion that the applicant has satisfied ss143(4)(a) and 143(4)(b) in relation to 14 September 2001, subject to whether the concern was "reasonable" as that concept is discussed in the earlier analysis of legal principles. I am satisfied that it was. 416 As discussed in paragraphs [173] - [178], the applicant was not required to establish an actual risk in order to establish a reasonable concern. Broadly speaking, the concern may be reasonable so long as it is not fanciful, illogical or irrational. What must be examined objectively is the perception of the "ordinary employee" in the same situation. 417 The evidence overwhelmingly established that, objectively, there was a rational basis for the employees of the respondents to be concerned for their health and safety due to the presence of lead-based paint on the site, the risk of contamination by it, and its hazardous effects. They had been advised in the site-meeting that the ingestion of lead could present a serious safety hazard; and told of a report which confirmed the existence of the risk and concluded that most of the painted surfaces contained lead-based paint but had not been acted upon. They were not given any countervailing information to assure them that the safety issue had passed or that measures were in place or programmed to remove it: in fact, it was plain that the very person chairing the safety committee, charged with the responsibility to consider such matters had no relevant knowledge of the issue raised. In any event, there were no such measures. 418 It is no answer to the existence of the employees' reasonable concern to state that Ms Trompf had indicated in the site meeting that steps may be taken to alleviate the hazard. It is clear from the detail in her interim and final reports (which mentioned additional requirements such as paint removal and work method statements) that Ms Trompf did not intend to state exhaustively the measures required. Management had taken no such measures at the time and there was no suggestion that, of themselves, such measures would entirely remove the risk to health and safety. Indeed, it was clear from the evidence of the experts that the hygiene measures described by Ms Trompf in the meeting alone were not enough, and, in the absence of procedural framework (such as proper supervision and work method statements), would not be very effective. 419 Further, the workers were aware that dust-creating work had been performed without protective measures tailored to the risks arising from lead inhalation or ingestion. There was a rational basis for being concerned about the activities of management and the safety committee in relation to this potential hazard notwithstanding opinions of an independent expert as to remedial measures. As noted, the safety committee chairman had no understanding of the Report or how the problem should be addressed. Mr Murphy would not attend the site meeting. No-one from management attended the site meeting to explain its attitude to the Report despite requests from the workforce for them to do so. 420 It is not to the point whether there was an actual risk or not. It is not necessary, in order to satisfy the jurisdictional test in s143(4)(a), that there be proof of an actual occupational health and safety risk that an employer has failed to rectify (in the sense, for example, of establishing that a breach of the Occupational Health and Safety Act 2000 occurred at the time of the industrial action). It is even less to the point, whether (as contended by the respondents) the workers were engaged in "lead processes" as formally defined in the standard at the time industrial action commenced. Be that as it may, in my view, there was a risk to the health of employees working at the site on 14 September 2001 due to the presence of lead at the site: the evidence indicated, at the least, that the dust-creating work at the time of the industrial action posed a risk to health (on the part of Mr Wyatt); and, at the most, that the dust-creating work would be included in the standard's definition of "lead processes" and posed a direct and widespread risk to the health and safety of any employee engaged to perform work at the site (on the part of Ms Trompf). I refer generally in this respect to my conclusions in the section on the presence of lead in support of these considerations. 421 There was no evidence of failure on the part of any worker engaged in the industrial action to comply with a direction of the kind described in s143(5) of the Act and accordingly that section does not apply to this day. 422 I reject the Intervenor's submission that I could not find a reasonable concern for health and safety in respect of the entire site by virtue of the failure of the unions to notify the hospital of the risk so that it could take steps to safeguard hospital patients and staff. This submission was made with some temerity given that the project manager, Hansen Yuncken, had for twelve months withheld and failed to act upon a report (the Report) which plainly warned of the risks. 423 In conclusion, and in conformity with my earlier analysis of legal principles and the interpretation of s143 of the Act, and with my findings of fact, I am satisfied that the industrial action was based on a reasonable concern for the health and safety of all workers at the site on 14 September 2001 and that the applicant has made out the jurisdictional facts permitting the exercise of power under s143(1). 424 As for matters pertaining to the exercise of discretion, the primary issue raised by the respondents and Intervenor relevant to this date was that there was a breach of the terms of the award. Two considerations arise for immediate attention. Firstly, I agree that the terms of the award, and in particular clause 6, are relevant to the exercise of my discretion. They are not, however, (as may have been suggested by the respondents and Intervenor), determinative of the exercise of the discretion. No express fetter of that kind can be found in the terms of s143. In any event, the operation of the award must be one (albeit an important one) of a number of factors relevant to the exercise of that discretion, given that s143(4) confers a discretion in relatively broad terms. 425 Secondly, it is significant that the award was a project award made by consent. It is appropriate, in my view, that an award which is made as an enterprise or project award should presumptively be treated as if it has been tailored to the particular circumstances of the enterprise or project with respect to which is has been made (although the terms may indicate some contrary conclusion is required). It should, therefore, be construed liberally so as to give it practical operation. Secondly, it is a consent award: as noted by the Full Bench in Broken Hill Chamber of Commerce and Ors v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2002] 118 IR 183, such an agreement should not "be lightly departed from". 426 I do not consider, however, that the terms of the award constitute a proper basis for the exercise of discretion to refuse the application for this day. The evidence does not support the assertion by the respondents that, by the time the safety committee met on 14 September 2001, the workers had already left the site. In fact, and having regard to clause 6.7.3(b) of the award, it was the safety committee's meeting with union representatives and management which unearthed the Report and led to events which culminated in the workers' departure. 427 Nor do I accept, in the context of its role as defined by the award, that the safety committee was excluded from discussions about the hazard and how to rectify it to such an extent that I should exercise my discretion to refuse the application for this day. In fact, the safety committee was actively involved throughout the dispute on and from this day. 428 I reiterate my earlier finding that following an initial inspection on the morning of 14 September 2001 the safety committee became aware of the existence and extent of the problem (by virtue of the Report) at the same time as the union officials (before the site meeting) and that, at the meeting during which this occurred, in response to the concerns expressed by both the safety committee and by Mr Duff, Mr Jansen agreed to ask (and did ask that very morning) an independent expert, the Workers' Health Centre, to assess the risk and provide a report. The safety committee was involved in the initial inspection; the discovery of the potential scope of the problem; and the decision to involve an independent expert to delineate the problem, all of which occurred before the site meeting. Mr Hendy, in his ignorance of the Report, had nothing to add at this stage. Further, both Mr Duff and Mr Jansen contacted WorkCover (the arbiter nominated by the award in the event of a dispute as to rectification) that day. 429 As I have already noted, I do not consider that the safety committee could have contributed anything more to this unfolding safety issue; in fact, its role had been greatly deprecated by management's approach to the matter to this point. In the following days of the industrial action, the safety committee continued to meet to implement the programme of rectification agreed at the Commission; to record and publicise areas of the site which were progressively cleared; and to participate in discussions with management, unions and WorkCover about which requirements should be met before work recommenced (although I observe that all of this process adds force to the finding that the concerns held by the employees were reasonable). 430 As to clause 6.7.1 of the award, the provision draws a distinction between "safe" and "unsafe" areas of the site (the clause requires, in essence, that work continue in areas "not immediately affected"): a distinction of little import in the circumstances here under consideration when there was a real concern that the identified health and safety problem encompassed the entire site, and when the chairman of the safety committee pleaded ignorance in a heated site meeting of all workers about the nature and extent of that very problem. In fact, there was no direction as such by management for workers to perform productive work in a particular safe area of the site on 14 September. A decision had been reached to seek independent advice as to the scope of the health and safety problem. In short, there was no area which was (or could be) identified as "not immediately affected" (essentially because of the prior approach of management to the problem). The only direction from management that day was for rectification to proceed and that direction was flawed, as discussed above. 431 It should be noted that the requirements of clause 6.7.1 of the award are reciprocal: all parties agree to do everything practicable to maintain the site in a safe condition. Management had clearly abrogated this obligation as at 14 September 2001 in its treatment of the Report in the preceding twelve months (and its corresponding incursion on the role of the safety committee, described above). Indeed, acts such as ignoring an expert's recommendations for twelve months and then insisting upon immediate, unspecified "rectification" the very afternoon another expert's report had been commissioned could be said to have rendered the entire safety procedure at the site dysfunctional. 432 The award is more stringent than the requirements s143 of the Act, in one sense, in that it refers to a cessation of work only in areas "immediately affected by a reasonable concern as to the existence of an imminent risk to health and safety". As earlier discussed, although notions such as "imminent risk" do not affect the existence of jurisdiction, they may be relevant to the exercise of a discretion under s143. In this case, I consider that there was both a concern as to and the fact of an imminent risk: the evidence established that at the time, dust-creating work was taking place on unrectified painted surfaces in the absence of any work method statements addressing the hazard of lead contamination (I note, in this respect, that work method statements are also required by clause 6: see clause 6.3). The reasonable concern extended to the entire site at this stage. No area had been identified as safe from the hazard at this time. In fact, all parties had agreed to instruct Ms Trompf to assess the hazard and to make recommendations, precisely in order to determine (among other things) at the earliest time whether there were areas not immediately affected by the hazard or what needed to be done to create such areas. 433 There is a further important discretionary consideration in relation to clause 6 of the award. Clause 6.7.3(a) requires that, in the event of a "safety dispute" as to whether one or more work areas are safe, a procedure will be adopted whereby employees shall be required to remain on the project unless directed to leave in the event of an emergency. This provision compliments the provisions of clause 6.7.1 which require that all employees remain available on site to carry out work in areas "not immediately affected" (or to carry out rectification works). 434 The intention of the award is, in my view, clear. Where there is disputation over a safety issue, the employees shall not engage in strike action per se such that they would vacate the work site. Rather, the dispute will be managed by the quarantining of the affected area and establishing a rectification schedule. 435 In this case, the workers vacated the work site so an issue arises as to whether there was a breach of the award and more significantly whether that conduct should result in the exercise of a discretion to refuse an application brought under s143. 436 It must be stated at the outset that in the ordinary course, a failure to adhere to the provisions of a building project award of this kind would be a significant reason for the refusal of the application. Provisions such as the one in question are intended to achieve a proper balance between the maintenance of a safe workplace and a productive project meeting milestone conditions (in which safety should be, in my view, afforded primacy). The provisions of clause 6.7.3 represent an essential ingredient of the agreement reached between the parties for the project. However, I consider that, on 14 September 2001, there was a highly unusual set of conditions which should not result in the exercise of a discretion to refuse the relief sought by the applicat (and which warranted a conclusion that there was either no breach of the award or that any breach was purely technical and minor). Those conditions were threefold: 1. There was not a 'safety dispute' as referred to in clause 6.7.3 in the sense that there was a controversy over whether the site was unsafe or not. Once management accepted that the matter was to be referred for further expert attention then the site remained a safety hazard until that advice was received and clearance was given or rectification undertaken. By the very nature of the process to be undertaken and the history of neglect, this could not be resolved on 14 September 2001. There was, in fact, only a dispute about rectification but the position of management to that issue was flawed. 2. There was the highly unusual circumstance that the whole project was potentially at least affected by the safety hazard. 3. As earlier noted, there was not an area which could be deemed as available for productive work, that is, an area "not immediately affected". 437 In my view, there is a proper basis for exercising my discretion to order and authorise payment: a serious safety issue was identified, there was a reasonable concern held by and in respect of all employees; there were serious failures by management including its failure to provide information to the safety committee and members, and, on balance, no contrary discretionary factors at this stage. There was, in reality, an acceptance by management that there was a serious site wide safety problem which effectively precluded the performance of work until the site was identified as or made safe. 438 The actions of management leading up to 14 September 2001, belie any recognition or appreciation of the serious obligations to be proactive in identifying and eliminating risk imposed upon them by the legislative framework for workplace health and safety: most notably, the Occupational Health and Safety Act 2000. It is simply not enough to commission an expert's report and then shelve it. In addition to acting upon it, management should have consulted the workforce in relation to both the risk assessment and measures which should have been taken in response, and ensured both the institution and implementation of appropriate work method statements (as recommended by Ms Trompf and agreed as an essential requirement by both parties on 27 September 2001). 439 To conclude, an authorisation or order for payment for those employees of the respondents who were working at the site on 14 September 2001 and engaged in industrial action in consequence of their concern for their health and safety is justified in all the circumstances. 15 - 18 September 2001 (The Second Period) 440 The conditions which substantiated my conclusion (both as a matter of jurisdiction and discretion) to order payment for 14 September 2001 did not materially change in this period. If anything, they were enhanced: WorkCover inspectors attended and issued two improvement notices, both of which bore directly on the health and safety issue giving rise to the concern on 14 September 2001; the Lead Paint Analysis Report was provided to the WorkCover inspectors and (later) to Ms Trompf; Ms Trompf attended, recommended that the entire site be treated as a hazard and that control measures should be implemented immediately and then produced an interim report with several recommendations including the development of suitable work method statements which might require the removal of lead paint; and there was a general agreement reached in the Commission including an arrangement that where safe work was not available there could be site transfers and, if employees presented themselves to the site they may be paid for lost time if such payments were authorised by the Commission. There was no evidence of any rectification having taken place in this period to change the physical nature of the hazard at the site, and no suggestion that there was work safely available which was not being performed. 19 September - 26 September 2001 (The Third Period) Was there any change to the Jurisdictional Basis under s143(4)(a) in the third period? 441 No circumstance arose during the period 18 - 26 September 2001 which would, on balance, warrant a conclusion that the jurisdictional basis for granting an order or authorisation under s143(4)(a) had been removed. I have reached this conclusion bearing in mind the following events during the period: 1. Reports had been commissioned and provided, but none of them obviated the rational basis of the concern formulated on 14 September 2001; 2. Rectification work occurred during the period, but (except in specifically certified areas) this work did not warrant the conclusion that the site was safe for the resumption of general work; 3. Ms Trompf's interim and final reports stressed the paramount importance of appropriate work method statements (which had not been produced). This stipulation conformed with the requirements of the award. This importance was subsequently confirmed by the agreement reached between the unions, safety committee and management on 27 September 2001 with the imprimatur of WorkCover inspectors that, even in cleared areas, work which disturbed painted surfaces could not proceed in the absence of appropriate work method statements. It is no answer to concerns which flow from this omission to say, as the respondents did, that a work method statement which "contained controls appropriate to lead dusts" (but did not mention lead) was provided to the demolition contractor at the time of demolition or that the painting contractor would be required to develop an appropriate work method statement before starting work. Nor, given the clear evidence that the generation of lead dust itself constituted a risk, is it an answer to state, as the Intervenor did, that Mr Hendy intended to require a work method statement in advance of any "lead process" as defined in the standard; and 4. Workers who attended the site during this period in order to work were transferred to other sites or directed not to work, except in areas which had been certified as safe. This showed that the workers continued to hold a genuine concern. Indeed, on one view, the course of conduct of the employees very much gave the impression that they were not engaging in industrial action. There was a failure to work in certain areas during this period but I do not consider that this fact translates to a general proposition that the balance of the employees were behaving in a manner which either lacked genuineness or rationality in accordance with the statutory tests. Indeed, the evidence (as discussed in these 4 sub-paragraphs) demonstrated the contrary proposition. Conclusions relating to Section 143(4)(b) for the Third Period 442 I accept that the applicant has the evidentiary burden of demonstrating that the group described as the "remaining respondents" in the applicant's submissions satisfied the requirements of s143(4). In a practical sense, this required the applicant to establish that this group was affected by the health and safety issue; that is, the requirement for them to perform work in the unsafe lead paint areas caused the requisite concern. The corollary was that there was safe work for them to perform. 443 It is plain that, in this period, work was available to be done in areas described as safe by the safety committee in its minutes. The fact that work was not done in some cases warrants the conclusion that those workers, who are identified in the findings of fact, should be excluded from any order which may be made. 444 However, I am satisfied on the balance of probabilities (bearing in mind my earlier discussion of the applicant's evidentiary task under s143(4)(b)) that the "remaining respondents" were affected by the concern (in the sense referred to in s143(4)(b)) within this period for two key reasons: first, the class of activities which could safely proceed was limited; and secondly, the areas in which such activities could safely take place were also limited. I am prepared to infer on the basis of the evidence referred to below, and the evidence that substantial numbers of employees attended for work but were directed to return home or were transferred to other sites (including Savcor employees), that the "remaining respondents" fell outside the intersection of these two limitations. 445 Dust-creating work had been taking place at the site at the inception of the industrial action and would therefore have to continue at its cessation. According to expert evidence, dust-creating work could not safely proceed in the absence of a work method statement which had not been produced at this time. 446 There was a clear delineation of the limited safe areas available for work at this time (and of those contractor employers identified as available to work, whether or not they actually performed it). A significant proportion of work on the site was, at this stage, held up by reasonable safety concerns: the safety committee noted on 24 September 2001 that, as a precautionary measure, pending the production of reports by the consultants, no productive work was taking place inside the building. Only specialist rectification workers were inside. Furthermore, the rectification work which had been performed by the end of this period was relatively confined. 447 It was open to the respondents or Intervenor to adduce evidence to refute the applicant's case that the "remaining respondents" were affected by the concern (in the sense referred to in s143(4)(b)); but no steps were taken in this direction. The parties were directed to produce a joint document setting out clearly the spatial and temporal parameters of the dispute within the site, indicating plainly which areas were the subject of controversy or agreement, so that submissions could be made by reference to that document. In response to this direction, the respondents tendered a 34-page printout titled "Accelerated Programme to Completion" comprising a list of one thousand, four hundred and twenty-nine tasks accompanied by schematic timelines (but no note as to the general nature of the tasks or which contractors were to perform them) and 18 pages of detailed floor-plans neither of which was illuminated by explanatory evidence, submissions or any summary by reference to the matters in issue. 448 Two factors (which I discuss below) make it impossible to sustain my finding on the balance of probabilities that the "remaining respondents" were affected by the concern (in the sense referred to in s143(4)(b) from 27 September 2001 onwards: firstly, during that period, work became increasingly available; and secondly, the conduct and approach of the unions in that period makes it impossible to discern that the remaining respondents were maintaining their strike on the basis of reasonable concerns for their health and safety. 449 Finally, I note that there was no evidence of failure on the part of any employee of the "remaining respondents" to comply with a direction of the kind described in s143(5) of the Act and accordingly that section does not apply to the "remaining respondents" for this period. Discretionary Considerations for the Third Period 450 Many of the reasons mentioned above militate in favour of the exercise of my discretion to grant relief. The earlier discussion as to management's failures in relation to health and safety is another factor. Management's failure to promulgate and act on the Report allowed a real risk to workers to persist and moreover resulted in a situation where the delays to the commencement of work over this period largely derived from its own failures, because the steps then required to rectify the large, site-wide problem, when handled properly, were substantial and incapable of rapid completion. In addition to the time-consuming nature of the rectification work itself, the attainment of expert advice sought by management needed time. Further, the proper role of the safety committee had been deprecated, and management had not yet obtained proper work method statements. Much of the delays and difficulties in this period derived from the abject failure to maintain safety in relation to lead-based paint over an extended period of time. On one view, the loss of productive work up to the end of this period was not only a feature of industrial action taken but also of the need to remove risks to the safety and health of workers at the site. 451 It appears that, save for the specified failures to perform work over this period, employees attended for work and were directed that no work was available, and to work at other sites (if they wished). The evidence of the Savcor Site Diary is a strong illustration of this point. The conditions of the award were to this extent met in strict terms, although the behaviour of Mr Duff over this period increasingly raises concerns. 452 It is clear that the Commission is entitled to have regard to the behaviour of officers of the unions in considering whether to grant relief, particularly in circumstances, such as these, where the requisite reasonable concern arose out of a union meeting (and the workers' views were formed in or in connection with that meeting). The evidence revealed that during this period Mr Duff was showing some antagonism to the resumption of work. This is a particularly significant consideration given the confined basis upon which relief may be given under the Act, as earlier discussed. 453 In this respect, the statements by Mr Duff after the meetings of workers on 19 September and the non-performance of work in 'safe areas' are particularly relevant, although I note the countervailing considerations in relation to these incidents discussed in the findings of fact section of this decision for the relevant days. 454 However, I do not consider that these factors disqualify the applicants for this period as: the interference by Mr Duff was, at this stage, minimal (again I refer in more general terms to the findings of fact in this respect); rectification work was limited and, according to expert opinion, significant areas of the site remained unsafe for work to proceed; no work method statement had been produced to regulate the resumption of the dust-creating work which had been interrupted on 14 September 2001; and work was being performed in safe work areas. To the extent that it was not, and the evidence indicates that it could have been, the workers are to be excluded by operation of s143(4)(b) from the orders I intend to make. 455 Furthermore, Mr Duff's activities did not affect attendance at the site and the operation of the procedure agreed at the Commission for workers to be directed by management to work; leave the site; or, should they wish, be transferred to other sites (save for the possible exception of 19 September, but even then his statements and the cessation of work generally reflected the situation applying at the site in terms of the availability of safe work). The significant, continuing risk to safety remained, and Mr Duff's attitude, even if put in a forceful way, broadly reflected that fact. 456 On balance, I consider that in the exercise of my discretion, both an authorisation and order should be made for this period (excluding those contractors who, as earlier noted, failed to work in areas certified to be safe during this period). 27 September - 2 October 2001 (The Fourth Period) 457 The prevailing conditions fundamentally changed on the 27 September 2001 to the extent that it is probable the industrial action was no longer wholly based on a reasonable concern for health and safety. The jurisdictional basis for authorising or ordering payment was ruptured in this period. In any event, given the circumstances which are described below, I would, in the exercise of my discretion, decline the applicant's application for this period. 458 On 27 September 2001, a meeting of all contractors on site was advised by Mr Duff that "nothing had changed", despite the fact that things had significantly changed: an increasing number of areas of the site had been cleared for work; rectification work was proceeding with a full complement of specialist contractors; two experts' reports had been provided; and the parties had, once again, attended the Commission which had directed WorkCover to attend the site to facilitate a procedure to return to work (not, as Mr Duff would have it, "to determine whether it is a safety issue or industrial dispute" and then to "report back to the Commission"). 459 Following the Commission's direction, the parties had met with the WorkCover inspectors, in the company of Mr Wyatt, Ms Trompf, and the safety committee, and, in accordance with the direction of the Commission, agreed a procedure for the return to work. Furthermore, clearance certificates were issued for the staircases and level one. Notwithstanding these material developments, and the fact that productive work had been continuing in the designated safe areas the day before, work did not recommence on 27 September 2001 when there was plainly significant productive work available. It may be inferred that this failure to start work was a direct result of Mr Duff's communication. 460 It would be an understatement to describe Mr Duff's address as misleading. In a dramatic foil to events of 14 September 2001, work had now stopped on the basis of false information. To mislead the workers immediately after an attendance at the Commission was not only contrary to the spirit (if not the letter) of both the Commission's recommendations and the award: it manifested a conscious avoidance of the return to work, which was put into effect by the workers. The infection of workers' concerns by the conduct of Mr Duff, as described, is inconsistent with the maintenance of a genuine concern and cannot be consistent with the statutory intent. This position is more significant when the award compels attendance to establish that all available, safe, productive work is performed; such work was being performed the day before but stopped; and agreements had been reached in the Commission during the dispute to the same effect. It would be difficult to avoid the conclusion that the actions of the unions and workers on this day put them in breach of the award. 461 The limited nature of the notices issued by WorkCover on 28 September 2001 and their lack of any real connection to the lead issue (other than in a minor respect), which by this stage was regulated by a comprehensive, agreed procedure; Mr Hendy's evidence that some of the new safety issues arose due to the workers' actions in stopping work; and Hansen Yuncken's constructive attitude to rectification by this time all combine to establish that there was no justification for the site-wide cessation of work that day. Again, the stoppage could not be said to have a proper connection with the safety issue which justified the cessation of work up to 26 September 2001, so that the stoppage represented industrial action taken on the basis of some issue other than the original genuine concern. 462 A substantial amount of productive work was impeded on this occasion. This is significant in two respects. The stoppage and departure from the site (even assuming it had some proper safety basis) represented a significant failure under the award and was contrary to the spirit and intent of the agreements reached in the Commission. Secondly, the general stoppage of work was disproportionate to the safety issues then prevailing. A general stoppage was not properly proportionate to the level of the safety risk (or reasonable concerns resulting therefrom) arising from any lead safety hazard. In short, a reasonable concern for safety in relation to the presence of lead should not have resulted in a general stoppage (but only to the more restricted areas that were unsafe). Further, the general stoppage was not proportionate in any event to the new and quite restricted safety issues raised that day. In my view, there was no adequate justification for the level of industrial action taken on 27 or 28 September (or the succeeding work days claimed in the application) and when the other discretionary factors I have referred to above are taken into account, there is no proper basis for the authorisation or ordering of payment for those days (or the subsequent available work days where less than full productive work was performed). 463 It is important to stress in this context that in the modern workplace employers have imposed upon them serious obligations to eliminate occupational health and safety risks. The Parliament has legislated to ensure that outcome. The failure to make or maintain entirely genuine claims by unions as to occupational health and safety issues will only have the capacity to undermine the attainment of this vital social objective. Conclusion 464 In summary, I consider that, in the exercise of my discretion, an order should be made in favour of the applicant for the period of 14 September to 26 September 2001 inclusive [excluding the employees of certain contractors (as earlier discussed) and milestone incentive payments (for reasons I will now discuss)]. Milestone Incentive Payments 465 Milestone incentive payments are payable when construction milestones, specified in clause 9.1 of the award are met (see clause 9.2) or where, in the event that a construction milestone is not achieved, the Project Monitoring Committee (formed pursuant to clause 16 of the award) determines that the milestone incentive payments should nonetheless be made because of the existence of extenuating circumstances (see clause 9.4.4). The Committee may also approve the making of milestone incentive payment where a construction milestone is not met, in circumstances where "work catches up" by the achievement of subsequent milestones (thereby permitting the payment retrospectively of preceding milestone incentive payments). 466 It was common ground that the industrial action occurred during the course of two milestone periods. The first construction milestone fell during the course of the industrial action (on 24 September 2001). The second milestone period extended to 18 October 2001. It was also common ground that milestone incentive payments were not made with respect to those construction milestones. Further, the Project Monitoring Committee did not approve (and was not asked to approve) the making of the milestone incentive payments based on extenuating circumstances or other applicable circumstances under clause 9.4.4 warranting the making of the milestone incentive payments notwithstanding that the construction milestones had not been met. 467 It is plain from the evidence that the particular aspects of practical completion required for the construction milestones were not met by the specified date for each such construction milestone. Mr Archibald suggested in his evidence that it was known by 14 September that the first construction milestone would not be reached. However, the overwhelming inference from the evidence is that the industrial action partly contributed to the failure to reach both milestones due to the cessation of work. 468 It was accepted by the applicant that, in these circumstances, no entitlement arose under the award for milestone incentive payments. It was submitted by the applicant that this did not preclude the making of an order under s143 and it, therefore, fell to the Commission, in the exercise of its discretion, to determine whether such an order would be made. The Intervenor submitted that the milestone incentive payments were not payments in respect of time spent by employees engaged in industrial action and the Commission thereby did not have power to order the making of such payments. Alternatively, it was submitted that the Commission should not order such payments in the exercise of its discretion. 469 It is unnecessary to resolve the legal issue posed by the Intervenor as I consider that, in the exercise of my discretion, the application for an authorisation or order for the making of milestone incentive payments coinciding with the period of industrial action should be refused. 470 The applicant essentially supported this part of its application upon two bases. The first basis was that the Project Monitoring Committee had a capacity to approve the making of a milestone incentive payment where it accepted that extenuating circumstances were demonstrated. The strike was based on genuine health and safety concerns constituted such circumstances. On a broader basis, it was submitted that the Commission should be inclined to exercise its discretion in favour of the application in circumstances where the milestone incentive payments were lost because of a strike based on genuine occupational health and safety concerns (or the requisite concern under s143 of the Act). 471 In my view, the application for an order for the payment of the milestone incentive payments, based on such grounds, must fail for the following reasons: 1. The premise for both contentions evaporates at the point that the Commission concludes that the strike was not based wholly upon a genuine occupational health and safety concern. Given this is the conclusion reached by the Commission for the fourth period, there is no basis, even putting the applicant's contentions at their highest, for the grant of the application on and from 27 September 2001. In any event, the discretionary factors warranting the rejection of the application during this period must apply with equal force to that aspect of it concerning milestone incentive payments. 2. It must be emphasised that the construction milestones (and the corresponding milestone incentive payments) constitute a significant component of modern building and construction awards. The awards provide incentive payments to stimulate compliance with construction milestones which coincide with the 'practical completion' dates contracted for various stages of a project (see clauses 4.1 and 4.2 of the award). Accordingly the awards lay down strict conditions for the receipt of milestone incentive payments; most noticeably that such payments are conditional upon and linked to the achievement of the construction milestone and strict adherence by unions and employees to the provisions of the award including the safety clause and the resolution of disputes clause (see clause 9.4.2). Here, the practical completion was not achieved by the employees for either milestone period. Thus, the conditions of the award for the payment were simply not met. In the absence of a determination by the Project Monitoring Committee to grant the payment under clause 9.4.4 despite this failure then no entitlement arises. I agree with the Intervenor that the absence of an entitlement for the provision is a significant reason against the grant of relief. 3. Further in this case there was no evidence that the unions made an application pursuant to clause 9.4.4 of the award for the grant of the payment based on extenuating circumstances or otherwise. I do not consider they can now properly seek relief from the Commission in the absence of engaging existing remedies under the award. 4. In any event, there is not sufficient evidence before the Commission to enable it to form the view that the Committee would have, if it had properly considered all the circumstances bearing upon the operation of clause 9.4.4 of the Award, made a determination that there were 'extenuating circumstances'. Mr Archibald's statement that the Committee may have approved payment for the final milestone period if it had met on 17 September is speculation and in any event, could not have comprehended within it the existence of a general stoppage at the site from 14 September. 5. I do not consider it as appropriate in the circumstances of this matter for the Commission to place itself in the shoes of the Project Monitoring Committee with a view to defacto deciding whether there were extenuating circumstances warranting the making of the milestone incentive payment. That Committee would no doubt take into account a variety of considerations, many of which are outside the purview of the Commission, having regard to the evidence in this case (most particularly, the Committee would have regard to the circumstances affecting all periods of work at the site during the two milestone periods and not just those periods associated with the strike). 6. The applicant submits that the milestone incentive payment should be granted because it was lost during a strike based on genuine occupational health and safety issues. I understand that submission to relate to the second of the applicant's contentions earlier mentioned and, therefore, stands separately to considerations concerning the operation of clause 9.4.4. True it is, the failure to reach the construction milestone was, to some extent, a consequence of the industrial action. However, it does not follow either as a matter of logic, or from the available evidence (or for that matter from any contention by the applicant), that the construction milestone was not reached solely, or even substantially, because of that factor. Mr Jansen did identify that his reasons for refusing the milestone incentive payment related to various aspects of the strike. However, Mr Archibald's evidence was to the effect that it was known by 14 September 2001 that the first construction milestone would not be reached and that it would require the exercise of some discretion by the Project Monitoring Committee to grant the payment. In fact, the first milestone period consisted substantially of a period of time before the commencement of the industrial action. It is not correct then to submit that the 'loss' of the benefit was, therefore, attributable to the strike (over occupational health and safety issues). There is no evidence to establish just what factors were involved in the failure to reach the milestone for 24 September, although it may be inferred from Mr Archibald's evidence that, for the most part, in the first milestone period, the delays were occasioned by factors other than the strike or occupational health and safety. These other considerations would, on the balance pf probabilities relate to other issues such as matters affecting productivity at the project. orders 472 The Applicant has sought two orders: firstly, "an order authorising the payment by the respondents of remuneration and other financial benefits"; and secondly, "an order that the respondents pay such remuneration and provide other financial benefits". 473 Section 143(3) does not permit the Commission to both authorise and order the making of any such payments or the provision of financial benefits. The word "or" in s143(4) is disjunctive. Further, the language of s143(3) clearly states that the Commission may authorise payment of remuneration or provision of benefits, or may "instead" order the payment of remuneration or provision of benefits. In any event, I do not consider the distinction to be of any real significance in the present matter as I propose ordering, rather than authorising, the payment of remuneration, having regard to the submission made on behalf of the respondents that they would not make any payments to their employees for any part of the strike period, even if authorised to do so. 474 Before turning to the nature of those orders, I note that s143(3) provides that the Commission may order the "payment of remuneration or provision of benefits." Whilst it is not entirely clear what the expression extends to, it is ample to cover, as in this case, an order for the payment of lost wages which would have been otherwise due under an award but for any deprivation of wages during the industrial action (due to operation of s143(1) of the Act or perhaps the operation of the common law). 475 I am satisfied that it is appropriate in the present case to make orders pursuant to s143(3) for the payment of remuneration as sought by the Applicant, subject to the following conditions and limitations: (1) The employees of the respondents who were engaged in industrial action at the site of the Concord Repatriation General Hospital Redevelopment Project during the period 14 September 2001 to 26 September 2001 inclusive shall be paid remuneration and other financial benefits otherwise payable under the award or other applicable industrial instrument for that period. (2) No payment shall be made to employees of the following respondents for the inclusive periods specified below: a Contrax Plumbing Pty Ltd, in respect of the period from 20 September 2001 to 26 September 2001; b Schindler Lifts Aust. Pty Ltd, in respect of the period from 21 September 2001 to 26 September 2001; c Cator Pty Ltd, in respect of the period from 24 September 2001 to 26 September 2001; d Fugen Pty Ltd, in respect of the period from 24 September 2001 to 26 September 2001; and e Leah Pty Ltd, in respect of the period from 24 September 2001 to 26 September 2001. (3) Any payment made to an employee shall be reduced by an amount equivalent to the amount that the employee earned, for work for a respondent at another building or construction site between 14 September 2001 and 26 September 2001 inclusive; (4) The payment shall not include Milestone Incentive Payments with respect to the following Milestone Incentive periods: a 28 August 2001 to 24 September 2001; and b 25 September 2001 to 18 October 2001. 476 The Applicant is required to file and serve draft orders to the Commission within 14 days, reflecting my decision in this matter (which shall reflect the above conditions and limitations). The Respondent shall file and serve 7 days thereafter a document either accepting the form of orders submitted by the Applicant, or proposing alternative orders (which draft orders shall also be submitted). 477 If the parties agree, the Commission will make orders in Chambers. If not, the Commission will list the matter to settle the form of orders. 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