Industrial Relations Commission of New South Wales CITATION: Notification under Section 130 by The Australian Workers' Union of a dispute with John Holland Pty Limited re site allowances [2005] NSWIRComm 1134 APPLICANT Australian Workers Union PARTIES: RESPONDENT John Holland Pty Limited FILE NUMBER(S): IRC 3304 of 2005 CORAM: Murphy C Site allowance claim for $1.20 p.h. Byron Bay Sewerage Augmentation Project - inspection of alleged aspects of, inter alia, rough entrance road - mist from aerators of sewage - condoms observed floating in retention ponds -mosquito infestation - rough landscape - odour from inlet function - CATCHWORDS: Claim refused on basis of evidence showing sufficient mitigation of unpleasant aspects such as shade cloth around aerator to prevent mist travelling - cover over inlet to minimise odour - no evidence of inordinate roughness of roadway or site or mosquitoes - AWU members and employees under General Construction Award subject of claim enjoyed significantly higher over-award payment in line with CFMEU members also on site covered by Federal agreement but who are prevented from pursuing such site claim. LEGISLATION CITED: Industrial Relations Act 1996 Ermani Constructions Pty Ltd and Australian Workers Union. Commission in Court Session Matter 19.3.1988 Matter No. 240 of 1987. CASES CITED: Public Works Department Re site allowance - Watson J 1974 AR @ 166. Transbridge Pty Ltd. Nepean River Bridge Menangle Award 1979 IR @ 383 HEARING DATES: 05/07/1414; 08/02/2005 EXTEMPORE JUDGMENT DATE : 08/02/2005 APPLICANT David Lyons of the AWU LEGAL REPRESENTATIVES: RESPONDENT Paul Ludeke for John Holland Pty Ltd DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C 18th August, 2005. Matter No IRC 3304 of 2005 NOTIFICATION UNDER SECTION 130 BY THE AUSTRALIAN WORKERS' UNION OF A DISPUTE WITH JOHN HOLLAND PTY LIMITED RE SITE ALLOWANCES EXTEMPORE DECISION [2005] NSWIRComm 1134 1 In this matter, the notification was served the Australian Workers' Union on the registry on 28 June 2005. The union was represented throughout these proceedings by Mr David Lyons. During the conciliation of these proceedings on 29 June, Mr Michael Lawler, an official of the CFMEU appeared and expressed an interest in these proceedings, although making no further official appearance. 2 The respondent's hearing of this matter and the inspection of the site which took place on 14 July, was represented by Mr P Ludeke and on that day, on 14 July, the Commission attended the site known as the Byron Bay Sewerage Augmentation Project in conditions which must be described as fair, and upon the conclusion of that inspection evidence was taken before the Commission. 3 Mr Lyons called Mr Dean Parnell, a CFMEU delegate, Mr Adrian O'Lachlan, a dogman and member of the AWU, but abandoned plans to call Mr Bruhn at one stage at the end of his evidence. The respondent's evidence was confined to that given by Mr Michael Plummer, the construction manager of the site. 4 Exhibit 1 in these proceedings was a site plan provided to the Commission showing the site entrance from what was described in these proceedings as the access road, which leads to the site from Bay Shores Drive, which was a point of contention between the parties. It is fair to describe the layout just generally at this stage, if I may: Firstly there is a parking area immediately inside the gate and as one progressed to the office site close by, you will see back towards the north-eastern corner was an existing sludge lagoon, a sizeable dam-like pond structure. Opposite that on the north-western side was the large settlement catch pool and behind the office and towards the south of that settlement pool was another contentious area dealt with here in the inspection in the evidence of the site facilities for the workman. Attached also were of course the demountable toilets. Those facilities were between the settlement catch pool as it is described, which was close by those facilities and not far away from the entrance to the facilities and likewise, perhaps 5 or 6 metres was the beginning of what has been described here as the wetlands, which provided some overflow from the catchment pool. 5 The other salient points from the inspection was the observation made of the aeration tanks, commonly called, but on the plan called aerobic digesters. These were some round moving mechanical structures driven by forced air and which were the major part of the treatment of the sewerage. On the eastern side of the aeration tanks was the construction going on for a new inlet works treatment, the first stage thereof and also close by that structure on the north-eastern corner of the aeration tanks was the existing inlet works from which odour emitted and which was a controversial key point in the union's case. 6 The other buildings which surrounded those structures need not be described, but are in exhibit 1 displayed, a very large area and some very large constructions going on of such huge concrete pools shown as clarification tanks, new aeration tanks, chemical treatment tanks and a blower room to provide the air which drove the aeration tanks. 7 Also of some controversy was the surrounding shade cloth on the north, east and south sides of the aeration tanks, which I suppose in colloquial language can be described as being enclosed in a large swimming pool of fifty or sixty metres length and probably about thirty metres width. The western end of that was not covered by shade cloth and I will come to that later on. 8 The matter when proceeding to formal hearing on the 14th July at Byron Bay Court House, after the inspection, also covered issues such as the broken ground around the side, which was of some dispute, with the union suggesting that recent grading had improved the site, but as far as the Commission was concerned on site, I must say there was no difficulty walking around the site in ordinary day shoes and whether or not the conditions were worse was a matter which was not really the subject of solid evidence before this Commission. 9 The other characteristic of the site raised by the union was the lack of natural barriers to the wind, although on the day there was no such wind. I should say on site also it is plain on its face, I think, that there was no spray emitting from the aeration tanks, no aerosol that could be detected at least. On site there was an odour emitted from the existing inlet work, which was observed to be covered in a silver tarpaulin for better description, and the evidence will show that was placed around the object to prevent the emission of unpleasant odours as far as possible. Suffice it to say that it cannot be, I think, entirely successful and when the inspection party came close to that inlet works, there was definitely an unpleasant odour emitting. 10 The question for the Commission in that regard, which is a major issue for this claim, was whether or not that was sufficient to award a claim generally to workers on the site for the amount of time they might have spent in the near vicinity, and a related question as to whether the odour could have reasonably be believed to have extended any great distance with any strength. 11 During the hearing that followed, of the matter, the Commission was firstly provided, (apart from exhibit 1, which I have already described as the plan of the site), with the enterprise bargaining agreement between John Holland Pty Ltd and the employees and also the Construction, Forestry, Mining and Energy Union, Construction and General Division, New South Wales branch, dated 31 October 2005, marked Exhibit 2. 12 Of particular interest in that agreement was the no extra claims clause at clause 6, which read as follows: "The parties agree that only those projects with a value of more than $15 million may be subject to such a site specific agreement and that such agreements shall be on a special project application basis only and must be authorised by the client in accordance with the code of practice." 13 That code of practice is alluded to further on, and it was agreed that the site was of some twenty-two million dollar value. 14 Another clause of some interest was clause 10 under the heading of "Wage rates and remuneration". In clause 10.1.C, it reads as follows: "It is agreed that there will be no other increases to wages or allowances for employees under this agreement, except any rates/allowances provided under a certified project agreement, award variations to expenses related allowances, other allowances not dealt with in this agreement for the duration of this agreement." 15 Mr Lyons' purpose in raising that clause originally with the Commission was to suggest that it allowed this Commission to consider a site allowance generally for the project. His submissions in that regard varied somewhat. I will come to that later. 16 At appendix B of that agreement are the rates payable under that award and showing an hourly rate for CW2 general construction labourer of $19.93. That was compared with the rate under the General Construction Award and the Commission was told that that is some $4.90 per hour above the general construction rate. Mr Lyons' members, of course, are covered by the General Construction and Maintenance (Civil and Mechanical Engineering) State Award, which from here on in we will refer to as the General Construction Award, consistent with Mr Lyons submissions. 17 Of interest also in that agreement, again at appendix B, the fares allowance, which provides for a rate from 1 July of $25 per day. That is relevant to the claim of the union of the lack of public transport to the area and indirectly to the condition of the road. 18 Exhibit 3 was an offer of employment given to all employees and verified by Mr Plummer in his evidence, given to all employees, and at clause 9 of those conditions Mr Lyons drew the Commission attention to the following condition: "Pay and conditions. Your hourly rate of pay will be $20.75. Your conditions of employment are in accordance with the John Holland CFMEU New South Wales Enterprise Agreement 2002-2005, but this does not form part of your contract of employment." 19 The Commission never quite had it clarified as to why those last words were added and I frankly do not see a huge important in it and I am unwilling to speculate, as I may have done on transcript, as to why those words were put there. 20 Helpfully Mr Lyons provided the Commission with copies of three decisions, two of which can be described as seminal cases in this area. One is the Transbridge Pty Ltd Nepean River Bridge Menangle Award where their Honours the then President, Mr Justice Beattie, Justice Cahill and Justice Macken laid out what has commonly become known as the Transbridge site allowance principles. For completeness I might pause then to read the relevant section quoted by Mr Lyons, and I am reading from p 385 of the reported version, arbitration reports. Their Honours said: "The approach consistently taken by the Commission in these cases was first of all to investigate whether disabilities were experienced in the working environment on the site over and above those which could be regarded as normal and for which a general award allowance had already been prescribed, and secondly, if such conditions were found to exist, then to award an appropriate site allowance having regard to the particular circumstances." 21 Further on in that decision the Commission quoted the decision of Commissioner Shortall where he said: "There seems to be an opinion that site allowances are something to do with basic increases in pay. It is for that reason that I make the statement clearly that the site allowances are for conditions over and above that normally experienced on building site and under which conditions for site allowances are awarded." 22 In another case given to me by Mr Lyons, the Public Works Department Site Allowance, a decision of his Honour, Justice Watson given on 30 April 1974, his Honour made some observations relevant to this case: "Another aspect which could be said to be unique, although not emphasised in the earlier discussion, was the nearness of the site to a mushroom farm. The complaint was that there was an unpleasant smell from compost. This is not a continuing factor, occurring only when compost is unloaded for one day each, but the afternoon at which the problem ceases until a further lot is unloaded. This occurs near the amenities area but well away from the work site itself. No prior complaints were made during this factor, which to the extent that it arises does not appear such as to justify an additional allowance. I assume that without disturbing the activities of the mushroom farm more than must already have occurred in any event with the continuing need to have access through it. This factor is something which cannot be entirely eliminated. If the position changes to the extent that unusually offensive conditions are being experienced to a significant degree, the matter can be raised again." 23 His Honour in that case did not grant the site allowance on that basis. I raise it here because it has some relevance to the odours emitting from this site. 24 Also given to the Commission was the important decision of Ermani Constructions Pty Limited and The Australian Workers Union, New South Wales Branch and Another, a judgement given by Judge Fisher, the President, Justice Watson and Deputy President Varnum and Commissioner Mawbey. In that decision, again provided me by Mr Lyons, a point which he was happy to acknowledge in his final submissions, their Honours had this to say: "It is our considered view if safety aspects arise, it is most inappropriate for payment to be ordered, whether retrospectively or otherwise in relation to safety. The correct approach to safety problems is to have them investigated and rectified. It is wrong in principle in our view that safety of workers should be commuted to money payments. This position has for many years been the firm doctrine of the Commission." 25 Their Honours go on to quote Ferguson J in the Gang Estate Conciliation Committee matter referred to there: "I do not think it desirable to provide extra payment for working in bad and dangerous conditions. It is much more desirable to remove or minimise the dangers. It is the duty of the employer to see the employees are not called upon to work under dangerous conditions or if this is unavoidable, to take care that special precautions are observed." 26 I notice in the material given to the Commission, attached to the written submissions of Mr Lyons is an Improvement Notice issued to the company recently dated 26 July by WorkCover, and under the heading of "Reasons for issue" is: "At the above time and place I observed that the amenities sheds were located between two ponds known to contain sewerage material and that persons may be at risk in their health and welfare because of this" "the measures to be taken are you should ensure the health and welfare of persons by maintaining the amenities in a hygienic condition. In consultation with the site OH&S committee, you shall identify a near and suitable site and relocate the amenities blocks. Your attention is drawn to the OH&S reg 19 and the code of practice amenities on a construction site." 27 Mr Ludeke informed the Commission that there is an objection been lodged to the issue of that notice. Mr Lyons relied upon it as an indication of the difficulties which the union saw in the location of the amenities site. 28 I was also provided with an extract under Pt B of the General Construction and Maintenance (Civil and Mechanical Engineering) State Award, showing the rate for a general labourer not otherwise classified at $15.03, which I have already compared to the federal rate, being a difference of $4.90 per hour. In that vein, it was important to this Commission that it was very early identified in these proceedings, including in conciliation, that the AWU members which Mr Lyons is primarily representing in this case, enjoy a rate which is significantly higher than the General Construction Award. Mr Ludeke put it this way to the Commission: In the original submissions of Mr Lyons, the union in effect was trying to have a bet each way or trying to have their cake and eat it to, was his expression, in that on one hand the union seeks a rate under the site allowance principles for disabilities in conditions which are said to be above those in the General Construction Award, and yet at the same time seeks to ignore the fact that the employees by virtue of an ex gratia payment, for want of a better description, are actually in receipt of a rate much higher than the award, i.e. enjoyed by CFMEU members under the Federal Agreement covering the rest of the workforce on the site 29 There are other reasons going to that argument of Mr Ludeke, which I must say became more complicated, as I heard the union's submission as to what exactly it was seeking from the Commission, (finally that is), and whether it extended to making an award in favour of the CFMEU members and others under the Federal Agreement, as well under the AWU application. The Evidence 30 The first to give evidence for the union was Mr Dean Arnell, who was not a member of the AWU, but more recently in the last month or so is a delegate with the CFMEU and represented Mr Lawler in these proceedings. He gave evidence along these lines; pointing out firstly that the access road which forms part of the reasons for this claim, was recently graded, and he thought during the previous week. Prior to that, he thought it had been graded about a month previously. He gave evidence that the road becomes churned up with excavators, loaders, et cetera, "doing their bit of pounding", to use his words. In answer to a leading question as to whether it was full of potholes, he agreed it was. 31 He was then taken to the issue of the green shade cloth which surrounds three sides of the aeration tanks, with the exception of the western side. It was his recollection that extra shade cloth was later erected at the point where bricklayers started work in the area. He gave evidence that several complaints had been made when the wind was blowing and when employees were walking past, it was his evidence that they experienced some spray from the aeration tanks. He believed that it was stronger at different times of the day. He was not aware of whether or not such a matter was raised by the safety committee, but pointed out he was only a delegate for a month. He repeated his evidence that he thought it was some 10 weeks prior that the additional shade cloth was added. Other evidence on this timetable before the Commission was that the south end of the aeration tank had shade cloth erected by the actual council prior to construction. 32 Whilst he gave no firsthand evidence of raising the issue of the aeration tank, his evidence was that he was sure that other employees had raised it. In respect of the odour from the site, he believed that it was mostly at the southern end. Again, this is consistent with the comments already made by the Commission from the inspection, that the inlet works at the eastern end was the area meant to be talked about by Mr Arnell. For the record, let me say there was some confusion, probably engendered by the Commission's own lack of directions, but it was clarified later that, when for instance Mr Arnell was talking about the southern side, what was in fact the eastern side. He gave evidence that the smell varied, that is, the severity of the smell. 33 The next person to give evidence on behalf of the union was Mr Adrian O'Lachlan. Mr O'Lachlan was a dogman and a member of the AWU. He was employed since 17 January 2005. He believed that when the project started in late September/early October, there was only a skeleton staff at the time. He gave evidence of the northern side of the shade clothing being put up some two and a half months previously. 34 He spoke in answer to Mr Lyons' questions as to the reasons for the erection of the shade cloth in this way: "Basically on the request from the workers because of the mist, just the stuff coming off the aerators basically and we were walking all round it. Yes, we asked for something to be done." 35 He alluded to the pot holes in the road. He then went to the issue of the odour emanating from the particular inlet area we have already mentioned. He claimed that the odour was constant and went on to say "you can have a run of a couple of days and no smell". He repeated that it was pretty constant and asserted that it was for the majority of the time. He gave evidence later in his evidence that "It is common between myself and the employees that there is still a mist that comes through there". He estimated the distance of the access road as called from Bay Shore Road as being approximately a kilometre. 36 At this point in the proceedings Mr Lyons was not able to bring evidence from Mr Trevor Bruin as he intended, apart from anything else, suggesting that it was too much of a traumatic experience for him and then making the controversial submission that Mr Bruhn was fearful of repercussions. I take that nowhere. 37 The respondent therefore brought its evidence, with no further evidence from Mr Lyons side. Mr Michael Plummer, the construction manager of the site gave evidence, beginning with the fact that there will be a significant scaling down of construction and number of employees, probably within the next month. Indeed, from other evidence it appear that at that stage there will be virtually no one on site. 38 Exhibit 2 was submitted and I have already described that as the certified agreement. Exhibit 3 was the letter of appointment, also brought forward during the evidence of Mr Plummer. He gave evidence that the CFMEU had not made a site allowance claim and neither have they done so since the submission of this claim by the union. He was taken to the issue of the odour from the inlet works, giving evidence that "it tends to be localised". It does depend a great deal, he said, upon the prevailing wind as to whether or not there is a detectable smellable "and a great deal of our work has been in the areas where there is no odour". He was asked whether this issue had been taken to the safety committee and agreed that: "It was probably in February or March when we commenced working in the area adjacent to the inlet works, it was brought up by the safety committee and we immediately took action. The inlet works were covered by the tarpaulin and I observed today it was still in place and that seems to have mitigated the problem to the point where since the action was taken we have had no further complaint from employees." 39 He went on to say that: "The safety committee has not raised such an issue and neither has the weekly toolbox meetings of a Thursday. We also have daily pre-start meetings and it has never been raised." 40 He gave evidence then as to whether or not the site was infested with mosquitos, which initially raised by the AWU in its claim. He said this: "I do not believe that the site is infested with any insects. When we first occupied the site nearly 12 months ago, we did have an issue, but in recent months I do not believe there's been an issue at all. I have never been raised by the OH&S committee". 41 He spoke about the aerators and agreed that they do generate a small amount of mist, going on to say that he believed it was a safety issue, has been raised by the safety committee earlier this year. He talked about the erection of the shade cloths and it not being an issue since. He agreed that there was a potential hazard of disease or illness, but then went on to talk about the inoculation program where all workers and inoculated against Hepatitis A and B, Tetanus, Polio and Diphtheria. 42 As to the condition of the road, he maintained that regular grading took place when it deteriorates or when it needs upgrading. He agreed that it was recently graded last week, but usually between four and six weeks. He then gave evidence that Blanch's Bus Service run from Bayswater Drive and going on to give evidence that there is a $25 a day fares allowance payable under the agreement. That, by the way, is in appendix B of the document given to me, Exhibit 2 - that is under the agreement. 43 He was taken to the issue of the facilities, the workmen's huts including of the toilet facilities, admitting that there was an overflow from the catch pond, but going on to explain that that was the result of very severe flooding in the Lismore/Byron Bay district in the weeks prior to the inspection. He somewhat controversially described that flooding as "the thousand year flood", a point resisted by Mr Lyons. He went on to say though that following that, the company installed a spillway and added sandbagging adjacent to the crib huts to prevent a reoccurrence of that overflow. 44 He went on to talk about the eradication of mosquitos in his cross-examination by Mr Lyons, dealing with the shade cloth issue again and boasting that the company had an excellent safety record, saying that the company had clocked up 85,000 hours injury free. He was taken to the road access by Mr Lyons, admitted that there was a 40 kilometre speed zone along the road, but been returned upon the bus service and insisted there was a regular bus service up Bayswater Road. He admitted that there was condoms seen in the water on inspection in the wetlands described earlier, but going on to say that the workforce should have no need to come in contact with them, the whole area is typically barricaded off, that the company has no work in that vicinity. He claimed that the access road was some 850 metres, which is slightly at variance with the evidence earlier given by the union representatives who claimed that perhaps the road was 1 kilometre long. That was the significant points of the evidence given in this matter. Final Submissions: 45 Mr Lyons' submissions, started with the fact that the union's claim is for $1.20 per hour. He alluded to the Transbridge principles and quoted therefrom, which the Commission itself has already done, as to the requirement of the Commission to investigate whether the disabilities are above those normally experienced under the general award allowances. He urged the Commission to take account of what he described are the difficult conditions and whether those disabilities and conditions were above those contemplated by the allowances under the General Construction Award. 46 He went on then to specify what he regarded an enormous potholes in the road, he claimed the road was 1.5 kilometres long, he claimed that the cars had to be cleaned on a more regular basis from the wet periods, dust and effluent spray or in dry or windy conditions. He believed the inoculations given were extremely unusual in civil projects. He next alluded to the offensive odours as he described them, referring to the evidence of Mr O'Lachlan and Mr Dean Arnell, that the odours continue but vary. 47 He talked about what he described as only the occasional bus coming along Bay Shore Drive. He went to the issue of the effluent spray. He says there is a problem borne out by the erection of barriers at different stages of the project. He went on to talk about the sighting of condoms between the two areas either side of the lunch and crib shed and referred to "other hygiene products", which I must say were never clarified for the Commission. 48 He next alluded to the WorkCover improvement notice, which the Commission has earlier referred to. He referred to the fact that fumigation was necessary in view of the close proximity of marshland. He claimed that the site was levelled very quickly before the inspection, he claimed it was subject to high winds in the absence of natural barriers. He next claimed that the initial expense in the Byron Bay area of temporary accommodation is a factor that should be taken into account. 49 In his final summary, Mr Lyons referred to the stress, costs and disabilities encountered at the Byron Bay Sewerage Project not ordinarily encountered in a civil construction site and not envisaged by the ordinary sense, either by the General Construction (Civil and Mechanical Engineering) Award or the John Holland Federal Agreement. He urged the Commission to backdate the union's claim. In his final part of his submissions he countered some of the claims made by the company. 50 Mr Ludeke in his submissions to the Commission first pointed out to the Commission the difficulties that Mr Lyons had in advancing the argument originally at least relied upon, where as already mentioned, he appeared to be seeking coverage of CFMEU members in any award of this Commission in respect of the claim now made, pointing out that there have been no Section 109 of the Constitution argument to counter the Commission's own apprehension voiced at an early stage in proceedings that there is a Federal Certified Agreement covering the CFMEU officials, apparently "Covering the Field", so to speak, and preventing the NSW Commission from extending any award made here to the CFMEU members and other employees under Exhibit 2.. 51 I will not go terribly much to Mr Ludeke's arguments in that area, which I must say I found very convincing, because I should also say that Mr Lyons appeared to resile somewhat from that earlier claim in respect of CFMEU officials. A short adjournment was allowed to get some instructions from Mr Lawson of the CFMEU and whilst reiterating Mr Lawson's own statements on the transcript of 29 June, restricting his appearance to being a party with some interest in the outcome, again however, I must say, Mr Lyons lapsed into some error in respect to what the Commission could do in respect of CFMEU. Suffice it to say that the Commission need not spend any more time on that area, beyond those broad observations. 52 Mr Ludeke believed that the fact that AWU members enjoyed the higher rates under the John Holland Agreement should be fatal to the AWU's claim. If the Commission, he said, does not take that view, the claim should fail, in any event, on its merits. He referred to Mr Plummer's evidence about the roadway, which contradicted the evidence of Mr Lyons, and including the distance being between the distance as given by Mr O'Lachlan and Mr Plummer of being 850 metres or 1 kilometre, Mr O'Lachlan suggesting 1 kilometres. He referred to the regular grading of the road and the fact that no opportunity was taken by the Commission to bring any part evidence of any deterioration of vehicles as a result, and contrary to Mr Lyons' assertion, there was plenty of parking space for employees' cars. 53 He referred then to the inoculation program, going on to talk about the odour and Mr Plummer's evidence of the attempts to mitigate this situation with the covering of the offending plant with silver tarpaulin, and pointing out that that action was taken at an early stage when the complaints were made. He went on to talk about public transport, again giving Mr Plummer's assertions, which contradict somewhat Mr Lyons' contentions in his final submissions, and reminded the Commission of the $25 a day fares allowance, which is shown in exhibit 2, appendix B. 54 He went on to talk more about the inoculation program, that there was no expert evidence brought by the union to show the Commission of any danger or indeed of any substantial spray making the site of a nature to attract a site allowance, reminding the Commission of Mr Plummer's evidence of earlier remedial work done to erect shade cloth. He again at that stage referred to the principles outline in both the Ermani case and the other decisions referred to, that if it was a safety issue, that is not something that should attract an allowance. He referred to Mr Lyons' evidence of condoms and other unpleasant items seen on inspection and specifically referred to the WorkCover improvement notice, at that stage advising the Commission that that notice as under objection and a review is being sought, which again he said, that is exactly the forum in which it should be handled in accordance with the Full Bench observations in the Ermani case. 55 As to the spray allegedly emanating from the aeration tanks, he believed that that has been brought under control for some time. No evidence was brought of insect bites and that occasionally the area was sprayed to ensure the absence of such insects as mosquitos. He alluded to Mr Plummer's evidence in that regard and the fact that it was raised with the OH&S committee and dealt with as such quite properly. He said if it did occur, it occurred in summer time. 56 He discounted Mr Lyons' submissions as to the unlevel nature of the site, believing that the site, at least on the day of the inspection, was substantially level and it was not the subject of any refuting evidence. And whilst the high wind conditions may vary, the conditions at the site, there was no proper evidence brought to contradict the conditions observed on inspection. He discounted Mr Lyons' submissions as to the alleged impact of temporary accommodation costs in the area upon employees, again pointing out that there was a lack of evidence of that and saying that the employer relies on the Transbridge decision. As to stress, the costs and the disabilities, there was no evidence of these really being encountered, no proper evidence, and Mr Plummer's evidence ought to be accepted. 57 As to backdating, he reminded the Commission under s 15 of the Industrial Relations Act, there is no discretion for the Commission to award back payment of the claim lodged on 28 June. He next took the Commission to the no extra claims clause, clause 6 of the enterprise agreement, exhibit 2, and did not believe there was any argument there in respect of those clauses for Mr Lyons to be able to say that either by use of the clause 7.5 of the code of conduct or by an interpretation of clause 6 of the enterprise agreement there is any ability of this Commission to award the claim. Again I must say that argument was in reaction to Mr Lyons' broader claim in respect of CFMEU and I will not spend any more time on that. He went on to deal with the position of Mr Lawler, which again needs no more elaboration. 58 Mr Lyons in reply said this, he first attempted to clarify the issue with the CFMEU, but I must say not entirely successfully for me, and it was quite clear that whilst the CFMEU may have an interest in whatever happens here today, this Commission cannot award monies directly to CFMEU members by dint of this decision. He referred again to the relocation of sheds by virtue of the WorkCover improvement notice, and then emphasised to the Commission that the AWU's claim should be seen that the union acknowledges that the claim is not for occupational, health and safety issues, but for the stress and offence suffered by the employees by such things as the odour and the spray from the aeration tanks. He alluded to the lack of transport again and the need for the inoculations. CONSIDERATION/FINDINGS: 59 So in my consideration of this matter, there were some key areas of focus for the Commission. Obviously no person can expect that a sewerage treatment works would be anything other than a less than desirable area to operate in. There are, of course, other less than desirable areas, such as traffic conditions where Mr Lyons' members would likewise experience such things as noise, the smell of traffic and of course leaving out the danger to persons, which is not something that an allowance should cover, based on the Ermani case. 60 The facilities between the catch pond and the wetlands which has been the subject of an improvement notice from WorkCover, was of some concern for the Commission, particularly as used condoms were sighted in the water, both in the lagoon or the catch pond and in the wetlands because of the run- off into that area from the catch pond. I have noted though, that the primary concern when originally arriving at the site was that during the recent flooding, that such materials found themselves within the vicinity of the crib huts and the toilet area. That, however, occurred prior to the lodgement of this dispute, and was in the evidence of Mr Plumber, only the result of record extreme regional flooding in June. 61 The Commission was anxious to see evidence of mosquitos as a recent phenomenon as claimed, and upon noting the presence of ceiling cobwebs also noted, a distinct absence of any great number of mosquitos in those cobwebs, which might have given evidence as to their proliferation or otherwise. The aeration tank, or more correctly called, the aerobic digester, was occupying the Commission's attention somewhat, observing that the three sides of the area of the pool surrounding the aerators was covered in shade cloth, with the exception of the western end. 62 On the particular day, the conditions were ideal, I suppose, for fair weather sailing so to speak and there was no question that there was any evidence of spray on that particular day. As to the access road, the Commission noted that again on the particular day of inspection, the road was in relatively good condition for an unsealed road. The Commission has noted the evidence of the grading every four to six weeks. As to the odour, on the day, which as already said, was an ideal day by any standards, the only experience of pungent odour was when coming close to the inlet works. The site was relatively level on the day and whether that is a result of some devotion by the company to cleaning up the site for the inspection, I know not, but there was no evidence given to the Commission of any huge potholes or any great disadvantage in the unlevel site, et cetera. 63 The Commission therefore has considered the matters raised in inspection, but particularly the evidence given here. It has particularly noted the decisions given to the Commission and I have already taken the trouble to read from those decisions as I identified them at the beginning of this decision. I have already commented that Mr Lyons' complicated argument in respect of the CFMEU had some very fundamental weaknesses to it, and I repeat that there is no doubt that this Commission has no imprimatur to make any decisions directly affecting members of the CFMEU under the enterprise agreement marked exhibit 2 in these proceedings. 64 The Commission as it is currently constituted itself had to consider such an issue in a recent case, the proper reference I will give you later, but known as State Rail Corporation v Plummett, where the Commission came to the conclusion that there was no jurisdiction to cover a federal agreement as opposed to a Federal Award, (which is specifically mentioned in s 83(1)(a) of the Act) and the amendment in that area, when such a distinction was claimed to exist in the circumstances of the amendment. 65 So dealing with those areas that I have nominated as of particular concern, I must say this, that whilst the issue of the odour was present in the immediate vicinity of the inlet works, the odour quickly disappeared with any sort of distance. There was no precise evidence given as to how much time might have been spent by each individual member of staff in the area, and it was quite clear that the covering of the offending outlet with a silver tarpaulin has had some mitigating effect. On a windy day I could imagine that the odour would be dispersed much quicker than on the particular day that we were on site. In respect of the alleged spray from the aerators, I note that the area has been largely addressed with the erection of shade cloth, and I can only say that it behoves the company to keep an eye on that shade cloth that it does not sag and lessen its capability of protecting anyone against any spray that might come off it in future. 66 As to the huts, there was no doubt that it was an undesirable atmosphere where condoms could be sighted by workers. I have taken note of the evidence that the real problem began with the flood and I could imagine that whilst that is not ideal, that it is not the sort of disadvantage to attract an allowance, and should not be unavoidable unless workers went looking for the sight of such objects. There was no other evidence given as to other like materials that were claimed be seen by Mr Lyons. I have noted that there is a spraying has taken place in the past to eliminate any mosquitos and note also that there was no evidence of mosquito infestation at the time. The site, as I have already commented, was relatively flat when I saw it, and there was no proper evidence given of any untoward characteristics of pitting that might attract some extraordinary consideration. 67 The access road I found very ordinary and overall I therefore dismiss this application. I decline to award the site allowance offered by the union and so doing I note that were I to do so, it would effectively give AWU members a bonus not enjoyed by CFMEU members, whereas AWU members are currently attracting the higher rate under the award, substantially higher than the General Construction Award rate by virtue of receiving the same rate as prescribed under the Federal Agreement, Exhibit 2. J P MURPHY Commissioner oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.