Industrial Relations Commission New South Wales Medium Neutral Citation: ETU v Essential Energy [2012] NSWIRComm 1025 Hearing dates: 31/07/12, 01/08/12,27/08/12 Decision date: 26 September 2012 Before: Ritchie C Decision: Catchwords: Section 146B of IR Act dispute notification filed- Work crew during live wire work found to have breached various policies- Investigation resulted in first warning being issued- Applicant accepted investigation reports findings but Applicant believed that policy not applied correctly- Applicant submitted that policy had wrong words in place-Commission rejected this submission-found policy had been applied correctly. Legislation Cited: Industrial Relations Act, 1996 Category: Principal judgment Parties: ETU (applicant) Essential Energy (Respondent) Representation: Mr A Howell (for the applicant) Mr B Cross ( for the respondent) Ms K Jervis from Norton Rose ( for the respondent) File Number(s): IRC 311 of 2012 DECISION Background 1The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), New South Wales Branch filed a dispute under s146B of the Industrial Relations Act, 1996 against Essential Energy on 6 February 2012. 2The question, dispute or difficulty was expressed in the following industrial matters: This dispute relates to the outcome of the Essential Energy Discipline policy and the failure to find suitable resolution of a discipline matter via internal appeal processes. 3A previous Statement issued on 23 May 2012 gave a background to this matter and a further timetable for the filing and serving of evidentiary material. The first two days of hearing in this matter took place in Mudgee with the final day in Sydney. The decision was then reserved. Applicant's case 4In his opening submission Mr Howell stated that on 21 July 2011 a maintenance crew of the respondent ( Essential Energy) totalling five persons were working on a site when an Area Manager came upon their working site. The Area Manager Mr Adam Maher saw some work issues that gave him concern so he stopped and carried out a work site safety audit. After carrying out the audit he then made a workplace entry into the respondent's Total Safe system. In accordance with a risk matrix, Mr Maher graded the likelihood of the relevant risk manifesting as "possible" and the consequences of the relevant risk as "moderate". He then stated that a " moderate" rating, triggers a formal investigation by the respondent's investigations unit. 5The following day 22 July 2011, the five workers were stood down and the entire depot at Mudgee was stood down for further training 6He stated that the two most serious findings out of the investigation were that the work crew had failed to attach an earth circuit to one of the cranes being used in the change out process for the condemned pole. The second was that whilst the crew had notified the network operations control room,( Bathurst control room), of their location at the start of the day's work, they had not kept the control updated of their location as they moved along the particular feeder from workplace to workplace coming to the third job site. 7At the end of reassessment the risk rating was elevated from moderate to high; the likelihood descriptor of the risk being categorised as possible; consequence as catastrophic . The outcome of this was a requirement to complete a mandatory competency assessment and a safety audit. 8 Also a high offence warning notice was issued and certain individuals in the work crew had a first high offence recorded on their personnel file. Such a grading remains on the individual file permanently as opposed to a moderate work safe event which lasts for three years. 9Mr Howell stated that the factual findings of the investigator were not in dispute but it was the outcome of the work safe procedure, in particular, application of the risk matrixes which drive the disciplinary outcome. 10Mr Howell stated that the two most serious failings identified in the investigation were the failure to earth one piece of equipment and the failure to notify network operations. He stated that if the relevant descriptors from the policy were properly applied, it would have resulted in the risk being assessed as either rare or unlikely and a proper assessment of consequence would have resulted in a moderate or at worst, major assessment. 11The applicant union had two witnesses. 12Mr Adrian Reynolds stated that he is an employee of the respondent and is employed as a Live Line Maintenance Worker based out of the Mudgee Maintenance Depot. He said that he commenced with the respondent in 2002 and in 2007 successfully applied for his present position. He currently holds a Certificate IV in High Voltage Glove and Barrier work and a certificate IV in 132k V Stickwork. 13He said that on 21 July 2011 he was one of a crew of five employees carrying out maintenance work in replacing three condemned power poles. The other employees were Mr Mathew Bryant ( a Leading Hand), Mr Brock Jackson ( another Live Line Maintenance Worker), Mr Richard Griffin ( a Lineworker/Plant Operator) and Mr Jackson Winning ( 1st year apprentice). 14They were completing the work on the third pole, when Mr Adam Maher arrived on site. Mr Maher brought to Mr Reynolds attention that he was not wearing leather gloves( he was doing some shovelling work) or a high visibility vest. Mr Maher directed him to put on the gloves and the vest and to get the Hazard Identification Risk Assessment and Control (HIRAC) sheet. Mr Maher then did a safety audit check. At the end of the work for the day the crew were advised by Mr Maher that he had some concerns and that this would not be the end of the investigation. Attached to Mr Reynolds statement was a drawing depicting the set up that was being carried out that day. 15The following day all the employees of the crew were stood down from doing live line work. A safety investigation then took place which resulted in a report dated 3 August 2011 being completed. The report indicated that there was a difference between what Mr Reynolds had said about when the crane had an earth circuit placed on it. He believed he said in his interview with the investigators that they had placed the earth on the crane/borer just before they stood the new pole on the third job. It wasn't on from the start of the work on the third pole. He said he knew it was attached after Mr Maher arrived on the site and before they stood the third pole. Why it was done like that was because the new pole they were standing was a steel pole. When standing a steel pole the pole itself and the crane that is lifting it have to be earthed and attached to the same earth. They hadn't earthed the crane before because the condemned pole was a timber pole and they didn't think they had to be earth it because the clearance distances between the pole and the conductors were well outside the relevant approached distances for 22k V conductors. 16Mr Reynolds stated that he did not dispute that the respondent's policies require plant need to be earthed. On the day it just had not occurred to him at least because the clearance distances were so great in the set up that they had. 17He also did not dispute that Mr Bryant who was responsible for doing the switching and network notifications on that day, hadn't informed Network Operations of when the crew moved on from the 1st pole. He said that it was not uncommon for the Bathurst control to tell workers when they call in at the start of their work to just call in at the last location or when work has been completed the work on the line, rather than every time they moved on the same line. He acknowledged that on that day he had not been wearing leather gloves, had his sleeves rolled up and was not wearing the high visibility vest. 18As a result of the investigation report, he was issued with a High Offence warning letter dated 15 August, 2011. This was his first such warning. He was also suspended from working on live powerlines and was required to undergo a " PreVisor Assessment" and a "Mandatory Competency Assessment". At the time of completing his statement he had served out his suspension, successfully completed the two assessments and had returned to normal duties. 19It was his understanding that Mathew Bryant and Brock Jackson had to complete the "PreVisor Assessment" and the " Mandatory Competency Assessment". He understood that both gentlemen have had their liveline authorisation returned. 20What was of concern to Mr Reynolds, was that a Safety Bulletin was issued prior to the investigation being completed and the issuing of a High Offence warning notice. It was his view that the issuing of the High Offence warning letter was not consistent with the Worksafe Procedure. 21 He stated that a policy that regulates the work of Live Line Workers was the Operational Manual: High Voltage Live Work: CEOM 7040( the Live Line manual) Also the OHS & E Worksafe Procedure (CEOOP2268) that details how to assess( in terms of risk and seriousness) and handle ( in a disciplinary sense) unsafe work practices identified after an investigation into an incident. 22It was his view that a three step process takes place. Step 1: Carry out an investigation and then conduct a preliminary assessment of whether someone is to be individually disciplined for a failure. Step 2 : Assess the " Incident Level" using the matrixes attached as Appendices to the Worksafe Procedure document. Step 3: Determine the disciplinary outcome in accordance with Table 3 at cl 2.1.5 of the Worksafe Procedure. 23It was his view that following the incident on 21 July 2011, the company didn't do Step 2 properly. 24The assessment was "death" being the likely consequence of the crew failing to properly install an earth stake. Assessing the failure to install a separate earth stake in that way was in his view wrong. In his view the way they place the metal stake into the ground offers no realistic protection to a person at all. The additional earth stake ( taking into consideration the four heavy metal supporting legs) adds very little in terms of protection. 25He stated that he was part of a group that conducted a series of tests at six different locations, including the one where they were located on 21 July 2011. They connected an earth tester to the crane and to the earth stake. The results of the tests showed that it would be much easier , if the crane was energised , for the current to flow through the crane itself than it would for the current to flow through the earth stake. 26He noted the comments in the Investigation Report ( by Mr Jones of Benchmark) with respect to the risk posed by the failure to earth is concerned as " I do not believe that any one of these non-compliances are potentially life threatening or are severe safety breach." 27He accepted that the installing a stand alone earth stake to heavy equipment being used on live powerlines is a standard practice for the respondent and he should have done it. 28He stated that he was very concerned by the approach of the respondent to the assessment of the incident on 21 July 2011 and the issuing of a "High Offence" notice to himself and the other members of his crew. He said that the issuing of a "High Offence" warning notice damaged his reputation and that of his crew. Particularly when the respondent issued a Safety Bulletin about the incident prior to the investigation concluding. 29His concern was the exaggerated response by management to what was actually found against him. He is happy to be held accountable for his actions , but should be consistent with the respondent's policy. 30Mr Neville Betts stated that he holds the position of Assistant Secretary with the CEPU, New South Wales Branch and has done so since approximately September 2007. Since February 2011 he is responsible for the coordination of fulltime officials that look after the respondent. During his employment he has been involved in work practices surrounding work on energised high voltage power lines since the introduction of the work practices in NSW. 31He became involved in the 21 July 2011 incident approximately one week after it had occurred. He stated that he was involved in the drafting of an internal appeal with respect to the decision to impose the disciplinary actions that the respondent determined. 32The crux of his members concern was how the respondent had assessed the likelihood of risk, and the consequences of the failures identified, following the findings of the investigation. 33It was his view that the thrust in the investigation report that drove the risk assessment was : The incident, however, was a near miss in the sense that had Richard Griffin's equipment come into contact with live conductors, it may have been raised to the same potential as the 22k V conductors. Any person contacting the equipment and a path to earth could have received fatal injuries. It was therefore considered the likelihood as possible and with death being a possibility, the consequence rating would raise to High." 34It was his and his members view that the "likelihood" of risk should have been rated under the Worksafe Procedure matrix as either "unlikely" or "rare". It should not have been graded as " possible" if that policy was applied properly. 35In his experience he was not aware of there having been an incident of the kind relied upon in the investigation report. The investigation report does not refer to any previous examples of incidents in the respondent's data base. He said that the investigation report stated it was " possible" without any reference to what "possible" means in the context of the Worksafe Procedure. 36He stated that the dispute by his members was not only about the likelihood of it ever happening but felt the consequences of the risk was rated too highly as " catastrophic", which it should not have been. 37He gave two reasons for holding this view. Firstly the failure to earth the crane. The crane via its legs was already bonded to the ground. Tests carried out by a crew from Mudgee showed that hammering a metal rod into the ground in accordance with their usual earthing procedures, had very little impact on the earthing of the crane. 38Secondly in terms of risk to the individual arising from the failure as identified, in that the metal stake had not been hammered in but the stabilising legs were in place at the time of the work, it was his view that it would make no material difference if someone had come into contact with the crane. In his view death would have occurred if a live unearthed piece of heavy equipment had been energised by a high voltage line. In his view the failure to create an additional earth via a stake would have made no material difference to that fact and so to rate this particular Worksafe Incident as having a "catastrophic " risk, exaggerates the potential consequences when applying the Worksafe Procedure. 39His members concerns are three fold. Firstly each has a "high offence" notice on their permanent record. This can have an impact on their careers re promotion and be relevant if another Worksafe incident happened again. 40Secondly the Worksafe Procedure exists to give balance, transparency and fairness in the assessment of disciplinary consequences, therefore they must be supplied properly. 41Thirdly, the suggestion that this group of workers were treated more harshly due them involving their union. The initial rating in the incident database as "moderate" being increased to "high" without proper explanation in the investigation report. The independent assessor Benchmark stating in a report " I do not believe that any of these non-compliances are potentially life threatening or are a severe safety breach." The Investigation Report itself didn't refer to the descriptors in the attachments to the Worksafe Procedures when outlining how the incident was worked out. The Safety Bulletin came out after the incident but before the internal investigation was completed. 42In summary the Worksafe Procedure wasn't applied properly in the first place. 43In closing submissions Mr Howell stated that there were only two issues in the dispute: 1. How the WorkSafe Procedure operates . 2. How one applies the Worksafe Procedure to the facts of the case. The parties disagree with respect to how step 2 (within the Operational Procedure: Safety: OHS&E Worksafe CEOP2268) impacts on the disciplinary action in step 3. 44 It was the applicant's submission that the "types of incidents and where they rate" as expressed in C- Examples of Qualitative measures of consequence or impact, feed into the "Risk Matrix"(Table2) . It is the application of the "risk matrix" which then " determines what disciplinary action is to be taken". The "risk matrix" brings into contemplation the "likelihood" of an event occurring , when assessing the Incident Level, and it is the Incident level so determined in accordance with Table 2 , not of annexure C of itself, that is applied to Table 3. 45Attachment C was designed to assist in determining the Incident Risk Level. It is the combination of Table 2 and Attachment C which determines the Incident level, and the Incident Level that determines the disciplinary outcome. 46Mr Howell stated that the headings on the last two columns on Attachment 3.3C are wrong. Instead of "high" and "very high", it ought to state " Major" and " Catastrophic" in order that they marry up with " Qualitative Measures of Consequence or Impact" 47He stated that if the Commission was satisfied with the applicant's interpretation of the Policy, then the entire disciplinary process has gone awry and therefore the Orders sought by the applicant union should be granted, i.e. revoke the 'High" severity warning notices. 48With respect to the second issue, the applicant union stated that the respondent should not be permitted to effectively re-run its disciplinary procedure in the Commission in the event of a dispute, given the applicant does not put in issue the findings made in the Investigation Report. To do so brings the entire investigation procedure into disrepute. The Investigation Report identified the failure to earth as driving the Incident level rating. There is no reason or justification for the Commission departing from that conclusion in the resolution of Issue 2. 49The consequence in the WorkSafe procedure looks to the impact or the failure to put in place the relevant control measure-in the context of the particular work activity that is being assessed. In this case the failure to earth a piece of heavy equipment. The company benchmark considered none of the failures "potentially life threatening", a critical component of the definition of "catastrophic". Mr Howell pressed that this failure to earth should have been categorised as " moderate". 50The likelihood that this event occurring should have been rated as "unlikely" meaning " the event has not yet occurred but could occur at some time-once every 10 to 20 years" or "rare", meaning "the event is known to have occurred elsewhere-once every 20 plus years". 51Mr Howell stated that the Commission is empowered to "resolve" the relevant "matter" by making the Orders sought , under s 146B(2) and clause 1.15 of the Essential Energy Enterprise Agreement 2011. Respondent's case. 52Mr Adam Maher stated that he has been employed by the respondent for 6 ½ years and holds the position of Area Manager based in Mudgee. He has held this position for 2 years. 53On 21 July 2011 he was returning home when he saw a number of the respondent's employees working on the side of a road. As he approached he saw that Adrian Reynolds was wearing limited personal protective equipment (PPE) and he had his sleeves rolled up around his elbows. 54It is a requirement that in working in such conditions Mr Reynolds should be covered from neck to wrists to ankles. On approaching Mr Reynolds he said to him to put on his gloves, vest and to get the HIRAC sheet. He then carried out an audit. He then went to get his paperwork out of his car. 55Mr Maher said that he heard a sound which sounded like someone putting an earth stake in nearby. Mr Reynolds told Mr Maher that it had been there the whole time. Mr Maher said that he had not seen it. A series of photos of the site were attached to Mr Maher's affidavit. 56It was Mr Maher's view that the diagram showing the worksite attached to Mr Reynolds statement was not accurate. He noted that if the conductors were separated by 9 meters then the conductors would be touching the vegetation. He also said that it would not be possible for both the elevated work platform (EWP) to be both 6.5 meters from the bore, 2 meters from the roadway and maintain the thoroughfare that was evident. He also did not agree that the clearance distances for the crane borer were as large as suggested by Mr Reynolds. 57In carrying the audit that day he noticed the following: The required traffic control equipment had not been used and the appropriate beacons had not been put out. A number of trucks on site had not been bonded or earthed properly. His review of the HIRAC showed that : It had not been completed correctly and the worksite on Mud Hut Road was not listed; The form noted that PPE should be used but the PPE noted was not used The form failed to identify and document controls in relation to traffic management; A chainsaw was left out on site but the form did not identify any risks associated with the use of a chainsaw or specify any appropriate PPE. All employees are to be involved in the HIRAC process including completing correctly all sections of the form. 58He said that he then called Mr Glenn Mathews at the Network Operations Coordinator Bathurst. He sought to enquire where the location of the live crew from Mudgee. He was advised that he didn't have that information. He then contacted Network Operations who advised him that the crew were located at Pole 38176 Fairy Hill, Mudgee. This was not correct as they were then near pole 46179 on Mud Hut Road. 59Teams working on live wires are required to notify Network Operations each time they change their location along a line. This is in accordance with the respondent's policy -Common Safety Principles CEOM 7040. He said that it was also a requirement to 'log off" at the end of the day. 60He also disagreed with Mr Reynolds statement that " there was a range of minor things " that the employees had not done. Mr Maher believed that he had identified a number of serious safety breaches. 61He believed that a further investigation was required. He then went back to the depot and put a report in TotalSafe in relation to the audit that he had concluded. He classified it as 'moderate'. In retrospect having considered the safety investigation report and other incidents that have occurred he is now of the view that he should have put it at 'high'. Notwithstanding his initial assessment he said that he knew it would be revised if appropriate. He did not agree with the comments of Mr Betts that it should have been rated as 'low'. 62He also disagreed with Mr Reynolds that in relation with the assessment of the likelihood of the risk. In accordance with the Worksafe Policy it would not be possible for the likelihood of the incident to be rated as unlikely. 63Mr Maher recounted an incident last year when he reiterated to a work crew which included Mr Reynolds that it was a requirement that you always notify Control of your location and properly log on and off at the start and finish of each Live Line task. 64He also said that on 11 July 2011 at a toolbox meeting after an incident that resulted on the previous day in a crane that rolled over, he advised everyone ( including Mr Reynolds and Mr Bryant) that he was not going to tolerate any further breaches of safety. It was a requirement that everyone complies with safety at all times. 65On 22 July 2011 Mr Reynolds, Jackson and Bryant were stood down from live high voltage whilst the investigation took place. The rest of the employees at the Mudgee depot were restricted to duties within the depot and were required to participate in a "safety Basics' training programme. Mr Maher said at the end of the meeting Mr Reynolds said to Mr Maher words to the effect of : " You think you are going to change things. You haven't, all we are going to do is not take a risk for this company anymore." Mr Maher responded: " That's all I've ever wanted. I don't want you to take any risks with safety." 66At the time Mr Bryant was stood down from work and suspended from live high voltage work he had already been notified that he was to be promoted to the role of Crew Coordinator. The promotion was then delayed not withdrawn. He took up the role on or about 7 December 2011. 67On or about 1 August 2011 Mr Maher said that he received a Safety Alert which related to the Mudgee incident. He sent it out to employees. There is no requirement that a Safety Alert relating to the subject of an investigation be distributed after the investigation is completed. 68Mr Andrew Hanger stated that he has been employed by the respondent for approximately 18 years and is currently the General Manager Investigations, a position he has held for the last 2 ½ years. He is a qualified electrical fitter mechanic and was employed by the respondent as an electrical technician for 13 years. Throughout his career with the respondent he has been directly involved in developing and implementing the former and current Electrical Safety Rules policy. 69He stated that he is currently responsible for managing the respondent's Workplace Investigations, which is comprised of the Fraud and Misconduct Investigations and Safety Health and Environment Investigations under the relevant policies. The Workplace Investigations Team investigates safety health and environment incidents that require a formal investigation under the Operational Procedure : Safety: OHS7E WorkSafe CEOP 2268 ( WorkSafe Policy). This policy was introduced in May 2010. This policy was introduced after consultation with the Electrical Trades Union of NSW. In his statement he went through the steps when an incident is logged in the respondent's information safety management system, TotalSafe. Post the notification there then is a requirement by someone to look at whether any corrective actions need to be taken immediately, to review the incident risk rating and escalate to the regional management team if required. If a formal investigation is required it will be allocated to the Workplace Investigations Team for reporting. Prior to the final report the risk rating of the incident is required to be reviewed to determine whether the initial risk rating was appropriate. 70Prior to the final report a draft report is provided to all relevant stakeholders. Opportunities for feedback are thus provided. A final report is then provided to the relevant Executive General Manager who is then responsible for implementing any disciplinary action. 71He stated that an incident is risk rated in accordance with the respondent's risk management methodology as set out in 3.2 of the WorkSafe Policy. An incident is risk rated utilising two factors, those being consequence and likelihood. 72Consequence focuses on the actual or potential outcome arising from the incident. An incident has a consequence rating from insignificant to catastrophic based on the definitions set out in 3.2 of the WorkSafe Policy. 73Likelihood focuses on the probability of an incident occurring. An incident has a likelihood rating from rare to almost certain based on the definitions set out in 3.2 of the WorkSafe Policy. 74An incident risk rating is made up on the consequence and likelihood ratings and is determined based on the table 3.2. He gave the example of if an incident has a consequence rating of 'moderate' and a likelihood rating of 'possible' it will have an overall incident risk rating of 'moderate'. 75A breach is given a disciplinary rating which is referred to as a Worksafe rating (table 3.3-C). This is completely separate to an incident risk rating. If an incident involves more than one breach of policy, each breach is identified against table C. Disciplinary outcomes are based on the highest severity breach from the disciplinary rating. He gave the example that if an employee has breached two requirements , one is given a disciplinary rating of moderate and the other is given a disciplinary rating of high then the disciplinary outcome would be an overall level rating of high for the purposes of disciplinary outcomes. In effect it is the most serious breach which determines the overall incident level for disciplinary outcomes. 76He said that at the end of an investigation the incident can have an incident rating that is different to the overall disciplinary rating. The WorkSafe disciplinary outcome was developed to take into consideration the actions of the individual not just the seriousness of the incident. 77After considering the draft report of the incident on 21 July 2011, Mr Hangar identified the following breaches which he considered most serious. (a) The HIRAC form was not completed or implemented correctly; (b) critical PPE was not used: (c) traffic management control processes were not adhered to; (d) a number of the requirements for working with heavy plant were not met; (e) obligations under systems operations communication procedure were not met; and (f) not following electrical safety processes, for example not applying earths. 78He then sent a copy of the draft report out to the stakeholders including Mr Reynolds, Bryant and Jackson. On or about 8 August 2011 he then participated in a teleconference held with those employees, the General Manager of Workplace Relations Mr Craig Lobegeier and a union representative Mr Simon Davies. The comments of the employees were incorporated into the draft report. He stated that at no time did any of the employees or their union representative raise any concerns in relation to the risk rating, including the risk rating being higher than the initial risk rating. 79After that process he rated the incident as a 'high' and stated that in reflection he had not changed his mind. The incident was given a consequence rating of 'catastrophic' on the basis that any number of the identified breaches on their own had the potential to result in serious injury or death. He rejected the comments of Mr Reynolds in relation to rating the consequence of the incident and also Mr Reynolds comment in relation to assessing the likelihood of the risk. 80In accordance with the Qualitative Risk Analysis Matrix in the Worksafe Policy he gave the incident a revised risk rating of "high" which was then expressed in the final report. 81In reference to the statement of Mr Betts, it was Mr Hangar's view that in accordance with the WorkSafe Policy, it would not be possible to rate the likelihood of the risk as 'rare' or 'unlikely'. 82A table within his affidavit expressed the identified breach from the report, the relevant policy/procedure and the corresponding disciplinary rating. 83Mr Hangar stated that he strongly disagreed with the statements of Mr Betts in respect to the conduct of the investigation. The investigation and the disciplinary outcomes were all conducted in accordance with the respondent's policies and procedures. 84Mr Hangar detailed what a Pre-Visor Safety Survey was and how it was implemented. He also stated that a stand down of a work crew does occur while an investigation takes place. Whilst the crew at Mudgee were stood down additional training took place to reinforce safety requirements and to ensure that the employees were supported during this period. It is standard practice for the respondent to stand down employees from the 'on-call' roster during an investigation. 85The safety alert that was issued on 1 August 2011 solely for the purpose of notifying employees of potential safety issues. Where appropriate safety alerts are issued prior to the investigation being finalised. Safety alerts are sometimes issued without any investigation being conducted. 86The respondent received a written appeal on or about 7 September 2011 from the union, from the union outside the 10 working days from the date of the warning letters being received. Notwithstanding the written appeal being received outside of the due date, discussions still took place between the parties to try and resolve the concerns of the employees. 87Mr Hangar stated that a copy of the investigation report was given to an outside company named Benchmark. This company was engaged to review the final report and comment on the findings in relation to the live line components for the purposes of determining whether there was a requirement for additional training to be provided to the employees. He stated that benchmark were not engaged to assess the nature of the conduct in accordance with the respondent's Worksafe Policy for the purposes of an incident risk rating. 88It was his view that the failure to wear PPE in a designated roadway and failure to implement mandatory traffic control measures would result in an incident being given a risk rating of 'high'. The crane borer not be earthed was given as an example as to why the incident was given the risk rating of 'high' but this did not mean that this was the only breach that was considered when determining the revised incident risk rating. 89On the day when the incident took place he stated that 'live line work' was being carried out, which involves employees working on the respondent's high voltage network under live conditions where the overhead conductors are energised at a voltage of 22k volts. Employees are required to utilise prescribed work practices to reduce and control risks associated with this kind of work. The live line manuals provide detailed prescription on how specific work tasks are to be completed including requirements to earth plant and machinery in live line work. 90Mr Hangar stated that he is aware of approximately 8 incidents within the respondent in the last two years where conductors have failed during live line work or when the crane borer or EWP has come into contact with energised network during live line work. Where investigations had taken place, no injuries occurred and the crane borer had the correct earthing requirement implemented. In the circumstances under which the employees were required to work on the day in question, the use of an earth was the highest level of control to reduce the risks associated with that type of work. 91Mr Hangar stated that the respondent and the broader electrical distribution industry does not recognise or accept the electrical properties or earthing capabilities of the stabiliser legs for a crane borer or an EWP as a control measure or to dissipate current following inadvertent contact with energised network mains. 92He also dismissed the comments of both Mr Betts and Reynolds in that the crane borer not being required to be earthed as it was outside the clearance zone. In accordance with the respondent's procedures CEOP 2069 Pole Assessment For Working Near or Aloft require that where work involving condemned poles is required , work must be suspended until the pole is made safe and supported. Where any load change is required the pole must be adequately supported. As a result of this requirement the crane borer was in contact with and was provided mechanical support to the pole that was involved in live line work. Any reference to being outside the clearance zone is irrelevant as the crane borer was directly engaged in live line work and therefore required to comply with all the obligations for undertaking live line work. 93He also stated that the tests carried out by Mr Reynolds were without the authorisation from the respondent. He said that earth resistance test will vary based on a number of factors including soil type and moisture of the soil, ambient air temperature and humidity, the physical electrical connections and the physical set up of the work location. he said it was not possible to determine through an earth test conducted after the event what the actual resistance provided by an earth stake would have been on the day of the Mudgee incident or to determine whether the stabilising legs on the crane borer would have provided an effective path to earth on that day on site. 94The respondent requires as per its Traffic Management Policy at a minimum, the use of a 'workers ahead' sign and that all vehicles, which would include an EWP, are to have a vehicle mounted warning device activated. 95Mr Hangar concluded his affidavit by outlining the training requirements for employees covering live line work, the competing of HIRACS and the use of Personal Locator Beacons (PLB). 96In final submissions Mr Cross outlined the sources of the power to grant the relief sought by the applicant. He stated that whatever arbitration occurs must be accordance with section 740 (3) and (4) of the Fair Work Act 2009. He emphasised that the person arbitrating must not make a decision that is inconsistent with the Fair Work Act or a fair work instrument that applies to the parties. Within the Agreement are provisions that relate to health and safety (clause 1.10 requiring employees to wear appropriate protective clothing and observe all health and safety policies and procedures. 97The applicant has conceded that on the day in question, crew members were not wearing appropriate personal protective clothing, not using safety equipment and not observing all health and safety policies and procedures. 98It was Mr Cross's submission that the granting of the applicant's relief sought would being making a decision inconsistent with the Agreement and contrary to section 740(4) of the Fair Work Act. The Commission is therefore prohibited by the terms of section 740(4) from granting the relief sought. 99Mr Cross stated that the applicant did not challenge the evidence of Mr Hanger as to the promulgation and operation of the WorkSafe Policy. Also the notification of the industrial dispute sought to challenge the "suitable resolution of a discipline matter via internal appeal processes". No appeal occurred because the applicant lodged the appeal outside of the permitted time frame. 100He said that the introduction of the Worksafe Policy came about through discussion with the various stakeholders including the applicant. It replaced the Lifesaver Policy. He stated that one of the changes that was introduced by the WorkSafe Policy was the clear specification of disciplinary outcomes for breaches of the respondent's policies procedures as set out in schedule 3.3-C of the WorkSafe Policy. This section of the Policy clearly outlines the "High Impact" examples, of which six impact breaches of those were identified in the incident. 101The incidents consequence rating was obtained from the definitions set out in 3.2 and the incidents likelihood rating was obtained from the definitions set out in 3.2. The incident risk rating was then determined from the consequence and the likelihood ratings on the table in 3.2. If an incident is rated as ' moderate', 'high' or 'very high' the WorkSafe Policy provides for disciplinary outcomes which are set out in Table 5. A disciplinary rating is determined based on Table 3.3. 102It was his submission that the incidents were quite correctly rated as 'high' in the final Investigation Report, however even if they were rated as 'moderate', the same discipline would have applied pursuant to the disciplinary outcomes which were set out in Table 3. 103Mr Cross stated that it was the applicant's evidence that it was acceptable for employees not to earth a crane bore because some of the employees subsequently had conducted unspecified tests that was alleged proved that the earthing required by the respondent was not the best earthing possible. What was asserted even flew in the face of the Australian Standard for High Voltage live working. 104The failure to communicate with Network Operations was a serious breach, as the gravity of the breach was such that had a serious incident occurred, Network Operations would have thought the work crew were at a completely different location. 105He also stated that the approach of the applicant was to make 'light' of the policies. The extraordinary statement made by Mr Betts that the incident was rated too highly as anyone coming into contact with a live crane " would almost certainly be dead either way". 106With respect to remedy sought he submitted that no orders could be made against Messrs Bryant and Jackson as the Commission is not in a position to assess the individual knowledge and mitigating circumstances of those employees. The breaches were not universal among the three employees as it was Mr Bryant who individually failed to contact the Network Operations. Also the Commission should infer that Messrs Bryant and Jackson would not have assisted them ( Jones v Dunkel). They were available but did not give evidence. 107The effect of the warnings are not even that a further offence will result in termination. The employees simply have a 'high' first offence. Consideration and decision. 108The respondent raised the issue of other members of the work crew on that day who did not come forward and give evidence in support of the proposed Orders which directly affected them. The applicant stated that they believed that there was only a requirement for one of the employees to come forward and advise what occurred that day which was Mr Reynolds. Taking into consideration that other members of the work team on the day in question were available to give evidence in their defence but did not, I find can only lead to the conclusion that their evidence would not have assisted their case. 109With respect to the initial report placed into TotalSafe by Mr Maher after his field audit that at first instant he classified it as 'moderate', I accept his evidence that he knew that this initial assessment could be revised if appropriate. Such a revision could take place post an investigation and Mr Maher gave evidence that his initial assessment had been reviewed in previous incidents. 110There was criticism from the applicant of a Safety Alert being promulgated on 1 August 2011, prior to the Investigation Report being finalised. I do not believe that this criticism was valid. I have noted the list of non compliances that were listed on the Safety Alert. No items on the Safety Alert were disputed by Mr Reynolds. I also note that the Safety Alert came out after Mr Reynolds had been interviewed by Mr Lee. 111 Also no evidence was brought before this Commission that the promulgation of this Safety Alert in any way influenced the outcome of the Investigation Report. 112Included within the evidence filed by the respondent were the minutes of the Occupational health & Safety Corporate Committee (OHSCC) of a meeting held on 4 March 2010. Included in the minutes were the proposed changes to Lifesaver procedure( previous policy). It was noted that after vast consultation with the ETU, the OHSCC came to unanimous agreement with the proposed , new titled procedure: OHS &E Worksafe (CEPG2268). The minutes outlined the changes that were to take place. It stated: The terminology non-negotiable has also been removed from Table 2 in the procedure. It will now concentrate on an incident being Moderate, High and Very High. The table: Qualitative measures of consequence or impact, has also been implemented into the procedure. This clearly identifies the types of incidents and where they rate against the Risk Matrix to then determine what disciplinary action is to be taken. 113In May 2010 a Teambrief was published with the heading : Worksafe-revised Lifesaver process. It stated that the launch of the revised procedure, Worksafe, was to come into effect 1 June 2010. It stated in part that Worksafe Operational Guide, CEOP2268 OHS&E Worksafe, applied to all staff. It's aim is to provide a consistent and transparent process for the investigation of incidents to promote safety for all employees and support their drive to Zero Harm. 114It stated that some of the main differences included: Non Negotiable incident levels have been removed-instead incidents that have previously fell under this category will now be assessed in line with the Incident Level Descriptors outlined in Table 2 and Attachment C. Disciplinary Actions have changed-the suspension of the Electrical Safety Rules allowance will only be enforced when the incident involves employees working on or near the electrical network and Warning Letters will be replaced with Mandatory Competency Assessments and a Safety Behaviour Survey-see Table 3 for full details. A new Qualitative Measures of Consequence or Impact table has been developed to assist with determining the Incident Risk Level-see Attachment C. 115At the completion of his audit on site on 21 July 2011, Mr Maher advised the work crew that he would be reporting his findings and that this would not be the end of it. 116Upon his return to the depot after he had carried out an audit, Mr Maher put his report in TotalSafe and classified it as moderate. This classification resulted in an investigation taking place. 117The investigation carried out by a Mr Mike Lee commenced on 25 July 2011 and ceased on 3 August 2011. The following was expressed in his report under the sub heading of Findings : Mathew Bryant did not notify Network Operations between location changes, against the requirement held in Common Safety Principles paragraph 6.3.1 ix of CEOM7040. Richard Griffin did not earth his equipment in accordance with Technique 6, High Voltage Live Line manual CEM 7040.07. The team assessed the worksite and did not recognise the need for any form of traffic control beyond surrounding the front of the EWP with witches hats. The actual construction work could have been considered as being within 1.2m of the roadway as the work includes plant. At minimum , a 'workers ahead' sign should have been implemented. Adrian Reynolds did not wear gloves or a safety vest, despite such PPE being ticked off on the HIRAC. Mathew Bryant did not mark off the switching steps in accordance with the requirements of Operational Procedure-Systems Operations: Communication and Control CEOP2059, P4.9-8 Step Rule. 118Under the subheading of Matters Arising Mr Lee stated in part: The initial risk rating given to the incident when entered into the TotalSAFE system was a rating of moderate, based on the likelihood of possible and a consequence of moderate. The absence of leather work gloves posed an actual risk to Adrian Reynolds of receiving an injury of a minor nature. The work crew inadequately completed the HIRAC at the third location and specifically did not implement controls that were listed on the HIRAC. The incident was however, a near miss in the sense that had Richard Griffin's equipment come into contact with live conductors, it may have been raised to the same potential as the 22 kV conductors. Any person contacting the equipment and a path to earth could have received fatal injuries. It was therefore considered the likelihood as possible and with death being a possibility, the consequence rating would raise to High. 119Under the sub heading of Conclusions it was expressed: A range of safety matters were identified by Adam Maher during his un-announced visit to the crew's third worksite. Some of these matters were insignificant, others disputed, while most importantly some held potentially serious consequences. Of the errors and violations committed by the crew, the most significant were the lack of an earth affixed to the crane -borer and Network Operation's lack of knowledge of where the crew were. In addition to this, the crew did not believe that they had committed any serious breaches given what Adam had debriefed them over. The investigation found that the HIRAC tool was completed by the crew to an extent; however there were aspects of the HIRAC which were not reflected in reality, such as PPE being ticked off but not worn and incorrect worksite location listed. This would be an indication that the HIRAC was seen as a must do rather than a need to do. 120The factual findings of the report were accepted by the applicant. As expressed the findings were not in issue. Mr Howell stated that: "I should say it is not in dispute that it is appropriate or necessary to install an earth circuit to a crane borer when performing live line work. If the respondent requires heavy plant engaged in live line work to have an earth circuit installed, then the ETU does not take issue with that." 121Notwithstanding that the findings were not in dispute, a great deal of time was invested by both parties in adducing evidence from Mr Reynolds and to a lesser extent Mr Betts, Mr Maher and Mr Hanger as to what had occurred on the day in question, what policies were breached, why policies were not followed and the worth of each policy. It is clear in one of the respondent's policies ( Operational Manual: High Voltage Live Work CEOM 7040) that "the lifter borer shall be connected to an earth electrode". This was acknowledged by Mr Reynolds, yet it questioned by the applicant as to its worth. 122 It was the interpretation or the misapplication of the WorkSafe Policy by the respondent and how it operated was the dispute between the parties. It was the application of the risk matrixes which drive the disciplinary outcome. Mr Howell stated : "Now simply put, on my client's case, the two most serious failings identified by this investigation report, the failure to earth one piece of equipment and the failure to notify network operations, if the relevant descriptors from the policy were properly applied, one would have the likelihood of risk being assessed as either rare or unlikely and a proper assessment of consequence would result in a moderate or at worst, major, assessment. If you take the highest of those and refer to table 2, major consequence either rare or unlikely the incident level would come out as moderate, and it 's for that reason that we say the disciplinary consequence that has been visited upon this work crew was not appropriate, was not consistent with this policy and that is ultimately what drives this dispute." Mr Howell also advised that with respect to table 3.3(page 10 of 16) of the WorkSafe Policy the headings were incorrectly printed. He stated that the word "High" and "Very High" should be deleted and the words " Major" and "Catastrophic" be inserted. 123The evidence of Mr Reynolds was that he agreed that he failed in relation to the specific traffic control requirement. He accepted that he got it wrong. He also accepted that with respect to his failure to wear a high visibility vest he overlooked the need. 124Mr Reynolds advised that he knew that it was policy that each and every borer should be earthed. He accepted that he knew that this was a requirement on that day (ie 21 July 2011). He agreed that he knew that on that day one of the borers was not earthed. On that day he overlooked this requirement to earth it. 125Mr Reynolds accepted that the crew whilst replacing only a wooden pole on 21 July at the third location was not relevant, as he would treat a wooden pole as conductive. He also accepted that he wrote the number of the pole down incorrectly. He could not advise why he had made this error. 126In his statement Mr Reynolds stated : " There were a range of other minor things that we hadn't done. For example , I was not wearing the high visibility vest, had my sleeves pulled up and was not wearing leather work gloves when I was shovelling." In cross examination Mr Reynolds accepted that it was absolutely false to classify it as minor things. 127Mr Reynolds accepted that on that day he was the safety observer. He accepted that he signed the HIRAC acknowledging that the network had been advised. He agreed that they had not been advised that the work crew had moved to Mud Hut Creek Road. He agreed that they should have been advised. He accepted that by not advising the network that it defeated the policy. 128 He advised that on that day Mr Mathew Bryant was supposed to be contacting the network and he was unaware that Mr Bryant had not. It was Mr Reynolds evidence that it was again overlooked. He accepted that this was a significant safety breach. 129Mr Cross for the respondent outlined how the WorkSafe Policy should be read. He stated that one goes to table 3.3 C- Examples of Qualitative Measures of Consequence or Impact. There are five columns each with a heading. Under the heading of High in this column are 5 sub headings. Under the sub heading of PPE is : Not wearing critical PPE (Note2) Note 2 states: Critical PPE is defined as including insulating gloves, mandatory eye/face protection, 185gsm clothing on or near electrical network, cut proof trousers/chaps when operating a chain saw, mandatory ear protection, breathing apparatus in confined spaces, fall Arrest Harness, hard hat, high visibility clothing around heavy plant and roads. Under the sub heading Electrical processes is the dot point: Not applying earths. :Under the sub heading Non adherence to critical safety processes are the dot points: HIRAC process and failure to implement controls. Traffic management. 130Mr Cross then said if one then goes to Step 3- Determine disciplinary actions in accordance with Table 3 . Under this Table under the column marked Incident Level "High" 1st offence is expressed : Mandatory Competency Assessment and ** safety behaviour survey with General Manager de-brief. This was the penalty imposed on Mr Reynolds and other members of the work crew except the apprentice. 131It should be noted that under the Incident Level marked "Moderate"- the 1st Offence carries the same penalty as "High". 132This WorkSafe policy has been in operation since 1 June 2010. It was the result of a great deal of consultation by the respondent with interested stakeholders including the applicant. 133A submission by Mr Howell was that two of the headings found on table 3.3 of the Worksafe policy were wrong. The words "High" and "Very High" should be deleted and "Major " and "Catastrophic" should be inserted. He stated that one goes to table 3.3 as varied, then proceeds to the table headed Qualitative Risk Analysis Matrix-Level of Risk and then proceed to the incident level in table 2, take the likelihood rating , read the incident record and then apply table 3. 134The evidence of Mr Hanger was that one only considers the table 3.2 if there had been injury/ death to a worker or damage to equipment. A reading of 3.2 expresses the Consequence/Impact -Regarding Safety/Security. In the incident in question in this matter there was no injury to a worker or equipment. 135 I have great difficulty in accepting that the headings expressed in 3.3 are wrong. This WorkSafe Policy has since its inception been the basis for carrying out disciplinary action, yet this is the first time such a submission has been made and during a proceedings. Prior to this hearing the respondent was unaware of the applicant's views. It is my finding that the applicant by this submission sought to change the expressions in the Worksafe Policy to fit their argument. I reject this submission. 136I accept the interpretation as expressed by Mr Cross. Step 2 in the WorkSafe Policy requires a verification of the incident level in accordance with section 3.3, Table 2 and the Incident Report. Table 3.3 clearly expresses Examples of Qualitative Measures of Consequence or Impact. Under the heading of "High" are listed examples of breaches which members of the work crew that day breached. When one takes into consideration the Incident Report which concluded a "High" rating and apply Step 3 by considering Table 3, the Incident level of "High" results in determining the disciplinary actions. In this case a 1st Offence for the crew workers except for the apprentice. 137In summary it is my finding that the respondent has applied the WorkSafe policy correctly. 138I therefore dismiss the application and the Orders sought by the applicant. 139This matter is therefore concluded. D. Ritchie Commissioner. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 September 2012