Australia: An uncertain safety risk can justify employees’ refusal to work: the safety exception to industrial action

Unions and employees commonly organise and take industrial action against an employer about safety issues.

Under section 19(2)(c) of the Fair Work Act 2009 (Cth) (FW Act), the definition of industrial action does not include action that is taken because of a reasonable concern of an employee about an imminent risk to their health or safety, if the employee did not unreasonably fail to comply with a direction of the employer to perform other available work (at the same or another workplace) that was safe and appropriate for the employee to perform (the safety exception). Section 474(1) of the FW Act prohibits payments by an employer to an employee in relation to a period of unprotected industrial action. However, if the safety exception applies, the prohibition on payment does not. Some enterprise agreements contain provisions enabling an employer to deduct wages when an employee is absent from duty, other than on some form of approved leave or where the circumstances fall within the safety exception.

In this In Brief, we examine the decision of Senior Deputy President Richards of the Fair Work Commission (Commission) in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v LCE Queensland Pty Ltd [2013] FWC 2014 (3 April 2013). In this decision, it was determined that the safety exception applied even though it was subsequently demonstrated that the safety issue (dust in the workplace) did not pose an imminent risk to health or safety. This was because the nature and extent of the risk posed by the dust was uncertain at the time the industrial action was taken, and the employees were not directed to work in other areas where that risk was not present. Accordingly, the relevant enterprise agreement did not authorise deduction of wages from the employees on the basis that they were absent from duty during the time that the safety exception applied to their action.

WHAT HAPPENED?

Employees of LCE Queensland Pty Ltd (LCE) claimed that they were unable to perform work at the Gold Coast University Hospital site (the site) because there was a reasonable concern on their part about an imminent risk to their health or safety due to the level of dust in their working environment. The dust emanated from areas where contractors were cutting into gypsum wall panels without using the necessary control measures. The gypsum wall panel product was an imported product and its use was novel on the site. The total floor area of the site was some 148,000 m². The areas affected by the build-up in dust were restricted to some 15,000 m².

The employees' concerns first emerged at the start of the week beginning 19 September 2011. That was the day on which the site delegate of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) contacted the CEPU organiser about his concerns. According to the CEPU, the Material Safety Data Sheet (MSDS) noted that dust generated in the course of handling the wall panels:

"may irritate eyes, skin, nose, throat and upper respiratory tract. Persons subject to large amounts of this dust will be forced to leave the area because of nuisance conditions such as coughing, sneezing and nasal irritation. Laboured breathing may occur after excessive inhalation."

The MSDS also stated that the wall panels contained crystalline silica in low amounts, but that:

"prolonged and repeated exposure to airborne free respirable crystalline silica can result in lung diseases (i.e silicosis) and/or lung cancer."

Further, the MSDS indicated that exposure to the dust may "aggravate pre-existing upper respiratory and lung diseases, including, but not limited to, bronchitis, emphysema and asthma".

According to the CEPU, the employees raised their concerns with LCE, but no steps were taken to implement any control measures to otherwise remove the dust on-site. The concerns were then escalated on 23 September 2011 to the elected Health and Safety Representatives (HSRs) who referred the matter to the Site Safety Committee (SSC) in accordance with the Work Health and Safety Act 2011 (Qld) (WHSA). The CEPU contended that the principal contractor, Lend Lease, which was said to be the Person Conducting the Business or Undertaking for purposes of the WHSA, took no action to address the issue of the presence of dust on the site. This was despite the SSC representatives having approached Lend Lease later in the day on 23 September 2011 about the concerns.

On 26 September 2011, at around 7.30 am, the SSC met once more, but was unable to reach a unanimous view as to the dimensions of the safety issue. A site-wide meeting was then convened at around 9.00 am. At that time, Lend Lease advised that the materials were not hazardous and that certain contaminated levels were closed for cleanup or decontamination operations, but work elsewhere across the site could be performed. The LCE employees were of the view that the advice from Lend Lease was not well-founded.

This was because the SSC had not been able to reach a position in relation to the effect on health of the dust, and the dust was evident in their work areas (and beyond the areas closed). Consequently, through their CEPU representative, the employees communicated their intention not to resume work until they were properly advised as to the safety risk associated with the dust and were redeployed to areas that were dust free. No area had been identified in which employees could perform duties that were unaffected by the dust. The employees were not, therefore, redeployed to other areas as they had generally indicated a refusal to return to work.

The CEPU argued that, because the SSC had been unable to determine whether or not the site was safe for employees to work, an Inspector from Workplace Health and Safety Queensland (WHSQ) attended the site on 27 September 2011. According to the CEPU:

• The WHSQ Inspector concluded that the level of dust on the site was unacceptable and the control measures deployed were inadequate. The activity of cutting the gypsum wall panels was thereafter removed from site.
• It was then determined that it was safe to work on site in all areas other than the areas that were specifically identified as being contaminated.
• Once this conclusion was reached, and it was conveyed directly to the LCE employees, they returned to work to perform their duties in areas other than the contaminated areas.

THE RELEVANT ENTERPRISE AGREEMENT PROVISION

Clause 10(f) of the LCE Queensland Pty Ltd and CEPU Electrical Division Queensland Union Enterprise Agreement 2009 - 2012 (the Agreement) provided as follows:

Amount to be Deducted from Average Days Pay - An employee whose ordinary hours are arranged in accordance with clause 5.1 (Hours of Work) and who is paid wages in accordance with clause 10.1 (Employees Wages) and is absent from duty (other than on annual leave, long service leave, public holidays, paid sick leave, workers compensation, bereavement leave, or paid family leave), shall, for each day the employee is absent, lose average pay for that day by dividing the employee's average weekly rate by 5.

An employee who is absent from duty for part of a day, other than on paid leave, will lose pay for each hour, or part thereof, the employee is absent from duty at an hourly rate calculated by dividing the employee's average daily pay rate by 7.0 where the employee is employed in the Coal Work Division and 7.2 where the employee is employed in other than the Coal Work Division.

THE ISSUES

Under the dispute resolution procedure in the Agreement and section 739 of the FW Act, the CEPU applied to the Commission for it to deal with a dispute about the decision of LCE to refuse to pay the employees their ordinary rate of pay (plus other relevant allowances) for a period of four hours on 26 September 2011. The agreed issue for determination by the Commission was the following question:

Did employees of LCE Queensland who did not perform their ordinary duties on 26 September 2011 nonetheless have an entitlement to their ordinary wages and other payments under the terms of the LCE Queensland Pty Ltd and CEPU Electrical Division Queensland Union Enterprise Agreement 2009 - 2012?

LCE argued that unless the employees were able to demonstrate a genuine, reasonable concern that their health and safety was at imminent risk, and that the withdrawal of their labour on 26 September 2011 was proportionate to that reasonable concern, they would be taken to have been absent from their duties pursuant to clause 10(f) of the Agreement and LCE could lawfully withhold payment.

DECISION

Dealing with the issue whether the employees had a reasonable basis for concern about a safety risk, Richards SDP referred to the High Court of Australia's decision in George v Rockett (1990) 170 CLR 104. In relation to the distinction between the foundation for a reasonable suspicion and a reasonable belief, the Court said (at 115):

... The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. ...

The Court then quoted from another of its earlier decisions, in which it was found that a belief could be held on more slender evidence than actual proof.

On the basis of these authorities, Richards SDP held that when the industrial action was taken on 26 September 2011, the LCE employees had a reasonable belief that their health was at imminent risk owing to the presence of an unknown dust type which affected their working environment. Richards SDP further held that:

• If Lend Lease had communicated to the workforce that its declaration that the site was otherwise open had been informed by the technical advice of a senior manager of WHSQ, then the belief held by the LCE workforce would not have had the necessary factual foundation.
• Equally, if an inspector from WHSQ had been present on site on 26 September 2011, and had conveyed technical information about the MSDS, no reasonable basis for the employees' belief would have existed.
• If LCE had identified and then directed its employees to work in areas unaffected by the presence of dust, the employees could not have refused to work in such areas as there would have been no basis for a reasonable belief that their health was at imminent risk.
• LCE's workforce faced an uncertain safety situation. The LCE HSR had not addressed their concerns. The SSC was locked in debate about the safety issues. The MSDS suggested the composition of the new product might create actual risks. No technical or authoritative interpretation of the MSDS was at hand to underpin Lend Lease's view. No dust-free areas in which to work had been designated or identified to which the LCE employees might have been redeployed.
• The LCE workforce had little choice but to seek independent or technical advice before returning to work. The withdrawal of labour until the necessary explanations were provided was a proportionate and cautious response to the situation at hand. Had the employees simply left work and not been in a position to accept re-deployment or further directions by remaining on-site, the outcome may have been very different.
• The employees did not perform their work as normal on 26 September 2011 because they held a genuine, reasonable concern that their health and safety was at imminent risk. The decision to withdraw their labour at that time was proportionate to that reasonably held concern. Consequently, the employees could not be taken to have been absent from their duties pursuant to clause 10(f) of the Agreement.

LESSONS FROM LCE QUEENSLAND

The decision in LCE Queensland illustrates how a union can effectively put in question a decision by an employer not to make payments in relation to a period of industrial action (in accordance with the prohibition in section 474(1) of the FW Act) by activating the dispute resolution procedure in an enterprise agreement.

LCE Queensland also stands for the proposition that, when assessing whether the safety exception applies, the time for determining whether employees have a reasonable belief of an imminent risk to their health or safety is the time when they first take action in response to the alleged safety issue. If the safety risk was uncertain at that time, the employees may have a basis for a reasonable concern at that time; and, therefore, the basis for a demand for payment for the period of time when they take their response (which, in this case, was a refusal to work), even though subsequent investigations demonstrate that the safety issue did not pose an imminent risk to health and safety.

This means that employers should be vigilant to guard against unions trying to create uncertainty about safety risks and the controls that are in place in order to justify action, which would otherwise be industrial action, and demands for payment for the period of such action. Practically, employers should therefore:

• Be aware of key risks to health and safety in the workplace.
• Seek necessary technical advice to properly understand and 'stay on top of' the key health and safety risks and the reasonably practicable ways of eliminating or minimising those risks.
• Swiftly address and deal with any concerns raised about serious risks to health or safety. This includes providing timely information to employees and unions about the nature and extent of risks as well as the current ways in which those risks are being eliminated or minimised. This may need to be done with the assistance of employees or consultants who have the necessary technical expertise.
• Follow agreed WHS consultation and issue resolution procedures.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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