DECISION

Fair Work Act 2009
s.789FC - Applications for an order to stop bullying

Sharon Bowker, Annette Coombe and Stephen Zwarts
v

DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The, Victorian Branch and Others

Application for an FWC order to stop bullying; whether applicants bullied at work; whether risk of bullying at work; steps taken to mitigate risk of further bullying at work; whether further orders appropriate; orders made.

Introduction

[1] Three employees of DP World Melbourne Limited (DP World) employed at its West Swanson terminal (WS Terminal) have each made an application for an order to stop bullying pursuant to s.789FC of the Fair Work Act 2009 (Cth) (the Act). By their separate applications Ms Sharon Bowker, Ms Annette Coombe and Mr Stephen Zwarts (the Applicants) want the Fair Work Commission (the Commission) to make a finding and issue a statement to the effect that each of them has been bullied at work. In addition, various orders are sought which are said to be necessary to prevent further bullying at work of the Applicants. The applications have not been joined but have, for convenience, been heard together.

[2] The Applicants have each filed a document containing their Amended Points of Claim which sets out the various alleged incidents of unreasonable behaviour on which they rely. This includes allegations of conduct engaged in by individuals who are, or were, employees of DP World, members of the MUA and/or officials of the Maritime Union of Australia (MUA). For convenience and as appropriate these individuals together with the MUA are referred to in this decision collectively as the MUA Respondents.

[3] The unreasonable behaviour complained of began after a complaint was made by Ms Coombe to DP World on 13 July 2013 concerning derogatory comments made about her by Mr Stewart Bennier, a straddle driver employed by DP World. The circumstances that led to Ms Coombe making that complaint, and Ms Bowker becoming involved in the complaint, are set out in the judgment of Jessup J in Maritime Union of Australia v DP World Melbourne Ltd 1 and for convenience are reproduced below:

‘5. On 17 July 2013, one of the straddle drivers employed by the respondent at the terminal, Stewart Bennier, was moved to a different work location without any reason, at least that was apparent to him. At his break, he asked one of the foremen why he had been moved. That foreman did not know, and was not able to accompany Bennier “upstairs” (the euphemism used at the terminal for the management offices) to find out. On the foreman’s advice, Bennier then asked another of the respondent’s employees, Daniel Madigan, to accompany him. Seeing that Bennier was (and here I relate Bennier’s recollection of Madigan’s words) “a little bit fuming angry”, Madigan offered to go upstairs himself on Bennier’s behalf to find out what was going on. By this stage it appeared to have been established that it was the supervisor, Stephen Templar, to whom Madigan would need to speak.

1. Upon his return about 15 minutes later, Madigan told Bennier that Templar was very upset that he (Bennier) had changed positions without telling him (Templar). That change of position was not the one on 17 July 2013 to which I have referred. It was a previous change which, it seems, Bennier had implemented of his own accord. Bennier’s response was to refer to the other members of the workforce who had regularly changed position, and complained that he appeared to have been the only one to have, in effect, got on the wrong side of Templar as a result of it. At this point Madigan told Bennier that Templar had expressed the view that he (Bennier) was not competent enough to be “working over the crane”, and “you’re not a team player”. This must not have been well-received by Bennier, because Madigan then said to him, “Look, don’t get upset, just go and do your job and just try to forget about it.”

1. On the following day, 18 July 2013, Bennier and Madigan were in conversation seated at a table in the amenities room at the terminal. Referring to Templar, Bennier said, “I’m still angry at what he did to me.” It is what Bennier said next that started the ball rolling apropos the events which ultimately led to the termination of Johnston’s employment. Bennier’s recollection was that he said, still referring to Templar, “how dare he call me not a team player when he’s fucking Annette Coombe behind Peter’s back”. Coombe was another stevedore in the respondent’s employ. The “Peter” referred to by Bennier was Peter Whelan, also a stevedore and believed by Bennier to be in, or to have been in, a personal relationship with Coombe, the specific nature of which (ie husband, fianc� or similar) Bennier was unaware.

1. Another stevedore who was in the amenities room at the time, Sharon Bowker, overhead what Bennier had said to Madigan. She gave evidence. Her recollection was that Madigan had told Bennier that Templar had said that he (Bennier) was not a team player. Bennier’s response was, “who the fuck does he think he is saying I’m not a team player when he’s fucking Annette Coombe?” Bowker’s evidence departs from that of Bennier in one material respect only, namely, that Madigan had then said, in her hearing, that Templar had accused Bennier of not being a team player. It will be recalled that, according to Bennier’s evidence, he had been told about that the previous day. This slight discrepancy – on which nothing turns – was not explored in the cross-examination of either witness, however, and I am disposed to think that the subject might well have been mentioned again by Madigan in the amenities room as part of a general, casual, conversation.

1. According to Bowker’s evidence, when she heard what Bennier said to Madigan about Templar, she said to him, “Do you know if that’s true?”, to which Bennier responded, “Well, everyone is saying it”. Bowker repeated her question, “Well, do you know if it’s true?”, to which Bennier’s response was to shrug his shoulders. According to Bowker’s evidence, she then said to Bennier, while pointing her finger at him, “It’s not appropriate. It’s not fair that you’re dragging Annette into your problems with Stephen Templar. He’s a married man. It’s not fair to her. If you’ve got any issues with Stephen Templar, you need to take them upstairs yourself. What you’re doing is wrong. What you’re all doing is wrong.” This last comment appears to have been directed to the situation, as reported by Bennier, that others in the workplace were speaking of Templar and Coombe in the same terms as he had to Madigan. Although less elaborate, Bennier’s evidence was consistent with Bowker’s.

1. In her evidence, Bowker said that, after she had upbraided Bennier in the terms I have set out, she could “see his demeanour change ... he wasn’t aggressive ... I knew that he knew he had done the wrong thing.” Bowker said that she knew Bennier, that he was “not a bad person”, and that “he wouldn’t normally talk like that.”

1. On a day which Coombe placed as Sunday 28 July 2013, Bowker saw Coombe in the car park as they were arriving at, and departing from, work. Bowker told Coombe about the exchange between Madigan and Bennier in the amenities room on 18 July 2013. She did so because she was concerned that “it would have got back to her and maybe not reported accurately”. She related accurately what Madigan and Bennier had said. According to Bowker, on hearing this news Coombe rolled her eyes and said, “I’m sick of this. I’m over it.” She gave Bowker to believe that every time Templar reprimanded somebody, she (Coombe) would get “dragged into it” (Bowker’s words in her evidence). According to Bowker, Coombe did not cry, but it was clear that she was annoyed.

1. A couple of days later, Coombe telephoned Bowker and told her that she had decided to lodge a complaint with management about Bennier’s comments. She wanted to know whether Bowker would verify the accuracy of the matter complained of, and would be prepared also to verify what had happened if called upon by management to do so. Bowker agreed to do this. In her evidence, Coombe said that she complained to management because “these comments had been ongoing for two years”. Every time she was dealt with in a way that might be perceived as involving favourable treatment, such as receiving an overtime shift or a shift extension, she was subjected to crude comments about her doings with Templar or others. Further, according to Coombe’s evidence, these kind of comments were associated with “behaviours displayed towards [her] which [she believed were] consistent with bullying.” Indeed, she said that “the behaviours [were] far worse than the rumours.” When she raised her concerns with management, she was told that nothing could be done unless she had a witness. Bowker’s readiness to support her in a complaint against Bennier gave her the witness that she needed.

1. On 31 July 2013, Coombe prepared a written complaint about the comment made by Bennier. I do not need to set out the terms of that complaint, as it followed closely Bowker’s version of events on 18 July 2013, as set out above. Coombe addressed her complaint to Sheryl Pastro, the Human Resources Manager at the terminal, with a copy to Vlad Jotic, the Operation Superintendent there. She said that Bennier’s comment was false, offensive, slanderous, disrespectful and damaging to the integrity, character and reputation of Templar and herself.

1. On 5 August 2013, Jotic required Bowker to meet with him in his office. She went to Jotic’s office, where he told her that that there had been a complaint made in relation to a discussion in the amenities room in which she had been involved. Bowker said that she understood what Jotic was talking about. Jotic said to her: “This is very serious. It has been very upsetting for Annette and Stephen and for his family.” He said that she would be called into the office the following day, and that she should think about what she was going to do. Bowker said that she would verify the complaint, but that she was concerned for Bennier.’ 2

[4] Thereafter there commenced a series of behaviours engaged in by individuals, or a group of individuals, directed towards the Applicants, which on the uncontested evidence of the Applicants, 3 was repeated unreasonable behaviour that caused a risk respectively to their health and safety. Whilst I will not chronicle the conduct engaged in during the period between mid-2013 and July 2015, that it happened, is something about which no respondent party to these proceedings should be proud.

[5] Mr Zwarts became involved in matters in or about August 2013. Prior to that time, Mr Zwarts, a foreman with DP World, had little knowledge about Ms Coombe or Ms Bowker, although Ms Bowker worked with Mr Zwarts on the panel at which he was foreman. 4 On 17 September 2013, Mr Zwarts was in attendance with Ms Bowker, as her support person, at a meeting held with human resources staff of DP World.5 Ms Coombe also attended the meeting.6 At this meeting, Ms Bowker and Ms Coombe discussed with representatives of DP World, particular conduct and events that they had experienced following the complaint made by Ms Coombe about Mr Bennier.7

[6] On 25 November 2013, Mr Zwarts ceased his membership of the MUA. 8 His resignation from the MUA seems to have been prompted by his view of the conduct that was being directed towards Ms Bowker and Ms Coombe and his perception of the role that particular officials and delegates of the MUA had played in that conduct.9

Whether Applicants have been bullied at work by an individual or group

[7] Since Ms Coombe made her complaint about Mr Bennier, she and Ms Bowker say that they have been each subjected repeatedly to conduct that is unreasonable behaviour that caused a risk respectively to their health and safety, and that the unreasonable behaviour has been directed towards each of them while they were at work by an individual or individuals (some of whom are able to be identified and others are not), or a group of individuals. The particulars of the unreasonable behaviour directed at Ms Coombe and Ms Bowker are set out in witness statements prepared by them and which are in evidence in these proceedings. 10

[8] Mr Zwarts says that since his involvement which commenced in August 2013, and particularly since his resignation from the MUA in late November 2013, he has also been subjected repeatedly to conduct that is unreasonable behaviour which caused a risk to his health and safety, and that the unreasonable behaviour has been directed toward him while he was at work by an individual or individuals (some of whom are able to be identified and others are not), or a group of individuals. The particulars of the unreasonable behaviour directed toward Mr Zwarts are set out in his witness statements which are in evidence in these proceedings. 11

[9] From approximately September 2014 until late June 2015, in the case of Ms Bowker and Mr Zwarts, and until early July 2015 in the case of Ms Coombe, the Applicants have been on that which is described as on-going special leave. 12 Each has had significant periods of special leave since July 2013.13 Since the cessation of special leave, each of the Applicants has taken various forms of authorised leave.14 The medical evidence as at mid-August 2015 as to the Applicants’ fitness to return to work indicates, in respect of Ms Coombe and Mr Zwarts, that from a medical and/or psychological point of view each has ‘no restriction in returning to full duties of General Stevedore’.15 In respect of Ms Bowker the medical evidence indicates:

‘From a medical and psychological point of view Ms Bowker is fit to return to work from the date of this report. There are some barriers in relation to her ability to return to work in the form of a perception of a lack of safety at work or a lack of support from the management in the face of perceived bullying and harassment from Union members. This is regarded as the main barrier from (sic) her return to work.’ 16

[10] For reasons that will shortly become apparent, it is unnecessary for me to set out the nature of each allegation of unreasonable behaviour directed towards the Applicants. However, between mid-2013 and July 2015, the Applicants have variously raised with DP World a large number of complaints and concerns about conduct by other employees of DP World and representatives of the MUA, which they believe constitute bullying at work. These complaints and concerns have been raised by the relevant Applicants at different times over this period. The Applicants have raised in excess of 212 complaints and concerns. These include, but are not limited to, the bullying allegations made by them in the Amended Points of Claim (Bullying Behaviour). The Applicants have alleged in the order of 37 instances of Bullying Behaviour. 17

[11] In the Points of Defence filed in these proceedings dated 12 February 2015, DP World does not contest that the Applicants have been bullied at work within the meaning of s.789FD of the Act in relation to certain Bullying Behaviour. 18 DP World says that it has established this through its investigation procedures and acknowledges that the concerns raised by the Applicants and the alleged instances of Bullying Behaviour include serious matters of workplace misbehaviour by others.19

[12] Not all individuals who have engaged in the Bullying Behaviour were able to be identified, some remain unknown. Some individuals involved in the Bullying Behaviour no longer work for DP World. 20

[13] The MUA Respondents, whilst formally denying the allegations of Bullying Behaviour, did not lead any evidence to rebut any allegation of Bullying Behaviour allegation directed to the MUA Respondents made by the Applicants, and they accepted that on the basis of the evidence before the Commission there is a sufficient basis for the Commission to be satisfied that each of the Applicants has been bullied at work and to make the findings sought by the Applicants. 21 The finding sought by the Applicants is for the Commission to issue a statement to the effect that each of Ms Coombe, Ms Bowker and Mr Zwarts had been bullied at work.22

[14] Before turning to those findings, it is necessary to say something of the ‘group of individuals’ that engaged in Bullying Behaviour. It seems to me necessary that I am able to identify, by some description, the individual or group of individuals, whether known or unknown, who engaged or participated in the Bullying Behaviour. In the circumstances of this case, identifying the features of a group of individuals that engaged in the Bullying Behaviour whose members (or some of them) are unknown is difficult. Ultimately, I have decided to accept the Applicants’ description of the group as constituting those persons who subscribe to, or support, the existence of a system of authority and control at the WS Terminal which stands apart from DP World, the employer which stevedores are paid to serve, and a breach of norms of behaviour established and enforced through such a system. 23 In the circumstances of this case, I am satisfied that the description outlined sufficiently describes the group of individuals that engaged in the Bullying Behaviour.

[15] I am satisfied on the uncontested evidence given by each Applicant that:

• Ms Bowker was, during the period between mid-2013 and July 2015, bullied at work in that she was, while at work in a constitutionally-covered business conducted by DP World, subjected repeatedly to unreasonable behaviour engaged in by an individual or a group of individuals and that behaviour created a risk to her health and safety;



• Ms Coombe was, during the period between mid-2013 and July 2015, bullied at work in that she was, while at work in a constitutionally-covered business conducted by DP World, subjected repeatedly to unreasonable behaviour engaged in by an individual or a group of individuals and that behaviour created a risk to her health and safety; and



• Mr Zwarts was, during the period between August 2013 and July 2015, bullied at work in that he was, while at work in a constitutionally-covered business conducted by DP World, subjected repeatedly to unreasonable behaviour engaged in by an individual or a group of individuals and that behaviour created a risk to his health and safety.

[16] Having so concluded the focus, as set out in s.789FF of the Act, turns to the question whether there is a risk the Applicants, or any of the Applicants, will continue to be bullied at work by the individuals or group of individuals that have engaged in the Bullying Behaviour previously and, if so, what orders (if any) are appropriate to prevent the Applicants, or any one of them, from being bullied at work by the individual or group of individuals.

Whether there is a risk that the Applicants or any of them will continue to be bullied by the individuals or group

[17] Section 789FF confers on the Commission a broad discretion to make any order it considers appropriate directed to preventing a worker from being bullied at work by an individual or group of individuals. It provides as follows:

‘789FF FWC may make orders to stop bullying

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2) In considering the terms of an order, the FWC must take into account:

(a) if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body—those outcomes; and

(b) if the FWC is aware of any procedure available to the worker to resolve grievances or disputes—that procedure; and

(c) if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes—those outcomes; and

(d) any matters that the FWC considers relevant.’

[18] It is readily apparent from the terms of s.789FF that having satisfied myself that each of the Applicants has been bullied at work by an individual, or group of individuals, the relevant enquiry then focuses on whether there is a risk that the Applicants, or any one of them, will continue to be bullied at work by the individual or group of individuals.

[19] It seems to me, that in assessing whether there is a relevant risk, I need to be satisfied that the risk that the Applicants, or any one of them, will continue to be bullied at work by the individual or group of individuals is a real, and not merely a conceptual or hypothetical, risk. It seems to be accepted that DP World has taken some steps to reduce or mitigate the risk of further bullying of the Applicants, but the Applicants say the risk of Bullying Behaviour continues to exist and more needs to be done.

[20] The Applicants have identified five broad issues which they say have not been dealt with and continue to manifest at the Applicants’ workplace. In the result, they say it is almost certain that there is a risk that the Applicants will be bullied at work by the individuals or group of individuals. 24 I deal with each of the matters identified below.

Code of silence and workplace culture

[21] The ‘Code of Silence’ (the Code) is said to be a prevailing culture or paradigm where employees at the WS Terminal will not make complaints to DP World or verify complaints made, for fear of being labelled a ‘lagger’ or being ostracised in the workplace. The Code is said to have fostered a mentality that issues in the workplace should be addressed without DP World’s involvement and that ‘laggers’ should be shunned.

[22] In Maritime Union of Australia v DP World Melbourne Ltd 25 to which earlier reference has been made, Jessup J recognised the ‘existence of a system of authority and control at the terminal which stands apart from the employer which stevedores are paid to serve, and a breach of norms of behaviour established and enforced through such a system’26 in relation to the WS Terminal. No party suggested that His Honour was incorrect in his description of the system.

[23] The Applicants say that this system continues to exist at WS Terminal and is reinforced by the Code. They say that DP World is well aware of the existence of the Code at the WS Terminal. The Applicants point to the evidence given by Mr Andrew Jena, the former General Manager of DP World whose evidence was that, from his experience in the stevedoring industry he was aware ‘that many employees in the industry have in the past operated by a particular unwritten code of conduct: there have often been strong alliances between stevedore level employees, and a reluctance to involve management in workplace issues, with employees often preferring to deal with any concerns via the MUA’. 27

[24] Mr Jena also gave the following evidence:

‘The waterfront environment is currently going through a period of cultural change. Since around 2013, the divisions in the workforce between and the more traditional elements (typically those that view management with a degree of adversity, are more entrenched in historical practices and generally opposed to industry change) and the more progressive elements (typically those who are more open to changes in practice and procedure and more open to working co-operatively with management) have manifested in a number of ways. The issues involving Mr Johnston which I describe below is just one example of these changes, where Ms Coombe, Ms Bowker and Mr Zwarts were perceived (by some employees) as having broken the industry’s unwritten code of silence involving management in a dispute. Mr Johnston’s dismissal and the subsequent legal proceedings were well known to the workforce at DP World Melbourne and there was a lot of interest at site level about what was going on. Amongst Mr Johnston’s supporters on site, the issue was emotionally charged. This put Ms Bowker and Ms Coombe (initially, later Mr Zwarts as well) in the position of being seen to be opposed in some way to the more traditional way of doing business and having “betrayed” their colleagues by co-operating with a management investigation.

DP World has put in place a number of steps intended to change the more traditional culture silence. This has been and continues to be a difficult process. Historically, a large difficulty in addressing this type of situation was that employees would refuse to formally come forward or would refuse to answer questions in an investigation at work. This is changing over time. Since 2013, the culture of DP World Melbourne has become much more open: more employees are raising concerns with management and participating in investigations.’ 28

[25] Mr Glenn McCluskey began his employment with DP World on 10 December 2014 and holds the position of Organisational Effectiveness and Change Manager. 29 Mr McCluskey gave the following evidence:

‘Since starting in my role at the Terminal, I have been involved in management of employee concerns about inappropriate workplace conduct. Given my day-to-day involvement in these concerns, I have observed high levels of distrust among the workforce at the Terminal. For example:

a) I have had a number of instances reported to me where employees have recorded conversations with other employees so that they have proof of what is being said;

b) When I have spoken to employees about issues in the workplace, a number of employees have said that they don’t want to be involved and do not want to be named and/or have been reluctant to state what occurred or to nominate any witnesses;

c) A number of employees have commented to me that they feel they are being “set up” when they are questioned about an allegation regarding conduct at work;

d) Employees at the terminal are often inclined to accept rumours and innuendo as fact if they consider they heard it from a “reliable” source (ie a friend or ally) and often resist having a fact-based discussion about the evidence of what has occurred;

e) Employees often refer to rumours, but are unwilling or unable to identify those person(s) said to be involved;

f) There can be a tendency for employees to make complaints about daily interactions with other employees that they are dissatisfied with;

g) Some employees who are informed they have been identified as being involved in allegations then make “counter-claims” involving other employees; and

h) There have been instances of graffiti and vandalism at the Terminal, apparently directed at particular employees.

Based on my experiences in other workplaces I consider that there remains a degree of tension among employees at the Terminal. I have also observed that the workforce appears to have “split” between those who support the more traditional waterfront culture (of “stevedores versus management”) and those employees who do not wish to have any part of it and just want to come to work and do their jobs. In the Terminal, this has been exemplified in the issues concerning Mr Johnston, Ms Coombe, Ms Bowker and Mr Zwarts.’ 30

[26] The examples given by Mr McCluskey of his observations of high levels of distrust among the workforce at WS Terminal seems to be behaviour that is consistent with the continuation amongst some employees of the Code and culture described by Mr Jena, and in relation to which DP World is attempting to effect a change.

[27] Mr McCluskey was cross-examined about the existence of the Code and culture at WS Terminal during which his evidence was as follows:

‘MR RINALDI:  Mr McCluskey, in your first witness statement you attached a large number of documents. Obviously, as you say in your statement, you’ve only come into the business in December last year so you’re relying on the history that other people have provided you and those documents, and you’ve attached - - -?---Correct.

Including the court transcripts and the like. One of those documents is an affidavit of Ms [Connellan], a former human resources manager. I think she is no longer there?---That’s correct. [sic]

GM2 is the first of, I think, two affidavits of hers in the Federal Court that you annex. In paragraph 9 of that affidavit, GM2, she says:

Based on my observations in my role at DP World and my discussions with numerous employees, I am concerned that there is a pervasive culture of not making complaints and employees are afraid of repercussions from the union and within the workforce if they make a complaint. Although DP World is taking steps to address these issues, there continue to be significant difficulties.

Now, that was on 18 April 2014. You agree that’s still a reasonable summary of the position?---May I just read the statement, please?

Yes. Paragraph 9 of GM2. Sorry, I thought you were listening?---And your question was again, sorry?

Do you agree that’s still an applicable summary of the position at the moment?---No, I don’t.

You don’t. I think your evidence is to the effect that there was change happening. People are more willing to report incidents to the company?---Correct.

That it’s a gradual process. Is that a fair summary of your evidence?---Correct.

You would agree that there is still a culture of what has been called in this case by other witnesses, code of silence?---No, I would not.

You would disagree with Mr Jena on that point? He says in his statement from May this year that there is a code of silence?---I don’t agree there’s a code of silence.

I beg your pardon?---I don’t agree that there’s a code of silence today.

You don’t agree there is a code of silence today?---Not based on my experience.

Not based on your experience. Okay. Your first statement, at paragraph 15, you say you’ve observed - this is your observations - high levels of distrust amongst the workforce at the terminal. This is on 22 May, you made this statement. You give a number of examples on page 9 of that statement, illustrating the high level of distrust.

. . .

MR RINALDI:  I was referring to paragraph 7 of Mr Jena’s statement, on page 3, fifth line:

The issues describing Mr Johnston, which I describe below, is just one example of these changes where Ms Coombe, Ms Bowker and Mr Zwarts were perceived by some employees as having –

and these are the words I read to you –

broken the industry’s unwritten code of silence in involving management in a dispute.

You agree, as at 22 May, such a code existed? It seems to be consistent with the evidence you just gave?---I can’t speak for Mr Jena, but I would say that the courage shown by the applicants is fantastic.

What I’m asking you is do you agree there is an industry unwritten code of silence in involving management in a dispute?---It’s not my experience.

In the six months you’ve been there, you have not experienced a code of silence in involving management in a dispute?---Not that I can recall.

That’s despite what you’ve said in paragraph 15 of your statement? Are you changing your evidence?---(No audible reply)

Isn’t what you’ve recorded in 15, evidence of exactly that?---The evidence in paragraph 15 for me is about distrust.

Do you or do you not accept that the distrust is a by-product of the code of silence and vice versa?---I believe they are two different things. They may be interlinked. I believe that the distrust that I refer to here is about the recordings. I think the distrust in recordings does exist and still exists in the workplace.

So that’s 15(a). You also say the distrust relates to not wanting to nominate witnesses or state what occurred; that’s (b). Feeling set up when they’re questioned about an allegation regarding conduct at work; that’s (c). You maintain this evidence, I assume?---Sorry?

You don’t resile from this evidence?---No.

You also say the distrust is evidenced by employees accepting rumours and innuendo as fact if they consider they’ve heard it from a reliable source - a friend or ally - and often resist having a fact based discussion. All these things are said to be examples of the graffiti and vandalism end of the distrust you refer to. It’s not just the recording of conversations, is it?---That’s correct.

Mr Jena, in paragraph 21 of his statement, refers again to the unwritten code of silence among union members - the third and fourth line - in explaining his understanding of the word “lagger” or “lagging”. Again, you seemed to accept before - because you said when I asked you about whether they were by-products of each other, that they’re different things, but you seemed to accept the existence, in your answer to that question, of the code of silence. You would agree that’s a code of silence among union members, as Mr Jena says?---He does.

You agree with that?---Yes.

Both you and Mr Jena says that things are changing, but the reality is it takes a long time to change that culture, doesn’t it?---It does.

And Mr Jena says, at the end of paragraph 8:

Since 2013, the culture at DP World Melbourne has become much more open. More employees are raising concerns with management and are participating in investigations.

As you’ve said, the applicants is an example of that?---Correct.

What you both agree on, as well, is what you say in your next paragraph 16, which is that there is somewhat of a split in the workforce between, as you say, those who support the more traditional waterfront culture of stevedores versus management and those employees who do not wish to have any part of that, and just want to come to work and do their jobs. That is the case. You still observe that split, don’t you?---I do.

Yes. Whilst things are changing slowly, there is no significant change between 22 May and today, is there?---Certainly change continues.

It’s evolutionary?---I think it’s a bit more than that.

It’s what, sorry?---I believe it’s a more than that.

Sorry, I just couldn’t catch that. It’s - - -?---You’re saying evolutionary.

MR SKENE:  He’s saying it’s more than that.

MR RINALDI:  More than evolutionary?---Yes.

But it’s certainly not revolutionary, is it? It’s not happening overnight?---(No audible reply)

Your answer was no?---Yes.

Thank you. You would agree, wouldn’t you, that written policies and documents and posters can only do so much in bringing about the sort of change you’re trying to achieve to the culture?---Yes.

I think it has been said by Ms Campbell in her evidence that Mr Holland has said in a meeting it’s a bit like an AVO; it’s a piece of paper that can’t by itself, the document, stop the behaviour from occurring. You would agree with that?---Yes.’ 31

[28] Whilst I have little doubt that DP World has and is taking steps to address the Code and culture at WS Terminal and to which some employees still adhere, I do not accept Mr McCluskey’s evidence that a Code does not exist at WS Terminal. I accept that this may be his fervent belief or hope, having regard to the steps taken by DP World to effect change, but for the reasons that follow, I do not accept as a matter of fact that that DP World has succeeded in eradicating the Code.

[29] First, Mr McCluskey’s evidence is based on his limited experience at WS Terminal, having only commenced employment with DP World in December 2014. Secondly, Mr McCluskey’s assessment seems inconsistent with his own experience when involved in the management of employee concerns about inappropriate workplace conduct, and specifically his evidence that:

‘When I have spoken to employees about issues in the workplace, a number of employees have said that they don’t want to be involved and they do not want to be named and/or have been reluctant to state what occurred or to nominate any witnesses.’ 32

[30] Thirdly, Mr McCluskey’s assessment does not sit comfortably with his evidence about the speed with which cultural change is brought about at the WS Terminal, that is, neither evolutionary is nor revolutionary; but rather something in between. 33 Fourthly, Mr McCluskey’s assessment is also at odds with Mr Jena’s evidence that since 2013, ‘the culture at DP World Melbourne has become much more open: more employees are raising concerns with management and participating in investigations.’34 Mr Jena’s evidence suggests that although more employees are raising concerns with management and participating in investigations, not all are doing so. This seems consistent with the passage extracted from Mr McCluskey’s witness statement and reproduced in the preceding paragraph.

[31] Fifthly, it is highly unlikely, and with respect, it stretches the bounds of credulity to suggest that a culture at WS Terminal, that in early 2014 was described by the then Human Resources Assistant Manager at DP World as ‘a pervasive culture of not making complaints and employees are afraid of repercussions from the union and within the workforce if they make a complaint’ and that ‘[A]lthough DP World is taking steps to address these issues, there continue to be significant difficulties’, 35 has been transformed into a panacea wherein employees feel unencumbered in making complaints and co-operating with their employer by providing information to their employer during workplace investigations or other processes deployed to deal with workplace issues. Doubtless there has been an improvement. Doubtless this is the result of efforts by DP World to bring about change, but as Mr McCluskey has himself experienced, in the short time that he has been employed by DP World, some employees remain reluctant to become involved, they do not want to be named or have been reluctant to state what occurred or to nominate any witnesses.

Inadequate workplace investigations, incomplete investigations and delay

[32] The Applicants submitted that the risk of each of them being bullied at work by the individual or group of individuals will be on-going when they return to work at WS Terminal because DP World has, on numerous occasions, failed to comply with the requirement under its new Workplace and Bullying Policy to promptly deal with complaints. 36 The Applicants submit that the length of time between a complaint being made and an outcome to the complaint’s investigation has not been ‘prompt’. They submit that the adequacy of DP World’s workplace investigations is also questionable on the grounds of reliability and credibility of the investigation process.

[33] As to reliability, the Applicants submitted that throughout the events the subject of these proceedings, the Applicants have not received sufficient updates or information about the status of the investigations into their complaints. 37 As to credibility, the Applicants submitted that the investigation processes have not been methodically conducted by DP World. They say that on some occasions, the Applicants have not been formally interviewed or consulted as part of the investigation into their complaints and in the result, DP World has failed to consider their evidence as part of its investigation.38 Further, the Applicants say that despite an external investigation being conducted into a particular complaint by an external consultant, DGHR (Mr David Gunzburg), DP World decided to conduct its own internal workplace investigation into the same complaint and came to a different conclusion to that of the external investigation, without providing any reasonable explanation.39

[34] The Applicants submitted that DP World’s investigations lack rigour, reliability and credibility, and the inconsistency of its approach not only perpetuates the Code, but also demonstrates that there is a real risk that should the Applicants report any further complaints, their complaints will not be properly addressed.

[35] The Applicants also submitted 40 that there are a number of complaints that they have made which are not yet investigated or for which no outcome has been communicated.41 This further emphasises the deficiency of DP World’s system of managing complaints. In some cases the outcomes of complaints have remained incomplete or un-communicated, despite the Applicants having been directed to return to work.42

[36] The Applicants submitted that a further contributor to the risk is the significant amount of time it has taken for any action to be taken in respect of their complaints. 43 The Applicants submitted that not only has DP World taken its time in providing outcomes and attempting to produce adequate return to work (RTW) plans, but the proceeding itself has also been significantly protracted. This has meant that the Applicants have not been able to move on from the bullying, and their fear of the risk of being bullied at work has increased as more and more incidents are identified as time goes on.

[37] To the extent that the reference to the protracted nature of this proceeding is intended as a criticism directed to the Commission, it is rejected. Even a cursory review of the way in which these proceedings have been conducted shows a myriad of interlocutory applications and other disputes requiring resolution, the result of which was the vacation of dates for the hearing programmed to begin on 24 November 2014, and which did not enable the matter to be ready for hearing until 5 August 2015.

[38] Mr Glen McCluskey gave detailed evidence, which I accept, about the history, development and amendment of relevant workplace behaviour policies and the training that employees have received. Relevantly, Mr McCluskey’s evidence was that:

• ‘In September 2013, DP World published the DP World Employee Handbook 2013 which sets out behavioural standards for dealing with customers, stakeholders and other employees. The Employee Handbook includes:

i. a Code of Conduct which sets out the standards which apply to conduct at work; and

ii. a Discrimination, Harassment, Bullying and Freedom of Association Policy'. 44

• In November 2014, the DP World’s former policy on discrimination, harassment, bullying and freedom of association was replaced by a Workplace Behaviour Policy. The Workplace Behaviour Policy addresses unacceptable workplace behaviour including workplace bullying, discrimination, victimisation, cyber-bullying, stalking and breach of freedom of association. It also addresses how complaints will be addressed by DP World. 45

[39] In relation to employee education, Mr McCluskey’s evidence was that:

‘Since I commenced in my role, I have been involved in DP World’s steps taken to ensure that all employees at the Terminal are aware of the Workplace Behaviour Policy and their obligations. This has included providing a copy of the following policies to each employee individually and requiring them to acknowledge receipt: the Workplace Behaviour Policy, the Workplace Behaviour Complaint Form, the Social Media Policy, the Social Media and Mobile Phone Use Bulletin, the Domestic Violence Support Policy and the MUA member booklet on harassment, bullying and violence. As at the date of this statement, 97% of all employees at the Terminal have confirmed in writing that they have received a copy of the policies referred to above. This is essentially all employees at the Terminal, other than a small number of employees on long term leave. Of the remaining 19 employees, 16 have received the policies by registered mail. On this basis I consider over 99% have now individually received the policies.

98% of all employees at the Terminal have participated in training on appropriate workplace behaviour since 2013. The 14 employees who have not participated in training as at the date of this statement are all on long term absence, and in many cases the materials have been provided to them in the mail. The training programs provided include internal and external training. The external training has been provided by consultants who specialise in this field.’ 46

[40] Mr McCluskey also gave evidence, which I accept, about the procedure adopted by DP world in dealing with complaints in accordance with its Workplace Behaviour Policy. His evidence was that:

‘. . . Typically, complaints are dealt with as follows:

a) There is a prescribed form for use under the Workplace Behaviour Policy (Complaint Form). The Complaint Form:

i. sets out some brief questions for the complainant about who the complaint is made against, what happened, where it happened and who was involved;

ii. asks the complainant what actions DP World can take to effectively deal with the complaint; and

iii. requests that employees submit their completed form to their direct manager, supervisor, HR or via email to [email protected].

. . .

b) An employee submits the Complaint Form and/or written complaint in person or by email. In some circumstances a verbal complaint can also be made (in which case the issue is recorded in a detailed file note), however DP World’s preference is for complaints to be set out in writing by the complainant. That complaint is either provided directly to the Human Resources team or sent through to the team by the person to whom it is provided.

c) After the complaint has been received, the employee receives an acknowledgement of receipt. This is provided in writing, by email or by mail. The email or letter is typically provided within 24-48 hours and sets out the particular manager who will be progressing their complaint and the immediate next steps.

d) Depending on the nature of the complaint, the manager may make inquiries, seek additional information from the complainant, interview witnesses, review any available radio recordings, CCTV footage, work logs, electronic records and any other evidence that is considered to be relevant and appropriate. If relevant witnesses have been identified, they may also be interviewed, depending on the circumstances and the prospect that they will be able to provide additional information that will be relevant to the outcome. The evidence is considered on a case-by-case basis.

e) If a witness says that he or she cannot recall events, or denies that particular events occurred as alleged (or at all), the investigator may consider whether any further steps are required to assist the witness to recall events and/or to test what has been said. For example, if there is independent evidence that could verify this issue, this may be considered. If the evidence is not regarded as credible or truthful, the investigator may probe the issue further with the witness. How far the investigator chooses to take it will depend on all the circumstances including whether further evidence is readily available and the extent to which it is likely to affect the outcome of the investigation.

f) If the investigation substantiates the allegations and concludes that a breach of policy has occurred, DP World will consider what disciplinary action may be appropriate. The issue will be escalated to the appropriate manager to decide whether the investigation findings provide a basis to proceed or whether additional steps should be taken. Ultimately, a disciplinary process may be implemented.

g) In some cases, it may be appropriate to adopt interim arrangements to address the work relationship between the employees involved in a complaint. In that case, the employees whose arrangements are being adjusted will be informed of the changes considered appropriate by DP World.

h) After the inquiries have been concluded, the complainant is provided with notification of the outcome of their complaint. This is typically done in writing, although an employee may be informed verbally as well. The timeframes for this notification vary, depending on the circumstances of the complaint and investigation. Generally, our objective is to deal with complaints as quickly as possible. Many complaints are able to be dealt with quickly (for example, within approximately two weeks) and this commonly occurs. However, in some cases - including the case of Ms Coombe, Ms Bowker and Mr Zwarts - their issues are more complex and accordingly the process may take longer. If DP World cannot be satisfied about what has occurred, it may also decide to leave a complaint “open” if further information may come to light.

i) I keep a separate register of complaints made under the Workplace Behaviour Policy at the Terminal. The human resources team retains copies of all relevant documentation in respect of each complaint.

In many instances, an employee will be seeking (in the first instance) a quick process to resolve a workplace grievance. New complaints about potentially unacceptable workplace conduct are not always raised using the formal procedure. Employees may tell their Supervisor or a manager about a particular issue or send an email through. This is permitted under the Workplace Behaviour Policy, which allows employees to deal with concerns themselves and/or raise issues on an informal basis. In these cases, DP World managers have discretion as to the level of formality required in connection with a complaint. Given the breadth of issues which may be raised under the Workplace Behaviour Policy (which includes but is not limited to bullying and harassment), a range of different outcomes may be appropriate and are considered on a case-by-case basis. However, if a formal complaint is made and/or where the issue relate to bullying, these are notified to and/or referred through to the Human Resources team.’ 47

[41] Mr McCluskey also gave detailed evidence about the internal and external investigations that were conducted into the various complaints made by the Applicants. 48 To summarise, Mr McCluskey’s evidence was to the following effect:

• DP World engaged external investigators to conduct investigations into some of the allegations made by Ms Coombe and Ms Bowker;



• In the case of some complaints, an external investigation was either not required or deemed by DP World as not appropriate, and an internal investigation was conducted in relation to these complaints;



• The decision to undertake an internal or external investigation is made on a case by case basis, however the majority of complaint investigations undertaken by DP World occur internally;



• Allegations the subject of a complaint are sometimes determined ‘not be substantiated’ on the available evidence. It does not mean that the allegations are not true;



• If further information is provided or later discovered, a further investigation may be initiated;



• When an investigation is finalised, DP World would determine whether the allegations the subject of a complaint are substantiated, in part substantiated or are not substantiated;



• In some cases, following an investigation DP World determined that no further steps were warranted in relation to particular allegations the subject of a complaint;



• In some cases, allegations the subject of a complaint made by the Applicants, concerned persons who were no longer employees of DP World;



• In some cases, it had not been possible to progress investigations into allegations the subject of complaints made by the Applicants because it was not possible to identify the persons involved;



• In some cases, the allegations the subject of a complaint were reported to DP World many years after the event was said to have taken place. Whether the particular allegations were investigated depended on considerations such as the passage of time and practicality of an investigation;



• Some allegations the subject of complaints made by the Applicants did not disclose any apparent breach of a DP World policy;



• Some allegations the subject of a complaint made by the Applicants did not involve the Applicants and so the outcome of the investigations into those complaints was not communicated to the Applicants;



• In cases where DP World was satisfied that there had been a breach of its policies by an identified employee then disciplinary outcomes were implemented which included issuing of warnings and dismissal from employment;



• Where an allegation subject of a complaint was substantiated but a particular employee could not be identified, DP World considered the steps that could be taken to address the concern the subject of the complaint, including confirmation or reinforcement amongst the workforce of the standards of behaviour that are required in the workplace.

[42] As to the information that has been provided to each Applicant about the progress of any of the investigations into their complaints or the concerns that they raised, it is apparent investigations into some of the complaints and concerns are continuing and have not been concluded. 49 It is also apparent that a document has been provided to each Applicant setting out the status or outcome of each of the various complaints made or concerns raised,50 although some of the details provided may not have disclosed fully or in sufficient detail, the outcome of a particular investigation.51 In some cases, the reasons for conclusions reached by DP World following an investigation may not have been clearly or sufficiently explained to the Applicants.52 In some cases, matters have been closed without any finding or note as to the reason why a finding was not made, or notations of the actual complaint are incomplete.53

[43] The annexure to the Applicants’ final submission, 54 not reproduced here, chronicles the timing of the major steps taken by the Applicants in relation to their various complaints or concerns, and time that has passed since the complaints or concerns were raised. Attachments to Mr McCluskey’s further witness statement also give some detail as to the status or progress of the various complaints or concerns.55 There seems little doubt that there has been delay in advising the respective Applicants of the outcome of some of their complaints or concerns. In part this may be explained by issues of complexity arising, for example, from the passage of time between the complaint and the incident; whether the person against whom allegations are made was an employee, or was an employee at the time the complaint was made, whether the person is known or identifiable and the availability of persons to corroborate the allegations the subject of the complaint, and the need for considered advice. That said, in some cases, it has taken DP World 12 months or more to advise the relevant Applicant of the outcome of a complaint. On no account are such delays desirable. Given the apparent delay, coupled with the matters identified in the preceding paragraph and in the circumstances faced by the Applicants, it is understandable that their confidence in DP World’s investigative processes is shaken. Judging by a register of current workplace behaviour complaints56 tendered in evidence, and which records complaints received by DP World from various of its employees, there appears, in a number of instances, to be a significant period that passes between the date a complaint is received by DP World and the date on which the outcome is communicated to the complainant. In some cases, complaints made in the later part of 2014 are recorded in the register (as at 14 July 2015) as on-going. It is therefore apparent that the process can and should be improved notwithstanding the steps already taken as set out in the evidence of Mr McCluskey.

[44] Apart from changes to policies, it is evident that DP World has taken other steps to address bullying and other unacceptable workplace behaviour. Mr McCluskey gave evidence of the following initiatives:

• Formal and informal (for example at toolbox meetings) policy reminders reinforcing of the expected standards of behaviour amongst the workforce;



• Workplace behaviour training at the WS Terminal;



• ‘Compass’ – an organisational initiative led by the senior leadership team of DP World, which amongst other things, ‘aims to promote and foster a positive and productive work environment’ with a ‘strong focus on appropriate behaviour at work, fostering a respectful and supportive environment’ and ensuring that inappropriate conduct is addressed;



• The appointment of six contact officers who have undertaken contact officer training, to raise awareness, offer support and help people understand the options available to them on a variety of matters including unacceptable behaviour at work; and



• Introducing additional services to deal with workplace behaviour issues from time to time when required, such as:

○ ‘engaging Ms Susan Halliday, former Sex Discrimination Commissioner, to assist DP World with respect to matters including training sessions and investigations’;

○ ‘engaging Mr Lee to assist with terminal management, including assisting in the investigation and return to work process’ for each of the Applicants;

○ ‘allocating Mr Muscat, the Human Resources Manager from DP World Brisbane, to provide additional support’ in the period prior to Mr McCluskey’s appointment; and

○ ‘engaging external advisors, investigators and other consultants from time to time as required’, including the engagement of the company, FBIS to provide security in connection with the Applicants. 57

[45] That these steps have been taken is not in issue. Moreover, I am satisfied that the steps taken by DP World described above and earlier, contribute to a diminution of the risk of the occurrence of bullying at work, both generally and specifically in relation to the Applicants.

Inadequate return to work (RTW) plans and risk assessments

[46] Much of the focus of the proceedings concerned the adequacy of the RTW plans prepared, and risk assessments undertaken by DP World, to facilitate the return to work of each Applicant.

[47] The Applicants submitted 58 that a comprehensive risk assessment is a necessary prerequisite to a successful RTW plan, as the risk assessment allows risks to be identified and measures to be created and implemented in response to identified risks.59 The Applicants submitted that each of them was directed by DP World to return to work before their respective risk assessment was completed, and that some measures identified in the risk assessments had not been implemented. The Applicants submitted that some of the inadequacies they identified in the risk assessments include:

• The risks and the control measures identified in the risk assessments do not thoroughly and robustly address the Applicants’ specific concerns; 60



• The control measures identified in the risk assessments do not address, and are inadequate to, combat the continuing and prevailing culture of the Code; 61 and



• Some controls identified in the risk assessments have already been proven to be ineffective. 62

[48] The Applicants say that at no time prior to the Applicants’ scheduled return to WS Terminal did the discussions between DP World and the Applicants reach a point where the RTW plans, and changes to arrangements, were comprehensively discussed, explained and agreed to by both parties. 63 This submission, with respect, misunderstands the nature of these instruments. A RTW plan is an instrument prepared, relevantly, by an employer pursuant usually to workers compensation legislation in discharge of obligations to return injured workers to the workplace, where consultation, but not agreement, is required.64 RTW plans may also be prepared to facilitate a return to work of employees outside of workers compensation related injuries. Absent some mandated contractual industrial instrument or legislative term requiring agreement, only consultation about the RTW plan, will be required.

[49] Similarly, risk assessments are undertaken to identify and assess hazards or risks to health or safety at the workplace as a tool to assist an employer to discharge the employer’s obligations under occupational health and safety legislation. An obligation to consult (but not to agree) will usually arise. 65 DP World cannot be fairly criticised if agreement with the Applicants on the content of these instruments had not been obtained prior to their finalisation and implementation.

[50] The Applicants also say that their respective RTW plans are deficient because the RTW plans lacked ‘hard measures’ to combat continuing risks that had been identified in the workplace and to minimise the Applicants’ contact with unacceptable workplace behaviours. The Applicants point to the following, by way of example:

• Ms Bowker’s RTW plan provides for a change to her panel, but the change identified is not sufficient to protect her from the identified risks; 66



• Mr McCluskey refused to allow Ms Coombe to move into a project role, which would allow Ms Coombe to be removed from a working environment populated by people against whom she has made complaints; 67



• a lack of control measures were identified which would ensure the Applicants’ safety from those against whom the Applicants have made complaints; 68 and



• DP World failed to implement adequate security controls including those recommended by the external risk assessor, Matryx Consulting Pty Ltd. 69

[51] The Applicants submitted additionally, the MUA has failed to provide assurance that its internal disciplinary system provides an appropriate, unbiased and functional means for the Applicants to raise issues of bullying in the workplace. 70

[52] According to the Applicants, neither DP World nor the MUA have demonstrated sufficient evidence to ensure a safe work environment for the Applicants upon their return to WS Terminal, and there was no evidence to suggest that this scenario will change before any further directions by DP World for the Applicants’ RTW are made. 71

[53] Mr Adam Holland was appointed to act as General Manager – DP World Melbourne, on 16 July 2015. 72 Prior to that appointment, Mr Holland was DP World’s General Manager – Health Safety, Environment and Security.73 In that capacity, Mr Holland was involved in the preparation of risk assessments and site audits which examined the risks and mitigation steps at site level for DP World’s operations across Australia, and in consequence he was involved in the preparation of risk assessments in relation to the return to work by Ms Coombe, Ms Bowker and Mr Zwarts. His involvement in the return to work process for the Applicants continues.74 Relevantly, Mr Holland gave the following evidence:

‘Early in 2015, in my capacity as GM HSES, I became involved in the return to work process for Ms Coombe, Ms Bowker and Mr Zwarts in connection with the preparation of risk assessments as set out below.

DP World has a standard process for the return to work for employees who have been on an extended period of absence for reasons of illness or injury. This involves review of the issues which may arise on a return to work, preparation of a return to work plan and consultation with the employee(s) concerned. Typically, a written return to work plan is prepared in discussion with the employee and then reviewed on the employee’s return to work. I understand that the potential risks are typically considered in developing the return to work plan, which will set out the steps being taken to avoid or mitigate these risks.

When I became involved in the risk assessment process with Ms Coombe, Ms Bowker and Mr Zwarts earlier this year they had each been absent from work for a period of several months. Although they had not been absent for reasons of illness or injury at that time, I understood that they had each expressed concerns about returning to work and the risks that may arise on re-entry to the workforce at West Swanston Terminal. For this reason, I decided to use a standard risk assessment tool which is utilised for assessment of risk in DP World’s business.

This assessment tool provides for a review of the potential risks that may exist (“Inherent Risks”), the mitigation steps implemented to reduce that risk and an assessment of the effect of that mitigation step on the Inherent Risk. This is known as the “Residual Risk”. The assessment tool measures both the “Inherent Risk” and the “Residual Risk”.

I created a risk assessment document for each of Ms Coombe, Ms Bowker and Mr Zwarts in connection with their return to work. Initially, a draft risk assessment document was prepared using DP World’s standard template assessment tool. This assessment tool is used for all risk assessments in the business (including all operational, business continuity and work related risks). For example, this system is often applied to assess possible risks arising from scenarios such as changes in operation, equipment or process.

In the case of Ms Coombe, Ms Bowker and Mr Zwarts, I understood that they had each provided Mr McCluskey and/or Mr Lee with an outline of the particular risks that they were concerned about for the purpose of their return to work. Initially, Mr McCluskey and Mr Lee communicated these concerns to me. I subsequently met with each of Ms Coombe, Ms Bowker and Mr Zwarts to discuss their concerns about the possible risks arising on their return to work.

I reviewed their concerns and created the risk assessments, having regard to the particular risks that they expressed to be of concern to them and the mitigation steps which had been proposed in the return to work plans. I also sought input from DP World’s safety team, National Risk Reduction Manager and FBIS (the security team which had been assigned to each of Ms Coombe, Ms Bowker and Mr Zwarts) in preparing the personalised risk assessments for each of Ms Coombe, Ms Bowker and Mr Zwarts. In addition to these meetings, each of Ms Coombe, Mr Zwarts and Ms Bowker have also provided written feedback on the return to work plans and risk assessments, typically via emails to Mr McCluskey. The risk assessments were amended to incorporate the additional concerns raised by each of Ms Coombe, Ms Bowker and Mr Zwarts and set out the control measures that were proposed to be put in place to address the risks that they had raised by each of Ms Coombe, Ms Bowker and Mr Zwarts.

In the process of preparing the revised risk assessments, I have sought to avoid debating whether or not a particular risk does or does not exist with Ms Coombe, Ms Bowker and Mr Zwarts. Instead, my approach has been to take at “face value” the fact that they are concerned about a particular risk and to focus on the steps being implemented to control or mitigate that risk.

Although my role has been limited to assessing risk rather than the return to work plans, I have been involved in meetings that have canvassed both issues. I have not been involved in all the discussions about the return to work plans, which I understand have been handled principally by Mr McCluskey and Mr Lee. To date, I have spent over three hours meeting with Ms Coombe and her representatives, over seven hours meeting with Ms Bowker and her representatives and over three hours meeting with Mr Zwarts and his representatives to discuss their risk assessments and (more generally) their return to work. In total, this is in excess of 13 hours of meetings. In those meetings, they have each indicated dissatisfaction with the level of detail in their risk assessments and the level of consultation with them.

Based on the discussions that I have had with them I consider that a key issue is a difference of opinion about the process which should be followed to address their concerns and whether a particular concern relates to a risk (which may impact their capacity to return to work) or relates to their dissatisfaction with the resolution of a complaint that they have in the past raised with DP World. For example:

a) In my recent discussions, each of Ms Coombe, Ms Bowker and Mr Zwarts have expressed concerns that certain issues have not been dealt with in the risk assessments. However, I have taken them through the documents in detail and confirmed that these issues have been included in the risk assessments provided, just not in the same level of detail that they had set out in their communications to DP World;

b) Each of Ms Coombe, Ms Bowker and Mr Zwarts has expressed concerns that they consider the risk assessments do not reflect the experience that they have previously had in the workplace in 2013-2014. I have explained to them that the risk assessments have been prepared based on the current practice and culture in the business, noting that there have been a number of changes (as I have explained above); and

c) Each of Ms Coombe, Ms Bowker and Mr Zwarts have expressed concerns to the effect that they do not wish to return to work until there is no risk of a repetition of the type of behaviour they say they have been subjected to in the past. In my view, this misstates the nature of risk. It is impossible to eliminate all foreseeable possibility of adverse events occurring. A degree of risk is inherent in all activity. General safety risk assessment practices tend to depart from an assumption that there is an inherent level of risk, and focus on the likelihood, potential outcomes and management steps. The purpose is not to seek to eliminate all possible adverse events (regardless of likelihood, possible outcome or mitigation) but to balance the risks with the steps to be taken to achieve appropriate management of risks. Accordingly, in this context, the purpose of a risk assessment is to evaluate such inherent risks to assess the extent to which control measures may be put in place to minimize the chance of an adverse event occurring, mitigate the effect of that event and/or implement remedial action to address the event.

I am satisfied that there are sufficient mitigation measures to appropriately control and address the risks in connection with Ms Coombe’s, Ms Bowker’s and Mr Zwarts’ return to work to the extent reasonably practicable and appropriate. I am satisfied that it is appropriate for them to return to work in accordance with the return [to] work plans which have been prepared for them.’ 75

[54] As Mr Holland indicated in his evidence, his role was limited to assessing risk rather than RTW plans and he was not involved in all of the discussions concerning the Applicants’ RTW. 76 These discussions were the responsibility of Mr McCluskey. Relevantly, his evidence was:

‘At the time I commenced in my current role, the Court’s ruling in the Johnston Proceedings had been recently published. At that time, each of Ms Bowker, Ms Coombe and Mr Zwarts had been provided with personal security by DP World. The need for personal security was reviewed in February 2015. At that time, I was involved in conducting a review with FBIS and I discussed the issues with the representatives from FBIS. I was satisfied that there was no basis to continue providing the personal security, which was discontinued in February 2015. However, DP World has continued to provide some security support to each Ms Coombe, Ms Bowker and Mr Zwarts. The personal security was discontinued from 18 February 2015. I am not aware of any security incidents that have occurred since this time.

I have met with each of Ms Coombe, Ms Bowker and Mr Zwarts on several occasions in relation to this issue as follows:

a) On 15 January 2015, Mr Lee and I attended a meeting Ms Coombe, Ms Bowker and Mr Zwarts;

b) On 17 February 2015, I met with each of Ms Coombe, Ms Bowker and Mr Zwarts in separate meetings;

c) On 2 March 2015 I met with Ms Bowker and her husband with Mr Lee;

d) On 3 March 2015 Mr Lee and I met with Mr Zwarts;

e) Later on 3 March 2015, Mr Lee and I met with Ms Coombe;

f) On 14 April 2015, I met with Mr Zwarts and Ms Bowker in separate meetings;

g) On 21 April 2015, I met with Ms Coombe; and

h) On 29 April 2015, I met with Ms Coombe.

I have also exchanged various emails with each of Ms Coombe, Ms Bowker and Mr Zwarts in connection with their return to work and I have been in contact with their counsellor, Jodi Thomas-Yorgey, to discuss each person’s mental wellbeing and preparedness to return to work. In the course of these meetings and discussions, I have given each of Ms Coombe, Ms Bowker and Mr Zwarts the opportunity to identify those particular issues that they considered were preventing their return to work. These issues have been considered, including what steps are appropriate to mitigate any risks as outlined in further detail below.

Based on my discussions with Ms Coombe, Ms Bowker and Mr Zwarts, I have grouped their concerns regarding return to work into four broad categories as follows.

a) Resolution of concerns preventing return to work

i. I have confirmed to each person that although DP World’s investigations were continuing and had not all been concluded, I did not consider this should prevent them from returning to the workplace. I have confirmed that in the return to work process our focus on was identifying those particular issues which were preventing their return to work. Each person identified to me the particular concerns which they said required to be resolved for their return to work.

ii. I have asked each of Ms Coombe, Ms Bowker and Mr Zwarts about their previous returns to work and discussed what they have to say about the reasons that their previous return to work arrangements were not ultimately successful.

iii. In the meetings on 2-3 March 2015, each person identified the particular issues they said were impacting [t]heir return to work (in their view). After these meetings, I circulated the notes to each person, so that they could provide any additional comments. Following that correspondence, each person identified a number of further concerns that they said were relevant to their return to work. [sic]

iv. Mr Holland also attended the meetings in April 2015 with Ms Bowker and Mr Zwarts. He was not available to attend the meeting with Ms Coombe on 21 April 2015, however he met with her subsequently on 29 April 2015. I attended that meeting.

v. In those meetings, Mr Holland explained the risk assessment that is being been conducted, both in relation to the person’s specific circumstances and more generally with respect to all other employees at the Terminal. This process is ongoing at the date of this statement

vi. My view is that, to the extent it is practicable to do so, the processes and procedures DP World has in place are appropriate to address the concerns that have been raised by Ms Coombe, Ms Bowker and Mr Zwarts about how conduct issues will be addressed going forward. I have communicated this to each of Ms Coombe, Ms Bowker and Mr Zwarts in my recent meetings with them in April 2015. I have also and confirmed that this will continue to be reviewed by DP World.

b) Facilities on site

i. Each of Ms Coombe, Ms Bowker and Mr Zwarts raised queries about the possibility of increasing security facilities on site. At all times, DP World has been prepared to consider reasonable accommodations concerning security at the Terminal, subject to an assessment of what is reasonable, practical and appropriate in the circumstances.

ii. Since I commenced in my role, DP World has arranged for a site security review to assess various safety and security issues in connection with the Terminal. The results of the review included some recommendations for enhancing security at the Terminal. As these recommendations would require a substantial investment, they required internal approval. As at the date of this statement, a number of recommendations have been approved for implementation. This includes:

1. introducing swipe card access to the women’s locker room;

2. putting additional cameras covering the entry into the women’s locker room and overalls common area;

3. putting additional cameras to cover the entrances into the amenities building including the stairway;

4. putting additional cameras to cover the administration walkway and stairs from ground floor to first floor; and

5. putting additional lighting in around the amenities building.

iii. DP World has previously considered other options with respect to security including for example the provision of round-the-clock personal protection to each of Ms Coombe, Ms Bowker and Mr Zwarts.

c) Complaint handling process and policy

i. Each of Ms Coombe, Ms Bowker and Mr Zwarts raised concerns about the way in which their complaints had been handled in the past;

ii. As set out above in paragraphs 24 to 26, since commencing in my role at DP World, complaints have been addressed in accordance with the Workplace Behaviour Policy. I have reviewed the requirements of the Workplace Behaviour Policy and the process for conducting inquiries. I consider that their concerns are substantially addressed by the current complaint handling processes under the Workplace Behaviour Policy. I have discussed these issues with each of Ms Coombe, Ms Bowker and Mr Zwarts;

iii. Each of Ms Coombe, Ms Bowker and Mr Zwarts have raised concerns about returning to work in circumstances where not every issue that they have previous[ly] notified to DP World has been resolved and/or resolved to their satisfaction. I do not agree with this position and do not consider that it should prevent their return to work. We are undertaking a risk assessment and will not ask them to return to work until we are satisfied that steps have been taken to support and monitor their safety in the workplace. Many of the issues that they have been raised have been addressed by DP World. In circumstances where they continue to raise new issues with DP World (even though they have not in fact been at work for many months) it is difficult to see that this approach would ever enable them to return to work. I have taken steps to identify, consider and (where appropriate) address the specific issues that they have said are impacting their return to work. This process will be ongoing. [sic]

d) Interpersonal issues with other employees

i. DP World will manage interpersonal issues as and when they arise in accordance with its policies and procedures. As set out in this statement, steps have been taken to inform all employees of the expected standards of workplace behaviour and what to do if there is any inappropriate conduct at work;

ii. Each of Ms Coombe, Ms Bowker and Mr Zwarts identified various concerns about interpersonal conflict with other employees, including ostracism by other employees at work. I have had initial discussions about these issues with each of them, including to outline the expected standards of workplace conduct and the options that exist to deal with any new complaints of inappropriate conduct;

iii. I am aware that there are a number of interpersonal issues that have arisen at the past between employees at the Terminal, including Ms Coombe, Ms Bowker and Mr Zwarts. I acknowledge that further issues could arise in the future. However, as detailed in this statement, a number of steps have been taken to address these issues with the employees at the Terminal, to resolve the issues which had been raised in the past and to confirm DP World’s expectations that its employees will engage in appropriate workplace behaviour. If there are further issues which arise in relation to workplace behaviour in the future, these will be dealt with in accordance with the Workplace Behaviour Policy;

iv. I consider that the interpersonal difficulties which employees at the Terminal have identified are in part the product of the ongoing divisions in the workforce (which I have referred to in paragraph 16 above);

v. A key difficulty is ongoing interpersonal issues between different employees. It is not my role or DP World’s role to make employees like each other or force employees to socialise on a personal level (for example, to choose to eat lunch together on a break). I think everyone can choose who they are friends with and who they choose to socialise with. However, DP World does expect that its employees will meet the requirements to work together in a respectful manner. If DP World becomes aware of an employee being ostracised, it will address the issue to investigate what has occurred and ensure that appropriate standards of professionalism are maintained;

vi. In my current role, I receive informal and formal complaints regarding employees’ behaviour. If there is a complaint about an interpersonal issue, I will consider what steps are appropriate. The range of outcomes may include mediation between the two employees, counselling one or both of them to implementing a formal investigation or disciplinary process. There is an ongoing process of educating the workforce at the Terminal to ensure that the employees understand and engage in acceptable workplace behaviour;

vii. Even though each of Ms Coombe, Ms Bowker and Mr Zwarts have been absent from work since September 2014, they have continued to raise concerns about conduct at work during this time. They have also been the subject of concerns and complaints raised by other employees about inappropriate conduct at work; and

viii. However, the underlying levels of mistrust in the Terminal can result in some employees having a heightened sensitivity to interpersonal issues. I am conscious that as a result of their previous concerns, each of Ms Coombe, Ms Bowker and Mr Zwarts may be sensitive to such conduct. For example, recently Ms Bowker attended the Terminal on 14 April 2015 to discuss her return to work. She arrived at our meeting visibly upset and explained that she had encountered an employee between the car park and the administration building on her way into the meeting. She alleged that this person had rolled his eyes. In the circumstances, Ms Bowker indicated she took this interaction to form part of the overall conduct which concerned her at the Terminal and that this caused her to be very upset. While I would not ordinarily regard an “eye roll” as amounting to an allegation which would warrant investigation, I subsequently spoke to the employee concerned and to Ms Bowker about the issue. This is an example of the potential difficulties that may face the workforce, including Ms Coombe, Ms Bowker and Mr Zwarts.

Mr Holland has reviewed Ms Coombe’s function for the purpose of her return to work, and a return to work plan has been provided to Ms Coombe. As at the date of this statement, Mr Holland is currently reviewing the function for Ms Bowker and Mr Zwarts. I expect to provide draft return to work plans to each of them shortly.’ 77

[55] Mr McCluskey supplemented this evidence as follows:

‘. . . At the time of my first statement, certain security upgrades had been approved but not implemented. Since 22 May 2015, the following security upgrades have been implemented at the West Swanson Terminal:

a) swipe card access has been installed for access to the womens’ locker room and programming is currently underway;

b) additional security cameras have been introduced to cover entry into the womens’ locker room and the overall common area;

c) additional security cameras have been introduced to cover the entrances into the amenities building including the stairway;

d) additional security cameras have been introduced to cover the administration walkway and stairs from ground floor to the first floor; and

e) additional lighting has been introduced around the amenities building.

. . . in the context of the return to work meetings I have had with Ms Coombe, Ms Bowker and Mr Zwarts, they have each raised concerns to me in connection with DP World’s finalisation of the complaint and allegations that they had raised. This was discussed in some of the return to work meetings and calls that I outlined in my first statement and are set out above. I understood that each of Ms Coombe, Ms Bowker and Mr Zwarts sought a more comprehensive response to what issues had been considered by DP World and what the result of DP World’s inquiries and investigations into these issues had been (in addition to the responses that had been provided to them previously).

As a result, I sought to prepare for each of Ms Coombe, Ms Bowker and Mr Zwarts a document that set out the concerns they had raised, including formal and informal complaints, and including concerns that dealt with conduct other than bullying and harassment. My purpose in this exercise was to address their concern that they wished for more comprehensive information about these issues. My objective was [to] get this information together so that they would each have a comprehensive response to identify the outcomes of each issue raised. [sic]

As I was aware that a number of the issues had been raised some time prior to when I commenced in my role, I reviewed DP World’s records, made inquiries of various employees of DP World and instructed Seyfarth Shaw Australia to assist with preparation of a document that would set out the allegations raised by Ms Coombe, Ms Bowker and Mr Zwarts concerning other employees of DP World and the status of each matter.

On 20 July 2015, a document has been provided to the solicitors for each of Ms Coombe, Ms Bowker and Mr Zwarts identifying the status and outcome of the various concerns and allegations raised by them involving DP World employees . . .

In relation to one of the concerns identified by Ms Bowker, she has recently provided some further evidence in connection [to] this matter. DP World has engaged an external investigator to investigate the matter. That process is ongoing as at the date of this statement. [sic]

. . .

I refer to paragraph 75 of my first witness statement, which set[s] out in paragraph[s] (a) to (h) various meetings with Ms Bowker, Ms Coombe and Mr Zwarts in connection with their return to work. In addition to those meetings, the following meetings have occurred since 22 May 2015: [sic]

a) 27 May 2015: I attended a meeting with Ms Cutajar, Mr Holland, Ms Coombe and her support person Rebecca Campbell;

b) 15 June 2015: I attended a meeting with Ms Bowker and Mr Holland;

c) 16 June 2015: I attended a meeting with Mr Zwarts and Mr Holland; and

d) 24 July 2015: I attended a meeting with Ms Bowker, Ms Campbell and Mr Holland.

As at the date of this statement, there are further meetings with Ms Bowker and Ms Coombe planned for next week.

. . . Return to work plans and risk assessment have been prepared by DP World and I have provided these to each of Ms Coombe, Ms Bowker and Mr Zwarts as follows:

a) Ms Coombe

i. On 22 May 2015, I sent Ms Coombe a return to work plan for her review and for discussion at the meeting on 27 May 2015 . . .

ii. At the meeting on 27 May 2015, Ms Coombe had the opportunity to provide comments to me on the return to work plan. She was also provided with a copy of a risk assessment prepared by DP World . . .

iii. Following the above meeting, on 11 June 2015 Ms Coombe emailed me providing comments on the risk assessment and attaching a table of risks . . .

iv. On 23 June 2015, I sent Ms Coombe an email regarding her return to work, attaching a revised return to work plan and risk assessment . . .

b) Ms Bowker

i. On 12 June 2015 I sent Ms Bowker an email attaching a return to work plan for discussion . . .

ii. At the meeting on 15 June 2015, Ms Bowker had the opportunity to provide comments to me on the return to work plan and risk assessment which was provided to her in that meeting;

iii. Ms Bowker sent me and Mr Holland an email on 17 June 2015 at 2:35pm with a suggestion in connection with the risk assessment. I responded to Ms Bowker’s email on 19 June at 4:19pm . . .

iv. Ms Bowker sent an email to me, Mr Lee and Mr Holland on 19 June 2015 at 3.19pm outlining various comments in connection with the risk assessment and her return to work . . . I confirmed receipt of this email in my email back to Ms Bowker at 4:19pm and confirmed that I would review this and respond early the next week . . .

v. On 25 June 2015 at 10.55am , I sent Ms Bowker an email responding to her email of 19 June 2015 at 3.19pm and attaching a revised return to work plan and risk assessment . . .

c) Mr Zwarts

i. On 1 April 2015, Mr Zwarts sent me an email setting out his concerns about returning to the workplace . . .

ii. On 12 June 2015 I sent Mr Zwarts an email attaching a return to work plan for discussion . . .

iii. At the meeting on 16 June 2015, Mr Zwarts had the opportunity to provide comments to me on the return to work plan and risk assessment which was provided to him in that meeting; and

iv. On 19 June 2015, I sent Mr Zwarts an email attaching a revised risk assessment document and meeting notes for the meeting that occurred on 16 June 2015 . . .

In addition to the specific meetings and correspondence noted above, I have had telephone calls and emails directly with the Applicants and their representatives, including Mr Lange of Piper Alderman and Ms Campbell of Campbell Employee Relations in connection with their leave arrangements and their return to work.’ 78 [References to annexures omitted]

[56] In addition, but unrelated to the Applicants’ circumstances, a WorkSafe inspector conducted a site visit at WS Terminal and a review of DP World’s systems to prevent and respond to workplace bullying. The inspector prepared an entry report dated 19 May 2015 in which he concludes that DP World:

• has comprehensive risk control processes in place to prevent and respond to workplace bullying;



• has comprehensive training in place to prevent and respond to workplace bullying; and



• is meeting its obligations under the Occupational Health and Safety Act 2004 to provide a safe working environment free from risks to health and safety in regards to workplace bullying. 79

[57] The essence of the Applicants’ criticism of DP World’s efforts to produce a risk assessment and a RTW plan applicable to each of them may be summarised as follows:

• A thorough risk assessment cannot be undertaken until an investigation or enquiry into each outstanding complaint or concern raised by the Applicants has been completed and the outcome communicated to the relevant Applicant;



• The risk assessments that have been completed are not specific to the circumstances faced by the Applicants and are generic in nature, thus they fail to identify and address the specific risks of further workplace bullying that confront the Applicants;



• There was inadequate consultation and certainly no agreement in the preparation of the risk assessments and RTW plans;



• The risks and the control measures identified in the risk assessments do not thoroughly and robustly address the Applicants’ specific concerns and the RTW plans developed lacked ‘hard measures’ to address the continuing risk that has been identified;



• The control measures identified in the risk assessments do not address, and are inadequate to, combat the continuing and prevailing culture of the Code; and



• Some controls identified in the risk assessments have already been proven to be ineffective;



• The RTW plans developed lacked ‘hard measures’ to address the continuing risk that has been identified. 80

[58] The specific nature of these criticisms was given amplification in the evidence of Ms Rebecca Campbell, a Workplace and Employee Relations Consultant who acted as a support person for Ms Coombe and Ms Bowker during the course of various meetings with DP World during which the risk assessments and the RTW plans were discussed. Ms Campbell’s evidence which is reproduced below is partly opinion, partly hearsay, and I observe that particular allegations made about responses given by DP World representatives during certain meeting are disputed. I do not need to resolve that dispute. The evidence is reproduced to give context to the Applicants’ concerns. Relevantly, Ms Campbell’s evidence was as follows:

‘I have attended meetings with DP World representatives concerning Annette Coombe and Sharon Bowker as follows:

(a) 27 May 2015 (attended by Coombe, McCluskey, Holland and Claire Cutajar);

(b) 24 July 2015 (attended by Bowker, McCluskey and Holland);

(c) 27 July 2015 (attended by Coombe, McCluskey and Holland); and

(d) 29 July 2015 (attended by Bowker, David Gunzburg and Seta Samimi).

In the course of those meetings, I have acted as a support person for Coombe and Bowker. I have also participated in exchanges with DP World representatives where invited to do so, and in response to any questions asked of me directly by DP World representatives.

In the course of those meetings, I had exchanges and observed responses from DP World representatives in relation to the following issues:

(a) Identification and resolution of unresolved risks to safety;

(b) Investigation and complaint handling process; and

(c) Demonstration of cultural change.

…

The meetings included a focus on the adequacy of the risk assessments prepared by DP World and on which DP World relied in advising Bowker and Coombe that (as was put in an email to Coombe from McCluskey on 23 June 2015… the position of DP World was that “there are no identified threats or risks that prevent your return to work or which have prevented you from returning [to work] earlier”.

In the meeting on 27 May 2015, Holland and McCluskey both said words to the effect that DP World would not know how safe it was for the applicants to return to work until they are actually back in the workplace and “sitting in the seat” or had “time in the chair”.

The meeting continued with words put by Holland and McCluskey to the effect:

(a) An example of DP World’s lack of capacity to predict or control the behaviour of employees toward Coombe was given as, if Coombe were to walk past the smoking shed, “you couldn’t guarantee that employees won’t say anything to Annette, especially in light of the current antibullying action”;

(b) DP World would “only get surety [of safety] by time in the chair” and “at the end of the day it’s about time in the chair”;

(c) DP World couldn’t “control or predict how people were going to behave in light of the action [the applicants were taking] in the Commission against the company and the MUA”; and

(d) Holland considered the risk assessments were “just pieces of paper” which Holland likened to “AVO’s and domestic violence - they are pieces of paper that don’t necessarily stop people from behaving badly”.

The logic of this concerned me on the basis that it implied no action could be taken by DP World to increase its capacity to identify and introduce measures to mitigate against particular risks that the applicants could be exposed to in the workplace associated with their having commenced these proceedings. It also concerned me because my understanding of the process of workplace risk assessment is that a risk should be identified by reasonably available means before it manifests itself, rather than by allowing a risk situation to develop and seeing whether the risk occurs.

I put to Holland and McCluskey during each meeting that DP World could and should take action by, for example, completing investigations into remaining ‘open’ issues and taking action to address risks identified in those processes before deciding that no risk was present. No substantive response was provided to this proposition other than that DP World did not consider it necessary to do so.

In the meeting on 24 July 2015 I gave as an example, the risk of death or injury which was represented by the incident in which while working on a ship, Knott had twice dropped a bar narrowly missing Bowker (in September 2014), and put to McCluskey that without having investigated that incident it could not be said that there are “no risks” in the workplace, where a serious safety issue was outstanding and if not dealt with could end up with Bowker injured or dead. McCluskey did not give a substantive response, other than to say he did not know what had happened as it had not been investigated yet.

In the course of the meetings, in connection with the identification of risk, I asked Holland and McCluskey what information had been available to DP World leading to a decision to allocate external security/protective services to each of the Applicants, and how the risk assessment had accommodated that information. No substantive response was provided.

…

I had a number of exchanges with McCluskey in those meetings in which I became concerned that McCluskey was unable to identify or discuss details as to the status and outcomes of investigations being conducted or which had been completed by DP World, and the process had not involved checking information with the complainants or keeping them regularly informed as to the progress or promptly conveying to them the outcomes of investigations.

Prior to the meeting on 27 July 2015, Coombe had been provided with a summary document . . . During the meeting with Coombe, Coombe asked McCluskey where the proposed Equipment Controller (EC) training would take place. McCluskey said at a workstation outside the supervisors’ office. Coombe identified that that would place her in directly in the vicinity of two supervisors who had threatened her as set out in a complaint by her (Kearney and Hodge), and that according to the summary document the complaint against them was still open after a very significant period of time.

McCluskey was unable to identify the outstanding issue or the nature of the threat, but stated that Coombe should not have a concern because supervisors are “held to account”. McCluskey said he would have to check what had occurred in relation to the threat, and gave no basis to identify that either of the supervisors making the threat had been or were being “held to account”. This led into a discussion about McCluskey’s knowledge of and familiarity with the summary document . . . as Coombe identified that it contained inaccuracies, and gave her no confidence in the quality of the document or any investigations. McCluskey said words to the effect that it had been compiled by DP World’s solicitors, not him, and he would schedule another meeting to go through the summary document.

In the course of the series of meetings, an issue was raised of whether DP World would consider issues raised informally as complaints requiring some action in the event the information revealed a potential breach of workplace policies. This occurred when Bowker on 24 July 2015 gave an example of her dissatisfaction with DP World’s response to her complaint that Peter Brooker had reported back to employees at the West Swanson Terminal (WST) about protective services presence at her house, but the investigation had not dealt with that issue. McCluskey said in response that it hadn’t been investigated because it was only an informal complaint which had not come through the “proper complaint process”, but that he had spoken to Brooker who had denied the conduct. I said words to the effect that if McCluskey had information of concern about workplace conduct, regardless of how the information had come to him it would surely be pursued. McCluskey then said words to the effect that he would and does treat information about workplace conduct as a complaint regardless of whether made formally or informally.

…

During the series of meetings, Holland and McCluskey on several occasions sought to assure Bowker and Coombe that they could rely on the culture of the workplace having started to change and issues were taken seriously and dealt with appropriately and quickly. I became concerned that despite this there were several examples arising during the series of meetings of conduct which did not appear consistent with the Applicants being able to trust that conduct in the workplace would be reasonably predictable. Examples of my concern were raised in the discussions . . .’ 81

[59] The Applicants also gave evidence about the development of the risk assessments and the RTW plans. Ms Coombe gave evidence, inter alia, that:

• She explained to DP World that she wanted all of her complaints and concerns appropriately investigated and managed so that she could feel confident about safety returning to work and that the investigations needed to be included in her return to work arrangements as they were all ‘risks’ to which she may be exposed when she returned to work; 82



• She was led to believe that she should be able to participate in an external risk assessment, as the risk assessment was being conducted specifically for her, but that this had not to date occurred and she did not feel that the risk assessment process has been conducted transparently or sufficiently enough to deal with her specific scenario; 83



• The failure by DP World to resolve all of her outstanding complaints prevented her from returning to work and perpetuated the risk and the uncertainty of a return to work; 84



• She is not persuaded that a change in DP World policies deals with her issues and concerns about returning to work in an unsafe environment; 85



• She expects that on a return to work she would not be actively ostracised, however she does not believe that the workforce or management have the necessary self-discipline to control any form of ostracism that might be exhibited towards her on her return. 86

[60] Ms Bowker’s evidence was to similar effect. Ms Bowker said, inter alia, that:

• She disagreed with DP World’s position that the on-going and outstanding investigations into the complaints should not prevent her from returning to work; 87



• She maintained that the resolution of her complaints and the capacity to have confidence that complaints will effectively and quickly be dealt with in a way that acknowledges the impact of the culture of silence is part of a safe workplace; 88



• She does not have confidence in DP World’s procedure for investigating complaints, in part because, DP World has taken a very long time to investigate her concerns without providing her with any real explanation for the delay; 89



• She acknowledged the steps taken by DP World to conduct a review of security including the installation of surveillance cameras but maintained that there had always been surveillance cameras all over the WS Terminal, but there never appeared to be any available footage to verify the claims that the various Applicants had made; 90



• She maintained that DP World misunderstood the nature of the ostracism experienced by her, when, as Mr McCluskey characterised in his witness statement, that ‘interpersonal difficulties . . . are in part the product of the on-going divisions in the workforce’ and that his suggestion, for example, that Ms Bowker should sit at a table where the other staff are not sitting so that she would not be ostracised, is no solution at all. 91

[61] Mr Zwarts gave evidence inter alia, that:

• The constant failure by DP World to verify issues raised means that there has not been an appreciable change in attitude amongst the workforce; 92



• DP World has not taken any steps of which he is aware that would result in complaints and concerns raised being dealt with any more effectively or expeditiously under the current policy than was the case under the pre-existing policy; 93



• Based on his observations, he does not believe that the initiatives discussed by Mr McCluskey in his evidence have achieved anything to make real inroads in dealing with the ‘culture of silence’ and its impact on whether the outcome of complaints made to DP World reflect the actual behaviour about which a complaint is made. 94

[62] I accept that the Applicants genuinely hold the beliefs and views expressed by them in their evidence and that the concerns that they have expressed about returning to the workplace are genuinely held concerns. Their concerns are wholly understandable given their respective experiences of conduct directed towards them in the workplace since mid-2013.

[63] I also accept on the evidence that DP World has, in preparing its risk assessments relating to each Applicant, tried to identify the kinds of bullying conduct about which there is a real possibility could re-occur when Applicants return to work. This is evident in the various annexures attached to the further witness statement of Mr McCluskey and in particular the risk assessments found amongst those annexures. 95 It is apparent that DP World has assessed the gravity of each risk it has identified and the likelihood of the each identified risk occurring in the workplace; DP World has identified how each risk it has identified is likely to arise and how it will be eliminated or controlled.96

[64] The risk assessments identify that which is regarded as an inherent risk, that is the risk identified without control measures being adopted, and a residual risk, that is the assessment of the level and gravity of the remaining risk after control measures identified have been implemented. As Mr Holland said in his evidence, this is a standard risk management approach or assessment tool used to measure the inherent level of identified risks and the residual risk following the implementation of control measures aimed at eliminating or reducing the identified risk as far as reasonably practicable. 97

[65] In addition, DP World has prepared RTW plans for each Applicant, which include some specific measures to ensure relevant personnel of DP World are aware of the identified risks, will monitor the risks and act if any such risks eventuate. 98 I accept DP World’s submission that the approach it has adopted is a conventional and appropriate system to manage workplace risks arising from such conduct.99 I also accept on Mr McCluskey’s evidence that DP World has taken a number of steps directed to minimising the prevalence of bullying and other inappropriate workplace conduct, and improving security at WS Terminal as well as the capacity to verify the occurrence of unacceptable conduct.

[66] I turn then to the specific criticisms of the risk assessments and the RTW plans raised by the Applicants and to which earlier reference has been made. First, there is the issue of the adequacy of consultation and the absence of agreement of the Applicants in the preparation and finalisation of the risk assessments and RTW plans. As I have already observed, the criticism that there is an absence of agreement misunderstands the nature of these instruments. A RTW plan is an instrument usually prepared by an employer pursuant to workers compensation legislation in discharge of obligations to return injured workers to the workplace, where consultation but not agreement is required. Similarly, risk assessments are undertaken to assist, relevantly an employer to discharge the employer’s obligations under occupational health and safety legislation, in relation to which obligations to consult (but not to agree) arise. DP World cannot be fairly criticised for an absence of agreement on the content of these instruments.

[67] As to consultation, in my view, the evidence supports a conclusion that DP World has undertaken a significant level of consultation with the Applicants about the risks it has identified and about those identified by the Applicants. The evidence discloses that DP World has accepted risks identified by the Applicants and that it has included such risks in its risk assessment. I am satisfied on the evidence that DP World has engaged in sometimes detailed exchanges with the Applicants about their respective concerns and that these issues have been discussed at various meetings held with the Applicants by DP World.

[68] I accept Mr Holland’s evidence that the risk assessments for each Applicant had been prepared taking the view that DP World was better to err on the side of caution and produce the risk assessment based on investigations into outstanding complaints being affirmed and that control measures were identified to mitigate against the recurrences of conduct the subject of the complaint. 100 Indeed, Ms Campbell acknowledged that during a meeting on 27 May 2015 attended by Ms Campbell and Ms Coombe, DP World representatives said that the risk assessment had been prepared from the perspective that all risks coming from the complaints should be addressed, regardless of whether they were substantiated or not.101

[69] As to the substance of the consultations with each Applicant, Ms Bowker gave evidence that she was provided with risk assessments by both Mr Holland and Mr McCluskey. 102 She attended meetings with DP World representatives about the risk assessment103 and accepted that she had an opportunity to provide input into the risk assessment document and raise to any risks that she thought were relevant to her during discussions at the meetings and various email exchanges.104

[70] The evidence discloses that:

• At a meeting on 15 June 2015, Ms Bowker and DP World representatives discussed the risk assessment; 105



• Ms Bowker sent emails to Mr McCluskey and Mr Holland on 17 June 2015 106 and 19 June 2015107 which contained comments on the risk assessments. In the 19 June 2015 email, Ms Bowker set out a number of matters that she sought be addressed by DP World;



• DP World, through Mr McCluskey, responded on 25 June 2015, via an email to Ms Bowker attaching a revised RTW plan and risk assessment. 108 A review of the risk assessment attached to the email discloses that it seeks to address the matter identified by Ms Bowker. By way of example the issues of ostracism,109 graffiti,110 and the Code111 are each dealt with in the risk assessment as are many other matters raised by Ms Bowker;112



• A further discussion about the risk assessment occurred at a meeting held on 25 July 2015at which Ms Bowker raised concerns about matters she considered had not been included and Mr Holland explained where these were incorporated into the risk assessment. 113 Ms Bowker said that, although she was not sure if all the issues were covered, the majority of them had been;114



• Ms Bowker also gave evidence that everything had been discussed and covered. 115

[71] As to consultation with Ms Coombe, she gave evidence there had been no consultation with her from the first risk assessment to the second risk assessment. 116 Ms Coombe accepted that she had the opportunity to raise the risks she was concerned about and talk to DP World about why she had those concerns.117 The evidence discloses that Ms Coombe participated in discussions with DP World about the risk assessment and that she provided written comments which were considered by DP World representatives when developing the second risk assessment and RTW plan, for example:

• Ms Coombe sent a table to Mr McCluskey on 9 April 2015 which set out comments concerning risks that she perceived in connection with her return to work; 118



• Ms Coombe was sent the draft RTW plan by DP World on 22 May 2015 for discussion 119 and a meeting was scheduled to discuss the draft plan or perhaps only the risk assessment;120



• Ms Coombe attended a meeting with DP World representatives on 27 May 2015, 121 at which a risk assessment was provided and discussed.122 Ms Coombe identified that there were matters that should be included in the risk assessment, such as the Code, her open complaints, sabotage and ostracisation.123



• DP World and Ms Coombe also discussed alternative work locations and jobs; 124



• Ms Coombe sent a further email to DP World on 11 June 2015 in which she set out her comments on the perceived risks. 125 The matters identified included concerns about adverse conduct towards her while in the Equipment Control role and in the administrative building and concerns about being singled out for special treatment.126



• By email sent on 23 June 2015, DP World provided Ms Coombe with a further RTW plan and risk assessment, 127 with the former appearing to have been modified to include both internal roles and external alternative roles. The risk assessment also appeared to identify risks and proposed control measures associated with various matters raised such as verbal abuse, intimidation, ostracisation, violence, physical assault, the Code and fabricated or vexatious reports;128



• A further meeting was held on 27 July 2015 129 at which the risk assessment was discussed;

[72] Though there was some dispute about the extent to which various assessments in Ms Coombe’s risk assessment had changed, and reasons for the change, from one draft to the next, I am satisfied with the explanation given by Mr Holland as to the reasons for changing the assessments, which appear to be based on his improved knowledge of the site after taking up his current role. 130

[73] As to the position of Mr Zwarts it seems there had been discussions and exchanges of proposals between DP World and Mr Zwarts about the risk assessments and matters he wished to have considered by DP World. For example:

• During a meeting between DP World representatives and Mr Zwarts on 14 April 2015, at which Mr Zwarts discussed his concerns about sabotage and security; 131



• A draft RTW plan was sent to Mr Zwarts on or about 12 June 2015; 132



• On 16 June 2015 Mr Zwarts attended a meeting with DP World representatives, 133 at which Mr Zwarts raised issues with the RTW plan;134



• A revised risk assessment together with notes of the 16 June 2015 meeting were sent to Mr Zwarts by email on 19 June 2015. 135



• Mr McCluskey told Mr Zwarts at the conclusion of the 19 June 2015 email that if he had any questions he should call Mr McCluskey, and Mr Zwarts’ evidence was that there have been numerous emails and numerous correspondence with Mr McCluskey. 136

[74] It seems to me that the Applicants’ concerns about the adequacy of the consultation is coloured by a view that the risk assessments and RTW plans should be finalised by agreement. Whilst doubtless that would be desirable, it is not in my view essential. It seems clear enough that consultation with the Applicants about these instruments did occur and the views expressed by the Applicants have been taken into account, though not every view expressed has been accepted by DP World.

[75] Turning next to the Applicants’ criticism to the effect that a thorough risk assessment cannot be undertaken until an investigation or enquiry into each outstanding complaint or concern raised by the Applicants has been completed, and the outcome communicated to the relevant Applicant. I do not accept this in the context of the circumstances faced by the Applicants. It seems to me clear enough that the risk assessments prepared by DP World address both at a general level and at a level of specificity, bullying conduct of the kind experienced by each of the Applicants. Moreover, as I have earlier indicated, Mr Holland gave evidence, which I accept, that the risk assessments for each Applicant had been prepared taking the view that DP World was better to err on the side of caution and produce the risk assessments based on investigations into outstanding complaints being affirmed and that control measures were identified to mitigate against the recurrences of conduct the subject of the complaint. 137 This point had been communicated at least to Ms Coombe.138

[76] As to the question whether risk assessments that have been completed are specific to the circumstances faced by the Applicants, it seems to me on reviewing each risk assessment 139 and taking into account that which fell from the consultation discussed earlier, that the assessments have been prepared in response to hazards and risks identified by DP World and each of the Applicants. The risk assessments are responsive to the concerns raised by each Applicant. This criticism is not made out on the evidence.

[77] Next is the criticism that the risks and the control measures identified in the risk assessments do not thoroughly and robustly address the Applicants’ specific concerns and that the RTW plans developed lacked ‘hard measures’ to address the continuing risk that has been identified. The nature of the criticism and the difficulty in articulating solutions to the criticism are best encapsulated in the following extracts from the transcript of proceedings:

‘THE DEPUTY PRESIDENT:  Is the point that you’re trying to elicit that the risk assessments that have been undertaken have been inadequate to mitigate the risk?

MR RINALDI:  Essentially yes, your Honour.

THE DEPUTY PRESIDENT:  Well, in relation to the past risk assessments, that could have been done in her statement.

MR RINALDI:  Yes. And they’re really superseded by the more recent ones.

THE DEPUTY PRESIDENT:  Well, why don’t we focus on the more recent ones then?

MR RINALDI:  Yes.

And in terms of those risk assessments provided to you by Mr Holland, Ms Bowker, what’s your view of the adequacy of those risk assessments?---The – I’ve had two meetings in relation to the risk assessment. The first meeting was describing to me how they’re created, how it works. It was a generic risk assessment. It just covered a lot of – a lot of basic issues around bullying. We had a fairly lengthy meeting about what I would like included in it, if I was willing to accept a generic risk assessment. I was understanding that there’d be an assessment in relation to my own personal needs returning back to the workplace. We had that meeting. I- - -

Who had that meeting?---Pardon?

Who had that meeting?---Who – sorry?

Who was there?---Adam Holland and Glenn McCluskey and myself. And I followed it up with an email but I think there were about six points that I would like added to the risk assessment. We didn’t actually get into – we just basically talked about identifying the risks - we didn’t even talk about the measures in place. And then they were going to have another meeting with me at a later date to then discuss the measures and – which they put in place to combat those risks. And that meeting was on the 24th – maybe – it might have been – there was two meetings anyway. So- - -

24 July?---Yes, I think so. That was the second meeting. And I noticed there were a few things that I had asked to be put in that weren’t there, so we had issues, for example, there was just a generic – ostracisation and I’m saying what about ongoing ostracisation in large groups of people, like mentality, graffiti, the risks of making a complaint, risks for verifying complaints, risk if you’re not a union member, risk if you don’t strike – all these things that I clearly identified that were going on in our workplace. There were actual risks for employees that weren’t in that document. So even though it was happening to me and they were only my set of circumstances, I know that it should have really covered a generic one anyway. So we were – there was a bit of toing and froing about what should be in, what shouldn’t, what’s generic, should it be for me? And we never really got to the bottom of it – we still haven’t as we speak today. Also, I think the last meeting I had on 24 July, I had been sent the updated document and I was just looking at the measures that were in place for that risk assessment. So I do recall in the meeting with Adam Holland, I said to him, well you know, “You’re not clearly identifying the risk for me. What do you think the main risk for me to be returning to workplace?” And he said, “Ostracisation”. And I said, “Okay, well where’s that in my document?” for me, my personal set of circumstances were ostracisation. Because it’s not going to be the same for everybody else – our issues are fairly extreme and there are specific issues around us because of the situation we’re they’re in. And he said, “Well, the measures are here in the document”. I looked at the document and said, “I’ve tried those measures, I’ve tested those measures out, they’re not working for me so we obviously need to put some hard measures in in relation to my return”. That was our last meeting we had which was on 24 July and we haven’t actually come up with any solution since then. So the risk assessment discussions have been to and fro and there’s a level of, I suppose, disagreement around those.

. . .

You said there’s a lack of hard measures. Can you give some – and again, it’s probably partly what you just have been saying, but is there anything in particular that you feel was necessary as hard measures that hasn’t been proposed?---Gee, you know, I’ve spent a lot of time thinking about that, how to go back into the workplace feeling fulfilled and safe. It’s hard when you know that the management team are never getting to the bottom of anything, so the code of silence is the biggest danger to me. It’s very hard to be expected to go back to work knowing that the only way you’d be able to verify your complaint is if you’re assaulted in the perfect set of circumstances and that would be under a security camera with an executive watching over. Other than that, I’ll fall short of having anything verified. So I have really tried hard about what I could do. Working with particular people would help. You know, Stephen Zwarts is, you know, has been a fantastic person to work with although it puts pressure on him having to watch over me. And to be honest, we had those measures in place in the past and I was hip and shouldered while he was looking down at a sheet, a worksheet – he’s a foreman – and missed the whole incident. So – but it does minimise it, but it won’t you know, get rid of it, which you know, I’ve thought about who I could work with. To be honest, I’ve made complaints and I have stipulated my witnesses and some of those people were friends of mine. DP World have interviewed them and they’ve denied everything. So in other words, the people I think I can rely on, I can’t. So – and I now know that. So it’s really about we have to identify the risk and put measures in place so I can just go to work, set about doing my tasks, consider the inherent risk that comes with the job, but I don’t think I should have to navigate the additional risks of being assaulted, ostracised and bullied. I don’t think that’s appropriate in light of my circumstances. So very difficult, I think it would have a lot to do with who you work with and somehow in getting to the truth about what’s actually going on. I – I don’t know. I don’t – I really – I really don’t know.’ 140

[78] As DP World has pointed out, 141 the risk assessments and RTW plans show that DP World has implemented a number of control measures aimed at reducing or mitigating the risks that have been identified and to provide support, monitoring and escalation options to deal with issues if they arise. It is evident that the measures taken or proposed to be taken by DP World extend beyond the promulgation and distribution of new policies and include:

• Implementation of new CCTV;



• Improved security access arrangements;



• Briefings on expected standards of behaviour to all supervisors and managers dealing with the Applicants;



• New contact officers;



• New management personnel with specific responsibilities for dealing with concerns;



• The provision of a support person to work alongside;



• Rostering the Applicants to a particular panel or in a particular work area;



• Daily report back meetings for initial period;



• Weekly management review meetings; and



• Ongoing review and consultation about RTW arrangements to make adjustments if required. 142

[79] I am satisfied that the control measures proposed by DP World are directed specifically at the identified risks, that is, those identified by DP World and by the Applicants themselves. I agree with DP World’s submission 143 that the Applicants’ criticism of inadequacy is supported only by their respective opinion evidence. No expert evidence was called by the Applicants. I accept that the Applicants’ opinions are genuinely held and are the product of a desire, based on their respective past experiences, of a guarantee that future identified risks will not manifest. But DP World has, and it seems to me is willing to continue, to take steps to combat the identified risks and workplace bullying more generally.

[80] As to the RTW plans, it seems to me that these documents contain, so called ‘hard measures’. Moreover, each RTW plan is an evolving instrument and there continues to be a willingness on the part of DP World to continue its development and refinement in consultation with the Applicants. So much seems clear from the follow extract from the transcript:

‘But you appreciate as well that the return to work document is an evolving document so it sets out work arrangements that you then meet and confer about. You’re aware of that?---Yes, I am aware of it but I think what we all need to be aware of is that I have had a lot of discussions about a lot of the issues that are going on in the workplace and I would have thought at least if you were going to provide me with a return to work document, some things, you know, wholly on your radar would have been written in the return to work document. For example if you are unable to do anything substantial with Mick Bracken because of his behaviour, for whatever reason, you’ve done your investigation, you’ve had to apply a written warning or whatever it is, and I have to go to work and work alongside him, surely there’d have to be some measures, hard measures, to ensure my safety with that man? And - - -

So you mean by hard measures, measures that separate you, the two of you?---Whatever we can come up with. I mean, you know, whatever we can come up with to make sure that I’m not going to be assaulted again.

I just want to understand what you mean. You’ve used that expression a number of times. I want to know what you mean?---Hard measures meaning clean. Not a big broad, “You know, we’ve got a policy”. Hard measures meaning firm, direct. Like the hard measure to me is that I’m working with Stephen Zwarts. That’s a hard measure. It’s clearly identified. Yes.

Okay, so let’s actually look at the document. So if you can turn over from the email to the return to work plan?---Where is it? Okay.

So you note that it says that, “Prepared in conjunction with the risk assessment plan”. So these two documents work together. Do you see that?---Mm-hm.

And it talks about what’s going to happen in your first week of return?---Yes.

And then possibly part of the second week - I’m down to the bottom paragraph. Because you’ll see there are various refresher training that’s recommended?---Yes. Yes.

And given the time you’ve been away from work?---Yes.

So:

The above training is then completed during the first week and possibly part of the second week.

And:

Timing is then determined by the successful completion of training modules.

And:

Following the completion of the training it’s anticipated that you will resume a normal shift roster performing the duties as detailed below.

?---Yes.

And then the duties that are to be performed are on the second page?---Yes.

And that’s your normal duties essentially, isn’t it?---Yes.

And that’s consistent with your preference not to have preferential treatment, isn’t it?---Yes.

And then in terms of the workplace supports, aids or modifications to be provided, there’s then a list which I won’t go through. But you see how they’re set out there?---Yes.

And in addition to that there are various control measures in the risk assessment that are being implemented to support your return to work in various parts of the workplace, described as the process, activity or work area?---Look, like I said before this document looks fantastic, right? Look, the return to work plan is not finished. This document isn’t even finished. The last meeting I had with the defendant, Adam Holland said, “We’ve still got to work on this document”. So we’ve still got work to do on the document in my return to work plan.

And there’s no resistance to continuing to consider these issues, is there? It’s something in fact that the company wants to do with you?---Of course. But we’ve got to have this done before I go back to work. I mean, we can’t have me going back to work without it sorted and - but the other thing too is that some of the measures that you’ve got in place, I’ve tried them out. So if for example the workplace policy and the training for the employees and - is all that the measure is, and I’ve made a complaint and you’re not able to get to the bottom of it and the person has lied and there’s been no ramification, then that part of it has failed me. So then we’ve got to work out, “Okay, you’re not able to discipline that person because you can’t get to it, but you know what, we think Sharon’s been exposed to that behaviour. So we’re not able to get to the truth. We have the code of silence. So let’s just accept without disciplining that person, let’s accept that’s happening to her. So what hard measures other than what we’ve got in place can we put in place for her to make sure that she can just go back to work?” That’s what I’m asking.’ 144

[81] Turning then to the question whether the control measures identified in the risk assessments address, or are adequate to combat, the continuing and prevailing culture of the Code . The Applicants’ submitted that DP World’s policies are ineffective in the face of the Code and that this is particularly evident in the outcomes to the Applicants’ complaints. They submitted that since January 2015, DP World has investigated some of the Applicants’ complaints in accordance with its new policy and following investigation, DP World reached an outcome that it could not substantiate some of the Applicants’ complaints, and sent letters informing the Applicants of such. They submitted that what is clear from those letters is not that the behaviour did not happen, but rather that there is a reluctance of witnesses to co-operate and verify complaints, as they claim they do not recall events. 145 This reluctance is said to be due to the fear of ramifications for breaching the Code.146

[82] I have already concluded that although I have little doubt that DP World has and is taking steps to address the Code and culture at WS Terminal, I do not accept Mr McCluskey’s evidence that a Code does not exist at WS Terminal, and to which some employees still adhere. I also accept on the evidence and based on the Applicants’ recent experience with the progress of some of their complaints, that there remains a reluctance on the part of some employees at the WS Terminal to co-operate and verify complaints. This is consistent with the experience of Mr McCluskey. 147 I also accept that more may be done to address the Code. I will return to this later in these reasons.

[83] The criticism that some control measures identified in the risk assessments have already been proven to be ineffective are not, with respect, properly made out since the Applicants have been absent from the workplace for significant periods since September 2014. To the extent that the control measures relate to complaints made during those absences the criticism seems on the evidence to relate to DP World’s policy and the Code, 148 the matter is dealt with immediately above.

The position of Mr Zwarts

[84] The evidence given by Mr Zwarts during the hearing before me raises the question whether I can be satisfied, in relation to him, that there is a risk that he will be bullied at work by the individual or group of individuals. Mr Zwarts’ evidence was as follows:

‘How do you feel about the prospect of going back to work now?---It’s not an option.

Are there things that could be done, steps that could be taken, to make it become an option?---Short of - - -

You’ve obviously thought about it, I assume?---Yes.

Do you have some thoughts about the feasibility of going back or whether certain steps need to be taken?---Yes, look, I think for us, we’re stuffed. You know, our careers - my career is stuffed. I’ve got nowhere to go. Nowhere. You know, this has caused family problems. I swore to - you know, I said to my wife, “Don’t make me choose. I’m going to do the right thing.” I’ve jeopardised my marriage, put her through hell and we have gone through nearly two years of - and for what? For sticking up for doing the right thing. You know, she was asked to be a witness, for God’s sake, for something that went on, you know, at work. It’s just ridiculous, you know. Look, I did a bullying and - you know, all these people are saying, “Oh, it’s confidential,” and whatever. This isn’t the past. This is what we’re living, you know. It’s all right for them to say, “Oh, look, forget it. Forget it,” you know, “This is,” you know, “pre this and pre that.” This is the baggage we’re carrying, you know, and that’s - we can’t forget it. You know, we can’t forget it. Ostracisation. You know, I was one of the - I was a very lucky person at this workplace. I had it all. I had, you know, the respect of the company, the workers, the union people. I had everything and I just couldn’t allow - you know, I’ve fixed up other stuff. I’ve tried to, you know, fix up things with people. I thought if I backed up Sharon, people would take me for what I was, but it’s just - the culture there is just too powerful. I’ve got plenty of supporters. They’re just too scared to step up. That’s the bottom line. They’re intimidated and, you know, quite frankly, I don’t blame them. I don’t blame them. Had we have known this was going on, we would have put our head in the sand. I did a bullying and harassment course with Kate Conlon and Sheryl Pastro, the HR people there. I went into this meeting and I think it was a four-hour thing. Anyway, the first two hours, not bad. It was good. The second two hours, it was basically what I felt was all about me. I had to focus on a picture, because I was getting upset. So I’m focusing on this picture and I could tell Sheryl and that knew that I was getting upset. Anyway, at the end of the meeting, I walk out. Kate Conlon rings me up. She said, “Oh, it was pretty confronting, wasn’t it?” I said, “Yes, it was.” I said, “Very good presentation, but what a load of crap.” Anyway, I just walked off. You know, all the rest of them were mingling in the room and I had to get out. It was crap to me. You know, it was a good presentation and what they’re telling us, you know, fantastic, but at the end of the day you do what they say and here we are. You know, it’s just wrong. It’s just wrong and, unfortunately, I think people - you know, you lot are used to it. I’m not. I’m not. I’m just a worker. I just go to work, do my work and, you know, try and do the right thing. I don’t know why I’m like - I’ve got a - you know, my wife comes home and she tells me about stuff that has gone on at her work, and how, you know, blokes treat her. I’ve got a step-daughter. She worked at Safeway. She’d tell me, you know, about some of the pigs at her work. It disgusts me. You know, look - you know, it’s just wrong.’ 149

[85] On one view of this evidence, Mr Zwarts is unwilling to return to the workplace and there is no arrangement that could be put in place that would enable him to return. It seems clear from the most recent medical report that Mr Zwarts is fit to return to his duties and that there is no medical or psychological restriction preventing him returning to full duties. 150 That medical report also observes that the ‘only barrier to return to work is the perceived level of lack of safety at work’.151 If Mr Zwarts is able but unwilling to return to work, then it seems to me clear enough that I cannot conclude that there is a risk that he will be bullied at work.

[86] However, this evidence cannot be understood in the abstract. The weight given to it needs to be assessed in context. Mr Zwarts has not resigned and his employment has not been terminated by DP World. He is fit to return to work, but is reluctant to do so because of his past experience, his perception of the level of safety and his general view as to his future as a stevedore. From his evidence extracted above, one senses an air of hopelessness borne out of a prolonged absence from work, his past experience of bullying conduct directed at him and at the other Applicants, and genuine fear of returning to work. In my view, this sense of hopelessness colours Mr Zwarts’ view that returning to the workplace is not an option. It would therefore be wrong to take his view as expressed above at face value without taking into account the circumstances in which it was uttered. Though I cannot force Mr Zwarts to return to work, I am not prepared to conclude that he will not.

The MUA Respondents

[87] As I have earlier observed, the MUA Respondents whilst formally denying the allegations that have been made accepted, on the basis of the evidence before the Commission, that there is a sufficient basis for the Commission to be satisfied that the Applicants have been bullied at work and to make the finding that is sought in relation to the Applicants. 152

[88] The MUA Respondents submited 153 that the requirement in s.789FF(1)(b)(ii) must be read in conjunction with the definition of bullying in s.789FD. Therefore, the Commission must be satisfied that there is a risk that there will be future repeated unreasonable behaviour towards the Applicants at work which would create a risk to health and safety. They submitted that this risk must be more than speculative or remote to warrant the Commission’s intervention and at a minimum there must be a real risk. There is nothing controversial about this submission.

[89] The MUA Respondents submitted that there are four reasons the Commission should not be satisfied that there is the requisite risk that the Applicants will continue to be bullied at work within the meaning of s.789FF(1)(b)(ii). These are dealt with below.

[90] The MUA Respondents submitted first, that the most recent conduct relied on by the Applicants occurred in September 2014, 154 and the oldest conduct dates back to August 2013. The MUA Respondents say that the passage of time since particular conduct has occurred should be taken into account when determining whether that conduct can be relied on to establish future risk. It would seem to be an uncontroversial general proposition that as times passes after an incident less weight might be placed on that conduct as indicating a risk of future similar conduct. However, the particular circumstances in which time passes must also be taken into account.

[91] Whilst I accept that the passage of time is a relevant consideration, the MUA Respondents’ submission ignores the fact that the Applicants have not been at work since September 2014. 155 In these circumstances, it might equally be said that all that has happened is that conduct of the kind experienced by the Applicants at work has dissipated vis-�-vis the Applicants because the Applicants have not been at work, and nothing more. In the circumstances of this case I do not accept that the passage of time should be treated in the manner suggested by the MUA Respondents.

[92] The MUA Respondents say secondly, that the state of affairs at the workplace has changed significantly since the alleged conduct. The changes include:

• endorsing the ‘Zero Tolerance for Bullying Harassment and Violence in the Maritime Industry’ booklet which communicates to members that the MUA is opposed to bullying in the Maritime industry; 156



• publishing an article in the Union Journal titled ‘MUA says “no” to workplace harassment & bullying’ which communicates to members that the MUA is opposed to bullying in the Maritime industry; 157



• preparing a joint workplace statement with DP World which communicates to members that the MUA and DP World are opposed to bullying at DP World workplaces; 158



• engaging an external consultant to develop policies for delegates and officials in relation to handling bullying and harassment issues; 159



• providing training to officials, delegates and health and safety representatives in relation to bullying and harassment; 160



• the incoming Victorian Branch Secretary has reaffirmed the Branch’s opposition to bullying and harassment in the Maritime industry by sending a communication to all members employed at the workplace; 161



• appointing National Workplace Stop Bullying Officers to assist members facing bullying. 162

[93] These are all laudable initiatives or developments. They will doubtless have some positive impact at WS Terminal and elsewhere in the Maritime industry. But these do not, with respect, show that things have changed on the ground. Moreover, it is evident that some of these initiatives are in their infancy 163 or underdeveloped.164

[94] The MUA Respondents also pointed to the following matters as evidencing a change to the state of affairs at the workplace:

• Mr Mark Johnston is no longer employed by DP World;



• The Federal Court challenge to Mr Johnston’s dismissal has been dismissed; 165



• Mr Mark Kirkman is no longer employed by DP World; 166



• Mr Bobby Guy is no longer employed by DP World;



• A number of employees have been counselled or have received disciplinary warnings from DP World;



• Mr David Schleibs is no longer an elected MUA official that has responsibilities at the workplace although he is seeking or at least making enquires about re-employment with DP World; 167



• the leadership of the Victorian Branch of the MUA has recently changed; 168



• there has been a turnover of the DP World management team at the workplace;



• DP World has taken various relevant steps including:

○ amending its Anti-Bullying policies; 169

○ implementing a register of complaints; 170

• improving CCTV at the workplace; 171



• conducting an extensive and thorough return to work process; 172 and



• installation of swipe access to the women’s change rooms at the workplace and other security and surveillance measures. 173

[95] Many of these matters are canvassed earlier in these reasons, and I accept that they contributed to a changed state of affairs for the better.

[96] Thirdly, the MUA Respondents say that the Applicants failed to submit who will create the risk of future bullying and instead refer to five broad and imprecise issues. For reasons that will become apparent shortly I do not accept this submission. It is accepted that some of the individuals or members of the group responsible for the Bullying Behaviour directed at the Applicants were unknown then, and remain unknown. However, the group of individuals is able to be identified with some precision, as I have endeavoured to describe earlier in these reasons. The Code and culture earlier described continues to exist and does so because some of the group of individuals continue to adhere to the Code and Culture.

[97] As to the MUA Respondents’ submission that it is not apparent how it could be said that the five issues, identified by the Applicants – ‘continuing code of silence’, ‘inadequate workplace investigations’, ‘incomplete workplace investigations’, ‘inadequate return to work arrangements’ and ‘delay in dealing with issues’ - could be capable of indicating a risk of future bullying by any particular individuals. The answer becomes self-evident once it is accepted that I am able to identify, by some description, the individual or group of individuals, whether known or unknown, who engaged or participated in the Bullying Behaviour by reference to the system of authority and control at WS Terminal and that there are likely to be unknown individuals still employed by DP World who subscribe to the system. Whilst I accept that the five issues identified by the Applicants do not speak directly to the risk of bullying, they do speak of an assessment of the gravity of the risk of the Applicants being bullied by members of this group when the Applicants return to work. It is not necessary, in my view, to identify the form that workplace bullying might take in order to be satisfied that there is a risk of it. It is sufficient, in my view, to be satisfied as I am that the members of a group who adhere to the Code and system earlier described engaged in Bullying Behaviour, that the Code and system contributed to the Bullying Behaviour, that the Code and system continues to exist at WS Terminal, and in the result there is a risk of repeated unreasonable behaviour directed to the Applicants, continuing by members of the group as identified.

[98] Fourthly, the MUA, Mr Dean Mitchell and Mr Michael Bracken have provided undertakings that will decrease any future risk. I will deal with the undertakings later in these reasons but, for present purposes, I accept that the undertakings proffered are relevant in considering the terms of any orders that I might make.

Risk of bullying at work

[99] DP World sets out in a comprehensive fashion, in its final submissions, an analysis of the assessed level of residual risk (or re-occurrence), after control measures have been factored in, that is attributable to each of the kinds of conduct experienced by the Applicants when they were bullied at work. 174 I accept the analysis to the extent that it underpins and explains DP World’s rationale for the risk assessments undertaken and the RTW plans it has prepared. Beyond that, it is unnecessary for me to make any findings about that analysis..

[100] Based on the analysis and the risk assessments undertaken, DP World submitted that the nature and level of the risks as assessed by DP World do not disclose any residual risk which would prevent the Applicants from returning to work. DP World submittted that there are clear processes to support the Applicants and it rejects the Applicants’ assertion that the RTW process was actioned prematurely. 175

[101] DP World says that the identified risks do not constitute an imminent risk to the health and safety of the Applicants. It submitted that in the current circumstances, it is not contested that there are risks that would arise from the Applicants return to work but there is no suggestion on the evidence that there is an imminent risk to health and safety which would prevent them from doing so. 176

[102] The anti-bullying provisions of the Act are not directly concerned with the question whether a worker who has been bullied should return to work. The anti-bullying provisions are relevantly concerned with identifying whether there is a risk that a worker who has been bullied at work by an individual or group of individuals, will continue to be bullied at work by the individual or group of individuals. 177

[103] I accept that it has not been established that upon a return to work any of the Applicants face an imminent risk to their health and safety. In addition, the most recent medical evidence provided on behalf of each Applicant is, that from a medical and psychological point of view, each Applicant is fit to return to work. 178 Consequently, there does not appear to be any barrier, save for their genuinely held concern about returning to work, to the Applicants’ return to work at WS Terminal.

[104] But the question for me is not whether there is an imminent risk to any of the Applicants’ health and safety upon a return to work, rather it is a question whether I am satisfied that when the Applicants return to work that there is a risk that they or any of them will be bullied at work by the individual or group of individuals who, or which had previously, engaged in bullying conduct directed towards the Applicants. The risk must be a real risk, but it need not be imminent. For the reasons that follow, I am satisfied in each case that upon their return to work at WS Terminal there is a risk that Ms Coombe, Ms Bowker and Mr Zwarts will be bullied at work by the group of individuals earlier described.

[105] As I have earlier indicated, not all individuals, or members of the group, who had engaged in the bullying were able to be identified, and some remain unknown. Some individuals involved in the bullying conduct no longer work for DP World. 179 Some have been counselled about expected behaviour, and disciplinary action has been taken against individuals where allegations have been substantiated. The Applicants have not been at work since September 2014 and the apparent catalyst for the conduct directed towards the Applicants, Mr Johnston, was removed from the workplace some time ago and failed in his bid for reinstatement in the Federal Court.

[106] For reasons already given, relating to the Code, I do not accept that the steps taken by DP World have had the effect of eradicating the system of authority and control at WS Terminal which stands apart from DP World, as earlier described. 180 Moreover, whilst some individuals who subscribe to the system and who engaged in bullying conduct were identified and dealt with by DP World, other individuals within the group were unknown and remain so. Whilst the rollout of DP World’s policy and connected training, together with the regular reminders and tool box meetings reinforcing the expected standards of behaviour will no doubt have touched some of the unknown individuals, that some employees of DP World continue to remain reluctant to be involved in complaints, do not want to be named, or are reluctant to state what occurred or to nominate any witnesses, speaks to the continuing influence of the Code and system at WS Terminal and the existence of a group that continues to subscribe to that system. The other security related measures taken by DP World will likely minimise the opportunities for these unknown members of the group to engage in bullying conduct.

[107] As victims of Bullying Behaviour that has been enabled by the Code and system and as individuals who have railed against it, it would be a curious conclusion to suggest that there is no real risk that the Applicants, upon their return to work at WS Terminal, would not again be subjected to bullying by some of the group of individuals who continue to subscribe to the Code and system. That there is a risk that the Applicants will, on their return to work, be bullied at work by the group of individuals who continue to subscribe to this Code and system, is not merely a conceptual possibility. It is a real risk that is founded on the evidence of the Applicants’ past experiences and recognition that the culture endemic in the system, though changing, will take more time and effort to shift, change and ultimately eradicate.

Should orders be made?

[108] Pursuant to s.789FF(1), the Commission has a broad discretion to make any order it considers appropriate to prevent the worker from being bullied at work by the individual or group of individuals. In considering whether an order is appropriate to prevent future bullying it seems to me appropriate that I should take into account my findings about the nature and extent of the risk that each Applicant will continue to be bullied at work. An order must have, as its aim or purpose, the prevention of bullying by the individual or group of individuals vis-�-vis the worker.

[109] Having regard to the context and statutory purpose, the word ‘prevent’, being undefined in the Act, is to be given its ordinary meaning. That is, to stop or prevent a thing from occurring or to hinder its occurrence or to stop, prevent or hinder a person doing a thing. 181

[110] Section 789FF(2) provides that the Commission must, in considering the terms of an order, take into account a number of matters.

[111] DP World has submitted that I should take the following matters into account:

• the outcomes of the various investigations that have been undertaken by DP World internally and by external investigators;



• DP World’s Anti-Bullying Policies; and



• the outcomes arising from complaints made under the Anti-Bullying

Policies. 182

[112] I accept that these matters are relevant.

[113] The Applicants have at [105] of their Amended Points of Claim set out a range of orders they say should be made. Some further orders sought are contained in their submissions.

[114] Attached to this decision is a table prepared by the Applicants at my request (but which includes the position of DP World extracted from a document it provided to the Applicants) 183 which conveniently sets out the competing positions of the Applicants and DP World in relation to the orders that should be made. I have set out an additional column which contains my decision on each remedy sought.

[115] I do not intend to traverse each order sought by the Applicants beyond that which I have set out in the table, principally because I accept that DP World has taken steps to implement or proposes to implement measures that are aimed at addressing the relief sought by the Applicants. For example and as set out in DP World’s submissions: 184

• The Applicants have been provided with particulars of each concern, the findings of DP World about those matters and how it has been addressed; 185



• Risk assessments have been provided to the Applicants and consultation with them has occurred; 186



• The Anti-Bullying Policies have been amended, and substantially addressed each issue; 187



• DP World has implemented a register of complaints; 188



• As it has previously, DP World has specific regard to interim actions; 189



• An evidence based approach is taken to complaints on the basis of the balance of probabilities; 190



• DP World requires managers and supervisors to conduct monitoring and prevent victimisation; 191



• DP World provides reasons in writing in relation to the outcome of a complaint; 192



• Training programs have been implemented, which include examples of appropriate and inappropriate conduct; 193



• DP World has reviewed CCTV coverage of the site and improved it where practicable; 194



• Managers are regularly present at toolbox meetings; 195



• Independent mediation is considered as an option to resolve complaints where appropriate; 196and



• DP World has made clear its expectations that employees will co-operate with investigations and be honest. 197

[116] However, I do not accept that further orders of the Commission are not necessary or appropriate in relation to those matters or other matters. In the circumstances, I consider that orders to the effect set out below directed to DP World are appropriate to prevent the Applicants from being bullied at work by the individual or group of indivisuals. As I have noted earlier there appears to be no medical or psychological restriction preventing the Applicants return to work. I have also concluded that it has not been established that there is an imminent risk to the health or safety of the Applicants in the event of a return to work. The orders that I propose to make are therefore directed to preventing the Applicants being bullied at work, having regard to the risk that I have identified. The orders that I propose will require variable periods of time to implement. Each of the orders can be implemented while the Applicants are at work. It is not necessary that DP World has completed any of the tasks necessary to give effect to my orders before the Applicants have returned to work. That said, DP World should give effect to the orders as quickly as is reasonably practicable.

Proposed orders

1. DP World is to arrange for a Work Safe Victoria inspector to attend a meeting separately convened with each Applicant and DP World representatives in order to review and finalise:

a. The risk assessment that has been prepared for each Applicant; and

b. The RTW plan for each Applicant.

2. DP World will implement any further control measures or any other steps identified and included in the risk assessments or RTW plans following the meeting(s) in [1] above.

3. Once the Applicants return to work, DP World is to actively monitor the effectiveness of the control measures and other steps identified in the risk assessment and RTW plans applicable to each Applicant and take reasonably practicable steps, after consulting the relevant Applicant, to alter or strengthen any control measure as may be necessary having regard to the circumstances of each Applicant while at work.

4. DP World is to inquire into, arrange for and commission, the training of any of its management personnel who are, or are likely to be required by DP World, to investigate complaints about workplace bullying at WS Terminal. The training is to include a focus on forensic investigative techniques including obtaining and managing of information, interviewing complainants, interviewing witnesses, manner of questioning and active listening, observing and assessing.

5. In conjunction with the training referred to above, DP World is to commission the preparation and deploy for use by managers, of a workplace investigation instruction manual.

6. DP World is to review and amend its DP World Employee Handbook 2013 and its Workplace Behaviour Policy to ensure that these instruments make clear that:

a. Workplace bullying is an occupational health and safety issue;

b. Investigating workplace bullying complaints is one of the actions taken by DP World to comply with its obligations to provide and maintain a safe working environment under applicable OHS legislation;

c. Employees have a duty under OHS legislation to co-operate with DP World in any action it takes to comply with its OHS obligations, including action to investigate allegations of workplace bullying;

d. Employees also have a contractual duty to co-operate with DP World by providing honest answers to questions when asked and to follow lawful and reasonable directions given by DP World;

e. DP World expects that employees will comply with [c] and [d] above when asked to participate in any investigation or inquiry into a workplace bullying complaint or to provide information in relation to such an investigation or inquiry; and

f. A failure by an employee to comply with [c] or [d] above may lead to disciplinary action and in cases of serious failures, to dismissal.

7. DP World will develop and deploy training, training materials and other information reasonably necessary to support and reinforce the review and amendment of the DP World Employee Handbook 2013 and the Workplace Behaviour Policy.

8. DP World is to review, in consultation with the Applicants, the recommendations contained in the Security Risk Assessment prepared by Matryx Consulting Pty Ltd in April 2015, and give consideration to whether any further measures recommended by Matryx Consulting Pty Ltd, but not implemented by DP World, should be implemented.

[117] Turning then to the undertakings proffered by the MUA Respondents. During the proceedings the following undertaking was proffered by the MUA:

‘The National Executive of the MUA undertakes to use its reasonable endeavors (sic) to have the National Council of the MUA pass a resolution that:

a. the MUA reiterates its absolute commitment and firm and longstanding policy for the prevention and eradication of workplace bullying and harassment in any form;

b. The MUA encourages any officers or members who are witnesses to conduct relied on in complaints of alleged bullying and harassment (other than individuals the subject of such allegations) to participate in interviews and cooperate with the process of investigation;

c. [W]here necessary the MUA will appoint an external independent investigator to investigate any future allegations of bullying and harassment made by a member of the MUA to the MUA against MUA officials or MUA employees; and

d. [S]hould an investigation be conducted under (c) above the investigator will report his/her findings and recommendations to the National Executive and the complainant on a confidential basis.’ 198

[118] The undertaking is a welcome development, however I will only accept the undertaking in lieu of making orders on the following conditions:

1. Confirmation that paragraph [b] of the proposed resolutions applies to investigations conducted by an employer or person appointed by the employer;

2. That the resolution foreshadowed is passed by the National Council of the MUA before 28 February 2016;

3. The MUA further undertakes to prepare a newsletter and distribute that newsletter amongst MUA members at WS Terminal, within seven days of the passing of the resolution by the National Council of the MUA setting out in full the resolution with particular emphasis on paragraphs [a] and [b] thereof;

4. MUA officials are instructed that when visiting WS Terminal, for a period of 12 months after the National Council of the MUA passes the resolution, they are to distribute copies of the newsletter to any member with whom the official has contact and to reinforce the importance of its content to that or those members.

[119] The MUA is to advise my chambers within seven days of the date of this decision whether these conditions are accepted. In the event that the conditions are accepted, I propose deferring any further consideration of any orders that might be directed to the MUA until I receive confirmation that the resolution foreshadowed has been passed by the National Council of the MUA.

[120] Mr Mitchell proffered the following undertaking:

‘Dean Mitchell undertakes that he will accept and agree to any alteration made to his roster by DP World for the purpose of ensuring that he is not rostered to work a shift with Annette Coombe, Sharon Bowker of (sic) Stephen Zwarts on condition that there is no reduction of his ordinary hours of work or any overtime as a result of such an alteration.’ 199

[121] I note the undertaking and I now seek confirmation from DP World whether any such alteration on the conditions specified is possible. If it is, then I recommend that DP World implement the alteration.

[122] Mr Bracken proffered the following undertaking:

‘Michael Bracken undertakes that he will accept and agree to any alteration made to his roster by DP World for the purpose of ensuring that he is not rostered to work a shift with Annette Coombe, Sharon Bowker of (sic) Stephen Zwarts on condition that there is no reduction of his ordinary hours of work or any overtime as a result of such an alteration.’ 200

[123] As with Mr Mitchell, I note Mr Bracken’s undertaking and I seek confirmation from DP World whether any such alteration on the conditions specified is possible. If it is, then I recommend that DP World implement the alteration.

[124] During the proceedings I enquired of Counsel for the MUA Respondents whether the MUA would send an official to WS Terminal to meet with MUA members in order to facilitate a smooth transition of the Applicants RTW. 201 In response the MUA has provided the following undertaking:

‘The MUA undertakes that Joe Italia, Victorian Branch Secretary will attend the West Swanson site and address MUA members employed by DP World at the site to reaffirm the MUA’s commitment to the prevention of bullying and harassment and its opposition to such conduct; and to encourage its members to treat the applicants respectfully should they return to work.’ 202

[125] I welcome and accept this undertaking.

[126] I also indicated to Counsel for the MUA Respondents that the undertakings proffered by Mr Mitchell and Mr Bracken might carry more weight if they said something in relation to their intended future conduct and demeanour towards the Applicants. 203 In response, Mr Mitchell and Mr Bracken each gives the following undertaking (without any admission as to liability):

‘He undertakes that he will not approach Annette Coombe, Sharon Bowker or Stephen Zwarts for 12 months from the date of this undertaking unless he is required to do so to perform the duties and functions of his role at DP World.’ 204

[127] I am content with that undertaking, but trust that when contact is necessary in the performance of their respective duties and functions, the contact is respectful.

Conclusion

[128] For the reasons given I am satisfied that:

a) Ms Bowker was, during the period between mid-2013 and July 2015, bullied at work in that she was, whilst at work in a constitutionally-covered business conducted by DP World, subjected repeatedly to unreasonable behaviour engaged in by an individual or a group of individuals and that behaviour created a risk to her health and safety;

b) Ms Coombe was, during the period between mid-2013 and July 2015, bullied at work in that she was, whilst at work in a constitutionally-covered business conducted by DP World, subjected repeatedly to unreasonable behaviour engaged in by an individual or a group of individuals and that behaviour created a risk to her health and safety; and

c) Mr Zwarts was, during the period between August 2013 and July 2015, bullied at work in that he was, whilst at work in a constitutionally-covered business conducted by DP World, subjected repeatedly to unreasonable behaviour engaged in by an individual or a group of individuals and that behaviour created a risk to his health and safety.

[129] For the reasons given, I am satisfied that when the Applicants return to work that there is a risk that each of them will be bullied at work by some members of the group of individuals as earlier identified, which had previously engaged in Bullying Behaviour directed towards the Applicants. The risk is a real risk but I am not satisfied that there is an imminent risk to the Applicants’ health or safety if they return to work.

[130] I consider that orders to the effect set out earlier and directed to DP World are appropriate to prevent the Applicants from being bullied at work by the members of the group of individuals. Each of the orders can be implemented while the Applicants are at work. It is not essential that DP World completes any of the tasks necessary to give effect to my orders before the Applicants have returned to work.

[131] I note that DP World indicated that if I were inclined to make orders it may wish to be heard. DP World should notify my chambers within seven days of the date of this decision whether, in light of the orders I propose to make, it wishes to be heard. DP World is also to advise my chambers within seven days whether it is possible to implement the undertaking proposed by Mr Bracken and Mr Mitchell.

[132] The MUA is to advise my chambers within seven days of the date of this decision whether the conditions I have proposed relating to its undertakings are accepted. In the event that the conditions are accepted, I propose deferring any further consideration of any orders that might be directed to the MUA until I receive confirmation that the resolution foreshadowed has been passed by the National Council of the MUA.

[133] Leave is granted to any party to seek a report back or progress hearing within 12 months of this decision on giving the other parties written notice.

DEPUTY PRESIDENT

Appearances:

M. Rinaldi for the Applicants.

H. Skene for DP World Melbourne Limited.

Y Bakri for The Maritime Union of Australia and other MUA Respondents.

Hearing details:

2015.

Melbourne:

August 3, 4, 5, 6 and 24.

Final written submissions:

Applicants, 14 August 2015.

MUA, 21 August 2015.

DP World, 21 August 2015.

COMPARATIVE POSITION IN RELATION TO THE RELIEF SOUGHT BY THE APPLICANT

 1   [2014] FCA 1321.

 2   Ibid at [5][14].

 3   Noting the formal denial of the allegations made by the MUA Respondents to which reference is later made.

 4   Exhibit 11 at [19].

 5   Ibid at [17].

 6   Ibid.

 7   Ibid at [18].

 8   Ibid at [21].

 9   Ibid at [26]–[27] and Attachment SHZ–3.

 10   See Exhibits 1, 2, 5 and 6.

 11   See Exhibits 11 and 12.

 12   Exhibit 25 at [72]; Exhibit 26 at [16].

 13   Exhibit 25 at [72].

 14   Exhibit 26 at [18].

 15   Exhibits 39 and 41.

 16   Exhibit 40.

 17   See Outline of Submissions of DP World Melbourne Limited (24 July 2015) at [2].

 18   See First Respondent’s Points of Defence (12 February 2015) at [104].

 19   Outline of Submissions of DP World Melbourne Limited (24 July 2015) at [4].

 20   Exhibit 25 at [19] and Exhibit 26 at [20].

 21   MUA Respondents’ Outline of Final Submissions (21 August 2015) at [24] and Transcript PN 5095.

 22   Applicant’s’ Outline of Final Submissions (14 August 2015) at [36].

 23   Transcript PN 4874–PN 4876; See also Maritime Union of Australia v DP World Melbourne Ltd [2014] FCA 1321 at [156].

 24   See Applicants’ Outline of Final Submissions (14 August 2015) at [16][32].

 25   [2014] FCA 1321.

 26   [2014] FCA 1321 at [156].

 27   Exhibit 36 at [5].

 28   Exhibit 36 at [7][8].

 29   Exhibit 25 at [5].

 30   Ibid at [15][16].

 31   Transcript PN 3545–PN 3558 and PN 3584–PN 3613.

 32   Exhibit 25 at [15(b)].

 33   Transcript PN 3604–PN 3611.

 34   Exhibit 36 at [8].

 35   Exhibit 25 at Annexure GM–2 at [9].

 36   See Applicants’ Outline of Final Submissions (14 August 2015) at [29][30].

 37   Transcript PN 1358; PN 1442; PN 2351; PN 2357 and PN 3896PN 3903.

 38   Transcript PN 442PN 443; PN 655PN 657, PN 942, PN 952; PN 1788 and PN 1798.

 39   Transcript PN 504; PN 676; and PN 3958PN 39560, PN 3969PN 3974, PN 4008PN 4011 and PN 4025PN 4029.

 40   See Applicants’ Outline of Final Submissions (14 August 2015) at [31].

 41   Transcript PN 556; PN 687; PN 1188; PN 1315; PN 1360; PN 3647PN 3650 and PN 3701PN 3705.

 42   Transcript PN 1360.

 43   See Applicants’ Outline of Final Submissions (14 August 2015) at [32].

 44   Exhibit 25 at [20(b)].

 45   Ibid at [20(e)].

 46   Ibid at [22]–[23].

 47   Ibid at [25][26].

 48   Ibid at [29][54].

 49   Ibid at [77].

 50   Exhibit 26 at [10].

 51   Transcript PN 3899PN 3920.

 52   Transcript PN 3947PN 4062.

 53   Transcript PN 3706PN 3739.

 54   See Applicants’ Outline of Final Submissions (14 August 2015) at [32] and Annexure thereto.

 55   Transcript PN 3637; Exhibit 26 Annexures GM–56, GM–57, GM–58.

 56   Exhibit 32.

 57   Exhibit 25 at [56]–[70].

 58   See Applicants’ Outline of Final Submissions (14 August 2015) at [24][28].

 59   Transcript PN 764; PN 766PN 768; PN 868; PN 1374 and PN 4372.

 60   Transcript PN 351, PN 354PN 355; PN 1360, PN 1362; PN 1426; PN 1458; PN 1602PN 1603; PN 2096; PN 2619; PN 2633; PN 2887PN 2890 and PN 3865PN 3867.

 61   Transcript PN 624; PN 1184; PN 1399; PN 2368; PN 2369 and PN 2621.

 62   Transcript PN 477; PN 828 and PN 1181.

 63   Transcript PN 573; PN 764; PN 766; PN 1281; PN 2038PN 2040; PN 2624, PN 2728; PN 3849PN 3850 and PN 3922PN 3924.

 64   See for example Part 4 of the Workplace Injury Rehabilitation and Compensation Act 2013, particularly Division 2 and s.105.

 65   See for example s.35 of the Occupational Health and Safety Act 2004 (Vic), particularly ss.35(1)(a) and (b).

 66   Transcript PN 582; PN 585; PN 757; PN 845 and PN 870.

 67   Transcript PN 1322; and PN 2638PN 2639.

 68   Transcript PN 713, PN 849PN 851; PN 1284; PN 1758; PN 1760; PN 4116 and PN 4118.

 69   Exhibit 30 and Transcript PN 3373; PN 3416PN 3428 and PN 3783.

 70   Transcript PN 592PN 595; PN 605; PN 3058PN 3069, PN 3155PN 3156 and PN 3189PN 3192.

 71   Transcript PN 4110PN 4116 and PN 4304PN 4305.

 72   Exhibit 37 at [1].

 73   Ibid at [4(c)].

 74   Ibid at [5]–[6].

 75   Exhibit 37 at [11][21].

 76   Ibid at [19].

 77   Exhibit 25 at [74][78].

 78   Exhibit 26 at [5] and [7][15].

 79   Exhibit 26 at [6] and Annexure GM55 at [5], [7] and [8].

 80   See Applicants’ Outline of Final Submissions (14 August 2015) at [24][26].

 81   Exhibit 17 at [4]–[18].

 82   Exhibit 6 at [96].

 83   Ibid at [97].

 84   Ibid at [100].

 85   Ibid at [99].

 86   Ibid at [101].

 87   Exhibit 2 at [78].

 88   Ibid.

 89   Ibid at [79].

 90   Ibid at [80].

 91   Ibid at [81].

 92   Exhibit 12 at [33].

 93   Ibid at [32].

 94   Ibid at [38].

 95   Exhibit 26, Annexures GM–63, GM–67 and GM–70.

 96   Ibid.

 97   Exhibit 37 at [13]–[15].

 98   Exhibit 26, Annexures GM–63, GM–67 and GM–69.

 99   Outline of Closing Submissions of DP World (21 August 2015) at [9].

 100   Transcript PN 4657–PN 4658.

 101   Transcript PN 2801.

 102   Transcript PN 333–PN 334.

 103   Transcript PN 351–PN 355.

 104   Transcript PN 783–PN 784.

 105   For example Transcript PN 764.

 106   Exhibit 26, Annexure GM–65.

 107   Transcript PN 354; PN 371 and Exhibit 26, Annexure GM–66.

 108   Exhibit 26, Annexure GM–67.

 109   Ibid at Items 1–10, 13–14 and 16.

 110   Ibid at Items1– 5 which deal with the risk of vandalism and property damage.

 111   Ibid at Item 15.

 112   The issue of the update of the women’s change room to include male change room – Item 5; inclusion of additional words to describe behaviour such as physical violence — Items 1–5, 8 and 13, false allegations — Item 15, on-going ostracisation — Items 1–10, 13–14 and 16 and property damage — Items 1–5; the ship was identified as a very dangerous place — Items 8–9 and 14.

 113  Transcript PN 775.

 114   Transcript PN 835–PN 837.

 115   Transcript PN 616–PN 619.

 116   Transcript PN 1273.

 117   Transcript PN 1478–PN 1479.

 118   Transcript PN 1494–PN 1532; Exhibit 10.

 119   Exhibit 26, Annexure GM–60.

 120   Transcript PN 1487–PN 1491.

 121   Transcript PN 1156; Exhibit 5, Attachment AFC–57.

 122   Transcript PN 1159–PN 1162.

 123   Transcript PN 1170 and PN 1185.

 124   Transcript PN 1209, PN1597 and PN 1600.

 125   Transcript PN 1189, Exhibit 5, Attachment AFC–58.

 126   Transcript PN 1643–PN 1646.

 127   Transcript PN 1482, Exhibit 26, Annexure GM–63.

 128   Exhibit 26, Annexure GM–63.

 129   Transcript PN 1209.

 130   Transcript PN 4434–PN 4470.

 131   Transcript PN 2060–PN 2071.

 132   Transcript PN 2077–PN 2082.

 133   Transcript PN 1970–PN 1971.

 134   Transcript PN 2083.

 135   Transcript PN 1967–PN 1970; Exhibit 26, Annexure GM–70.

 136   Transcript PN 2004.

 137   Transcript PN 4657–PN 4658.

 138   Transcript PN 2801–PN 2802.

 139   Exhibit 26, Annexures GM–63, GM–67 and GM–70.

 140   Transcript PN 345–PN 355 and PN 591.

 141   Outline of Closing Submissions of DP World (21 August 2015) at [10]–[12].

 142   Ibid at [11]. See also Exhibit 25 at [29]–[70]; Exhibit 26 at [7]–[19] and Exhibit 36 at [18]–[20].

 143   Outline of Closing Submissions of DP World (21 August 2015) at [12].

 144   Transcript PN 849–PN 869.

 145   Exhibit 2 at [41]–[42], Attachment SLB–47; Exhibit 12 at [12], Attachment SHZ–35.

 146   Transcript PN 840 and PN 1358. See also PN 3582 re Mr McCluskey’s understanding of the code of silence.

 147   Exhibit 25 at [15(b)].

 148   Transcript PN 828.

 149   Transcript PN 2101–PN 2104.

 150   Exhibit 41.

 151   Ibid.

 152   The MUA Respondents’ written Outline of Final Submissions (21 August 2015) on this point were confined by Ms Coombe and Ms Bowker, but they accepted that in the evident that the jurisdiction argument raised in relation to Mr Zwarts was not accepted, the position the MUA Respondents had adopted in respect of Ms Coombe and Ms Bowker would also apply to Mr Zwarts; See Transcript PN 5091–PN 5093.

 153   See generally MUA Respondents Outline of Final Submissions (21 August 2015) at [25]–[34].

 154   Amended Points of Claim at [95B].

 155   Exhibit 25 at [72]; Exhibit 26 at [16].

 156   Exhibit 19 at [35]; Attachment IB–10.

 157   Exhibit 19 at [38]; Attachment IB–12.

 158   Exhibit 19 at [39]; Attachment IB–13.

 159   Exhibit 19 at [44]; Attachment IB–16.

 160   Exhibit 19 at [45]–[46]; Attachment IB–16 and IB–17.

 161   Exhibit 20 at [4]–[5]; Attachment IB–18.

 162   Exhibit 20 at [7]; Attachment IB–19.

 163   See for example Transcript PN 3053–PN 3070.

 164   See for example Transcript PN 3093–PN 3104.

 165   See [2014] FCA 1321.

 166   Noting that Mr Kirkman has an extant unfair dismissal remedy application made pursuant to s.394 of the Act.

 167   Exhibit 38.

 168   Exhibit 20 at [9]–[13].

 169   Exhibit 25 at [20].

 170   Exhibit 25 at [25].

 171   Ibid at [77].

 172   Exhibit 26 at [12]–[19].

 173   Exhibit 25 at [77].

 174   Outline of Closing Submissions of DP World (21 August 2015) at [14]–[18].

 175   Ibid at [19].

 176   Ibid at [20]–[21].

 177   Section 789FF(1)(b) of the Fair Work Act 2009.

 178   Exhibits 39, 40 and 41.

 179   Exhibit 25 at [19] and Exhibit 26 at [20].

 180   Transcript PN 4874–PN 4876. See also Maritime Union of Australia v DP World Melbourne Ltd [2014] FCA 1321 at [156].

 181   For a full definition of ‘prevent’ see Oxford English and Macquarie Concise Dictionary.

 182   Outline of Submissions of DP World (24 July 2015) at [32].

 183   Emails and attached tables from Solicitors for the Applicants and DP World respectively, sent to my Chambers and each dated 1 September 2015.

 184   Outline of Submissions of DP World (24 July 2015) at [33].

 185   Exhibit 25 at [77]; Exhibit 26 at [7]–[11].

 186   Exhibit 26 at [12]–[19].

 187   Exhibit 25 at [86]–[128]; Exhibit 36 at [12].

 188   Exhibit 25 at [25] and [102].

 189   Ibid at [25] and [103].

 190   Ibid at [25], [92]–[99] and Annexure GM–13.

 191   Ibid at [107]–[111] and Annexure GM–13, Exhibit 36 at [41]–[42].

 192   Exhibit 25 at [25] and [112]–[114] and Annexures GM–21, GM–22, GM–26, GM–27, GM–32, GM–33, GM–36, GM–40, GM–42, GM–45, GM–47 and GM–49.

 193   Exhibit 25 at [59], Exhibit 36 at [35], [37]–[38], [40], [42] and [46]–[49].

 194   Exhibit 25 at [77], Exhibit 26 at [5], Exhibit 36 at [52].

 195  Exhibit 25 at [122]–[123], Exhibits 36 at [51].

 196   Exhibit 25 at [125]–[126].

 197   Ibid at [127]–[128].

 198   MUA Respondents’ Outline of Final Submissions (21 August 2015) at [4].

 199   Ibid, at [5].

 200   Ibid, at [6].

 201   Transcript PN 5198.

 202   Email from MUA’s representative containing undertaking sent to my Chambers on 26 August 2015.

 203   Transcript PN 5392.

 204   Email from MUA’s representative containing undertaking sent to my Chambers on 26 August 2015.

 205  

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