The Construction, Forestry, Mining and Energy Union took BHP to the FWC on behalf of the water tanker operator, Julio Reyes, who maintained that he only followed standard work procedures and did not deserve disciplinary action.

While the tankers are used to spray coal-dust suppressing water over roads at the Central Queensland open cut mine, too much water at one spot caused a water tanker vehicle to slip off a road and topple on to its side on the evening of August 19, 2013.

“The accident led to the driver of the affected water tanker suffering injuries which, fortunately, were not fatal,” the document for the FWC case said.

“The water tanker was damaged beyond repair and was replaced at a cost to BHP Coal of $1.2 million”

Subsequent investigations brought attention to the water spraying activity of fellow tanker operator Reyes.

“On my evaluation of the evidence, there is substantial convergence upon a finding that more probably than not, the major causal factor of the accident was that there was an excess of water on the mine road on which the accident occurred,” commissioner John Lewin said.

“The driver of the subsequently toppled water tanker lost control of it. There is no contest in the evidence that Mr Reyes was the operator of the water tanker which applied water to the section of the road where the accident occurred in the period before the accident.”

While the commissioner determined that Reyes unintentionally erred in applying water to the road he also found that the verbal counselling the mine’s production pre-strip superintendant gave Reyes had a “relatively benign” nature and consequence for the water tanker operator.

The commissioner even considered it would have been inappropriate “to not verbally counsel” Reyes and he ruled that it was a reasonable management action carried out in a reasonable manner.

“The decision was not harsh, unjust or unreasonable in all the circumstances.”