Western Australian Industrial Relations Commission

Full Bench cancels prohibition notice

The Full Bench has unanimously upheld an appeal against a decision of the Occupational Health and Safety Tribunal and found that a prohibition notice relating to asbestos containing materials did not comply with the Mines Safety and Inspection Act 1994 (MSI Act).

The appellant argued in ground 1 that the Tribunal erred in affirming the prohibition notice and that the prohibition notice was invalid as it failed to comply with the MSI Act. In order to comply with s 31AD(2)(a) of the MSI Act, a prohibition notice must require the removal of a hazard or likely hazard. Smith AP and Scott CC found that the prohibition notice did not put in place a regime to remove the hazard or likely hazard. Instead, they found that the direction to prohibit persons from being in a place where they might be exposed to a hazard or likely hazard could be said to be a regime to avoid exposure to a hazard. They also found that a requirement to remove persons from an area can only be authorised for the time it takes to remove a hazard or a likely hazard. That is, the removal of persons from an area must be for a limited time and not ongoing. For those reasons, they were satisfied that ground 1 was made out.

The appellant argued in ground 2, and the Full Bench agreed, that the prohibition notice must unambiguously identify and make clear what is to be done to remove the hazard or likely hazard and what requirements are to be complied with until the inspector is satisfied that the hazard or likely hazard has been removed. Smith AP and Scott CC found that the use of the words 'might' and 'has been' in the prohibition notice were ambiguous. They found that this was not sufficiently clear to a person in receipt of the prohibition notice. They are entitled to know, with a high degree of specificity, what they are prohibited from doing. The manner in which the prohibition notice has been written leaves the appellant to work out what it means and how it might be managed. This is problematic as the imposition of a prohibition notice places the appellant in jeopardy of prosecution and penalty if it breaches the prohibition notice.

The appellant argued that the words 'damaged and/or distributed and/or deteriorated in any matter' in the prohibition notice were also unclear. The Full Bench disagreed and found that evidence before the Tribunal established that the appellant has a comprehensive knowledge of not only what types of asbestos are contained in their refinery but also the location of the asbestos and has a clear system of work in place for identifying and determining whether asbestos containing material has degraded or deteriorated in any manner.

The appellant contended in grounds 3 and 5 that the use of the word 'might' implies that the prohibition notice is not grounded in opinion or conclusion that the asbestos containing materials are either dangerous or likely to be become dangerous, as to constitute a hazard. In the decision at first instance, Kenner SC found that the word 'might' meant something more than a mere possibility of an occurrence. Smith AP and Scott CC found that the learned Senior Commissioner erred and that the word 'might' does not mean the same as 'likely'. They went on to find that reliance on the word 'might' in the prohibition notice gave rise to a prohibition against the bare possibility that an exposure to airborne respirable asbestos 'might' occur and an ensuing bare possibility the exposure 'might' give rise to injury or harm. The use of 'might' is simply not sufficient to enliven the power to issue a prohibition notice pursuant to the MSI Act. Consequently, ground 3 and 5 were made out.

The Full Bench then considered to ground 7. The appellant argued that the Tribunal denied the appellant procedural fairness. The Full Bench did not accept this assertion as, in the matter of first instance, the appellant was provided with the opportunity to make submissions on any proposed amendments or modifications to the prohibition notice.

Grounds 4 and 6 of the appeal were not made out.

The Full Bench varied the decision of the Tribunal by revoking the decision of the State Mining Engineer and order the cancellation of the prohibition notice

The decision can be read here.

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