APPLICATION FOR A NEW DEADLINE FOR AN INSPECTOR TO MAKE A DECISION RESOLVING A WORK HEALTH AND SAFETY ISSUE

THE WORK HEALTH AND SAFETY TRIBUNAL

PARTIES WORKSAFE COMMISSIONER

APPLICANT

-v-

Western Diagnostics Pathology, Transport Workers’ Union Western Australia Branch

RESPONDENTS

CORAM Commissioner T Emmanuel

DATE WEDNESday, 3 August 2022

FILE NO/S WHST 4 OF 2022

CITATION NO. 2022 WAIRC 00328

Result Order issued

Representation

Applicant Mr D Blades (as agent)

Respondents Ms A Burt (as agent) & Mr L Slaney (as agent)

Order

WHEREAS on Wednesday 27 July 2022, the Transport Workers’ Union Western Australia Branch (Union) asked the WorkSafe Commissioner (Regulator) to appoint an inspector under s 82(1) of the Work Health and Safety Act 2020 (WA) (WHS Act) to resolve an issue at Western Diagnostics Pathology;

AND WHEREAS under s 82(3) of the WHS Act, an inspector must make a decision resolving the issue (Decision) no later than 2 days after the day on which the request that an inspector be appointed is made;

AND WHEREAS on Friday 29 July 2022,  the Regulator applied to the Work Health and Safety Tribunal (Tribunal) under s 82A of the WHS Act to set a new deadline;

AND WHEREAS the Regulator has confirmed that it intended to name Western Diagnostics Pathology and the Transport Workers’ Union Western Australia Branch as respondents to its application to the Tribunal;

AND WHEREAS the Regulator says that based on the inspector’s investigation plan (which was attached to the Regulator’s application to the Tribunal), it will need a further seven weeks to allow the inspector to make a Decision and requests that the Tribunal set a new deadline of Friday 16 September 2022;

AND WHEREAS the Regulator says that the hazards raised by the Union are complex and relate to the work health and safety of workers at Jandakot, Joondalup, Duncraig, Rockingham, Mandurah, Midland and Belmont;

AND WHEREAS the Regulator says it has been given limited information about the matters in dispute and that it may need to review four provisional improvement notices;

AND WHEREAS the inspector says that he will need to speak with an ‘appropriate’ number of workers and consider appropriate enforcement action;

AND WHEREAS the Regulator says that extra time will be needed to allow for contingencies if the inspector is (or relevant parties are) affected by COVID-19;

AND WHEREAS at a hearing on Wednesday 3 August 2022 the Tribunal heard from the Regulator, who confirmed that the inspector had begun having discussions with the Union, Western Diagnostics Pathology and affected workers;

AND WHEREAS in effect, the Regulator said that in those circumstances, Friday 16 September 2022 was a practicable deadline;

AND WHEREAS at the hearing on Wednesday 3 August 2022, the Tribunal heard from Western Diagnostics Pathology, who informed the Tribunal that it did not object to the Regulator’s application and submitted that Friday 16 September 2022 was a practicable deadline;

AND WHEREAS at the hearing on Wednesday 3 August 2022, the Tribunal heard from the Union, who informed the Tribunal that it did not object to the Regulator’s application and submitted that Friday 16 September 2022 was a practicable deadline;

AND WHEREAS Western Diagnostics Pathology confirmed that it complied with the Tribunal’s direction to notify affected workers by 12pm on Monday 1 August 2022 about the hearing and their opportunity to be heard about the Regulator’s application for a new deadline by displaying a document prepared by the Tribunal titled ‘Information for workers affected by the issue’ in a suitable, prominent place in the workplace where it would be seen by affected workers;

AND WHEREAS the Union confirmed that it complied with the Tribunal’s direction to notify its members who are workers affected by the issue about the hearing and their opportunity to be heard about the Regulator’s application for a new deadline by emailing those members a document prepared by the Tribunal titled ‘Information for workers affected by the issue’, albeit by Tuesday 2 August 2022, being one day later than directed by the Tribunal;

AND WHEREAS in the circumstances the Tribunal is satisfied that affected workers were notified of the hearing and had an opportunity to be heard about the Regulator’s application for a new deadline;

AND WHEREAS one affected worker attended the hearing and was represented by the Union;

AND WHEREAS in setting a new deadline that the Tribunal considers to be practicable, the Tribunal must evaluate the facts and circumstances of the case in question;

AND WHEREAS  the Tribunal has considered the Union’s request to the Regulator;

AND WHEREAS no party to the issue opposes the Regulator’s application for a new deadline and the parties to this application say the deadline sought is practicable;

AND WHEREAS in all the circumstances of this application before it, the Tribunal considers that a new deadline of Friday 16 September 2022 is practicable;

NOW THEREFORE the Tribunal, pursuant to the powers conferred under the Work Health and Safety Act 2020 (WA), orders –

THAT an inspector make a decision resolving the issue by Friday 16 September 2022.

Commissioner T Emmanuel