APPLICATION FOR EXTERNAL REVIEW PURSUANT TO SECTION 229 OF THE WORK HEALTH AND SAFETY ACT 2020

THE WORK HEALTH AND SAFETY TRIBUNAL

CITATION : 2024 WAIRC 00100

DELIVERED : wednesday, 13 March 2024

FILE NO. : WHST 1 OF 2024

Applicant

AND

WorkSafe Commissioner

Respondent

CatchWords : Application for external review - Application for stay on improvement notice - Stay principles - Stay granted

Legislation : Work Health and Safety Act 2020 (WA) s 3, s 3(1)(e), s 210, s 229, s 229A, s 229A(5), s 229B

Result : Stay granted

Representation:

Applicant : Ms S Harrison (of counsel)

Respondent : Mr A Hay (of counsel)

Cases referred to in reasons:

Clinical Laboratories (WA) Pty Ltd v The Government of Western Australia’s Department of Mines, Industry Regulation and Safety [2023] WAIRC 00268; (2023) 103 WAIG 717

Elgas Ltd v SafeWork NSW (No 2) [2021] NSWIRComm 1102

Essential Energy (ACN 37428185226) v WorkCover Authority of New South Wales [2012] NSWIRComm 83

Multiplex Constructions Pty Ltd v The Regulator Under the Work Health and Safety Act 2011 [2018] QIRC 116; (2018) 281 IR 204

Shape-Cut Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 490

Soutorine v The Medical Board of Australia [2020] WASAT 5

State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 189

XU HONG BIN v Yan Li [2021] WAIRC 00662; (2022) 102 WAIG 38

Reasons for Decision

1         For simplicity, these reasons refer to the respondent as WorkSafe.

2         In February 2024, a WorkSafe Inspector issued Improvement Notice NV-076-549628 (Improvement Notice) to CITIC Pacific Mining Management Pty Ltd (CITIC) requiring it to resubmit its December 2023 quarterly report and provide extracts of any relevant procedures from the Mines Safety Management System to show how such information will be correctly reported in the future by 29 March 2024.

3         CITIC has applied to the Tribunal for an external review under the Work Health and Safety Act 2020 (WA) (WHS Act). It also seeks a stay of the Improvement Notice (Stay Application), which WorkSafe does not oppose.

4         These reasons deal with the Stay Application.

Legislative framework

5         Section 229 of the WHS Act sets out who may apply to the Tribunal for an external review of particular decisions.

6         Section 229A sets out the Tribunal’s powers and the process for an external review. It provides:

(1)  This section applies if an application is made under section 229 for an external review of a decision.

(2)  The Tribunal must review the decision (unless the applicant withdraws or discontinues the application).

(3)  The review is to be by way of a hearing de novo, and it is not confined to matters that were before the decision‑maker but may involve consideration of new material whether or not it existed at the time the decision was made.

(4)  The purpose of the review is to produce the correct and preferable decision at the time of the completion of the review.

(5) When the review is completed, the Tribunal may —

 (a) confirm or vary the decision; or

 (b) set aside the decision and substitute another decision that the Tribunal considers appropriate.

(6)  Despite subsections (2) to (4), the Tribunal may, with the agreement of the applicant and the decision‑maker, act under subsection (5)(a) or (b) without starting or completing the review.

(7)  Subsections (2) to (4) are also subject to Schedule 1 clause 30.

7         Section 229B of the WHS Act deals with the Tribunal’s power to order a stay. It provides:

(1)  This section applies if an application is made under section 229 for an external review of a decision.

(2)  The Tribunal may stay the operation of the decision (wholly or partly) pending the Tribunal acting under section 229A(5)(a) or (b) or for any shorter period the Tribunal determines.

(3) The Tribunal may cancel or vary a stay.

(4)  If the decision is a decision referred to in section 229(1)(c), if relevant, the staying of its operation does not revive the reviewable decision that was the subject of the internal review.

8         The objects of the WHS Act are set out in s 3. The WHS Act focusses on securing safety for workers and others in the workplace:

(1)  The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by —

 (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work; and

 (b) providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and

 (c) fostering cooperation and consultation between, and providing for the participation of, the following persons in the formulation and implementation of work health and safety standards to current levels of technical knowledge and development and encouraging those persons to take a constructive role in promoting improvements in work health and safety practices —

(i) workers;

(ii) persons conducting businesses or undertakings;

(iii) unions;

(iv) employer organisations;

and

(d) promoting the provision of advice, information, education and training in relation to work health and safety; and

(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and

(f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act; and

(g) providing a framework for continuous improvement and progressively higher standards of work health and safety; and

(h) providing for the formulation of policies, and for the coordination of the administration of laws, relating to work health and safety; and

(i) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in the State.

(2)  In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable.

Relevant principles

9         In Clinical Laboratories (WA) Pty Ltd v The Government of Western Australia’s Department of Mines, Industry Regulation and Safety [2023] WAIRC 00268; (2023) 103 WAIG 717 (Clinical Laboratories) I set out the relevant principles that apply to stay applications under the WHS Act:

Recently in XU HONG BIN v Yan Li [2021] WAIRC 00662; (2022) 102 WAIG 38, the Chief Commissioner confirmed at [8] the principles that apply in relation to stay applications under s 49(11) of the Industrial Relations Act 1979 (WA).

For the purposes of the disposition of the present application, I refer to my recent decision on a stay application in GHD Pty Limited v WorkSafe Western Australia Commissioner [2021] WAIRC 00190; (2021) 101 WAIG 569 where at [8] I said as follows:

The relevant principles applicable to stay applications are not in contest. Reference was made by both parties to John Holland Group Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2005] WAIRC 02983; (2005) 85 WAIG 3918, per Ritter AP at [31] – [38]. These principles were recently discussed and considered by the Court of Appeal in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141, where the Court, at [47] - [48] said:

An application for a suspension order under s 15 of the Civil Judgments Enforcement Act 2004 (WA) or an interim order for a stay under r 44 of the Supreme Court (Court of Appeal) Rules 2005 (WA) is generally considered in the framework of the principles enunciated in Eastland Technology Australia Pty Ltd v Whisson. Those principles were conveniently re-stated by Pullin JA in Tradesman Technologies Pty Ltd v Ameduri in the following terms:

(a) The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.

(b) It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.

(c) The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.

(d) If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.

(e) Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.

Accordingly, consideration of whether there are 'special circumstances' justifying an interim stay normally involves assessment of three things:

(1) Is the stay necessary to preserve the subject matter or the integrity of the litigation?

(2) Does the appeal have reasonable prospects of success?

(3) Does the balance of convenience favour the grant of the stay?

The Tribunal’s power to order a stay under s 229B of the WHS Act has not been considered before and there are few decisions arising under similar legislation in other jurisdictions.

In Elgas Ltd v SafeWork NSW (No 2) [2021] NSWIRComm 1102 Sloan C considered an application for the stay of decisions made by the work health and safety regulator that were the subject of an application for external review. Sloan C adopted the approach taken in Essential Energy (ACN 37428185226) v WorkCover Authority of New South Wales [2012] NSWIRComm 83 by Blackman J, which was to consider:

a. Is there a serious question to be tried?

b. Does the balance of convenience favour the granting of a stay of proceedings?

In Multiplex Constructions Pty Ltd v The Regulator Under the Work Health and Safety Act 2011 [2018] QIRC 116; (2018) 281 IR 204 (Multiplex), O’Connor DP considered an application for the stay of a decision made on an internal review and the operation of a prohibition notice issued by an Inspector of Work Health and Safety Queensland. O’Connor DP applied the principles detailed by the New South Wales Court of Appeal in Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 68. These were summarised as:

a. The court has a discretion involving the weighing of considerations such as the balance of convenience and the competing rights of the parties.

b. Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay.

c. The court will not generally speculate upon the appellant’s prospect of success, but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time.

d. In considering whether to grant the stay, it is sufficient that the applicant for the stay demonstrate a reason or an appropriate case to warrant favourable exercise of the discretion.

In a decision of the State Administrative Tribunal, Soutorine v The Medical Board of Australia [2020] WASAT 5, Tottle J said:

The considerations that guide the exercise of the discretion to grant a stay pending an appeal in curial proceedings may provide some guidance when determining whether to grant a stay pending the determination of a review application – the relevance of those principles will vary according to the nature of the decision giving rise to the order in respect of which a stay is sought.

I agree with respect with Curthoys J’s observations in PAG [PAG (WA) Pty Ltd and Commissioner for Consumer Protection [2018] WASAT 57] that, in the context of a stay application brought within an application to review an administrative decision, a regulatory decision-making authority is not to be equated with the successful party in proceedings in which the issues have been contested and determined by a court or tribunal.

Similarly the decisions on applications to stay immediate action decisions in other jurisdictions may provide some guidance as to the considerations bearing upon the discretion to grant a stay but care must be taken to recognise any relevant differences in the legislative frameworks in which the interstate decisions were made and the nature of the decision that gave rise to the order the subject of the stay application [26] – [28].

The WHS Act does not prescribe the matters to be considered by the Tribunal when deciding whether to grant a stay under s 229B.

The decision under review is an administrative decision of a regulatory decision-making authority, and not an order made by a court or tribunal after the hearing and determination of contested proceedings.

Given the nature of this matter and the statutory context, I consider that the following considerations are relevant to considering the Stay Application:

a.  Is the stay necessary to preserve the subject matter or integrity of the appeal?

b. Does the applicant have an arguable case?

c. Does the balance of convenience favour the grant of the stay? [10] - [17]

10      The approach taken in Clinical Laboratories is consistent with the approach taken recently in other jurisdictions when considering applications for stays under the model work health and safety legislation (see for example O’Connor VP in Shape-Cut Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 490 at [55] and State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 189 at [45]). I adopt and apply the reasoning in Clinical Laboratories to this matter.

CITIC’s submissions

11      CITIC referred to the Tribunal’s reasoning in Clinical Laboratories. It acknowledges that the ratio in Multiplex does not bind the Tribunal, but submits that the reasoning in that case can assist the Tribunal. It argues that a stay is necessary to preserve the subject matter or integrity of the litigation, because if a stay is not granted then CITIC will be required to implement the measures in the Improvement Notice by 29 March 2024 or risk prosecution. CITIC says this would create practical difficulties in terms of the relief that can be granted by the Tribunal if CITIC is successful in the substantive hearing, because the appeal would be rendered nugatory. CITIC will have changed its Mine Safety Management System. It will be required to contact all contractors to speak with them at the end of the reporting period to work out which workers who have been certified as partially fit for work have actually worked in alternate duties, regardless of the outcome of the external review application.

12      CITIC says it has a strong arguable case that it complied with the requirements in Schedule 25 when reporting the number of days lost from work during the quarter as a result of relevant incidents by reporting based on Progress Medical Certificates, which set out a worker’s condition as a result of the incident as assessed by a medical practitioner. CITIC submits that there is no basis for the Inspector to have found that CITIC knowingly provided false or misleading information. CITIC argues that it had no actual knowledge that a worker, who had been certified as fit to work alternate duties, was not actually provided with those duties by their employer. CITIC also says the way it prepared that section of its quarterly report is in accordance with the industry standard practice to use medical certificates. CITIC says there is a serious question to be answered about the reasonableness of the decision the subject of external review.

13      CITIC accepts that public interest is relevant to consider when determining a stay application and says the Tribunal should consider whether a stay would create unacceptable risks for workers and others in the workplace. CITIC submits that the Improvement Notice does not require CITIC to make any safety improvements. Rather it requires CITIC to change the way it reports the number of days lost from work during the quarter as a result of relevant incidents in its quarterly reports. CITIC says that granting a stay:

1. will not create unacceptable risks or any risk for workers or others in the workplace; and
2. is consistent with the object in s 3(1)(e) of the WHS Act by securing compliance through effective and appropriate compliance and enforcement measures.

14      In relation to the balance of convenience, CITIC says that under regulation 675W of the Work Health and Safety (Mines) Regulations 2022 (WA), CITIC must submit another quarterly report by 15 April 2024, which means that it will have to use the new system required by the Improvement Notice on or before 15 April 2024. CITIC says this means it will have to:

1. resolve the potential Privacy Act 1988 (Cth) issues with respect to obtaining personal information about a worker’s actual work activities due to their medical condition other than directly from the worker;
2. face potential challenges with the availability of relevant people to provide information about what a worker who has been certified fit for alternate duties is doing, given the Easter holiday period starts on 29 March 2024 and school holidays continue until 15 April 2024, which is the day the quarterly report is due; and
3. be exposed to the risk of having to use unverifiable/non-official documents or discussions with people that may be incorrect or could result in conflicting information being received, which gives rise to the real risk of providing incorrect information.

15      CITIC submits that it will create no inconvenience for WorkSafe to receive another quarterly report based on Progress Medical Certificates as it is aware of the basis of the report, and such reporting is consistent with the method of reporting used by other mine operators.

16      CITIC says that unless the operation of the Improvement Notice is stayed, CITIC will still be required under s 210 of the WHS Act to display the Improvement Notice in a prominent place at the workplace. It says:

CITIC is concerned about having to do this when the Improvement Notice states that it has (and infers (sic) that Nick Rowe and Badenia Richer have) knowingly provided incorrect and misleading information to (sic) in its Quarterly Report. It says this did not occur as outlined in grounds 1, 2 and 6 of the external review application.

It is CITIC’s position that its, Nick Rowe and Badenia Richer’s interests in not having to display an Improvement Notice which suggest (sic) that they have engaged in this conduct is a relevant matter to be considered in determining both the issue of the integrity of the appeal and the balance of convenience.

17      In the circumstances, CITIC submits that it is reasonable for the Tribunal to make an order staying the operation of the Improvement Notice pending the Tribunal acting under s 229A(5) of the WHS Act in relation to application WHST 1 of 2024.

WorkSafe’s submissions

18      WorkSafe agreed to extend the time for compliance with the Improvement Notice until the date the external review is completed by the Tribunal. WorkSafe does not oppose the Stay Application.

Consideration

19      The Tribunal appreciates WorkSafe agreeing to extend the time for compliance with the Improvement Notice until the date the external review is completed by the Tribunal. However, I accept CITIC’s submissions and broadly for the reasons outlined above from [11] to [17], I am satisfied that the Stay Application should be granted.

20      Having considered the grounds of appeal set out in the Form 6 – Application to the Work Health and Safety Tribunal, there is at least an arguable case in relation to whether CITIC should have to comply with the measures in the Improvement Notice. There is a serious question to be tried in relation to the reasonableness of the decision the subject of external review.

21      If CITIC were required to implement the measures in the Improvement Notice by 29 March 2024, then the appeal would be rendered nugatory. In this case, even with WorkSafe’s agreement to extend the time for compliance until the external review is completed by the Tribunal, the effect of CITIC having to display the Improvement Notice in a prominent place at the workplace affects the integrity of the appeal and the balance of convenience. I am satisfied that the stay is necessary to preserve the integrity of the litigation.

22      As I said in Clinical Laboratories, public interest is relevant to the Tribunal’s consideration of the Stay Application. It is clear from the objects of the WHS Act that the legislation focusses on achieving safety in the workplace. It is relevant to consider whether a stay would create unacceptable risks for workers and others in the workplace. It is apparent from WorkSafe’s response to the Stay Application that the regulator considers that it would not. The Improvement Notice does not require CITIC to take improvement measures to address a hazard requiring immediate attention to safeguard workers. Rather it requires CITIC to change the way it reports the number of days lost from work during the quarter as a result of relevant incidents in its quarterly reports. Accordingly, I am satisfied that a stay would not create unacceptable risks for workers and others in the workplace.

23      The Tribunal has already programmed the substantive application for hearing. In accordance with those programming orders, the matter should be heard in around five months. In all of the circumstances, the Tribunal is satisfied that the balance of convenience favours the grant of the stay.

24      An order will issue staying the operation of the Improvement Notice pending the Tribunal acting under s 229A(5) of the WHS Act in relation to application WHST 1 of 2024.