APPLICATION TO EXTEND A DEADLINE FOR MAKING A DECISION PURSUANT TO SECTION 82A OF THE WORK HEALTH AND SAFETY ACT 2020

THE WORK HEALTH AND SAFETY TRIBUNAL

PARTIES WorkSafe Commissioner

APPLICANT

-v-

Professionals Australia

RESPONDENT

CORAM Commissioner T Emmanuel

DATE Wednesday, 17 April 2024

FILE NO/S WHST 2 OF 2024

CITATION NO. 2024 WAIRC 00166

Result Order issued

Representation

Applicant Mr D Blades (of counsel)

Respondent Ms T Rowlands (as agent)

Order

WHEREAS on 28 March 2024, the Professionals Australia (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 issues relating to translators and interpreters engaged by six persons conducting a business or undertaking, being All Graduates, Oncall Translators and Interpreters, Taunggyi Pty Ltd (formerly trading as Burmese Interpreting and Translating Services), TIS National, VITS Language Loop and WA Interpreters (PCBUs) who provide translation and interpretation services to the Department of Health;

AND WHEREAS the matter the Union referred to the Regulator raises concerns that centre around the management of psychosocial hazards including:

a)      inadequate consultation, cooperation and coordination by the Department of Health with PCBUs to jointly manage psychosocial hazards;

b)     inadequate controls to implement to protect workers from the hazard/risk factor of insecure work, including problems regarding poor job design and non-provision of personal protective equipment that reflects what patients and hospital staff are provided; and

c)      inadequate controls to protect workers from the psychosocial hazard/risk factor of secondary and vicarious trauma, given problems in relation to poor job design;

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

AND WHEREAS on 2 April 2024, 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 on 3 April 2024 the Tribunal sent the PCBUs a document prepared by the Tribunal titled ‘Information for workers affected by the issue and any person conducting a business or undertaking that is involved in the issue’ (Information Sheet) and asked the PCBUs to forward the Information Sheet to its workers who may be affected by the issue, and by 9 April TIS National, VITS Language Loop, All Graduates Interpreting and Translating and Oncall Interpreters and Translators confirmed that they had done so;

AND WHEREAS on 4 April 2024, Professionals Australia confirmed that it had complied with the Tribunal’s direction to notify all affected members about the hearing and their opportunity to be heard about the Regulator’s application for a new deadline, and it was not aware of any party to the issue being otherwise represented;

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

AND WHEREAS a number of affected workers attended the hearing but did not wish to be heard;

AND HAVING HEARD at the hearing on 17 April 2024 from Mr D Blades (of counsel) on behalf of the Regulator, Ms T Rowlands (as agent) on behalf of the Union and Ms H Glass as an affected worker who is a member of the Union;

AND WHEREAS the Regulator says the new deadline is necessary because of the range of stakeholders involved in this matter, the extent of previous consultation which has occurred since August 2020, and the nature of the hazards involved which are psychosocial;

AND WHEREAS in those circumstances the Regulator says that a new deadline of 27 September 2024 is appropriate to allow the inspector time to consult with the relevant stakeholders, to properly consider the Union’s referral and make a decision resolving the issue;

AND WHEREAS on 16 April 2024 the Regulator provided the Tribunal and the Union a copy of its Investigation Plan. The Investigation Plan details what needs to be done each week for twenty-six weeks in order for the inspector to make a decision resolving the issue, including obtaining and reviewing documents, meeting with the PCBUs, their workers and health and safety representatives, meeting with government stakeholders including the Office of Multicultural Interests, the Department of Finance, the Mental Health Commission and the Office of the Commissioner for Victims of Crime, considering any other workplaces that require consultation and meeting with them, interrogating information gathered and seeking expert advice as required, researching practicable controls, discussing findings with relevant workers, PCBUs and government stakeholders, preparing any enforcement action and finalising the investigation;

AND WHEREAS the Union opposes the Regulator’s application for a new deadline of 27 September 2024 because it says the issues referred are serious and very longstanding, causing distress and harm to translators and interpreters, and leading to attrition. The Union says the issues also affect other government agencies such as the Department of Justice and Department of Communities (in relation to child protection). The Union says it supports a timeframe that allows WorkSafe to conduct a proper investigation of the issues. In effect, the Union says the new deadline should be 17 June 2024;

AND WHEREAS Ms Glass says the number of translators and interpreters who attended the hearing shows how important the issues are to them. She says the issues are complex and longstanding, and concedes ‘it takes a while to get your head around’ the issues. Ms Glass considers that the Union can fast-track the Regulator’s investigation by sharing the considerable work the Union has already done in relation to the matter. Ms Glass agrees with the Union that a new deadline of 17 June 2024 is practicable.

AND WHEREAS in reply the Regulator says the Union’s submissions suggest that the investigation may need to extend beyond the Department of Health, for example to include the Department of Justice and Department of Communities, and that the investigation may indicate that the Regulator should have a role in setting up multiple business working groups. Further, the Regulator says it will need adequate time to properly consider what its investigation reveals, including whether the Regulator’s focus should shift to other departments or government agencies;

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. The Union represents hundreds of members from diverse cultural and religious backgrounds, being mostly women and migrants, that it says are affected by the issue, and the Union describes its concerns as serious. The Tribunal accepts that the issues are serious, complex and longstanding. The Tribunal recognises that the issues likely have impacted, and continue to impact, affected workers. The Tribunal considers the matter should be resolved as efficiently as practicable and without undue delay;

AND WHEREAS the Tribunal considers that in order to make a decision resolving the issue, the Regulator will need to:

a)      interview a significant number of people across a range of different stakeholders, including the PCBUs, their affected workers and health and safety representatives (if any), and government organisations including the Department of Health, the Office of Multicultural Interests, the Department of Finance, the Mental Health Commission, the Office of the Commissioner for Victims of Crime, the Department of Justice and the Department of Communities;

b)     seek and consider a potentially significant amount of information and large number of documents; and

c)      consider possible breaches and appropriate enforcement action;

AND WHEREAS the Tribunal is not persuaded that a new deadline of 17 June 2024 would be practicable;

AND WHEREAS in all the circumstances of this application before it, the Tribunal considers that a new deadline of 15 August 2024 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 15 August 2024.

Commissioner T Emmanuel