Details  Created: 06 March 2020

The Occupational Health and Safety Tribunal (Tribunal) has reviewed and revoked an improvement notice issued to the applicant for contravening the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations).  Details  Created: 06 March 2020

The applicant contended that they ought not to be held totally responsible for the actions of their crane driver in parking the crane on the road which resulted in a major road being closed.

Upon being issued an improvement notice by a Worksafe Inspector, the applicant applied to the Worksafe Commissioner for a review of the improvement notice, which was affirmed by the Commissioner. The applicant then referred a request for a review of the improvement notice by the Tribunal.

The respondent, Worksafe, submitted in the proceedings before the Tribunal that the improvement notice ought to be revoked on the basis that neither its affirmation nor affirmation with modification can be given effect.

The applicant sought the continuation of the proceedings so that the Tribunal may determination the requirements of the OSH regulations and the obligations of them as employers should a similar situation occur in the future.

The Tribunal found that the improvement notice ought to be revoked on the basis that it was not possible to affirm or modify the requirements of the improvement notice as the site for which the improvement notice concerned no longer existed.

The Tribunal also found that it ought to refrain from further hearing as it does not have the power to inquire generally into similar circumstances that may arise in the future.

The improvement notice was revoked.

The decision can be read here.

Details  Created: 06 March 2020

The Commission has determined on the papers that it is unable to hear an unfair dismissal claim because the applicant was employed by a national system employer and the Commission does not have jurisdiction to hear the matter.

The application named the respondent as the respondent’s business trading name. The respondent submitted that the applicant’s employer was in fact two trustees and that the family trusts are in partnership as the registered business trading name. The respondent also submitted that the entity consists solely of trading activities.

Commissioner Walkington noted that a trust is not a legal entity and it is the trustee, the person/entity responsible for administering the trust, who enters into the employment contracts. Walkington C considered that if the trustee is a company, it may be a constitutional corporation and a national system employer.

Walkington C concluded, on the undisputed information and documentation provided by the family trusts, that the applicant’s correct employer were the two trustees and ordered the name to be amended accordingly.

Walkington C applied relevant legal principle and found that the family trusts, as employer, were a trading corporation and the applicant was employed by a national system employer.

The applicant was dismissed on the basis that the Commission did not have jurisdiction to deal with the applicant’s claim for unfair dismissal.

The decision can be read here.