Archive: May 25, 2020, 12:00 AM

OSH Tribunal revokes previously affirmed improvement notice

Details  Created: 25 May 2020

The Occupational Health and Safety Tribunal, in a supplementary Reasons for Decision, has revoked an improvement notice issued to a building company, Hanssen Pty Ltd, by the Worksafe Inspector that was previously affirmed in the substantive decision by the Tribunal, and dismissed an application for costs by the respondent, the Worksafe Commissioner.

Substantive decision

On 28 February 2020, the Tribunal revoked the improvement notices issued to the same applicant by the Worksafe Inspector in matters in 2018 and dismissed the applications made in each matter to exempt the applicant from compliance with reg 3.54 of the Occupational Safety and Health Regulations 1996 (WA).  

The Tribunal, however, affirmed the improvement notice issued in 2019 and the WorkSafe Commissioner’s decision not to grant the applicant an exemption from the requirements of reg 3.54 of the Regulations.

On 28 February 2020, at the conclusion of the substantive decision, the Tribunal provided the parties with a Minute of Proposed Orders in the following terms:

  1. The improvement notices issued in relation to the 2018 applications be revoked and the applications to exempt each matter be dismissed;
  2. The revocation of the notices as a result of the completion of construction and the passage of time should not infer that these notices were not appropriate nor justified;
  3. The improvement notice in the 2019 application be affirmed and the applicant is directed to ensure all holes at the site are covered with wire mesh; and
  4. The WorkSafe Commissioner’s decision to not grant the applicant an exemption from the requirements of reg 3.54 be affirmed.

Supplementary Reasons for Decision

At the speaking to the minutes, the parties submitted that it was not practical to implement Order 3 as the construction on the relevant site was near completion.

As a result, the Tribunal issued orders that Order 3 amended to the effect that the improvement notice issued in relation to the 2019 application be revoked.

On 6 March 2020, the Worksafe Commissioner applied for an order that the applicant pay $14,192.75, the costs for the preparation of reports and attendance at the hearing of an expert witness for the Worksafe Commissioner.

The Worksafe Commissioner contended that the applications brought by the applicant in the matters were without merit and were instituted without reasonable cause.

The applicant opposed the costs order and argued that they had reasonable grounds to bring the applications and that the issues to be determined necessitated consideration of expert evidence from both parties.

The Tribunal noted that it is a well-established principle that an order for costs ought not to be made except in extreme cases, such as when proceedings are instituted without reasonable cause.

The Tribunal found that there were no extreme circumstances in the conduct of the applicant in bringing the applications nor that the applications were instituted without reasonable cause or were manifestly groundless.

The application for costs was dismissed.

The substantive decision can be read here

The supplementary Reasons for Decision can be read here.

OSH Tribunal reviews improvement notices and exemption applications

The Occupational Health and Safety Tribunal has revoked the improvement notices issued to the same applicant by the Worksafe Inspector in matters in 2018 and dismissed the applications made in each matter to exempt the applicant from compliance with reg 3.54 of the Occupational Safety and Health Regulations 1996 (WA).  

The Tribunal, however, affirmed the improvement notice issued in 2019 and the WorkSafe Commissioner’s decision not to grant the applicant an exemption from the requirements of reg 3.54 of the Regulations.

The applicant, in all four applications, contended that they should be exempted from reg 3.54 on the grounds that it substantially complied with the regulations or that compliance was unnecessary.

Background

The applicant is a builder of multi-level buildings and has devised a system called the Hanssen Penetration System (HPS) to cover holes in the construction site and manage the risk of falls through the holes when the holes are not covered.

The applicant noted that reg 3.54 requires that a wire mesh be installed over the holes. The applicant conceded that the HPS does not fully comply with reg 3.54 in that there was no installation of wire mesh on any of their sites. However, the applicant argued that an exemption from the regulations ought to be granted because the HPS ‘substantially complies’ with the regulations.

The applicant contended that the HPS provides an equal or greater protection from the risk of injury, and that any risks or hazards associated with not having a wire mesh over the holes are addressed by alternate safety measures of the HPS.

The WorkSafe Commissioner opposed the exemption and submitted that the HPS does not achieve substantial compliance with reg 3.54 because it only complies with two of the three requirements of that regulation.

Improvement Notices

The Tribunal found that all sites subject to the 2018 applications have reached a point where there are no longer any holes or openings to which reg 3.54 applies. Therefore, the Tribunal found that affirmation of the improvement notices cannot be given practical effect and are revoked under s 51(5)(c) of the Occupational Safety and Health Act 1984.

However, the Tribunal found the site subject to the 2019 application still operational and issued orders that the applicant ensure all holes meet the requirements of reg 3.54, including the requirement to embed wire mesh over it.

Exemption Applications

The Tribunal noted that the WorkSafe Commissioner may exempt a person or workplace from the requirements of reg 3.54 if he is satisfied that there is ‘substantial compliance’. The Tribunal also noted that to find compliance with the requirements of the regulations unnecessary, it must be convinced that the HPS is safer or as safe as compliance with those requirements set out in the regulation such that it is not necessary to require compliance.

The Tribunal found, as the sites subject to the 2018 applications has reached a point where there are no longer any holes, no exemption can be granted for the 2018 applications. However, the Tribunal noted that revocation of the notices because of the completion of construction and the passage of time should not infer that the notices were not appropriate or justified.

The Tribunal then found on the evidence that there were significant weaknesses in the administration of the HPS at the operational site subject to the 2019 application. The Tribunal was not convinced that the implementation of the HPS rendered compliance with reg 3.54 unnecessary.

Orders

The Tribunal ordered that:

  1. The improvement notices issued in relation to the 2018 Applications be revoked and the applications to exempt each matter be dismissed;
  2. The improvement notice in the 2019 Application be affirmed and the applicant is directed to ensure all holes at the site are covered with wire mesh; and
  3. The WorkSafe Commissioner’s decision to not grant the applicant an exemption from the requirements of reg 3.54 be affirmed.

The decision can be read here.