The Occupational Safety and Health Tribunal (Tribunal) has reviewed and affirmed an improvement notice issued to the applicant, GHD Pty Ltd, concerning reg 3.140(2) of the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations).

Background

The applicant is an Australian operation of an international professional services company.

In 2018, the applicant was engaged by another company to design a ship building facility. The applicant incorporated pre-cast concrete hollowcore panels for the flooring system of the ship assembly hall. A contractor was engaged to lift and install the panels into the floor.

In 2019, a concrete panel fell and landed on the concrete dock, destroying the panel and damaging part of the concrete deck. Worksafe Inspectors attended the site and following inspections, issued the applicant with an Improvement Notice.

The Improvement Notice stated that the applicant’s written safety report did not appropriately identify the relevant hazards or risk associated with the design, including the hazard of hollowcore panels falling when being lifted by a crane.

The applicant applied to the Worksafe Commissioner for a review of the Improvement Notice, which was affirmed by the Commissioner with a modification to the date of compliance with the notice.

The applicant then referred the decision of the Worksafe Commissioner to the Tribunal for a further review of the Improvement Notice.

Contentions

The applicant contended that:

• the Tribunal ought to revoke the Improvement Notice on the basis that, as a matter of law, the alleged contravention was not within the scope of its duty;
• there were no reasonable grounds for forming an opinion that the applicant was in contravention of the Occupational Safety and Health Act 1984 (WA);
• the design documentation appropriately identified the relevant hazards or risks associated with the design and the control or elimination of those risks during the design process; and
• the Improvement Notice issued to them was uncertain, vague and ambiguous.

The Worksafe Commissioner maintained that the Improvement Notice was validly issued, that the applicant failed to comply with its duty prescribed in reg 3.140 of the OSH Regulations and that the Improvement Notice, when read as a whole, does not suffer from the defects alleged by the applicant.

The Worksafe Commissioner contended that the Improvement Notice should be affirmed with modification to allow additional time for compliance.

Findings

Commissioner Walkington found that the applicant was the ‘designer’ of the flooring system, and that it was within the scope of its responsibility and obligation as a designer to specifically address, in its safety report, the hazards associated with lifting and installing hollowcore panels.

Walkington C found that the safety report ought to have included a specific reference to the pre-cast hollowcore panels and the hazard arising from the installation of these panels in the flooring system. She concluded that the safety report provided by the applicant to its client did not satisfy the requirements set out in reg 3.140 of the OSH Regulations.

Walkington C determined that the directions contained in the second section of the Improvement Notice, which dealt with the manner of the expressed time to comply with the notice, were not sufficiently clear and ambiguous. However, she found that this did not result in a conclusion that the Improvement Notice was invalid and ought to be revoked.

Walkington C affirmed the Improvement Notice with a modification to remove the directions and add a direction to include the hazards arising from the selection of the flooring system in the safety report, and a modification to the date for compliance.

The decision can be read here.