Occupational Safety and Health Tribunal News

Tribunal affirms Worksafe Commissioner’s decision to not grant registration as a High Risk Work Licence Assessor

The Occupational Safety and Health Tribunal has affirmed a decision of the Worksafe Commissioner to not grant the applicant registration as a High Risk Work Licence Assessor in a number of classes.

Background

In May 2019, the applicant applied to the Department of Mines, Industry Regulation and Safety, WorkSafe Division, for registration as an assessor for licences to perform high risk work in five different classes.  In November 2019, the applicant was advised that his experience in relation to two classes was sufficient and he was invited to undertake the assessors’ examinations for those classes.

In December 2019, an officer of WorkSafe advised the applicant that he did not have sufficient experience to qualify for the remaining three licences, as the experience he provided was not industry operational experience in operating the relevant cranes.  The applicant was advised that the experience must be a minimum of three years, recent, relevant, and varied operational industry experience. On 6 December 2019, the applicant requested the WorkSafe Commissioner to ‘overturn’ the decision of the officer. In January 2020, The WorkSafe Commissioner advised the applicant that his experience in a training environment or in the commissioning of equipment, was not considered industry operational experience.

Contentions

The WorkSafe Commissioner contended that his decision in refusing to grant the applicant the licences should be affirmed.   This was because the applicant had not demonstrated the appropriate minimum experience, being three years of extensive and recent operating experience, in the relevant classes to meet the requirements for granting an assessor registration, pursuant to reg 6.22(2)(b) of the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations).

The applicant contended that the experience he submitted to the WorkSafe Commissioner was sufficient for registration as a HRWL assessor in all three classes. The applicant disagreed with the WorkSafe Commissioner’s submissions, that his experience obtained in a registered training organisation (RTO) setting ought to be given less weight than that obtained in an industrial operating setting.

Findings

Commissioner Walkington accepted the WorkSafe Commissioner’s submissions concerning the requirement to ensure that assessor registration only be granted to people with sufficient demonstrated and evidenced operational experience. She found that, in the context of a training environment, the absence of specific information that records the details of the activities undertaken, and the environment, noting any hazards or risks, cannot demonstrate that the requirements of reg 6.22 of the OSH Regulations have been met.

Walkington C found that the experience cited by the applicant was expressed in general terms and not verified or confirmed by the RTO.   Also, the description of the work undertaken was not of varied activities.  The Commissioner also found that the photographs of the equipment, facilities and sites on which the applicant conducted training of persons for high risk work licences, did not provide the detail required to assess the task being performed, did not show the nature of the environment and that it was not possible to identify the skills necessary by reviewing the photographs.

Commissioner Walkington concluded that the applicant’s description of his experience was not detailed enough and did not meet the requirements of the OSH Regulations.

The Tribunal affirmed the Worksafe Commissioner’s decision.

The decision can be read here.

Application to review decision to affirm improvement notice dismissed as out of time

The Occupational Health and Safety Tribunal (Tribunal) has dismissed an application to review the WorkSafe Commissioner’s decision to affirm an improvement notice issued to a company on the basis that the application was made out of time and that it does not have the power to grant an extension.

A WorkSafe Inspector had issued an improvement notice on 20 July 2020 to a company. A request to the WorkSafe Commissioner to review the improvement notice was submitted on 21 August 2020, and on 20 October 2020, the company received notification that the WorkSafe Commissioner had affirmed the notice.

The company then sought a review of the WorkSafe Commissioner’s decision to affirm the improvement notice. It submitted to the Tribunal that it had sought information from an officer of the Department of Mines, Industry Regulation and Safety concerning the process for further review of the decision, but the information was provided outside of the timeframe specified in the Occupational Safety and Health Act 1984 (OSH Act). The company filed its referral with the Tribunal the following day.

The WorkSafe Commissioner advised the Tribunal that it would be seeking an order to dismiss the matter as the company had not referred the matter to the Tribunal within the specified time limit.

The Tribunal noted that the company’s submissions concerned the reasons for the delay. The Tribunal found, however, that it does not have the power to extend the time limit and thus did not have the discretion to consider the reasons for the delay to extend the time limit.

The Tribunal dismissed the application.

The 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.

Tribunal referral dismissed due to lack of jurisdiction

Tuesday, 26 March 2019

The Occupational Safety and Health Tribunal (the Tribunal) has dismissed an application for payment of an unspecified amount for continued pay and benefits entitlements and a loss of earnings arising from alleged discrimination against a safety and health representative in relation to employment.

The Tribunal was comprised of Commissioner Walkington who considered the entitlements claim and noted that there is a mandatory process in place for resolving health and safety issues in the workplace, which include circumstances where a worker may cease work without loss of wages and entitlements. The Tribunal further considered that it is necessary for any employee wishing to make a claim to demonstrate that they have refused to work on particular tasks, have notified the employer of their belief of the risk to their safety and health and have made themselves available for alternate duties if it is safe to do so. The Tribunal found that the applicant’s actions were not consistent with the provisions of the legislation and regulations.

The Tribunal then considered that persons who are safety and health representatives or are performing or have performed any function as a safety and health representative can make a claim for discrimination against a safety and health representative in relation to employment. The Tribunal found that the applicant was not eligible to bring this application because the applicant had not demonstrated that he was a validly elected safety and health representative.

The Tribunal dismissed the referral for lack of jurisdiction.

The decision can be read here.

Number of Safety and Health Representatives depends on circumstances of workplace

Thursday, 11 October 2018

The Occupational Safety and Health Tribunal has decided on the number of Safety and Health Representatives (SHRs) and the manner of electing such representatives for a bus depot that services primarily CAT buses.

Senior Commissioner Kenner found that there is no standard formula to determine the appropriate number of SHRs for a workplace and it will instead depend on the circumstances of that workplace. In making such a determination it is necessary to look at the number of employees, working arrangements and hazards, the need for communication between SHRs and employees, the need for SHRs to be available to communicate with the employer on health and safety issues and for the SHRs to be visible and available to respond promptly to incidents and accidents.

The Senior Commissioner noted that the 'workplace', as defined in the Occupational Health and Safety Act, in this circumstance includes the depot and the buses – even when in transit. Evidence was given on the nature of health and safety hazards faced by CAT bus drivers and the limitations to communication during a shift with other employees and the control centre. The Senior Commissioner accepted that the level of hazards in relation to CBD driving was high and that CAT bus drivers face additional hazards in the city environment.

The Senior Commissioner determined that there will be 2 SHRs for each shift, 4 in total, and that a 'first past the post' method of voting following the Electoral Commission's preferred system of voting for only one candidate. The Transport Workers Union and the respondent will jointly conduct elections for any casual vacancies.

The decision can be read here.