The Tribunal stated that it has jurisdiction under the Occupational Safety and Health Act 1984 (WA) regarding any dispute arising from employee’s rights and entitlements in circumstances where they hold a concern for their health and safety at a workplace and the entitlement to payment during such period.

Background

The applicant was employed by the respondent as a stevedore at the Port of Fremantle, Western Australia. On 27 July 2020, the applicant, along with several other stevedores, ceased working on a crane due to concerns for their safety because of a crack that had been found in the crane railing. Later that day, the respondent advised the applicant that he would be stood down and four hours of pay would be deducted from his salary.

Contention

The applicant contended that he refused to work in accordance with s 26 of the Occupational Safety and Health Act 1984 (WA). Thus, pursuant to s 28(1), he was entitled to be paid and applied to the Tribunal for an order pursuant to s 28(2), for the deducted salary.

Opposing the applicant, the respondent said the application should be dismissed on the basis that the Tribunal lacked jurisdiction to determine it.

The respondent is a ‘national system employer’ within the meaning of the Fair Work Act 2009 (Cth) and has been an employer of ‘waterside workers’ at all material times within the meaning of the FW Act and the Workplace Relations Act 1996 (Cth). The applicant’s employment with the respondent was covered by the Patrick Terminals Enterprise Agreement 2016, which was made and approved under the FW Act.

The respondent submitted that the applicant’s refusal to work on the crane was ‘industrial action’ as described in s 19(1)(b) of the FW Act. Therefore, under s 474(1) of the FW Act, this requires a reduction in pay. Thus, sections 26(1), 28(1) and (2) of the OSH Act were inoperative because they were directly inconsistent with a Commonwealth law, namely Part 3-3, Division 9 of the FW Act.

The applicant disputed that the Tribunal lacked jurisdiction, submitting that ss 26 and 28 of the OSH Act were not directly inconsistent with the FW Act.

The respondent contended that the FW Act intends to 'cover the field’ and regulate exclusively and, this being the case, s 109 of the Australian Constitution (Constitution) renders s 28(1) of the OSH Act inoperative.

The applicant contended that the FW Act does not purport to legislate against an employee being entitled to refuse to work in circumstances set out in s 26 of the OSH Act and in particular does not prohibit payment by an employer to an employee in the circumstances covered by s 26 and s 28 of the OSH Act nor preclude an employee referring a dispute to the Tribunal under s 28(2) of the OSH Act.

The Commonwealth Attorney General (intervening) submitted there was no direct inconsistency. Sections 26(1), 28(1) and (2) of the OSH Act do not ‘alter, impair or detract from’ Part 3-3, Division 9 of the FW Act. No ‘real conflict’ arose from the mere co-existence of these laws. The FW Act does not cover the field as contended by the respondent.

The Attorney General also submitted that if there was s 109 inconsistency between these laws, it was more likely an operational inconsistency. However, it was not yet possible to determine whether such inconsistency exists. Absent findings of fact, the issue was hypothetical and may not need to be decided.

Findings

The Tribunal found that it had jurisdiction to hear and determine the application. This was because the OSH Act provides for application to the Tribunal regarding any dispute arising from employees’ rights and entitlements in circumstances where they hold a concern for their health and safety at a workplace and the entitlement to payment during this period.

Where an employee refuses to perform work in accordance with s 26 of the OSH Act, the exception to the meaning of industrial action contained in s 19(2)(c) of the FW Act applies. Thus, the State law is complementary to the Commonwealth law and there is no inconsistency. However, adopting the Attorney General’s approach, the Tribunal refrained from findings concerning whether the applicant’s conduct fell within s 26, because findings of fact or fact and law had not been made.

The decision can be read here.