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.
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:
- The improvement notices issued in relation to the 2018 applications be revoked and the applications to exempt each matter be dismissed;
- 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;
- 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
- 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.