The Tribunal granted the stay application, which was unopposed, regarding an Improvement Notice issued by a WorkSafe Inspector because the applicant had at least an arguable case and there was a serious question to be tried.

The stay was necessary to preserve the subject matter or integrity of the litigation, as compliance with the Improvement Notice before the hearing of the substantive application could create practical difficulties.

Background

In February 2023, a WorkSafe Inspector issued an Improvement Notice to the applicant, requiring it to take practical measures to ensure its employees are not exposed to hazards arising from a lack of fresh air ventilation when working at the workplace by 24 March 2023. WorkSafe later extended the time for compliance with the Improvement Notice to 31 May 2023.

Contentions

The applicant applied to the Tribunal for an external review. The applicant argued that the Improvement Notice was invalidly issued and the Work Health and Safety Act 2020 (WA) does not require it to implement the measures in the Improvement Notice. The applicant sought a stay of the Improvement Notice, which WorkSafe did not oppose.

In summary, the applicant submitted that the balance of convenience favoured a stay, because:

1. the imposition of the disputed measures was at the heart of the substantive application;
2. without a stay, the applicant would be susceptible to prosecution if it did not comply with the Improvement Notice, in circumstances where the applicant argued that the Improvement Notice was invalidly issued and required the applicant to take measures that the WHS Act does not require it to take;
3. there is public interest in not allowing statutory compliance and enforcement tools to be used by the regulator to extend the nature and operation of the duties that Parliament has imposed;
4. the public has an interest in workplace safety, but this is not a case where there is no safety management in place;
5. there would be no disadvantage to WorkSafe if the stay was granted; and
6. WorkSafe did not oppose the stay.

WorkSafe contended that:

1. the WHS Act does not prescribe the matters to be taken into account by the Tribunal when deciding whether to grant a stay;
2. the Tribunal should infer that the public interest is also a relevant consideration of a stay application under the WHS Act; and
3. this was a matter where time can be allowed for the implementation of the improvement measures.

Further, WorkSafe acknowledged that the applicant was entitled to an external review of the relevant decision with the opportunity to present evidence and submissions contrary to the WorkSafe Inspector’s view.

Findings

The Tribunal granted the application because it was satisfied that the balance of convenience favoured the grant of the stay.

The stay was necessary to preserve the subject matter or integrity of the litigation.  If a stay was not granted, the applicant would be required to implement the measures in the Improvement Notice by 31 May 2023 or risk prosecution. This created practical difficulties regarding the relief that could be granted by the Tribunal if the applicant were to comply with the Improvement Notice and then be successful in its substantive application. As WorkSafe rightly conceded, once the improvement measures are implemented, from a practical perspective, the appeal would be rendered nugatory.

Considering the grounds of appeal there was at least an arguable case and there was a serious question to be tried regarding the reasonableness of the decision the subject of external review.

The public interest was relevant to the Tribunal’s consideration of the application.  It was apparent from WorkSafe’s response to the application that it did not consider that a stay would create unacceptable risks for workers and others in the workplace.

The decision can be read here.