Skip to main content

Occupational Safety and Health Tribunal

The Occupational Safety and Health Tribunal (the OSH Tribunal) assists in the resolution of certain workplace safety and health issues under Western Australia's occupational safety and health laws.

The Tribunal deals with certain issues that may be referred under the following three laws:

The Mines Safety and Inspection Act 1994 (WA) applies to work that is carried out on a mine, the Petroleum (Submerged Lands) Act 1982 (WA) applies to work that is carried out on offshore petroleum operations as defined in section 4 of that Act, and the Occupational Safety and Health Act 1984 (WA) applies to all other workplaces in Western Australia.

Referring claims to the OSH Tribunal

The claims that may be referred to the Tribunal vary between the three laws. They do have similarities in that all of the matters that may be referred to the Tribunal relate to occupational health and safety at Western Australian workplaces. For more information check the tables below under 'Determining Eligibility'.

Please note that claims that may be referred to the Tribunal are not 'industrial matters' as described in section 7 of the Industrial Relations Act 1979 (WA).

Responsibilities of the Tribunal

The Tribunal is required to:

  • proceed as quickly as possible;
  • consider matters according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form;
  • have regard to the interests of the persons immediately concerned, whether directly affected or not; and
  • have regard, where appropriate, for the interests of the community as a whole.

Determining eligibility

The Tribunal deals with certain issues that may be referred under the following Acts:

A range of people from WA workplaces may refer issues to the Tribunal under specific sections of the laws applying to the Tribunal. Generally, only persons directly affected by a matter arising under the Acts can refer a matter to the Tribunal. This includes:

  • employers;
  • employees;
  • workplace health and safety representatives;
  • contractors;
  • sub-contractors;
  • member(s) of workplace health and safety committees;
  • a member of a designated work group;
  • the Mine Manager; and
  • the State Mining Engineer.

Additionally, the WorkSafe Western Australia Commissioner has standing in relation to many matters and has the exclusive right to refer a matter in some circumstances.

It is recommended that you try to discover under which section of the relevant act you may refer your matter to the Tribunal. The tables below can assist you in understanding the types of matters and the type of persons who can refer a matter to the Tribunal:

Submitting an application

Critical information
What happens after I lodge Form 6?

After you have submitted your Form 6, the Commission’s Registry will:

  • check it to make sure that it contains all the required information;
  • if the form is complete, send a copy of it to you for your records; 
  • if the Tribunal directs so, to serve the parties with the copies of the form. You will then be contacted by the Tribunal to arrange to have your referral dealt with.

Conciliation Conferences

A conciliation conference may be conducted by the Tribunal who can help the parties to resolve their employment dispute. The purpose of the conciliation is to explore whether an agreement can be reached between the parties, not to decide who is right or wrong.

The option of conciliation is available in many (but not all) claims referred to the Tribunal. For instance, see section 51J(1) of the Occupational Safety and Health Act 1984 (WA). Depending on which legislation your application is made under, your application may proceed straight to a formal hearing, where the issue is determined by the Tribunal.

Conciliation conferences are private and are conducted on a 'without prejudice' basis. This means that what is discussed at a conciliation conference cannot be used against one of the parties if the matter goes to hearing. This allows the parties to explore possible settlement options without fear of the other side using any offers or concessions made at the conference as an admission to various aspects of a claim. The conference is not recorded, and no transcript is produced. Any visual or audio recording is strictly prohibited. An agreement may be reached during or after the conference, the parties have control over the outcome before the matter reaches the hearing stage. In contrast, if the matter goes to hearing, the Commission will decide the outcome of the matter.

For more information please read the Commission’s conciliation conference fact sheet by clicking here.

Possible outcomes of conciliation

  • An agreement may be reached during or after the conference.
  • If an agreement is not reached, The Commission may hold further conferences depending on the circumstances, or list the matter for hearing.

What is a hearing?

A hearing is where the Tribunal hears and determines the substance of the issues in dispute. Hearings are more formal than conciliation conferences. In addition, the process may involve a visit by the Tribunal to the workplace.

 

Interlocutory or preliminary hearings

There may be issues that have to be determined by the Commission before the merits or substance of an application can be dealt with. These preliminary (or interlocutory) matters may relate to an issue with the employee’s claim that needs to be resolved before the rest of the matter can proceed, such as an application for discovery of documents.

Some examples of preliminary issues include:

  • whether the Commission has jurisdiction to deal with the application;
  • whether the employee is under the salary cap; or
  • whether the Commission can accept an application that was made out of time.

There may be one or more interlocutory hearings before the substantive hearing to deal with preliminary or procedural issues.

 A Directions hearing is similar to a preliminary hearing, it is where the Commission will set out how the matter will progress. This can include setting out a timeline for when things ought to occur such as discovery, or when things are to be filed with the Commission, such as outlines of submissions or witness statements.

Substantive hearing

A substantive hearing is where the Commission hears and determines the substance or merits of the employment or industrial issues in dispute.

 

For more information please read the Commission’s hearing fact sheet by clicking here.

For information on evidence, please read the Commission’s evidence fact sheet by clicking here.

For information on representation and representing yourself, please read the Commission’s representation fact sheet by clicking here.

 

Possible outcomes

The outcomes available at hearing will depend on the claim referred. For example, under certain matters compensation may be ordered by the Tribunal.

 

Please refer to these tables for more information:

Table for the OSH Act

Table for the MSI Act

Table for the PSL Act

Latest 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.

Read More

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.

Read More

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.

Read More

View all Occupational Safety and Health Tribunal news

Frequently asked questions

Yes. The applicants may request the Tribunal to consider using the provisions of s 27(1)(j) of the Industrial Relations Act 1979 to join multiple applications relating to the same claim.

This will depend on the section of the particular law concerned. As an example where more than one health and safety representatives at a workplace are seeking additional entitlements for attending accredited training courses, then under s 35(3) of the Occupational Safety and Health Act 1984, the health and safety representatives jointly, or their agent, may lodge an application, listing the health and safety representatives’ details as applicants.

Employer organisations and/or unions may refer a claim by acting as the agent of the applicant, pursuant to the provisions outlined in s 31(1)(b) of the Industrial Relations Act 1979. Where the organisation (employer organisation or union) is acting as an agent, applications may be signed by the agent on the applicant’s behalf. Warrant(s) signed by the applicant(s) will need to be filed using Form 11 – Notification of Representative Commencing or Ceasing to Act. For more information about unions and registered organisations check their page here.

The issue of whether a union and/or employer organisation or representative can be identified as a party under s 74(2) of the Mines Safety Inspection Act 1994 has been considered by the Full Bench in: Thiess Pty Ltd and Others v The Automotive, Food, Metals, Engineering, Printing & Kindred Union of Workers – Western Australian Branch & Others (2006).

The forms to be used in proceedings before the Tribunal can be found in our Applications and forms page.

The Tribunal is located at the Western Australian Industrial Relations Commission, Level 17, 111 St Georges Terrace, Perth, WA 6000. For more information see the Contact us page. 

The Tribunal may also hear matters, subject to the availability of the parties, in country towns and regional locations.

The Commission is committed to ensuring its information, facilities and services are accessible to all members of the Western Australian community. For more information on accessibility, please visit our Access and inclusion page.

If you no longer wish to pursue your application, you should discontinue your claim by filing a Form 1A – Multipurpose Form.

It highly depends on each individual case and is not fixed. There will be many factors which will affect the length of the process, including whether the application proceeds to hearing, whether any interlocutory hearings are necessary and the complexity of the matter.

Parties may be represented by another person or they may represent themselves. Parties can be represented by an industrial agent, union or employer association, lawyer, or a relative or friend. Except where the representative is a lawyer, the party being represented must file a Form 11 – Notification of Representative Commencing or Ceasing to Act to confirm that another person is representing them.

There are generally no costs associated with your application unless you purchase transcript of the proceedings or summon a witness for hearing. Each party pays their own costs in relation to preparation of their case. This includes legal costs if you decide to engage a lawyer or paid agent to represent you.

A party has similar rights of appeal to parties dissatisfied with a decision of the Commission and may appeal to the Full Bench of the Western Australian Industrial Relations Commission. For more information, see Appeals to the Full Bench.

Yes. By request, the Tribunal may consider whether to grant an individual or organisation leave to intervene pursuant to the provisions of s 27(1)(k) of the Industrial Relations Act 1979.

No. The only health and safety claims able to be referred to the Tribunal are specified under the three laws that apply.
Please refer to the following Schedules:
Schedule 1 - Occupational Safety and Health Act 1984
Schedule 2 - Mines Safety and Inspection Act 1994
Schedule 3 - Petroleum (Submerged Lands) Act 1982