- Created: 25 May 2020
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.
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.
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.
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.
The Tribunal ordered that:
- The improvement notices issued in relation to the 2018 Applications be revoked and the applications to exempt each matter be dismissed;
- 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.
The decision can be read here.