IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

SITTING AS

THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL

PARTIES ANTHONY & SONS PTY LTD T/A OCEANIC CRUISES

APPLICANT

-v-

Worksafe Western Australia Commissioner

RESPONDENT

CORAM Commissioner S M Mayman

HEARD Thursday, 27 July 2006, Wednesday, 23 August 2006, Tuesday, 8 August 2006, Tuesday, 1 August 2006, Tuesday, 15 August 2006

DELIVERED Friday, 27 October 2006

FILE NO. OSHT 4 OF 2006

CITATION NO. 2006 WAIRC 05671

CatchWords Section 51A Further Review of WorkSafe Commissioner’s decision - modifications to the design of a crane in breach of regulation 4.39 of the Occupational Safety and Health Regulations 1996 - Marine industry - Improvement Notice affirmed with modification - Occupational Safety and Health Act 1984

Result Improvement Notice Affirmed with Modification

Representation 

Applicant Captain P. Douglas

Respondent Mr R. Vines (of counsel)

Reasons for Decision

1          On 11 July 2006 Anthony & Sons Pty Ltd trading as Oceanic Cruises (“the employer”) filed an application under the Occupational Safety and Health Act 1984 (“the Act”) seeking a s 51A review of the decision of the WorkSafe Western Australia Commissioner (“the WorkSafe Commissioner”) relating to Improvement Notice 70015052 (“the notice”) before the Occupational Safety and Health Tribunal (“the Tribunal”).  The application by the employer to the Tribunal sought to cancel the operation of the notice.  The WorkSafe Commissioner sought to affirm the decision she had made in reviewing the notice. 

2          In November 2005 the MV Sea Cat was berthed at Rottnest Island, loading passengers’ luggage prior to its journey back to Fremantle. 

3          The vessel has a Hiab crane mounted at the rear of the upper deck.  The crane is used to load/unload crates of luggage from the vessel.  In the course of loading one of the crates, the crane and part of the deck of the vessel were dislodged.  Since that incident the WorkSafe Commissioner has undertaken an investigation, in the course of which, three improvement notices have been issued, the most recent on 2 June 2006.

4          Following the crane incident on the MV Sea Cat in November 2005 the crane was removed from the vessel and modified before being replaced on the deck and put back into service.

Background

5          The original notice, to which this further review relates, was issued by Mr Stuart Hawthorn a senior inspector with the WorkSafe Commissioner, on 2 June 2006.  The notice related to modifications that had been made to the crane following the incident in November 2005:

“Occupational Safety and Health Act 1984 (Section 48)

IMPROVEMENT NOTICE

 70015052

Anthony and Sons Pty Ltd

T/A Oceanic Cruises

PO Box 6849  PERTH  BC 6849

1. In relation to: A Hiab crane Model 045 located on the rear deck of the MV Sea Cat

at JETTY ROTTNEST ISLAND 6161 on 02 Jun 2006.

I have formed the opinion that you are contravening regulation 4.39 of the Occupational Safety and Health Regulations 1996 and the grounds for my opinion are: The design of the Hiab crane located on the rear deck of the vessel Sea Cat has been modified in that the base of the crane has been modified and welding has been carried out on the boom structure of the crane.  Adequate assessment does not appear to have been carried out to assess the continued safety of the crane.

You are required to remedy the above by no later than 16 Jun 2006 at 1800 hours.

2. You are directed to take the following measures: Regulation 4.39 as attached to this Notice and the provisions of Regulation 4.39(a)(b) an (sic) (c) must be complied with.  In particular the design limits of the modified crane must be establish (sic) by the manufacturer or a competent person.  Welding procedures carried out on the structure of the crane must be approved by the crane manufacturer or a competent person.

Received by Ms Liz Calabrese Date 02/06/2006

Signature of recipient (signed)

Workplace contact name

Inspector HAWTHORN STUART”

6          Following the issuance of the notice by the senior inspector, the employer sought a review of the notice by the WorkSafe Commissioner under s 51 of the Act.  Following her review the WorkSafe Commissioner advised the employer of her decision affirming the content of notice with some modification to the operative date.  The WorkSafe Commissioner’s decision was forwarded to the employer by way of correspondence:

“Captain Peter Douglas

Comp-Pete Marine Consultants

Unit 10, Kings Park Road

WEST PERTH    WA   6005

Fax:  9322 2088

Dear Captain Douglas

REVIEW OF IMPROVEMENT NOTICE NO. 70015052

In response to your request of 12 June 2006, the above improvement notice has been reviewed and in accordance with Section 51 of the Occupational Safety and Health Act 1984. 

Your letter refers to correspondence dated 19 May 2006 and a facsimile dated 10 June 2006, relating to a previous improvement notice, no 70013622, for which you have returned a compliance slip.  As you have sought a review of improvement notice no 70015052, I have considered the matters relevant to that notice.  That is, I have considered matters relating to the Hiab crane located at the rear deck of the MV Sea Cat and the requirements under Regulation 4.39 of the Occupational Safety and Health Regulations 1996.

Regulation 4.39 requires that:

 “if, the design of existing plant at a workplace is altered then a person who, at the workplace is an employer, the main contractor, a self-employed person, a person having control of the workplace or a person having control of access to the workplace must ensure that –

(a)            the design alteration is assessed for any risk of injury or harm occurring as if it were an original design;

(b)           the alteration to the plant is done by a competent person; and

(c)            before the plant is returned to service, it is inspected and tested by a competent person having regard to the design specifications for the design alteration”.

 Senior Inspector Hawthorn’s investigations have found that the Hiab crane has been substantially altered in that the original foundation beams have been removed, the front portion of the cast steel base of the crane has been machined away and a manual jib has been installed on the crane, which increases the working radius of the crane.

 You have not provided any information that demonstrates that the design alteration has been assessed for risk of injury or harm, that the alterations were done by a competent person or that, before it was returned to service, that it was inspected and tested by a competent person, as required by Regulation 4.39.  Inspector Hawthorn made substantial enquiries into this matter and he was referred to Saraceni Engineering Group Pty Ltd.  I am informed that they had conducted a test, which indicated that the grade of material used in the foundation bolts was adequate for the safe working load.  While the engineer’s calculations prove the integrity of the foundation bolts, I am informed the calculations did not address the matter of:

(a)          the integrity of the cast base;

(b)          the integrity of the jib extension piece;

(c)          the adequacy of the deck foundation;

(d)          the method of installing the foundation bolts; and

(e)          the welding procedures used to reattach the lugs to a section of the jib.

 As the crane has been substantially modified, it is my view that a full engineering assessment should have been obtained to provide detailed information on the safety of the structure of the crane as a whole, including the points outlined above.  The abovementioned enquiries by Inspector Hawthorn failed to find any evidence of this having been done. 

 The notice has been issued in relation to a requirement to obtain adequate safety assessments to meet the requirements under Regulation 4.39.  In meeting these, as the notice directions identify, the design limits of the modified crane must be established by the manufacturer or a competent person and the welding procedures carried out on the structure of the crane must be approved by the crane manufacturer or a competent person.

 Having considered your submission and the circumstances in which the notice was issued, I have decided to affirm the content of the notice.  As the notice has been suspended while under review, I am prepared to grant you further time in which to comply and agree to modify the date to 10 August 2006. 

 For the information of your employees, you are directed to display a copy of this letter and the notice it modifies in a prominent place at any workplace affected by the notice. 

 Yours sincerely

 Nina Lyhne

 WorkSafe Western Australia Commissioner

 7 July 2006

 CC: Mr Tony Di Latte, Oceanic Cruises, Fax 9325 1181”

7          The employer and the WorkSafe Commissioner submitted a statement of agreed facts at the commencement of proceedings:

“1. Anthony & Sons Pty Ltd (“the Applicant”) owns a marine vessel known as the MV Seacat – (“the Vessel”);

2. A Hiab Crane (“the Crane”) is mounted on the upper deck at the rear of the Vessel;

3. WorkSafe Inspector Hawthorn issued Improvement Notice number 70015052 on 2 June 2006 in connection with modifications made to the Crane;

4. The deck of the Vessel where the Crane has been mounted has been modified to accommodate the mounting and installation of Crane;

5. The Applicant fitted a jib extension to the Crane;

6. The Applicant is the employer of people who work on the Vessel.

(signed) P. Douglas (signed) R. Vines

Name:  Name:  R. Vines

On behalf of the  On behalf of the

Applicant Respondent”

8          In the course of proceedings the WorkSafe Commissioner made application to the Tribunal for an order that the employer pay the WorkSafe Commissioner’s total expenses in obtaining the services of Mr Simms as an expert witness.  The employer opposed the application.

Employer’s Submissions and Evidence

9          The employer called evidence from Mr Simon Cuthbert, an inspector with the WorkSafe Commissioner.  Mr Cuthbert testified that on one occasion he accompanied Mr Hawthorn to an interview at a workshop in Henderson and acted as an assistant during interview proceedings that formed part of the investigations into the employer’s workplace. 

10       During cross-examination Mr Stuart Hawthorn testified that it had been difficult to assess the weight of the crate at the time that the crane had fallen.  Mr Hawthorn testified the contents of the crate had fallen in the water and people who were able to retrieve their luggage had done so.  To then assess what the weight of the crate was at the time the crane actually fell was almost impossible.  In cross-examination Mr Hawthorn testified that it was unclear as to what occurred first:

“With my consultation with having the metallurgist’s report, Mr Martin Simms’ assessment, we think that the deck gave way.  It’s a case of which happened first, did the deck break first; did the bolts break first?  It’s very difficult to assess and determine that exactly.”

(Transcript page 19)

11       In cross-examination Mr Hawthorn testified he issued a notice during December 2005 in response to the collapse of the crane on the MV Sea Cat. 

12       The employer submitted that on 24 July 2006, Mr Hawthorn was still demanding an interview with Mr Di Latte in order -

“to provide information in a record of interview pertaining to the matters surrounding the occasion where a crane became detached from the rear upper deck of the Sea Cat whilst the crane was in service on 27th November 2005”.

(Applicant’s written submissions )

13       The employer submitted that three Improvement Notices had been issued between 1 December 2005 and 2 June 2006 and that each Notice was different.  It was the employer’s submission that the first two such notices issued contained the statement that Mr Hawthorn was of the opinion that a contravention of the Act had occurred and that this contravention was likely to continue.  The employer submitted that at the time of issuing the improvement notice in 2005 the crane had been removed from the vessel and was being stripped down in Henderson and it was therefore impossible for Inspector Hawthorn to claim that he could support an opinion that the contravention would continue or be repeated.  At all times the employer claimed the testing by Saraceni Engineering Group Pty Ltd constituted compliance with the notice issued by the WorkSafe Commissioner, particularly as the company had tested a safe working load on the crane to 400kgs:

“SARACENI MEMORANDUM

Engineering Group Pty Ltd

To: Oceanic Cruises

Attention: Tony Dilatte

Copy to:

From: Peter Tomsett

Subject: Boat Crane Safe Working Load Test

Tony,

Further to our performance testing this morning the 22nd of December 2005 we confirm that under the requirements of Australian Standard AS1418.1-2002 that the boat crane has a Safe Working Load = 400kg.

We acknowledge that there is the possibility of increasing this load, but his (sic) would require further testing of the crane at larger loads.

Please do not hesitate to raise any further queries you have.

Regards

SARACENI ENGINEERING GROUP

Peter Tomsett

Project Engineer

B.Eng (Civil/Structural)”

(Exhibit No. Oceanic Cruises 3)

14       The employer submitted that the MV Sea Cat continued to operate from 27 November 2005 virtually without interruption and all luggage was handled by the crew of the vessel.  It was submitted by the employer that the safe working load certificate issued by Saraceni Engineering Group Pty Ltd was never questioned until August 2006.

15       The employer submitted that the assertion by the WorkSafe Commissioner that the employer was “obstructive” and delayed the efforts to finalise the matter is at odds with the known facts:

“(1) That between December 2005 and 14 May 2006 there were no communications from WorkSafe on the matter.

(2) Three interviews were demanded by WorkSafe; one with Mr Gregory Clark, the Chief Engineer and driver of the crane at the time of the incident; another with Mr Peter Boswell, a contractor to Oceanic Cruises Pty Ltd who stripped the crane down immediately after the incident and a third with Mr Giovanno Prospero, a deckhand onboard the MV Sea Cat on the day of the incident.  The first interview (Mr Clark) was conducted in December 2005, the second interview (Mr Boswell) was held on 2 June 2006 and the final one (Mr Prospero) took place on 10 June 2006.”

(Employer’s submissions)

The employer submitted that no evidence was presented from these three witnesses.

16       The employer submitted that evidence had been given by Inspector Hawthorn that he consulted with the Department of Planning and Infrastructure (“DPI”) on the suitability of the structure supporting the crane after it was re-instated on the upper deck of the vessel.  The employer submitted that a surveyor from the DPI did inspect the vessel but he was not called to give evidence nor was his report tendered to the Tribunal.  On the written submission of the employer, it was submitted that this outcome could and should be interpreted by the Tribunal to mean that the DPI were satisfied that the structure supporting the crane was “adequate” for the known task of lifting a maximum load of 400 kgs.

17       It was submitted by the employer that the WorkSafe Commissioner views the notice as a means of continuing the dispute that the matter should have been resolved many months ago.  The employer submitted that no evidence was presented as to how, where, when and by whom the cast base of the crane had been modified.  The employer submitted that it was not stated that the employer had modified the design of the crane at any time during the seven years.  The employer therefore submitted that r 4.39 should not apply.

18       The employer submitted that the referral of this matter to the Tribunal was based solely on what had become a “never ending saga”.  The employer submitted this was a “vendetta” by the WorkSafe Commissioner against the employer and their staff.

19       In the course of the evidence given by Mr Di Latte the Managing Director of the employer he was asked a series of questions by the Tribunal relating specifically to the decision of the WorkSafe Commissioner conveyed to the employer on 7 July 2006 (op cit).  Specifically Mr Di Latte informed the Tribunal with respect to the integrity of the cast base, the integrity of the jib extension piece, the adequacy of the deck foundation, the method of installing the foundation bolts and the welding procedures used to re‑attached the lugs to a section of the jib there were no difficulties with any of those matters being assessed.

“Can you inform the Tribunal, because it’s - - whether you have any difficulties with those matters being assessed?---No. I have - -

You don’t?---I have no problem to - - for any of those to be assessed.

Thank you. I will have that document?---Yeah. I have no problem to assess it - - for anybody to assess that.

You don’t have any difficulty at all?---No.

Thank you. Do you have any difficulty paying for that to be assessed?---Well, when it comes to that point I - - I need to be informed of what consisting of, and who’s doing it or whatever, yeah.

Thank you?---I still like to be informed of that, yeah.”

(Transcript page 145)

20       Evidence was introduced by the employer from Mr Tomsett of Saraceni Engineering Group Pty Ltd.  Mr Tomsett testified that the company had issued the safe working load certificate relating to calculations he had undertaken on behalf of the employer in December 2005.  Mr Tomsett testified these calculations were based on the Australian Standard 1418 and were undertaken to determine the strength of bolts needed to secure the base of the crane to the vessel.  The witness testified the calculations were forwarded to the WorkSafe Commissioner late 2005 or early 2006 and were never queried.  In cross-examination Mr Tomsett testified he was unaware of the type of washer or the manner of tightening of bolts to the deck of the vessel.

WorkSafe Commissioner’s Submissions and Evidence

21       On 2 June 2006, a senior inspector with the WorkSafe Commissioner, Mr Stuart Hawthorn, issued the most recent notice to the employer on modifications made to a Hiab crane mounted on the upper rear deck of the vessel MV Sea Cat owned by the employer.  In the opinion of Mr Hawthorn the crane is an item of “plant” for the purposes of the Act and associated regulations:

 “4.39. Duties of certain persons when design of plant is altered

 Without limiting regulation 4.11, if the design of existing plant at a workplace is altered then a person who, at the workplace is an employer, the main contractor, a self‑employed person, a person having control of the workplace or a person having control of access to the workplace must ensure that — 

 (a) the design alteration is assessed for any risk of injury or harm occurring as if it were an original design;

 (b) the alteration to the plant is done by a competent person; and

 (c) before the plant is returned to service, it is inspected and tested by a competent person having regard to the design specifications for the design alteration.”

(Occupational Safety and Health Regulations 1996)

22       Mr Hawthorn testified there had been modifications to the design of the crane, namely modifications made to the base and welding work carried out to the boom of the crane without adequate assessment of the continued safety of the crane.  Mr Hawthorn testified that he has been working for the WorkSafe Commissioner for approximately 21 years and that his role involved inspection of workplaces, investigation of accidents and incidents. 

23       Mr Hawthorn testified that he began an investigation on the MV Sea Cat in late November, early December 2005 and that he had collected information as time went on.  After reviewing the file towards the end of May 2006, Mr Hawthorn came to the conclusion that there were five areas of concern relating specifically to the crane mounted on the rear deck of the MV Sea Cat.  Mr Hawthorn testified the concerns about the crane modifications that lead to the issuing of the notice.  These concerns were:

1. the deck of the Sea Cat had been modified and Mr Hawthorn was unable to find any calculations or anybody that could say that that was an acceptable repair; 
2. the steel base of the crane had been modified, in that the two beams which form part of a higher crane had been removed and discarded and the cast steel base had been modified in that the front of the base had been machined off flat; 
3. the mechanic or contractor who installed the bolts had confirmed with Mr Hawthorn he carried out a simple installation without regard for the tightening process;
4. the manual extension of the jib appeared to have been manufactured by someone other than Hiab (the original crane manufacturer) and Mr Hawthorn could find no calculations or any detail to substantiate the extension was an acceptable modification; and
5. the lugs had been welded onto the second hydraulic extension and the welding of those lugs, when Mr Hawthorn spoke to the manufacturer, were unacceptable as the process had not involved a proper welding procedure.

Mr Hawthorn testified:

“So based on those five items I wrote the notice against regulation 4.39 because I felt that this crane had not been - - did not comply with that in that no engineering assessments have been done.  I would also add that they also talk about a competent person having to inspect and carry out testing and I didn’t feel that the testing that had been done had been done acceptably.”

(Transcript page 13)

24       Mr Hawthorn testified that he had a witness statement from the contractor who installed the holding down bolts and Mr Hawthorn had found that the contractor:

“had just tightened the bolts up.  He hadn’t pre-stressed them, and there was no real engineering consideration about installing those bolts.” 

(Transcript page 14)

Mr Hawthorn testified that the same contractor also did the welding himself.  Mr Hawthorn gave evidence that he asked the contractor:

“what instruction he had taken in terms of engineering welding had been done and he said he - - all he had done is just welded it up.  I asked him what his qualifications were and he said he didn’t have any - - he used to be a coded welder, but that was many years ago, and he had no specific qualifications for welding.”

(Transcript page 14)

25       Mr Hawthorn testified that he had spoken to Mr John Sands, a salesman for WA Truck Machinery selling Hiab cranes, who had looked at the jib extension and had stated that it was not manufactured by Hiab. Mr Hawthorn then issued the notice to the respondent.  Mr Hawthorn gave evidence that he had consulted Mr Martin Simms, a chartered consulting engineer.

26       Mr Simms, a chartered consulting engineer was called by the WorkSafe Commissioner to give evidence in relation to the test that had been carried out by Saraceni Engineering Group Pty Ltd.  Mr Simms testified that:

“The purpose of a performance test is purely a functional test of a crane.  The code – - and - - and Mr Tomsett did imply that the code almost gives you that as an alternative, when in fact that’s not correct.  The code simply requires that you do the performance test in addition to the other things.  Specifically, the code requires that you design the structure of the crane in accordance with one of two structural standards for - - for designs of - - for design of mechanical structures.  It – a test in no way exonerates you from doing that first step.  The test is nothing more than a functional test to show that the crane does, in fact, work.

So, in view of the modifications which you know have been carried out to this crane, where does that leave, in your mind, the assertion in this memorandum that the crane complies, or under the requirements of AS1418.1 that the crane has a safe working load of 400 kilograms?--Based on the evidence that Mr Tomsett gave, and my understanding of what he was saying, what he was saying was that doing a test and then applying a safety factor –and he wasn’t very specific about where that safety factor actually came from, he - - he indicated it was based on the standard – doesn’t satisfy the requirements of the standard.  It follows that a certificate issued on that basis doesn’t meet the requirements of the standard either.  From an engineering point of view, it - - it’s very dangerous, if you like, to issue a certificate when as an engineer you haven’t checked the structure in accordance with normal principles.”

(Transcript pages 122-123)

27       Mr Lavender, service manager with WA Truck Machinery testified that the modified crane, the subject of the notice, was a Hiab model 045.  Mr Sands a salesman with the same company whose principle task is selling Hiab cranes also testified that this was a Hiab crane that had received significant modifications.

28       The power for a WorkSafe Inspector to issue an Improvement Notice is provided for under s 48 of the Act.  Specifically s 48(2) of the Act provides as follows:

  “(2) An improvement notice shall — 

 (a) state that the inspector is of the opinion that the person — 

 (i) is contravening a provision of this Act; or

 (ii) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated;

 (b) state reasonable grounds for forming that opinion;

 (c) specify the provision of this Act in respect of which that opinion is held;

 (d) specify the time before which the person is required, to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention; and

 (e) contain a brief summary of how the right to have the notice reviewed, given by sections 51 and 51A, may be exercised.”

29       The WorkSafe Commissioner submitted that based on the requirements of s 48(2) in particular the notice specified:

a. That in the opinion of Inspector Hawthorn the employer was contravening r4.39 of the Occupational Safety and Health Regulations 1996 (“the Regulations”): s 48(2)(a)(i) of the Act;

2. That the grounds on which the opinion was based were:

modifications to the design of the crane, namely modifications made to the base of and welding work carried out to, the boom of the crane, without adequate assessment of the continued safety of the crane: s 48(2)(b) of the Act;

c. That the opinion was held in respect of r4.39 of the Regulations: s 48(c) of the Act;

4. That the applicant was required to remedy the contravention by 16 June 2006: s 48(2)(d) of the Act.  This time has since been extended to 10 August 2006 by the WorkSafe Commissioner; and the notice contained a brief summary of the manner in which the appeal/review provisions could be exercised by the employer pursuant to s 51 and s 51A of the Act.

WorkSafe Commissioner – Witness Expenses

30       At the commencement of the second day of hearing into this matter the WorkSafe Commissioner gave notice it intended to seek an order from the Tribunal for expenses, specifically for the provision of expert evidence given by Mr Simms on the implications that each of the alterations to the crane had made to the safe working capacity of the crane on the MV Sea Cat.  The WorkSafe Commissioner submitted that Mr Simms’ evidence before the Tribunal was directly relevant and of importance in providing insight into the implications associated with alterations made to the crane by the employer.  The WorkSafe Commissioner submitted they were put to considerable additional expense by the need to have Mr Simms attend a second day of hearing by the Tribunal. 

31       The respondent sought an order from the Tribunal that the employer pay the WorkSafe Commissioner’s:

- total cost of obtaining the professional services of Mr Simms (an expert witness for the WorkSafe Commissioner) just over $3,000, including his attendance at both hearing days.

In the alternative:

-          The additional expense of Mr Simms attending the second day of hearing, a cost of $1,000.

32       The WorkSafe Commissioner submitted that under s 27(1)(c) of the Industrial Relations Act 1979, the Tribunal has the power to require a party to pay such costs as specified in any order, including expenses of any witness.  The provision does not extend or allow for the payment of any services by a legal practitioner or agent.  

33       The WorkSafe Commissioner submitted there was additional expense given that Mr Simms was required to attend a second day of hearing on 15 August 2006 through the neglect by the employer to indicate to the WorkSafe Commissioner at the directions hearing which witnesses it would call.  The WorkSafe Commissioner submitted that the failure of the employer to call its own engineer from Saraceni Engineering Group Pty Ltd on the first day of the hearing into the matter was indicative of the employer to apply a level of some seriousness to proceedings.  The WorkSafe Commissioner submitted the Tribunal ought take this into consideration when considering whether to exercise its discretion pursuant to s 27(1)(c ).

Employer – Witness Expenses

34       The employer opposed the s 27(1)(c) application by the WorkSafe Commissioner, submitting that three persons gave evidence relating to cranes on behalf of the WorkSafe Commissioner; namely Mr Simms, Mr Lavender and Mr Sands.  The employer submitted that it was strange that the WorkSafe Commissioner was claiming costs only for Mr Simms’ attendance. 

35       The employer submitted that the first time the validity of the Saraceni Engineering Safe Working Load Certificate was questioned by the WorkSafe Commissioner was late on 7 August 2006 (the day before the hearing) which by then was too late for the employer to arrange for an expert from that company to provide evidence at the hearing.  The employer made application at the conclusion of the hearing before the Tribunal on 8 August 2006 to submit further evidence from Mr Tomsett of Saraceni Engineering Group Pty Ltd.  That application was granted by the Tribunal and is a matter that ought be taken into consideration by the Tribunal.

Tribunal Findings – Witness Expenses

36       The Tribunal has considered the submissions of each of the parties on the application by the WorkSafe Commissioner for an order for the professional expenses of Mr Simms attending the Tribunal proceedings as a witness to be paid by the employer. 

37       The authority often followed in proceedings of this nature is that of Denise Brailey v Mendex Pty Ltd t/a Mair and Co Maylands (1992) 73 WAIG 26.  In this decision the Full Bench of the Western Australian Industrial Relations Commission determined that costs are generally not awarded unless there are exceptional circumstances.  The power to order expenses is to be exercised with a good degree of restraint and for an order to issue awarding expenses is generally considered to be rare.  However in the matter before the Tribunal I am not being asked to determine the issue in relation to costs but rather the professional expenses associated with an expert witness attending proceedings.  Whether the WorkSafe Commissioner chooses to bring evidence in defence of the proceedings brought by the employer is a decision only the WorkSafe Commissioner can make.

38       Section 27(1)(c) of the Industrial Relations Act 1979 empowers the Commission and by virtue of s 51 of the Act, the Tribunal to:

“(c) order any party to the matter to pay to any other party such costs and expenses including expenses of witnesses as are specified in the order, but so that no costs shall be allowed for the services of any legal practitioner, or agent;” 

39       The Tribunal, in exercising its discretion, finds in these proceedings there was nothing exceptional or rare which would warrant an order issuing for the expenses of Mr Simms appearing as a witness to be paid by the employer and I find accordingly.  In making this decision under s 27(1)(c) the Tribunal notes that such expenses ought not be awarded except in extreme cases where an applicant or respondent has demonstrated that an application has been frivolously or vexatiously instituted or defended.  In this matter the Tribunal does not consider that the employer has acted frivolously or vexatiously.  The Tribunal finds that the WorkSafe Commissioner’s claim for witness expenses is without merit and in making this decision a factor taken into account has been the Tribunal received no evidence as to Mr Simms’ expenses other than assertions made from the bar table.

Tribunal Findings

40       The Tribunal has considered the views of the employer and the WorkSafe Commissioner as expressed in proceedings and provided by way of written submissions.

41       With the consent of both parties I inspected the workplace and in particular the location and aspects associated with the crane on the MV Sea Cat.  The Tribunal viewed the area in the vicinity of the crane.  Persons employed by the employer demonstrated the use of the crane in normal operations in as much as was possible without the crane’s crates being filled with luggage.  The Tribunal thanks both parties for their assistance and Captain Douglas in particular for permitting the Tribunal to undertake these inspections.

42       The requirement for the Tribunal in matters such as this is to:

 “(5) On a reference under subsection (1) the Tribunal shall inquire into the circumstances relating to the notice and may — 

 (a) affirm the decision of the Commissioner;

 (b) affirm the decision of the Commissioner with such modifications as seem appropriate; or

 (c) revoke the decision of the Commissioner and make such other decision with respect to the notice as seems fit,

 and the notice shall have effect or, as the case may be, cease to have effect accordingly.”

43       The Tribunal has had the benefit of listening to a number of witnesses from the employer and the WorkSafe Commissioner.  Mr Di Latte appeared reluctant at times to deal directly with simple issues, counting against the credibility of his evidence in general.  I do not consider the credibility of any other witness was damaged.  The evidence of Mr Tomsett of Saraceni Engineering Group Pty Ltd was honestly given however his knowledge of the crane on the MV Sea Cat, its history and associated technical issues raised in cross-examination appeared somewhat limited.  The Tribunal is required to put into the evidentiary matrix findings of fact and assessments of credibility.  In this case the Tribunal accepts the evidence of the WorkSafe Commissioner in preference to that of the employer. 

44       The Tribunal finds that the employer had clearly been informed by the WorkSafe Commissioner of concerns regarding the crane on the MV Sea Cat as early as 2005.  There have been substantial claims on the part of the employer on the issue of apparent delay from the issuance of the first notice in December 2005 through to the notice that is currently before the Tribunal.  Whilst that issue is not a matter currently before the Tribunal the time period has been lengthy and the Tribunal finds this has had a direct impact on the employer’s response to the notice currently before the Tribunal.  The Tribunal finds that there has been, in relation to the events leading up to the issuance of the notice (op cit) and the s 51 review by the WorkSafe Commissioner (op cit), a diminution of the relationship between the employer and the WorkSafe Commissioner

45       The Tribunal finds that the s 51 decision of the WorkSafe Commissioner ought be affirmed with modification to the required compliance date yet to be determined. 

46       The Tribunal heard, in the course of proceedings, that the employer consents to the modified sections of the crane located on the upper deck on the MV Sea Cat being assessed for any risk of injury or harm ensuring inspection and testing is undertaken by a competent person.

47       The Tribunal advises of its intention to issue a Minute of Order reflecting these reasons for decision.  Before doing so the Tribunal requires that representatives of the WorkSafe Commissioner and the employer meet to discuss a person or organisation considered competent for carrying out an assessment on the modifications that have been made to the crane on the MV Sea Cat.  The parties will have regard in those discussions to four specific issues:

1. Regulation 4.39 (op cit) and the obligations contained within the provision required of the employer.
2. The definition of competent person from the Occupational Safety and Health Regulations 1996:

  ““competent person”, in relation to the doing of anything, means a person who has acquired through training, qualification or experience, or a combination of those things, the knowledge and skills required to do that thing competently;”:-

3. The specific issues detailed by the WorkSafe Commissioner in her correspondence to the employer of 7 July 2006 (op cit) as being modifications to the crane requiring inspection and testing by a competent person:

1. the integrity of the cast base;
2. the integrity of the jib extension piece;

 c. the adequacy of the deck foundation;

 d. the method of installing the foundation bolts; and

 e. the welding procedures used to reattach the lugs to a section of the jib.

4. The appropriate compliance date having regard for the need to ensure the health and safety of employees in and around the plant and the travelling public particularly given the summer months are approaching. 

48       The parties will have 14 days from the issuance of these reasons for decision to respond in writing to the Tribunal on the outcome of the discussions between the parties.  Thereafter the Tribunal will issue a Minute of Order reflecting its determination having had regard for the views of the employer and the Worksafe Commissioner.