IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

SITTING AS

THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL

PARTIES THE ORIGINAL CROISSANT GOURMET

APPLICANT

-v-

Worksafe Western Australia Commissioner

RESPONDENT

CORAM Commissioner S M Mayman

HEARD Wednesday, 13 June 2007, Thursday, 14 June 2007, Tuesday, 12 June 2007, Friday, 15 June 2007

DELIVERED TUESDAY, 28 AUGUST 2007

FILE NO. OSHT 1 OF 2007

CITATION NO. 2007 WAIRC 01039

CatchWords Occupational Safety and Health Act 1984 - Further Review of WorkSafe Western Australia Commissioner’s Notice - Revocation of WorkSafe Western Australia Commissioner’s Notice - Imminent and Serious - Principles applied - Make such other decision as seems fit s 51(5)(c) - Principles applied

Result WorkSafe Commissioner’s notice revoked – Improvement Notices 302645 and 302646 cancelled – Order issued

Representation 

Applicant Mr T Carmady (of counsel)

Respondent Ms A Crichton-Browne (of counsel)

Reasons for Decision

Introduction

1         On 30 May 2007 the Original Croissant Gourmet Pty Ltd (“the employer”) filed an application pursuant to s 51A of the Occupational Safety and Health Act 1984 (“the Act”) seeking a further review of the WorkSafe Western Australia Commissioner’s (“the WorkSafe Commissioner”) decision of 25 May 2007 relating to Improvement Notice 302645 (exhibit WS1) and Improvement Notice 302646 (exhibit WS2).

2         The employer’s initial application requested the Occupational Safety and Health Tribunal (“the Tribunal”) allow the employer to continue to operate the pressure vessels in the plantroom.  The application indicated the employer was willing to comply with the requirements of the improvement notices.  Inspector Ebert on the day he issued exhibit WS1 and exhibit WS2 had ‘marked’ the pressure vessels in accordance with the provisions of Division 2, reg 2.9 of the Occupational Safety and Health Regulations 1996 (“the Regulations”) prohibiting continued operation of the pressure vessels from the time the pressure vessels were ‘marked’, 17 May 2007, until such time as the inspector authorised such operation:

“2.9. Marking of plant

If an inspector issues an improvement notice or a prohibition notice that relates to any plant at a workplace then the inspector may mark the plant, or any part of it, to indicate that it is not to be used and a person must not — 

(a) use, or cause to be used, any plant, or any part of it, that is marked to indicate that it is not to be used; or

(b) without the authority of an inspector to do so, remove, obliterate, or otherwise interfere with the mark.

…”

3         The employer’s application was amended during proceedings.  The amendment sought a revocation of the WorkSafe Commissioner’s notice (exhibit WS3) and re-issuance of exhibit WS2 with an extension of time for compliance.  The employer retained its request for the ‘marking’ of the pressure vessels prohibiting continued operation to be lifted.

4         The WorkSafe Commissioner at the outset of proceedings sought to have the Tribunal affirm her s 51 notice of 25 May 2007 (exhibit WS3) with the compliance date relating to exhibit WS1 amended to Monday, 18 June 2007 and the compliance date for exhibit WS2 remaining unchanged, that being 10 August 2007. 

5         The adjournment hearing was listed for hearing on 12 June 2007 and the Tribunal conducted inspections of the workplace on that same day.  The preliminary issue of whether the Tribunal could conduct a further review of the ‘mark’ as placed on the pressure vessels by the WorkSafe Inspector was listed for hearing on 13 June 2007.  The substantive matter as referred was listed for hearing on 13 and 14 June 2007.  On 15 June 2007 the Tribunal handed down a Minute of Proposed Order and adjourned proceedings to allow the parties to consider the terms of that order.  A speaking to the minutes was held a short while after, the parties being advised that reasons for the decision would issue later.

6         These are those reasons.

Background

7         The employer is engaged in the baking industry producing a range of products which are distributed across Australia.  The employer’s operations are continuous, 24 hours per day, 7 days per week.  Some 50 employees are engaged at the site in Hamwell Way, Bassendean.  New pressure vessels were recently installed by the employer in the plantroom driving the cool rooms associated with the production process.  The improvement notices issued by Inspector Ebert (exhibit WS1 and exhibit WS2) referred to those pressure vessels.  The pressure vessels the subject of the improvement notices comprise 80% of pressure vessels operated by the employer on the site.

8         The WorkSafe Commissioner’s decision of 25 May 2007 (exhibit WS3), to which this s 51A review relates, concerns the issuance of two improvement notices. Improvement Notice 302645 (exhibit WS1) required the employer to remedy the requirements of the notice by 1 June 2007 and Improvement Notice 302646 (exhibit WS2) required the employer to remedy the requirements of the notice by 25 May 2007.  Exhibit WS1 and exhibit WS2 were issued by Inspector Ebert to the employer on 17 May 2007.  Inspector Ebert is a senior inspector experienced in plant with The Department of Employment and Consumer Protection – WorkSafe (“WorkSafe”). 

9         The improvement notices issued to the employer read as follows:

“Improvement Notice 302645

Issued to:  The Original Croissant Gourmet P/L

 10 Hanwell Way

 Bassendean

1. In relation to:

  Pressure vessels Chinese built ammonia plant

at:  above on 17-05-07

I have formed the opinion that you are contravening / have contravened regulation 4.43(1) of the Occupational Safety and Health Regulations 1996 and the grounds for my opinion are:

 I have formed the opinion that the above place is a workplace and that the above units are not setup as required by AS3873 in that the safety valves are separated from the vessels by stop valves and that the safety valves are not vented to outside of building.  This may lead to a very hazardous situation for employees with an accidental release of ammonia gas.

You are required to remedy the above by no later than 01/06/07 at 16:30 hours.

2. You are directed to take the following measures:

 1. Vent the safety valves of the above vessels to the outside of the building and to an area where no one can be adversely affected by the release of ammonia gas

 2. Ensure that there are no stop valves that can isolate the safety valves from the above vessels.”

(exhibit WS1)

10      The second improvement notice issued by Inspector Ebert to the employer advised:

“Improvement Notice 302646

Issued to:  The Original Croissant Gourmet P/L

 10 Hanwell Way

 Bassendean

1. In relation to:

  Chinese built ammonia pressure vessels

at:  above on 17-05-07

I have formed the opinion that you are contravening, have contravened Regulation 4.14(1) of the Occupational Safety and Health Regulations 1996 and the grounds for my opinion are:

I have formed the opinion that the above place is a workplace and that you have the above plant in use in contravention of the above regulation in that the plant is not registered as required by the Commissioner or any other regulatory authority.

You are required to remedy the above by no later than 25/05/07 at 16:30 hours.

2. You are directed to take the following measures:

The above plant is to be appropriately assessed and registered as required before further use.”

(exhibit WS2)

11      The employer then sought a review of each of the improvement notices pursuant to s 51 of the Act.  Following the WorkSafe Commissioner’s s 51 review she wrote, advising the employer of the outcome:

“Mr Roy Woolley

General Manager

The Original Croissant Gourmet Pty Ltd

10 Hanwell Way 

Bassendean  WA  6054

Our reference:  WS1658/2007/1

Dear Mr Woolley

REVIEW OF IMPROVEMENT NOTICES NOS. 302645 & 302646

In response to your request of 21 May 2007, the above improvement notices have been reviewed in accordance with Section 51 of the Occupational Safety and Health Act 1984.

Improvement notice no. 302645

Having considered your submission and the circumstances in which the above notice was issued, I have decided to affirm the content of the notice and agree to modify the date for compliance for the above notice to 5.00pm on 10 August 2007.

I would like to note the seriousness of issues relating to the notice.  I am informed the safety valves of the pressure vessels have not been setup according to Australian Standard AS 3873.  They are required to be set up according to this standard by law.  This standard establishes safety standards and, because the pressure vessels do not comply, it cannot be guaranteed that they are safe.  The risks from failure of the pressure vessels are extreme because ammonia is a highly hazardous substance.

Improvement notice no. 302646

Having considered your submission and the circumstances in which the above notice was issued, I have decided to affirm the content of the notice, I agree to modify the date for compliance for the above notice to 5.00pm on 10 August 2007.

Pressure vessels cannot be used

Please note that the pressure vessels cannot be used because they have been marked as ‘do not use’, under regulation 2.9.  They can be used once Inspector Ebert has been informed of compliance with the notices and verified this.

Display of notices

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

25 May 2007”

(exhibit WS3)

Preliminary Issues

Application for Adjournment

12      The Tribunal listed the substantive matter for hearing on 12 June 2007.  On 11 June 2007 counsel for the employer sought an adjournment of the hearing for 14 days to allow sufficient time for expert engineering evidence to be obtained.  Initially the Tribunal was advised the WorkSafe Commissioner consented to the adjournment, consent that was subsequently withdrawn at the commencement of proceedings.  The application was listed for hearing as a preliminary matter on 12 June 2007.  A decision as to whether a matter ought to be adjourned is within the discretion of the Tribunal.  Whether the refusal of an adjournment would result in a serious injustice to one party an adjournment should be granted unless in turn this would mean serious injustice to the other party, Myers v Myers (1969) WAR 19.  I will not repeat the grounds set out in the employer’s application for adjournment as they are a matter of record before the Tribunal, as is the WorkSafe Commissioner’s opposition to the adjournment.

13      In assessing whether the refusal of an application to grant an adjournment would create a serious injustice to the employer I carefully considered the employer and the WorkSafe Commissioners’ submissions including the evidence of Inspector Ebert of WorkSafe who testified there was a significant risk to persons working in and around the pressure vessels at the employer’s premises. 

14      The Tribunal has taken into account the employer’s view that full and proper evidence ought be available to allow for the proper defence of the claim.  The fact that the employer did not file the application for adjournment until some 24 hours prior to the scheduled hearing of the substantive matter has not gone unnoticed.  Matters which come before this Tribunal are required to be dealt with promptly and the Tribunal has had particular regard for s 51A(4) of the Act:

“(4) The Tribunal shall act as quickly as practicable in determining a matter referred under this section.”

15      The Tribunal found that to support the application for an adjournment of 14 days would mean a serious injustice to the WorkSafe Commissioner given the pressure vessels the subject of the improvement notices remained in continuous operation at the employer’s site.  The application for adjournment for this period was refused.  The Tribunal was willing to support an adjournment for a 24 hour period through to Wednesday, 13 June 2007 at 2:15pm.  The parties were advised I did not intend to issue a formal order reflecting this preliminary decision unless requested by the parties and my reasons would issue later.  No request for a formal order was received.

16      In the interim, the parties were invited by the Tribunal to participate in workplace inspections at the employer’s premises together with the Tribunal on the afternoon of Tuesday, 12 June 2007.  With the consent of both parties I inspected the workplace, the plantroom containing the pressure vessels and discussed the manner in which the work was carried out in and around the area.  The Tribunal extends to both parties its thanks for their assistance at such short notice.

Jurisdiction of Tribunal to further review ‘marked’ plant

17      The second preliminary issue raised during the adjournment proceedings related to Division 2, reg 2.9 of the Regulations and whether the Tribunal was able to review the continued operation of the ‘marked’ pressure vessels on site.

18      It became apparent to the Tribunal and indeed to the WorkSafe Commissioner during adjournment proceedings that the pressure vessels at the employer’s premises were continuing to operate even though there was in place a ‘mark’ prohibiting the use of that plant.  The relevant regulation under consideration was reg 2.9.  The WorkSafe Commissioner had been of the view up until the day the Tribunal hearings commenced that the pressure vessels had ceased to operate from the day Inspector Ebert served the improvement notices.

19      The employer submitted that the s 51A referral, in particular s 51A(7), had suspended the operation of the improvement notices and in so doing voided the operation of any ‘mark’ placed on the plant.  Improvement notices were a necessary qualification pursuant to reg 2.9 to allow for the ‘marking’ of any plant.  The employer submitted the provision allowing an inspector to ‘mark’ the plant was ancillary to the statutory power contained in the Act.

20      The Tribunal intends to deal with this second preliminary issue in the course of its reasons for decision on the substantive matter.

Amendment of application

21      The Tribunal raised with the employer and the WorkSafe Commissioner the status of the current application before the Tribunal in that the employer had sought to refer the improvement notices at first instance and not the notice of the WorkSafe Commissioner issued on 25 May 2007.  The Tribunal with the consent of both parties and exercising the powers of s 27(1)(m) of the Industrial Relations Act 1979 amended the application to reflect that the issue before the Tribunal was the WorkSafe Commissioner’s notice in respect of exhibit WS1 and exhibit WS2.

Employer’s Evidence and Submissions

22      The employer submitted that the WorkSafe Commissioner’s decision of 25 May 2007, exhibit WS3, ought be revoked with respect to exhibit WS1 and the ‘mark’ as imposed by the WorkSafe Commissioner pursuant to reg 2.9 removed.  The employer submitted that the Tribunal had power to undertake such an exercise by both revoking the decision and excising the ‘mark’ or alternatively, affirming the decision of the WorkSafe Commissioner with respect to exhibit WS1 with a modification, that being that the ‘mark’ be excised.  The employer submitted the plant be allowed to operate until the proposed works for Saturday, 16 June 2007 would commence a partial shut down to undertake work on the plant until Monday when the venting would be complete and normal operations for the purpose of the pressure vessels could be recommenced.

23      The employer conceded with respect exhibit WS2, that the plant was unregistered.  At the outset of the hearing counsel for the employer submitted a scope of works that related to exhibit WS1 together with a timetable (exhibit C1).  The employer submitted the proposal covered some of the matters raised by the WorkSafe Commissioner in her notice of 25 May 2007 including a procedure to remove the stop valves at the safety relief inlet and vent the safety valves to the atmosphere ensuring compliance with the relevant Australian Standard.  The employer submitted the task would be completed by Monday, 18 June 2007.  On the basis of this submission the employer made application to the Tribunal that, subject to a WorkSafe inspector being satisfied with the works, then a further review by the Tribunal of all matters relating to exhibit WS1 ought be adjourned until Tuesday, 19 June 2007.

24      It was conceded by the employer that there had been a breach of the relevant regulations relating to the registration of an individual item of plant and the design of a plant.  The employer submitted activities had been undertaken on the site in the previous 24 hours to limit the movement of persons in and around the area where the unregistered pressure vessels were located.  This included instructions to employees not to use or enter the plant room and signs placed on the relevant doors.  A temporary wash station had been placed in an alternative location to ensure that proper standards of cleanliness were maintained on the site.  The employer submitted these steps had been taken to ensure the plant room was not used as a thoroughfare.

25      Counsel for the employer submitted that all remedial work in place at the site was happening in a timely fashion and steps had been taken to ensure the health and safety of persons on site was protected until the work was completed.  Counsel for the employer submitted there would be limitations to the overall operation of the plant if the pressure vessels in question were prohibited from operating.  It was submitted that 85% of the plant’s capacity would be removed and while the plant was undergoing registration the ‘marks’ currently in place ought be lifted to enable the continued operation of the plant.  The employer submitted that if the process of registration, which could take up to three or four months, was undertaken with a prohibition on the operation of the pressure vessels then that prohibition would have a potentially catastrophic impact on the employer’s business, in the order of $70,000 a day.  It was important that the Tribunal took into consideration the staff that would be directly affected over a short period and if there was a long term closedown there were up to 50 staff who may lose their jobs.

26      The employer called evidence from Mr Beer an engineer with a Bachelor of Engineering from the University of Western Australia.  Mr Beer testified that he had graduated in 1970 and had practised engineering continuously since then.  The witness testified he was authorised as a “competent person” by WorkSafe Western Australia in the design verification process of pressure vessels and boilers.  Mr Beer testified he was familiar with the registration process set out under the Regulations.  Mr Beer testified there were five pressure vessels on the site under consideration, a sub-cooler, oil chiller, oil separator, LP cycle receiver and ammonia receiver.  Mr Beer testified he had been contracted by the employer to verify the mechanical design of pressure parts and supports welded to the pressure vessels and to ensure their design was in accordance with AS 1210.  Mr Beer testified that once he was satisfied that design was in compliance with the relevant standard then the design parameters would be submitted for approval by WorkSafe or registration by WorkSafe.  Mr Beer testified he was aware of the improvement notice on the non-registration of the pressure vessels.  Mr Beer testified that the isolation valves were of concern:

“... It is an absolute taboo to place an isolation valve between the source of the pressure, a pressure vessel, and the relieving device because it effects … if the isolation valve is closed, the relieving device is useless and that level of protection is … is discarded or non-operative.”

(Transcript page 47)

Mr Beer testified the arrangement that currently existed at the plant in relation to the isolation valves between the vessels and pressure relief valves ought to be removed as quickly as possible.  Mr Beer testified his role on the engineering process was principally design, a process that the witness expected would take at least a month from the date of the hearings before the Tribunal.  Mr Beer testified that it was very rare to see newly installed pressure vessels in operation without the registration process having been completed.  Mr Beer testified there was another area of the pressure vessels that gave him concern on the work completed to date relating to the body flanges on the oil chillers.  Mr Beer said of this concern:

“… on the oil chiller is a body flange and that flange, the bolts on that flange … well, a body flange is where you …sorry, I’ll describe a flange. It’s a ring of steel that’s welded around a shell and bolts go through it and it connects two parts of a shell together. So if there weren’t bolts, the parts would separate because of the pressure that’s inside the shells that connect to what we call the flange.

… The bolting area is about 50 per cent of what it should be for the design pressure of 2 megapascals.

… the design … it’s the strength of the equipment to withstand pressure.”

(Transcript pp 54-6)

27      Mr Bernhardi gave evidence for the employer.  Mr Bernhardi testified he contracts to the employer having worked in various industries including the baking industry for the last 30 years.  Mr Bernhardi testified the employer was committed to complete or remedy the matters raised in exhibit WS1 by Monday, 18 June 2007.  In the interim chains and padlocks would be placed on each of the valves in an open position to ensure those same valves could not be inadvertently closed.  Mr Bernhardi testified that the manufacturer had, in his view, made an error when it placed the test pressure number on the pressure vessel indicating 0.65 megapascals.  Mr Bernhardi testified the error may have occurred in the conversion between Chinese and English given the pressure vessel had been imported from China.  Mr Bernhardi testified that the employer would be willing to do anything necessary to keep the system operating including reducing the operating pressures on the vessels.

28      Mr Bernhardi conceded the pressure vessels under consideration were not registered with WorkSafe and that the vessels themselves had been delivered towards the end of November 2006, installed and operational on and by 14 January 2007.  Mr Bernhardi testified that whilst he had become aware during the proceedings there was a lack of bolting in the sub-cooler body flange no action had been taken by the employer to remedy that concern.

29      The employer submitted in relation to exhibit WS2 the notice referred to the whole registration process and that only the precursory steps of design approval were now underway.  The overall process would take some six weeks to complete, during which time if the ‘mark’ continued to remain in place there would be serious economic consequences:

“Now, the evidence is that the closure of the plant for that sort of period will be catastrophic.  It may well lead to the closure of the plant because it will lose approximately 400 odd thousand dollars a week in turnover and there will also be claims for broken customer contracts and there’s also a significant impact in terms of ongoing employment of up to 50 people.  Now a closure for that sort of period, there’s just … is not something that the applicant may well be able to withstand.  Now, that’s, we say, a very relevant factor in considering and weighing up what decision should be made here given that counter-balanced against that, and we say quite reasonably, has to be weighed up against the evidence of the safety hazard that’s posed.”

(Transcript page 124)

30      The employer submitted it was relevant for the Tribunal to consider the plant had been operating for six months without issue and that steps were going to be taken to ensure that the pressures within the vessels were reduced and maintained at a lower level.  The employer conceded that the evidence of Mr Beer identified there was one safety issue relating to the design of the plant and therefore there was no real risk of a safety hazard being posed by the pressure vessels.  The employer submitted that in such circumstances, there being no real risk of a safety hazard, balanced against the financial consequences for the employer if the plant is closed, such balance ought allow the employer to continue to operate the pressure vessels in the plantroom.  On that basis the employer submitted equity, good conscience and the substantial merits of the case ought prevail.

Employer’s legal submissions raised in relation to the second preliminary issue

31      The employer submitted that reg 2.9 deals with the ‘marking’ of the plant and it was the first words of that particular regulation that distinguish it from other decision-making provisions within the regulations.  The employer submitted the ability to ‘mark’ the plant is dependent upon the issuance of an improvement or prohibition notice and such decision is ancillary to or a subsidiary part of the overall decision-making process to issue notices.  Counsel for the employer submitted that the decision to ‘mark’ the plant could not be separated from the decision to issue the notice.  The employer submitted the question for the Tribunal to consider is whether s 51A contains the ability to review or in any way make orders that affect the ongoing operation of the ‘mark’.  The employer submitted that under s 51A such a power exists principally pursuant to s 51A(5) whereby the Tribunal is entitled to inquire into the circumstances relating to the notice.  Counsel for the employer submitted that one of the circumstances relating to exhibit WS1 and exhibit WS2 was the issue of the ‘mark’ in that the discretion to be exercised by the inspector can only be exercised once an improvement notice had issued.  The employer submitted it was part of the same Act.

32      The employer referred to s 18 of the Interpretation Act 1984 submitting that a purpose in the construction of statutes is to construe them in a way which is consistent and furthermore where there is more than one construction open it is to be the construction that favours the objects of the Act which ought be preferred:

“18. Purpose or object of written law, use of in interpretation

 In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.”

33      The employer submitted to give practical effect to reg 2.9 the Tribunal ought construe it against the plain meaning of the words.  The employer submitted that prepositional phrases such as “in relation to”, “relating to”, “related to” and “with respect to” are generally regarded as having the same meaning but are in effect used interchangeably.  Referring to the decision of His Honour Justice McHugh in O’Grady v Northern Queensland Company Limited, (1990) 92 ALR 213 at 228:

 “The prepositional phrase “in relation to” is indefinite.  But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.”

34      The employer submitted the authority outlined principles suggesting that the Tribunal had a very broad power at large in relation to the decision to be made extending to powers to order that the ‘mark’ be removed.  The employer submitted that the regulations need to be read in light of the purposes of the Act and in particular s 5 of the Act which deals with the objects.  In this case there are various matters set out but relevantly s 5(f) provides:

“(f) to provide for formulation of policies and for the coordination of the administration of laws relating to occupational safety and health;”

35      The employer submitted that notwithstanding an improvement notice as regulated and subject to a further review before the Tribunal pursuant to s 51A, a decision of an inspector to ‘mark’ plant which is predicated on the issuance of an improvement notice has a completely different path of review leading to the unusual circumstance where you could have the Tribunal determining that an improvement notice was without any basis and a Safety and Health Magistrate determining that a reg 2.9 notice was effective, a result that does not accord with common sense.  The employer submitted the Tribunal has the power to order the removal of the ‘mark’.

WorkSafe Commissioner’s Evidence and Submissions

36      Counsel for the WorkSafe Commissioner submitted the improvement notices issued on 17 May 2007 (exhibit WS2) related to regs 4.14 and 4.13.  The WorkSafe Commissioner submitted an aspect of the regulations requires a design registration of plant identified in schedules 4.1 and 4.2 of the Regulations.  Exhibit WS2 refers specifically to reg 4.14.  The WorkSafe Commissioner submitted the Act specifies for an inspector to be able to write an improvement notice he/she must have reasonable grounds for forming the opinion that the Act or Regulations were being contravened.  The WorkSafe Commissioner submitted the employer had at no stage presented any information in these proceedings to indicate that the registration process of the pressure vessels on the employer’s premises was under way with the exception of the employment of Mr Beer to consider the design of the plant. The WorkSafe Commissioner submitted the employer was a long way from actually registering the plant.

37      The WorkSafe Commissioner submitted that the second improvement notice (exhibit WS1) was written and issued by the Inspector on the basis of a contravention of reg 4.43.

38      Counsel for the WorkSafe Commissioner submitted that at the same time as the improvement notices relating to exhibit WS1 and exhibit WS2 were issued the pressure vessels were ‘marked’ in accordance with reg 2.9, a ‘mark’ having the effect of prohibiting the plant from operating.  Counsel for the WorkSafe Commissioner indicated that a prohibition against the machinery continuing to operate could have been reached without a ‘mark’ if the inspector had issued a prohibition notice however s 49 of the Act required there be a “serious and imminent risk”.

39      Counsel for the WorkSafe Commissioner submitted that it was her understanding up until 12 June 2007 the pressure vessels had, since 17 May 2007, ceased to operate.

40      Inspector Ebert gave evidence.  Inspector Ebert testified that he was the author of the notices having been made aware of an issue at the site relating to pressure vessels on 17 May 2007.  Inspector Ebert testified the plant had been built by manufacturers in China and the safety valves did not comply with the Regulations in that the stop valves separated the vessels from the safety valves.  Inspector Ebert testified that the valves were not vented outside of the building and the plant was unregistered.  On the basis of these omissions Inspector Ebert testified that he had little or no idea of how safe the plant was:

“And when I looked at the manufactured data plate, there was some frightening information on that that was more than likely a mistake but that’s the main identification plate on the plant … the test pressure was only half of the design pressure when it should be one and a half.”

(Transcript page 88)

41      Inspector Ebert testified he proceeded to write out the improvement notices (exhibit WS1 and WS2):

“… for the fact that we’ve got strict instructions, or had strict instructions, that to write a prohibition notice it must be evident of very serious imminent danger.  Now, the situation there was there was no ammonia leaking at the time and I couldn’t tell if it was going to happen or when, but the risk factor, if it did, was great.  So following the instructions and knowing that I had the tool of marking the plant, I proceeded to write this improvement notice.”

(Transcript page 89)

42      The inspector testified he then informed the employer the plant had to be shut down as it was going to be ‘marked’ in accordance with the Regulations.  The ‘marking’ was to be applied to each item.  The inspector testified he understood the employer was going to commence the sequence to shut the pressure vessels down and the inspector left the site.

43      The inspector testified that he was particularly concerned with this plant given it was his understanding it could fail through a massive ammonia leak which would not only effect the employer’s site but could involve neighbouring sites given the amount of ammonia.  The inspector testified that ammonia was very caustic and when it entered the lungs had severe effects and with enough gas virtually tore the lungs to pieces.  The inspector testified that in order to remove the ‘marks’ from the pressure vessels at the very least some basic proof was required that the pressure vessels were satisfactory and the safety valve situation and the venting had been remedied.  The inspector testified that another area of concern was there were no calculations that WorkSafe had received from the employer’s engineer to demonstrate that the pressure vessel wall thickness was sufficient to hold the ammonia.  Once some basic calculations had been received together with the necessary remedies to the valves and venting the inspector testified it would be satisfactory for the ‘marks’ to be removed.  The inspector testified at no stage had information been given to WorkSafe which satisfied the basic issues in relation to safety and allowing for the ‘mark’ to be removed.  The inspector testified there appeared to be little relevant information regarding the safety of the pressure vessels on the site.  When asked, the employer had provided a two page safety sheet in Chinese.  On this basis the inspector testified he had selected a very short compliance period, some six days after writing the initial improvement notice.

44      The inspector testified the issues raised by Mr Beer in evidence the previous day relating to the body flanges indicated the pressure vessels did not comply with the AS 1210:

“… if I had known that, it’s … I’m alarmed … if the bolting is not adequate and the pressure is great enough, of course, this half of the vessel goes that way, that half goes that way and all the ammonia in the system is gone, is out.  Flushed off the gas and we have quite a serious situation.  We design – well, we would never allow a design to function in that manner, with that amount of bolting, if it was fifty per cent only.”

(Transcript page 97)

45      Inspector Ebert testified it may be possible for the flanges to be taken off and replaced or alternatively to reduce the system working design pressure by an appropriate amount if the system was capable of functioning at a lower pressure.  Inspector Ebert testified that the scope of work anticipated by exhibit C1 if carried out correctly may remedy or satisfy the first improvement notice (exhibit WS1).  Inspector Ebert testified that there was a possibility if, representatives of the WorkSafe Commissioner, the employer and relevant experts were to consider the ongoing problem associated with an unregistered plant there may be a potential solution in that the plant could operate in the interim through until the registration process was complete. 

WorkSafe Commissioner’s Legal Submissions

46      In relation to the second preliminary issue counsel for the WorkSafe Commissioner submitted where a person seeks a review of the placement of a ‘mark’ on plant pursuant to reg 2.9 they may refer the notice to the WorkSafe Commissioner for review.  The WorkSafe Commissioner is then required to inquire into the circumstances and can affirm, affirm with modifications or cancel the notice.  Subsequent to that step in reg 2.16 the next step is set out, being where the recipient or person effected by the decision of the WorkSafe Commissioner is not satisfied they may within 14 days of receiving notice of a decision refer the matter to a Safety and Health Magistrate for review setting out the grounds upon which a review of the decision is sought and providing to the WorkSafe Commissioner a copy of the reference.  Regulation 2.16 outlines the options for the Safety and Health Magistrate in the course of reviewing the decision.

47      Counsel for the WorkSafe Commissioner submitted that the appropriate jurisdiction for reviewing Inspector Ebert’s actions in placing a ‘mark’ on the plant under reg 2.9 was the Safety and Health Magistrate and not the Tribunal.  In the current circumstances the employer has in part referred the matters to the Tribunal and requested a review of the decision to ‘mark’ the plant pursuant to s 51A.  Counsel for the WorkSafe Commissioner submitted that when she was asked to review the improvement notices at first instance it was also understood she was being asked under reg 2.15 to review the decision of the inspector to ‘mark’ the plant and accordingly the inspector’s decision to ‘mark’ the plant was affirmed as outlined in exhibit WS3.  Counsel for the WorkSafe Commissioner submitted the limitations on what is referred to this Tribunal under s 51A are the decisions made by the WorkSafe Commissioner under s 51 in relation to a review of an improvement or a prohibition notice as issued by an inspector.

48      Counsel for the WorkSafe Commissioner submitted the role of a s 51A further review by the Tribunal was to enquire into and ascertain whether the inspector’s opinion in the first instance was valid and whether the notice ought to have issued.  It was submitted that a s 51A consideration was a rehearing.  The body conducting the review, in this case the Tribunal, is able to consider additional evidence where there is some new information.  Such appeal by rehearing rather than a hearing de novo does require that this Tribunal identify an error in the original decision before it can itself substitute its own decision.  

49      Counsel for the WorkSafe Commissioner referred to the Industrial Appeal Court decision in Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational Health, Safety and Welfare (1994) 74 WAIG 2.  Counsel for the WorkSafe Commissioner submitted what was required to undertake a s 51A review of exhibit WS1 and WS2 and ultimately the notice issued by the WorkSafe Commissioner was for the Tribunal to put itself in the shoes of the inspector to determine whether it was reasonable for the improvement notices to be issued.  Counsel for the WorkSafe Commissioner submitted that it was reasonable given that in respect of exhibit WS2 the employer conceded the pressure vessels were unregistered.

50      Counsel for the WorkSafe Commissioner submitted the improvement notices ought be affirmed and that it wasn’t the intention of the statute that some decisions in the Regulations could be selected and reviewed.  The WorkSafe Commissioner submitted the ‘mark’ ought remain given it was placed there at the initiative of the inspector and they ought return to determine whether or indeed if it ought be removed.

51      Counsel for the WorkSafe Commissioner submitted that the words “with respect to the notice” in s 51A(5)(c) are not intended to provide the Tribunal with the ability to review decisions made under reg 2.9 and make orders affecting those decisions such as a decision to ‘mark’ the plant.  Counsel for the WorkSafe Commissioner outlined there were two schemes providing for the review of decisions arising under the Act and the Regulations, one scheme set out in the Regulations for a review of decisions made by various persons and then as far as improvement and prohibition notices are concerned the review mechanism and s 51A.  In relation to the review of exhibit WS1 and exhibit WS2 counsel for the WorkSafe Commissioner submitted the process could be separated from the issue of review of a decision to ‘mark’ the plant in accordance with reg 2.9.

52      Counsel for the WorkSafe Commissioner submitted when considering the provisions of s 51A(5)(c) that sit within s 51 the words “with respect to” need to be considered in their overall context.  The words cannot be separated from that context and considered in isolation.  Counsel for the WorkSafe Commissioner submitted that the division referred to together with Part VI of the Act are concerned exclusively with the review of notices.

Conclusion and Findings

Credibility

53      The Tribunal has had the benefit of considering the evidence of all three witnesses in these proceedings.  In respect of the evidence given by Mr Bernhardi I find his evidence to have been openly given and acknowledge the witness has had significant experience in the baking industry.  Mr Bernhardi conceded his experience in working with pressure vessels was based largely on vessels containing freon gas rather than ammonia.  The Tribunal rejects the evidence given by Mr Bernhardi regarding the manufactured plate on the pressure vessels as being an error in the conversion between Chinese and English as being speculative.

54      In the case of the evidence given by Mr Beer the Tribunal recognises his extensive experience and qualifications in mechanical engineering.  Mr Beer’s competence in design engineering is accepted.  The assertions put in the course of his evidence before the Tribunal were openly given.  The evidence relating to the pressure vessels’ body flanges and the reduced bolting area as placing a 50% limitation on the capability of the pressure vessels to withstand increased pressure is accepted. 

55      Inspector Ebert of WorkSafe gave evidence on two occasions during the course of proceedings.  The Tribunal accepts Inspector Ebert’s lengthy experience in the industry, his qualifications in occupational health and safety and his experience and knowledge of the workings associated with plant.  The Tribunal accepts Inspector Ebert’s evidence with the exception of the evidence relating to the manufacturer’s data plate which was speculative in nature.

56      It is always open to a Commissioner in such circumstances to challenge the credibility of witness evidence, support for that proposition being upheld by their Honours in Cousins v YMCA (2001) 82 WAIG 5 at 43.  To the extent of any inconsistency between the three witnesses the Tribunal accepts the evidence of Inspector Ebert and Mr Beer over Mr Bernhardi.

Preliminary Issue of Jurisdiction – the issue of the ‘mark’

57      The preliminary issue of jurisdiction with respect to the power of the Tribunal to undertake a further review of the WorkSafe Commissioner’s decision to affirm the decision by Inspector Ebert to ‘mark’ the pressure vessels in the plant room by the inspector pursuant to reg 2.9 was raised by counsel for the WorkSafe Commissioner at the commencement of proceedings.  Counsel for the WorkSafe Commissioner submitted the Tribunal has no jurisdiction to enquire into the circumstances as to whether the ‘mark’ issued by Inspector Ebert on 17 May 2007 pursuant to reg 2.9 and affirmed by the WorkSafe Commissioner on 25 May 2007 could be further reviewed by the Tribunal.  The WorkSafe Commissioner submitted that for such a decision to be further reviewed it must be referred to the Safety and Health Magistrate in accordance with regs 2.15 and 2.16 of the Regulations.  Counsel for the employer submitted the Tribunal was entitled, pursuant to s 51A of the Act, to enquire into the circumstance relating to the notice, an aspect of which was that the pressure vessels were ‘marked’.  The employer submitted that where there is more than one construction of statute open to the Tribunal, the construction that favours the objects of the Act is the one to be preferred having regard to s 18 of the Interpretation Act 1984.  The employer submitted the prepositional words “with respect to” as reflected in s 51A(5)(c) of the Act were relevant in this aspect of jurisdictional consideration and invited a consideration that the Tribunal could make its own decision with respect to the ongoing operation of the ‘mark’.  The employer submitted that regulations have to give effect to the purposes of the Act and need to be read in the light of the Act’s objects.

58      The Tribunal concludes it has no jurisdiction to further review the WorkSafe Commissioner’s decision to affirm the inspector’s decision to place a ‘mark’ on the employer’s pressure vessels on 17 May 2007, a further review of such a decision being limited to the jurisdiction of the Safety and Health Magistrate pursuant to Division 3, reg 2.16. of the Regulations.

Legal Considerations

59      The role of the Tribunal in undertaking a further review in the context of s 51A of the Act is administrative in nature.  The statutory provision relating to the Tribunal’s considerations are reflected in:

“51A Further Review of Notices

(1) A person issued with notice of a decision under s 51(6) may, if not satisfied with the Commissioner’s decision refer the matter in accordance with subsection (2) to the Tribunal for further review. 

(2) A reference under subsection (1) may be made in the prescribed form within seven days of the issue of the notice under s 51(6).

(3) A review of a decision made under s 51 shall be in the nature of a re-hearing.

(4) The Tribunal shall act as quickly as is practicable in determining a matter referred under this section.

(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.

(6) (repealed)

(7) Pending the decision on a reference under this section, irrespective of the decision of the Commissioner under s 51, the operation of the notice in respect of which the reference is made shall –

(a) in the case of an improvement notice, be suspended; and

(b) in the case of a prohibition notice, continue, subject to any decision to the contrary made by the Tribunal.”

60      The provision for an inspector to issue an improvement notice is contained in s 48 of the Act:

“48. Inspectors may issue improvement notices

(1) Where an inspector is of the opinion that any person — 

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

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

the inspector may issue to the person an improvement notice requiring the person to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention.

(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.

(3) A person, other than the employer, issued with an improvement notice shall forthwith give the notice, or a copy of it, to the employer, and where — 

(a) under subsection (1), an improvement notice is issued to an employer; or

(b) under this subsection an improvement notice, or a copy thereof, is given to an employer,

the employer shall cause the notice, or a copy of it, to be displayed in a prominent place at or near any workplace affected by the notice.

(3a) A person shall not remove an improvement notice displayed under subsection (3) before the requirements of that improvement notice have been satisfied.

(3b) Subsection (3a) does not apply in respect of an improvement notice that is suspended under section 51 or 51A or that has ceased to have effect.

(3c) If an improvement notice is issued —

(a) to a self‑employed person in respect of a contravention of section 21; or

(b) to a body corporate to which section 21B applies in respect of a contravention of that section,

the person or body shall comply with subsection (3) and (3d) as if the person or body were an employer.

(3d) If an improvement notice is modified by the Commissioner under section 51(5)(b), the employer shall cause a copy of the Commissioner’s decision to be displayed with the improvement notice, or a copy of it, as required by subsection (3).

(4) Subject to sections 51 and 51A, if a person —

(a) is issued with an improvement notice; and

(b) does not comply with the notice within the time specified in it,

the person commits an offence.

(5) A person issued with an improvement notice commits an offence if the Commissioner is not notified forthwith upon the requirements of the improvement notice being satisfied.

(6) If a person contravenes subsection (3), (3a), (3c) or (3d), the person commits an offence.”

61      Relevant to the Tribunal’s considerations in these matters as referred are the provisions for an inspector to issue a prohibition notice:

“49. Inspectors may issue prohibition notices

(1) Where an inspector is of the opinion that an activity is occurring or may occur at a workplace which activity involves or will involve a risk of imminent and serious injury to, or imminent and serious harm to the health of, any person, the inspector may issue to a person that is or will be carrying on the activity, or a person that has or may be reasonably presumed to have control over the activity, a prohibition notice prohibiting the carrying on of the activity until an inspector is satisfied that the matters which give or will give rise to the risk are remedied.

(2) An inspector who issues a prohibition notice, other than in respect of an activity as defined in subsection (7), shall remain at the workplace until the employer has been advised of the notice and, where the notice is in respect of an activity that is occurring, the prohibited activity has ceased.

(3) A prohibition notice shall — 

(a) state that the inspector is of the opinion that in the workplace there is occurring or may occur an activity which involves or will involve a risk of imminent and serious injury to, or imminent and serious harm to the health of, a person;

(b) state reasonable grounds for forming that opinion;

(c) specify the activity which in the inspector’s opinion involves or will involve the risk and the matters which give or will give rise to the risk;

(d) where in the inspector’s opinion the activity involves a contravention or likely contravention of any provision of this Act, specify that provision and state the reasons for that opinion; and

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

(4) A person, other than the employer, to whom a prohibition notice is issued shall forthwith give the notice, or a copy of it, to the employer, and where — 

(a) under subsection (1), a prohibition notice is issued to an employer; or

(b) under this subsection a prohibition notice, or a copy thereof, is given to an employer,

the employer shall cause the notice, or a copy of it, to be displayed in a prominent place at or near any workplace affected by the notice.

(4a) A person shall not remove a prohibition notice displayed under subsection (4) before the requirements of that prohibition notice, taking into account any modifications made under section 51(5), have been satisfied or the prohibition notice has ceased to have effect.

…”

62      The first step for the Tribunal when a matter has been referred on the prescribed form and within the specified time period is to “inquire into the circumstances relating to the notice”.  The Tribunal considered such principles as reflected in the decision of the Industrial Appeal Court in Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational, Health, Safety and Welfare (1993) (supra) as set out:

“The task before an Industrial Relations Commissioner undertaking a review of a notice of prohibition pursuant to s 51(4) of the OHSW Act is to conduct an inquiry into ‘the circumstances relating to the notice of prohibition’: s 51(5).  The notice must contain (a) a statement of the opinion of the inspector that “in the workplace there is occurring or may occur an activity which involves or will involve a risk of imminent and serious injury to, or imminent and serious harm to the health of, a person; (b) the reasons for that opinion; (c) the activity which in the inspector’s opinion involves or will involve the risk and the matters which give or will give rise to the risk; (d) a specification of contravention or any likely contravention of any provision of the OHSW Act by the activity; s 49(3).  All of these matters were open to review by the Commissioner.”

(Page 11)

His Honour Franklyn J also reflected on the task of the Tribunal in the same decision:

“… Those provisions in my opinion make it clear the review is directed to establishing whether, on the evidence available to the Commissioner, the Inspector was justified in forming the opinion in question… In other words he must approach the facts and circumstances as found by him on his inquiry as if he were the Inspector determining whether, on those facts and circumstances, he could reasonably form the opinion formed by the Inspector of the particular activity, having regard also to the reasons and matters set out in the notice.” 

(Page 4)

The tribunal at the time such reviews were being conducted was the Western Australian Industrial Relations Commission (“the Industrial Commission”).  The Act has since been amended and the legislation authorising the operation of the Tribunal today has some similarities.  It was said then by Franklyn J of the review process that the entitlement to refer a notice for further review by the person in receipt of such a notice is one of right.  Once referred the Commissioner enquires into the circumstances relating to the notice.  His Honour Franklyn J said in relation to the issue of onus in the further review of prohibition or improvement notices that:

“… there is no question of the onus being on the person seeking the review to establish that the notice should not have issued, either in the form in which it did or at all, although he would of course be entitled to adduce evidence to that effect.  The inquiry being “into the circumstances relating to the notice” it necessarily, in my view, requires that the Commissioner inquire into and ascertain for himself the validity of the Inspector’s opinion and the relevant circumstances giving rise thereto as set out in the notice.”

(Page 4)

The Tribunal considers the right to refer a notice for review and the issue of onus on s 51A referrals remain as relevant today for the Tribunal as it was then for the Industrial Commission.

63      The Tribunal, having inquired into the circumstances relating to the issuance of the notice, considered the evidence and submissions of the parties and reviewed the validity of the inspector’s actions, has three options; whether to affirm, modify or revoke the decision of the WorkSafe Commissioner.  It is this third option s 51A(5)(c) which is the broadest of all in terms of action available to the Tribunal.  The legislative framework was more restrictive under the Occupational Health, Safety and Welfare Act 1984, as amended, when the Industrial Commission the reviews.  It was those more restricted options that applied at the time of the Industrial Appeal Court decision in Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational Health, Safety and Welfare (1993) (supra).  In particular the statute limited the Industrial Commission’s options to:

“s 51(5) On the reference under this section of an improvement notice or a prohibition notice for review, the Commissioner or, as the case may be, the Industrial Relations Commission shall inquire into the circumstances relating to the notice and may –

(a) affirm the notice;

(b) affirm the notice with such modifications as seem appropriate; or

(c) cancel the notice,

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

By contrast s 51A(5)(c) of the Act now provides for the revocation of the WorkSafe Commissioner’s decision and “the making of such other decision with respect to the notice as seems fit”.  Having regard to the ordinary meaning of the words contained in s 51A(5)(c):

““As”

 adverb 1. to such a degree or extent: as good as gold [the first as].--conjunction 2. the consequent in the correlations as (or so) … as, same … as, etc., denoting degree, extent, manner, etc.: as good as gold [the second as]; in the same way as before.  3. (without antecedent) in the degree, manner, etc., of or that: quick as thought; speak as he does. 4. according to what, or the manner in which, or the extent to which: as I hear; we help as we are able. 5. though: bad as it is, it could be worse.  6. as if, as though: she spoke quietly, as to herself; the car was sold as new.7. when or while: I arrived as she was leaving.  8. since; because: I hesitated as she seemed upset.  9. in the way that: I may fail you, as you realise; as is well known, he died soon after.10. for instance: a variety of colours, as red, blue, and green.--pronoun (relative) 11. that; who; which (especially after such and the same): handsome is as handsome does. preposition 12. in the role, function, status, or manner of: to appear as Othello; serve as a warning.--phrase 13. as for (or to), with regard or respect to.”

Macquarie Dictionary Online, Fourth Edition 2005 (28 August 2007)

““seem”

  verb 1. to appear to be: she seemed angry. verb  2. to appear (to be, feel, do, etc.): 3. to appear to oneself (to be, do, etc.): I seem to hear someone calling.  4. to appear to exist …”

Macquarie Dictionary Online, Fourth Edition 2005 (28 August 2007)

  ““fit”

  adjective (fitter; fittest) 1. well adapted or suited: a fit choice.  2. proper or becoming.  3. qualified or competent, as for an office or function: a person fit for the job.  4. worthy or deserving: not fit to be seen.  5. prepared or ready: crops fit for gathering.  6. in good physical condition, as an athlete, a race horse, military troops etc.  7. in good health: a fit person. verb 8. to be adapted to or suitable for (a purpose, object, occasion, etc.).  9. to be proper or becoming for.  10. to be of the right size or shape for.  11. to conform or adjust to something: to fit a ring to the finger.  12. to make qualified or competent: qualities that fit someone for leadership.  13. to prepare.  14. to put (in, into, on, together, etc.) with precise adjustment … 22. an instance of fitting together well …”

Macquarie Dictionary Online, Fourth Edition 2005 (28 August 2007)

64      Having regard for Statutory Interpretation in Australia, 6th edition, DC Pearce and RS Geddes, 2006 the authors have considered the meaning of the phrase ‘in respect of”:

“The expression is ‘of broad import’: per Toohey and Gaudron JJ in O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 374; 92 ALR 213 at 226.  In the same case, McHugh J said (at 376; 228) the phrase ‘requires no more than a relationship, whether direct or indirect, between two subject matters’.  The words are ‘among the broadest which could be used to denote a relationship between one subject matter and another’: per Lehane J in Nordland Papier AG v Anti-Dumping Authority (1999) 93 FCR 454 at 461; 161 ALR 120 at 126.  However, the relationship must be between distinct matters or subject matters.”

(12.7)

Where the Tribunal’s determination is to revoke the WorkSafe Commissioner’s decision the statute qualifies any decision to be taken by the inclusion of the words “as seems fit”.  The Tribunal, is required to exercise its discretion and make such other decision with respect to the WorkSafe Commissioner’s notice “as seems fit”.  In other words the Tribunal’s decision would need to be well adapted or suited to the findings of the inquiry having regards to the objects of the Act, in particular the first four objects as prescribed in s 5 of the Act.  In making a decision the Tribunal is required to have regard to the procedures of the Industrial Relations Act 1979 that apply to the jurisdiction of the Tribunal as reflected in s 51I of the Act.

65      Nicholson J in the course of the decision of Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational Health, Safety and Welfare (1993) (supra) reflected on the word “risk” as it appears in the Act:

“Risk is defined, subject to contrary intention, in relation to any injury or harm as meaning the probability of that injury or harm occurring: s3(1) of the OHSW Act.” 

(Page 11)

“The interpretation given to probability seems to me to be consistent with the objects of the OHSW Act which include objects “(a) to promote and secure the health, safety and welfare of persons at work; (b) to protect persons at work against hazards; (c) to assist in securing safe and hygienic work environments.”

(Page 12)

“The words “imminent and serious” are accepted by the parties as having their ordinary meaning.  “Imminent” means “impending threateningly, hanging over one’s head; ready to overtake one; coming on shortly”: Shorter Oxford English Dictionary (1973) at 1026.  “Serious” means “weighty, important or grave … attended with danger”: Ibid, at 1947. 

(Page 12)

66      Their Honours were considering a prohibition notice that had been referred to the Industrial Commission at first instance.  Franklyn J considered what needed to exist on which to base an opinion of “imminent and serious” as it appears today in s 49(1) of the Act:

“Consistently with the view expressed by Nicholson J it is my opinion that for the formation of a justifiable opinion under s49(1) that the relevant activity involves or will involve a risk of imminent and serious injury or harm, the evidence must show that there exists something more than the bare possibility that injury or harm of that nature will occur from the activity in question.”

(Page 3)

67      Critical to the issuance of a prohibition notice is whether the inspector is of the opinion that an activity involves or will involve a risk of imminent and serious injury or harm.  Having regard for the statute the Tribunal considers the issuance of an improvement notice even when combined with an administrative decision pursuant to reg 2.9 to ‘mark’ the pressure vessels  requiring the employer to cease operating the plant is a less serious consequence than the issuance of a prohibition notice.  More stringent provisions apply when the decision has been made to issue a prohibition notice.  Provisions within s 49(2) require an inspector to “remain at the workplace” until such time as the activity the subject of the prohibition notice has ceased.  The operation of a prohibition notice under review by the WorkSafe Commissioner or a further review by the Tribunal continues s 51(7)(b) and s 51A(7)(b), subject to any decision to the contrary made by either the WorkSafe Commissioner or the Tribunal.  The matters the subject of a prohibition notice are prohibited “until an inspector is satisfied that the matters which give or will give rise to the risk are remedied”.  By comparison no such provisions are reflected in the statute when an inspector issues an improvement notice.

Findings

68      It was not in dispute that Inspector Ebert issued two improvement notices to the employer on 17 May 2007 regarding the contravention of reg 4.43(1) and reg 4.14(1) of the Regulations.  Nor is it disputed that on the day the improvement notices were issued the safety valves were separated from the pressure vessels by stop valves and were not vented to the outside of the building.  It was conceded by the employer that the pressure vessels had been installed in November 2006 and operative from half way through January 2007 and had never been registered.  Also not in dispute was on the day of the issuance of the improvement notices Inspector Ebert had ‘marked’ the pressure vessels pursuant to reg 2.9 requiring the employer to cease their operation.  It was conceded by the employer that at no stage since that day had the pressure vessels ceased to operate with the exception of short shut down periods for defrosting of the coolrooms.

69      The Tribunal finds, following its inquiry, that OSHT 1 of 2007 was referred to the Tribunal in accordance with s 51(1).  The reference was made on the prescribed form and within the time specified.  In all respects the application and its referral met the requirements of s 51A(1) and (2) of the Act. 

70      The improvement notices were issued pursuant to s 48 of the Act and the Tribunal considers based on the evidence in submissions of the employer and WorkSafe and its own inquiry into the circumstances relating to the issuance of the notices that each notice (exhibit WS1 and exhibit WS2) met the terms required of such issuance with one exception.  The Tribunal accepts that each notice stated that Inspector Ebert was of the opinion that a contravention of a provision of the Act was occurring, in this case associated with the plant regulations.  The improvement notices specified the inspector’s grounds for the forming of that opinion and the provisions of the Act in which the opinion was held, including the compliance period in which the employer had to remedy the contravention.  The Tribunal finds with respect to exhibit WS1 and exhibit WS2 the circumstances on the day in question, 17 May 2007, at the employer’s premises were extremely hazardous.  The Tribunal finds there was a significant risk that ammonia, a toxic gas, could be released into the workplace.  The Tribunal considers there was more than a “bare possibility” as those words are reflected by Justice Franklyn in Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational, Health, Safety and Welfare (1993) (supra) that the unregistered, unvented, unrecognisable pressure vessels and associated plant would involve a risk of imminent and serious injury to or harm to the health of persons in and around the employer’s premises.  The Tribunal has had regard for Inspector Ebert’s testimony regarding the pressure vessels and associated plant and I find that he was “alarmed” on the day in question and considered the continued operation of the pressure vessels posed a severe risk that could cause “fatalities”.  I accept Inspector Ebert’s view that the pressure vessels had to be shut down.  The Tribunal finds that the appropriate action on the day in question to ensure a shut down of the pressure vessels and associated plant would have been to issue prohibition notices. 

71      Inspector Ebert referred to “unknown parameters” including no recognisable design standard able to be identified by an inspector who had been in the industry for a considerable number of years.  The Tribunal finds Inspector Ebert’s concerns on arrival at the employer’s premises to be extensive.  Those concerns included the possibility that the placement of the safety valves in relation to the stop valves, the potential for the released ammonia into the face of a worker and the “frightening information” on the manufacturer’s data plate indicating the test pressure was only half of the required design pressure when it should be one and half times.  The Tribunal finds that there was no venting of the safety valves to the outside of the building and there was movement of employees in and around the plantroom.  The Tribunal finds there was unusual evidence given by Inspector Ebert during questioning by counsel for the WorkSafe Commissioner: 

 “And can you tell us why you wrote that notice?---I wrote that notice instead of a prohibition notice for the fact that we’ve got strict instructions, or had strict instructions, that to write a prohibition notice it must be evident of very serious imminent danger.  Now, the situation there was no ammonia leaking at the time and I couldn’t tell if it was going to happen or when, but the risk factor, if it did, was great.  So following the instructions and knowing that I had the tool of marking the plant, I proceeded to write this improvement notice.”

(my emphasis added - Transcript page 89)

“Every single time you issue an improvement notice pursuant to a contravention of regulation 4.14, do you mark the plant?---No.

And every time you write an improvement notice pursuant to regulation 4.43, do you always mark the plant?---I’ve never mark the plant before, but I’ve used the older system of a prohibition notice with regards to safety valves not vented for ammonia.

Okay.  And in this situation, what was different, or of such concern to you that as well as issuing improvement notices you marked this plant?---A lot of plant that I might come across that’s not registered, you can clearly see, in most cases, a design approval number from another Australian State on it which explains to me that the system is more than 90 per cent satisfactory, so I give them a time frame to get it registered and usually it’s pretty quick because the design number just has to be applied to the application form.  So, in that case, they get a time…improvement notice and a time frame that suits them because, as far as I consider, there’s no imminent danger.

Okay?---In this case, there was no information about this plant and the fact that it was high hazard.

What was the danger or hazard that you were particularly concerned about with this plant?  What was it that you were worried might happen?---It could fail.

And then what would happen?---A massive ammonia leak which would not only affect that premises but it would affect neighbouring sites as well with that amount of ammonia.”

(my emphasis added - Transcript page 91)

72      The Tribunal finds that issuing improvement notices and ‘marking’ the plant was inappropriate.  The Tribunal finds that the circumstances applying at the employer’s workplace on 17 May 2007 were more serious than those situations in which inspectors would normally issue prohibition notices. 

73      The Tribunal finds that the operation of the pressure vessels was a factor relevant to this s 51A inquiry given the employer then relied upon the review to the WorkSafe Commissioner and subsequently the Tribunal (pursuant to ss 51(7)(b) and 51A(7)(b)) to continue the operation of the pressure vessels and associated plant 24 hours a day 7 days a week.  The employer at no stage advised Inspector Ebert or WorkSafe of their intention to continue the operation of the pressure vessels and it was not until the day of the adjournment hearing that the WorkSafe Commissioner, Inspector Ebert and the Tribunal were alerted that the pressure vessels had operated from 17 May 2007. 

74      The testimony of Mr Beer in the proceedings regarding the body flanges and the reduced bolting area that had been revealed in the design verification calculation process was relevant to the Tribunal’s findings.  The testimony of Mr Beer that the strength of the bolting was approximately 50% of that required within pressure vessel design was accepted.  The Tribunal acknowledges that if the pressure vessel continued to operate within a range of 0.9 megapascals to 1.1 megapascals, considered to be the normal operating range there would be no significant risk of failure.  However there was no knowledge available as to whether the vessels were within the normal range of operation or not.  The Tribunal finds that there was no information available to the employer, to Inspector Ebert and indeed on the basis of the design verification process undertaken to-date, to Mr Beer.  The manufacturers in China had provided a two page document to the employer written in Chinese which provided no assistance to anyone on site or Inspector Ebert with respect to the safe operation of the pressure vessels.  

75      The Tribunal finds that Inspector Ebert had a basis on which to conclude that at the time of his inspection the operation of the plant did not involve an “imminent and serious” risk in that it wasn’t leaking ammonia at that moment in time.  Conversely Inspector Ebert had no basis on which to conclude that it would not involve such a risk, a provision that is open to such consideration based on the wording of s 49(1).  On the testimony of Inspector Ebert he appeared to be guided by WorkSafe’s policy.  The Tribunal concludes there was no information available on which such an opinion could have been reached other than the opinion envisaged by s 49(1), that being operation of the pressure vessels “would involve” a risk of imminent and serious injury to or harm to any person. 

76      The Tribunal’s inquiry into the circumstances relating to the operation of unregistered pressure vessels on the employer’s premises, the placement of stop valves in and around those pressure vessels and the lack of venting of the pressure vessels’ safety valves to an area where no-one could be adversely affected by the release of ammonia gas posed an imminent and serious risk to persons working in and around the immediate and adjacent area.  The Tribunal’s inquiry determines that the circumstances relating to the operation of the pressure vessels at the employer’s premises posed risks, considered by the Tribunal to be “imminent and serious” as those words were considered in the decision of the Industrial Appeal Court Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational Health, Safety and Welfare (1993) (supra).

77      The Tribunal finds in other circumstances where pressure vessels’ safety valves were not vented properly the plant was not ‘marked’ by inspectors rather the system of issuing prohibition notices was adopted.  In such circumstances unregistered equipment was normally from another state and there were visual indications that the plant was more than 90% satisfactory. The Tribunal finds that on the basis of the lack of detail available to Inspector Ebert at the employer’s premises that the unregistered pressure vessels in the plantroom, the risk of inhalation of ammonia gas accidentally released from the pressure vessels into the plant room together with the potential for an explosion to occur was severe, more so at the employer’s premises than circumstances where WorkSafe inspectors had issued prohibition notices in the past.  Inspector Ebert had a reasonable basis on which to issue prohibition notices.

78      The Tribunal finds that the pressure vessels and associated plant were installed and operative from the beginning of 2007 and that since that date the employer has followed a maintenance program.  At the time of conducting the inquiry into the circumstances relating to the WorkSafe Commissioner’s notice the employer was continuing to face barriers in gaining useful information from the manufacturer of the plant in China based on language difficulties.  The Tribunal finds that the employer at the time of the hearing was many weeks away from concluding the registration process indeed it had only just commenced.  The Tribunal finds the registration process had not been undertaken by the time this matter came to hearing, with the exception of the design verification process which had just commenced.  The requirements of the registration process as included in the Regulations require design verification, provision of information by the manufacturer, installation and commissioning routines to be provided and assessment by “competent persons” pursuant to the Regulations.  The Tribunal finds the pressure vessels and associated plant the subject of exhibit WS1 and exhibit WS2 were, based on the preliminary views of Mr Beer and Inspector Ebert, categorised as hazard level B in accordance with Schedule 4.2 of the Regulations and were therefore subject to the criteria set out in Australian Standard 4343.

79      The Tribunal finds there were some works planned for commencement on 16 June 2007 would remedy some of the issues identified in exhibit WS1 if completed as proposed.  These works were first revealed during the hearing into this matter on 13 June 2007.  The Tribunal finds that the statements contained in the improvement notices, the issuance of the notices to the employer, the provisions of the Act and Regulations in respect of which Inspector Ebert purported to hold the opinion were not challenged by the employer.  The Tribunal finds that the issue of the requirement by Inspector Ebert at the time of issuance of the improvement notices to cease operating the pressure vessels by the placement of a ‘mark’ on the plant was the issue most concerning to the employer.

Conclusions

80      In accordance with the statute the Tribunal conducted an inquiry into the circumstances relating to the decision of the WorkSafe Commissioner and was satisfied that on 17 May 2007, the day the improvement notices were issued, Inspector Ebert considered the ongoing operation of the pressure vessels in the plantroom at the employer’s premises involved a “serious” risk of injury or harm to the health of persons in and around the plant.  The Tribunal concludes there was clear evidence to reflect a “serious” risk.  The one contentious issue for the Tribunal to consider was whether at the time the risk referred to involved or would involve “imminent” injury or harm to any person as required by s 49(1) of the Act. 

81      The Tribunal having considered those matters open to review in relation to Improvement Notice 302645 (exhibit WS1) concluded:

- that the employer’s premises was a workplace;

- that the Chinese built ammonia pressure vessels were not set up as required by Australian Standard 3873.  Specifically, the safety valves were separated from the pressure vessels by stop valves and the safety valves were not vented to the atmosphere; and

- that the set up of the pressure vessels and associated plant contravened reg 4.43(1) of the Regulations.

The Tribunal having considered Inspector Ebert’s opinion “… may lead to a very hazardous situation for employees with an accidental release of ammonia gas.” (extract from exhibit WS1) concluded that the situation at the employer’s premises on 17 May 2007 posed risks considered by the Tribunal to be “imminent and serious” as envisaged by s 49(1) of the Act.

82      The Tribunal having considered those matters open to review in relation to Improvement Notice 302646 (exhibit WS2) concluded:

- that the employer’s premises was a workplace;

- that the Chinese built ammonia pressure vessels were being used in contravention of reg 4.14(1) of the Regulations; and

- that the pressure vessels were not registered as required by the WorkSafe Commissioner or any other regulatory authority.

The Tribunal having considered Inspector Ebert’s opinion “… that the … plant is in use in contravention of the above regulation” (extract from exhibit WS2) concluded that the situation at the employer’s premises on 17 May 2007 posed risks considered by the Tribunal to be “imminent and serious” as envisaged by s 49(1) of the Act.

83      Inspector Ebert outlined the concerns he identified on 17 May 2007 at the employer’s premises:

• the ongoing operation of the plantroom’s pressure vessels without external venting;
• the separation of the safety valves from the pressure vessels by stop valves;
• the operation of unregistered pressure vessels;
• the data plates on the pressure vessels indicating the test pressures were only half of the required design pressure;
• the paucity of information regarding any aspect of the pressure vessels;
• the movement of persons in and around the plant room; and
• the serious health and safety risks associated with the release, sudden or otherwise, of ammonia gas. 

Based on the views of the Industrial Appeal Court in Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational Health, Safety and Welfare (1993) (supra) as they reflect on risk, probability, hazard and imminent and serious it is the Tribunal’s conclusion that the risk circumstances on 17 May 2007 would involve “imminent and serious” as per s 49(1) of the Act.

84      The s 51 review of exhibit WS1 and exhibit WS2 by the WorkSafe Commissioner affirmed the improvement notices and extended the compliance date in respect of each notice to 10 August 2007, an extension on each notice of more than two months.  The Tribunal notes the WorkSafe Commissioner continued the operation of the ‘mark’ on the plant room’s pressure vessels, her decision of 25 May 2007 emphasising this point (exhibit WS3).  The obligation at all times was clearly on the employer to comply with the direction to cease operations, a direction received from Inspector Ebert some four weeks earlier.  The circumstances at the employer’s premises relating to risk emanating from the pressure vessels was unchanged at the time of the s 51 review and on balance the Tribunal concludes the risk remained “serious and imminent” and the decision of the WorkSafe Commissioner on 25 May 2007 to affirm each improvement notice ought be revoked.

85      The Tribunal, having revoked the decision of the WorkSafe Commissioner pursuant to s 51A(5)(c) of the Act is required to “make such other decision with respect to the notice as seems fit”.  As earlier mentioned the Act is now broader in its scope than applied at the time of the Industrial Appeal Court’s decision in Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational Safety, Health and Welfare (1993) (supra).  The only option open to an Industrial Commissioner in the review process at that stage was to “cancel the notice”.  The Tribunal has considered the period of time that has lapsed since the issuance of exhibit WS1 and exhibit WS2 by Inspector Ebert, the review of the improvement notices by the WorkSafe Commissioner and the fact that at the time the Tribunal was determining this matter the employer was continuing to operate the pressure vessels.  The Tribunal concluded “it seems fit” as those words are intended in s 51A(5)(c) to prohibit the operation of the machinery effective on and from the issuance of any orders.  It is not disputed that at the time of issuance of exhibit WS1 and exhibit WS2, Inspector Ebert ‘marked’ the pressure vessels requiring the employer to cease such operation until a WorkSafe inspector authorised their removal.  At no stage (with the exception of shutdown for maintenance) did this occur.  The Tribunal has taken this into account in determining the appropriate action to take pursuant to s 51A(5)(c) of the Act.  The continued operation of the pressure vessels was not a relevant factor in the Tribunal’s decision to revoke the WorkSafe Commissioner’s decision but was relevant in considering what appropriate action ought occur.  In the course of his testimony, Inspector Ebert was asked of the continued operation of the machinery:

“Given your knowledge of that plant, Mr Ebert, does that cause you any concern?---That’s being used?  Absolutely. 

And what might those concerns relate to?---Ammonia blowing off into the face of people.  Or I know that employees were walking around, cutting through that area.  If ammonia gas was to have---if there was a break and ammonia gas filled that area up, people wouldn’t stand much of a chance.”

(Transcript page 19)

86      The Tribunal acknowledges there are plans to commence works on two aspects of concern; the removal of the stop valves which separate the safety valves from the pressure vessels and the venting of those safety valves to an area outside of the building.  The Tribunal notes the employer sought to commence the alterations on Saturday, 16 June 2007 several days after the hearing of this matter and complete them by Monday, 18 June 2007.  In the event there are alterations made to the pressure vessels and associated plant ensuring external venting of the valves and ensuring the pressure vessels are not separated from the safety valves by stop valves, this will in part achieve some of the requirements identified as requiring remedy in exhibit WS1 by Inspector Ebert on 17 May 2007.  The earliest date on which these remedies could be achieved by the employer is by close of business Monday 18 June 2007. 

87      The Tribunal concludes that the remaining registration process may go on for a number of weeks and at the time this matter was heard there was little or no further information available on the pressure vessels with the exception of two areas of concern; the information relating to bolting on the flanges as identified by Mr Beer and the first portion of x-ray results of the vessels which had been provided to WorkSafe but were insufficient to satisfy the engineer.  The Tribunal accepts the preliminary evidence of Inspector Ebert that there may be some options which might reduce the system working design pressure on the vessels; either the bolting on the flanges could be replaced or alternatively the working design pressure within the pressure vessels could be reduced by an appropriate amount to allow continued operation at a much lower pressure.  The Tribunal concludes that if there is a safe operating level able to be achieved by the employer then the pressure vessels ought be allowed to operate within the terms of the order.  The responsibility to ensure a safe system of work under the statute rests with the employer and to be able to define a safe operating level to allow continued operation of the pressure vessels the employer will need to consult with a person considered to be relevant to the registration process of pressure vessels such as a “competent person” as defined in the Regulations.  The statute outlining the process of pressure vessel registration authorises person(s) approved as a “competent person(s)” and entrusts through them the checking and oversight of appropriate assessments necessary throughout the registration process.  Given the employer has already contracted Mr Beer to commence the design verification process the Tribunal concludes there will be a number of different persons involved in that process.  The first step in the registration process the Tribunal concludes for liaison purposes and any reporting back to the Tribunal ought be that the employer consult with a delegated representative of the WorkSafe Commissioner oversee progress.  The Tribunal is unable to conclude at this point whether a safe alternative option for operation of the pressure vessels is available. 

88      The Tribunal concludes in the absence of any information indicating the plant can operate safely it seems fit to issue orders prohibiting the operation of the pressure vessels in the plantroom until such time as the registration process has been concluded.  It is acknowledged that some limited operation may be required to conclude the registration process pursuant to the Regulations and an order will issue providing for same. 

89      The Tribunal concludes that all access of persons through, in and around the area containing the pressure vessels concerned ought be prohibited, within reason, until such time as the registration process and the alterations to the safety valves and venting are complete. 

90      Having revoked the WorkSafe Commissioner’s decision of 25 May 2007 and having concluded that the risk associated with the operation at the pressure vessels in the plant room at the employer’s premises was on 17 May 2007, the day the improvement notices were issued was “imminent and serious” the Tribunal concludes that Improvement Notice Number 302645 and Improvement Notice Number 302646 ought be cancelled with effect on and from the issuance of any orders.  The Tribunal concludes, having regard for the definition of “practicability” under the Act, together with the presence of risk considered to be “imminent and serious” that the pressure vessels in the plantroom at the employer’s premises ought cease operating on and from the issuance of any orders.  The Tribunal concludes “it seems fit” as those words are envisaged by s 51A(5)(c) of the Act to issue orders requiring:

- The immediate venting of safety valves to the outside of the building to an area where no one can be adversely affected by the release of ammonia;

- the relocation of stop valves to ensure that safety valves associated with the pressure vessels are not isolated;

- commencement of works associated with these two matters within 24 hours following the issuance of any orders resulting from this determination and completed by close of business, Monday, 18 June 2007;

- The employer implement the assessment process and have registered all pressure vessels from the plantroom in accordance with the Regulations; and

- That the WorkSafe Commissioner or a delegated representative knowledgeable in the area of plant inspect the modifications once the registration process has been complete and report back to the Tribunal.

- That all access of person(s) through, in and around the area containing the pressure vessels be prohibited, within reason, until the proposed works envisaged for the weekend commencing 16 June 2007 until the conclusion of the registration process have been completed.

- That a copy of any Orders issuing be provided to all persons in and around the site including employees, employers, subcontractors and any other person(s) by The Original Croissant Gourmet Pty Ltd until such time as the terms of any Order issuing have been met.

91      This concludes my reasons for decision.