IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

SITTING AS

THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL

PARTIES WILLIAM WALKER

APPLICANT

-v-

P & O Automotive and General Stevedoring

RESPONDENT

CORAM Commissioner S J Kenner

HEARD Monday, 1 December 2008, Wednesday, 26 November 2008, Friday, 28 November 2008, Tuesday, 11 November 2008, Thursday, 27 November 2008, Monday, 27 October 2008, Monday, 10 November 2008

DELIVERED WEdnesday, 6 may 2009

FILE NO. OSHT 83 OF 2008

CITATION NO. 2009 WAIRC 00250

Catchwords Industrial law – Occupational Safety and Health Tribunal – whether employer caused disadvantage to employee – for “dominant or substantial reason” that employee was safety and health representative – relationship of safety and health representative as employee of relevant employer – whether the office of a safety and health representative continues on transmission of a business – principles of statutory interpretation discussed and applied - application dismissed - Occupational Safety and Health Act 1984 (WA) s 3, s 19, s 20, s 24, s 26, s 29, s 30, s 31, s 32, s 32(2)(b), s 33, s 34, s 35A, s 35C, s 35D – Interpretation Act 1984 (WA) s 18

Result Application dismissed

Representation 

Applicant Mr L Edmonds of counsel

Respondent Ms E Hartley of counsel

                                                             Reasons for Decision

Introduction

1         This is a referral pursuant to s 35C of the Occupational Safety and Health Act 1984 (“the OSH Act”) by the applicant who alleges that his employer caused disadvantage to him in contravention of s 35A of the OSH Act.  It is alleged in the notice of referral that the respondent, as the applicant’s employer at the material times, caused disadvantage to him for the dominant or substantial reason that he is or was a safety and health representative and was performing the functions of such. 

2         The allegations of the applicant in this regard are concisely summarised in the schedule to the notice of referral to the Tribunal which is in the following terms:

SCHEDULE

1. The Applicant, Mr William Walker, has worked for P & O Automotive & General Stevedoring (“P &O”) and its predecessors for 38 years. 
2. Mr Walker has been the elected Safety and Health Representative in his workplace for approximately 9 years although he has effectively operated in that position for longer than that. 
3. P & O employed new Managers in or about May 2007. Since that time, Mr Walker has been subject to discrimination and disadvantage by virtue of the fact that he is a Safety and Health Representative and that he has performed the function of a Safety and Health Representative. 
4. In particular, it is alleged that on 4 December 2007, P& O removed Mr Walker’s status as a Foreman for reasons allegedly related to performance. The applicant alleges he is being disadvantaged by virtue of that fact that he is a Safety and Health Representative and that he has performed the function of a Safety and Health Representative. 
5. On 12 February 2008, Mr Walker received a written warning for allegedly failing to adhere to the safety procedure at work and for allegedly participating in industrial action.  The Applicant denies these assertions and says instead that he is being disadvantaged by virtue of that fact that he is a Safety and Health Representative and that he has performed the function of a Safety and Health Representative. 
6. On 21 February 2008, Mr Walker received a written warning for allegedly failing to adhere to the safety procedure at work and for allegedly participating in industrial action. The Applicant denies these assertions and says instead that he is being disadvantaged by virtue of that fact that he is a Safety and Health Representative and that he has performed the function of a Safety and Health Representative. 
7. On 7 April 2008, Mr Walker had his status as a “Certificate IV Workplace Trainer” removed from him with no explanation.  The Applicant alleges he is being disadvantaged by virtue of that fact that he is a Safety and Health Representative and that he has performed the function of a Safety and Health Representative. 
8. The Applicant seeks the following:

8.1 The withdrawal of the written warnings issued on 12 and 21 February 2008;

8.2 The reinstatement of Foreman status;

8.3 The reinstatement of “Certificate IV Workplace Trainer” status;

8.4 Compensation for lost wages as a result of the withdrawal of the above; and

8.5 The fixing of a penalty for each breach pursuant to sections 3A and 35A of the Occupational Safety and Health Act 1984 (WA).”

3         The respondent denies the applicant’s claims on the merits and additionally, says that at the material times of the alleged acts of discrimination against the applicant as a safety and health representative, he was not a duly appointed representative under the OSH Act and therefore there can be no foundation to his claims. 

4         This latter contention is founded on the proposition that in or about May 2007 the respondent acquired the business of the applicant’s former employer, DP World General Stevedoring.  This transaction involved the incorporation of the respondent as a new entity and the termination of employment contracts with the applicant’s former employer and the offer and acceptance of fresh contracts of employment with the respondent.  It is therefore said that the applicant ceased to be an employee of his former employer upon that transaction and by the operation of s 32(2)(b) of the OSH Act, any election of the applicant as a safety and health representative ceased to have effect as a consequence of the acquisition of the business by the respondent and it becoming the new employer of the former employees, including the applicant.

5         In effect, the respondent’s contention is the applicant has no standing to commence these proceedings as any election of him as a safety and health representative prior to May 2007 did not survive the ensuing transmission of business and the OSH Act does not contemplate such as transmission in any event. 

6         It is also contended that regardless of the operation of s 32 of the OSH Act, the relevant factual circumstances relied upon by the applicant do not constitute a contravention of s 35A of the OSH Act.

Statutory Provisions

7         As a part of dealing with this threshold issue, it will assist to set out the relevant statutory provisions as follows. 

8         The referral to the Tribunal is made under s 35C of the OSH Act which is in the following terms:

“35C. Claim may be referred to the Tribunal

(1) A person may—

  (a) refer to the Tribunal—

 (i) a claim that the person’s employer or a prospective employer has caused disadvantage to the person in contravention of section 35A; or

 (ii) in the case of a contractor referred to in section 35B, a claim that the principal has contravened that section; and

 (b) request the Tribunal to make one or more of the orders provided for by section 35D.

(2) Subsection (1) applies whether or not —

 (a) the employer or prospective employer has been convicted of an offence under section 35A(4); or

 (b) the principal has been convicted of an offence under section 35B(3).

(3) A referral under subsection (1) may also be made on a person’s behalf by an agent or legal practitioner referred to in section 31 of the Industrial Relations Act 1979.

(4) Section 80E(1) of the Industrial Relations Act 1979 does not apply to a claim under subsection (1) by a Government officer within the meaning of that section.”

9         The foundation for the present referral to the Tribunal under s 35C is an allegation that the respondent has contravened s 35A of the OSH Act which provides as follows:

“35A. Discrimination against safety and health representative in relation to employment

 (1) An employer or a prospective employer must not cause disadvantage to a person for the dominant or substantial reason that the person —

 (a) is or was a safety and health representative; or

(b) is performing or has performed any function as a safety and health representative.

 (2) For the purposes of subsection (1) an employer causes disadvantage to a person if the employer —

 (a) dismisses the person from employment;

(b) demotes the person or fails to give the person a promotion that  the person could reasonably have expected;

 (c) detrimentally alters the person’s employment position; or

(d) detrimentally alters the person’s pay or other terms and conditions of employment.

 (3) For the purposes of subsection (1) a prospective employer causes disadvantage to a person if the prospective employer refuses to employ the person.

(4) An employer or prospective employer that contravenes subsection (1) commits an offence.”

10      In a case such as the present, where a matter is referred to the Tribunal alleging a contravention of s 35A and the Tribunal upholds such a claim, remedies may be granted by the Tribunal under s 35D of the OSH Act in the following terms:

  “35D. Remedies that may be granted

  (1) If, on the hearing of a claim under section 35C(1)(a)(i), the Tribunal is satisfied that an employer or a prospective employer has contravened section 35A, the Tribunal may —

(a) in the case of an employer, order the employer —

  (i) to reinstate the claimant if the claimant was dismissed from employment;

  (ii) to pay to the claimant such sum of money as the Tribunal considers adequate as compensation for loss of employment or loss of earnings; or

  (iii) both to reinstate the claimant and to pay the claimant the sum of money referred to in subparagraph (ii),as the Tribunal thinks fit; or

  (b) in the case of a prospective employer, order that person to pay the claimant such sum of money as the Tribunal thinks fit.

  (2) If, on the hearing of a claim under section 35C(1)(a)(ii), the Tribunal is satisfied that a principal has contravened section 35B, the Tribunal may order the principal to pay the claimant such sum of money as the Tribunal thinks fit.

  (3) In determining a claim under section 35C(1)(a)(i) the Tribunal may make any order of the kind mentioned in section 23A(3), (4) and (5)(a) of the Industrial Relations Act 1979 as if the claim were a claim to which section 23A of that Act applies.

  (4) In the determination of the amount of compensation for any loss of employment, loss of earnings or detriment —

  (a) the Tribunal is to have regard to any redress the claimant has obtained under another enactment; and

  (b) the claimant is not entitled to compensation both under this section and otherwise for the same loss of employment, loss of earnings or detriment.”

11      Material to the preliminary issue of the standing of the applicant to refer the present matter to the Tribunal is, as noted above, s 32 of the OSH Act dealing with the term of office of an elected safety and health representative.  This provision is as follows:

 “32. Terms of office

  (1) A person who is elected as a safety and health representative holds office, subject to this Act, for a term of 2 years.

  (2) A person ceases to hold office as a safety and health representative if — 

   (a) the person’s term of office expires and the person is not re‑elected;

   (b) the person ceases to be an employee who works at a workplace for which the person was elected;

          (ba) if the person was elected for a group of employees pursuant to a

                                            scheme under section 30A, the person ceases to be an employee

                                            who belongs to that group of employees;

   (c) the person resigns from office by notice given to the employer;

  (d) he or she is disqualified under section 34.” (My emphasis)

12      Of relevance for present purposes, is s 32(2)(b) referring to a safety and health representative ceasing to be an employee in a relevant workplace. 

Relevant Facts on Preliminary issue

13      The relevant factual circumstances for the purposes of determining this preliminary issue are not controversial. 

14      The applicant has been a waterside worker for over 38 years.  He has been employed by the respondent and its predecessor companies over this period of time.

15      In March 2006 DP World purchased the assets of P & O Ports Limited internationally.  DP World then separated the break bulk general cargo and automotive operations and created a new company, the respondent, to conduct that business, which it did from 1 May 2007.  On the acquisition and incorporation of the respondent, employees formerly employed by P & O Ports Limited, including the applicant, had their contracts of employment terminated with the former employer, and the respondent made fresh offers of employment to employees across its business nationally.

16      Evidence of this transaction is contained in a letter from the respondent to the applicant dated 9 May 2007 and tendered as exhibit R2.  Whilst the applicant’s actual letter of appointment with the respondent could not apparently be located, and consequently was not tendered in evidence, exhibit R2 refers to the sale of business and the transmission of various industrial instruments that formerly applied to P & O Ports Limited.

17      Also in evidence as exhibit A1, is a letter from the WorkSafe Western Australia Commissioner dated 16 January 2007, to the applicant, addressed to “P & O Ports” congratulating the applicant on his election as a safety and health representative.  This letter also bears a reference to an identification number described as “Your Shrepid ID: 20063082”.  This letter contained general information about the role of a safety and health representative in the workplace.

18      Counsel for the respondent put in issue whether exhibit A1 was sufficient to establish that at that time the applicant had been elected as a safety and health representative without evidence as to compliance with the statutory procedures for such an election specified in Part IV of the OSH Act.  Having considered this matter I am prepared to accept that exhibit A1 is prima facie evidence of such an election and that the presumption of regularity applies.  As was said by Griffith CJ in McLean Bros & Rigg Limited v Grice (1906) 4 CLR 835 at 850:

“It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of the prior act.”

19      Furthermore, in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, McHugh JA (as he then was) considered the application of the presumption of regularity doctrine and observed at 164 in the following terms:

“Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.”

 (See also Industrial Equity Ltd v DCT (1990) 170 CLR 649; Rosebanner Pty Ltd v Energy Aust [2009] NSWSC 43 per Ward J at pars 79-83)

20      There was no suggestion that exhibit A1, being the letter from WorkSafe, was other than what it appeared to be.  I am therefore satisfied that this correspondence from the statutory agency responsible for the administration of the OSH Act confirmed the election of the applicant as a safety and health representative for the workplace at the time as specified, that being in or about January 2007.  I therefore agree with the submissions of counsel for the applicant that in the present case, the presumption of regularity applies.  That is, evidence of confirmation by the official body responsible for the administration of the OSH Act, of the election of a safety and health representative, carries with it the presumption that the steps preceding it, as required by s 31 of the OSH Act, have been complied with.

21      I therefore do not accept the contentions of the respondent that evidence of the process of the election of the applicant as a safety and health representative under Part IV of the OSH Act is required in this case.

22      I am therefore satisfied on the evidence and I find that as at 16 January 2007 prior to the transmission of business to the respondent, the applicant was a validly elected safety and health representative for the purposes of Part IV of the OSH Act.  The critical issue however, for resolution, is whether the election of the applicant as a safety and health representative for his workplace “transmitted” on the commencement of the respondent’s business from May 2007, and the applicant’s employment by that entity from in or about that time.  This is necessary to resolve because the alleged acts of disadvantage to the applicant caused by the respondent all occurred after the transmission of business in May 2007.

23      Consideration of this issue necessarily entails the proper construction of s 32(2)(b) of the OSH Act, set out above.  In particular, it necessitates consideration as to whether s 32(2)(b) operated in May 2007, such that the applicant ceased to hold office as a safety and health representative because he ceased to be an employee of P & O Ports Limited and became an employee of the respondent at Fremantle.

Respondent’s Contentions

24      Counsel for the respondent submitted that a safety and health representative’s term of office runs for two years unless the person ceases to hold office for the reasons specified in pars (a)‑(d) of s 32(2) of the OSH Act.  In particular, the respondent submitted that s 32(2)(b) is relevant to the present case as it has only been the employer at the applicant’s workplace since May 2007.  Prior to May 2007, the stevedore and the applicant’s employer was P & O Ports Limited and subsequently DP World.

25      It was submitted that as a consequence of this transaction, and a transmission of business, that the applicant ceased to be “an employee who works at a workplace for which the person was elected.”  That is, the implication of the submission of the respondent was that there is a necessary nexus between the position of a person as an elected safety and health representative under the OSH Act, and that person’s status as an employee of the relevant employer for the purposes of s 35A of the OSH Act.

26      As the argument runs, when the applicant’s contract of employment with the previous employer came to an end, so did his election as a safety and health representative, which position did not “transmit” to the respondent.  Necessarily, as this submission goes, there would need to be evidence that the applicant became a duly elected safety and health representative at the respondent’s workplace after May 2007 and he was in such a position, or had been in such a position as an employee of the respondent, when the alleged contraventions of s 35A of the OSH Act took place, they being from in or about December 2007 to in or about April 2008.

27      The only other evidence before the Tribunal, which I accept, of the applicant’s re-election as a safety and health representative for the workplace was contained in a letter dated 9 September 2008 from the WorkSafe Commissioner tendered as exhibit A2.  However, this letter referred to a period after the alleged discriminatory conduct by the respondent against the applicant as an elected safety and health representative.

28      For these reasons, the respondent submitted that at the material times of the alleged discrimination, the applicant was not a safety and health representative, nor had he been a safety and health representative, and therefore could not have performed any function as such, as an employee of the respondent, to ground the alleged contraventions of s 35A of the OSH Act.

Applicant’s Contentions

29      Counsel for the applicant contended that the respondent’s construction of s 32(2) of the OSH Act is erroneous.  It was submitted by the applicant that the terms of exhibit A1 referring to the confirmation of the applicant’s election as a safety and health representative would, by the operation of s 32(1) of the OSH Act, mean he would occupy that position for a period of two years through until January 2009.  It was submitted that on its proper construction, s 32(2)(b) of the OSH Act does not create a necessary nexus between the person occupying the position of an elected safety and health representative and that person being an employee of a particular employer.  The applicant contended that the office of an elected safety and health representative would continue in a particular “workplace” regardless of the identity of the employer.

30      In this connection, counsel for the applicant referred to the definition of “workplace” as set out in s 3 of the OSH Act that being:

“A place whether or not in an aircraft, ship, vehicle, building, or other structure, where employees or self-employed persons work or are likely to be in the course of their work.”

31      It was submitted by the applicant that some importance is to be attached to the fact that the definition of “workplace” in s 3 of the OSH Act is a geographical definition and is not in any way confined by reference to a particular employer.

32      In support of this contention, the applicant further submitted that the duties and responsibilities of an elected safety and health representative are not attached to any particular employer but are referable solely to the employee’s workplace.  In this connection, it was said that s 32(2)(b) of the OSH Act makes no reference to the term ceasing when a person ceases to be employed by an employer, but rather, when they cease to be employed at “a workplace.”  It follows therefore, on the facts of this case, as the submission went, that as the applicant continued to be employed at the same physical workplace, and represented essentially the same group of employees, despite the change in the identity of the employer, there was no cessation of his position as an elected safety and health representative by the operation of s 32 (2)(b) of the OSH Act.

33      In essence, the submission was that the applicant’s position as an elected safety and health representative with the predecessor employer “transmitted” on the sale of business, to the respondent. Therefore, at the material times of the alleged contravention by the respondent of s 35A of the OSH Act, the applicant was a duly elected safety and health representative, sufficient to ground his claims.

34      Furthermore, and as an alternative submission, the applicant contended that in any event, when the respondent acquired the Fremantle operations and adopted the policies and procedures of the previous employer P & O Ports Limited, there was a transmission of all positions.  I understood this submission to be that this would include the applicant’s status as an elected safety and health representative for the Fremantle workplace.

Consideration of the Preliminary Issue

35      I have set out a number of the relevant statutory provisions above.  I also, in the analysis which follows, refer to a number of other provisions of the OSH Act, having regard to the foundation principle that for the purposes of statutory interpretation, a particular provision of a statute should be construed within the context of the statute as a whole.

36      In Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 153 ALR 490 the High Court considered the principles applicable to the process of statutory interpretation.  In the joint judgment of McHugh J, Gummow, Kirby and Hayne JJ it was said at pars 69‑71 as follows:

“[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.45 The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole".46 In Commissioner for Railways (NSW) v Agalianos,47 Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.48

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.49 Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.50 Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other".51 Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision.52 In Commonwealth v Baume53 Griffith CJ cited R v Berchet54 to support the proposition that it was "a known rule in the interpretation of statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.”

37      Additionally, of course, by s 18 of the Interpretation Act 1984 (WA), in the interpretation of a written law, a construction that would promote the purpose or object of the written law is to be preferred to one that does not.

38      By s 3 of the OSH Act, a safety and health representative “means a safety and health representative elected under Part IV Division 1.”  The most relevant provision of Division 1 of Part IV for present purposes is s 31, dealing with the election process for safety and health representatives. However, as I have concluded above, the confirmation letter from WorkSafe, referring to the applicant’s initial election as a safety and health representative dated 16 January 2007 (exhibit A1), is prima facie evidence of that election.  The issue is whether that election survived the transmission of business to the respondent which occurred in or about May 2007.

39      Also by s 3 of the OSH Act, “employee” is defined to mean:

 “employee means

 (a) a person by whom work is done under a contract of employment; or

 (b) an apprentice or trainee;…”

40      Furthermore, “employer” is defined to mean:

 “employer means

 (a) a person that employs an employee under a contract of employment; and

  (b) in relation to an apprentice or trainee, the person that employs the apprentice or trainee under an apprenticeship or traineeship scheme under the Industrial Training Act1975;”

41      By Part III of the OSH Act, general provisions relating to occupational safety and health are set out.  In particular, in Division 2 the general duties of care of employers, employees, self-employed persons and others are prescribed.  By s 19, an employer has a general duty to its employees to as far as is practicable, provide and maintain a working environment where the employees are not exposed to hazards.  By s 19(1)(a)-(e), notwithstanding that general duty of care, more particular obligations of the employer to its employees are set out.

42      In particular I note in s 19(1)(c) of the OSH Act that the employer has an obligation to consult and co-operate with safety and health representatives, if any, and other employees at the workplace concerning safety and health matters.  The language of this provision as to obligations to safety and health representatives strongly suggests that it is those representatives who are employed by the employer, in relation to whom the employer owes such a duty.  The entire tenor of s 19, in relation to employer obligations, is to discharge the statutory duties in relation to employees of that employer.

43      By s 20 of the OSH Act, various duties upon employees are set out.  Again, whilst a general obligation is placed upon an employee to ensure their own safety and that of others at work, the specific obligations in s 20(2) are clearly cast upon the employee vis a vis the employment relationship with his or her employer.  This is consistent with the statutory scheme as set out in s 19 of the OSH Act dealing with duties of employers.

44      By Division 6 of the OSH Act, provisions are set out for the resolution for workplace issues concerning safety and health.  In particular, s 24 specifies that where an issue concerning safety and health arises at a workplace the employer is required to attempt to resolve that issue with a safety and health representative, a safety and health committee or the employees, whichever is specified in the relevant dispute resolution procedure.  By s 26, an employee of an employer may refuse to work in circumstances where they may be exposed to a risk of serious or imminent injury or imminent or serious harm to their health.  In such circumstances, the employer concerned is to be notified and the employee may be assigned other work by the employer until it is safe to resume the usual work.

45      From an analysis of the general duties provisions in Part III of the OSH Act, it is reasonably clear that the obligations are in the main couched in terms of an existing employer and employee relationship(s).  This in particular includes those obligations of employers to consult and cooperate with safety and health representatives under s 19(1)(c) of the OSH Act, which on its proper construction in my opinion, refers to safety and health representatives in their capacity as an employee of the relevant employer.

46      Part IV of the OSH Act, as noted above, contains provisions in relation to safety and health representatives and committees.  By s 29(1) an employee who works at a workplace can give notice to the employer requesting the election of a safety and health representative.  By s 30(1), the employer who is so provided with a notice under s 29(1), is obliged to invite employees to nominate delegates for discussions about certain matters as specified in s 30(4).  I note in particular that by s 30(4)(ba) discussions are to take place between the employer and employees as to how a vacancy in the office of a safety and health representative that occurs in the circumstances mentioned in s 32(2)(b) is to be dealt with.

47      If as the applicant contends, the terms of s 32(2)(b) do not require a safety and health representative to be in an employer/employer relationship with the relevant employer for the purposes of s 35A of the OSH Act, it is surprising that the Parliament on the enactment of the OSH Act would require the employer to consult with its employees about such a matter.

48      Furthermore by s 33 of the OSH Act, the functions of safety and health representatives are set out.  Whilst the introductory part of s 33(1) refers to the “workplace for which he or she was elected,” by s 33(1)(a), (e), (d), and (f), the functions and obligations upon a safety and health representative are, in my opinion, to be construed in terms of the relationship between the particular safety and health representative as an employee of his or her employer.

49      Of some significance also, by s 34 of the OSH Act, provisions concerning the disqualification of safety and health representatives are set out.  Leaving aside the particular grounds which can found a disqualification application, s 34(2) sets out those persons who may refer a disqualification application to the Tribunal.  Of note, it is only the safety and health representative’s employer, another employee, or the WorkSafe Commissioner who has standing to raise such a matter.  In my opinion, s 34(2)(a) of the OSH Act reinforces the necessary connection between the occupant of the office of a safety and health representative, his or her conduct in the workplace and his or her employer.

50      The key provision for the purposes of the applicant’s claim before the Tribunal is s 35A of the OSH Act, the terms of which have been set out above.

51      By s 35A(1), there exists a general prohibition upon an employer or a prospective employer, from causing disadvantage as defined in s 35A(2).  The circumstances of disadvantage for the purposes of the general prohibition in s 35A(1) are specified in s 35A(2).

52      The first circumstance, in s 35A(2)(a), is if the employer dismisses the person from employment.  It is immediately apparent from this provision that the only person who may exercise the contractual power to dismiss an employee, is the person’s employer.

53      Secondly, by s 35A(2)(b), a demotion, or the failure to provide a promotion, also constitutes relevant disadvantage.  Again, upon its proper construction in my view, the only person who may exercise any contractual capacity to demote, or fail to promote a person, is that person’s employer.

54      Finally, by s 35(2)(c) and (d) further circumstances of disadvantage are specified. These being detrimentally altering a person’s employment position or detrimentally altering a person’s pay and other terms and conditions of employment.  Likewise, as with ss 35A(2)(a) and (b) of the OSH Act, it seems difficult to conclude otherwise that the only person who could be capable of exercising such a power would be the person’s employer under the relevant contract of employment.

55      Furthermore, by s 35C(1)(a)(i), a person may refer claims of disadvantage in contravention of s 35A of the OSH Act to the Tribunal for determination.  Notably, the language of par (i) refers to a claim that “the person’s employer … caused disadvantage…”.  In my view, this can only be sensibly interpreted as referring to disadvantage caused by the employer of the employee in an extant or former employment relationship that satisfies the requirements of s 35A(1) and (2) of the OSH Act.

56      I refer to the facts as I have found them to be in this matter, and the proper construction of relevant provisions of the OSH Act set out above.  In my view, at the material times of the alleged disadvantage said to have been caused to the applicant by the respondent, the applicant was not and never had been a safety and health representative nor had he performed the functions of a safety and health representative as an employee of the respondent.

57      This conclusion is reinforced by the remedies that may be granted by the Tribunal under s 35D(1)(a) of the OSH Act.  In this respect, the Tribunal, if satisfied a contravention of s 35A of the OSH Act has occurred, may grant relief to a person who is or was in an employment relationship with the employer, who engaged in the relevant contravening conduct. 

Conclusion

58      Based upon the foregoing analysis, and the findings of fact that I have made, the reference to a “safety and health representative” for the purposes in the relevant provisions of the OSH Act is a reference to a person who is or was a safety and health representative as an employee of the particular employer alleged to have contravened s 35A of the OSH Act at the relevant time.

59      For all of these reasons, in my opinion, given that the applicant has not been able to establish that he was or had been a safety and health representative at the material times of the allegations or was performing or had performed a function of a safety and health representative, as an employee of the respondent, then he has no standing to bring the present proceedings before the Tribunal.  In my opinion, upon its proper construction, the relevant provisions of the OSH Act, as considered above, do not contemplate the “transmission” of the office of an elected safety and health representative from one employer to another.

60      Therefore the applicant’s claims must be dismissed.