REVIEW OF IMPROVEMENT NOTICES

THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL

CITATION : 2015 WAIRC 00057

DELIVERED : monday, 2 february 2015

FILE NO. : OSHT 3 OF 2014

Appellant

AND

The WorkSafe Western Australia Commissioner

Respondent

CatchWords : Occupational Safety and Health Act 1984 - Further review by Tribunal under s 51A – Jurisdiction - Whether a referral can refer more than one improvement notice for further review - Relevant context and nature of the review by WorkSafe Western Australia Commissioner and further review by Tribunal - Interpretation of s 51A(1) – Amendment of referral  - Documentary discovery

Legislation : Occupational Safety and Health Act 1984 (WA) s 51, s 51(1), (5) & (6), s 51A, s 51A(1) & (5), s 51I, s 51I(1), Industrial Relations Act 1979 (WA) s 27(1), Interpretation Act 1984 s 10, Industrial Relations Commission Regulations 2005 (WA) r 20, r 97

Result : Declaration made that a referral of more than one improvement notice is valid and orders issued for amendment and documentary discovery

Representation:

Counsel:

Appellant : Ms M Saraceni

Respondent : Ms A Crichton-Browne

Solicitors:

Appellant : Lander & Rogers

Case(s) referred to in reasons:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29

Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, WA Branch v Burswood Resort (Management) Limited (1995) 75 WAIG 1801

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044

Lacey v Attorney General of Queensland) [2011] HCA 10; (2011) 242 CLR 573

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

WorkSafe Western Australia Commissioner v Anthony and Sons Pty Ltd T/A Oceanic Cruises [2006] WAIRC 05438

WorkSafe Western Australia Commissioner v The Original Croissant Gourmet Pty Ltd [2007] WAIRC 01273

Wormald Security Australia Pty Limited v Peter Rohan (1994) 74 WAIG 2

Reasons for Decision

1          On 24 December 2014 Reece Pty Ltd (Reece) lodged Form 7 – Notice of Referral to the Occupational Safety and Health Tribunal (the Tribunal) to the Registry of the Commission.  The purpose of the referral is described as:

An application to review Improvement Notices 9000627, 90006228 and 90006235 pursuant to s 51A of the Occupational Safety and Health Act 1984. 

2         Attached to it was a one page schedule of the grounds upon which the referral was made.

3         When the referral was listed for a directions hearing on 20 January 2015 a number of preliminary issues were raised and hearing was relisted on 27 January 2015 when the Tribunal reserved its decision.

Background

4          Three Improvement Notices numbered 90006227, 90006228 and 90006235 were issued by Inspector Mott to Reece on 27 October 2014.  The notices state as follows:

“Improvement Notice 90006227

1. In relation to: inappropriate workplace culture and behaviour

at 11 PACKARD ST JOONDALUP 6027 on 24 Oct 2014

I have formed the opinion that you are contravening section 19(1) of the Occupational Safety and Health Act 1984 and the grounds for my opinion are:

My investigation revealed you are the employer at this work environment. During my investigation, discussions and review of documents I identified that during 2013 to October 2014 some employees at the work environment have reported being exposed to inappropriate workplace behaviour including swearing, being locked in toilets, having objects thrown at them, and having their personal effects hidden from them, which may give rise to a psychological injury or harm to health.  Discussion with employer representatives and employees indicated the workplace has an accepted culture of practical joking and inappropriate behaviour that does not adhere to the company's stated values.  The identified inappropriate workplace behaviour has not been appropriately addressed through the workplaces disciplinary or performance management policies.  It is practicable to have an appropriate system in place and to apply policies and procedures in a consistent manner.

You are required to remedy the above by no later than 12 Dec 2014 at 1700 hours.

2. You are directed to take the following measures: see attached improvement notice

In consultation with employees develop a set of explicit expected workplace behaviours that reflect the company's values and display in prominent places in the workplace. Ensure all employees are aware of the expected behaviours and review these behaviours with employees on at least a biannual basis. In addition review the effectiveness of the current policies and procedures in place to address inappropriate workplace behaviour taking into account recent experiences at the workplace.

For guidance refer to the Code of Practice for Violence, Aggression and Bullying at Work 2010 P25 onwards.”

“Improvement Notice 90006228

1. In relation to: Supervisor Training

at 11 PACKARD ST JOONDALUP 6027 on 24 Oct 2014

I have formed the opinion that you are contravening section 19(1) of the Occupational Safety and Health Act 1984 and the grounds for my opinion are: My investigation revealed you are the employer at this work environment.  During my investigation, discussions and review of documents I identified that during 2013 to October 2014 some employees at the work environment have reported being exposed to inappropriate workplace behaviour including swearing, being locked in toilets, having objects thrown at them, and having their personal affects hidden from them and this type of behaviour is known to have an effect on a persons psychological health.  The workplace has an accepted culture of practical joking and inappropriate behaviour that does not adhere to the companies stated values and the inappropriate workplace behaviour has not been appropriately managed by supervisors.  It is practicable to manage this behaviour.

You are required to remedy the above by no later than 30 Jan 2015 at 1700 hours.

2. You are directed to take the following measures: Provide training to all supervisors and managers as appropriate to enable them to identify inappropriate workplace behaviour, to intervene early to address the inappropriate behaviour, to promote an acceptable workplace culture by modeling appropriate behaviours, to appropriately apply policies and procedures, and how to have difficult conversations with employees.”

“Improvement Notice 90006235

1. In relation to: employee information on respectful workplace behaviour

at 11 PACKARD ST JOONDALUP 6027 on 24 Oct 2014

I have formed the opinion that you are contravening section 19(1) of the Occupational Safety and Health Act 1984 and the grounds for my opinion are: My investigation revealed you are the employer at this work environment. During my investigation, discussions and review of documents I identified that during 2013 to October 2014 some employees at the work environment have reported being exposed to inappropriate workplace behaviour including swearing, being locked in toilets, having objects thrown at them, and having their personal affects hidden from them and this behaviour is know to effect a persons psychological health. The workplace has an accepted culture of practical joking and inappropriate behaviour that does not adhere to the companies stated values. It is practicable to provide employees with information, instruction and training on respectful workplace behaviour.

You are required to remedy the above by no later than 30 Jan 2015 at 1700 hours.

2. You are directed to take the following measures: Provide training to all employees on a bi-annual basis to enable them to identify respectful and appropriate workplace behaviour, to identify inappropriate behaviour, to be able to raise any concerns with workplace behaviour as soon as identified, to be able to address at the lowest level initially inappropriate behaviour, and to promote an acceptable workplace culture by modelling appropriate behaviours.”

5          Reece sought a review of those Notices by the WorkSafe Western Australia Commissioner pursuant to s 51 of the Occupational Safety and Health Act 1984 (WA) (the OSH Act).  On 18 December 2014 the WorkSafe Western Australia Commissioner wrote a letter to Reece’s solicitors.  The letter is headed:

Review of Improvement Notices 90006227, 90006228 & 90006235. 

6          The first five paragraphs of the letter refer to the three notices.  There then follows a heading for Improvement Notice 90006227 followed by two paragraphs; a heading for Improvement Notice 90006228 and three paragraphs; and a heading for Improvement Notice 90006235 followed by three paragraphs.  The letter concludes with a heading “Further information” which contains information “[i]n relation to practicable measures to address the above-mentioned hazards…”.  It is followed by a heading “Display of the notices and this letter” with a direction to Reece to display a copy of the letter and the notices it modifies in a prominent place at the workplace affected by the notices.  Finally, there is a heading “Further review” which informs Reece of its right to seek a review of the decisions by the Tribunal.  It states that requests for further review must be made “within seven days of the issuance of this letter”.

7          The following preliminary issues were raised by WorkSafe and Reece.

Jurisdiction

8          WorkSafe submits that every Improvement Notice forms a separate proceeding and requires a separate decision by the Tribunal.  The orders available to the Tribunal are prescribed by s 51A(5)(a) to (c) of the OSH Act.  The Tribunal cannot carry out one review and make one review order in relation to a group of notices.  Accordingly, the referral to the Tribunal in Form 7 is one referral which can refer only one Improvement Notice to the Tribunal for review; to the extent that it purports to refer all three Improvement Notices for review, it is invalid.

9          WorkSafe submits further that it is not open now to Reece to refer the other two Improvement Notices to the Tribunal for review as Reece is now out of time to do so.  The powers given to the Tribunal in s 27(1)(n) of the Industrial Relations Act 1979 (the IR Act) and s 51I(1) of the OSH Act is a power able to be exercised only when the Tribunal already has jurisdiction in relation to a matter; as the referral in this matter can apply to only one Improvement Notice, the Tribunal does not have the jurisdiction to review the other two Improvement Notices.

10       In reply, Reece submits that the referral to the Tribunal under s 51A is against the decision of the WorkSafe Western Australia Commissioner’s review of the three Improvement Notices.  This decision was one letter in which the Commissioner makes reference to the three Improvement Notices.  The history of the three Improvement Notices is that they were issued on the same day by the same Inspector and they each allege a breach of the same s 19(1) of the OSH Act; the request for an internal review under s 51(1) of the OSH Act made by Reece on 21 November 2014 was by way of one application; and the WorkSafe Western Australia Commissioner gave notice in writing of his decision on the reference and the reasons in one notice, being the letter of 18 December 2014.

11       Reece submits that the three Improvement Notices have been dealt with concurrently and without any confusion or complaint even by WorkSafe.  There is no reason, or no justifiable reason, why they should not continue to be dealt with under one reference albeit separate reasons for decision being given for each notice.  Reece submits that in these circumstances there is no prohibition in initiating one reference to the Tribunal for more than one Improvement Notice.

12       Reece also refers to the Tribunal not being a court of pleadings saying that the Tribunal has a statutory requirement that any claims before it be dealt with with as little formality as circumstances permit and according to equity, good conscience and the substantial merits of the case without regards to technicalities or legal forms.

13       Reece refers to an authority cited by WorkSafe, The WorkSafe Western Australia Commissioner v The Original Croissant Gourmet Pty Ltd [2007] WAIRC 01273 where the reference for review was one reference of two Improvement Notices.

Consideration

14       Sections 51 and 51A of the OSH Act are as follows:

51.  Review of notices by Commissioner

(1) An improvement notice or prohibition notice may, in accordance with this section, be referred for review to the Commissioner by —

(a) the person issued with the notice; or

(b) the employer (if any) of the person issued with the notice.

(2) A reference under subsection (1) may be made in the prescribed form —

(a) in the case of an improvement notice, within the time specified in the notice as the time before which the notice is required to be complied with;

(b) in the case of a prohibition notice, within 7 days of the issue of the notice or such further time as may be allowed by the Commissioner.

[(3), (4) deleted]

(5) On the reference under this section of an improvement notice or a prohibition notice for review, the Commissioner shall inquire into the circumstances relating to the notice and may —

  (a) affirm the notice; or

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

  (c) cancel the notice,

 and, subject to section 51A, the notice shall have effect or, as the case may be, cease to have effect, accordingly.

(6) The Commissioner shall give to the person that referred the matter for review, and to any other person that was entitled under subsection (1) to refer the notice for review, a notice in writing of the decision on the reference and of the reasons for that decision.

(6a) In dealing with a reference for the review of a prohibition notice the Commissioner may refer to an expert chosen by the Commissioner such matters as appear appropriate and may accept the advice of that expert.

(7) Pending the decision on a reference under this section for the review of a notice, the operation of the notice 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 Commissioner.

51A. Review of notices by Tribunal

(1) A person issued with notice of a decision under section 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 within 7 days of the issue of the notice under section 51(6).

(3) A review of a decision made under section 51 shall be in the nature of a rehearing.

(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; or

(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) deleted]

(7) Pending the decision on a reference under this section, irrespective of the decision of the Commissioner under section 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.

15       Whether the one referral to the Tribunal validly refers the three Improvement Notices depends upon a proper interpretation of s 51A(1).   Statutory construction begins with a consideration of the text itself and may require consideration of the context including the general purpose and policy of the provisions: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044.  In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]  Hayne, Heydon, Crennan and Kiefel JJ said the following about the task of statutory construction:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

16       The objective of statutory construction is to give the words of the statutory provision the meaning which the legislature is taken to have intended them to have:  Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 per Martin CJ at 29 citing Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78]; Lacey v Attorney‑General of Queensland [2011] HCA 10; (2011) 242 CLR 573 at [43]. 

17       The text of s 51A(1) is that a person issued with a notice of decision who under s 51(6) may, if not satisfied with the decision, refer the matter to the Tribunal for further review.  The word “matter” in s 51A(1) is critical to the issue raised by WorkSafe. 

18       The person who refers the matter to the Tribunal for further review is the person issued with notice of a decision under s 51(6), and who is not satisfied with that decision.  The matter in s 51A(1) therefore takes its character from the Commissioner’s decision under s 51(6) although s 51A(1) does not say that it is the WorkSafe Western Australia Commissioner’s decision which is referred to the Tribunal for further review.  The matter referred to the Tribunal for further review under s 51A(1) is the matter about which the decision of the WorkSafe Western Australia Commissioner was made.

19       The decision of the WorkSafe Western Australia Commissioner referred to in s 51(6) is a decision on the reference to the Commissioner for review under s 51(1).  Section 51(1) provides that an Improvement Notice may be referred for review to the Commissioner.  It follows that the decision of the WorkSafe Western Australia Commissioner in s 51(6) is the decision on the referral of an Improvement Notice for review to him under s 51(1).

20       Therefore the “matter” which is referred to the Tribunal for further review in s 51A(1) is the matter of the review of the Improvement Notice which was the subject of the decision of the Commissioner in s 51(6).  This conclusion is reinforced by the duty on the Tribunal in s 51A(5) to inquire into the circumstances relating to the notice.

21       This conclusion is also consistent with authority. In WorkSafe Western Australia Commissioner v Anthony and Sons Pty Ltd T/A Oceanic Cruises [2006] WAIRC 05438, the Full Bench of the Commission dealt with an appeal against a declaration made by the Tribunal that it had the power to consider an application to extend the seven day period for lodging a s 51A referral.  In the course of dealing with the appeal the Full Bench referred to s 51A(1) of the Act and at [38] stated that:

“… the “matter” is the non-satisfaction with the [WorkSafe Western Australia Commissioner]’s decision under s 51(6) of the OSH Act, of the person who has been issued with the notice of the decision”.

22       In The WorkSafe Western Australia Commissioner v The Original Croissant Gourmet Pty Ltd (op cit) the Full Bench dealt with an appeal against a decision of the Tribunal.  In the course of dealing with that appeal, the Full Bench stated the applicable legislation and the procedure which had been followed in the matter at first instance.  The Full Bench noted that an Improvement Notice or Prohibition Notice may be referred for review to the WorkSafe Western Australia Commissioner in s 51(1) of the OSH Act and noted in [85] that the scope of the review by the WorkSafe Western Australia Commissioner is to inquire into the circumstances relating to the Improvement Notice which has been issued. 

23       The Full Bench noted at [86] that each of the Commissioner’s powers under s 51(5) are about, and are directed to, the notice, being the Improvement Notice which has been issued.  The Full Bench noted:

“In this case, the subject of the referral to the [WorkSafe Western Australia Commissioner] was the first and second improvement notices.”

24       The Full Bench then considered the further review by the Tribunal.  At [90] the Full Bench stated:

As stated the “decision” of the [WorkSafe Western Australia Commissioner] may be referred for further review to the Tribunal under s 51A of the OSH Act.  It is that “decision” which is the “matter” referred to in s 51A(1) and (2) of the OSH Act…  The “notice” of the appellant referred to in s 51A(1) and s 51(6) of the OSH Act is the notice of the decision rather than the decision itself.

25       The Full Bench referred to s 51A(5) which provides that the Tribunal shall inquire into the circumstances relating to the notice, this being the same expression as used in s 51(5).  In the opinion of Ritter AP, within whom the other members of the Full Bench agreed, the word “notice” referred to is the Improvement, or Prohibition Notice as the case may be, as opposed to the notice of decision of the WorkSafe Western Australia Commissioner provided for in s 51(6) of the OSH Act.  An inquiry into the circumstances relating to the Improvement Notice is thus required.  At [94] the Full Bench noted that the Tribunal in effect is to inquire into the circumstances relating to the Notice to see if the WorkSafe Western Australia Commissioner’s decision about the justified ability of the Inspector forming the opinion he did is in turn justified.

26       In this case, the decision of the WorkSafe Western Australia Commissioner under s 51(6) was the decision resulting from the Commissioner’s inquiry into the circumstances relating to the three improvement notices which had been referred to him for review under s 51(1).  The ‘matter’ which s 51A(1) permits to be referred to the Tribunal for further review is the review of those three Improvement Notices which had been referred to the WorkSafe Western Australia Commissioner for review under s 51(1).

27       WorkSafe submits that each Improvement Notice forms a separate proceeding.  However, I am not persuaded that a proper construction of s 51 and s 51A supports that conclusion.  Section 51 provides that an improvement notice or prohibition notice may be referred for review to the WorkSafe Western Australia Commissioner.  In any written law, words in the singular number include the plural and vice versa (Interpretation Act 1984, s 10).  Accordingly, by s 51(1), an improvement notice or notices may be referred for review to the WorkSafe Western Australia Commissioner.  That is what happened in this case.  The text of s 51A(1) does not require the further review of each improvement notice to be a separate proceeding.  

28       WorkSafe submits further that the decision of the WorkSafe Western Australia Commissioner under s 51(6) in this case was in reality three decisions and not one decision.  That is correct and follows from the requirement in s 51(5) that the Commissioner inquire into the circumstances of each notice referred to him for review.  It does not follow however that s 51A(1) requires each decision to be separately referred to the Tribunal by a separate referral.  It requires only that the matter, in this case the review of the three Improvement Notices referred to the Commissioner, be referred to the Tribunal.

29       WorkSafe also submits that each Improvement Notice requires the Tribunal to make a separate decision relating to it and this is a further reason why every Improvement Notice forms a separate proceeding.  While I consider it is correct that the further review of each Improvement Notice by the Tribunal pursuant to s 51A(5) will require a separate decision, it does not follow that each decision requires a separate or discrete referral to do so.   Once the Tribunal has the jurisdiction to deal with the matter, it has the broad powers in s 27 of the IR Act and s 51I of the OSH Act available to it.  Those powers do not restrict the Tribunal to issuing only one of the decisions in s 51A(5) when it inquires into the circumstances relating to each Improvement Notice in the matter referred to it for further review.  Further, if necessary in a particular case, it has the power in s 27(1)(s) to divide any matter before it and may issue a decision in s 51A(5) in relation to each divided matter.  Whether the use of that power is necessary will depend upon the circumstances of the case.

30       For the foregoing reasons I find that the referral to the Tribunal in this matter which embraces all three Improvement Notices is a valid referral under s 51A(1) of the OSH Act.

Amendment of the Referral

31       Reece seeks a number of amendments to be made to the referral.

Amendment of the text of the referral

32       The Notice of Referral prepared by Reece, through its legal representatives, stated that it was:

An application to review Improvement Notices 9000627, 90006228 and 90006235 pursuant to s 51A of the Occupational Safety and Health Act 1984.

33       Reece filed an amended Notice of Referral on 23 January 2015 and seeks an order amending the referral accordingly.  The amendment will amend the referral so that it says:

An application to review the decision of the WorkSafe Western Australia Commissioner made on 18 December 2014 in relation to his review of the issuing of Improvement Notices 90006227, 90006228 and 90006235 on 27 October 2014, pursuant to s.51A of the Occupational Safety and Health Act 1984.

34       The Notice of Referral refers to Improvement Notice “9000627”.  The correct number is 90006227 and Reece seeks an amendment to correct the number.  My understanding is that WorkSafe does not object to the amendment once the Tribunal has determined that the referral is properly before it.  In my view, it will simply correct a typographical error.  There is no suggestion of any detriment to WorkSafe if the amendment is granted.  It is appropriate to do so and the amendment is granted.

35       The Notice of Referral states that it is an application to review the Improvement Notices pursuant to s 51A of the OSH Act.  Granting the application to amend the text of the referral in the manner now sought will not change the fact that it was, and is, a referral to the Tribunal under s 51A of the OSH Act.  Although a referral under s 51A is not in form “an application to review” an improvement notice, the referral was in substance Reece exercising its right under s 51A for a further review by the Tribunal of the review it had sought under s 51 by the WorkSafe Western Australia Commissioner.   There is no detriment to WorkSafe if the amendment is granted and it is appropriate to do so.

Amendment of the grounds of the referral

36       There are three grounds in the referral.  The first ground is that the Inspector did not have reasonable grounds to form an opinion about the matters set out in nine subparagraphs.  The second ground is that the Inspector inappropriately issued three separate improvement notices alleging the “same inappropriate behaviour”.  The third ground is that the Inspector inappropriately issued three separate improvement notices relying on the same alleged inappropriate behaviour to then stipulate three separate ways to rectify the same alleged contravention of the OSH Act.

37       Reece seeks to amend the grounds.  In relation to ground one, Reece seeks to insert as a preamble to the existing ground a reference to the WorkSafe WA Commissioner’s decision as follows:

1. The Commissioner was not justified in holding that on the evidence available to him that there were reasonable grounds for Inspector Mott to have been justified in forming her opinion that on 24 October 2014, the Appellant was that day contravening s 19(1) of the Occupational Safety and Health Act 1984.

38       There then follow nine subparagraphs (although numbered only to (viii) there are two numbered (vi)) which are in most respects identical to the nine subparagraphs in the current grounds.  The existing subparagraphs (v) and (vi) refer to ‘psychological harm’ and the proposed subparagraphs (v) and (vi) refer to ‘psychological injury’.  Existing subparagraph (vii) commences with the words ‘there was a risk of physical harm’ and the second proposed subparagraph (vi) commences with the words ‘it may give rise to harm to health’.

39       It is not apparent that WorkSafe will suffer any detriment if the grounds are amended accordingly.  The amendments do not introduce a new ground.  The amendments are sought early in the proceedings before the Tribunal.  Given that the grounds in the referral appear to be directed to saying that the Inspector did not have reasonable grounds to form the opinion on the matters the Inspector set out, it is appropriate that the subparagraphs do accurately repeat the matters about which the Inspector did form an opinion.  The amendments will be granted.

40       A further amendment will separately identify each Improvement Notice and the WorkSafe Western Australia Commissioner’s decision in relation to that improvement notice.  The amendment repeats those of the eight subparagraphs which Reece considers are relevant to each the further review of each notice.  It also states the relief sought in relation to each notice.

41       In my view the further amendment does not introduce a new ground and is more an amendment of form than of substance.  It will clarify the application of an existing ground to each improvement notice.  The further amendment is sought early in the proceedings before the Tribunal.    It is appropriate that Reece states with clarity the basis of the further review it seeks and the relief it seeks in relation to the three Improvement Notices.  In my view, it is appropriate that the further amendment be granted.

42       Accordingly, an Order will issue that the Notice of Referral be amended in accordance with the amended Notice of Referral filed on 23 January 2015.

Discovery of documents

43       Reece has made an oral application for discovery of documents.  Reece submits that on a review under s 51A of the OSH Act, the onus is on the Commissioner to justify his decision because the matters he relied on are known only to him, and it refers to Wormald Security Australia Pty Limited v Peter Rohan (1994) 74 WAIG 2.  To enable Reece to properly prepare its case on the review it needs access to or copies of documents.  The documents it seeks should be discovered and made available for inspection as they are necessarily required to fairly dispose of the proceedings, are in the interest of a fair hearing and access to them is necessary for a proper preparation of each party’s case.

44       WorkSafe proposes that the Tribunal issue an Order that Reece prepare a list of discoverable documents in an approved form and file and serve documents, and make them available for inspection followed by WorkSafe doing the same.

45       I deal with the differences between the parties on this topic as follows.  The Tribunal has the power pursuant to s 27(1)(o) of the IR Act and s 51I(1) of the OSH Act to make an order for the discovery and production of documents.  The directions sought by Reece will require WorkSafe to discover documents in seven categories.  Those categories include the employment file, including a curriculum vitae or similar, of the Inspector and the training and attendance records for the Inspector with respect to or any way connected to bullying in the workplace.  They include guidelines, brochures and bulletins published by WorkSafe relating to bullying in the workplace; manuals, policies, procedures, guidelines, brochures and similar used internally by WorkSafe relating to identifying and enforcement action in connection with bullying in the workplace; queries, notifications or complaints made by or on behalf of staff of Reece employed at its Joondalup store for the period 1 January 2013 to 20 October 2014; the Inspector’s notes, records and files relating to the appellant’s Joondalup store for that period and any files held by WorkSafe with respect to the appellant’s Joondalup store covering that period. 

46       In my view, the categories of documents in Reece’s proposed Order are, in most cases, impermissibly broad.  I am not persuaded that the Inspector’s personal employment file or personnel training and attendance records with respect to or in any way connected to bullying in the workplace is relevant to the further review of the Improvement Notices.  Although it was submitted that there may be documents in the Inspector’s personal employment file which may show she has a professional qualification relevant to the opinion she has formed as stated in the Improvement Notices, I have not found this persuasive.  The competence or personal qualifications of the Inspector are not raised in the grounds for review.  General guidelines, brochures and bulletins or similar published to the public relating to bullying, or manuals policies and procedures and similar used internally by WorkSafe relating to identifying and enforcement action in connection with bullying in the workplace, is in my view far too broad a description.  WorkSafe referred to the breadth of some categories as potentially oppressive and I consider that is likely to be so.

47       Further, the basis for the submission that the categories of documents sought by
Reece are necessary because the onus is on the WorkSafe Western Australia Commissioner to justify his decision is not supported by the authority cited.  In the Wormald Security case, which dealt with legislation other than the OSH Act, the majority (Franklin J with whom Ipp J agreed) held at [4] that there is no onus on the person seeking the review to establish that the improvement or prohibition notice should not have issued, either in the form in which it did or at all.  Rather, Franklin J observed that on a reference to the Commission (now the Tribunal) under the legislation in existence at that time, the Commissioner is required and obliged to inquire into the circumstances relating to the notice.  Those provisions, in the opinion of Franklin J, made it clear that the review is directed to establishing, on whether on the evidence available to the Commissioner, the Inspector was justified in forming the opinion in question.  Nicholson J held that it is quite inconsistent with an inquiry into the circumstances relating to the issuance of a notice for there to be an onus on the recipient of the notice to establish why the notice should be set aside.  There is nothing in the decision to support the submission that there is an onus on the WorkSafe Western Australia Commissioner to justify his decision. 

48       By s 51A(5) of the OSH Act the Tribunal is to inquire into the circumstances relating to the notice and may then take one of the steps set out in the balance of that subsection.  I am unable to hold on the limited material before me that there is an onus on the WorkSafe Western Australia Commissioner as Reece alleges.  I am not inclined to grant the Order for discovery sought by Reece, including requiring WorkSafe to discover documents to Reece prior to Reece discovering documents to WorkSafe, for the reason it advances.

49       In general terms, the purpose of documentary discovery is to provide each party to an action with access before trial to the relevant documents in the hands of his opponent so avoiding trial by ambush, saving costs and encouraging settlement in proper cases (Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, WA Branch v Burswood Resort (Management) Limited (1995) 75 WAIG 1801, 1805.  Discovery, production and inspection of documents are not available as rights, it is only if the Commission, and in this case the Tribunal, considers it appropriate in a particular case.  An order for discovery should relate to those documents in the parties’ possession, custody or power that relate to a matter in question in the further review of the Improvement Notices: r 20 of the Industrial Relations Commission Regulations 2005 (the Regulations).  In my view, an Order should issue that requires each side to discover to the other by a date to be set, documents in their possession, custody or power relevant to an issue in the proceedings.  Where appropriate, the confidentiality of a person’s identity is to be maintained. 

50       An Order will issue that Reece and WorkSafe each prepare a list of discoverable documents in an approved form and that each serve the list on the other on a date to be set.  The date may be the subject of a written submission from the parties by way of speaking to the minutes.  Parties can request in writing that they be provided with copies of documents referred to on the list and requested documents are to be provided within five days of a request being made.  The proposed orders 3 and 4 of WorkSafe’s minute of proposed order are not necessary because they repeat what is already a requirement on the parties by operation of the Regulations.  By r 97 the provisions of r 20 apply to the referral of a matter to the Tribunal and therefore it is not necessary to require parties in an order to comply with the regulations.

51       A minute of an Order now issues.

General

52       The referral will be re-allocated within the Commission for the Commissioner designated under the IR Act s 16(2A) to hear and determine.  Any programming Orders which need to be made to facilitate the hearing are more appropriately dealt with after the re-allocation.