A STAY OF OPERATION OF THE ORDER IN MATTER NO.  OSHT 5 OF 2019 WHICH IS THE SUBJECT OF FBA 3 OF 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00190

DELIVERED : WEDNESday, 7 JuLY 2021

FILE NO. : PRES 1 OF 2021

Applicant

AND

WorkSafe Western Australia Commissioner

Respondent

Catchwords : Industrial law (WA) - Stay Application - Appeal instituted - Improvement Notice issued under the Occupational Safety and Health Act 1984 - Relevant principles applied  - Dismissed

Legislation : Industrial Relations Commission Regulations 2005 (WA) reg 102(3)

  Occupational Safety and Health Act 1984 (WA) ss 25, 48(1), (2) & (4), 51, 51A(1);

  Occupational Safety and Health Regulations 1996 (WA) r 3.140

Result : Application dismissed

Representation:

Counsel:

Applicant : Mr C Beetham of counsel

Respondent : Ms T Hollaway of counsel

Solicitors:

Applicant : Francis Burt Chambers

Respondent : WorkSafe Western Australia

Case(s) referred to in reasons:

Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141

John Holland Group Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2005] WAIRC 02983; (2005) 85 WAIG 3918

Palermo v Rosenthal [2010] WAIRC 00790; (2010) 90 WAIG 1527

Reasons for Decision

Background

1         The applicant, GHD Pty Ltd provides consultancy services to clients in a range of areas including engineering design, architecture, environmental and construction services.  CIVMEC Holdings, a construction company, engaged the applicant to design a ship building facility in Henderson, Western Australia.  As part of the design, pre-cast hollowcore concrete panels were to be used in the construction of the floor of the ship assembly hall.  The panels were large, each being 8.7 m long and 1.2 m wide, and weighing 3 tonne.

2         The installation of the panels was performed by a subcontractor engaged by CIVMEC, Above All Rigging.  They were required to lift the panels from a trailer and install them in the floor of the hall.  On 18 February 2019, in the course of a lift, one of the panels fell to the floor, destroying the panel and damaging the floor.

3         An Inspector from WorkSafe attended the site and as a result of his inspection, an Improvement Notice was issued against the applicant on 26 February 2019 under s 48(1) of the Occupational Safety and Health Act 1984 (WA).  In issuing the Improvement Notice, the Inspector formed the opinion that as a designer, the applicant had failed to comply with reg 3.140 of the Occupational Safety and Health Regulations 1996 (WA), in that it had not included in a written report to its client, CIVMEC, the hazards in relation to the use of the hollowcore panels in its design, and what the applicant had done, or not done, to reduce the risks.  On an application to have the Improvement Notice reviewed by the respondent under s 51 of the OSH Act, by a decision dated 15 May 2019, the date for compliance was changed, but otherwise the Improvement Notice was affirmed.

4         An application to review was filed by the applicant in the Tribunal on 22 May 2019.  In its order of 18 May 2021, the Tribunal affirmed the Improvement Notice with modifications.  Added, was a direction to the effect that the applicant inserts in its Report under reg 3.140 of the OSH Regulations, the hazard of hollowcore panels falling when being lifted by a crane.

5         It is common ground that the construction project at Henderson was completed some time ago now, in mid-2019.  Thus, the Improvement Notice, as affirmed with modifications, cannot, in a practical sense, have any application.

Appeal to the Full Bench

6         The applicant has appealed against the order of the Tribunal.  The grounds of the appeal are in the following terms:

1. The Tribunal erred in law in affirming Improvement Notice 45300297 with modifications by concluding that the Appellant was in breach of its responsibilities and obligations as a designer pursuant to the Occupational Safety and Health Act 1984 (WA) (OSH Act) and the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations) by not, or not adequately, referencing in its report the hazards of pre-cast, hollowcore concrete panels falling when being lifted by a crane during the construction phase.

2. The Tribunal erred in law in affirming Improvement Notice 45300297 with modifications, as the Appellant was not contravening any provision of the Occupational Safety and Health Act 1984 (WA) (OSH Act) nor had it contravened any provision of the OSH Act in circumstances that made it likely that the contravention would continue or be repeated, as required by s 48(1) of the OSH Act.

3. The Tribunal erred in law in affirming Improvement Notice 45300297 with modifications, by concluding that r 3.140 of the OSH Regulations requires "one written report".

4. The Tribunal erred in law in exercising its powers under s 51(1)(b) of the OSH Act to affirm Improvement Notice 45300297 with modifications, as the Improvement Notice was invalid by reason of it being uncertain, vague and ambiguous, and did not comply with the requirements of s 48(2) of the OSH Act.

Stay application

7         The applicant filed an application seeking a stay of the Tribunal’s order, pending the determination of the appeal.  The grounds of the stay application are:

That the Orders dated 18 May 2021 made in the Occupational Safety and Health Tribunal by Commissioner TB Walkington in OSHT 5 of 2019 be stayed pending the determination of the appeal.

1) The Decision dated 14 May 2021 and the Orders dated 18 May 2021 made in the Occupational Safety and Health Tribunal by Commissioner TB Walkington in OSHT 5 of 2019 have been appealed by the applicant to the Full Bench.

2) The Appellant appeals against the Decision and Orders which affirm, with modification, Improvement Notice 45300297.

3) In the appeal, the Appellant seeks that the Decision and Orders be quashed and Improvement Notice 45300297 be cancelled.

4) The appeal would be rendered nugatory if the Appellant was required to comply with the Orders prior to determination of the appeal.

8         The relevant principles applicable to stay applications are not in contest.  Reference was made by both parties to John Holland Group Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2005] WAIRC 02983; (2005) 85 WAIG 3918, per Ritter AP at [31] – [38].  These principles were recently discussed and considered by the Court of Appeal in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141, where the Court, at [47] - [48] said:

47 An application for a suspension order under s 15 of the Civil Judgments Enforcement Act 2004 (WA) or an interim order for a stay under r 44 of the Supreme Court (Court of Appeal) Rules 2005 (WA) is generally considered in the framework of the principles enunciated in Eastland Technology Australia Pty Ltd v Whisson.  Those principles were conveniently re-stated by Pullin JA in Tradesman Technologies Pty Ltd v Ameduri in the following terms:

(a) The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.

(b) It is for the applicant for a stay to move the court to a favourable exercise of its discretion.  Under s 15(3) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.

(c) The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal.  This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.

(d) If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.

(e) Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.

48 Accordingly, consideration of whether there are 'special circumstances' justifying an interim stay normally involves assessment of three things:

(1) Is the stay necessary to preserve the subject matter or the integrity of the litigation?

(2) Does the appeal have reasonable prospects of success?

(3) Does the balance of convenience favour the grant of the stay?

9         I adopt and apply the above principles for the purposes of determining this application.

10      The applicant contended that if the stay is not granted, it will be required to comply with the Improvement Notice, therefore rendering the appeal nugatory.  Failure to comply with the Improvement Notice, would expose the applicant to a penalty under the OSH Act   It was therefore submitted that as the appeal would be rendered hypothetical if a stay is not granted, this is a powerful factor in support of the application.

11      The applicant contended further that it is unnecessary on a stay application to address all of the grounds of appeal, rather, that the appeal grounds raise an issue of substance, without the need for an overall assessment of the strength of each appeal ground: Palermo v Rosenthal [2010] WAIRC 00790; (2010) 90 WAIG 1527 per Smith AP at [10].  In this respect, the applicant argued that the appeal grounds raise important matters concerning the construction of relevant provisions of the OSH Act and the OSH Regulations.  Also arising are matters including the validity of the Improvement Notice, in terms of the requirements imposed by the OSH Act for their issuance.

12      As to the balance of convenience, the applicant contended this factor is in its favour.  An overring consideration is the fact that if a stay is not granted, the applicant’s appeal rights would be rendered nugatory.  Secondly, given that the construction project the subject of the Improvement Notice was completed in mid-2019, there is no prejudice to the respondent if the stay is granted.  There is no practical purpose to be achieved in the refusal of the stay.

13      The respondent contended on the other hand, that it is not clear that if the stay is not granted, that the appeal would be nugatory.  It may be that even if the Full Bench finds that the Improvement Notice was vague and uncertain in its terms, the obligation to include in a report under reg 3.140 of the OSH Regulations, the hazards of hollowcore panels, is upheld.  Further, it is in the interests of occupational safety and health for designers to include reports of such hazards, pending the outcome of the appeal.  This is so given the obvious risk of large concrete hollowcore panels falling from height, during lifting by a crane.  As to whether the appeal has any prospect of success, the respondent contended that given the lack of particularity in the appeal grounds, contrary to reg 102(3) of the Industrial Relations Commission Regulations 2005 (WA), it is difficult for the Commission to form any view of the merits, or otherwise.

14      On the scope of the duty to include a written report imposed by reg 3.140, the respondent contended that the applicant’s “Safety in Design Risk Management Register” constituted the relevant report for the purposes of reg 3.140.   It did not include any reference to the hazard of hollowcore panels falling when being lifted into place by a crane.  It was submitted that given this document was the only document provided to the Inspector, and before the Tribunal, that identified hazards and means of assessing risk, this document therefore could be the only one that could meet the requirements of reg 3.140(2) of the OSH Regulations.  Supplementary notes, prepared by the applicant, did not constitute “one written report”, as required.

15      In terms of the balance of convenience, it was submitted this favours the respondent.  Given the requirement to comply with the Tribunal’s order only requires a one-line entry in the applicant’s register, to specify the hazards of concrete hollowcore panels falling when being lifted by a crane, no practical inconvenience or consequences for the applicant arise.  The refusal of the stay would not involve any financial detriment or other detriment to the applicant.  In the event the appeal is successful, the respondent submitted that the Tribunal’s order may be quashed, without any real prejudice to the applicant in the interim.  Moreover, the respondent contended that given the occupational safety and health considerations, especially the potential, fatal consequences of a concrete hollowcore panel falling from height, this shifts the balance of convenience in favour of the respondent.

Consideration

16      The filing of an appeal Act does not operate as a stay of the decision in respect of which the appeal is brought.  It is to be noted that the Improvement Notice, as affirmed and modified by the order of the Tribunal, requires compliance in accordance with par 2 of the order.  Failure to comply with the Improvement Notice, constitutes an offence under s 48(4) of the OSH Act.

17      For an applicant for a stay to establish a “special circumstance” in accordance with the authorities, it needs to be demonstrated that the presumption that the respondent should not be deprived of the outcome of the proceedings, should be displaced.

18      Whether an appeal would be rendered futile or nugatory, as the cases refer, includes consideration of whether the applicant’s position will be irretrievably altered if a stay is not granted, pending the determination of the appeal.  I am not persuaded the appeal will be rendered nugatory if the stay is not granted in this case.  What is required by the order of the Tribunal, is that the applicant include in the document described as the “register”, a statement setting out “the hazard of hollowcore panels falling when being lifted by a crane”.

19      In the event that the appeal is upheld, it is most likely that the order would be quashed, thereby discharging the applicant of any further obligation in relation to the Improvement Notice.  Furthermore, especially as the project in respect of which the Improvement Notice was issued, has long since been completed, there is nothing before the Commission to suggest that the Full Bench would be presented with any practical difficulties in granting a remedy on the appeal if it was to be successful.  Also, as the respondent rightly observed, it may be that the appeal is allowed on grounds other than whether a designer has a duty under reg 3.140 of the OSH Regulations to include a report containing the information the respondent contends it should contain, and the duty to do so is affirmed on the appeal.  In short, I am not persuaded that there are any special or other circumstances existing, to warrant the exercise of the discretion to grant a stay.

20      Even if there were such circumstances, this is not, of itself, justification for the grant of a stay.  Consideration still needs to be given to the prospects of success of the appeal and the balance of convenience.  As to the prospects of success, there are difficulties in assessing this criterion, as the appeal grounds are not drafted with the necessary particularity, as required by reg 102(3) of the IRC Regulations.  Ground 1 asserts that the Tribunal erred in law, by concluding that the applicant breached the OSH Act, and the OSH Regulations, by not including in its report, the hazards of the hollowcore panels falling when being lifted by a crane.  This ground of appeal is lacking in any particularity as to the specific reasons why it is alleged the Tribunal’s decision was wrong in law.  Whilst in the applicant’s written outline of submissions and in oral argument on the stay application, counsel for the applicant referred to what it contended would be complex issues of statutory interpretation, as to the relationship between s 23 of the OSH Act and reg 3.140 of the OSH Regulations, with respect, I am still unclear as to what those contentions are, to enable me to form even the most preliminary view, as to the prospect of success on this ground.

21      As to Ground 2, it was submitted by the applicant that this ground is related to Ground 1, such that its prospects are tied to the prospects of the former.  For the reasons that I have just expressed above, this presents some difficulties in assessing the merits of this ground also.

22      Grounds 3 and 4 appear to raise matters in connection with the interpretation of reg 3.140 of the OSH Regulations and ss 48(1) and (2) of the OSH Act.  On their face, these grounds give rise to issues of substance to be argued.

23      As to the balance of convenience, given that the project has long been completed, I am not persuaded there is any irretrievable detriment to the applicant, if the stay is not granted, for the reasons I have identified above. 

Conclusion

24      I am not persuaded that the application to stay the order of the Tribunal should succeed.  The application is dismissed.