2021 WAIRC 00655
APPEAL AGAINST A DECISION OF THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL GIVEN ON 18 MAY 2021 IN MATTER NO. OSHT 5 OF 2019
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2021 WAIRC 00655

CORAM
: CHIEF COMMISSIONER S J KENNER
SENIOR COMMISSIONER R COSENTINO
COMMISSIONER T EMMANUEL

HEARD
:
TUESDAY, 21 SEPTEMBER 2021

DELIVERED : WEDNESDAY, 22 DECEMBER 2021

FILE NO. : FBA 3 OF 2021

BETWEEN
:
GHD PTY LIMITED
Appellant

AND

WORKSAFE WESTERN AUSTRALIA COMMISSIONER
Respondent

ON APPEAL FROM:
JURISDICTION : OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL
CORAM : COMMISSIONER T WALKINGTON
CITATION : 2021 WAIRC 00135
FILE NO : OSHT 5 OF 2019

Catchwords : Industrial Law (WA) - Occupational Safety and Health Tribunal - Appeal against the decision of the Tribunal - Whether Tribunal erred in law and fact - Scope and content of a designer's duty of care - Whether reg 3.140 of the Occupational Safety and Health Regulations 1996 is constrained by s 23 of the Occupational Safety and Health Act 1984 - Relevant principles of interpretation - Principles applied
Legislation : AntiDiscrimination Act 1977 (NSW) s 108(1)(b)
Environmental Protection Act 1986 (WA) s 65(2)(b), s 68A
Industrial Relations Act 1979 (WA) s 26, s 26(1)
Interpretation Act 1984 (WA) s 46
Mines Safety and Inspection Act 1994 (WA) s 31AG
Occupational Safety and Health Act 1984 (WA) s 23, s 23(1)(c), s 23(3a), s 23(3a)(a), s 23I, s 24, s 35A, s 48, s 48(1), s 41(1)(a), s 41(1)(b), s 48(2), s 48(4), s 48(5), s 48(6), s 49(5), s 49(6), s 50, s 51, s 51(1)(b), s 51(5), s 51A(5), s 51A(5)(b), s 60, s 60, s 60(1), s 60(2)
Occupational Health, Safety and Welfare Act 1986 (SA) s 24
Occupational Safety and Health Regulations 1996 (WA) reg 3.137, reg 3.138, reg 3.139, reg 3.140, reg 3.140(2), reg 3.140(2)(a), reg 3.140(2)(a)(ii)
Result : Appeal upheld
REPRESENTATION:
Counsel:
APPELLANT : MR P YOVICH SC OF COUNSEL AND WITH HIM MR S PUXTY OF COUNSEL
RESPONDENT : MS T HOLLAWAY OF COUNSEL

Solicitors:
APPELLANT : CANTLE CARMICHAEL LEGAL
RESPONDENT : WORKSAFE WESTERN AUSTRALIA

Case(s) referred to in reasons:
Alcoa of Australia Limited v Andrew Chaplyn [2019] WAIRC 00011; (2019) 99 WAIG 93
Australian Medical Association (WA) Incorporated v The Minister for Health [2016] WAIRC 00699; (2016) 96 WAIG 1255
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
BioOrganics Pty Ltd v The Chief Executive Officer, Department of Water and Environmental Regulation [2018] WASC 263
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181
Health Services Union of Western Australia, (Union of Workers) v Director General of Health [2008] WAIRC 00215; (2008) 88 WAIG 543
House v King (1936) 55 CLR 49
King Gee Clothing Co Pty Ltd v The Commonwealth and Canns Pty Ltd v The Commonwealth [1946] HCA 5; (1946) 71 CLR 210
Medical Board of Australia v Woollard [2017] WASCA 64
Programmed Industrial Maintenance v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208
Qantas Airways Ltd v Gubbins and Others (1992) 28 NSWLR 26
Re Lawrence; ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
Television Corporation Ltd v Commonwealth [1963] HCA 30; (1963) 109 CLR 59
Town of Port Hedland v Hodder (No 2) [2012] WASCA 212; (2012) 43 WAR 383
Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 266 CLR 428
Wormald Security Australia Pty Ltd v Peter Rohan Department of Occupational Health, Safety and Welfare (1994) 74 WAIG 2
Reasons for Decision
THE FULL BENCH:
Background
1 The appellant, GHD Pty Limited 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 appellant to design a ship building facility in Henderson, Western Australia. The facility to be constructed included a surface treatment shed and a 500bay multistorey carpark. As part of the design, precast 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 three 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 building under construction. On 18 February 2019, during 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 appellant 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 appellant 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 appellant 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 appellant in the Tribunal on 22 May 2019. In its order of 18 May 2021, the Tribunal affirmed the Improvement Notice with modifications. The existing directions were replaced by a direction to the effect that the appellant inserts in its Report under reg 3.140 of the Regulations, the hazard of hollowcore panels falling when being lifted by a crane.
5 It was common ground that the construction at the Project at Henderson was completed some time ago now, in mid2019.
Proceedings at first instance
The application to review
6 The application to the Tribunal was made under s 51A of the OSH Act to review the decision of the respondent. The Improvement Notice the subject of the application to review, issued to the appellant under s 51 of the OSH Act, was, formal parts omitted, in the following terms (see AB13):
l. In relation to: Duties of Designers  Hazard Report
at CIVMEC 16 NAUTICAL DR HENDERSON 6166 on 18 Feb 2019
I have formed the opinion that you are contravening regulation 3.140(2) of the Occupational Safety and Health Regulations 1996 and the grounds for my opinion are: My investigation and discussion with Lead Structural Engineer Pim Birss revealed that you are a Designer at this Construction Site where you have incorporated the pre cast concrete hollowcore plank into the building design which you have not included in your safety in design report to your commercial client setting out the hazards of this design and what you the designer have done to reduce those risks and that this work is continuing to be done as part of the clients trade or business. I attended the construction site and saw the damaged pre cast concrete hollowcore plank Kieran O'Shea informed me is greater than 3 tonne, that has fallen at height when being lifted into position with a crane. This exposed Simon Maxwell and Matt Denasson to the hazard of being hit by a falling object
You are required to remedy the above by no later than 19 Mar 2019 at 0000 hours.
2. You are directed to take the following measures:
l] Ensure as the designer all aspects of reg 3.140 are raised with your client in a written report.
2] Refer to the Code of Practice Safe Design of buildings and Structures, 2008.
3] Refer to Section 23(3a) of the Occupational Safety and Health Act 1984
7 The matter was heard before the Tribunal on 22 and 23 July 2020. In an amended application to the Tribunal, the appellant contended as follows:
Background
1. GHD Pty Limited (GHD) was engaged by CIVMEC to design a ship building facility including a surface treatment shed and 500 bay multistorey carpark at 16 Nautical Drive, Henderson (Henderson).
2. In undertaking the design activities, GHD was required to comply with, inter alia:
a. section 23(3a) of the Occupational Safety and Health Act 1984 (WA) (the Act);
b. reg 3.140 of the Occupational Safety and Health Regulations 1996 (WA) (the Regulations); and
c. Code of Practice Safe Design of Buildings and Structures 2008 (the Code).
3. Part of the design involved reference to the use of manufactured precast concrete hollowcore panels as the basis for the flooring system. These panels are generic, “off the shelf” products that are not bespoke and are one of the most common products utilised in modern construction.
4. The design documentation provided to CIVMEC included the design drawings, associated specification notes and a safety in design report. In reference to the precast panels, the design documents specified panel thickness and reinforcement strands. The Precast Specification notes specifically reference AS3850 Building Code of Australia  Concrete Notes and Specifications.
5. Relevantly, with respect to the precast panels the design documentation provided by GHD to CIVMEC included specification requirements on Drawing 6135525010S002 Precast as follows:
a. Note 2 provides that the panels have only been designed for installed conditions only;
b. Note 3 provides specific design requirements for the precast unit supplier in relation to design of precast units “to provide satisfactory performance for stability, fire resistance, serviceability, strength during manufacture, handling, lifting, transport, erection and installation operations”; and
c. Note 8 requires the contractor to “submit workshop drawings showing the proposed details for design, manufacture, assembly, transport and installation of precast concrete elements including....equipment and methods of handling, lifting, transport including location of lifting points, maximum loads on lifting and bracing points”.
6. The design documentation appropriately identified the relevant hazards or risks associated with the design and the control or elimination of those risks during the design process including providing guidance on how the structure might be constructed safely prior to concrete reaching design strength (as per the WA Code of Practice for Safe Design of Buildings and Structures 2008).
7. GHD had no role, expertise or control in:
a. any construction activities at Henderson;
b. the devising and implementing of the lift plan for the concrete panels at Henderson; or
c. the actual lifting activities of the panels at Henderson.
8. CIVMEC was undertaking construction activities on the site at Henderson. On 18 February 2019, CIVMEC was overseeing the lift of one of the concrete panels when the panel fell out of the sling system and landed onto a concrete deck, destroying the panel and damaging part of the concrete deck. The root cause of the incident was a failure in the configuration of the slings utilised to undertake the lift  there was no equipment failure (or failure of the integrity of the slings).
Issue of Improvement Notice
9. WorkSafe WA issued an Improvement Notice to GHD (no: 45300297) (the Notice) in which the following directions were made:
1] Ensure as the designer all aspects of the reg 3.140 are raised with your client in a written report.
2] Refer to the Code of Practice Safe Design of buildings [sic] and Structures, 2008.
3] Refer to section 23(3a) of the Occupational Safety and Health Act 1984
10. The Notice was to be complied with by 19 March 2019.
11. GHD sought a review of the Notice on 19 March 2019.
12. On 15 May 2019, WorkSafe WA affirmed the issue of the Notice (Review).
GHD's Contentions
13. In the issue of the Notice and consideration of the Review, GHD submits that:
a. GHD was not in contravention of the Act;
b. there were no reasonable grounds for forming an opinion that GHD was in contravention of the Act;
c. The Notice was uncertain, vague and ambiguous for the following reasons:
i. it failed specify the nature of the contravention by GHD of its duty as a designer under section 23 of the Act to ensure that the design of the structure did not, as far as practicable, expose persons properly constructing the structure to hazards (which GHD has the ability to control or eliminate);
ii. it failed to identify how any act or omission by GHD exposed persons to the hazard of “being hit by a falling object”;
iii. it failed to specify how the written materials (within the meaning of regulation 3.140(2)) supplied by GHD to CIVMEC contravened the Regulations; and
iv. it failed to include directions as to measures to be taken to remedy any alleged contravention with sufficient clarity.
Outcome Sought
14. GHD seeks a review of the circumstances relating to the Notice and for the Notice to be set aside.
Relevant evidence before the Tribunal
8 There was a considerable body of evidence before the Tribunal. The circumstances giving rise to the issuance of the Improvement Notice were set out in the evidence of Inspector Badham. He is an inspector with WorkSafe and was appointed to that position in 2017. Inspector Badham had extensive experience in the construction industry prior to his appointment as an Inspector. This included work with “tiltup” concrete panels and concrete flooring systems. The precast hollowcore planks used in the Project, are precast, stressed planks or panels. They are usually 1200mm wide, and the thickness ranges from 150mm to 400mm. The planks contain hollow voids through which services such as plumbing and electrical cabling may be run. Once laid, a concrete layer of about 100mm is then applied over the top of the planks.
9 Inspector Badham gave evidence about the incident at the site. On 11 February 2019 he was informed that a concrete hollowcore panel had fallen on to the first level of the building being constructed when being lifted into position. No one was injured. He attended the office of CIVMEC, the appellant’s client, and met with their representatives along with another WorkSafe inspector, Mr Razza. Inspector Badham led the inspection and the investigation in relation to the incident.
10 Inspector Badham proceeded to the location of the incident at the Project site with a CIVMEC representative, Mr O’Shea. He testified that he entered the building at ground level and saw damage to the underneath of the first floor level, with broken concrete on the ground. Mr O’Shea informed him that one of the precast concrete panels had fallen from its slings when it was being lifted by a crane into place. The ground floor and upper floor access areas had been observed to have been taped off. Inspector Badham took photos of the incident site. Copies of the photos taken by him were annexure HB1 to his witness statement at AB683699.
11 Inspector Badham testified that he inspected the chains, webbing and slings used in the lifting of the hollowcore planks by the contractor All About Rigging. The outer sheath of the slings had some damage and Inspector Badham also noted that the slings appeared to be extended too far. Inspector Badham spoke to employees of AAR involved in the lifting of the load. The hollowcore plank that fell whilst being lifted was 8.7m long, 1.2m wide and weighed approximately 3.1 tonne. The plank was about seven metres in the air when it fell and on observing the fallen plank, Inspector Badham said that he saw the broken plank on the first floor area, with concrete rubble present.
12 On meeting with CIVMEC director Mr Fitzgerald and the appellant’s structural engineer Mr Birss, Mr Birss informed Inspector Badham that the appellant did not give either CIVMEC or AAR any guidance material or provide lifting points on the hollowcore planks. He told Inspector Badham to ask the manufacturer of the planks, BGC, about this, and that the riggers (AAR) would know how to sling and lift the planks properly. Inspector Badham was told that the appellant was given some software to use to select the size and length of the hollowcore planks and then this was incorporated into the design.
13 Inspector Badham followed up his inspection with a request for documents from all the relevant parties, including the appellant. The appellant gave to Inspector Badham a copy of their “Safety in Design Report”, which was the relevant “Hazard Report”. On a review of this Hazard Report, Inspector Badham testified that whilst it referred to “suspended loads”, no reference to lifting of the precast hollowcore panels and the hazard of them falling was made. Based on his investigation, Inspector Badham formed the opinion that the appellant had contravened reg 3.140 of the Regulations as the appellant did not identify in the Hazard Report the hazard of the suspended load of hollowcore planks, relevant risks and whether the appellant had, or had not, done anything to mitigate the risk. Inspector Badham formed the opinion that if a three tonne hollowcore plank was to fall, the likelihood would be that someone would be seriously injured or killed. Based on the foregoing, Inspector Badham issued the Improvement Notice to the appellant.
14 Evidence was also given by Mr Tonkin, the appellant’s Manager Structures and Materials Technology and Technical Director – Structures. Mr Tonkin was the Project Manager for the design services at the Project. He was the Project Manager for the appellant in the delivery of design services to CIVMEC.
15 He outlined how the appellant had been invited to tender for the design of the Project and was subsequently awarded the contract. Mr Tonkin was responsible for the management of the design project. Part of this was responsibility to meet obligations as the designer. Evidence as to the Safety in Design process and the preparation of design documents, in accordance with the appellant’s Safety in Design Operational Procedure, was given by Mr Tonkin. This included the preparation of a “Risk Register”. This document had the purpose of referring to hazards and risks identified as part of the design process that may arise in the construction phase of the Project.
16 The Risk Register was sent by the appellant to CIVMEC in January 2019. The relevant documents, at exhibit A1 (AB361489) comprised the Ship Assembly Hall Structural Notes Drawing no:613552501S002, and the Risk Management Register. Mr Tonkin referred to pars 68 of the “General Notes” and the “Safety in Design” reference in the Structural Notes, and item 2 “Working at Heights / Dropped Objects” in the Ship Assembly Hall – risk actions in the Risk Management Register.
17 Mr Tonkin said that the appellant did not design the hollowcore panels which were generic and widely used in large scale construction over the last 50 years or so. The appellant simply specified the size of the hollowcore panels to be used on the Project as a part of its design. He said that the role of the designer in this context was to specify the use of “off the shelf” products, such as the concrete panels. He also said that the Structural Drawing Notes submitted to CIVMEC by the appellant, included a requirement on the contractor and its subcontractors, to prepare workshop drawings which included equipment and methods of handling, lifting, transporting etc of the panels. He said that a designer is not experienced and does not have knowledge in the aspects of proper and safe lifting of concrete precast panels and therefore these requirements were passed on to the contractor. He did not consider that it was the responsibility of the designer to specify a particular brand of hollowcore panels or the method of installation unless this was a specified feature integral to the design.
18 Mr Airey is an expert in the field of structural engineering and forensic engineering. He gave evidence before the Tribunal as an expert witness. Mr Airey produced three reports in relation to the incident and in response to specific questions posed to him by the appellant’s solicitors (see AB490602; AB603626; and AB636659). Mr Airey, in his reports, including the most recent third report dated 17 March 2020 (exhibit A2 AB490602), made observations in relation to the roles of various parties and specifically, his opinion as to the obligations imposed on the appellant. Mr Airey observed that the preparation and implementation of a lifting plan for the hollowcore concrete planks was the responsibility of the precast designers and relevant contractors as specified in the appellant’s Drawings at item 8precast. He referred to item 8 which referred to “Equipment and methods of handling, lifting, transport including location of lifting points, maximum loads on lifting and bracing points”. Mr Airey contended therefore, that the obligation was on the precast panel designer and manufacturer to provide CIVMEC with advice and guidance on these matters, prior to their installation. He said that the appellant’s role would be to oversee and check the final design proposed and that any temporary lifting arrangements would not damage the panels.
19 The actual lifting activities however, according to Mr Airey, would need to be reviewed by the owner/builder, being CIVMEC and a hazard assessment undertaken. Mr Airey went on to say that the appellant was not the designer of the hollowcore planks. He noted however, that it would be normal for the appellant as consulting designer, to provide quality checking and to monitor the construction process, to ensure that the design intent, as prescribed, was being met. Mr Airey drew a distinction between the appellant’s role as the designer and the avoidance of hazards during construction, the latter of which were the responsibility of CIVMEC and their subcontractors, involved in supplying and installing the hollowcore planks. Mr Airey noted the implicit hazard in the process of lifting very heavy items into position and the importance of appropriate handling to avoid both stressing the plank itself and to ensure industrial safety. In Mr Airey’s opinion, this aspect of the safety in design rested with the supplier of the hollowcore planks and not the appellant.
20 Mr Airey specifically referred to the various items set out in the Risk Register and the General Notes to the Structural Drawings. He particularly referred to item 9 – Suspended Loads for the Ship Assembly Hall and item 17 – Suspended Loads for the Ship Assembly Hall and noted that neither contained specific reference to the lifting of precast concrete panels being identified as a hazard. He described this omission as “surprising as the precast panels are heavy and require very specific management to ensure safe placement” (AB498). He went on to note that this omission probably stemmed from the fact that the abbreviated specification contained in the appellant’s Drawing no.613552501S002 Revision 4, under “precast”, required the provision of shop drawings specifying equipment and methods of handling, transport, and erection for review by the appellant.
21 Mr Airey further added that the outcome of the investigation showing why the hollowcore panel fell, that being the angle of incidence of the sling which had changed, was something that could not possibly have been known by the appellant as the designer. The responsibility for this rested with those erecting the panels to ensure industrial safety.
The Tribunal’s reasons for decision
22 The Tribunal considered the issues that it was required to decide were whether the Improvement Notice should be affirmed with or without modifications, or whether it should be revoked.
23 The Tribunal in its reasons, then set out the background circumstances of the incident; the issuance of the Improvement Notice; the application to review the issuance of the Notice to the respondent; and the relevant principles to apply in the context of s 23 of the OSH Act and reg 3.140 of the Regulations. The Tribunal then made findings and reached conclusions as follows:
(a) that the appellant, for the purposes of reg 3.137 of the Regulations was the “designer” for the Project;
(b) that reg 3.140 and s 23(3a) of the OSH Act should be read together and interpreted consistently to determine the scope of a designer’s duty;
(c) for the purposes of the Project, the appellant designed the flooring system which incorporated the hollowcore precast panels as a specific feature of the design. The appellant as the designer, was in charge of the end product of the construction work, being the floor of the Ship Assembly Hall and the office area of the Project;
(d) the appellant’s contentions that reference to the manufacture, and design etc of concrete panels in Division 9 Subdivision 1 of the Regulations, did not mean that the appellant was excused from liability in relation to addressing hazards arising from the use of hollowcore panels, as these obligations are distinguishable;
(e) the appellant’s selection of the hollowcore panels for the flooring on the Project was “a matter of design” and this carried with it the obligation on the appellant to identify risks and hazards. Regulation 3.140 of the Regulations requires these matters to be incorporated into a written report for the client (CIVMEC). Such hazards, to be identified, do not need to be in the control of the designer but they need to be identified along with a statement as to what has been, or has not been done, to address the hazard;
(f) The relevant Code of Practice (Code of Practice: Safe Design of Buildings and Structures 2008) requires designers to identify and include in a Risk Register relevant hazards and specifically those from heavy or awkward prefabricated elements likely to create handling risks, such as the hollowcore panels;
(g) as the designer, it was for the appellant to include in the Risk Register for the project, specific reference to the hollowcore panels;
(h) as to the content of the documents provided by the appellant as the designer to CIVMEC:
(i) two documents were provided; the Risk Register and the “Structural Notes” as a cover sheet for the relevant drawings and specifications;
(ii) items 9, 17 and 20 of the Risk Register, dealing with suspended loads, did not specifically deal with the hazard of hollowcore panels falling when being lifted by a crane;
(iii) Mr Airey, the expert engaged by the appellant, noted in his Reports, the absence from the Risk Register of a reference to the hollowcore panels falling when being lifted, was surprising;
(iv) the Tribunal noted Mr Airey’s comments as to the responsibility of the manufacturer of the hollowcore panels in designing them and of the installer in installing them. It would be for the appellant to review the manufacture and installation procedure, to ensure that the hollowcore panels were not stressed; and
(v) the Tribunal concluded from Mr Airey’s evidence, that the Risk Register should have included specific reference to the hazard of the hollowcore panel installation on the Project.
(i) given the terms of s 48 of the OSH Act, Improvement Notices must be certain in their terms, as a condition of the valid exercise of the power to issue them;
(j) that reference to reg 3.140 of the Regulations and the COP in the Improvement Notice, without relevant parts of the COP being identified, meant that the directions in the Improvement Notice were not sufficient, but this did not mean the notice was invalid; and
(k) the Tribunal modified the notice, as noted above.
Statutory provisions
24 It is convenient to set out at this juncture, the relevant statutory provisions. The general workplace duties in Division 2 of the OSH Act include a duty on manufacturers etc in s 23. A duty exists on designers of any building or structure in the following terms:
…
(3a) A person that designs or constructs any building or structure, including a temporary structure, for use at a workplace shall, so far as is practicable ensure that the design and construction of the building or structure is such that —
(a) persons who properly construct, maintain, repair or service the building or structure; and
(b) persons who properly use the building or structure,
are not, in doing so, exposed to hazards.
25 Provisions in relation to improvement and prohibition notices are set out in Part VI of the OSH Act. Relevantly, for improvement notices, their issue and effect is prescribed in s 48 which relevantly, is in the following terms:
(1) Where an inspector is of the opinion that any person —
(a) is contravening any provision of this Act; or
(b) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated,
the inspector may issue to the person an improvement notice requiring the person to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention.
(2) An improvement notice shall —
(a) state that the inspector is of the opinion that the person —
(i) is contravening a provision of this Act; or
(ii) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated;
and
(b) state reasonable grounds for forming that opinion; and
(c) specify the provision of this Act in respect of which that opinion is held; and
(d) specify the time before which the person is required, to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention; and
(e) contain a brief summary of how the right to have the notice reviewed, given by sections 51 and 51A, may be exercised.
26 The jurisdiction of the Tribunal in relation to a review of notices, is dealt with in s 51A of the OSH Act and it relevantly provides as follows:
(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.
27 There are comprehensive regulations set out in the Regulations dealing with the construction industry and hazard and safety management etc. It was common ground that in this case, the appellant was the relevant “designer” and CIVMEC was the relevant “client” for the purposes of the definitions set out at reg 3.137 of the Regulations. The scope and application of Division 12 of the Regulations is set out in reg 3.138 which relevantly provides as follows:
(1) This Division applies in relation to construction work taking place, or to take place, at a construction site.
28 Regulation 3.139 prescribes obligations on clients where work at a construction site is being done for the client as part of its trade or business, to consult with the designer, to ensure that as far as practicable, persons undertaking the construction work do so without risk to their health and safety. The key part of Division 12 for present purposes is reg 3.140 dealing with obligations on a designer to provide reports to a client and is in the following terms:
3.140. Designer of work for commercial client to give client report
(1) This regulation applies in relation to a client if the work at the construction site was, is being or is to be done for the client as part of the client’s trade or business.
(2) The designer must give a written report to the client setting out —
(a) the hazards —
(i) that the designer has identified as part of the design process; and
(ii) that arise from the design of the end product of the construction work; and
(iii) to which a person at the construction site is likely to be exposed;
and
(b) the designer’s assessment of the risk of injury or harm to a person resulting from those hazards; and
(c) what things the designer has done to reduce those risks (for example, changes to the design, changes to construction methods); and
(d) which of those hazards the designer has not done anything in respect of to reduce those risks.
Penalty: the regulation 1.16 penalty.
(3) The level of detail in the report must be appropriate for the client, the nature of the hazards and the degree of risk.
The appeal
29 There are two amended grounds of appeal. They are:
1. The Tribunal erred in law and in fact in affirming Improvement Notice 45300297 (Notice) with modifications by concluding that the Appellant was in breach of its duty as a designer pursuant to regulation 3.140 of the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations) by not, or not adequately, referencing in a written report the hazards of precast, hollowcore concrete panels (panels) falling when being lifted by a crane during the construction phase.
Particulars
(a) Regulation 3.140(2)(a) of the OSH Regulations requires a designer to give to a client a written report that sets out hazards that (inter alia) “arise from the design of the end product of the construction work”.
(b) The phrase “arising from the design” requires some causal or consequential relationship between the design and the hazard.
(c) Section 23(3a)(a) of the Occupational Safety and Health Act 1984 (WA) (OSH Act) requires a person that designs or constructs a building or structure to (inter alia) ensure, so far as is practicable, that “the design and construction of the building or structure is such that persons who properly construct . . . the building or structure . . . are not, in doing so, exposed to hazards”.
(d) Although the duty under regulation 3.140 is separate from the duty under s 23(3a), the two provisions are to be read together and interpreted consistently to determine the scope of the designer's duty, as the Tribunal correctly found.
(e) The Respondent did not allege in the Tribunal hearing that the Appellant exposed anyone to any hazards, in particular the hazard of the panels falling.
(f) There was unchallenged evidence that:
(i) the panels are a generic product in large scale construction that have been available in Australia for more than 50 years;
(ii) the Appellant did not design the panels; it merely chose them from a supplier's catalogue. There was no evidence that the choices made by the designer as to thickness and internal strand size of the panels had any effect on the hazard they would represent as falling objects; and
(iii) the Appellant had no expertise in the handling or installation of the panels.
(g) Given those facts, and the emphasised wording of regulation 3.140 and section 23(3a) identified in (a) and (c) above, the Tribunal erred in law and in fact in concluding that the Appellant had a duty to include a specific reference in a written report to the hazard of the panels falling.
2. The Tribunal erred in law in exercising its powers under s 51(1)(b) of the OSH Act to affirm the Notice with modifications, as the 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, and further, affirming the Notice with modifications meant in circumstances where the installation of the panels at the building project in respect of which the Notice was issued had finished, that the affirmation of the Notice with modifications could not be given any practical effect.
Particulars
(a) The Tribunal correctly stated that an Improvement Notice must be certain in its terms as a condition of its valid exercise.
(b) The Tribunal found that the Notice was uncertain or ambiguous in these respects;
(i) it failed to specify the provision of the OSH Act under which it was issued, and that both s 48(1)(a) ands 48(1)(b) of the Act were capable of being applicable;
(ii) the directions in part 2 of the Notice were not sufficiently certain in that they did not specify the requirements imposed upon the Appellant, and that they failed to identify the relevant sections of the applicable Code of Practice; and
(iii) the time specified in the Notice was ambiguous.
(c) Those conclusions, in particular the first, mean that the Notice was not sufficiently certain in its terms to be valid as at the date of its issue, and that reasonable grounds for its issue in the terms in which it was issued did not exist.
(d) The Notice could therefore only be properly affirmed if modified.
(e) The evidence before the Tribunal, which it accepted, was that the installation of the flooring and the lifting of the panels had been completed by the middle of 2019.
(f) In those circumstances, the Tribunal erred in modifying the Notice so as to give it retrospective effect, when, on the evidence before the Tribunal, doing so could have no practical effect or utility.
Relevant principles
30 The proceedings at first instance, involved a challenge to the issuance by Inspector Badham of an Improvement Notice under s 48 of the OSH Act. By s 51A(5) of the OSH Act, the Tribunal is required to “enquire into the circumstances relating to the notice”.
31 This requires, as the Tribunal correctly posited, that the Tribunal examine whether, on the facts and circumstances in existence at the material time, Inspector Badham was justified in forming the opinion that he did, in issuing the Improvement Notice to the appellant. In effect, the Tribunal “stands in the shoes” of the Inspector. Based on the evidence before the Tribunal, including any expert evidence a party may adduce, or the Tribunal itself arranges to be placed before it, the Tribunal is required to find for itself, whether it can form the opinion formed by the Inspector, that led to the issuance of the Improvement Notice: Wormald Security Australia Pty Ltd v Peter Rohan Department of Occupational Health, Safety and Welfare (1994) 74 WAIG 2 at 4 per Franklyn J (Ipp J agreeing). In proceedings before the Tribunal, there is no onus on the recipient of a notice issued under the OSH Act, on an application to review, to establish that the notice should not have been issued and should be revoked: Wormald per Franklyn J at 4 and Nicholson J at 11.
32 An appeal of the present kind from a decision of the Tribunal, exercising a discretion, involves the application of the principles in the wellknown and oft cited decision of the High Court in House v King (1936) 55 CLR 49. The Full Bench may not interfere with such a decision unless it is demonstrated that the Tribunal made an error: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194. This may involve an error in terms of applying the wrong principle; mistaking the facts; failing to take into account relevant considerations or taking into account irrelevant considerations; or whether the decision is plainly unjust such that no reasonable Tribunal could make the decision that it did (see the explanation of these principles in Medical Board of Australia v Woollard [2017] WASCA 64).
Consideration
Ground 1
33 This ground raises an issue of the correct construction of reg 3.140. Specifically, whether, on a correct construction, that regulation requires the designer to expressly state in its written report provided to its client that the hazard of hollowcore panels falling from heights had been identified by the designer.
34 The appellant alleged that the Tribunal erred in law and in fact, in concluding that the appellant had a duty to include a specific reference in the written report to the hazard of panels falling. The Tribunal found in this regard at [49]:
Regulation 3.140 requires a designer to provide a written report to a client that sets out the hazards the designer has identified as part of the design process, and that arise from the design of the end product of the construction work which is likely to expose a person at the construction site. The written report is to include the designer's assessment of the risk or injury or harm and whether the designer has done anything to reduce the risk or not done anything to reduce the risk. The level of detail in the report is a result of the assessment of the client, the nature of the hazard and the degree of the risk.
35 The Tribunal did not articulate any exercise of construction of reg 3.140. However, at [68] the Tribunal found that the regulation requires one written report. Then, at [65], relying upon the evidence of the appellant's expert, Mr Airey, the Tribunal concluded that the report ought to have included a specific reference to the precast hollowcore panels and the hazard arising from the installation of these panels in the flooring system. The Tribunal referred to Mr Airey's evidence to the effect that the primary responsibility for controlling the hazards associated with the hollowcore panels lay with the manufacturer of those panels, but that he was surprised by the omission of a specific reference in the appellant’s written report to the lifting of precast concrete panels as a hazard.
36 This ground misconstrues the Tribunal's reasoning by treating it as involving, at [65], the construction of reg 3.140.
37 On a fair reading of its reasons, the Tribunal does not find reg 3.140, properly construed, means the appellant had a duty to include a specific reference in its written report to the hazard of the panels falling. The Tribunal only referred to, and characterised, the relevant duty in the heading of the reasons as a “Duty to provide written report  Principles”. The Tribunal did not construe reg 3.140 as prescribing any particular content of the written report being required. The only conclusion reached by the Tribunal on the construction of reg 3.140, was that the reference to the words “written report” means one written report. That part of the reasoning is not challenged in this appeal.
38 The construction of reg 3.140 cannot differ according to the nature and context of the circumstances of each case. This also reveals that it is a mistake to treat the Tribunal’s reasons as involving the construction of reg 3.140, which this appeal ground attributes to them.
39 There is a degree of artificiality in this appeal ground to the extent that it characterises this issue as a construction issue rather than a challenge to a finding of fact. A more accurate characterisation of the reasoning and relevant finding is simply that the hazard of the panels falling was found to be one meeting the conditions of reg 3.140(2)(a), as a matter of fact. In upholding the Improvement Notice, the Tribunal did not attribute a particular contentious meaning to reg 3.140. The outcome resulted from findings of fact as to uncontentious and plain elements of the regulation.
40 The appellant finds a footing to raise an issue of construction because it made submissions about the correct approach to construction at first instance. However, its submissions at first instance did not properly raise an issue of construction either. In particular, its case at first instance was that the contravention alleged was outside the scope of a designer's duty in s 23, and that reg 3.140 must be construed together with s 23. The submission was that “a designer's duty is confined to hazards or risks arising from the design”.
41 That contention is and was uncontroversial and merely reflects the express words of reg 3.140. It does not raise a controversy about the proper interpretation of them.
42 The substance of the appellant’s submissions refer to what is and is not reasonably practicable for a designer to do within a designer’s duty of care, not whether the hazard under consideration arises from design (see Applicant's Outline of Opening Submissions [98] to [111] at AB 93112). In other words, having identified the limits of the duty by reference to “arising from the design”, the appellant then raises the separate issue of the content of the duty by reference to the concept of reasonable practicability, but does so under the guise of construction. The appellant never fully addressed what is meant by “arising from the design” except perhaps when it submitted:
A designer’s duty is “limited to matters of design” and section 23(3a) and regulation 3.140 are, by their terms, confined in that way. (submissions paragraph 108, citing Slivak v Lurgi at [34]).
43 That submission takes the matter no further than rephrasing the express words of s 23 and reg 3.140 respectively.
44 When the High Court pronounced upon the scope and content of a designer’s duty in issue in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304, namely, the statutory duty imposed by s 24 of the Occupational Health, Safety and Welfare Act 1986 (SA), its determination centred on the concept of what is “reasonably practicable”. At [37], Gleeson CJ, Gummow and Hayne JJ stated:
The ordinary and natural meaning of the terms in par (a) of s 24(2a) is that they apply to a structure being built in accordance with the design. Thus, if, as designed, parts of a structure are incapable of bearing weight that the structure is intended to bear, or if, as designed, it is possible for parts of the structure to fall or break, or if the design is incapable of being built safely having regard to features of the location in which it is being built, then the design will be inadequate and the designer will have breached s 24(2a). The appellants stressed the presence of the term “must ensure”. However, the requirement is one of ensuring safety “so far as is reasonably practicable”. The requirement applies to matters which are within the power of the designer to perform or check, such as ascertaining what use the structure will be put to, what loads it will experience when being built and the nature of the location in which it is to be erected. This is in contrast to the matters that would be forced within the ambit of this requirement were the submissions for the appellants accepted; for then a designer would be required to take account of factors outside the power of the designer to control, supervise or manage, such as the procedures to be adopted during construction.
45 Gaudron J said at [53] to [54]:
The words “reasonably practicable” have, somewhat surprisingly, been the subject of much judicial consideration [26]. It is surprising because the words “reasonably practicable” are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:
● the phrase “reasonably practicable” means something narrower than “physically possible” or “feasible” [27];
● what is “reasonably practicable” is to be judged on the basis of what was known at the relevant time [28];
● to determine what is “reasonably practicable” it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk [29].
For present purposes, what is reasonably practicable has to be considered at the time the tower was designed. Moreover, when considering what is reasonably practicable for the purposes of s 24(2a)(a) of the Act, it is relevant to consider that, in the ordinary course, the designer of a structure will have little or no control with respect to the work practices or the workmanship of those who undertake its construction. And it is also relevant to consider what may reasonably be expected of those persons. However, as will later appear, these are not the sole considerations.
46 Her Honour noted also at [63]:
[T]he question whether there was a breach of that duty is, as already indicated, a matter of judgment having regard to all the facts.
47 The appellant’s case did not, in substance, raise a construction issue. Its submissions addressed a controversy about whether a duty had been breached based on arguments about reasonable practicability. That controversy was resolved by the Tribunal's consideration and conclusions on the facts as found.
In the alternative
48 Even if the ground properly raises an issue of construction, for the following reasons, it fails. The appellant's argument concerning the construction of reg 3.140 is premised on the regulation being tied to an overarching duty derived from s 23 of the OSH Act, as discussed in Slivak. This duty is often referred to as the “general duty”, “duty of care” or “primary duty of care” (see for example Tooma, M, Safety, Security, Health and Environment Law p 53).
49 The appellant's submission was, in short, that the duty contained in reg 3.140 is a subset of the general duty under s 23 of the OSH Act and therefore cannot operate to extend the general duty but must be construed within its limits. Regulation 3.140 cannot be characterised in this way. We agree with the respondent’s submissions to the effect that reg 3.140 stands independently of s 23 and the general duty imposed on designers by the OSH Act. In other words, while reg 3.140 imposes a duty (in the sense of it creating a legally binding obligation), it should not be construed as confined by a duty of care. Reference to any articulation of the limits of a designer's general duty of care, have no direct bearing on the application of the requirements imposed by reg 3.140.
50 The appellant characterised s 23 as creating the general duty and reg 3.140 as being a specific duty or subset of the s 23 general duty. It referred to Slivak as articulating the general duty of designers that arises under s 23, where Gleeson CJ, Gummow and Hayne JJ stated at [34] to [35]:
Subsection (2a) divides and allocates in pars (a)(d) duties between those who design a structure, those who manufacture any materials to be used for its “purposes”, those who import or supply any materials to be used for its “purposes” and those who undertake its erection. The difference in the content of the duties and their different scope of operation suggests that the duty imposed upon designers is intended to be limited to matters of design. To deal with examples raised during argument, it would not be incumbent on a designer to guard against a supplier of material or an erector incorporating substandard or inferior materials when constructing the design. The supplier or erector or both would be in breach of their own duty under the relevant paragraphs of s 24(2a). The express imposition of liability upon those parties for such acts suggests there is not to be implied in par (a) of s 24(2a) an imposition upon the designer in respect of the same matters.
The same would follow in respect of the erection of a structure outside or otherwise not in accordance with its design. The imposition by par (d) of liability upon the person undertaking the erection of the structure suggests that the designer is not required by par (a) to anticipate errors or departures from design by the person undertaking the erection and to take steps to guard against it by modifying the design. The result of accepting submissions for the appellants would be to enlarge the scope of par (a) to cover the matters already dealt with in pars (b), (c) or (d). This would tend to distort the scheme of the Act and undermine its careful allocation of liabilities among the parties jointly responsible for the erection of a structure. It would also expose designers to criminal liability for a penalty of up to $50,000 in respect of matters not expressly mentioned in the statute. The court should be slow to interpret a law in a fashion which would impose criminal liability by a process of implication.
51 What the High Court was required to decide in Slivak was whether the statutory duty of care required Lurgi, as designer, to take reasonably practicable steps in respect of any reasonably foreseeable errors or variations from the design that might be made by the builder of a structure. Paragraphs [34][35] of the judgment relied upon by the appellant are steps in the High Court's reasoning to the conclusion in para [37], including observations by way of illustration. They do not themselves define a designer's duty of care.
52 The appellant emphasised the requirement in reg 3.140(2)(a)(ii), that the relevant hazards must “arise from the design” of the end product of construction. It submitted that the hazard of hollowcore panels falling while being lifted could not be regarded as a hazard arising from the design, and that this is a conclusion that is compelled by the respondent's concession that the appellant did not expose anyone to any relevant hazard. The respondent, on the other hand, submitted that reg 3.140 was not constrained by s 23 of the OSH Act, but is an independent and distinct source of an obligation to provide the written report referred to in the regulation. The respondent submitted that the construction of reg 3.140 need not import a limitation sourced from s 23 or the duty imposed by s 23.
53 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. The applicable principles are wellknown, and were summarised in Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 as follows (citations omitted):
The first aspect is the imperative to give primacy to the language which the legislating body has chosen to use. As the plurality observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
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.
This focus on the statutory text may be seen as an aspect of the rule of law. It recognises and preserves the role of the legislature, acting within constitutional constraints, in identifying the policy which legislation is to pursue by requiring that effect be given to the chosen text. This point was noted by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:
The danger that lies in departing from the ordinary meaning of unambiguous provisions is that “it may degrade into mere judicial criticism of the propriety of the acts of the Legislature”... it may lead judges to put their own ideas of justice or social policy in place of the words of the statute.
Additionally, focus on the statutory text facilitates the comprehension of the meaning of legislation by persons whose conduct it regulates. As French CJ observed in Alcan:
The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill [(1991) [1991] HCA 28; 172 CLR 319 at [340] as: ''dictated by elementary considerations of fairness, for, after all, those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.” In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.
54 Regard must also be given to the purpose and object of the text, to ascertain the intention of the legislature in making the law in question: Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 266 CLR 428; See too: Programmed Industrial Maintenance v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208.
55 The text of reg 3.140 is set out above. Notably, the appellant does not point to any particular context within the OSH Act beyond s 23 itself, nor the Regulations, to support its submission that reg 3.140 is confined by the limits of the duty created by s 23. In our view, the context indicates otherwise.
56 The scheme of the OSH Act is to, amongst other things, impose a general duty to protect safety and health at work, framed in terms of what is reasonably practicable. As such, the general duty is clearly one that approximates or approaches a statutory restatement of the common law duty of care, although commentators and the courts have often cautioned that the statutory duty, and common law duty are not identical: Drexel London (a firm) v Gove(Blackman) [2009] WASCA 181 at [214] and [268]; Town of Port Hedland v Hodder (No 2) [2012] WASCA 212; (2012) 43 WAR 383 per Martin CJ at [47]; and generally Foster & Apps The neglected tort  breach of statutory duty and workplace injuries under the Model Work Health and Safety Law (2015) 28 AJLL 57.
57 In the case of designers, the general duty is a duty to ensure, as far as is practicable, that the design and construction of buildings or structures is such that persons who properly construct, maintain, repair and service them, and those who later use them, are not, in doing so, exposed to hazards (see s 23(3a) OSH Act set out above).
58 In addition to creating and imposing general duties, the OSH Act also contains provisions, amongst others, imposing obligations relating to consultation with the workforce (s 24), compliance with improvement notices (s 48), notification of incidents (s 23I), and prohibitions on victimisation (s 35A).
59 Consistent with the manifold purposes of the legislative scheme, s 60 of the OSH Act permits the making of regulations prescribing all matters that are necessary or convenient to be prescribed for giving effect to the purposes of the OSH Act. Subsection 60(2) provides that, without affecting the generality of s 60(1), regulations may be made with respect to any of the matters specified in Schedule 1. Therefore, the first significant contextual indicator is the content and structure of Schedule 1. It contains 38 separate items setting out the matters with respect to which regulations may be made. It is sufficient to reproduce a selection of those items:
1. Safety and health standards or procedures to be complied with —
(a) at any workplace; or
(b) in the performance of any work; or
(c) in the use, cleaning, maintenance, disposal or transportation of any plant; or
(d) in the use, handling, treatment, removal, processing, storing, transport or disposal of any substance; or
(e) in the design, manufacture, importing or supplying of any plant; or
(f) in the design, manufacture, importing or supplying of any substance; or
(g) in the design or construction of any building or structure, including a temporary structure.
1A. The imposition of duties on persons in relation to —
(a) the identification of hazards at the workplace; and
(b) the assessment or risks resulting from such hazards; and
(c) the taking of remedial or other action.
…
4. The registration or licensing of —
(a) any work, plant, process, substance or workplace;
(b) any person carrying out any kind of work,
by the Commissioner or any other prescribed person or authority.
4A. Duties to be observed by —
(a) the owner; or
(b) a person having the control,
of plant used at a workplace.
5. The issuing of certificates of competency or provisional certificates of competency for persons engaged in prescribed work and for the duration, variation, suspension or cancellation of such certificates.
…
12. The appointment of persons who are to be responsible for the supervision of occupational safety and health in prescribed circumstances or industries.
…
17. The medical examination of employees subject to their consent.
…
23. The giving of notices, in specified circumstances, to the Minister, an inspector or other prescribed person or authority.
…
24A. The reporting of injuries incurred at workplaces, or diseases affecting employees at workplaces, other than injuries and diseases prescribed for the purposes of section 23I.
…
60 In the main, it seems reasonably clear that these matters are not part of the general duties set out in the OSH Act, but are distinct, further duties such as matters of management, administration and record keeping. The duties referred to in item 1A are distinct from the safety standards and procedures referred to in item 1, which presupposes the existence of a duty concerning safety and health in relation to, amongst other things, “the design or construction of any building or structure, including a temporary structure” (item 1(g)). It is also apparent that reg 3.140 relates to the matters at Schedule 1, item 1A.
61 Further, the text of s 23 does not obviously align with the obligations dealt with in reg 3.140. There are a number of areas of incongruity. The first area relates to who owes the duty? Section 23 imposes duties on designers, manufacturers, importers and suppliers of plant for use at workplaces. Section 23(3a) applies to “a person that designs or constructs” any building or structure including a temporary structure for use at workplace. Regulation 3.140 is confined to designers.
62 The second area relates to when the duty applies. Section 23 creates duties, amongst other things, in the design and construction of plant for use at a workplace. As to the provision of information about the plant, it requires the information specified in s 23(1)(c) be provided “when the plant is supplied and thereafter whenever requested”. Regulation 3.140 concerns the provision of information by way of a written report, but contemplates that information being provided before the plant is supplied and prior to or during construction.
63 The third area relates to the activities the duty applies to. Section 23 covers a broad range of activities where plant is designed, manufactured, imported or supplied for use at a workplace. Regulation 3.138 confines the application of reg 3.140 to “construction work taking place, or to take place, at a construction site”.
64 Finally, there is incongruity in the nature of the obligations. Section 23(3a) imposes a duty on a designer of a building or structure to ensure the design of the building or structure is such that:
(a) persons who properly construct, maintain, repair or service the building or structure; and
(b) persons who properly use the building or structure,
are not, in doing so, exposed to hazards.
65 This provision deals with the act of designing the building or structure rather than the information to be given or communicated. It is a positive duty to do something to eliminate exposure to hazards.
66 Regulation 3.140 on the other hand, does not oblige the designer to do anything to remove or eliminate exposure to identified hazards. It expressly allows the designer to state in its report that it has not done anything to address an identified hazard. The statutory provisions deal with different subject matter. Regulation 3.140 deals with the obligation to provide a report to a client and what the report must contain.
67 The structure of, and headings used in, the regulations indicate a distinction between those regulations that concern the standards and procedures by which the general duty is to be discharged, the management of risks and other administrative matters. That reg 3.140 is intended to impose duties concerning management of risks is apparent because reg 3.140 falls under Part 3 which is headed “Workplace safety requirements”. Within Part 3, Division 1 is headed “General Duties Applying to Workplaces”. It is reasonable to view the

regulations in that division as referable to the primary duty or duty of care. At the other end, Division 11 deals with construction industry induction training. The final division, Division 12, is headed “Construction industry consultation on hazards and safety management”. It is here that reg 3.140 resides.
68 Furthermore, reg 3.140 is itself headed “Designer of work for commercial client to give client report” and appears in the same Division as reg 3.143, which deals with “Safe work method statements for highrisk construction work”.
69 To limit the words “arising from the design of the end product” in reg 3.140(2)(a)(ii), in the manner contended by the appellant, by reference to the duty of care on designers, is to import concepts that extend well beyond the plain and ordinary meaning of those words. What the appellant attempted by the construction it contended for, is to squeeze reasonable practicability considerations into the words “arising from the design”. Part of the reason that the concept of reasonable practicability does not fit into reg 3.140, is because other parts of the regulation delineate its scope, in terms that depart from the way the content of a duty of care is generally articulated. The written report need only specify hazards that “the designer has identified as part of the design process”: reg 3.140 (2)(a)(i) and to which “a person at the construction site is likely to be exposed”: reg 3.140(2)(a)(ii). Between these limits, and the words “arising from the design” there is no gap into which “reasonably practicable” or other additional limitations, need to be inserted, as a matter of construction.
70 As the appellant recognises in its written submissions, the words “arising out of” or “arising from”, have been judicially considered on many occasions. They have been held to be words of wide import, connoting a connection between two things that is wider than the connection required by the words “caused by”: Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49 at 505. The words “arising out of” therefore, require some causality between the design and the hazard. But that does not take the matter as far as the appellant put it, in also requiring that the existence of the causal or consequential relationship is to be judged, having regard to concepts of what is practicable.
71 Regulation 3.140 should not be approached as being coextensive with the duties in s 23. The regulations in Division 12 Part 3 are, as the respondent submitted, intended to be distinct and additional to the duties created by Division 2 of the OSH Act. Therefore, reg 3.140 is not to be construed so that the hazard of hollowcore planks falling when being lifted cannot be a hazard arising out the design of the ship building facility. Regulation 3.140, as a matter of construction, is not to be read down in view of the general duties contained in s 23 of the OSH Act.
72 It follows from this conclusion that the question for the Tribunal was really only a factual assessment of whether the risk of hollowcore panels falling was a hazard that arose out of the design of the relevant building or structure, and therefore met the requirement of reg 3.140(2)(a)(ii).
73 The respondent contended that the hazard should have been referred to in the report because it was obvious and significant. Regulation 3.140 does not condition the obligation on the hazards meeting any such threshold or degree of seriousness. As summarised above, a hazard must be set out in the report if it is:
(a) identified by the designer as part of the design process;
(b) arises from the design of the end product of the construction work; and
(c) is a hazard to which a person at the construction site is likely to be exposed.
74 It was common ground at the hearing at first instance, that the risk of a hollowcore plank falling was a hazard. Furthermore, the appellant ran its case at first instance on the basis that it was a hazard that had been identified by the appellant as part of the design process because, the appellant argued, it was referred to in or covered by one of Items 9, 17 or 20 of its Safety in Design Risk Management Register or, alternatively, that it was referred to in the Notes to the Design drawings.
75 It was not argued at first instance or on this appeal, that persons at the construction site were not exposed to the hazard of hollowcore planks falling. Therefore, there was no controversy that the condition in reg 3.140(2)(a)(iii) was met. Although submissions were made on the appeal with emphasis on the implicit recognition in s 23(3a), that the designer may assume that the construction will be carried out properly by those who are responsible for the construction, this does not negate the fact that the hazard is one to which a person at the construction site was likely to be exposed.
76 We do not understand the respondent's concession that the appellant did not expose anyone to a hazard to be the same as saying that the hazard was not one to which persons at the construction site were likely to be exposed. Rather, we understand the respondent's submission as meaning that the appellant did not cause the hazard to materialise and was not the immediate and direct cause of the existence of the hazard. This is not the same as a concession that the hazard does not arise out the design of the building. The hazard came into existence in the design's implementation and therefore arose from the design.
77 The Tribunal's factual finding that the hazard arose out of the design was one that was reasonably open to the Tribunal. Mr Airey's evidence as contained in his report of 13 February 2020, is referred to earlier in these reasons. In his report he stated:
Incorporation of precast hollowcore planks into the building design created a need to transport and deliver the planks to the site and place them in the final position required within the structure being built. Because of this there is a need to ensure that during the transport and erection process the precast prestressed planks are appropriately handled to avoid inappropriate stress levels within the plank and to ensure industrial safety. There is therefore a hazard implicit in the process due to need to lift very heavy items into position. While this is a construction issue it does need consideration in the development of a precasting methodology and is specified as being required. This aspect of safety in design clearly resided with the supplier of the precast items and not with GHD.
78 Mr Airey concluded that the risks in construction aspects “of safety in design clearly resided with the supplier of the precast items and not with GHD”. However, that conclusion is inconsistent with his identification of the fact that incorporating the hollowcore planks into the design created the need for the construction and therefore the “implicit” process hazards. As also noted above in discussing Mr Airey’s evidence, he went on to state:
I now refer to the CIVMEC Facility Expansion Project Construction Risk Assessment Table and note that Item 9  Suspended Loads for the Ship Assembly Hall identifies construction and crane operations for installation of larger modules as a hazard and in Item 17  Suspended Loads, there is no specific reference to lifting of precast concrete panels identified as a hazard. This omission is surprising as the precast panels are heavy and require very specific management to ensure safe placement.
79 The Code of Practice for Safe Design of Buildings and Structures 2008 envisages that designers should identify the hazards associated with handling heavy and precast elements incorporated in the design of a building. It suggests such risks are considered to arise from the design. The Code states:
Safe design involves consideration of processes, including human factors, organisational issues and life cycle management, not just product.
…
The safe design approach begins in the design and planning phase with an emphasis on making choices about the design, methods of construction and materials used, based on occupational safety and health considerations.
…
Designers may not have management and control over the actual construction of a project but particular attention should be paid to:
● providing guidance on how it might be constructed safely
● minimising hazards in the design
● applying safe design principles to more traditional designs and processes and considering whether new or innovative approaches to design will eliminate or reduce risk and result in an intrinsically safer building or structure
● providing information of any identified hazards arising from an unconventional design to those who will construct or use the building,
and carrying out the above in association with those who have expertise in construction safety.
…
With tiltup and precast construction, reference should be made to the Commission's Code of Practice Tiltup and Precast Construction, which sets out design considerations, as well as specific obligations for different parties.
…
Points for designers to consider when providing information include…providing information on significant hazards including…heavy or awkward prefabricated elements likely to create handling risks. Communication of this information between all stakeholders will minimise the likelihood of safety features deliberately incorporated into the design being eliminated at later stages of the life cycle by those engaged in subsequent work on or around the building or structure.
80 Finally, the appellant's Safety in Design Risk Management Register, that it relied upon as its written report for the purpose of reg 3.140, did identify and refer to hazards of a similar nature to the hazard associated with hollowcore planks falling from heights. For instance, as noted earlier in these reasons, in Item 9, it refers to “Suspended Loads  construction crane operations for installation of larger modules”, Item 17 “Suspended loads  cranes on different levels crossing over and Item 20 “Suspended loads  Cranes working near glazing, crane loads falling or swinging through glazing”. The inclusion of these items shows that the appellant considered such hazards to arise from the design of the Project, despite the fact that they arose directly from construction processes and methods.
81 For these reasons, this ground is not made out.
Ground 2
82 This ground of appeal is to the effect that the Improvement Notice was invalid when it was issued on the basis that it was uncertain, vague and ambiguous. It was submitted by the appellant that the principles discussed and applied by the Full Bench of the Commission in Alcoa of Australia Limited v Andrew Chaplyn [2019] WAIRC 00011; (2019) 99 WAIG 93, concerning prohibition notices issued under the Mines Safety and Inspection Act 1994 (WA), have equal application to the present matter. The appellant submitted this was recognised by the Tribunal when at [73] to [78] of its reasons, the Tribunal referred to Alcoa and agreed that in the context of s 48 of the OSH Act, an improvement notice “must be certain in its terms as a condition of its valid exercise”. (See AB165166).
83 Given the conclusions of the Tribunal, the appellant submitted that it was recognised by the Tribunal that to be effective, the Improvement Notice needed to be modified. Thus, as the submission went, unless it was modified, the notice could not be affirmed and it was invalid. Furthermore, the appellant challenged what was described by the Tribunal as a “retrospective activity”, in modifying the notice in circumstances where the Project had long since been completed. Thus, what in effect the Tribunal did was to rectify a defective improvement notice in circumstances where the relevant hazard no longer existed at the Project. Properly construed, reg 3.140 did not support this course and it was not a lawful exercise of the Tribunal’s powers to do so.
84 On the other hand, the respondent contended that read as a whole, the Improvement Notice was not invalid when it issued, especially having regard to s 26 of the Industrial Relations Act 1979 (WA), which is adopted in the OSH Act and applies to the Tribunal’s exercise of jurisdiction and powers. Further, even though the appellant’s work at the Project had been completed, the respondent contended it was possible to still comply with the Improvement Notice, in terms of inserting the required entries into the written report to its client. Whilst directions are not mandatory to include in a notice, under s 50 of the OSH Act, taken in the context of the Improvement Notice as a whole, they were not ambiguous and did not render the notice invalid. Even if they could be so described, as the submission went, directions may be severed from the notice, leaving it intact and valid.
85 As discussed in Alcoa, a prohibition notice issued under the MSI Act, must be sufficiently clear and unambiguous to enable the recipient of the notice to know what it is they must do, to comply with it. A failure to comply with a prohibition notice under the MSI Act is a criminal offence: s 31AG.
86 As to the issuance of statutory notices in a different context, under the Environmental Protection Act 1986 (WA), in Re Lawrence; ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549 a pollution abatement notice issued under s 65(2)(b) of the EP Act came under challenge on several bases, including that it was uncertain and therefore invalid. Malcom CJ in considering this argument at 566567 said:
As I have already indicated, the provision that the relevant measures must be “specified” is that such measures must be unambiguously identified and made clear in the notice itself. I note that this was also the approach taken by Gobbo J in Environment Protection: Authority v Simsmetal Ltd (at 617; 316). That case was concerned with s 62A of the Environment Protection Act 1970 (Vic) which relevantly provides that the authority made by notice in writing direct a relevant .person “to take the cleanup measures as specified in the notice”. Gobbo J said (at 629; 318):
“The Act goes beyond requiring merely a notice that identifies the pollution and calls on the recipient to remedy it. It obliges the Authority to specify the measures.”
Gobbo J referred with approval and applied the decision in Perry v Garner [1953] 1 QB 335 in which the· occupier was served with a notice requiring him to take certain steps for the destruction of rats on his land. The notice required poison treatment “or other work of a not less ·effectual character”. The Act under which the notice was served spoke of a notice requiring such reasonable steps for the purpose “as may be so specified”. Lord Goddard CJ (with whom CroomJohnson and Pearson JJ agreed) said:
“In the opinion of this Court, that is not specifying the steps which are to be taken. The notice specifies a step which the defendant may take, namely, poison treatment, but it tells him that he may take other steps which are not specified. The notice at once becomes unspecific because it directs the doing of a particular thing or something else, and the something else is left completely at large. I do not think, therefore, that it can be said that this notice complies with the section. If it had confined itself to poison treatment, there would have been a compliance, but as it does not, in my opinion this is not a good notice under the Act.”
It is clear that the notice must unambiguously identify and make clear the measure to be taken. It was submitted that measure l(a) in so far as it provided that any area intended to carry a vehicle must be “treated with an effective dust suppressant media” to prevent or minimise the generation of dust, failed to specify a precise and unambiguous measure. There was a note, however, that for the purposes of the measure “effective dust suppressant media” meant the proprietary product Protect Coat K6l or any similar material. Thus what was specified were alternatives, namely, paving, sealing, or otherwise treating the area with an effective dust suppressant media. In my opinion, the specification of three possible measures, one of which required treatment with a proprietary product or any similar material, was sufficiently clear standing on its own. However, when read with measure l(b) the matter was left openended by the delegation to an inspector to form an opinion whether insufficient areas, had been sealed or otherwise treated. In my opinion, measure l(b) was a significant and important portion of the notice and the notice would have a different character if measure l(b) were simply severed. In .this respect I agree with the approach adopted by Gobbo J to the question of severance as set out (at 630631; 319320) in Environment Protection Authority v Simsmetal Ltd. In particular, Gobbo J said (at 631; 320) that:
“It is in any event arguable that a court should be reluctant to grant severance in respect of the contents of a notice than in respect of a statute or a regulation. In the case of the latter, amendment is more difficult and invariably a matter of delay. In a case of a notice, the remedy is much simpler in that the Authority can deliver a fresh notice.”
87 In BioOrganics Pty Ltd v The Chief Executive Officer, Department of Water and Environmental Regulation [2018] WASC 263, Allanson J considered a case also under the EP Act. This matter concerned the issuance of a closure notice under s 68A of the EP Act. An application for a declaration was made on the grounds that the closure notice was invalid, due to uncertainty of expression and that it did not specify things required to be done, with sufficient clarity and certainty of expression.
88 As noted by the respondent in its written submissions, Allanson J held at [26] that, in applying Television Corporation Ltd v Commonwealth [1963] HCA 30; (1963) 109 CLR 59 (citing King Gee Clothing Co Pty Ltd v The Commonwealth and Canns Pty Ltd v The Commonwealth [1946] HCA 5; (1946) 71 CLR 210) “there is no general principle that uncertainty in an executive instrument spells legal invalidity. But there may be a requirement of certainty in the provisions which create the power to impose conditions”. It is the latter part of this statement by his Honour that is of particular importance in the present context. Section 48 of the OSH Act, set out above, enables an Inspector to issue an improvement notice in two circumstances. The first, is when an Inspector is of the opinion that a person is contravening a provision of the OSH Act. The second circumstance is where the Inspector forms the opinion that a person has contravened a provision of the OSH Act, where it is likely the contravention will continue or be repeated (our emphasis). If the Inspector forms either opinion above, and issues an improvement notice, the Inspector must then, in the improvement notice, require the person to “remedy the contravention…”: s 48(1). By s 48(2), the Inspector is then required (“shall”) to include in the improvement notice, the matters specified.
89 It was common ground in this matter, and as found by the Tribunal at first instance, that the Inspector did not comply with s 48(2)(c) of the OSH Act in that he did not “specify the provision of this Act in respect of which that opinion is held”. This refers to the relevant opinion in either s 48(1)(a) or (b). The Tribunal held that it could have been either (at [84] reasons AB167). The Tribunal also held that the Improvement Notice was uncertain as to the time for compliance, being “19 Mar 2019 at 0000 hours”. Despite these omissions and lack of clarity, the Tribunal held that section 1 of the Improvement Notice was compliant “in part”. As to section 2, dealing with the directions inserted by the Inspector under s 50 of the OSH Act, the Tribunal held that the directions were not sufficiently clear and unambiguous. It was on this basis, and in reliance on the power to modify the decision of the Commissioner under s 51A(5)(b) of the OSH Act, that the Tribunal issued the order that it did.
90 In our opinion, for the following reasons, with respect, the Tribunal was in error in exercising its power to affirm and modify the decision of the Commissioner in this case, in the way it did so. The discretion of the Tribunal, in modifying the Improvement Notice, miscarried to the extent that warrants appellate intervention.
91 Whether directions are included in an improvement notice under s 50 of the OSH Act, is a discretionary decision. But in this case, having decided to do so, the Inspector, in including directions in the Improvement Notice, must ensure that they are clear and unambiguous. They were not. The Tribunal found as much at [80] of its reasons. All three of the directions in section 2 of the Improvement Notice did not clearly indicate to the appellant what specifically it was required to do to comply. Paragraph 1 refers to “Ensure as the designer all aspects of Reg 3.140 are raised with your client in a written report”. This does no more than refer to reg 3.140 in terms. Similarly, is the direction to “refer to Section 23(3a) of the OSH Act 1984”. Likewise, the direction to “refer to the Code of Practice Safe Design of buildings and Structures 2008” is very broad and is entirely unclear as to what parts of a document running to some 24 pages, the appellant was required to refer to in order to comply with the Improvement Notice (see AB542).
92 As noted above, the appellant and the respondent were at odds as to what the consequences were of the Tribunal’s conclusions as to the ambiguity and uncertainty in section 2 of the Improvement Notice. The appellant contended that the Tribunal recognised, in its conclusions at [73] to [74], that certainty of the Improvement Notice was a condition of the valid exercise of the power to issue it. The appellant contended also, that the Tribunal properly applied the decision of the Full Bench in Alcoa, to the circumstances of the issuance of an improvement notice under the OSH Act. On the other hand, the respondent contended that read as a whole, the Improvement Notice was not invalid.
93 The appellant’s further contention was that the Tribunal implicitly, if not explicitly, acknowledged that the requirement of certainty was not met in this case. As such, the Improvement Notice as issued, was invalid and required modification under s 51A(5)(b) of the OSH Act. We consider that the requirements discussed in the cases cited above, and as applied in Alcoa, equally apply to the issuance of an improvement notice under the OSH Act as to the issuance of a prohibition notice under the MSI Act. The purpose and objects of both the MSI Act and the OSH Act, are very similar. Both have the object of promoting the safety and health of persons at work. Both improvement and prohibition notices under the OSH Act carry criminal penalties for noncompliance: ss 48(4), (5) and (6); 49(5) and (6) OSH Act. It would be incongruous with the statutory scheme if, in circumstances where a recipient of a notice is liable to a criminal penalty for noncompliance, there was no requirement for them to be clearly and unambiguously told what it is they must do to comply with the notice.
94 Thus, in the issuance of an improvement notice or a prohibition notice under the OSH Act, certainty of terms is a condition of the valid exercise of the power to issue such a notice.
95 The next issue which arises is the statutory and/or discretionary foundation for the decision of the Tribunal to modify the Improvement Notice as it did. The decision of the Tribunal in this respect is set out at [82] to [84]. The factual circumstances relevant to the Project were set out at [82] of the Tribunal’s reasons. The evidence before the Tribunal, which was uncontroversial, was that the flooring in the building, and thus the need to lift the hollowcore concrete panels into place from a height, was complete by mid2019, some 12 months prior to the hearing before the Tribunal. Whilst the respondent suggested in submissions that there was some doubt as to whether the Project was completed by the time of the hearing, there was uncontroverted evidence given by Mr Tonkin that the construction of the Ship Assembly Hall was complete and the contractor was moving into the building and commencing fit out work. His evidence also was that the appellant’s work on the project was completed (see p 19 transcript at first instance).
96 The Tribunal recognised that the effect of modifying the Improvement Notice in the manner that it did also had the effect of “retrospectively” imposing an obligation on the appellant. Additionally, at [84], the Tribunal founded its decision to modify the Improvement Notice, to remove the directions in section 2, and to add a direction to include the hazard of hollowcore panels falling when being lifted by a crane in the written report provided to clients pursuant to regulation 3.140 of the Regulations to 14 June 2021, because either of ss 48(1)(a) or 48(1)(b) could have applied, but the notice contained neither.
97 This conclusion required a factual and/or legislative foundation, to support the power to affirm the Improvement Notice with modifications.
98 It is trite that for the purposes of ss 48(1)(a) and (1)(b) of the OSH Act, by the application of s 46 of the Interpretation Act 1984 (WA), “Act” includes subsidiary legislation, such as the Regulations. Accordingly, to provide the foundation for the conclusion that the Improvement Notice should be modified in the manner that it was, the Tribunal had to be satisfied of the existence of an ongoing hazard, and the appellant’s obligation to comply with the relevant statutory provisions, as a duty under the Regulations.
99 We have set out the terms of the relevant regulations earlier in these reasons. Regulation 3.138 provides that the terms of Division 12 apply to construction work “taking place or to take place, at a construction site”. As noted earlier, it was not controversial that the appellant was a “designer” as defined in reg 3.137. Also, it was not in dispute that CIVMEC was the “client” as defined in reg 3.137. In terms of the application of Division 12, CIVMEC was so described, as the person for whose direct benefit all of the work done at “the” construction site existed, upon “its” completion. It seems tolerably clear that in the context of the present case, this meant all work done for CIVMEC at the Project.
100 Having due regard to the scope of Division 12, that it applies to extant or future work at a construction site, one then has to examine the key provision in this case, reg 3.140. By reg 3.140(1) reference is again made to extant or future work at “ ‘the’ construction site…”. We note also that reference is made in subreg (1) to work at the construction site that “was … being done…”. However, given the inconsistency of this with reg 3.138(1) and having regard to the terms of subreg (2) as a whole, on the facts of the present case, little turns on that for present purposes.
101 It is then contemplated that, in relation to that client at that construction site, the designer is required to do certain things. The obligations on a designer in reg 3.140(2)(a) to (d) are conjunctive. A written report must be given to the client. This written report must include the hazards the designer has identified as part of the design process in subpar (i), that arise from the design of the “end product of the construction work”. Importantly for present purposes, in (iii), there must be the identification of hazards “to which a person at ‘the construction site’ ‘is’ likely to be exposed”.
102 Division 12 is to be construed as a whole and consistent with its text, having due regard to the general purpose or policy of the provisions: Programmed Industrial Maintenance per Kenneth Martin J at [59] to [63].
103 Viewed in the context of Division 12 of the Regulations when read as a whole, reg 3.140 requires a temporal connection between the design hazard(s) identified by the designer and the risk of exposure to the hazard by a person(s) at “the construction site”. We are also of the view, consistent with this temporal connection, that reference in reg 3.140 to “the construction site” in subregs (1) and (2)(a)(iii), is reference to the relevant construction work being done or to be done. This is consistent with reg 3.138(1), dealing with the scope of application of Division 12. There must be a construction site in existence or in contemplation, to which the relevant duties will attach.
104 This interpretation is reinforced by the words “the end product of the construction work”, being the completed building or project. Construed in this way, the relevant “construction site”, under the Regulations, was the CIVMEC Henderson site, the location of the Project. This is also consistent with the language of reg 3.140(2)(iii), which refers to the “likely exposure of a person” at the construction site, to hazards required to be identified by the designer. If there is no longer a relevant construction site, involving obligations imposed on a designer, it is difficult to see how any person can be likely exposed to hazards, the subject of the obligations contained in reg 3.140(2).
105 In adopting this approach to the construction of Division 12, for the purposes of ss 48(1)(a) and 48(1)(b) of the OSH Act, on the facts of this case, it was not open for the Tribunal to conclude that a contravention of reg 3.140 was occurring or had occurred, in circumstances where it was likely to continue. This was because the Project, as far as the appellant was concerned, was complete. The floor was complete, there was to be no further lifting of concrete hollowcore panels from a height. No person at the Project “construction site” in Henderson, as that phrase should be construed in reg 3.140, would likely be exposed to the hazard of hollowcore concrete planks falling from height. Therefore, the statutory criteria, as specified in reg 3.140, warranting the exercise of the power to modify the Improvement Notice, were not satisfied on the facts of this case. It is not sufficient to speculate that a business such as the appellant, may at some future point, engage in another design project at an indeterminate time, to justify imposing the obligations imposed by reg 3.140 of the Regulations.
106 In these circumstances, the exercise of the discretion by the Tribunal to retrospectively affirm and modify the Improvement Notice miscarried, as the Improvement Notice could no longer have any practical effect.
107 Accordingly, we would uphold this ground of appeal.
Notice of contention
108 The respondent filed a notice of contention in which it maintained that the Tribunal’s decision should be upheld on grounds other than those relied on in the Tribunal’s reasons for decision. As to the contentions raised relating to ground 1 of the appeal, as this appeal ground has not been made out, it is unnecessary to consider the contentions raised by the respondent concerning these issues.
109 As to ground 2 of the grounds of appeal, as we understood the contention, the respondent calls in aid s 26 of the IR Act, to the effect that the Tribunal, in applying this provision, can avoid technicality and legal form, and consider the interests of the persons immediately concerned. The tenor of the respondent’s submission seemed to be that read as a whole, in the context of s 26, the Improvement Notice was sufficiently clear as to how the appellant was required to comply with it.
110 Whilst s 26 of the IR Act is incorporated into the OSH Act, provisions such as s 26 do not relieve the Tribunal of the obligation to observe relevant principles of the general law. In considering a provision like s 26(1)(a), contained in s 108(1)(b) of the AntiDiscrimination Act 1977 (NSW), providing that the relevant tribunal “shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms”, Gleeson CJ and Handley JA in Qantas Airways Ltd v Gubbins and Others (1992) 28 NSWLR 26, said at [30]:
The words “equity, good conscience and the substantial merits of the case” are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found: see generally, Santos Ltd v Saunders (1988) 49 SASR 556 at 564 per Legoe J. In some circumstances the presence of this language may indicate that the decisionmaker is free from any obligation to apply rules of law so that any decision will be executive rather than judicial and not subject to appeal even if that is otherwise available: see Moses v Parker; ex parte Moses [1896] AC 245 …
In our view the duty to act according to equity and good conscience, in the context of this Act, did not free the Tribunal from its duty to apply the general law in deciding the issues raised by the defences of release by deed”.
111 In the context of the OSH Act, the Commission, sitting as the Tribunal is exercising quasijudicial and not executive power. The above principles apply to the exercise of the Tribunal’s jurisdiction. Qantas Airways Ltd has been consistently applied by the Full Bench of this Commission in the same way (see for example Health Services Union of Western Australia, (Union of Workers) v Director General of Health [2008] WAIRC 00215; (2008) 88 WAIG 543 per Ritter AP at [160][175]; Australian Medical Association (WA) Incorporated v The Minister for Health [2016] WAIRC 00699; (2016) 96 WAIG 1255 per Smith AP at [156]).
112 In the present context, given that noncompliance with the Improvement Notice would constitute a criminal offence, we do not consider that s 26(1) of the IR Act could provide a basis for the Tribunal to overlook or disregard the fact that an improvement notice may be invalid because of ambiguity or uncertainty. In our view, the Tribunal correctly concluded that certainty of the terms of an improvement notice, is a condition attaching to the exercise of the power under s 48 of the OSH Act to issue such a notice, in reliance on the principles discussed and applied by the Full Bench in Alcoa.
113 The respondent made submissions to the effect that the time for compliance as specified in the Improvement Notice was not crucial for its validity. The respondent seemed to contend that despite the Tribunal concluding that the appellant’s submissions to the effect that the time for compliance was ambiguous were made out (at [81] see AB167), on a reading of the Improvement Notice, the time for compliance was clear enough. Furthermore, the respondent contended that the actions of the appellant in seeking a review of the Improvement Notice to the WorkSafe Commissioner, when it did, meant that the appellant understood that the time specified was by midnight on 19 March 2019. Furthermore, even if uncertainty as to time for compliance did exist, the respondent contended that it was insufficient to render the Improvement Notice invalid, having regard to the terms of the notice as a whole.
114 The difficulty with this contention is that it is contrary to the finding of the Tribunal that the time for compliance in the Improvement Notice was ambiguous. The respondent has bought no cross appeal against this finding. This conclusion was plainly open to the Tribunal as in our view, specifying a time for compliance of “by no later than 19 March 2019 at 0000 hours”, was unclear and ambiguous. The Tribunal was correct to so conclude. As the appellant contended in response however, this issue was only one basis on which it contended that the Improvement Notice was invalid on the grounds of uncertainty.
115 The issuance of directions by an Inspector under s 50 of the OSH Act has been discussed above, in relation to ground 2. No doubt, as the respondent contended, the power under s 50 for an Inspector to include directions in an improvement notice is discretionary. Such directions are not required as a condition of the exercise of the power to issue an improvement notice under s 48 of the OSH Act. However, once an Inspector decides to exercise this discretion, then such directions are subject to the same requirement of clarity and certainty as is the rest of the notice. If an improvement notice contained measures that the recipient is required to take to remedy any contravention, likely contravention, risk, matters or activities to which the notice relates, then it is axiomatic in our opinion, that the recipient is entitled to know with certainty what it is they are required to do to comply: Re Laurence per Malcolm CJ at 567. Whilst the inclusion of directions may be discretionary, compliance with them is not. Directions, equally constitute, along with the rest of the content of an improvement notice, enforceable obligations, and a failure to comply with them is a failure to comply with the notice, leading to criminal liability.
116 As noted by the appellant too, severance of the original direction in this case would not resolve the issue. The Tribunal found it necessary to modify the Improvement Notice, to include the direction that it did, to make it clear and unambiguous and to enable the appellant to know what it was required to do.
117 The final matter raised by the respondent went to the issue of practical compliance with the Improvement Notice. The underpinning of the respondent’s contentions in this regard, involves the construction of the relevant regulations, which is the subject of discussion in relation to ground 2 above. The decision of the Tribunal cannot be supported based on the contentions advanced by the respondent.
Conclusion
118 For the foregoing reasons, we will make orders that the appeal be upheld, and the decision of the Tribunal be varied by revoking the decision of the WorkSafe Western Australia Commissioner. An order cancelling Improvement Notice 45300297 will also be made.