APPLICATION FOR EXTERNAL REVIEW PURSUANT TO SECTION 229 OF THE WORK HEALTH AND SAFETY ACT 2020

THE WORK HEALTH AND SAFETY TRIBUNAL

CITATION : 2023 WAIRC 00268

CORAM : Commissioner T Emmanuel

HEARD : fRIDAY, 5 May 2023, WEDNESDAY, 10 MAY 2023

DELIVERED : THURSDAY, 11 May 2023

FILE NO. : WHST 3 OF 2023

BETWEEN : Clinical Laboratories (WA) Pty Ltd

Applicant

AND

The Government of Western Australia's Department of Mines, Industry Regulation and Safety

Respondent

CatchWords : Application for external review – stay on Improvement Notice – stay principles – stay application granted

Legislation : Work Health and Safety Act 2020 (WA) s 3, s 229, s 229A, s 229B

  Industrial Relations Act 2020 (WA) s 49(11)

Result : Stay application granted

Representation:

Counsel:

Applicant : Mr Daniel Hill (of counsel)

Respondent : Mr David Blades (of counsel)

Case(s) referred to in reasons:

Elgas Ltd v SafeWork NSW (No 2) [2021] NSWIRComm 1102

Essential Energy (ACN 37428185226) v WorkCover Authority of New South Wales [2012] NSWIRComm 83

Multiplex Constructions Pty Ltd v The Regulator Under the Work Health and Safety Act 2011 [2018] QIRC 116; (2018) 281 IR 204

Soutorine v The Medical Board of Australia [2020] WASAT 5

Xu Hong Bin v Yan Li [2021] WAIRC 00662

Reasons for Decision

1         For simplicity, these reasons refer to the respondent as WorkSafe.

2         In February 2023, a WorkSafe Inspector issued Improvement Notice 90022369 to Clinical Laboratories (WA) Pty Ltd (Clinical Laboratories) requiring it to take practical measures to ensure its employees are not exposed to hazards arising from a lack of fresh air ventilation when working at the workplace by 24 March 2023. WorkSafe later extended the time for compliance with the Improvement Notice to 31 May 2023.

3         Clinical Laboratories has applied to the Tribunal for an external review. It argues that the Improvement Notice was invalidly issued and the Work Health and Safety Act 2020 (WA) (WHS Act) does not require it to implement the measures in the Improvement Notice.

4         Clinical Laboratories seeks a stay of the Improvement Notice (Stay Application), which WorkSafe does not oppose.

5         These reasons deal with the Stay Application.

Legislative framework

6         Section 229 of the WHS Act sets out who may apply to the Tribunal for an external review of particular decisions.

7         Section 229A sets out the Tribunal’s powers and the process for an external review. It provides:

(1)  This section applies if an application is made under section 229 for an external review of a decision.

(2)  The Tribunal must review the decision (unless the applicant withdraws or discontinues the application).

(3)  The review is to be by way of a hearing de novo, and it is not confined to matters that were before the decision‑maker but may involve consideration of new material whether or not it existed at the time the decision was made.

(4)  The purpose of the review is to produce the correct and preferable decision at the time of the completion of the review.

(5) When the review is completed, the Tribunal may —

 (a) confirm or vary the decision; or

 (b) set aside the decision and substitute another decision that the Tribunal considers appropriate.

(6)  Despite subsections (2) to (4), the Tribunal may, with the agreement of the applicant and the decision‑maker, act under subsection (5)(a) or (b) without starting or completing the review.

(7)  Subsections (2) to (4) are also subject to Schedule 1 clause 30.

8         Section 229B of the WHS Act deals with the Tribunal’s power to order a stay. It provides:

(1)  This section applies if an application is made under section 229 for an external review of a decision.

(2)  The Tribunal may stay the operation of the decision (wholly or partly) pending the Tribunal acting under section 229A(5)(a) or (b) or for any shorter period the Tribunal determines.

(3) The Tribunal may cancel or vary a stay.

(4)  If the decision is a decision referred to in section 229(1)(c), if relevant, the staying of its operation does not revive the reviewable decision that was the subject of the internal review.

9         The objects of the WHS Act are set out in s 3. The WHS Act focusses on securing safety for workers and others in the workplace:

(1)  The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by —

 (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work; and

 (b) providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and

 (c) fostering cooperation and consultation between, and providing for the participation of, the following persons in the formulation and implementation of work health and safety standards to current levels of technical knowledge and development and encouraging those persons to take a constructive role in promoting improvements in work health and safety practices —

(i) workers;

(ii) persons conducting businesses or undertakings;

(iii) unions;

(iv) employer organisations;

and

(d) promoting the provision of advice, information, education and training in relation to work health and safety; and

(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and

(f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act; and

(g) providing a framework for continuous improvement and progressively higher standards of work health and safety; and

(h) providing for the formulation of policies, and for the coordination of the administration of laws, relating to work health and safety; and

(i) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in the State.

(2)  In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable.

Relevant principles

10      Recently in Xu Hong Bin v Yan Li [2021] WAIRC 00662; (2022) 102 WAIG 37, the Chief Commissioner confirmed at [8] the principles that apply in relation to stay applications under s 49(11) of the Industrial Relations Act 1979 (WA).

For the purposes of the disposition of the present application, I refer to my recent decision on a stay application in GHD Pty Limited v WorkSafe Western Australia Commissioner [2021] WAIRC 00190; (2021) 101 WAIG 569 where at [8] I said as follows:

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

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

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

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

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

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

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

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

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

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

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

11      The Tribunal’s power to order a stay under s 229B of the WHS Act has not been considered before and there are few decisions arising under similar legislation in other jurisdictions.

12      In Elgas Ltd v SafeWork NSW (No 2) [2021] NSWIRComm 1102 Sloan C considered an application for the stay of decisions made by the work health and safety regulator that were the subject of an application for external review. Sloan C adopted the approach taken in Essential Energy (ACN 37428185226) v WorkCover Authority of New South Wales [2012] NSWIRComm 83 by Blackman J, which was to consider:

a. Is there a serious question to be tried?

b. Does the balance of convenience favour the granting of a stay of proceedings?

13      In Multiplex Constructions Pty Ltd v The Regulator Under the Work Health and Safety Act 2011 [2018] QIRC 116; (2018) 281 IR 204 (Multiplex), O’Connor DP considered an application for the stay of a decision made on an internal review and the operation of a prohibition notice issued by an Inspector of Work Health and Safety Queensland. O’Connor DP applied the principles detailed by the New South Wales Court of Appeal in Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 68. These were summarised as:

a. The court has a discretion involving the weighing of considerations such as the balance of convenience and the competing rights of the parties.

b. Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay.

c. The court will not generally speculate upon the appellant’s prospect of success, but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time.

d. In considering whether to grant the stay, it is sufficient that the applicant for the stay demonstrate a reason or an appropriate case to warrant favourable exercise of the discretion.

14      In a decision of the State Administrative Tribunal, Soutorine v The Medical Board of Australia [2020] WASAT 5, Tottle J said:

The considerations that guide the exercise of the discretion to grant a stay pending an appeal in curial proceedings may provide some guidance when determining whether to grant a stay pending the determination of a review application – the relevance of those principles will vary according to the nature of the decision giving rise to the order in respect of which a stay is sought.

I agree with respect with Curthoys J’s observations in PAG [PAG (WA) Pty Ltd and Commissioner for Consumer Protection [2018] WASAT 57] that, in the context of a stay application brought within an application to review an administrative decision, a regulatory decision-making authority is not to be equated with the successful party in proceedings in which the issues have been contested and determined by a court or tribunal.

Similarly the decisions on applications to stay immediate action decisions in other jurisdictions may provide some guidance as to the considerations bearing upon the discretion to grant a stay but care must be taken to recognise any relevant differences in the legislative frameworks in which the interstate decisions were made and the nature of the decision that gave rise to the order the subject of the stay application [26] – [28].

15      The WHS Act does not prescribe the matters to be considered by the Tribunal when deciding whether to grant a stay under s 229B.

16      The decision under review is an administrative decision of a regulatory decision-making authority, and not an order made by a court or tribunal after the hearing and determination of  contested proceedings.

17      Given the nature of this matter and the statutory context, I consider that the following considerations are relevant to considering the Stay Application:

a.  Is the stay necessary to preserve the subject matter or integrity of the appeal?

b. Does the applicant have an arguable case?

c. Does the balance of convenience favour the grant of the stay?

Clinical Laboratories’ submissions

18      Clinical Laboratories acknowledges that the ratio in Multiplex does not bind the Tribunal, but submits that the reasoning in that case can assist the Tribunal.

19      Clinical Laboratories argues that allowing the Improvement Notice to remain on foot, with a compliance date that will lapse before the substantive proceedings can be determined, would defeat the purpose of a statutory regime for external review. If Clinical Laboratories has to comply with the Improvement Notice, the substantive proceedings would be rendered nugatory.

20      Clinical Laboratories submits it has an arguable case that there is no reasonable basis in fact or law that gave the Inspector the power to issue the Improvement Notice.

21      In summary, Clinical Laboratories submits that the balance of convenience favours a stay, because:

a. The imposition of the disputed measures is at the heart of the substantive application.

b. Without a stay, Clinical Laboratories would be susceptible to prosecution if it did not comply with the Improvement Notice, in circumstances where Clinical Laboratories argues that the Improvement Notice was invalidly issued and requires Clinical Laboratories to take measures that the WHS Act does not require it to take.

c. There is public interest in not allowing statutory compliance and enforcement tools to be used by the regulator to extend the nature and operation of the duties that Parliament has imposed.

d. The public has an interest in workplace safety, but this is not a case where there is no safety management in place in the workplace.

e. There would be no disadvantage to WorkSafe if the stay is granted and WorkSafe does not oppose the stay.

WorkSafe’s submission

22      WorkSafe does not oppose the Stay Application and says that the external review is unlikely to be completed by 31 May 2023 (the deadline for compliance with the Improvement Notice).

23      WorkSafe submits that the WHS Act does not prescribe the matters to be taken into account by the Tribunal when deciding whether to grant a stay. It argues that the Tribunal should infer that the public interest is also a relevant consideration of a stay application under the WHS Act. WorkSafe says public interest should be understood in the relevant statutory context, which in this case includes the objects of the WHS Act. WorkSafe emphasises the importance of the objects at s 3(a) and (e), as well as s 3(2) of the WHS Act. It argues that there is public interest in giving workers the highest level of protection against harm to health, safety and welfare from hazards and risks arising from work as is reasonably practicable, while at the same time:

a. fostering cooperation and consultation between workers and employers, and continuous improvement in work, health and safety;

b. securing compliance with the WHS Act through effective and appropriate measures taken by WorkSafe; and

c. ensuring appropriate scrutiny and review (including external review by the Tribunal) of actions taken by WorkSafe.

24      Importantly, WorkSafe says this is a matter where time can be allowed for the implementation of the improvement measures.

25      WorkSafe does not say Clinical Laboratories lacks an arguable case. In relation to whether there is a serious question to be tried, WorkSafe acknowledges that Clinical Laboratories is entitled to an external review of the relevant decision with the opportunity to present evidence and submissions contrary to the WorkSafe Inspector’s view.

26      WorkSafe concedes that refusing the stay would render the substantive review nugatory.

Consideration

27      For the following reasons, I am satisfied that the Tribunal should grant the Stay Application.

28      In my view, the stay is necessary to preserve the subject matter or integrity of the litigation. If a stay is not granted, Clinical Laboratories would be required to implement the measures in the Improvement Notice by 31 May 2023 or risk prosecution. This creates practical difficulties in respect of the relief that could be granted by the Tribunal if Clinical Laboratories were to comply with the Improvement Notice and then be successful in its substantive application. As WorkSafe rightly concedes, once the improvement measures are implemented, from a practical perspective the appeal would be rendered nugatory.

29      Having considered the grounds of appeal set out in the Form 6 – Application to the Work Health and Safety Tribunal, there is at least an arguable case in relation to whether Clinical Laboratories should have to comply with the measures in the Improvement Notice. There is a serious question to be tried in relation to the reasonableness of the decision the subject of external review.

30      I agree that the public interest is relevant to the Tribunal’s consideration of the Stay Application. It is clear from the objects of the WHS Act that the legislation focusses on achieving safety in the workplace. It is relevant to consider whether a stay would create unacceptable risks for workers and others in the workplace. It is apparent from WorkSafe’s response to the Stay Application that the regulator considers that it would not. As WorkSafe submits:

a. this matter involves improvement measures that may require external technical assistance to be implemented, and not a hazard requiring immediate attention to safeguard workers; and

b. the timing of the stay is consistent with s 3(1)(e) of the WHS Act.

31      The Tribunal has already programmed the substantive application for hearing. In accordance with those directions, the matter should be heard in around five months. In all of the circumstances, the Tribunal is satisfied that the balance of convenience favours the grant of the stay.

32      An order will issue staying the operation of the Improvement Notice pending the Tribunal acting under s 229A(5) of the WHS Act in relation to application WHST 3 of 2023.