APPLICATION TO EXTEND A DEADLINE FOR MAKING A DECISION PURSUANT TO SECTION 82A OF THE WORK HEALTH AND SAFETY ACT 2020

THE WORK HEALTH AND SAFETY TRIBUNAL

PARTIES Worksafe Commissioner

APPLICANT

-v-

United Workers Union

RESPONDENT

CORAM Commissioner T Emmanuel

DATE FRIday, 22 August 2025

FILE NO/S WHST 6 OF 2025

CITATION NO. 2025 WAIRC 00719

Result  Order issued

Representation

Applicant   Ms J Courtney (of counsel)

Respondent   Mr R James (as agent)

Order

WHEREAS on 13 August 2025, the United Workers Union (Union) asked the WorkSafe Commissioner (Regulator) to appoint an inspector under s 82(1) of the Work Health and Safety Act 2020 (WA) (WHS Act) to resolve an issue relating to a recent action by Burswood Resort (Management) Ltd (PCBU) to reduce the medical response capabilities of staff on site at the Crown Perth complex located at Burswood (Crown Perth) and the classification of Crown Perth as a low-risk workplace;

AND WHEREAS under s 82(3) of the WHS Act, an inspector must make a decision resolving the issue no later than two days after the day on which the request that an inspector be appointed is made;

AND WHEREAS on 15 August 2025, the Regulator applied to the Work Health and Safety Tribunal (Tribunal) under s 82A of the WHS Act to set a new deadline in application WHST 6 of 2025;

AND WHEREAS on 18 August 2025, application WHST 6 of 2025 was listed for hearing on 22 August 2025;

AND WHEREAS on 18 August 2025, the Tribunal sent the Regulator, the Union and the PCBU a document prepared by the Tribunal titled ‘Information for workers affected by the issue’ (Information Sheet). The Tribunal asked the PCBU, by 3pm on 19 August 2025, to email the Information Sheet to its workers who may be affected by the issue, and to display the Information Sheet in a suitable, prominent place in the workplace where it will be seen by affected workers. At 3:52pm on 19 August 2025, the PCBU confirmed that it had displayed the Information Sheet, and that it had emailed the Information Sheet to all its workers affected by the issue;

AND WHEREAS in those circumstances, the Tribunal is satisfied that all affected workers and parties to the issue were notified of the hearing and had an opportunity to be heard about the Regulator’s application for a new deadline;

AND HAVING heard at the hearing on 22 August 2025 from Ms J Courtney (of counsel) on behalf of the applicant, Mr R James (as agent) on behalf of the respondent, and Ms E Hartley (of counsel) on behalf of the PCBU;

AND WHEREAS the Regulator says that a new deadline is necessary because:

a) the issues in dispute include the reduction in the medical capability of staff at Crown Perth from a level 4 to a level 3 scope of care under the clinical governance framework, the removal of equipment and medicines that fall within the level 4 scope of care, the alleged lack of consultation with workers and Health and Safety Representatives, and the classification of Crown Perth as a low-risk workplace;

b) the issues in dispute involve a number of stakeholders including the workers at Crown Perth, patrons of Crown Perth, the PCBU and the Union;

c) the inspector appointed to resolve the issues will need to:

i) speak with Union representatives and PCBU representatives before making a decision;

ii) consider any appropriate enforcement action, particularly in relation to the determination that the PCBU is a low-risk workplace as defined in WorkSafe WA’s ‘First aid in the workplace Code of Practice’;

iii) review documents provided by the Union including a large amount of correspondence and incident reports;

iv) seek the production of documents from the PCBU in relation to the issues in dispute and review any documents provided;

d) consider the complex hazards involved including:

i) possible physical and psychosocial hazards to workers and patrons that are exposed to violence, abuse, aggression and sexual assault at Crown Perth without appropriate medical response; and

ii) possible psychosocial hazards to medical staff (including qualified paramedics) at Crown Perth who may be prevented from providing lifesaving interventions which could cause psychological distress and risk the medical staff’s professional registration due to this change in scope;

AND WHEREAS the Regulator seeks a new deadline of 2 October 2025 to allow the Regulator to consider the referral and make a determination to resolve the matter;

AND WHEREAS the Union says that it only made its referral to the Regulator after the PCBU had made a definite decision, and the referral has been appropriately made under s 82 of the WHS Act. The Union considers that a deadline of 2 October 2025 is practicable in the circumstances and does not oppose the new deadline sought;

AND WHEREAS the PCBU objects to the new deadline sought and says the deadline should not be extended at all. In summary the PCBU relevantly says:

a)      safety for its workers and patrons always has been and will remain a priority across all of its properties, including Crown Perth;

b)     the background to this matter is complex;

c)      the first it was made aware that the alleged ‘issues’ had been referred by the Union was when the PCBU saw the Information Sheet;

d)     the two-day time limit imposed by s 82(3) of the WHS Act is intentional. It reflects the limited nature of Part 5 Division 5 of the WHS Act to enable inspectors to determine discrete and identifiable safety issues where reasonable efforts have been made by the parties to achieve a resolution in accordance with the agreed safety dispute resolution process in place at the PCBU;

e)      the Union has made no effort to identify with precision what the issue is or to raise the issue as required by s 81(2) of the WHS Act;

f)       consultation is ongoing and the PCBU has made no decision that is capable of being an ‘issue’ that can be referred to the Regulator;

g)     the referral to the Regulator is premature, misconceived and not a proper or effective use of the Regulator’s resources, given the Union has not:

i)       identified or communicated the issues in sufficient detail, such that the areas of concern are not in a form capable of determination; and

ii)     used the mechanisms available for the 12 affected employees and the Union to raise and resolve safety issues;

h)     while the Tribunal has the power to grant an extension of time, any such extension must be consistent with the purpose and scope of Part 5 Division 5 of the WHS Act and to be an extension of, at most, a matter of days, not months; and

i)       the PCBU is committed to continuing its consultation process with the Union and the affected employees in a cooperative and consultative manner;

AND WHEREAS the Regulator disputes the PCBU’s narrow interpretation of what constitutes an ‘issue’ under Part 5 Division 5 of the WHS Act and says that the referral from the Union amounts to an ‘issue’ for that purpose;

AND WHEREAS no other party to the issue wished to be heard;

AND WHEREAS in setting a new deadline that the Tribunal considers to be practicable, the Tribunal must evaluate the facts and circumstances of the case in question;

AND WHEREAS the Tribunal considers that it is clear from s 81 of the WHS Act that the ‘issue’ that may be referred to the Regulator under s 82 of the WHS Act is a matter about work health and safety that arises at a workplace or from the conduct of a business or undertaking, and the matter is not resolved after discussions between parties to the issue. On its face, the Union’s referral appears to be a matter about work health and safety that arises at a workplace or from the conduct of a business or undertaking, and it appears the matter is not resolved after discussions between the parties to the issue;

AND WHEREAS the Tribunal has considered the matters raised in the parties’ and the PCBU’s submissions and that the Union considers the new deadline to be practicable;

AND WHEREAS in the circumstances the Tribunal is not persuaded that it should refuse to set a new deadline on the basis that the Union should not have referred the matter to the Regulator at this time or at all, or because the PCBU considers that the Regulator should act under s 82(5) of the WHS Act;

AND WHEREAS the Tribunal considers that:

a)      it is not unusual for complex issues referred to the Regulator under s 82 of the WHS Act to require the setting of a new deadline for the inspector to make a decision resolving the issue. The WHS Act does not provide a particular period of time for the new deadline, rather the WHS Act allows the Tribunal to set a new deadline that the Tribunal considers to be practicable;

b)     in this matter there are a number of complex issues in dispute, including whether an issue has been referred to the Regulator at all;

c)      some of the issues in dispute involve a large number of diverse stakeholders;

d)     unless the Regulator acts under s 82(5) of the WHS Act, the inspector will need to speak with representatives of the Union and the PCBU, consider appropriate enforcement action, review a large number of documents, seek production of, and review, documents from the PCBU related to the issues in dispute, and consider complex hazards;

e)      the timeframes and steps set out in the Regulator’s plan attached to the application to the Tribunal appear to be reasonable in the circumstances; and

f)       the proposed deadline is consistent with the purpose and scope of Part 5 Division 5 of the WHS Act;

AND WHEREAS in all the circumstances of this application before it, the Tribunal considers that a new deadline of 2 October 2025 is practicable;

NOW THEREFORE, the Tribunal, pursuant to the powers conferred under the Industrial Relations Act 1979 (WA) and the Work Health and Safety Act 2020 (WA), orders –

THAT an inspector make a decision resolving the issue by 2 October 2025.

Commissioner T Emmanuel