REVIEW OF NOTICE - S.51A - OSH ACT

THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL

CITATION : 2023 WAIRC 00135

DELIVERED : Tuesday, 7 March 2023

FILE NO. : OSHT 9 OF 2021

Applicant

AND

WorkSafe Western Australia

Respondent

CatchWords : Occupational health and safety – review of Worksafe Commissioner’s decision – improvement notice – improvement notice revoked

Legislation : Industrial Relations Act 1979 (WA)

  Occupational Safety and Health Act 1984 (WA)

Result : Improvement notice revoked

Representation:

Applicant : Ms H Millar (of counsel)

Respondent : Ms C Stamp (of counsel)

Case(s) referred to in reasons:

The Worksafe Western Australia Commissioner v The Original Croissant Gourmet Pty Ltd [2007] WAIRC 01273; (2008) 88 WAIG 22

Reasons for Decision

1         On 4 June 2021 a WorkSafe Inspector issued an improvement notice (IN 90017157) to Ramsay Health Care Australia Pty Ltd (Ramsay) in relation to a breach of s 19(1) of the Occupational Safety and Health Act 1984 (OSH Act) at the Peel Health Campus in Mandurah.  The improvement notice sets out that an Inspector formed an opinion that Ramsay were contravening s 19(1) of the OSH Act on the grounds that the security and emergency department staff were exposed to the risk of occupational violence and aggression.  On that basis, Ramsay were directed that as far as practicable, the individuals or staff should be required to wear body-worn cameras to reduce the identified risks.

2         The improvement notice required the situation to be remedied by 5:00pm, 3 December 2021.

3         On 17 August 2021 Ramsay applied to the WorkSafe Commissioner (Commissioner) for a review of the improvement notice under s 51 of the OSH Act.  On 5 October 2021, the Commissioner affirmed the improvement notice and modified the time to comply with the notice to 1 March 2022.

4         On 12 October 2021, Ramsay referred the WorkSafe Commissioners’ decision to affirm the improvement notice for review by the Occupation Safety and Health Tribunal (Tribunal) pursuant to s 51A of the OSH Act.  Ramsay contend that they have not contravened s 19(1) of the OSH Act and do not consider the introduction of body-worn cameras to be an effective control measure.

5         Additionally, Ramsay considers body-worn cameras introduce further risks because there is insufficient evidence that body-worn cameras are an effective risk control measure, and that the introduction would be a speculative trial control measure and the potential that the implementation of body-worn cameras may increase risk of violence.  Furthermore, Ramsay assert that the introduction of body-worn cameras would result in difficulties associated with privacy issues.

6         After Ramsay referred the improvement notice for review by the Tribunal there has been considerable communication and correspondence between the parties.  Ramsay provided to the Commissioner information about the controls, policies, and operating procedures, that are in place at Peel Health Campus, including in the Emergency Department.  Ramsay submit that they have sought to demonstrate that every possible measure is being undertaken to ensure the safety and the risk mitigation against occupational violence and aggression within the Emergency Department.

7         Ramsay submitted an affidavit sworn by Ms Gina Carosi, a Legal Practitioner with Seyfarth Shaw Australia, which includes the correspondence provided to the Commissioner and sets out the basis on which it says that occupational safety and health is properly monitored, and that occupational violence and aggression is appropriately controlled and mitigated within the Emergency Department at Peel Health Campus.

8         Ramsay’s evidence is that there are comprehensive control measures, which it classifies into five pillars.  That is a training pillar, a communication and management plan pillar, engineering controls, including the layout and design of the Emergency Department, fourthly, the security personnel presence and the use of the security personnel within the Emergency Department, and finally, CCTV coverage.  Ramsay submits that based on the existing control measures, it is not appropriate nor necessary to introduce body-worn cameras.

9         WorkSafe submits that the improvement notice itself addresses the entirety of the control measures and the safety practices at site and that whilst the focus was on the use of body-worn cameras, a review of the documentation provided by Ramsay where the entirety of the control measures in place are set out.  WorkSafe submit that the key issues are the ongoing installation of duress alarms (which are the subject of another improvement notice issued by WorkSafe), improvements made to the aggression prevention and intervention training provided to staff and changes to the Prevention and Management of Occupational Violence and Aggression Manual.  WorkSafe submit that based on the information provided by Ramsay the Commissioner supports the revocation of the improvement notice.

Questions to be Answered

10      The question to be determined is whether the improvement notice issued ought to be affirmed, modified, or revoked?

Review of Improvement Notices – Principles

11      In respect of the application for review of the improvement notice, s 51A of the OSH Act provides:

51A. Review of notices by Tribunal

(1) A person issued with notice of a decision under section 51(6) may, if not satisfied with the Commissioner’s decision, refer the matter in accordance with subsection (2) to the Tribunal for further review.

(2) A reference under subsection (1) may be made within 7 days of the issue of the notice under section 51(6).

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

(4) The Tribunal shall act as quickly as is practicable in determining a matter referred under this section.

(5) On a reference under subsection (1) the Tribunal shall inquire into the circumstances relating to the notice and may –

(a) affirm the decision of the Commissioner; or

(b) affirm the decision of the Commissioner with such modifications as seem appropriate; or

(c) revoke the decision of the Commissioner and make such other decision with respect to the notice as seems fit,

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

[(6) deleted]

(7) Pending the decision on a reference under this section, irrespective of the decision of the Commissioner under section 51, the operation of the notice in respect of which the reference is made shall –

(a) in the case of an improvement notice, be suspended; and

(b) in the case of a prohibition notice, continue, subject to any decision of the contrary made by the Tribunal.

12      The Full Bench of the Western Australian Industrial Relations Commission in The Worksafe Western Australia Commissioner v The Original Croissant Gourmet Pty Ltd [2007] WAIRC 01273; (2008) 88 WAIG 22 (Original Croissant), held that s 51A(5) of the OSH Act requires that the Tribunal inquire into the circumstances relating to an improvement notice and that s 51A(3) provides that the nature of the inquiry is a rehearing:

[92] Section 51A(3) provides that the review of the decision under s51 is in the nature of a “rehearing”.  The word “rehearing” is one that has shades of meaning (Building Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620-621, cited with approval in Fox v Percy (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at [207]).  Mason J in Sperway at page 621 said that although there was no “absolute rule”, where “a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo …”.  At page 622 his Honour said the issue was one of discerning the legislative intent.  Here, that is gleaned from the structure of the review process and s51A of the OSH Act.

[93] Section 51A(5) provides that the Tribunal shall “inquire into the circumstances relating to the notice”.  This is the same expression as used in s51(5).  In my opinion the “notice” referred to is the improvement or prohibition notice, as the case may be, as opposed to the notice of decision of the appellant provided for in s51(6) of the OSH Act.  An inquiry into the circumstances relating to the improvement/prohibition notice is thus required.  This seems to contemplate the prospect of hearing evidence on the topic, as occurred in this instance.  Having inquired into the circumstances, the Tribunal is in a position to review and assess the appellant’s decision.  The Tribunal has 3 powers which it may exercise under s51A(5) of the OSH Act.  The first two follow the same form as the powers of the appellant in s51(5)(a) and (b).  Section 51A(5)(c) of the OSH Act is however cast in different terms to the power of the appellant under s51(5)(c).  The latter simply permits the cancellation of the notice whilst the former permits the revocation of the decision of the appellant and the making of “such other decision with respect to the notice as seems fit”.  The reference to “the notice” here is to the improvement and prohibition notice and not the notice of the appellant’s decision.  To some extent the difference in the power is to accommodate the fact that the Tribunal exercises a higher level of review than the appellant.  Accordingly there are two levels of decision which have already occurred, the inspector issuing the notice and the appellant’s review.  The OSH Act allows for the Tribunal in certain circumstances to make orders which impact on both of the prior levels of decision.

13      Improvement notice 90017157 concerned contraventions of s 19(1) of the OSH Act:

19. Duties of employers

(1) An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall —

(a) provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, the employees are not exposed to hazards; and

(b) provide such information, instruction, and training to, and supervision of, the employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards; and

(c) consult and cooperate with safety and health representatives, if any, and other employees at the workplace, regarding occupational safety and health at the workplace; and

(d) where it is not practicable to avoid the presence of hazards at the workplace, provide the employees with, or otherwise provide for the employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees; and

(e) make arrangements for ensuring, so far as is practicable, that —

(i) the use, cleaning, maintenance, transportation and disposal of plant; and

(ii) the use, handling, processing, storage, transportation and disposal of substances,

at the workplace is carried out in a manner such that the employees are not exposed to hazards.

14      Consistent with the principles in Original Croissant, the Tribunal may consider the conduct of parties and any additional materials subsequent to the date on which the improvement notice was issued.  I have reviewed the evidence submitted by Ramsay and noted the WorkSafe Commissioner’s submission.

15      I am of the view that the decision of the Commissioner and the improvement notice ought to be revoked and cease to have effect and I will issue an order in these terms.