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

THE WORK HEALTH AND SAFETY TRIBUNAL

CITATION : 2024 WAIRC 00361

CORAM : Commissioner T Emmanuel

HEARD : FRIDAY, 21 June 2024 (on the papers)

DELIVERED : tuesday, 25 June 2024

FILE NO. : WHST 4 OF 2024, WHST 5 OF 2024, WHST 6 OF 2024, WHST 7 OF 2024, WHST 8 OF 2024

BETWEEN : Dalwallinu Concrete Pty Ltd

Applicant

AND

WorkSafe Commissioner

Respondent

CatchWords : Application for external review - Applications for stay on improvement notices - Stay principles - Stay applications granted

Legislation : Work Health and Safety Act 2020 (WA) s 3, s 3(1)(e), s 210, s 229, s 229A, s 229B    

Result : Stay applications granted and applications to be heard and determined together

Representation:

Applicant : Mr M Stutley (of counsel)

Respondent : Ms G Beck (of counsel)

Cases referred to in reasons:

CITIC Pacific Mining Management Pty Ltd v WorkSafe Commissioner [2024] WAIRC 00100

Reasons for Decision

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

2         In May 2024, a WorkSafe Inspector issued five improvement notices to Dalwallinu Concrete Pty Ltd (Dallcon):

1. Improvement notice 90029358 relates to monitoring airborne contaminant levels;
2. Improvement notice 90029360 relates to traffic management;
3. Improvement notice 90029362 relates to the guarding on a batch plant conveyer;
4. Improvement notice 90029363 relates to loads on forklifts with attachments; and
5. Improvement notice 90029364 relates to the safe working load of mobile trestles (Improvement Notices).

3         The Improvement Notices each have a compliance date of 5 July 2024.

4         Dallcon applied to WorkSafe for internal review of the Improvement Notices. WorkSafe upheld the Improvement Notices and extended each compliance date to 26 July 2024.

5         Dallcon has applied to the Tribunal for an external review under the Work Health and Safety Act 2020 (WA) (WHS Act) of the Improvement Notices. Dallcon also seeks a stay of the Improvement Notice (Stay Applications). Broadly, Dallcon says WorkSafe had no legal power to issue the Improvement Notices.

6         WorkSafe confirmed it consented to the Tribunal ordering that the operation of the Improvement Notices be stayed. WorkSafe submits that Dallcon does not satisfy the legal test the Tribunal must be satisfied of in order to grant the Stay Applications, but says it ‘does however agree to an order extending the time for compliance of the notices to the date the external review is completed by the Tribunal.’

7         These reasons deal with the Stay Applications.

Legislative framework

8         Recently in CITIC Pacific Mining Management Pty Ltd v WorkSafe Commissioner [2024] WAIRC 0100 (CITIC), I set out the relevant legislative framework from [5] –[8].

9         I must decide whether to grant the Stay Applications under s 229B of the Work Health and Safety Act 2020 (WA) (WHS Act).

Relevant principles

10      I set out the principles relevant to stay applications under the WHS Act in CITIC at [9] - [10]. I apply that reasoning to this matter. The following considerations are relevant to considering the Stay Applications:

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?

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

11      WorkSafe says a stay may be necessary to preserve the subject matter of the review proceedings.

12      As Dallcon submits, the timing of the compliance dates means that it will not be possible to hear and determine the substantive applications before the compliance dates. This means that if Dallcon has to remedy the contraventions alleged in the Improvement Notices before the proceedings are heard and determined, the proceedings will be rendered nugatory.

13      Further, Dallcon argues that:

1. remedying the alleged contraventions would require Dallcon to source material, equipment and qualified people to do work and other things that the legislation may not require it to do;
2. the money Dallcon would spend complying with the Improvement Notices would not be recoverable; and
3. WorkSafe could prosecute Dallcon for non-compliance if the compliance dates pass before the Tribunal determines the substantive applications.

14      I accept Dallcon’s submissions and for the reasons set out at [12] – [13] above I find that the stays are necessary to preserve the subject matter or integrity of the appeals.

Does the applicant have an arguable case?

15      WorkSafe’s submission that Dallcon does not have an arguable case is inconsistent with the following:

1. WorkSafe says it ‘considers that in this case that it is acceptable to allow the applicant to have its review applications heard before being required to comply with the notices’;
2. WorkSafe has not asked the Tribunal to dismiss the applications; and
3. WorkSafe confirmed in writing that it consents to the Tribunal ordering a stay on the operation of the Improvement Notices under s 229B(2) of the WHS Act. It has not withdrawn that consent.

16      I accept Dallcon’s submissions about why it says it has an arguable case in each substantive application. Whether WorkSafe has acted beyond power in the circumstances of these matters is a serious question to be tried. I am satisfied that Dallcon has an arguable case.

Does the balance of convenience favour the grant of the stays?

17      WorkSafe will not be prejudiced if the Improvement Notices are stayed. In effect WorkSafe submits that the balance of convenience favours the grant of the stays.

18      I accept Dallcon’s submissions about the balance of convenience. In particular, if the Improvement Notices are not stayed:

1. Dallcon must comply with the Improvement Notices (including by doing a range of things that may prove to be unnecessary if Dallcon is successful in its substantive applications) or risk prosecution;
2. In relation to some of the applications, the nature of the improvement measures could introduce other risks to the workplace in the circumstances; and
3. Dallcon will incur a range of costs that would not be recoverable even if Dallcon were successful its substantive applications.

19      Public interest is relevant to the Tribunal’s consideration of the Stay Applications. It is clear from the objects of the WHS Act that the legislation focuses 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. In effect WorkSafe says it would not.

20      I am satisfied that the balance of convenience favours the grant of the stays.

Conclusion

21      I have found:

a.  the stays are necessary to preserve the subject matter or integrity of the appeals;

b. Dallcon has an arguable case in applications WHST 4, 5, 6, 7 and 8 of 2024; and

c. the balance of convenience favours the grant of the stay.

22      For these reasons, I am satisfied that I should stay the operation of the Improvement Notices pending the Tribunal acting under s 229A(5) of the WHS Act in relation to applications WHST 4, 5, 6, 7 and 8 of 2024.

23      Further, and by consent, I consider that applications WHST 4, 5, 6, 7 and 8 of 2024 should be heard and determined together.

24      Orders will issue accordingly.