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

THE WORK HEALTH AND SAFETY TRIBUNAL

CITATION : 2025 WAIRC 00729

DELIVERED : FRIDAY, 29 AUGUST 2025

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

of 2024, WHST 8 of 2024

Applicant

AND

WorkSafe Commissioner

Respondent

CatchWords : Work health and safety – Applications for external review – Summonses to produce set aside – Improvement notices – Defect or irregularity in improvement notices – Whether an improvement notice can relate to more than one belief – Airborne contaminant levels – Meaning of reasonable belief – What is reasonably practicable in ensuring health and safety – Basis on which inspector issued notices – Internal review decisions confirmed – Improvement notices varied only in relation to due date

Legislation : Industrial Relations Act 1979 (WA) s 26(1)(a), 27(1)(o)

  Work Health and Safety Act 2020 (WA) ss 3, 4, 5, 7, 8, 18, 19(1), 191(1)(a), 191(1)(b), 192, 208, 224, 226, 229, 229A, 229B, 274(1), 275

  Work Health and Safety (General) Regulations 2022 (WA) regs 5, 50(1), 208

  Work Health and Safety (Mines) Regulations 2022 (WA)

Result : Internal review decisions confirmed

Representation:

Applicant : Mr M Minucci (of counsel) and Mr X Burton (of counsel)

Respondent : Dr E Heenan SC (of counsel) and Ms R Panetta (of counsel)

Case(s) referred to in reasons:

Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14

Child Support Registrar v BKCZ [2023] FCA 1109

Chit Chit Than v SafeWork NSW & Anor [2023] NSWIRComm 1122

Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2017] NSWIRComm 1029

Dalwallinu Concrete Pty Ltd v WorkSafe Commissioner [2024] WAIRC 00436

Dial a Tow Australia Pty Ltd v Campbell [2024] SASCA 151

George v Rockett (1990) 170 CLR 104

GHD Pty Limited v WorkSafe Western Australia Commissioner [2021] WAIRC 00655

Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002

Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No. 4] [2021] WASC 287

Julian Cosentino v Director General, Department of Education [2022] WAIRC 00298

Marcus v Medical Board of Australia [2024] WASAT 8

Secretary of the Department of Education v SafeWork NSW [2025] NSWIRComm 1029

Sedco Forex International Inc v National Offshore Petroleum Safety and Environmental Management Authority [2016] FWCFB 2066

Seymour Whyte Pty Ltd v the Regulator under the Work Health and Safety Act 2011 [2024] QIRC 085

TFS Manufacturing Pty Limited and Minister for Health [2017] AATA 2786

The Star Entertainment Queensland Limited v The Regulator under the Electrical Safety Act [2022] QCATA 127

The State of Western Australia v Burke [No 2] [2010] WASC 74

Watpac Construction Pty Ltd v The Regulator (under the Work Health and Safety Act) [2021] QIRC 375

Webb v Tang [2023] WASCA 119

Reasons for Decision

1         Dalwallinu Concrete Pty Ltd (Dallcon) has made an application for external review under s 229 of the Work Health and Safety Act 2020 (WA) (WHS Act) of the internal reviewer’s decision to confirm five improvement notices.

2         Dallcon says the inspector had no legal power to issue Improvement Notice No. 90029358 (Notice 1), 90029360 (Notice 2), 90029362 (Notice 3), 90029363 (Notice 4) and 90029364 (Notice 5) (collectively the Notices).

3         Dallcon says the Notices are deficient because they do not properly identify the basis on which the inspector purported to issue the Notices. Further, that at the time the Notices were issued, sufficient facts did not exist that would incline a reasonable person to believe that Dallcon had contravened the WHS Act and regulations as set out in the Notices.

4         Dallcon says the Work Health and Safety Tribunal (Tribunal) should set aside the Notices under s 229A(5)(b) of the WHS Act.

5         The WorkSafe Commissioner denies the Notices are deficient and says the Tribunal should form the reasonable belief that Dallcon had contravened the WHS Act and regulations as set out in the Notices. She says the Tribunal should confirm the internal reviewer’s decisions.

Limits of an overly technical case on appeal

6         Before turning to the reasons for my decision, the approach adopted by Dallcon in applications WHST 4, 5, 6, 7 and 8 of 2024 warrants comment.

7         The WHS Act provides pathways for internal and external review of improvement notices. It is not in dispute that such reviews were available to Dallcon.

8         The requirements and processes under the WHS Act, of which the improvement notice process forms part, do not involve an academic exercise. These requirements and processes exist to reasonably and proactively manage risks with potentially serious, even life threatening, consequences for workers and other people. As observed by the Queensland Industrial Relations Commission in Watpac Construction Pty Ltd v The Regulator (under the Work Health and Safety Act) [2021] QIRC 375 (Watpac), work health and safety legislation serves a critical function in preventing workplace injuries and deaths. Its purpose is to create safe workplaces.

9         The external review sought by Dallcon is a de novo one. Its purpose is to provide the correct and preferable decision at the time of the review. It is not a narrow, technical exercise somehow divorced from its context under the WHS Act.

10      As set out below in these reasons, Dallcon has failed to have set aside any of the five improvement notices.

11      In summary, the Notices were directed to:

a) the lack of monitoring of airborne concrete dust at a worksite where dust was observed and a primary operation is the fabrication and repair of materials out of concrete;

b) the lack of appropriate traffic management on a large work site with around 80 workers on shift and over a dozen mobile heavy plant in operation;

c) the inadequacy of guarding associated with a conveyor that could pose an amputation risk to workers;

d) the lack of a data plate to inform workers about the correct load limit of a forklift when used with a jib attachment; and

e) the lack of an assessment and notice or communication to workers about the safe working load for trestles used to hold concrete products.

12      In relation to each of the Notices, Dallcon offered extensive, and ultimately unsuccessful, technical legal arguments and challenges about the inspector’s belief and the particular construction of the Notices themselves. While Dallcon posed many questions about what the inspector knew about Dallcon’s site or equipment, it did not offer the internal reviewer or the Tribunal any evidence about the answers to those same questions - even when Dallcon should have been well placed to do so.

13      Addressing the central reason for the issue of any of the Notices, if a safety issue did not arise or did not warrant an improvement notice, Dallcon in this case should have been able to offer evidence beyond what was provided by the WorkSafe Commissioner in support of that improvement notice. Instead, Dallcon chose to run a case that was very heavy with questions about what the WorkSafe Commissioner or inspector knew or believed, and offered the Tribunal nothing further about the facts and circumstances of the operation of its own site, plant and equipment. The result was a narrow, technical case which, in the context of a de novo hearing directed to worker safety at Dallcon’s own operations, appeared to fundamentally miss that point.

14      As my reasons conclude below, it is reasonably practicable for Dallcon to:

a) conduct air monitoring to manage the risk to health that may be caused by dust in the workplace;

b) implement a traffic management plan that separates workers and pedestrians from moving plant;

c) implement guarding or fencing to prevent a worker’s limb or clothing being caught in the conveyor;

d) implement a system that conveys the safe working load of the forklift when used with a jib; and

e) convey the safe working load of the trestles to workers placing things on the trestles.

15      Dallcon briefed solicitors and interstate counsel in preparation of submissions before this Tribunal, and solicitors before the internal review. The Tribunal’s hearing lasted two days.

16      It is beyond the scope of what must be decided in this matter, but the Tribunal notes that the overall impression conveyed by the arguments run, and absence of evidence led by Dallcon, was that Dallcon focused on a series of often overly technical complaints and legal arguments through two review processes, rather than on identifying and managing reasonable safety risks - at least to the standard expected in connection with these Notices. One could reasonably infer (in relation to at least some of the rectifications sought in the Notices) that the financial cost of rectification is likely to be considerably less than the legal costs for Dallcon of these reviews.

17      If the Tribunal’s impression about Dallcon’s focus is mistaken, then it is difficult to find, in the submissions made and the absence of evidence led by Dallcon, a basis to reveal that impression is mistaken.

Questions to be decided

18      To resolve these matters, the Tribunal must decide whether to confirm, vary or set aside the internal reviewer’s decisions to confirm the Notices. Here that involves answering the following questions:

a) Are the Notices deficient because they do not properly identify the basis on which the inspector issued them?

b) Do the factual circumstances at the time the Notices were issued support a reasonable belief that Dallcon was contravening the WHS Act or Work Health and Safety (General) Regulations  2022 (WA) (WHS Regulations), or had contravened the WHS Act or WHS Regulations in circumstances that made it likely that the contravention would continue or be repeated, as alleged in the Notices?

c) What is the correct and preferable decision now in relation to each Notice? That is, should the Tribunal confirm, vary or set aside the decision and substitute another decision that the Tribunal considers appropriate?

Interlocutory matters

19      On 26 June 2024, the Tribunal ordered that applications WHST 4, 5, 6, 7 and 8 of 2024 be heard and determined together, and the operation of the Notices be stayed pending the Tribunal acting under s 229A(5) of the WHS Act: Dalwallinu Concrete Pty Ltd v WorkSafe Commissioner [2024] WAIRC 00436.

20      On 30 September 2024, in each application, Dallcon filed a Form 9 – Summons to Give Evidence and/or Produce Documents. The WorkSafe Commissioner did not object to providing these documents to Dallcon.

21      On 13 March 2025, in each application, Dallcon filed a further Form 9 – Summons to Give Evidence and/or Produce Documents (Further Summonses).

22      On 9 May 2025, in each application, the WorkSafe Commissioner filed a Form 1A – Multipurpose Form seeking the Further Summonses be set aside (Applications to set aside the Further Summonses). That matter was heard a few days before the substantive hearing and I ordered that the Further Summonses be set aside. These are my reasons for doing so.

23      Ultimately, I did not consider that the documents sought in the Further Summonses were relevant to any legitimate forensic purpose in the substantive matters.

Summary of what the Further Summonses sought

24      The five summonses comprising the Further Summonses are materially the same, with some difference in respect of which inspectors the documents sought relate.

25      In relation to WHST 4 of 2024, Dallcon sought:

a) all the documents that applied at 3 May 2024 that:

i) were given to Mr Ashley Welch and Mr Adam Berezowski that instruct or inform them about the process of issuing improvement notices;

ii) constituted training by the WorkSafe Commissioner of Mr Welch and Mr Berezowski in relation to the process of issuing improvement notices; and

b) evidence that Mr Welch and Mr Berezowski did such training by 3 May 2024.

26      In WHST 5 of 2024, Dallcon sought broadly the same documents as well as those applying to Mr John Barratt.

27      In WHST 6, 7 and 8 of 2024, Dallcon sought the same documents as in WHST 4 of 2024 so far as they related to Mr Welch.

28      The WorkSafe Commissioner asked the Tribunal to set aside the Further Summonses. Specifically, she asked the Tribunal to:

a) order that inspection is not permitted because it would not be just;

b) order that the material be inspected by the Tribunal only to determine the Applications to set aside the Further Summonses; and

c) set aside the witness summons.

29      Dallcon and the WorkSafe Commissioner both cited Julian Cosentino v Director General, Department of Education [2022] WAIRC 00298. As I said in that case from [8] – [9], under s 27(1)(o) of the Industrial Relations Act 1979 (WA) (IR Act), the Commission has the power to ‘make such orders as may be just’ within respect to the discovery, inspection or production of documents. Section 27 of the IR Act applies to the exercise of the jurisdiction of this Tribunal: cl 29 of Schedule 1 of the WHS Act. Discovery is not available as of right. The party seeking discovery must establish that it is just for the order to be made and necessary for the fair disposal of the case. ‘Just’ means ‘right and fair, having reasonable and adequate grounds to support it, well-founded and conformable to a standard of what is proper and right’: Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801 at 1805.

30      The parties agree about the principles that apply when considering whether to set aside a summons on the basis that it lacks a legitimate forensic purpose. They are set out by Hill J in Hongkong Xinhe International Investment Company Ltd v Bullseye Mining Ltd [No. 4] [2021] WASC 287 (Hongkong Xinhe) at [11]. They are:

Relevantly, for the purposes of the applications before me:

(a) Order 36B r 8A(2) of the Rules of the Supreme Court 1971 (WA) (Rules) provides that on a request by a party, the court may set aside a subpoena or part of it;

(b) the court will set aside a subpoena if it has no legitimate forensic purpose. In determining whether a subpoena has a legitimate forensic purpose, the court will consider whether there is a reasonable possibility or 'it is on the cards' that the documents sought in the subpoena will materially assist the claim or the defence of the proceedings or are relevant to an issue in the proceedings. A document may provide material assistance even if it is not admissible in the proceedings;

(c) a legitimate forensic purpose extends to material which may relate to the cross-examination of a witness, including documents which relate only to credit;

(d) in determining whether the documents have apparent relevance to the issues in the proceedings, the court must consider the issues that potentially arise on the pleadings, including the particulars that have been provided;

(e) the court will set aside a subpoena where the subpoena is an abuse of the process of the court. A subpoena may be an abuse of process where it may be characterised as 'fishing', being used for the purpose of obtaining discovery against a third party, or oppressive;

(f) in determining whether a subpoena is properly regarded as fishing, I have had regard to the statement of Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd:

A 'fishing expedition', in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere ‘fishing expedition’.

(g) the fact that documents which are the subject of a subpoena may also be sought in discovery does not, of itself, mean that the subpoena is an abuse of process. (footnotes omitted)

31      The WorkSafe Commissioner said there is no legitimate purpose justifying production and inspection of documents and it would not be just to order production and inspection of the documents. While the circumstances that prevailed at the time the Notices issued and at the time of the internal review are relevant, the subjective state of mind of the inspector is not.

32      Dallcon argued that because the WorkSafe Commissioner’s case focuses on the circumstances at the time of the inspection and the internal review, that means that Dallcon seeks the documents for a legitimate forensic purpose. Further, Dallcon said that a legitimate forensic purpose for the documents is so that it can cross-examine Mr Welch and the other inspectors on their training and experience.

33      Given the documents have already been produced to the Tribunal, issues of cost, delay and oppression do not arise here. However, production and inspection is not available as of right in this jurisdiction. That production would not be oppressive, costly or involve delay does not make production of the documents necessary for the fair disposal of the matter. The Tribunal must be persuaded that it is necessary for disposing fairly of the matter, and must consider equity, good conscience and the substantial merits of the case.

34      Where a summons is challenged, the onus is on the person seeking the documents to establish a legitimate forensic purpose: The State of Western Australia v Burke [No 2] [2010] WASC 74 [9]. Here I am not persuaded that there is a legitimate forensic purpose. Applying the reasoning in Hongkong Xinhe, I do not consider that there is a reasonable possibility or it is ‘on the cards’ that the documents sought will materially assist the claim, or are relevant to an issue in the proceedings.

35      In these matters, the documents sought do not relate to what was seen or done during the inspection. They do not go to whether the Notices were invalid because the Notices did not comply with s 192 of the WHS Act because the Notices do not specify if s 191(a) or (b) of the WHS Act applies. The training documents are irrelevant to that. The inspector or inspectors’ subjective belief about when an improvement notice can be issued is not in issue. The Tribunal must determine for itself whether it can form the requisite reasonable belief and what is the correct and preferable decision. As a de novo merits review, it is the Tribunal’s reasonable belief in relation to the contravention/s that matters. How an inspector was trained to form that belief, or what was an inspector’s subjective belief about issuing improvement notices, is not in issue and is not relevant.

36      The question is not whether Mr Welch properly understood the matters set out from [14] (a) – (e) of Dallcon’s submission. The question is whether the Tribunal considers that there is a proper basis for a reasonable belief about the contravention in question.

37      There is no legitimate forensic purpose in the documents sought and they are not necessary to fairly dispose of the matter. It would not be just or in accordance with s 26(1)(a) of the IR Act to order production and inspection.

38      Accordingly, I decided that I would not permit inspection because it would not be just. Rather, the material would be inspected by the Tribunal only to determine the Applications to set aside the Further Summonses and that the witness summons would be set aside.

Statutory scheme

39      For ease of reference, I set out relevant provisions of the statutory scheme.

40      The WHS Act focuses on securing safety for workers and others in the workplace. The object of the WHS Act is set out in s 3:

3. Object

(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.

41      Section 19 of the WHS Act provides:

19. Primary duty of care

(1)    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of —

(a)    workers engaged, or caused to be engaged, by the person; and

(b)    workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

(2)    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3)    Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable —

(a)    the provision and maintenance of a work environment without risks to health and safety; and

(b)    the provision and maintenance of safe plant and structures; and

(c)    the provision and maintenance of safe systems of work; and

(d)    the safe use, handling and storage of plant, structures and substances; and

(e)    the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and

(f)     the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and

(g)    that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

(4)    If —

(a)    a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and

(b)    the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available, the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.

(5)    A self-employed person must ensure, so far as is reasonably practicable, the person’s own health and safety while at work.

Note for this subsection:

A self-employed person is also a person conducting a business or undertaking for the purposes of this section.

Note for this section:

Health means physical and psychological health — see section 4.

42      The following provisions relate to the decision to issue an improvement notice:

191. Issue of improvement notices

(1)    This section applies if an inspector reasonably believes that a person —

(a)    is contravening a provision of this Act; or

(b)    has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.

(2)    The inspector may issue an improvement notice requiring the person to —

(a)    remedy the contravention; or

(b)    prevent a likely contravention from occurring; or

(c)    remedy the things or operations causing the contravention or likely contravention.

43      A reference to ‘this Act’ includes a reference to subsidiary legislation made under the WHS Act, such as the WHS Regulations.

44      Section 192 provides:

192. Contents of improvement notice

(1)    An improvement notice must state —

(a)    that the inspector believes the person —

(i)                  is contravening a provision of this Act; or

(ii)               has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated;

and

(b)    the provision the inspector believes is being, or has been, contravened; and

(c)    briefly, how the provision is being, or has been, contravened; and

(d)    the day by which the person is required to remedy the contravention or likely contravention.

(2)    An improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates.

(3)    The day stated for compliance with the improvement notice must be reasonable in all the circumstances.

45      Section 203 provides that a notice must be in writing. Section 206 provides that an inspector may make minor changes to a notice for clarification or to correct errors or references.

46      Section 208 provides:

208. Formal irregularities or defects in notice

A notice is not invalid only because of —

(a)    a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice; or

(b)    a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person and is issued or given to the person in accordance with section 209.

47      The following provisions relate to an internal review.

48      Section 224 relevantly provides:

224. Application for internal review

(1)    An eligible person in relation to a reviewable decision may apply to the regulator for review (an internal review) of the decision within —

(a)    the prescribed time after the day on which the decision first came to the eligible person’s notice; or

(b)    such longer period as the regulator allows.

…

49      Section 223(1) and item 9 of the Table at page 152 relevantly provide that an eligible person includes the person to whom the notice was issued and ‘a person conducting a business or undertaking whose interests are affected by the decision.’

50      Section 226 relevantly provides:

226. Decision of internal reviewer

(1)    The internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the day on which the application for internal review is received.

(2)    The decision may be —

(a)    to confirm or vary the reviewable decision; or

(b)    to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate.

…

51      The following provisions relate to an external review and the Tribunal’s statutory task.

229. Application for external review

(1)    An eligible person may apply to the Tribunal for review (an external review) of —

…

(c)    a decision made, or taken to have been made, on an internal review.

229A. Conduct and outcome of external review

(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.

229B. Stays of decisions subject to external review

(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.

52      In these matters, the following regulations and definitions are also relevant:

50. Monitoring airborne contaminant levels

(1)    A person conducting a business or undertaking at a workplace must ensure that air monitoring is carried out to determine the airborne concentration of a substance or mixture at the workplace to which an exposure standard applies if —

(a)    the person is not certain on reasonable grounds whether or not the airborne concentration of the substance or mixture at the workplace exceeds the relevant exposure standard; or

(b)    monitoring is necessary to determine whether there is a risk to health.

Penalty for this subregulation:

(a)    for an individual, a fine of $7 000;

(b)    for a body corporate, a fine of $35 000.

53      Regulation 208 of the WHS Regulations provides:

208. Guarding

(1)      This regulation applies if guarding is used as a control measure in relation to plant at a workplace.

(2)      The person with management or control of the plant must ensure that —

(a)      if access to the area of the plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant, the guarding is a permanently fixed physical barrier; or

(b)      if access to the area of the plant requiring guarding is necessary during operation, maintenance or cleaning of the plant, the guarding is an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time; or

(c)      if it is not reasonably practicable to use guarding referred to in paragraph (a) or (b), the guarding used is a physical barrier that can only be altered or removed by the use of tools; or

(d)      if it is not reasonably practicable to use guarding referred to in paragraph (a), (b) or (c), the guarding includes a presence-sensing safeguarding system that eliminates any risk arising from the area of the plant requiring guarding while a person or any part of a person is in the area being guarded.

Penalty for this subregulation:

(a) for an individual, a fine of $7 000;

(b) for a body corporate, a fine of $35 000.

(3)     The person with management or control of the plant must ensure that the guarding —

(a)      is of solid construction and securely mounted so as to resist impact or shock; and

(b)      makes bypassing or disabling of the guarding, whether deliberately or by accident, as difficult as is reasonably practicable; and

(c)      does not create a risk in itself; and

(d)      is properly maintained.

Penalty for this subregulation:

(a) for an individual, a fine of $7 000;

(b) for a body corporate, a fine of $35 000.

(4)     If the plant to be guarded contains moving parts that may break or cause workpieces to be ejected from the plant, the person with management or control of the plant must ensure, so far as is reasonably practicable, that the guarding will control any risk from those broken or ejected parts and workpieces.

Penalty for this subregulation:

(a) for an individual, a fine of $7 000;

(b) for a body corporate, a fine of $35 000.

(5)     Despite anything to the contrary in this regulation, the person with management or control of the plant must ensure —

(a)    that the guarding is of a kind that can be removed to allow maintenance and cleaning of the plant at any time that the plant is not in normal operation; and

(b)    if guarding is removed, that, so far as is reasonably practicable, the plant cannot be restarted unless the guarding is replaced.

Penalty for this subregulation:

(a) for an individual, a fine of $7 000;

(b) for a body corporate, a fine of $35 000.

54      ‘Person conducting a business or undertaking’ (defined in ss 4 and 5):

5. Meaning of person conducting a business or undertaking

(1)    For the purposes of this Act, a person conducts a business or undertaking —

(a)    whether the person conducts the business or undertaking alone or with others; and

(b)    whether or not the business or undertaking is conducted for profit or gain.

(2)    A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

(3)    If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

(4)    An individual does not conduct a business or undertaking to the extent that the individual is engaged solely as a worker in, or as an officer of, that business or undertaking.

(5)    A local government member does not conduct a business or undertaking.

(6)    The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.

(7)    A volunteer association does not conduct a business or undertaking for the purposes of this Act.

(8)    A strata company that is responsible for any common areas used only for residential purposes may be taken not to be a person conducting a business or undertaking in relation to those premises.

(9)    Subsection (8) does not apply if the strata company engages any worker as an employee.

55      ‘Workplace’ – (see s 4 and 8(1)):

8. Meaning of workplace

(1)    A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.

(2)    In this section —place includes —

(a)    a vehicle, vessel, aircraft or other mobile structure; and

(b)    any waters and any installation on land, on the bed of any waters or floating on any waters.

56      ‘Worker’ (defined in s 7):

7. Meaning of worker

(1)      A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as —

(a)      an employee; or

(b)      a contractor or subcontractor; or

(c)      an employee of a contractor or subcontractor; or

(d)      an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or

(e)      an outworker; or

(f)       an apprentice or trainee; or

(g)      a student gaining work experience; or

(h)      a volunteer; or

(i)       a person of a prescribed class.

(2)      For the purposes of this Act, a police officer is —

(a)      a worker of WA Police; and

(b)      at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise.

(3)      The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.

57      ‘Reasonably practicable’ (defined in s 18):

18. What is reasonably practicable in ensuring health and safety

In this Act —

reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including —

(a)    the likelihood of the hazard or the risk concerned occurring; and

(b)    the degree of harm that might result from the hazard or the risk; and

(c)    what the person concerned knows, or ought reasonably to know, about —

(i)                  the hazard or the risk; and

(ii)               ways of eliminating or minimising the risk; and

(d)    the availability and suitability of ways to eliminate or minimise the risk; and

(e)    after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

58      ‘Exposure standard’ (defined in reg 5):

exposure standard, except in Part 4.1, means an exposure standard in the Workplace Exposure Standards for Airborne Contaminants;

The Tribunal’s task

59      The parties agree that the Tribunal’s task is to stand in the shoes of the internal reviewer, who in turn stands in the shoes of the inspector. The hearing is de novo and is not confined to the matters that were before the decision maker. The Tribunal may consider new material.

60      Accordingly, the Tribunal must find for itself, based on the evidence before it, whether the Tribunal can form the beliefs that led to the issue of the Notices. This remains broadly consistent with task discussed in GHD Pty Limited v WorkSafe Western Australia Commissioner [2021] WAIRC 00655, where the Full Bench said at [31]:

This requires, as the Tribunal correctly posited, that the Tribunal examine whether, on the facts and circumstances in existence at the material time, [the inspector] 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.

61      It is common ground that the internal reviewer had before him the Notices and Dallcon’s applications for internal review.

Factual background

62      The following is not in dispute.

63      WorkSafe appointed Mr Welch as an inspector under s 156 of the WHS Act. Before that, Mr Welch was an inspector under the previous legislation. On 2 May 2024, Mr Welch was an Acting Senior Inspector at WorkSafe.

64      On 2 May 2024, Mr Welch went to Dallcon’s premises at 408 Huggett Drive in Dalwallinu (Property). When he arrived, he met Mr Ricky Sprigg and Mr Egbert Dube in the front office area.

65      Mr Welch spoke to Mr Dube and Mr Sprigg about traffic management. Mr Dube told Mr Welch that Dallcon has a traffic management plan and that a rigid stick had been ordered to replace taglines.

66      Mr Welch asked Mr Dube and Mr Sprigg about how Dallcon managed the dust.

67      During the inspection, Mr Welch, Mr Dube and Mr Martin McRae (Mr M McRae, the supervisor of the concrete batching area) discussed a conveyor belt in that area. The conveyor belt had mesh guarding over the tail drum of the conveyor. The mesh squares were approximately 80 mm by 80 mm in size.

68      Mr Welch discussed potential guarding control measures that could be used, such as permanently fencing off the area. Mr M McRae explained that the area could not be permanently fenced off because of the need to access the area underneath the conveyor belt to clean sludge during operations, and that he does the maintenance work on the conveyor belt. Mr Welch explained that because access is needed to the area of the plant, an interlocked physical barrier could be used.

69      During the inspection, Mr Welch, Mr Dube and Mr Rodney McRae (Mr R McRae, the supervisor of the open dome shelter area) discussed a forklift in that area. Mr R McRae told Mr Welch that he operates the forklift that was under the open dome shelter. He showed Mr Welch his valid Licence to Perform High Risk Work, as well as his pre-start records. The pre-start records had been done that day for the forklift under the open dome shelter.

70      The forklift was in good condition and had one data plate on it. There was a jib attachment a few metres from the forklift. Mr R McRae told Mr Welch that he uses the jib attachment with the forklift to move concrete products.

71      During the inspection, Mr Welch spoke with Mr Dube about two trestles in the vicinity of the forklift. Mr Dube explained that concrete products needing repair are put on top of the trestles.

72      At the end of the inspection, Mr Welch explained to Mr Dube and Mr Sprigg what an improvement notice was and that he would be issuing improvement notices.

73      On 3 May 2024, Mr Welch issued the Notices to Dallcon.

74      Dallcon applied for internal review of the Notices. The internal reviewer, Mr Jaime Rebelo, confirmed the issue of the Notices.

75      Dallcon applied under s 229 of the WHS Act for external review of the internal reviewer’s decisions to confirm the issue of the Notices.

76      By consent, in June 2024 the Tribunal issued orders staying the operation of the 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 (see Dalwallinu Concrete Pty Ltd v WorkSafe Commissioner [2024] WAIRC 00361 and Dalwallinu Concrete Pty Ltd v WorkSafe Commissioner [2024] WAIRC 00374).

Evidence before the Tribunal

77      The parties tendered a Court Book (Exhibit 1) comprising 552 pages.

78      Mr Welch gave evidence for the WorkSafe Commissioner. He presented as an honest, reliable witness and his testimony was not undermined in any material way in cross-examination. Generally, Mr Welch’s recollection was detailed and consistent with the documents (including the contemporaneous documents like the Notices themselves and Mr Welch’s notes in his notebook).

Are the Notices deficient because they do not properly identify the basis on which the inspector issued them?

79      Notwithstanding the focus of Dallcon’s Form 6 and written submissions in each of these matters, it is common ground that the Tribunal does not have power to find that the Notices are invalid because of jurisdictional error.

80      However, Dallcon says that the Tribunal cannot confirm the Notices, at least because:

a) the Notices show the wrong inspection date (3 May 2024 instead of 2 May 2024), which Dallcon says is a ‘fundamental and incurable defect’; and

b) the Notices show that the inspector held two distinct beliefs, being that Dallcon ‘had contravened’, and ‘is contravening’, and the statutory regime means that the inspector could not hold both beliefs at the same time, because the two beliefs are fundamentally different, a binary choice and mutually exclusive.

81      Dallcon argues that s 191(1) is a statutory precondition to exercising the discretionary power in s 191(2) of the WHS Act to issue an improvement notice. It requires an inspector to reasonably believe that a person is doing or has done one or other of the acts in s 191(1)(a) or (b) before the discretion can be exercised and a valid notice (in the jurisdictional sense) can be produced.

82      Dallcon says in the ‘Provision’ section of Notice 1, Mr Welch says that he believed as at 3 May 2024 that Dallcon was contravening s 19(1). In the chapeau to the ‘Reason’ section, Mr Welch writes ‘The reason I believe the provision is being, or has been, contravened is: …’. Sections 191 and 192 of the WHS Act both use the conjunctive ‘or’. Without citing any authority, Dallcon argues that s 192 provides that an inspector does not have a discretion to issue a single notice alleging a current contravention and a past contravention that will continue or be repeated. Further, Dallcon says that s 191 does not confer a power or discretion to issue any notice of that type, and even if it did, s 192 does not permit the notice to simultaneously allege both types of contraventions. Dallcon says that Parliament’s use of ‘or’ is not a mere technicality, and s 206 cannot cure a defect of that type (no technicality submission).

83      Dallcon submits that the Tribunal must objectively determine on a de novo review whether there was a reasonable belief to issue and confirm the Notices, and the standard of satisfaction is as set out in Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002 (Growthbuilt) from [55] – [61].

84      Dallcon says that the issues at [80a] and [80b] above ‘infect each of the relevant notices the subject of this application, such that [the Tribunal] could not be satisfied, on an objective basis, that the reasonable belief required to issue the notices existed at the relevant time.’

85      Dallcon submits that:

Although the previously stricter statutory interpretation law regarding the construction of penal laws has somewhat elasticised, inspectors exercising State powers and using State funds in doing so should complete solemn legal documents in accordance with the requirements of the statute conferring the power to use them and in full recognition of the solemnity of the document and the potential criminal consequences that can attach to an addressee’s non-compliance with it.

86      Dallcon argues that the Notices should be revoked because they do not comply with s 191 of the WHS Act.

87      The WorkSafe Commissioner argues that the Tribunal’s jurisdiction is premised on there having been a valid decision for the purposes of the WHS Act. I understand the effect of her argument to be that Dallcon must concede that the Notices are valid, or else there is no decision to refer to the Tribunal for external review.

88      The WorkSafe Commissioner says that s 208 of the WHS Act makes it clear that formal defects or irregularities in improvement notices do not invalidate those notices, unless they would cause or be likely to cause substantial injustice. Indeed, the WHS Act expressly contemplates that changes to notices can be made.

89      The WorkSafe Commissioner says that even if the Tribunal considered that the Notices should be corrected so that it is clear that the inspection was on 2 May 2024 and not 3 May 2024, the Tribunal could set aside the decision and substitute it with one with the correct date. It is not a defect of any type that would lead to substantial injustice.

90      The WorkSafe Commissioner says that the Notices should not be read with an eye to finding error: The Star Entertainment Queensland Limited v The Regulator under the Electrical Safety Act [2022] QCATA 127 (Star Entertainment) at [36].

91      In essence, the WorkSafe Commissioner argues that if there is any inconsistency caused by the initial sentences under the sub-headings ‘Provision’ and ‘Reason’ in each of the Notices, the context and description of the reasons for the issue of the Notices clarify any inconsistency about whether the inspector was relying on s 191(1)(a) or s 191(1)(b). The WorkSafe Commissioner says:

That is, the reasoning reveals whether the contravention is considered to be currently occurring and requires remedial action, or whether a contravention is not currently occurring but needs to be prevented from re-occurring.

More specifically, the reasoning reveals that:

(a)      in relation to improvement notice 90029358: the contravention of reg 50(1) of the [WHS Regulations] was currently occurring as at the date of the improvement notice.

(b)      in relation to improvement notice 90029360: the contravention of s 19(1) of the WHS Act was currently occurring as at the date of the improvement notice.

(c)      in relation to improvement notice 90029362: the contravention of s 19(1) of the WHS Act was currently occurring as at the date of the improvement notice.

(d)      in relation to improvement notice 90029363: the contravention of s 19(1) of the WHS Act was currently occurring as at the date of the improvement notice.

(e)      in relation to improvement notice 90029364: the contravention of s 19(1) of the WHS Act was currently occurring as at the date of the improvement notice.

92      The WorkSafe Commissioner submits that the Notices should be read in their entirety, and it is quite clear from the ‘Provision’ section of the Notices that what is relied on is a belief that Dallcon has (in the case of Notice 1) contravened reg 50(1) of the WHS Regulations in circumstances that make it likely that the contravention will continue or be repeated. The line under the sub-heading ‘Reason’ must be read in the context of what is said above, namely ‘I believe you have contravened’. Mr Welch’s description in his text after the first line under the sub-heading ‘Reasons’ is all past tense. The WorkSafe Commissioner argues ‘So there really is no doubt, on a proper construction of this improvement notice, what belief was formed. And the same will go… [for] the other improvement notices.’

93      The WorkSafe Commissioner says it is important that the contents of the Notices themselves are evidence of what Mr Welch saw, because they are a record he made the day after the inspection. In effect, they are a ‘contemporaneous note of what he saw and did’ and his testimony is that they are true and correct.

94      The WorkSafe Commissioner submits that the Tribunal will need to be satisfied that there are reasonable grounds for believing that on the date of inspection Dallcon was contravening a provision of the WHS Act or had contravened a provision in circumstances that made it likely that the contravention would continue or be repeated. The standard of satisfaction is reasonable belief and it is an objective standard. While the inspector’s subjective state of mind is not relevant, what he saw, was told and did is relevant, because that is the basis for the formation of the belief, and material from which the Tribunal can form a belief about whether there are reasonable grounds for that belief.

Consideration

95      Overall, I broadly agree with the WorkSafe Commissioner’s submissions, particularly in relation to the scheme of the WHS Act and the nature of the Tribunal’s task. The Tribunal is not deciding whether each decision in question was vitiated by jurisdictional error, or is invalid on its face.

96      Dallcon did not cite any authority for the submission that the beliefs in ss 191(1)(a) and 191(1)(b) of the WHS Act are fundamentally different, a binary choice and must be mutually exclusive, and that an inspector can never issue a single notice in relation to both beliefs. I am not persuaded that:

a) the two beliefs have to be mutually exclusive; nor

b) a single notice cannot relate to both beliefs.

97      That an inspector’s concern could fall within either paragraph of a (different but analogous) subsection was considered and confirmed by Chief Commissioner Kite SC in Growthbuilt from [90] – [92].

98      In my view, if a person conducting a business or undertaking (PCBU) is ‘contravening’ the WHS Act or WHS Regulations, and that contravention is ongoing, then those circumstances could be said to fit both ss 191(1)(a) and 191(1)(b) of the WHS Act.

99      It is clear in each of the Notices that the inspector was concerned about a contravention that was occurring at the time of the inspection.

100   Each contravention was of a type that would continue or be repeated unless it was remedied.

101   Section 191(1) of the WHS Act requires the inspector to have a reasonable belief about a present contravention or a past contravention that is likely to continue or be repeated. Importantly, s 192 prescribes what an inspector must set out in an improvement notice. In particular, s 192(1) requires the improvement notice to state the provision the inspector believes is being, or has been, contravened. Under the heading ‘Provision’, Notice 1 says ‘you have contravened… in circumstances that make it likely the contravention will continue or be repeated’, while the rest of the Notices say ‘you are contravening’. In my view, a fair reading of all of the Notices makes it clear that the inspector considered that in each case there was a contravention that ‘was currently’ occurring at the date of the Notice. Accordingly, I consider it clear that the belief in question is a s 191(1)(a) belief. It is also plain from the Notices that unless the contravention is addressed, the contravention would continue. As required, the Notices state the relevant provision the inspector believed was being contravened, along with details about how the provision was being contravened.

102   Even where ‘or’ is used disjunctively, without more ‘or’ denotes alternatives, not mutually exclusive concepts. A fair reading of all the Notices clearly shows which provision the inspector believes is being contravened, how the contravention arises and what each of the Notices requires Dallcon to do. In my view, Dallcon’s approach and construction requires a level of legal prescription beyond the contemplation of the statutory scheme as a whole.

103   I agree with Senior Member Aughterson’s observation at [36] of Star Entertainment that ‘an improvement notice should not be read with an eye to finding technical shortcomings that might frustrate the legislative object of personal safety.’ To issue the Notices on 3 May 2024, the inspector needed to, at least, reasonably believe that Dallcon was contravening a provision of the WHS Act or had contravened a provision in circumstances that made it likely that the contravention would continue or be repeated (or both). I consider that he did.

104   I think Dallcon’s construction of ss 191 and 192 of the WHS Act is too narrow. The WHS Act does not preclude an inspector forming both beliefs or issuing a single notice in respect of both beliefs. That the Notices do not specify the subsection of the WHS Act does not lead to an injustice.

105   It would be preferable if an improvement notice made clear the date of the inspection and the date of the notice itself. However, I do not consider that the 3 May 2024 date on the Notices is a ‘fundamental and incurable defect’. First, the Notices do not state that 3 May 2024 is the date of the inspection. It could be intended to be the issuing date of the Notices (and the Notices did issue on 3 May 2024). But even if the Notices did refer to the inspection date as being 3 May 2024 instead of 2 May 2024, I do not consider that to be a fundamental, incurable defect. It can easily be corrected. Further, it is clear in this case that there was no confusion about when the inspection took place or when the Notices issued. In those circumstances, a typographical error in the date is not a defect that would lead to an injustice, let alone a substantial injustice. To its credit, Dallcon did not argue that it would.

106   The Notices are not deficient. The basis on which the inspector issued the Notices is clear.

Do the factual circumstances at the time the Notices were issued support a reasonable belief that Dallcon was contravening the WHS Act and/or WHS Regulations, or had contravened the WHS Act and/or WHS Regulations in circumstances that made it likely that the contravention would continue or be repeated, as alleged in the Notices?

107   In summary, I am persuaded of the existence of facts at the material time that were capable of giving rise to the requisite reasonable belief that Dallcon was contravening s 19(1) of the WHS Act and relevantly reg 50(1) of the WHS Regulations as alleged in the Notices.

Mr Welch’s evidence

108   Mr Welch gave evidence that he started working as an Inspector at WorkSafe in October 2020. He acted as a Senior Inspector for several months before being appointed a Senior Inspector around six months ago. Mr Welch was a stonemason for 12 years before he worked as a safety advisor at Fremantle Ports. He then started work at WorkSafe. Mr Welch has Certificate IVs in Work Health and Safety, and Government Investigations. While employed at WorkSafe, Mr Welch has inspected over 450 workplaces, primarily in the manufacturing industry and transport industry.

109   Mr Welch gave evidence that he regularly uses WorkSafe’s ‘Code of Practice – Managing Risks of Plant in the Workplace’ (WorkSafe Code of Practice), using it to refer to practical control measures when he educates industry, visits workplaces and writes improvement notices.

110   Mr Welch gave evidence about traffic management, saying he presents training to new WorkSafe inspectors about traffic management. Mr Welch referred to Safe Work Australia’s ‘Workplace Traffic Management Guidance Material’ (Traffic Management Guide), which he has used throughout his time at WorkSafe, including as guidance material for practical control measures when he writes improvement notices.

111   Mr Welch gave evidence about exposure standards, referring to Safe Work Australia’s ‘Workplace Exposure Standards for Airborne Contaminants’, which he has used throughout his time at WorkSafe. Mr Welch said he had referred to that document on many occasions, including if he is looking for a particular exposure standard for a chemical. The document contains a table that sets out the relevant exposure standard for particular chemicals. He considers those because of the duties owed by a PCBU under safety legislation.

112   Mr Welch explained how he came to be assigned the Dallcon inspection through WorkSafe’s internal system called ‘WISE’. He did initial research such as confirming the legal entity and ABN number. Because Mr Welch was aware that an incident had occurred previously, he spoke to another inspector to get an overview of the workplace premises. Mr Welch watched a short video that he was told was of Dallcon’s premises.

113   Mr Welch also read the email complaint by the union that initiated the matter. On 2 May 2024 Mr Welch recorded the outline of the complaint in his notebook and in WISE.

114   Later on 2 May 2024, Mr Welch went to the Property, with inspectors Mr Barratt and Mr Berezowski. They agreed that Mr Welch would lead the inspection.

115   The effect of Mr Welch’s evidence was that the workplace was on different sides of a street.

116   Mr Welch gave evidence about the forklift. He saw a person operating a forklift and other people working around the forklift. The forklift was moving very slowly forward, with one worker between Mr Welch and the forklift, who was within 2 m of the forklift on the right-hand side of its front wheel. Mr Welch saw other workers about 20 m from Mr Welch who appeared to be working on a piece of formwork. Mr Welch said that the forklift was moving easterly toward the number six on the map on page 539 of Exhibit 1 (map). The other workers were in the vicinity of the forklift between numbers two and three on the map. Mr Welch did not see anything around the forklift that guided where it should go.

117   After that, Mr Welch went to the office with the two other inspectors. They met with Mr Sprigg, who said he would fetch the Health and Safety Environment Manager. The inspectors were guided into the boardroom and joined by Mr Dube who explained that he was the Health, Safety and Environment Manager. Mr Welch could not remember Mr Sprigg’s role title, but recalls that he said his father was the director of Dallcon.

118   The inspectors introduced themselves and Mr Welch explained the role of an inspector and WorkSafe.

119   Throughout the meeting and inspection, Mr Welch took notes in his notebook (at page 532 - 535 of Exhibit 1). Mr Welch explained his notes to the Tribunal. The effect of his evidence was that during the meeting either Mr Sprigg or Mr Dube told him:

a) Dallcon’s general business is to manufacture precast concrete and makes items like box culverts, road barriers and concrete sleepers. It also makes a concrete structure called an ‘L wall’ or ‘L block’, which is a freestanding wall.

b) The concrete is created on-site using agitators to mix the concrete on-site.

c) Dallcon has four agitators. These are large concrete-mixing pieces of plant. Three operators operate those.

d) In terms of mobile plant on-site, Dallcon has five concrete trucks, two articulated cranes, and 10 forklifts (ranging from 2.5 t to 16 t). Inspection and maintenance of those items of plant are done in-house.

e) There are eight dogmen and four crane drivers.

f) Most of the workers are drive-in, drive-out from Perth. Dallcon provides accommodation in Dalwallinu.

g) There are 120 employees over two shifts, with around 80 employees on site at the time of the inspection.

120   Mr Welch gave evidence that when he asked if there was a traffic management plan, Mr Dube told him there was. When Mr Welch asked Mr Dube: ‘How is that traffic management implemented and who enforces the traffic management plan?’ Mr Dube did not respond.

121   Mr Welch gave evidence that Mr Dube said he was replacing taglines with a rigid stick. Nothing else was said about traffic management during that meeting.

122   Mr Welch gave evidence that when he began his inspection, he noticed that the workplace was quite dusty. He said ‘…there were [sic] light grey dust, um, on just about everything.’ He could not see a source of the dust. He went on to say he did not see any dust in the air and recalled that it was quite damp on the day of the inspection. The dust was settled.

123   When Mr Welch saw the forklift again, it was under the dome shelter adjacent to the workers. Mr Welch said:

I noticed that there wasn’t any traffic management signs or segregated areas or any exclusion zones posted, or there was – any – no safe areas. There was [sic] no designated areas for pedestrians and designated areas for mobile plant … I observed that there was a lack of traffic management.

124   Mr Welch said he then spoke with Mr Dube and Mr Sprigg. He asked, ‘How is the dust managed at this workplace?’ Mr Sprigg said currently they have a skid steer bobcat with a brush attachment that brushes the dust, and a water cart that periodically sprays the area. The skid steer bobcat with a brush attachment was not efficient, and he had recently ordered a $110,000 road-sweeping machine. Mr Sprigg did not say anything more.

125   Mr Welch asked Mr Dube and Mr Sprigg if they had ever done any air monitoring. They said they had not. Mr Welch told them about the requirement under reg 50 of the WHS Regulations that if the PCBU is unsure of the risk, air monitoring is required to establish the risk. They acknowledged what he had told them, and he said that he would be issuing an improvement notice to perform air monitoring. They said okay.

126   Mr Welch’s evidence was that he asked about the management of the dust because it was an issue that he noticed as soon as he left the office. The reason Mr Welch thought it was an issue was ‘because a concrete-manufacturing workplace, when formwork is pulled off, there’s remnants of concrete that fall to the ground. When it’s got run over, by um – when mobile plant runs over concrete, um, it becomes crushed, the dust becomes airborne. And the concrete, I know, contains crystalline silica.’

127   Mr Welch gave evidence that he knows this because he was a stonemason for 12 years. He has worked with concrete and poured it. He has also worked with engineered stone, quartz, sand, mixed concrete and poured footings. As a result of those 12 years, Mr Welch was diagnosed with silicosis.

128   Mr Welch explained: ‘…the concrete itself contains crystalline silica. When it – when it’s crushed, machined, engineered, that crystalline silica becomes airborne. And we call that respirable crystalline silica.’ He gave evidence that he is familiar with the relevant exposure standard.

129   When the inspection continued to area number four on the map, Mr Welch noticed a truck parked there. Mr Dube or Mr Sprigg told him that trucks deliver cement to the workplace three times each week.

130   Mr Welch went to the base of the conveyor drum and saw the tail drum at the bottom end of the conveyor with Mr Dube. There he saw some mesh guarding covering the tail drum. Mr Dube introduced him to the supervisor, Mr M McRae. Mr Welch told them that the guarding was inadequate because the mesh of the guarding was too large. Mr Welch estimated it at around 80 mm by 80 mm square mesh, which was situated around 200 mm from the nip point at the bottom of the tail drum conveyor. The mesh on the rest of the conveyor belt was around 40 mm by 40 mm. Mr Welch took a photo showing the conveyor belt, the larger mesh covering the tail drum of the conveyor and the gaps in the mesh. The guard shown in the photo was about 200 mm from the conveyor belt. There was no guarding underneath the conveyor belt.

131   In response to Mr Welch’s concerns, they told him that the issue had been picked up previously. Mr Welch said that the mesh was too large and he was able to fit his arm through it, ‘which exposes people to potentially entanglement injuries or drawn in injuries, if a person or person’s body was to be in contact with that point.’ To that Mr Dube and Mr M McRae just said ‘okay.’ Mr Welch outlined reg 208(2) of the WHS Regulations of the guarding hierarchy. He explained:

The guarding hierarchy of 208(2), um, primarily, at (a), um, if the area needs access for maintenance or cleaning, the guard is to be a permanent fixed guard. Um, subsection B is if the area does need access for maintenance and cleaning, the guard must be of an interlocked safeguarding system. Um, if it's not reasonably practicable, subsection 3, ah – subsection C – so 208(2)(c) states, um, the guard must be removable, um, by the use of a tool. And there is a subsection D, that states if it's not reasonably practicable for – to comply with B and C, um, the guarding is to be of a present sense in safeguarding system.

132   Mr Welch said that he discussed potential practical control measures that may be implemented. He said that either the mesh guarding needs to be smaller, ideally 20 mm by 20 mm if they are going to use mesh, or they could use a solid plate. Alternatively, they could fence off the area with an interlocked fence, so that the conveyor belt and that hazard do not pose a risk to anyone entering that area.

133   Mr Welch explained that an interlocked gate isolates the energy source (here electricity). When the gate opens, the conveyor belt stops.

134   Mr Welch said that in response to his suggestions about potential practical control measures, Mr M McRae told him that people needed to enter the area to clean the sludge underneath the conveyor belt. Mr Welch told him that he would issue a notice about the conveyor belt guarding. They said ‘okay’.

135   Mr Welch did not see the conveyor belt operating during his inspection.

136   The inspection continued to area number five. There Mr Welch saw a line of workers and a jib attachment. He spoke the area’s supervisor, Mr R McRae, who told him that he operated the forklift and used the jib attachment to move concrete items.

137   Mr Welch inspected the forklift and jib, taking a photo of the forklift’s data plate. He did that because he was looking for an additional attachment for when the jib is attached, showing the de-rated lifting capacity of the tine.

138   Mr Welch gave evidence about what the data plate shows, namely the manufacturer of the forklift, the model number and its rated capacity of 5000 kg. That means that the forklift is rated to lift 5000 kg in its original state, without any additional attachments. The load would be roughly at the centre of the forklift tines.

139   Mr Welch said he was looking for the information about the de-rating of the forklift when the jib attachment was attached. Adding the jib attachment moves the load centre from the centre of the tines to further away from the plant. When the jib is attached to the forklift, the forklift can no longer lift 5000 kg. Mr Welch inspected the jib attachment and took a photograph of it. In effect, Mr Welch’s evidence is that the jib attachment’s data plate is meaningless when the jib is attached to the forklift, because there was no evidence that the two have been engineered together. The working load limit of the jib has no relevance to the forklift.

140   Mr Welch explained those concerns to Mr Dube and said that he would issue an improvement notice for Dallcon to get a competent person to assess the two and provide the information to the operator about the de-rated capacity of the forklift when the jib is attached to it. Mr Dube just said ‘okay’ and Mr R McRae said nothing.

141   After that, Mr Welch continued his inspection. Not far away, in area five, he saw a pair of trestles outside the dome area. The trestles were made of metal and welded together, with two angled legs on both sides and a solid bar across the top. Nothing was on the trestles at the time. Mr Welch asked Mr Dube what the trestles were used for. Mr Dube said concrete items are put on the trestles for repair. Mr Dube did not know the safe workload of the trestles.

142   Mr Welch inspected the trestles and did not find a data plate or anything similar. Mr Welch told Mr Dube about the hazards and risks of not giving workers information about the safe workload of the trestles, including that the trestle could overload and injure, crush or kill a worker. Mr Welch told Mr Dube that he would issue an improvement notice about the trestles. Mr Dube said ‘okay’.

143   They then walked through area six to building number seven. Mr Welch saw concrete structures on the ground. The ground was dusty. Mr Welch spoke privately to a worker in the area. The worker said that when it is dry, very visible dust rolls through the thoroughfare. Mr Welch took a photo of the nearby work area because there was ‘lots of residual dust everywhere.’ There was dust on top of the raised formwork.

144   Mr Welch met up with Mr Dube, Mr Sprigg and the two other inspectors. They continued on to area eight. There they saw a worker repairing a concrete product, patching up a chip. There was lots of dust on the ground in that area.

145   The group moved back to the boardroom. There Mr Welch outlined the improvement notices he told them he would issue the next day. Mr Dube and Mr Sprigg acknowledged what Mr Welch had said.

The Notices

146   The Notices are annexed to these reasons for ease of reference.

147   Mr Welch gave evidence about how he prepares and issues improvement notices. He reviews his notebook, does a draft in a Word document and then transfers that into WorkSafe’s WISE system.

148   The WISE system has various boxes and tabs. In the ‘Reason’ section, Mr Welch copies and pastes what he has drafted. The directions are optional. He can add them if relevant and leave them if not. In the ‘Recommendations’ section, Mr Welch includes as much information as he can to assist the PCBU to comply with the notice.

149   Mr Welch’s evidence is that he used the same process for filling out each of the Notices. He generated and issued Notices 1, 2, 3, 4 and 5 the day after the inspection. He had a fresh memory of what he had seen the day before and the Notices are a true and accurate account of what he saw and did.

150   In cross-examination, in effect Mr Welch agreed that he wants to be specific and draft notices with care and diligence so that people understand those notices.

Notice 1

151   Mr Welch gave evidence about Notice 1. He explained that under the heading ‘Reason’, the first line is prewritten, so the notice already says, ‘The reason I believe the provision is being, or has been, contravened is:’ Mr Welch said, ‘I have nothing to do with that whatsoever.’ Mr Welch added the rest of the text under the heading ‘Reason’:

I conducted an inspection at Dalwallinu Concrete Pty Ltd, located at 408 Huggett Road, Dalwallinu 6609. Discussions with the HSE Manager confirmed that this company is a person conducting business or undertaking at this premises.

Additionally, I was told by the Director that the company have temporarily leased surrounding properties, as part of the business development.

During my inspection I saw this workplace manufactures pre-cast concrete products.

From information provided by the HSE Manager, and what I saw during the inspection, I ascertained the following regarding the manufacturing process:

Cement is delivered by trucks to the facility around three times a week. Five onsite concrete trucks, transport concrete from the Batch Plant around the premises. Concrete is poured into moulds or formwork. Concrete hardens, and moulds/formwork removed. The majority of finished products are stored on unsealed areas of the workplace. There are around ten forklifts and two cranes.

I saw piles of dust and rubbish that become airborne when disturbed by workers. I saw the movement of mobile plant operated by workers created airborne dust in work areas. I was told by a workers (sic) that during windy days visual airborne dust throughout the workplace is common.

Further enquires with the HSE Manager established that no air monitoring has been carried out to determine the airborne concentration of airborne contaminants at the workplace to determine the levels against exposure standards.

Air monitoring is necessary to determine whether there is a risk to health.

152   Mr Welch said that under the heading ‘In Relation To’, he can enter whatever he likes into that part of the WISE form. In Notice 1, he entered ‘In relation to: Monitoring airborne contaminant levels’.

153   WISE has multiple tabs. Beneath ‘In Relation To’, there are two boxes. One says ‘Contravened’ and the other says ‘Likely contravened’. Mr Welch must select one of those. Then there is a box stating which regulation or section he must choose. The system will not let Mr Welch save a document without selecting one of those.

154   Mr Welch’s evidence is that he did not write the text under the heading ‘Provision’. To generate that text, he typed in ‘reg 50(1)’ because that was the breach he was concerned about. Then he selected ‘Contravened’ or ‘Likely contravened’, but he cannot recall which one.

155   Mr Welch made no directions. Under the ‘Recommendations’ section, he wrote:

The following recommendations are provided for your consideration:

Work Health and Safety Regulations - r.50 (2) ; - A person conducting a business or undertaking at a workplace must ensure that the results of air monitoring carried out are recorded, and kept for 30 years after the date the record is made.

Work Health and Safety Regulations - r.50 (3) A person conducting a business or undertaking at a workplace must ensure that the results of air monitoring carried out are readily accessible to persons at the workplace who may be exposed to the substance or mixture.

Work Health and Safety Regulatios (sic) - r.49 (1) A person conducting a business or undertaking at a workplace must ensure that no person at the workplace is exposed to a substance or mixture in an airborne concentration that exceeds the exposure standard for the substance or mixture.

156   Mr Welch generated Notice 1 the day after the inspection. His evidence is that he had a fresh memory of what he had seen and done the day before and Notice 1 is an accurate summary of that.

157   Mr Welch gave evidence about his understanding of how air monitoring is done by occupational hygienists at premises like the one in these matters. He thinks it costs around $6,000.

158   In cross-examination, Mr Welch agreed that:

a) his concern about the dust was potential exposure to crystalline silica;

b) the effect of his evidence was that concern arose as a result of his observation of a light-grey dust at site;

c) he did not actually see people driving over chips of concrete at the site;

d) he assumed that the source of the dust was from mobile plant driving over solid particulate which then crumbled to create dust;

e) in his view, crystalline silica and silicosis is a significant risk to workers at the site; and

f) he and his colleagues walked around the site for hours without wearing masks or hazmat suits, and he did not test the dust or take samples, nor did he return to the site.

159   Mr Welch did not agree in cross-examination that:

a) he decided to issue the improvement notice as soon as he left the office with Mr Sprigg and noticed the dust;

b) his experience of being a stonemason and his silicosis diagnosis informed a large amount of his concerns. Rather he said it gave him knowledge, through his research, of what concrete contains;

c) the likelihood of the dust being a silica dust is significantly reduced if one is not dealing with engineered stone;

d) his view set out in [158e] above was due in large part to the fact that he had been diagnosed with silicosis; and

e) if he were so concerned about the dust being crystalline silica, he would have shut the site down. Mr Welch said he could not do that.

Notice 2

160   When generating Notice 2, Mr Welch followed the same process as he had for Notice 1.

161   Mr Welch gave evidence that under the ‘Provision’ heading, he selected s 19(1).

162   He said the form asks him to enter the date above the ‘Provision’ heading, which he did.

163   Under the heading ‘Reason’ and appearing after the pre-populated sentence ‘The reason I believe the provision is being, or has been contravened is:’, Mr Welch wrote:

I conducted an inspection at Dalwallinu Concrete Pty Ltd, located at 408 Huggett Road, Dalwallinu 6609. Discussions with the HSE Manager confirmed that this company is a person conducting business or undertaking at this premises.

Additionally, I was told by the Director that the company have temporarily leased surrounding properties, as part of the business development.

During my inspection I saw this workplace manufactures pre-cast concrete products.

From what I was told by the HSE Manager, and what I saw during the inspection, I ascertained the following regarding the manufacturing process:

Cement is delivered by trucks to the facility by a third party around three times a week. Five onsite concrete trucks, transport concrete throughout the workplace. Concrete is poured into moulds or formwork. Concrete hardens, and moulds/formwork removed. The finished products are relocated by mobile plant and stored in areas throughout the workplace. There are around ten forklifts and two articulated cranes.

I was told there are around 80 workers working at this workplace.

I saw there was no adequate system of work separating workers from mobile plant. I saw workers working in a dangerous proximity to mobile plant. No separation of pedestrians and mobile plant pose the risk if fatal injuries to workers and other persons.

Based on my experience as an inspector in Industry, I know of workplaces with similar amounts of mobile plant, and they have designed and implemented a safe system of work that separate workers from mobile plant. Therefore, I believe it is reasonably practicable for you to do so.

Based on Work Health and Safety (General) Regulations 2022, Regulation 36. If you do not believe it is reasonably practicable to eliminate the risks, you must implement risk control measures by using the Hierarchy of control measures.

164   Mr Welch made no directions. Under the ‘Recommendations’ section, he wrote:

The following recommendations are provided for your consideration:

I recommend you seek assistance from a traffic management consultant, on the measures you can implement to address this matter.

You may wish to refer to publications including; Workplace traffic management - Guidence (sic) material. This document refers to additional Code of practices' and checklists that will assist you in compliance.

165   Mr Welch gave evidence that his reference in Notice 2 to ‘they have designed and implemented a safe system of work to separate workers from mobile plant’ was a reference to:

[S]ystems of work, including, um, ah – ah, assessing the layout of the workplace premises initially, ah, having a look at the different work areas, finding out where mobile plant and pedestrians, um, work independently, and separating the – separating those areas with either physical barriers, um, signage, separation by time, so mobile plants are in a certain area for one time, um, while pedestrians are not. The – the isolation can range from engineering controls down to administration.

166   Mr Welch said that he did not see or hear any evidence of that at the Dallcon site.

Notice 3

167   When generating Notice 3, Mr Welch followed the same process as he had for Notice 1.

168   Under the heading ‘Reason’ and appearing after the pre-populated sentence ‘The reason I believe the provision is being, or has been contravened is:’, Mr Welch wrote:

I conducted an inspection at Dalwallinu Concrete Pty Ltd, located at 408 Huggett Road, Dalwallinu 6609. Discussions with the HSE Manager confirmed that this company is a person conducting business or undertaking at this premises.

Additionally, I was told by the Director that the company have temporarily leased surrounding properties, as part of the business development.

During my inspection I saw this workplace manufactures pre-cast concrete products.

In Batch Plant area of the workplace, in the northeast corner I saw an incline conveyor. The conveyor conveyed material from a hopper into an elevated area of the Batch Plant.

On inspection of the conveyor from ground level, I saw a drum roller that had guarding. The guarding was constructed approximately 80mm x 80mm mesh that was located close to the nip point of the conveyor belt and drum roller. Additionally, there were gaps in the guarding that I would have been able to fit my arm through.

This guarding does not separate workers, or parts of workers from the dangerous moving parts of the conveyor belt. This inadequate guarding poses a risk to workers of amputation injuries if they were to be drawn into the nip point whilst the conveyor is in operation.

Based on Code of Practice Managing risk if plant in the workplace, Section 4 Specific control measures I believe it is reasonably practicable to implement a guard that prevents contact with moving parts or controlling access to dangerous areas of plant.

169   Mr Welch made no directions. Under the ‘Recommendations’ section, he wrote:

The following recommendations are provided for your consideration:

WHS Reg.208

- if access to the area of plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant, the guarding is a permanently fixed barrier

- if access to guarded areas is necessary during operation, maintenance or cleaning, the

guarding is an interlocked physical barrier that allows access to the area being guarded at

times when that area does not present a risk and prevents access to that area at any other time.

If it is not reasonably practicable to use a permanently fixed barrier or an interlocked

physical barrier in accordance with the above dot points:

- the guarding is a physical barrier that can only be altered or removed using a tool,

or

- if it is also not reasonably practicable to use a physical barrier fixed in position, the

guarding includes a presence-sensing safeguarding system that eliminates risk

arising from the area of the plant requiring guarding when a person or any part of a

person is in the area being guarded.

170   Mr Welch gave evidence that he has seen:

a) many conveyor belts at other workplaces;

b) systems like the ones described in his series of recommendations referring to reg 208 about access and guarding;

c) complete interlocked fences around a conveyor;

d) close guarding of 20 mm by 20 mm mesh; and

e) steel plates retrofitted to conveyors.

Notice 4

171   When generating Notice 4, Mr Welch followed the same process as he had for Notice 1.

172   Under the heading ‘Reason’ and appearing after the pre-populated sentence ‘The reason I believe the provision is being, or has been contravened is:’, Mr Welch wrote:

I conducted an inspection at Dalwallinu Concrete Pty Ltd, located at 408 Huggett Road, Dalwallinu 6609. Discussions with the HSE Manager confirmed that this company is a person conducting business or undertaking at this premises.

Additionally, I was told by the Director that the company have temporarily leased surrounding properties, as part of the business development.

During my inspection I saw this workplace manufactures pre-cast concrete products.

I saw numerous forklifts with numerous attachments including a lifting Jib.

I was told workers operate the forklifts with Jib attachments to relocate concrete products around the workplace, including a Linde Forklift H50D serial number H2Y394L00256 and East West Engineering Jib attachment #JA-470. I saw no additional information was located on the forklift load chart for the attachment. This does not provide the operator with information required for the reduced lifting capacity of the mobile plant while attachments are being used. Not providing workers operating the mobile plant with adequate information of the lifting capacity, exposes persons to the risk of crush injuries if the plant is overloaded and overturns.

Based on my experience as an inspector, I am aware that there are forklift attachments used at other similar workplaces and the load chart provides workers who operate the plant, with information of the de-rated lifting capacity when the attachment is used. Therefore, I believe it is reasonably practicable for you to do so.

173   Mr Welch made no directions. Under the ‘Recommendations’ section, he wrote:

The following recommendations are provided for your consideration:

Information stated on forklift data plates / load charts identifies each forklift

attachment by serial / asset number.

Ensure that all lifting is done within the safe working load limits of this item of plant.

It is likely that the competant (sic) person that inspects and maintains this item of plant

may be able to assist you.

174   Mr Welch gave evidence that he has seen 100 or more forklifts at other workplaces with attachments like the jib attachment. He has seen those forklifts and attachments state the declassification (or de-rating) of a forklift in relation to the jib attachment. Mr Welch said that the further away something is, the greater the de-rating.

175   Mr Welch said the risk of lifting more than the de-rated amount was the forklift tipping or overturning, causing crush injuries to the forklift operator.

Notice 5

176   When generating Notice 5, Mr Welch followed the same process as he had for Notice 1.

177   Under the heading ‘Reason’ and appearing after the pre-populated sentence ‘The reason I believe the provision is being, or has been contravened is:’, Mr Welch wrote:

I conducted an inspection at Dalwallinu Concrete Pty Ltd, located at 408 Huggett Road, Dalwallinu 6609. Discussions with the HSE Manager confirmed that this company is a person conducting business or undertaking at this premises.

Additionally, I was told by the Director that the company have temporarily leased surrounding properties, as part of the business development.

During my inspection I saw this workplace manufactures pre-cast concrete products.

During my inspection, I saw mobile trestles located in Production Area 1.

I was told by the HSE Manager that workers use these trestles to place concrete products onto.

On inspection of the trestles/stands, I saw there was not a Safe Working Load (SWL) clearly legible.

It was unknown if the trestles/stands have not been engineered and tested to establish a Safe Working Load.

Trestles/stands that have not been tested to establish a Safe Working Load pose a risk of being overloaded. Workers placing products onto the trestles that are not provided with the information Safe Working Load pose a risk of them overloaded.

Workers are at risk of crush injuries if a trestle or stand was to be overloaded and the load fell onto a worker.

Based on my experience as an inspector, I know of similar workplaces that work with trestles and stands that are designed to be under load, that have a clear and legible Safe Work Load stated. Therefore, I believe it is reasonably practicable for you to do so.

178   Mr Welch made no directions. Under the ‘Recommendations’ section, he wrote:

The following recommendations are provided for your consideration:

No recommendations provided for this notice.

179   Mr Welch gave evidence that he has seen many similar trestle tables at other workplaces, indeed at most workplaces. At other workplaces, Mr Welch has seen that the trestles state the safe workload for the trestles.

180   Before sending the Notices to Dallcon on 3 May 2025, Mr Welch called Mr Dube.

181   Mr Dube said that Dallcon had not made any changes since the inspection, so Mr Welch said that he would issue the Notices.

182   Mr Welch then issued the Notices by email to Mr Dube, along with various guidance material.

183   On 21 June 2024, Mr Welch phoned Mr Dube to ask him what changes had been made since the inspection. Mr Dube said: ‘[Dallcon] have engaged a third party, um to look at the traffic management, they have rectified the issues on the guard of the conveyor belt and they have engaged an engineer to look at the trestles.’ Mr Welch asked him to send some photographs and Mr Dube said he would. Mr Welch recorded the phone conversation in his running sheet in WISE.

184   Mr Welch has not received any photographs from Dallcon.

Cross-examination

185   In cross-examination, Mr Welch:

a) agreed that he knew the concerns about Dallcon originated in a union complaint, but did not agree that the CFMEU put pressure on him to investigate Dallcon;

b) in relation to his phone conversation with Mr Dube on 21 June 2024 set out at [183] above:

i) Mr Welch agreed that ‘An engineer has been engaged and attached a data plate to the trestle table stating SWL’ addresses the concern he had in respect of Notice 5;

ii) Mr Welch said that the mention of a guard being fabricated to the conveyor belt ‘is speaking about’ his concern in respect of Notice 3;

iii) Mr Welch agreed that his third note ‘deals with’ his concerns about the traffic management plan; and

c) Mr Welch agreed that at the time of the hearing, he had no idea whether or not Dallcon was contravening the WHS Act or WHS Regulations that he identified in the Notices.

Notice 1 – submissions and consideration

186   Dallcon says that the WorkSafe Commissioner has produced no videos of the alleged dust, formal inspection reports relating to the inspection or scientific analysis identifying the nature of any airborne particulates Mr Welch saw (in response to a summons to produce, or otherwise). Further, Dallcon says the WorkSafe Commissioner produced no statutory notices requiring Dallcon to produce documents constituting or relating to Dallcon’s safety management system.

187   Dallcon says that by not specifying in Notice 1 that his belief was reasonable, that omission suggests that Mr Welch has not met the legal standard to which a belief must be held when he made his conclusion about the alleged contravention occurring and continuing or being repeated.

188   Dallcon says two different work health and safety regulations were gazetted in 2022 and Mr Welch has not identified the regulations to which Notice 1 refers. Dallcon says the Work Health and Safety (Mines) Regulations 2022 (WA) (WHS Mines Regulations) do not apply to or in respect of the Property.

189   In relation to reg 50(1) of the WHS Regulations, Dallcon says that regulation only applies to airborne substances and mixtures that are subject to a workplace exposure standard. There is no evidence that any dust Mr Welch saw was subject to any such a standard. Dallcon argues that Mr Welch ‘simply does not know what he saw and nor does any reasonable person’, and ‘Dalwallinu is in the middle of nowhere and there certainly could be anything.’ Mr Welch did not know that the dust was a contaminant subject to an exposure standard. Accordingly, no reasonable belief could be held as at 3 May 2024 because the nature of the air particles was unknown. Further, Dallcon argues that Mr Welch did not test the dust or take a sample of it. He tried to avoid it. The WorkSafe Commissioner did not put on evidence about the percentage of respiratory silica in concrete. Dallcon says the evidence about the dust is so vague that there is not a reasonable basis to conclude that there was a contravention or likely would be.

190   Dallcon argues that the Tribunal must be satisfied of the existence of further facts about the likelihood of ongoing or future contraventions if it is to decide whether the inspector and regulator have discharged their respective onuses of proof if the reasonable belief is said to have been founded on s 191(1)(b) of the WHS Act. The Tribunal need not be so satisfied, and therefore embarks upon a different analysis, if the reliance is on s 191(1)(a) of the WHS Act, and Mr Welch’s evidence does not establish which subsection he relied on. In effect Dallcon says the nature of the alleged reasonable belief is the foundational basis for the issuing of the notice. Without it, the notice is a nullity and there is no defect or irregularity that can be fixed. Dallcon argues that there is a likelihood of substantial injustice if a notice is issued in circumstances where there is no power to do so.

191   Dallcon says that in any event, Mr Welch made no enquiries that could establish that such a contravention would continue or be repeated. Instead, Dallcon says that what Mr Welch ‘(impermissibly) did was to rely upon an untested assumption in deciding to issue the Notice, which does not demonstrate the reasonable and balanced approach’ referred to in Growthbuilt.

192   Relying on Growthbuilt and Watpac, Dallcon says that in order to establish the reasonable belief required in s 191 of the WHS Act, an inspector:

a) is obliged to make reasonable enquiries; and

b) must weigh the seriousness of the risk observed against the delay and effort required to make further investigative enquiries.

193   Without citing any authority, Dallcon says the Notices must be construed strictly.

194   The WorkSafe Commissioner says:

[W]ith respect, the way my friend put it was to put it too high, which was if you can’t, Commissioner, be satisfied on the evidence one way or the other to determine that something was the case, then, Commissioner, you should reject it. But that’s not the case. It’s if you can’t be satisfied on the evidence one way or the other that you can form the belief, reasonably. But that standard that one must attain is lower in the first place. And it is only one of an inclination of the mind towards assenting to, rather than rejecting it. So it’s in margin cases where you can’t even get to an inclination of the mind, or you’re balanced as to whether one can get to the inclination of the mind. Not on the balance of probabilities.

195   She says Dallcon’s general submission that improvement notices should be construed strictly goes nowhere, because Dallcon has not said where that leads or why that is a reason that the Notices should not be affirmed.

196   The WorkSafe Commissioner submits that the reference in Notice 1 to reg 50, in circumstances where reg 50 is entitled ‘Monitoring airborne contaminant levels’, is as plain as it could be. Further, she says that all of the elements of reg 50 are made out in this case.

197   The WorkSafe Commissioner points to Notice 1 and Mr Welch’s evidence that he attended the Property and spoke to Mr Sprigg and Mr Dube, who told him the information set out at [124] – [125] above. She says the Tribunal can form the requisite belief that Dallcon is a PCBU. Mr Welch was told that Dallcon had 80 workers on site and 120 workers across two shifts, and Dallcon had temporarily leased surrounding properties as part of the business. Mr Welch gave evidence of people doing work at the site. This means that the Tribunal can form the requisite belief that the Property satisfied the definition of ‘workplace’ and the persons on site that day were ‘workers’. The WorkSafe Commissioner says that Mr Welch noticed light coloured dust had settled on areas of the Property and the dust became airborne when disturbed. Mr Welch said ‘when mobile plant runs over concrete, it becomes crushed, the dust becomes airborne’, and that he was aware that concrete contains crystalline silica. The WorkSafe Commissioner referred to Mr Welch’s evidence set out from [124] to [128] above. Accordingly, the WorkSafe Commissioner says the Tribunal can form the requisite belief that the dust at the Property may contain crystalline silica given Dallcon’s concrete-based operations, and that no monitoring was done to determine whether the dust contains crystalline silica meant that Dallcon could not be certain on reasonable grounds whether or not the airborne concentration of any crystalline silica exceeded the relevant exposure standard.

198   The WorkSafe Commissioner says that the circumstances were such that monitoring must be carried out to determine the airborne concentration of a substance or mixture at the workplace to which an exposure standard applies. This is because the duty to monitor for such a substance arises where Dallcon is not certain on reasonable grounds whether or not the airborne concentration of the substance exceeds the exposure standard. The evidence shows Dallcon did not know, because Dallcon had not conducted any airborne monitoring, so there are reasonable grounds for believing that reg 50(1)(a) applies.

199   As to whether the dust that was observed contained silica, the WorkSafe Commissioner says the context is a large workplace that manufactures concrete, where repairs to concrete were being carried out and cement was being delivered in the area described as area four on the map, being a batch processing plant where it is mixed and concrete is poured from cement dust. Mr Welch’s evidence was that he saw dust all over the ground. Despite Mr Dube and Mr Sprigg telling Mr Welch that the dust is cleaned, the dust was still everywhere. It shows that the dust continues to be generated. A worker told Mr Welch that the dust blows through the thoroughfare. The photos show the dust on horizontal surfaces of formwork, so it must have been airborne. The WorkSafe Commissioner argues that plainly there are reasonable grounds to believe that there was airborne concrete dust (which contains silica) to which the exposure standard relates.

200   The WorkSafe Commissioner submits that further enquiries were not necessary. It is not a matter of speculation. Plainly there is an inclination of the mind towards believing it was concrete dust containing silica. Mr Welch’s contemporaneous note in Notice 1 records that he saw the movement of mobile plant operated by workers created airborne dust in work areas.

Consideration

201   At each stage of these matters, from Dallcon’s dealings with the inspector, to the focus of its submissions on internal review and in its approach during these proceedings, Dallcon appears to have been unwilling to actively engage with the substance of what is at the heart of each of the Notices.

202   Broadly I agree with the WorkSafe Commissioner’s submissions. An inspector does not have to specify in an improvement notice that his or her belief is reasonable.

203   As the WorkSafe Commissioner points out, a difficulty with Dallcon’s general submission that improvement notices should be construed strictly is that Dallcon has not said where that leads or why it is a reason that the Notices should not be confirmed.

204   A fair reading of Notice 1 makes it clear which regulations the Notice refers to. As the WorkSafe Commissioner says, ‘The context of the improvement notice (non-mining context and non-petroleum and geothermal energy operations context) makes it clear that the WHS Regulations are the relevant regulations. Also, the covering email, under which the improvement notices were sent, referred to the WHS Regulations.’ The parties agree the WHS Mines Regulations do not apply. Regulation 50 is entitled ‘Monitoring airborne contaminant levels’. I am not persuaded that there would be any meaningful confusion about which regulations Notice 1 refers to.

205   The WHS Act does not define ‘reasonable belief’ or ‘reasonably believes’. Both parties rely on the often cited George v Rockett (1990) 170 CLR 104, where the High Court observed:

When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person (112).

…

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

It is necessary to identify the subject matter of suspicion and the subject matter of belief (116).

206   Recently, the Tribunal in Marcus v Medical Board of Australia [2024] WASAT 8 (Marcus) considered the principles that apply in relation to the Tribunal’s reasonable belief, observing at [14]:

…

(c) 'Belief' is an inclination of the mind towards assenting to, rather than rejecting, a proposition. The 'belief' of a person is ordinarily a conclusion reached after the probabilities have been weighed. A person's mind will not incline towards accepting a proposition of fact if the person's mind inclines towards rejecting the proposition of fact or if the person's state of mind is that he or she is unable to arrive at a conclusion one way or the other.

(d) A 'belief' is more than a 'suspicion' and is ordinarily less than 'positive knowledge'. The information available to a person who forms a belief may be from external sources, including hearsay, which the person may be unable independently to verify.

(e) The grounds which can reasonably induce a belief may, depending on the circumstances, leave something to surmise or conjecture.

(f) 'reasonable belief' or 'belief on reasonable grounds' requires a consideration of context.

(g) A 'reasonable' belief imports an objective criterion. It requires the existence of facts which are sufficient to induce the belief in a reasonable person. There must be proven objective circumstances sufficient to justify the belief. (footnotes omitted)

207   I respectfully agree with those observations in George v Rocket and Marcus. I adopt and apply them in these matters. In essence, reasonable belief requires the existence of facts that are sufficient to induce the belief in a reasonable person.

208   As to Dallcon’s arguments about Mr Welch’s untested assumptions, and the observation at [96] of Growthbuilt that a ‘reasonable and balanced approach does not allow an inspector to make assumptions and act on them without, at least, attempting to test, in a timely and practical manner, the validity of those assumptions’, in Growthbuilt the inspector did not seek any further information from the person on site engaged to do drilling and install anchors beyond the role he and his colleagues were to undertake. Here Mr Welch did ask questions about the matters he was concerned about.

209   In Growthbuilt an engineer had attended the site and provided several ‘site inspection reports’ before the Prohibition Notice issued. The circumstances of Growthbuilt were different to these matters. There the inspector failed to make any enquiries ‘to clarify any concerns about an expert engineer’s opinion that contradicted his view’ (at [95]). The reasonableness of the inspector’s belief in Growthbuilt was undermined by the particular matters set out at [97](4) – (12) of the decision. There was no such contradictory expert opinion (or even other evidence) in this case. Importantly, here Mr Welch’s concerns were very much a matter of commonsense. I agree with the following observations in Watpac:

[58] The object of the WHS Act is to ensure the safety of inter alia workers and visitors at workplaces such as the site that is the subject of these proceedings. Injuries and deaths were historically an all too common experience, and the WHS Act serves a critical function in the prevention of such outcomes. The role of inspectors performing duties under the WHS Act is to serve in the 'frontline' to ensure that those who hold duties under the WHS Act are appropriately discharging them.

[59] The powers granted to inspectors under the WHS Act are broad and varied. The power to issue an IN is exercised in a variety of contexts. There will be occasions where INs will be issued in circumstances where the urgency for compliance is mitigated by e.g. unsafe machinery being disabled or removed in the interim, or by the absence of workers or visitors at a site where a risk has been identified.

[60] Conversely, there will be circumstances where the risk of injury or death is elevated such that an inspector must act with urgency to ensure risk is managed and injury or death are prevented. In this latter context an inspector's most effective option to prevent risk of injury or death will be to issue an IN with a minimum of delay or hesitation. It is in the context of the objects of the WHS Act and the often urgent circumstances that confront inspectors that the notion of 'reasonable belief' must be considered.

[61] The functions of an inspector ought not to be impeded by unnecessarily onerous obligations requiring them to 'go down every dry gully' searching for possible evidence to consider before they can reach a conclusion that a contravention of the WHS Act is occurring. The authorities outlined above confirm that 'reasonable belief' allows for circumstances where a reasonable belief sufficient to warrant the issuing of an IN might arise in the absence of some relevant information.

[62] While an inspector must have regard to evidence plainly available in coming to a reasonable belief, the extent to which an inspector might be required to descend into further investigative tasks before issuing an IN must be balanced against the relative urgency of the need to eliminate the risk, albeit a perceived one. The extent of investigation necessary to achieve the 'reasonable and balanced' approach contemplated in Growthbuilt will depend on the circumstances of each case and will require an inspector to weigh the seriousness of the risk observed, against the delay and effort required to make further investigative enquiries. Often this will occur in circumstances where the urgency to manage the perceived risk, as a matter of practicality, will take precedence over conducting of exhaustive enquiries.

[63] INs are tools for the short-term management and elimination of risk. They can be withdrawn or appealed where e.g. evidence subsequently becomes available or is later presented that negates the preliminary conclusions of an inspector. INs are not a final determination of the existence of a contravention of the WHS Act and as such, the evidence required to issue them ought not to be of the same standard necessary to secure a conviction in a prosecution for contravention. (footnotes omitted)

210   I consider that Mr Welch’s enquiries were reasonable and adapted to the circumstances. Further investigative enquiries were not necessary. Statutory notices, videos, formal inspection reports and scientific analysis of the dust is not necessary in the circumstances. Mr Welch did not have to test the dust or put on evidence about the percentage of respiratory silica in concrete to establish a reasonable belief in respect of Notice 1. I accept Mr Welch’s evidence and consider that, in the circumstances of what is before me, I can form the reasonable belief that the alleged contravention was occurring at the relevant time, and that it would continue or be repeated.

211   I consider that the elements of reg 50(1) of the WHS Regulations are made out. On the evidence I can be satisfied that Dallcon satisfied the definition of ‘person conducting a business or undertaking’, that the Property satisfied the definition of a ‘workplace’ and that there were people on site that day who were ‘workers’. There was lots of light-coloured dust on different surfaces at the Property, and it became airborne when disturbed. There was lots of dust on raised formwork and other raised surfaces, as shown by the photograph. This is consistent with a worker telling Mr Welch privately that when it is dry, dust rolls through the thoroughfare.

212   From what is before me, I can conclude that cement is delivered to the Property, where Dallcon makes concrete that is then transported around the Property. Concrete is poured into moulds and formwork, which are removed when the concrete is hardened. I accept that when formwork is removed, remnants of concrete end up on the ground. When vehicles or other mobile plant run over concrete remnant, the concrete is crushed into dust. Dust on the Property becomes airborne. I accept Mr Welch’s evidence that concrete contains crystalline silica. Safe Work Australia’s Workplace Exposure Standard for airborne contaminants provides on page 36 that an exposure standard applies to crystalline silica.

213   Accordingly, given Dallcon’s concrete-based operations, I consider that there are reasonable grounds to believe that there was airborne concrete dust (which may contain crystalline silica) to which the exposure standard relates. Mr Welch’s evidence that Mr Dube told him no air monitoring was carried out was not undermined. Despite being hearsay, that evidence still carries some weight. That no monitoring was done to determine whether the dust contains crystalline silica meant that Dallcon could not be certain on reasonable grounds whether or not the airborne concentration of any crystalline silica exceeded the relevant exposure standard.

214   I am satisfied that the factual circumstances at the time of Notice 1 support a reasonable belief that Dallcon was contravening reg 50(1) as alleged. Further, the circumstances were such to support a reasonable belief that the contravention was likely to continue.

Notice 2 – submissions and consideration

215   Dallcon repeats its submissions in relation to no technicality and a lack of specificity in the WorkSafe Commissioner’s evidence. It says the WorkSafe Commissioner has produced no formal inspection reports relating to the inspection, no notice requiring Dallcon to produce documents constituting or relating to Dallcon’s safety management system, and no documents or other material (in response to a summons to produce, or otherwise) identifying:

a) what Mr Welch meant by ‘adequate’;

b) whether the workers referred to by Mr Welch were Dallcon’s workers;

c) what ‘similar amounts’ of plant meant;

d) what constituted other persons’ ‘safe systems of work’;

e) why (or even whether) those systems:

i) could be reasonably practicably implemented at the Property;

ii) if they were, would be reasonably practicable ways of managing the alleged risk at that site as at 3 May 2024;

iii) if implemented, would not introduce further risks to the site to the extent they were designed to address the unique circumstances of the other premises for which they were designed; and

f) why transposing existing systems of work used at other sites would need a traffic management consultant at all.

216   Dallcon argues that Mr Welch did not make proper enquiries that would cause a reasonable person to objectively conclude that the alleged contravention was occurring on 3 May 2024:

a) a reasonable person cannot conclude that a safety management system did not comply with the WHS Act on 3 May 2024 unless they knew what that system was at that time;

b) ‘all relevant system componentry needed to be understood before any sound conclusion could be made as to its compliance with’ s 19(1) of the WHS Act;

c) a reasonable person could only conclude that a risk was not being managed in accordance with s 19(1) of the WHS Act at the time if they could be properly satisfied that the risk actually existed then and that it had not been eliminated (or if elimination was not reasonably practicable, minimised so far as reasonably practicable);

d) there is not any photographic, video or written evidence of that existence; and

e) at its highest, Notice 2 simply alleges without evidence that Mr Welch saw people near mobile plant, and not even specifically how far from plant they were or evidence that they were workers.

217   Dallcon repeats its submissions above in relation to untested assumptions and says Mr Welch could simply have called Mr Egbert and asked him for the traffic management plan. Mr Welch did not interview a reasonable sample of workers about the traffic management plan or require Dallcon to provide further information about that plan and its implementation.

218   Dallcon says a contravention does not arise because of the failure to take a step that would have some general workplace benefit, nor necessarily because of a failure to comply with regulatory guidance material, relating to mobile plant or otherwise.

219   In effect, Dallcon disputes that s 19(1) of the WHS Act requires Dallcon to develop and implement at the Property Mr Welch’s ‘adequate system of work’ referred to in Notice 2. Dallcon refers to the reasoning in Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 at [17] and says:

Relevantly:

There is no satisfactory indication in the Notice or materials produced in response to the Summons establishing that Mr Welch’s concept of an adequate system of work is the same thing as a system of work that complies with section 19(1) of the Act. It is important to remember that section 19(1) substantively echoes section 21(1) of the Occupational Health and Safety Act 2000 (Vic), in respect of which the High Court held that –

“All elements of the statutory description of the duty were important. The words ‘so far as is reasonably practicable’ direct attention to the extent of the duty. The words ‘reasonably practicable’ indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1).”

To the extent that Mr Welch has identified an alleged failure to take a step that could have been taken and that, if so, could have had some effect on safety at the Huggett Drive site, he has not thereby identified a contravention of section 19(1) of the Act.

If, for example, he would have preferred that people stand further away from mobile plant, that conclusion does not necessarily mean that they were standing in an unsafe place to start with.

It is the combination of the looseness of Mr Welch’s use of his concept of adequacy (and its uncertain relationship with legal compliance with the Act) and the absence of objectively satisfactory evidence of non-compliant risk management, that (is one of the mischiefs that) fatally invalidates the decision to issue the Notice.

220   The WorkSafe Commissioner says that Notice 2 makes it clear that the inspector considered that Dallcon was contravening the WHS Act, and without safe work measures to stop the contravention happening, one can form a reasonable belief that the contravention was continuing. The WorkSafe Commissioner says that Notice 2 involves a s 191(1)(a) contravention, but in the circumstances, there is not a meaningful difference between s 191(1)(a) and s 191(1)(b), and there is no ambiguity, let alone ambiguity that would create a substantial injustice.

221   The WorkSafe Commissioner says the Tribunal can have the requisite belief that on 3 May 2024, Dallcon was contravening s 19(1) of the WHS Act based on Mr Welch’s evidence and the WorkSafe Code of Practice, which she says is an approved code of practice under s 274(1) of the WHS Act and can be used to determine what is reasonably practicable in the circumstances to which the WorkSafe Code of Practice relates.

222   The WorkSafe Commissioner refers to section 1.2 and 3.8 of the WorkSafe Code of Practice, as well as the Traffic Management Guide.

223   The WorkSafe Commissioner repeats her submissions in relation to Notice 1 in relation to why the Tribunal can form the requisite belief that Dallcon is a PCBU, the Property is a ‘workplace’ and the persons on site that day were ‘workers’. She says that during the inspection, Mr Welch saw a worker within two metres of a forklift that was moving forward. Mr Welch did not see any traffic management control measures being taken by Dallcon to separate workers from mobile plant. Mr Dube told Mr Welch that Dallcon had a traffic management plan and he was replacing taglines with a rigid stick he had ordered, but when asked, Mr Dube did not explain how the traffic management plan was implemented or enforced at the property. Based on Mr Welch’s experience, he reasonably believed that it was reasonably practicable for Dallcon to implement a safe system of work that separates workers from mobile plant in operation.

224   The WorkSafe Commissioner argues that the Tribunal can form the requisite belief that not separating workers from mobile plant poses the risk of serious or fatal injuries to workers and others. Further, that it was reasonably practicable for Dallcon to implement a safe system of work that separates workers from mobile plant in operation.

225   Further, the WorkSafe Commissioner says (as Mr Dube told Mr Welch), that Dallcon ended up engaging a consultant to implement a traffic management plan is an admission that it was reasonably practicable to do so.

Consideration

226   Having observed an absence of a safe system of work that separated workers from mobile plant, and in circumstances where Dallcon merely said it had a traffic plan but did not provide it to Mr Welch or answer his questions about how the traffic plan was implemented or enforced, or otherwise provide any evidence addressing the concern Mr Welch explained, plainly there is a reasonable basis for the belief that Dallcon was contravening s 19(1) as set out in Notice 2. In my view, Mr Welch properly formed the belief and appropriately recommended that Dallcon implement a safe system of work. Contrary to Dallcon’s submission, Mr Welch did not require Dallcon to ‘take every possible step’. He simply required Dallcon to have a safe system of work that separated workers from mobile plant. Mr Welch pointed Dallcon in the direction of where Dallcon could get more information and left the particulars of that safe system up to Dallcon. That was appropriate, given Dallcon was best placed to work that out.

227   I think it is quite plain that there are reasonable grounds for believing that Dallcon had not, so far as reasonably practicable, ensured the health and safety of workers as alleged in Notice 2.

228   My observations above in relation to Mr Welch’s enquiries apply to Notice 2 as well. Dallcon’s submissions at [216] above are unpersuasive. Mr Welch asked how the traffic management system was implemented and who enforced it. Mr Dube did not respond, Dallcon did not explain what traffic management system it had, and Mr Welch saw no evidence of separation of people from plant, machinery or traffic. In short, he observed an absence of traffic management. There was no visible separation of people from moving vehicles or plant and when asked, Dallcon did not explain how it managed the risk, other than for Mr Dube to say that he was replacing taglines with a rigid stick he had ordered. Such circumstances plainly show that there was a risk that had not been eliminated or minimised. It is not necessary that there be video, or photographic evidence of that risk. The description in the contemporaneous notice itself and Mr Welch’s testimony is enough.

229   In relation to Dallcon’s submission that Mr Welch could simply have called Mr Egbert and asked him for the traffic management documents, Mr Welch also spoke to Mr Dube on 3 May 2024 before he issued the Notices. Mr Welch’s concerns about traffic management should have been clear to Dallcon. Those concerns were reasonable in the circumstances and they support the requisite reasonable belief. No further enquiry was necessary.

230   Mr Welch’s evidence was that there was a moving forklift within two metres of a worker and within 20 m of other workers. I have set out in detail above what Mr Welch said he saw and did. I accept his evidence and I consider that in the circumstances his enquiries were reasonable and sufficient. Mr Welch was hardly requiring Dallcon to take ‘every possible step’ or to replicate the exact system used elsewhere. He simply proposed that Dallcon implement a safe system of work that separates workers from mobile plant. In my view, it was entirely proper that Mr Welch left the particulars of that safe system of work up to Dallcon.

231   ‘Plant’ has a wide meaning and includes Dallcon’s conveyor, four agitators, and mobile plant such as the 10 forklifts, five concrete trucks and two articulated cranes. It is uncontroversial that plant is a major cause of work-related injury and death in Australian workplaces. Unsurprisingly, the WorkSafe Code of Practice notes as much on page 2. On page 13, it describes plant itself and traffic movements in the workplace as typical hazards found in managing the risk of plant in the workplace. On page 36, it refers to powered mobile plant and details the risk of plant overturning or colliding with a person or thing.

232   It is wholly unsurprising that the Traffic Management Guide notes that traffic in and around a workplace can pose significant health and safety risks. Obviously if those risks are not appropriately controlled, traffic or other moving mobile plant can collide with a person or thing, leading to significant injury or death.

233   It is clear from the evidence that the Property is a relatively large workplace that borders public roads and has vehicles and mobile plant moving within the workplace. It is clear on the material before the Tribunal (including the Notice 2 itself) that trucks delivered cement around three times each week, concrete was made onsite, there were concrete trucks on-site, concrete was being transported in the workplace, with mobile plant relocating that concrete to different parts of the workplace. There were 10 forklifts, several cranes and 80 workers on shift. That environment plainly calls for the use of control measures. Mr Welch saw no traffic management signs, no segregated areas, no exclusion zones and no designated areas for pedestrians and for mobile plant. Mr Welch observed that there was no system separating workers from mobile plant. When he asked about a traffic management system, he did not get a meaningful answer. I am satisfied that workers were not safely separated from mobile plant, and that poses the risk of serious or fatal injuries to workers and others.

234   The Traffic Management Guide is an approved code of practice under s 274(1) of the WHS Act. Section 275 of the WHS Act provides that in a proceeding for an offence against the WHS Act, the court may rely on such a code in determining what is reasonably practicable. A code of practice provides evidence about what is known about a hazard or risk and can be used to determine what is reasonably practicable in the circumstances to which the code of practice relates. The Tribunal can rely on the Traffic Management Guide when considering such matters.

235   Detailed traffic control measures are set out in Appendix B to the Traffic Management Guide. The document sets out isolation control measures at 2.5.3 and administrative control measures (including traffic management plans) at 2.5.5.

236   I am satisfied that it is reasonably practicable for Dallcon to ensure the safety of workers by implementing a system using controls like those set out in the Traffic Management Guide. I agree with the WorkSafe Commissioner’s submission at [225] above. At the time Notice 2 was issued, a reasonable person would have formed the same belief that Mr Welch did. I consider that the facts are sufficient to induce the belief in a reasonable person that Dallcon was not ensuring, so far as reasonably practicable, the health and safety of its workers.

237   I am satisfied that the factual circumstances at the time of Notice 2 support a reasonable belief that Dallcon was contravening s 19(1) of the WHS Act as alleged. Further, the circumstances were such to support a reasonable belief that the contravention was likely to continue.

Notice 3 – submissions and consideration

238   Dallcon repeats its submissions in relation to no technicality and a lack of specificity in the WorkSafe Commissioner’s evidence. Dallcon says that the WorkSafe Commissioner has produced no formal inspection reports relating to the inspection, no notice requiring Dallcon to produce documents constituting or relating to Dallcon’s safety management system, and no documents or other material (in response to a summons to produce, or otherwise) identifying:

a) what Mr Welch meant by ‘inadequate’;

b) whether the workers referred to by Mr Welch were Dallcon’s workers; and

c) whether the installation of such ‘adequate guarding’ as proposed by Mr Welch would have been a reasonably practicable way of ensuring Dallcon’s workers’ safety.

239   Dallcon argues that Mr Welch’s enquiries were insufficient to establish the reasonable belief because he did not:

a) establish whether the workers allegedly exposed to the risk were Dallcon’s workers as defined in the WHS Act. Dallcon says there is no contravention if non-workers were exposed to it and it is not clear whether any operation of the machine was part of Dallcon’s business or undertaking;

b) satisfactorily ascertain that there was a risk at the time he believed the contravention was occurring; and

c) properly enquire about whether it would have been reasonably practicable to control any amputation risk by installing the form of guarding he refers to in Notice 3. Dallcon says the WorkSafe Code of Practice gives guidance about compliance with the WHS Act. It does not impose a legal duty in its own right and it does not mean that because a safety control is mentioned in the WorkSafe Code of Practice that it is necessarily a reasonably practicable measure ‘that can be implemented in a specific place on a specific date at a specific time and that, if that occurs, such installation will ensure workers’ safety as far as it is reasonably practicable to do so.’ Mr Welch did not enquire about whether his proposed guarding was available or could be affixed to the machine, and if so, whether it would neither compromise an existing safety feature or introduce a new risk. Dallcon says the plant may be of an age that means newer guarding technologies cannot be affixed to it.

240   Dallcon repeats its submissions in relation to untested assumptions and reasonable belief in relation to all of the Notices. It argues that evidence about Mr Welch’s subjective state of mind is irrelevant and the Notices themselves should be given the most weight. Dallcon says more is needed than hearsay evidence to establish the relevant belief, and the Tribunal should be cautious to disregard the rules of evidence.

241   In relation to all of the Notices, Dallcon says that there was too little enquiry, merely an inspection and a few photographs. To the extent that the WorkSafe Commissioner argues that it was reasonably practicable for Dallcon to do more than what was done, Dallcon says that is not the enquiry and not the matter to which the reasonable belief is directed. Dallcon refers to Dial a Tow Australia Pty Ltd v Campbell [2024] SASCA 151 (Dial a Tow) and argues that reasonable practicability is not an abstract proposition. It is what is reasonably practicable for the employer in the relevant industry. Dallcon says Mr Welch could have checked with the equipment’s manufacturer whether the equipment could be safely modified. He did not. The reasonable belief is formed in the context of that reasonable practicability. Dallcon says it is irrelevant that Dial a Tow related to a criminal prosecution.

242   Dallcon says that Mr Welch can have regard to guidance material when considering possible safety controls in the abstract, but he cannot assume that the failure to implement such controls is automatically a contravention. In this case, Dallcon says reasonable practicability required enquiring:

a) could such suggested guards or interlocking gates be fitted to the particular machine?;

b) could they be manufactured in Australia?; and

c) could they be sourced?

243   The WorkSafe Commissioner says that in effect, the contravention is that the conveyor is not adequately guarded. She refers to reg 208 of the WHS Regulations, which provides:

208. Guarding

(1)    This regulation applies if guarding is used as a control measure in relation to plant at a workplace.

(2)    The person with management or control of the plant must ensure that —

(a)    if access to the area of the plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant, the guarding is a permanently fixed physical barrier; or

(b)    if access to the area of the plant requiring guarding is necessary during operation, maintenance or cleaning of the plant, the guarding is an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time; or

(c)    if it is not reasonably practicable to use guarding referred to in paragraph (a) or (b), the guarding used is a physical barrier that can only be altered or removed by the use of tools; or

(d)    if it is not reasonably practicable to use guarding referred to in paragraph (a), (b) or (c), the guarding includes a presence-sensing safeguarding system that eliminates any risk arising from the area of the plant requiring guarding while a person or any part of a person is in the area being guarded.

Penalty for this subregulation:

(a)    for an individual, a fine of $7 000;

(b)    for a body corporate, a fine of $35 000.

(3)    The person with management or control of the plant must ensure that the guarding —

(a)    is of solid construction and securely mounted so as to resist impact or shock; and

(b)    makes bypassing or disabling of the guarding, whether deliberately or by accident, as difficult as is reasonably practicable; and

(c)    does not create a risk in itself; and

(d)    is properly maintained.

Penalty for this subregulation:

(a)    for an individual, a fine of $7 000;

(b)    for a body corporate, a fine of $35 000.

(4)    If the plant to be guarded contains moving parts that may break or cause workpieces to be ejected from the plant, the person with management or control of the plant must ensure, so far as is reasonably practicable, that the guarding will control any risk from those broken or ejected parts and workpieces.

Penalty for this subregulation:

(a)    for an individual, a fine of $7 000;

(b)    for a body corporate, a fine of $35 000.

(5)    Despite anything to the contrary in this regulation, the person with management or control of the plant must ensure —

(a)    that the guarding is of a kind that can be removed to allow maintenance and cleaning of the plant at any time that the plant is not in normal operation; and

(b)    if guarding is removed, that, so far as is reasonably practicable, the plant cannot be restarted unless the guarding is replaced.

Penalty for this subregulation:

(a)    for an individual, a fine of $7 000;

(b)    for a body corporate, a fine of $35 000.

244   She also refers to section 4.1 of the WorkSafe Code of Practice, which provides:

A guard is a physical or other barrier that can perform several functions including:

• preventing contact with moving parts or controlling access to dangerous areas of plant

…

…

If guarding is used, the person with management or control of the plant must ensure that one of the following is complied with:

• If access to the area of plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant, the guarding is a permanently fixed barrier.

• If access to guarded areas is necessary during operation, maintenance or cleaning, the guarding is an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time.

…

245   The WorkSafe Commissioner says that on the evidence, the Tribunal can form the requisite belief that Dallcon is a PCBU, that the Property was a ‘workplace’ and the persons on site were ‘workers’. She says:

…

(d) during the inspection, in the Batch Plant area, Mr Welch saw a conveyor which conveyed material from a hopper into an elevated area of the Batch Plant. Mr Welch noticed the conveyor belt had mesh guarding over the tail drum of the conveyor. The mesh squares were approximately 80mm x 80mm in size. The mesh was positioned approximately 200mm away from the nip point of the tail drum and conveyor belt.

(e) during the inspection, Mr Welch saw an emergency stop mechanism on the conveyor belt plant, but noted that the mechanism was of the type that it could only be activated once a person's body part was already caught in the plant.

(f) during the inspection, Mr Martin McRae, supervisor of the Batch Plant area, told Mr Welch that workers needed to access the area underneath the conveyor belt to clean the sludge during operations and that he does maintenance on the conveyor belt. Mr Welch told Mr Martin McRae that as access is needed to the area of the plant, regulation 208(2)(b) of the WHSG Regs dictates there be an interlocked physical barrier that allows access to the area being guarded at any other time.

(g) based on his experience, Mr Welch reasonably believed it was reasonably practicable to implement a guard that prevents contact with moving parts or controlling access to dangerous areas of the conveyor plant.

(h) at the end of the inspection, Mr Welch told Mr Sprigg and Mr Dube that he intended to issue an improvement notice in relation to this matter. (footnotes omitted)

246   From this the WorkSafe Commissioner argues the Tribunal can form the requisite belief that the mesh squares were big enough for an arm to fit through and close enough to the moving parts that the guarding would not separate workers from the moving parts of the conveyor belt. Further, that the guarding would pose a risk to workers of amputation injuries if a worker was drawn into the nip point while the conveyor was operating.

247   The WorkSafe Commissioner submits that the Tribunal can form the requisite belief that it was reasonably practicable to implement a guard that prevents contact with moving parts or controlling access to dangerous areas of the conveyor plant. She says that on 3 May 2024 Mr Dube in effect said no improvements had been made, and on 21 June 2024, he told Mr Welch that a guard had been fabricated for the conveyor belt.

248   In relation to Dallcon’s submissions about Dial a Tow, the WorkSafe Commissioner says that case arose in the context of a prosecution, where the prosecutor had an onus of beyond a reasonable doubt to prove an actual breach. The WorkSafe Commissioner says it is quite plain that the sorts of enquiries that might be required to form a reasonable belief in that case are very fact-dependent. She argues that it is clear that the sorts of enquiries referred to in Dial a Tow were not necessary to form that belief in this case.

249   In relation to hearsay, the WorkSafe Commissioner says the decision of Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2017] NSWIRComm 1029 at [70] is not an argument against hearsay being part of the formation of a reasonable belief in all circumstances. That case dealt with the formation of a reasonable suspicion that a contravention had occurred. Whether there are grounds to form a reasonable belief of a particular circumstance depends on the circumstance, the evidence and the overall context. Further, as observed in Marcus at [14d], quoting Webb v Tang [2023] WASCA 119, reasonable belief can be based on unverifiable hearsay. The WorkSafe Commissioner went on to say ‘It’s not a matter of onus in the strict sense in a judicial proceeding, it is the statutory test for the issuing of an improvement notice, satisfied so as to affirm it, or to vary it in some way, is the correct and preferable decision.’

250   Finally, the WorkSafe Commissioner submits (as Mr Dube told Mr Welch), that Dallcon ended up fabricating a guard for the conveyor belt is an admission that it was reasonably practicable to do so.

Consideration

251   In summary, I think it is quite plain that there are reasonable grounds for believing that Dallcon had not, so far as reasonably practicable, ensured the health and safety of workers as alleged in Notice 3.

252   Mr Welch’s conversation with the supervisor of the area provides a sufficient basis to conclude that the plant is part of Dallcon’s business and that workers (including Mr M McRae, when he does the maintenance work on the plant) access the plant and the area around it. Mr Welch explained the issue to Mr Dube and Mr M McRae and they said that issue ‘had already been picked up’. Mr Welch explained some possible remedial options (see [132] – [134]). Mr Dube (the Health, Safety and Environment Manager) and Mr Sprigg did not say those would not be practicable or otherwise counter Mr Welch’s concerns.

253   For the reasons already outlined, I can form the requisite belief that Dallcon is a PCBU, the Property is a ‘workplace’ and persons on site were ‘workers.’

254   My observations above in relation to Mr Welch’s enquiries apply to Notice 3 as well. Dallcon’s submissions at [238] – [239] above are unpersuasive.

255   Under s 19(1) of the WHS Act, Dallcon owes a general duty to its workers to ensure their health and safety. It is clear from Mr Welch’s evidence and obvious from the photograph that the risk is the nip point between the conveyor drum and the conveyor belt. The mesh guard covering that area was 200 mm away from the conveyor belt and the mesh squares were wide enough for a person’s arm to fit through them. I am satisfied that the mesh was close enough to the moving parts that the guarding would not separate workers (or parts of workers) from the moving parts of the conveyor belt. Further, that the guarding would pose a risk to workers of amputation injuries if a worker was drawn into the nip point while the conveyor was operating.

256   I cannot accept Dallcon’s submissions about the enquiries necessary to establish reasonable practicability in this case. Dallcon sets far too high an expectation and goes well beyond what is required by the WHS Act. The matters set out above at [242] may be matters to consider, if a PCBU disputes that it would be reasonably practicable to implement a recommended measure, for example because suggested guards or interlocking gates cannot be fitted to the particular machine, or cannot be sourced or manufactured in Australia. It is the PCBU’s responsibility to ensure a safe workplace. There is no threshold requirement that before issuing an improvement notice with recommendations, WorkSafe must consult with the manufacturer of every item of plant in respect of which it issues an improvement notice, or that it must find out where control measures are manufactured. The conclusion that the conveyor was not adequately guarded is an obvious one, in circumstances where a person’s arm fits through the guarding mesh and the emergency stop mechanism could only be activated once a body part was already caught in the plant.

257   Dallcon has not put any evidence or argument to the internal reviewer or the Tribunal disputing that it would be reasonably practicable to implement a guard that prevents contact with moving parts or controlling access to dangerous areas of the conveyor plant. I accept Mr Welch’s evidence about the guarding and fencing of conveyor plant. Taken with specific control measures set out at section 4 of the WorkSafe Code of Practice (and 4.1 which addresses guarding plant), I consider that I can form the requisite belief that it was reasonably practicable to implement a guard that prevents contact with moving parts or controls access to dangerous areas of the conveyor plant.

258   While no improvements had been made on 3 May 2024, on 21 June 2024 Mr Dube told Mr Welch that a guard had been fabricated for the conveyor belt, which supports a conclusion that it was reasonably practicable to do so.

259   I am satisfied that the factual circumstances at the time of Notice 3 support a reasonable belief that Dallcon was contravening s 19(1) of the WHS Act as alleged. Further, the circumstances were such to support a reasonable belief that the contravention was likely to continue.

Notice 4 – submissions and consideration

260   Dallcon repeats its submissions in relation to no technicality and a lack of specificity in the WorkSafe Commissioner’s evidence. Dallcon says that the WorkSafe Commissioner has produced no formal inspection reports relating to the inspection, no notice requiring Dallcon to produce information about the alleged contravention, and no documents or other material (in response to a summons to produce, or otherwise) identifying:

a) what ‘additional information’ Notice 4 refers to;

b) why its absence means s 19(1) of the WHS Act has been contravened, given the lack of sufficient enquiries about other ways of communicating safe lifting capacities; and

c) whether the workers referred to were Dallcon’s workers.

261   Dallcon argues that Mr Welch’s enquiries were insufficient to establish the reasonable belief because he did not:

a) establish whether the workers allegedly exposed to the risk were Dallcon’s workers as defined in the WHS Act, and even then, while they are at work in its business or undertaking. Dallcon says there is no contravention if non-workers were exposed to it and it is not clear whether operation of the machine was part of Dallcon’s business or undertaking;

b) ascertain that the measure he says Dallcon should have used to inform workers of safe lifting limits was ‘a statutorily required reasonably practicable way of controlling the alleged risk in all of the circumstances’. Dallcon says there is no evidence Mr Welch enquired about whether safe lifting capacity was communicated to workers in other effective ways; and

c) properly enquire about whether the introduction of a control used at another site for other (potentially different) plant was reasonably practicable at the Property. Dallcon asks did Mr Welch mean similarly staffed, sized, located workplaces, or something else? It argues that a reasonable person cannot be objectively inclined to a reasonable belief that Dallcon had committed (or was committing) the contravention alleged in Notice 4, because they do not know what the similarity was. 

262   The WorkSafe Commissioner says it is clear from the ‘Provision’ section of the Notice that Dallcon is said to be ‘contravening section 19(1)’.

263   The WorkSafe Commissioner says the Tribunal can have the requisite belief that Dallcon was contravening s 19(1) of the WHS Act because:

a) section 2.1 of the WorkSafe Code of Practice provides:

"When plant is being used to lift or suspend persons or things, the person with management or control of plant at a workplace must ensure, so far as is reasonably practicable, that the plant used is specifically designed to lift or suspend the load.

…

The person must ensure that the lifting and suspending is carried out:

• with lifting attachments that are suitable for the load being lifted or suspended

• within the safe working limits of the plant." (footnote omitted)

b) for the reasons already outlined, the Tribunal can have the requisite belief that Dallcon is a PCBU, the Property is a ‘workplace’ and the persons on site were ‘workers’;

c) on the evidence, during the inspection Mr Welch saw a forklift and a jib attachment a few metres from it;

d) Mr R McRae told Mr Welch that he operates the forklift and showed him his licence to perform high risk work and pre-start records that day for the forklift. He said that he uses the jib attachment with the forklift to move concrete products;

e) Mr Welch noted that the forklift only had one data plate and it did not document the altered working load limit when the jib attachment is used nor the serial number of the jib attachment; and

f) based on his experience, Mr Welch reasonably believed that it was reasonably practicable for Dallcon to provide information of the de-rated lifting capacity of the forklift when the jib attachment is used to workers who operate the forklift (for example, via an amended data plate on the forklift).

264   The WorkSafe Commissioner says that the Tribunal can form the requisite belief that not providing workers operating the forklift while the jib attachment is being used with adequate information about the reduced lifting capacity exposes persons to the risk of crush injuries if the forklift is overloaded and overturns. Further, that it was reasonably practicable for Dallcon to provide information of the forklift’s de-rated lifting when the jib is being used to the workers who operate the forklift (for example via an amended data plate on the forklift). The WorkSafe Commissioner submits:

Plainly, a data plate could have been affixed once an engineer had been obtained to certify it. Plainly, that was reasonably practicable. Plainly, there didn’t need to be evidence of enquiries made of engineers by the inspector. His evidence was he’s visited other workplaces, he’s seen it, he knows it can be done. So that is one where it’s absolutely plain there was a reasonable ground for believing that steps had not been taken to ensure, so far as reasonably practicable, the safety of workers using or adjacent to that machinery.

Consideration

265   My observations above about Mr Welch’s enquiries apply equally to Notice 4.

266   The WorkSafe Code of Practice applies to the subject matter of Notice 4. It is obvious that when plant is used to lift or suspend things it must, so far as reasonably practicable, be specifically designed to lift or suspend the load. Further, that lifting and suspending must be carried out with lifting attachments that are suitable to the load being lifted or suspended, and within the safe working limits of the plant. Failure to do so poses an obvious risk.

267   For the reasons already outlined, I can form the requisite belief that Dallcon is a PCBU, the Property is a ‘workplace’ and the persons on site were ‘workers.’

268   Clearly the forklift was part of Dallcon’s operations. Mr R McRae told Mr Welch he uses the forklift, and showed him his licence and pre-start records that day for the forklift. Mr R McRae said that he uses the jib attachment with the forklift to move concrete product. The workers exposed to the risk were Dallcon’s workers. The data plate did not show the altered load limit of the forklift when the jib attachment was used. Not showing the workers using the forklift with the jib attachment the reduced load capacity of the forklift exposes those workers to the risk of tipping, overturning and crush injuries.

269   Contrary to Dallcon’s submission that Mr Welch’s focus was on the way information was conveyed, rather than if it was effectively conveyed, I consider that Mr Welch’s focus and concern was that the information had not been conveyed at all.

270   I accept the WorkSafe Commissioner’s submissions and agree with what is set out at [263] – [264] above, as well as the WorkSafe Commissioner’s observation that ‘one doesn’t need evidence to know that an engineer can measure and advise on and produce a metal plate that can be stuck on a forklift. That’s clearly reasonably practicable.’ I accept Mr Welch’s evidence that he has seen over 100 forklifts at other workplaces with attachments like the jib attachment and has seen those forklifts and attachments state the declassification (or de-rating) of a forklift in relation to the jib attachment. Further, when Mr Welch raised the lack of information about de-rating with Mr Dube and Mr Sprigg (and the need to provide that information to the operator about the de-rated capacity of the forklift when the jib is attached to it), they could have told Mr Welch if that information was otherwise provided to the operator. They did not. Indeed, Dallcon did not provide any evidence or make any argument, to the internal reviewer or the Tribunal, that the safe lifting capacity was communicated to workers in another effective way.

271   In the circumstances I can form the requisite belief that not providing workers operating the forklift while the jib attachment is being used with adequate information about the reduced lifting capacity exposes persons to the risk of crush injuries if the forklift is overloaded and overturns. Further, that it was reasonably practicable for Dallcon to provide information about the forklift’s de-rated lifting capacity when the jib is being used to the workers who operate the forklift (for example, via an amended data plate on the forklift). I consider it uncontroversial that ‘one doesn’t need evidence to know that an engineer can measure and advise on and produce a metal plate that can be stuck on a forklift. That’s clearly reasonably practicable.’

272   I am satisfied that the factual circumstances at the time of Notice 4 support a reasonable belief that Dallcon was contravening s 19(1) of the WHS Act as alleged. Further, the circumstances were such to support a reasonable belief that the contravention was likely to continue.

Notice 5 – submissions and consideration

273   Dallcon repeats its submissions in relation to no technicality and a lack of specificity in the WorkSafe Commissioner’s evidence. Dallcon says that the WorkSafe Commissioner has produced no formal inspection reports relating to the inspection, no notice requiring Dallcon to produce documents about the alleged contravention, and no documents or other material (in response to a summons to produce, or otherwise) identifying:

a) the ‘experience’ the inspector relied on in forming the alleged reasonable belief;

b) why the ‘similar workplaces’ referred to in Notice 5 are relevant to the Property and alleged contravention;

c) why its absence means s 19(1) has been contravened, given the lack of sufficient enquiries about other ways of communicating safe lifting capacities; and

d) whether the workers referred to were Dallcon’s workers.

274   Dallcon argues that Mr Welch’s enquiries as at 3 May 2024 were insufficient to establish the reasonable belief because he did not:

a) establish whether the workers allegedly exposed to the risk were Dallcon’s workers as defined in the WHS Act (and even then, while they are at work in its business or undertaking). Dallcon says there is no contravention if non-workers were exposed to it;

b) ascertain that the measure he says Dallcon should have used to inform workers of safe loading limits was ‘a statutorily required reasonably practicable way of controlling the alleged risk in all of the circumstances’; and

c) properly enquire about whether the introduction of a control used at another site for other (potentially different) plant was reasonably practicable at the Property. Dallcon asks did Mr Welch mean similarly staffed, sized, located workplaces, or something else? It argues that a reasonable person cannot be objectively inclined to a reasonable belief that Dallcon had committed (or was committing) the contravention alleged in the Notice, because they do not know what the similarity was and cannot know if it is relevant.

275   Here the WorkSafe Commissioner says the ‘Provision’ section of the Notice provides that Dallcon ‘is contravening’ s 191 of the WHS Act.

276   The WorkSafe Commissioner says the Tribunal can have the requisite belief that Dallcon was contravening s 19(1) of the WHS Act because:

a) for the reasons already outlined, the Tribunal can have the requisite belief that Dallcon is a PCBU, the Property is a ‘workplace’ and the persons on site were ‘workers’;

b) during the inspection, Mr Welch spoke with Mr Dube about two trestles in the vicinity of the forklift. Mr Dube explained that concrete products needing repair are put on top of the trestles;

c) the two trestles did not have data plates or any information specifying the weight the trestles could hold;

d) Mr Welch explained to Mr Dube the risk of the trestles being overloaded in circumstances where there is no information available to workers specifying what load the trestles can carry; and

e) based on his experience, Mr Welch reasonably believed that it was reasonably practicable for Dallcon to provide Safe Working Load information to workers who use the trestles by attaching a data plate with that information to the trestles.

277   Accordingly, the WorkSafe Commissioner says the Tribunal can form the requisite belief that workers placing concrete products on trestles for which they were not provided with safe working load information are at risk of crush injuries if the trestles were to be overloaded and fall on the worker. Further, the Tribunal can form the requisite belief that it was reasonably practicable for Dallcon to provide the safe working load information to workers using the trestles by attaching a data plate with that information to the trestle. This is because the WorkSafe Commissioner says ‘all that needed to be done was for an engineer’s advice to be obtained to affix, to measure it or calculate it, and for a plate to be determined to be produced that could be affixed, as Mr Welch has seen at other workplaces.’ Further, (as Mr Dube told Mr Welch), that Dallcon ended up engaging an engineer to attach a data plate to the trestles is an admission that it was reasonably practicable.

Consideration

278   My observations above about Mr Welch’s enquiries apply equally to Notice 5.

279   I accept the WorkSafe Commissioner’s submissions set out at [276] above. For the reasons already outlined, I can form the requisite belief that Dallcon is a PCBU, the Property is a ‘workplace’ and the persons on site were ‘workers.’

280   When Mr Welch raised with Mr Dube the lack of information about the trestles’ safe working load being communicated to workers, Mr Dube could have told Mr Welch if that information was otherwise provided to workers. He did not. Indeed, Dallcon did not provide any evidence or make any argument, to the internal reviewer or the Tribunal, that the safe working load of the trestles was communicated to workers in some other effective way (or at all).

281   On the evidence before me, I accept that concrete was placed on the trestles despite there being no data plate or any information on the trestles showing the load the trestles could hold. In those circumstances, obviously there was a risk of the trestles being overloaded and therefore a risk of crush injuries to workers.

282   I consider that the material before me supports concluding that it was reasonably practicable for Dallcon to give workers using the trestles the safe working load information by affixing a data plate with that information to the trestles.

283   I am satisfied that the factual circumstances at the time of Notice 5 support a reasonable belief that Dallcon was contravening s 19(1) of the WHS Act as alleged. Further, the circumstances were such to support a reasonable belief that the contravention was likely to continue.

What is the correct and preferable decision now in relation to each Notice? That is, should the Tribunal confirm, vary or set aside the decision and substitute another decision that the Tribunal considers appropriate?

284   Dallcon submits that if the Tribunal finds that there is a reasonable basis for the Notices as at May 2024, the Tribunal must still consider whether to keep the Notices in place. Dallcon argues that the effect of Mr Welch’s evidence was that the concerns in Notice 2, Notice 3 and Notice 5 were resolved, so the Tribunal should set those notices aside.

285   Dallcon says there is no evidence before the Tribunal to suggest that any contravention is going to continue or likely to happen again. For the Notices to remain, Dallcon says there must be evidence of the current state of affairs at the site. Given there is no evidence about that, the Notices must be set aside.

286   Dallcon says that the onus is on the WorkSafe Commissioner to satisfy the Tribunal that there is an objective reasonable belief for the Notices to be confirmed: Seymour Whyte Pty Ltd v the Regulator under the Work Health and Safety Act 2011 [2024] QIRC 085 at [27]. In relation to reasonable belief, Dallcon relies on the reasoning in Marcus at [14c] and says that the WorkSafe Commissioner must fail, because there is no evidence about the prevailing circumstances in respect of Dallcon and the subject matter of the Notices as at the date of the hearing. Dallcon notes that because the Tribunal stayed the Notices pending the hearing and determination of these matters, the time for compliance has not passed.

287   Dallcon points to a decision that was handed down a week before this hearing: Secretary of the Department of Education v SafeWork NSW [2025] NSWIRComm 1029 (Department of Education) from [27] – [31]. That case dealt with whether there was a need for contemporaneous evidence. Dallcon says that the WorkSafe Commissioner’s written submissions do not say that the Tribunal should vary the Notices. This is an ‘all or nothing case’ based on the way the WorkSafe Commissioner has conducted her case.

288   The WorkSafe Commissioner submits that the nature and incidents of the decisions under review require that they be determined by reference to the date of the Notices. This means that the Tribunal must determine whether the correct and preferable decisions were the confirmation of the issue of the Notices based on the state of facts as at 3 May 2024: citing Child Support Registrar v BKCZ [2023] FCA 1109 at [37]-[39], TFS Manufacturing Pty Limited and Minister for Health [2017] AATA 2786 at [6], and Sedco Forex International Inc v National Offshore Petroleum Safety and Environmental Management Authority [2016] FWCFB 2066 (Sedco) at [47]. Further, the WorkSafe Commissioner says this is not an ‘all or nothing case’. If the Tribunal concludes on the evidence that the correct and preferable decision is to set the Notices aside and substitute or vary another or others (including to correct a minor defect), then that is what the Tribunal is duty bound by statute to do.

289   The WorkSafe Commissioner says that contrary to Dallcon’s submissions, the concerns in Notice 2, Notice 3 and Notice 5 have not been resolved, but in any event it would not be in the public interest to seek external review of improvement notices that have been complied with in an attempt to have the notices set aside. The WorkSafe Commissioner says that to do so defeats the purpose of issuing such notices and providing reviews. Relying on Chit Chit Than v SafeWork NSW & Anor [2023] NSWIRComm 1122 (Chit Chit Tan) at [93], the WorkSafe Commissioner says a body like the Tribunal should:

[E]xercise caution where the review process is being utilised for the purposes of expunging an otherwise validly issued [improvement notice] on the basis of steps subsequently taken to comply with it. The legislature has not created the review jurisdiction for the purposes of facilitating a [person conducting a business or undertaking]'s desire to 'restore its reputation’.

290   Further, even if the Notices had been complied with (and the WorkSafe Commissioner does not consider that they have), an appeal against the Notices just focuses on whether or not they should have been instituted in the first place: Full Bench in Sedco.

291   The WorkSafe Commissioner says that absent any firm evidence that the Notices have been complied with, the correct and preferable decision is that the Tribunal exercises its discretion and confirms each of the internal review decisions.

Consideration

292   In each of these matters, the Tribunal must be satisfied that it can have a reasonable belief that Dallcon is contravening the WHS Act or WHS Regulations for the Tribunal to decide that the correct and preferable decision is to confirm the internal review decision.

293   Given the internal review decision in each of these matters was to confirm the improvement notice the subject of the internal review, a decision by the Tribunal to confirm the internal review decision is, in effect, a decision to confirm the improvement notice.

294   This is not a case where either party seriously argued that there has been a significant change in circumstances occurring after the Notices were issued or after the internal review decisions were made.

295   In my view, Department of Education does not assist Dallcon. It does not stand for the proposition that unless evidence is adduced in relation to current circumstances, then the Tribunal cannot confirm the internal review decisions (and therefore the Notices). Department of Education involved consideration of a procedural issue, being whether or not SafeWork should be allowed to reopen its case to lead evidence about whether the Department of Education was currently complying with the legislation. Webster C described that matter as being informative and ‘particularly relevant in this case, given not all the information relied on by the Department about its processes and procedures it has in place relating to the relevant risks were before [the inspector] when he made his decision to issue the Improvement Notices’ (at [23]). At [25], Webster C described having brought his earlier reasons in Chit Chit Than to the parties’ attention in an interlocutory decision, telling them at [28] of that interlocutory decision ‘…Thus, the evidence of the contemporary factual circumstances prevailing within the Department, and/or steps taken since the [improvement notice] has been issued may be relevant.’ (emphasis added) Ultimately Department of Education turned on whether SafeWork could have obtained the additional evidence earlier in the proceedings, and what Webster C described as SafeWork’s ‘own procedural oversight’. Current compliance was ‘a central issue in [those] proceedings.’ It does not follow that it will be in every case.

296   Plainly the circumstances that prevailed at the time the Notices were issued and the time the Notices were confirmed on internal review are relevant to the Tribunal’s review. That does not mean that the exercise of the Tribunal’s discretion is confined to considering the facts as they existed at those times (and in relation to that principle I agree with Webster C in Chit Chit Than at [74]). However, it does not necessarily follow that evidence about the circumstances at the time of the hearing is required in order for the Tribunal to confirm the internal review decisions.

297   The legislation does not confine the Tribunal to considering the facts only as they existed at the time of the reviewable decision. Plainly the Tribunal can consider facts that occurred after that time. But nor does the legislation confine the Tribunal to considering the facts only as they exist at the time of the hearing.

298   While it may be that contemporaneous evidence presented at the hearing ultimately persuades the Tribunal to confirm, vary or indeed set aside the decision under review, the absence of such contemporaneous evidence does not preclude the Tribunal from exercising its statutory task of deciding, in light of what is before it at the hearing, what is the correct and preferable decision. Put another way, the absence of evidence of the facts at the time of the hearing does not, in and of itself, mean the Tribunal cannot be satisfied that an internal review decision should be confirmed (or an improvement notice confirmed or otherwise in effect maintained as a result of the Tribunal’s decision).

299   The Tribunal’s task is to consider whether, based on the material now before the Tribunal, the internal review decisions should be confirmed, varied or set aside and substituted. Chit Chit Than is authority for the proposition that the Tribunal ‘can take into account the contemporary factual circumstances in conducting the review’ (at [93]), not that the Tribunal can only ever be satisfied that it can confirm an internal review decision (or otherwise in effect maintain an improvement notice) if there is evidence of the contemporaneous factual circumstances. Indeed, Webster C in Chit Chit Than said at [86] that the Commission must determine the circumstances at the time of the decision under review (citing Growthbuilt at [33] and from [55] – [61]).

300   Where the Tribunal forms the requisite belief that there was a contravention in each case, then absent any firm evidence that the Notices have been complied with, the correct and preferable decision is that the Tribunal confirms the internal review decisions, thereby confirming the substance of the Notices on review. Here I am satisfied that the Notices should have been issued. The effect of Mr Welch’s evidence was not that the concerns the subject of Notice 2, Notice 3 and Notice 5 were resolved. Dallcon chose not to present evidence to refute the WorkSafe Commissioner’s case. There is no evidence before me to establish that the concerns the subject of the Notices have been remedied and I am not persuaded that they have been.

301   I do not need to address arguments about whether this was an ‘all or nothing’ case, because the Notices are not deficient. I am satisfied that the Notices should have been issued and they should have been confirmed on internal review. It is only necessary to vary the due date set out in the Notices to provide a commensurate timeframe for rectification.

302   On what is before me, I consider that the correct and preferable decision in each matter is to confirm the internal review decision. Notice 1, Notice 2, Notice 3, Notice 4 and Notice 5 are therefore confirmed, other than in relation to the due date for each, which should be varied from 5 July 2024 to 31 October 2025.

Orders

303   Accordingly, the Tribunal will order that the internal review decisions the subject of applications WHST 4, 5, 6, 7 and 8 of 2024 be confirmed, and the due dates for Improvement Notices 90029358, 90029360, 90029362, 90029363, and 90029364 be varied from 5 July 2024 to 31 October 2025.

Notice 1

Notice 2

Notice 3

Notice 4

Notice 5