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 00875

DELIVERED : FRIDAY, 24 OCTOBER 2025

FILE NO. : WHST 5 OF 2025

Applicant

AND

WorkSafe Commissioner

Respondent

CatchWords : Application to dismiss substantive application – Application for external review – Asbestos-related workplace health and safety – Decision to not take enforcement action – No decision capable of internal review – Application out of time – Meaning of ‘eligible person’ – Tribunal lacks jurisdiction – Application to dismiss upheld – Substantive application dismissed

Legislation : Industrial Relations Act 1979 (WA) s 27(1)(a)(ii), (iii), (iv)

  Occupational Safety and Health Act 1984 (WA) s 51A(2)

  Work Health and Safety Act 2020 (WA) sch 1 cl 29, ss 7(1), 82, 112, 223(1), 224, 225, 226, 227, 229, 229A(5)      

Result : Application to dismiss upheld; substantive application dismissed

Representation:

Applicant : On his own behalf

Respondent : Mr J Gallo (of counsel)

Case(s) referred to in reasons:

Denaya Nominees Pty Ltd v WorkSafe Western Australia [2020] WAIRC 00996; (2021) 101 WAIG 78

Dr Kenneth Lee v South Metropolitan Health Service [2025] WAIRC 00767

Jade Smith v Minister for Corrective Services [2022] WAIRC 00848; (2023) 103 WAIG 51

Palaloi v Director General, Department of Education [2025] WASCA 130

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431

Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Ors v (Not Applicable) [2024] WAIRC 01044; (2025) 105 WAIG 45

WorkSafe Western Australia Commissioner v Anthony and Sons Pty Ltd t/as Oceanic Cruises [2006] WAIRC 05438; (2006) 86 WAIG 2950

Reasons for Decision

1         Dr Grigorovich has applied to the Work Health and Safety Tribunal (Tribunal) for external review of a decision dated 26 May 2025 that he says was made by a Director of WorkSafe WA (WorkSafe) on internal review.

2         The WorkSafe Commissioner objects to the Tribunal dealing with the substantive matter because she says the Tribunal lacks jurisdiction, the application was made out of time and Dr Grigorovich seeks remedies the Tribunal cannot order. She asks the Tribunal to dismiss application WHST 5 of 2025 (Application to Dismiss).

3         Dr Grigorovich opposes the Application to Dismiss. He says it fails to acknowledge serious public health and safety implications, his substantive matter has merit and there is public interest in ensuring effective regulatory oversight of asbestos-related workplace health and safety.

What must the Tribunal decide?

4         I must decide whether to dismiss application WHST 5 of 2025.

Legislation

5         Section 27(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act) applies to the Tribunal by virtue of cl 29 of sch 1 of the Work Health and Safety Act 2020 (WA) (WHS Act). It says:

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

(a) at any stage of the proceedings dismiss the matter or any part of it or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part is trivial; or

(ii) that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing of it discontinued, as the case may be;

…

Principles

6         The principles to apply when considering whether to dismiss an application under s 27(1)(a) of the IR Act are well established and they apply to the Tribunal’s exercise of jurisdiction.

7         Recently, the Industrial Appeal Court in Palaloi v Director General, Department of Education [2025] WASCA 130 confirmed at [26] that the approach taken by the Full Bench in relation to s 27(1)(a) of the IR Act was correct, describing the Full Bench’s approach at [13]:

The Full Bench said that the power of the Commission to dismiss a matter under s 27 of the Act is a broad power. However, given that a person who brings proceedings before the Commission is entitled to have the jurisdiction invoked, the statutory power to dismiss a matter under s 27(1)(a) of the Act is to be exercised sparingly and only in a clear case... (footnotes omitted)

8         This approach is consistent with that taken in many Commission decisions, including in Jade Smith v Minister for Corrective Services [2022] WAIRC 00848; (2023) 103 WAIG 51 at [24] and Dr Kenneth Lee v South Metropolitan Health Service [2025] WAIRC 00767.

9         A recent decision of the Commission in Court Session in Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Ors v (Not Applicable) [2024] WAIRC 01044; (2025) 105 WAIG 45 set out the principles from [4] – [6]:

4 Section 27(1)(a) confers a broad discretion on the Commission to dismiss or refrain from further hearing a matter on various bases as set out.  The CFMEUW did not articulate any particular power under s 27(1)(a) upon which it relied, and given that it was contended that the WASU case could not, as advanced, succeed, we take it to be an application under s 27(1)(a)(iv) that the substantive application should be dismissed ‘for any other reason’.

5 The power of the Commission to dismiss a matter or to refrain from further hearing a matter, is a broad power.  In The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431 (PTA case) as to s 27(1)(a) of the Act, with particular reference to the public interest, Kenner C (as he then was) observed at [21] – [23] as follows:

[21] Section 27(1)(a) of the Act provides as follows:

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

(a) at any stage of the proceedings dismiss the matter or any part of it or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part is trivial; or

(ii) that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing of it discontinued, as the case may be;

[22] In another context, in The Construction, Forestry, Mining and Energy Union of Workers v Skilled Rail Services Pty Ltd (2006) 86 WAIG 1268, I considered the meaning of the “public interest” for the purposes of s 36A(1) of the Act. In referring to s 27(1)(a)(ii) of the Act, empowering the Commission to dismiss or refrain from further hearing a matter, I referred to QEC and at par 35 I observed as follows:

35 Given the construction I have placed on s 36A(1) of the Act, it is for the respondent to demonstrate that it would not be in the public interest for the Proposed Award to the made. The notion of the “public interest” is somewhat amorphous. Consideration of this issue is similar to the terms of s 27(1)(a)(ii) of the Act empowering the Commission to dismiss or refrain from further hearing a matter on the basis that further proceedings are not necessary or desirable in the public interest. Similar provisions exist in other industrial jurisdictions. In Re Queensland Electricity Commission and Ors; Ex-parte Electrical Trade's Union of Australia (1987) 21 IR 151 the High Court in proceedings for prerogative writs against a Full Bench of the then Australian Conciliation and Arbitration Commission, held that for the purposes of the then s 41(1)(d)(iii) of the Conciliation and Arbitration Act 1904 (Cth) that “Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree” (per Mason CJ and Wilson and Dawson JJ). In the same case, Deane J in dealing with the refrain from hearing power in the public interest observed at 162:

“The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked. That prima facie right to insist upon the exercise or jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is “amenable to the jurisdiction” of the courts and other public tribunals (cf Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed (1959), p 193). In the rare instances where a particular court of tribunal is given a broad discretionary power to refuse to exercise its jurisdiction on public interest grounds, the necessary starting point of a consideration whether such a refusal would be warranted in the circumstances of a particular case in which its jurisdiction has been duly invoked by a party must ordinarily be the prima facie right of the party who has invoked the jurisdiction to insist upon its exercise (cf per Higgins J, Merchant Service Guild of Australasia v Commonwealth Steamship Owners’ Association [No 1] (1920) 28 CLR 278 at 281). That position is a fortiori in a case where no other court or tribunal, Commonwealth or State, possesses jurisdiction fully to deal with the particular dispute. Were it otherwise, effective access to the courts and other public tribunals would be not a right which could be denied in an exceptional case on the grounds of extraordinary consideration of public policy but an uncertain privilege which could be withheld at any time on unconfined and largely unexaminable discretionary grounds (see, generally, Friedman, “Access to Justice: Social and Historical Context: in Cappelletti and Weisner (eds) Access to Justice, vol II, book 1 (1978) pp 5ff; Raz, The Authority of Law, (1979), at p 217).”

[23] I adopt what I said in Skilled Rail Services for present purposes. The discretion open to the Commission to be exercised under s 27(1)(a) is a broad one. A gloss should not be put on the words of the section to import any particular level of satisfaction to be achieved by the Commission for the exercise of the power.  However, given that a party is entitled to invoke the Commission’s jurisdiction, and prima facie expect it to be exercised there is an onus on the Authority in this case, to persuade the Commission, that in the circumstances, that prima facie right should be overridden: QEC per Deane J at 163. Further, in the exercise of the discretion, the Commission is required, as in all matters before it, to have regard to its statutory obligations under s 26(1) of the Act: Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 68 WAIG 4.

6 Given that a person who brings proceedings before the Commission is entitled to have the jurisdiction invoked, the statutory power to dismiss a matter under s 27(1)(a) of the Act is to be exercised sparingly.  Whilst the PTA case concerned a dismissal application in the public interest under s 27(1)(a)(ii), the same broad approach should be adopted to the other bases of the power in s 27(1)(a)(i), (iii) and (iv), in that the power should only be exercised in a clear case.

10      I respectfully adopt and apply that reasoning in this matter.

Background

11      The following background is not in dispute.

12      In October 2023 Dr Grigorovich contacted WorkSafe about two incidents of what he says are non-compliant asbestos removal by his former employer. Those incidents took place in October 2022.

13      Dr Grigorovich’s employment with Site Environmental and Remediation Services Pty Ltd (SERS) and contracting arrangement with asbestos contractor Brajkovic Demolition & Salvage (WA) Pty Ltd (Brajkovic) had ended by November 2022.

14      WorkSafe inspectors investigated the incidents and did not take any enforcement action in relation to them.

15      On 22 April 2025, Dr Grigorovich contacted the WorkSafe Call Centre for an update on his reports. The next day WorkSafe told him by email that it had not taken any enforcement action.

16      On 15 May 2025, Dr Grigorovich requested an internal review of the decision not to take enforcement action.

17      On 26 May 2025, WorkSafe’s Acting Director Ms Eve Speyers wrote to Dr Grigorovich and explained why WorkSafe did not take enforcement action in relation to his reports.

18      On 16 June 2025, Dr Grigorovich applied to the Tribunal for external review.

Should the Tribunal dismiss application WHST 5 of 2025?

19      The WorkSafe Commissioner says the Tribunal should dismiss application WHST 5 of 2025 because:

a. the application is not made in respect of a decision that is capable of review by the Tribunal (Ground 1);

b. alternatively, the application was made out of time and the Tribunal does not have jurisdiction to determine the matter (Ground 2);

c. if a. and b. are not accepted, at the time Dr Grigorovich made the application, he was not an eligible person in relation to a reviewable decision (Ground 3); and

d. if a., b. and c. are not accepted, Dr Grigorovich seeks remedies that the Tribunal cannot order (Ground 4).

20      The WorkSafe Commissioner says further proceedings are not necessary or desirable in the public interest and the matter should be dismissed because:

a. there is public interest in ensuring the Tribunal only deals with matters within its jurisdiction, and it would go against the objects of the WHS Act and have policy implications for the administration of the WHS Act if every action of an inspector could be subject to external review;

b. there is public interest in ensuring statutory timeframes for review are enforced; and

c. Dr Grigorovich asks the Tribunal to make orders beyond its power.

21      The WorkSafe Commissioner says WorkSafe’s decision on 23 April 2025 not to take enforcement action is not listed as a reviewable decision in s 223(1) of the WHS Act. Further, even if it was, Dr Grigorovich requested an internal review 22 days later. Sections 224(1) and 224(3) of the WHS Act require an application for internal review to be made within 14 days of the decision first coming to an applicant’s notice.

22      Accordingly, the WorkSafe Commissioner says there was no internal review conducted, because:

a. the decision not to take enforcement action is not a reviewable decision; and

b. even if the decision not to take enforcement action was internally reviewable, Dr Grigorovich’s request for internal review was made outside the prescribed time period.

Ground 1 – No reviewable decision

23      Section 229(1) of the WHS Act allows an eligible person to apply to the Tribunal for review of:

a. a decision made by an inspector under s 82(3) of the WHS Act;

b. a reviewable decision made by the regulator; or

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

24      The WorkSafe Commissioner says that in this matter there has been no decision covered by s 229(1) of the WHS Act:

a. section 82(1) of the WHS Act allows a party to an issue to ask the regulator to appoint an inspector to make a decision to resolve the issue under s 82(3) of the WHS Act. This did not happen in this matter, so there was no decision under s 229(1)(a) of the WHS Act;

b. a decision not to take enforcement action is not a reviewable decision under s 223(1) of the WHS Act, so there was no decision under s 229(1)(b) of the WHS Act;

c. under s 223(1) of the WHS Act, a decision to issue an improvement notice is reviewable. Where there is no decision to issue an improvement notice, there is no decision to review. The same applies to prohibition notices; and

d. there can be no decision made on internal review because there was no decision capable of internal review, so there was no decision under s 229(1)(c) of the WHS Act.

25      Accordingly, the WorkSafe Commissioner argues that the Tribunal lacks jurisdiction because application WHST 5 of 2025 was not made in respect of a decision that is one of the three decisions included in s 229(1) of the WHS Act that allow external review.

26      Dr Grigorovich says it is clear from Ms Speyers’ letter dated 26 May 2025, which states ‘I have been appointed as an internal reviewer under s 225 of the WHS Act and I am delegated to make decisions under ss 226–227’, that there has been an exercise of statutory decision-making power, which he says created a reviewable decision under s 229(1)(c) of the WHS Act. He says WorkSafe’s inaction has a direct impact on his interests as a former worker and a public safety advocate, and Ms Speyers’ decision dated 26 May 2025 ‘constitutes a regulatory action that falls squarely within the scope of the WHS Act’s oversight and control functions’.

27      In the alternative, Dr Grigorovich argues that there is a s 82(3) reviewable decision because the investigation and decision not to take enforcement action ‘constituted a substantive determination by WorkSafe WA inspectors’. He says the WorkSafe Commissioner’s interpretation of s 82(3) of the WHS Act is narrow and disregards ‘the practical reality of how such regulatory decisions are made within the statutory framework’.

28      Ultimately, I cannot accept Dr Grigorovich’s submissions about Ground 1.

29      It is plain from the WHS Act that not all decisions are reviewable decisions. That conclusion is consistent with the text, purpose and context of the WHS Act. For the reasons that follow, I am not persuaded that application WHST 5 of 2025 refers a decision that can be externally reviewed by the Tribunal.

30      In her letter dated 26 May 2025, Ms Speyers was simply noting that she is an internal reviewer for the purposes of the WHS Act. Her next sentence is ‘However, as a public service I have requested a review of the matter’. A fair reading of Ms Speyers’ letter shows it is clear that she was not conducting an internal review. In any event, internal review is only available on reviewable decisions. Section 223 of the WHS Act sets out the decisions made under the WHS Act that are reviewable. The decision dated 23 April 2025 not to take enforcement action is not a reviewable decision.

31      Further, even if I am wrong and the decision not to take enforcement action was a reviewable decision, there is a further difficulty for Dr Grigorovich. He did not apply for internal review within the 14-day time limit. On what is before me I cannot find that a longer period was allowed by the regulator. In those circumstances I cannot find that an internal review decision was made.

32      Dr Grigorovich has not referred to the Tribunal for external review a decision made by an inspector under s 82(3) of the WHS Act. First, it is plain from his application that he appeals the decision dated 26 May 2025. That was not a decision made by an inspector under s 82(3) of the WHS Act. Moreover, Dr Grigorovich was not a ‘party to the issue’ as defined by s 80 of the WHS Act at the time he raised the matter with WorkSafe, so I cannot find that he asked the regulator to appoint an inspector to resolve the issue.

33      There was no decision under s 229(1)(a) of the WHS Act.

34      I must conclude that the Tribunal lacks jurisdiction because application WHST 5 of 2025 was not made in respect of a decision that is one of the three decisions included in s 229(1) of the WHS Act that allow external review. On that basis alone, I am satisfied that this is a clear case where further proceedings are not necessary or desirable in the public interest, and the Tribunal should exercise its discretion to dismiss application WHST 5 of 2025.

35      Although it is not necessary to do so, I will go on to consider Ground 2, Ground 3 and Ground 4.

Ground 2 – Application is out of time

36      The WorkSafe Commissioner says that if the Tribunal finds that an internal review decision was made on 26 May 2025 (which she says was not), then the matter should be dismissed because the external review application was made outside the prescribed time limit.

37      Under s 229(2)(b) of the WHS Act, an application for external review must be made within 14 days of the decision first coming to the applicant’s notice. Dr Grigorovich made his application to the Tribunal 21 days after he received Ms Speyers’ letter. The WorkSafe Commissioner says this means application WHST 5 of 2025 was made out of time and the Tribunal has no jurisdiction to hear the matter. She refers to the decision in WorkSafe Western Australia Commissioner v Anthony and Sons Pty Ltd t/as Oceanic Cruises [2006] WAIRC 05438; (2006) 86 WAIG 2950 (Oceanic Cruises), in which the Full Bench considered whether the Tribunal’s predecessor had the power to extend the 7-day time limit in s 51A(2) of the Occupational Safety and Health Act 1984 (WA) (OSH Act). She argues that in that case, the Full Bench found the Tribunal did not have the power to extend the 7-day time limit and held:

a. it was ‘important’ that the OSH Act did not expressly provide a power for the Tribunal to extend the time period [36], and such a provision would be expected to have been provided for by the legislature if it was intended [45];

b. as a matter of statutory construction, ‘the making of a reference within the 7-day time period is an “essential preliminary to the exercise of the [Tribunal’s] jurisdiction”.’ [39];

c. a ‘tight time frame’ was provided for the review of improvement and prohibition notices ‘given the subject matter of improvement and prohibition notices’, which was consistent with the objects of the OSH Act [40]; and

d. ‘the doing of things within a specified time’ was ‘part of the nature of an improvement notice’, and the ‘same applies with respect to the seeking of a review of an improvement notice’ [42]. (original emphasis)

38      The WorkSafe Commissioner notes that approach was followed by the Tribunal in Denaya Nominees Pty Ltd v WorkSafe Western Australia [2020] WAIRC 00996; (2021) 101 WAIG 78 (Denaya Nominees). She says the reasoning in Denaya Nominees and Oceanic Cruises also applies to the comparable provisions of the WHS Act. This means that the Tribunal must dismiss this matter because it lacks the jurisdiction to determine an application made out of time in these circumstances.

39      In effect Dr Grigorovich says the 14-day time limit starts running from 26 May 2025, because that was the ‘first substantive and properly reasoned decision’. He argues that the 23 April 2025 email failed to meet the basic requirements of procedural fairness and therefore ‘cannot be considered proper notice for the purposes of commencing the limitation period’.

40      Dr Grigorovich concedes that his application for external review was filed 21 days after 26 May 2025, and says ‘[w]hile this appears to be outside the 14-day window, this calculation fails to account for the proper legal interpretation of when the limitation period was triggered’.

41      Dr Grigorovich says if the Tribunal finds that the application was made outside the 14-day time limit, then the circumstances warrant an extension of time in the public interest because of:

a. the serious nature of the asbestos safety breaches in his initial report;

b. WorkSafe’s acknowledgement of ‘discrepancies in the final clearance report’;

c. WorkSafe’s inconsistent characterisation of its own decisions creating procedural confusion; and

d. the broader public interest in ensuring effective regulatory oversight of asbestos removal activities and the protection of worker and public health.

42      He argues that Oceanic Cruises and Denaya Nominees concerned different statutory contexts and procedural circumstances.

43      Ultimately Dr Grigorovich’s submissions in relation to Ground 2 are misconceived and I cannot accept them. As he eventually conceded at the hearing, his application for external review was made 21 days after the decision he appeals, which is outside the prescribed time limit of 14 days. Oceanic Cruises was a decision made under the OSH Act. However the reasoning in that case applies to this matter as well. There is no compelling reason to distinguish it. Like the OSH Act, the WHS Act does not expressly provide a power for the Tribunal to extend the time period and such a provision would be expected to have been provided for by the legislature if it were intended.

44      Similarly, as in Oceanic Cruises as a matter of statutory construction, the application to the Tribunal within 14 days (s 229(2)(b)) of the WHS Act) is an essential preliminary to the exercise of the Tribunal’s jurisdiction. If anything, the relevant wording in relation to this time limit is more, rather than less, strict, in that the application ‘must’ be made within the time limit, rather than ‘may’ be made, as was provided for in the OSH Act. The relatively tight time frame is also consistent with the subject matter of reviewable decisions and the objects of the WHS Act.

45      The matters Dr Grigorovich raises at [41] cannot overcome the Tribunal’s lack of jurisdiction to determine an application made out of time.

46      I would uphold Ground 2.

Ground 3 – Dr Grigorovich is not an ‘eligible person’ to apply for review

47      The WorkSafe Commissioner says that even if the Tribunal finds that the decision not to take enforcement action is a reviewable decision, Dr Grigorovich was not an ‘eligible person’ to seek external review under s 223(1) of the WHS Act. She says that Dr Grigorovich’s position is that he is a ‘worker whose interests are affected by the decision’ not to take enforcement action against his former employer SERS and asbestos contractor Brajkovic.

48      The WorkSafe Commissioner argues that because Dr Grigorovich’s employment with SERS had ended by November 2022, he was no longer a ‘worker whose interests were affected by the decision’ not to take enforcement action. She says this means that he was not eligible to apply for external review pursuant to the requirements in s 223(1) of the WHS Act, and therefore the Tribunal must dismiss application WHST 5 of 2025.

49      Dr Grigorovich says the WorkSafe Commissioner’s construction of ‘eligible person’ is misconceived. He argues that a ‘worker whose interests are affected by the decision’ is not temporally limited to an existing employment relationship, and says his interests are directly and substantially affected by the decision not to take enforcement action because:

a. he has whistleblower status;

b. his reputation and integrity as an asbestos assessor was compromised; and

c. his future ability to report similar safety breaches is affected by WorkSafe’s inaction.

50      Dr Grigorovich argues that his status as a worker should be considered from when the alleged breaches of the WHS Act occurred, not the time when he referred the matter. However, Dr Grigorovich conceded that he was not a worker at the time he referred the matter to WorkSafe nor the Tribunal.

51      Dr Grigorovich submits that public policy supports a broad interpretation of ‘eligible person’ and denying former workers access to review mechanisms would be contrary to the purpose of the WHS Act, particularly the protection of whistleblowers and the encouragement of safety reporting.

52      Section 223(1) of the WHS Act sets out which decisions are ‘reviewable decisions’ in accordance with Part 12 of the WHS Act, and who is an ‘eligible person’ to apply for review of a reviewable decision.

53      The decision not to take enforcement action is not a reviewable decision set out in the table at s 223 of the WHS Act. I am not persuaded that in this matter there was a reviewable decision (as set out in the table at s 223 of the WHS Act) in respect of which Dr Grigorovich was eligible to apply to the regulator for internal review under s 224 of the WHS Act or to the Tribunal for external review under s 229 of the WHS Act.

54      In relation to some of the items in the table set out at s 223 of the WHS Act, ‘eligible person’ includes ‘[a] worker whose interests are affected by the decision’, for example in item 4 which relates to s 82(3) of the WHS Act.

55      ‘Worker’ is defined in s 7(1) of the WHS Act, which provides:

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. (original emphasis)

56      It is not in dispute that Dr Grigorovich was not employed by SERS or contracted to Brajkovic after November 2022, which was many months before he raised his concerns with WorkSafe.

57      By the time he raised his concerns with WorkSafe, Dr Grigorovich was not a person carrying out work in any capacity for SERS or Brajkovic as an employee or any of the other bases set out in s 7(1) or s 7(3) of the WHS Act.

58      Other sections of the WHS Act allow former employees to apply to the Tribunal. An example of this is at s 112 of the WHS Act. Under that section, an ‘eligible person’ includes ‘a person affected by the contravention’. Section 112(3)(b) allows the Tribunal to make an order in relation to ‘a worker who was or is an employee or prospective employee’. (emphasis added)

59      In my view, if Parliament had intended ‘employee’ in s 7(1)(a) of the WHS Act to include a former employee, then Parliament would have expressly said so, as it did in other parts of the legislation.

60      Dr Grigorovich had not been a worker (employed by SERS or contracted to Brajkovic) for nearly a year by the time he raised the matter with WorkSafe in October 2023. At the time he referred his application to the Tribunal, while Dr Grigorovich may have been a person whose interests were affected, he was not a ‘worker whose interests were affected by the decision’ not to take enforcement action.

61      The arguments set out at [49a - c] above do not assist Dr Grigorovich, because they do not mean that Dr Grigorovich is an ‘eligible person’ to apply for review.

62      Although it is clear that Dr Grigorovich has a considerable personal interest (in the ordinary sense of the word ‘interest’) in referring this matter to WorkSafe and to the Tribunal, in my view he is not an ‘eligible person’ as defined by the legislation.

63      I would uphold Ground 3. It is another basis on which application WHST 5 of 2025 should be dismissed.

Ground 4 – Tribunal cannot order the remedies Dr Grigorovich seeks

64      Section 229A(5) of the WHS Act provides that after the Tribunal has completed an external review, it may:

a. confirm or vary the decision; or

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

65      The WorkSafe Commissioner says Dr Grigorovich wants the Tribunal to vary or substitute the decision not to take enforcement action in response to his reports to WorkSafe by ordering WorkSafe to:

a. investigate Dr Grigorovich’s report; and/or

b. take enforcement action by issuing prohibition/improvement notices under the WHS Act.

66      The WorkSafe Commissioner says WorkSafe has already investigated Dr Grigorovich’s complaints in line with WorkSafe’s Compliance and Enforcement Policy and the order at [65b] above is outside the Tribunal’s power.

67      Accordingly, the WorkSafe Commissioner says application WHST 5 of 2025 should be dismissed under s 27(1)(a)(ii), (iii) and (iv) of the IR Act.

68      Dr Grigorovich argues that the Tribunal has the power to grant the remedies he seeks, including by directing WorkSafe to:

a. conduct a comprehensive review of all evidence;

b. apply its Compliance and Enforcement Policy objectively and consistently; and

c. consider and, if appropriate, take enforcement action including issuing regulatory notices under the WHS Act.

69      He says:

a. the language of s 229A(5) of the WHS Act ‘confers broad remedial discretion’; and

b. the matter has not already been investigated, because WorkSafe’s investigation was inadequate, pointing to what he sees as some of the specific failings of WorkSafe’s investigation.

70      Overall, Dr Grigorovich says public policy considerations support proceeding to the substantive hearing, including for the following reasons:

a. airborne asbestos exposure is a critical public health and safety priority;

b. regulatory accountability and enforcement integrity; and

c. protection of whistleblowers and professional integrity.

71      Ultimately none of the eight decisions that Dr Grigorovich refers to in his submissions assist him. As the WorkSafe Commissioner points out, those cases dealt with notices that were issued (whether improvement, provisional improvement or prohibition notices), rather than enforcement action that was not taken. Those cases are distinguishable from the circumstances of this matter.

72      Individually, Ground 1, Ground 2, and Ground 3 are sufficient to uphold the Application to Dismiss, therefore it is unnecessary for the Tribunal to decide the important question of the scope of the Tribunal’s powers under s 229A(5) of the WHS Act. In my view, that matter is better left to another day, when more fulsome argument is put.

73      It is unnecessary to decide Ground 4.

74      Finally, it is clear to me that Dr Grigorovich feels very strongly about the matters at the heart of his complaint to WorkSafe. I don’t doubt that he is motivated by a genuine concern about public safety. However the Tribunal can only deal with applications within its jurisdiction. That there may be public health and safety implications, a substantive matter with merit and public interest in effective regulatory oversight cannot overcome a lack of jurisdiction and standing. Further proceedings are not also necessary or desirable in the public interest because Dr Grigorovich does not have a sufficient interest in the matter given his lack of standing. As set out above, this is a clear case where the Tribunal must dismiss application WHST 5 of 2025 on the basis of any one of Ground 1, Ground 2 or Ground 3 argued by the WorkSafe Commissioner.

75      The Application to Dismiss is upheld. An order will issue dismissing application WHST 5 of 2025.