Elgas Limited v SafeWork NSW (No 2) [2021] NSWIRComm 1102

Industrial Relations Commission New South Wales Medium Neutral Citation: Elgas Limited v SafeWork NSW (No 2) [2021] NSWIRComm 1102 Hearing dates: 20 December 2021 Date of orders: 20 December 2021 Decision date: 20 December 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Order that: (1) The operation of the decision by Daniel Leo, SafeWork NSW Inspector, dated 23 September 2021 be stayed in accordance with s 229(3) of the Work Health and Safety Act 2011 (NSW) pending the outcome of the application for external review filed on 11 November 2021. (2) The operation of the internal review determination made by Rod Kammel, Reviewable Decisions Coordinator of SafeWork NSW, dated 28 October 2021 be stayed in accordance with s 229(3) of the Work Health and Safety Act 2011 (NSW) pending the outcome of the application for external review filed on 11 November 2021. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – external review – application for stay of decision under review Legislation Cited: Work Health and Safety Act 2011 s 229 Cases Cited: Essential Energy (ACN 37428185226) v WorkCover Authority of New South Wales (2012) NSWIRComm 83 Texts Cited: Nil Category: Procedural rulings Parties: Elgas Limited (Applicant) SafeWork NSW (Respondent) Representation: T Frost, HWL Ebsworth Lawyers (Applicant) Z Bramley, SafeWork NSW (Respondent) File Number(s): 2021/326903 Publication restriction: No

EX TEMPORE decision 1. The Commission has before it an application by Elgas Limited ("Elgas") for orders pursuant to s 229(3) of the Work Health and Safety Act 2011 effectively staying the decisions which are the subject of these proceedings, pending the outcome of the review. The notice of motion was filed on 19 November 2021 and is supported by an affidavit sworn the same day by Creagh de Brabander, who is a Terminal Manager at Elgas. 2. Prior to coming on the Bench today I had an opportunity to read the material which had been filed in respect of the application and undertook some research of my own. The only published decision I could find in which orders had been made under s 229(3) was that to which Mr Frost referred me, a decision of Backman J in Essential Energy (ACN 37428185226) v WorkCover Authority of New South Wales (2012) NSWIRComm 83. In that decision, whilst she did not cite any authority for taking this approach, her Honour adopted what is a fairly typical approach to the making of interlocutory orders including stays: that is, to make two enquiries. First, is there a serious question to be tried? And second, does the balance of convenience favour the granting of a stay of proceedings? 3. The decisions under review in this case concern the establishment of workgroups at a particular site known as the Elgas Cavern facility at Port Botany. The evidence discloses that over the course of the negotiations concerning workgroups and the involvement of SafeWork NSW a total of five options were explored, although perhaps only four with any real vigour. Without going too much into the detail, the present review will concentrate on whether the inspector chose the wrong option. 4. Mr de Brabander has provided evidence as to the nature of the facility and the workforce. Relying on that evidence, Elgas has put forward five reasons why it asserts there is a serious question to be tried. They are: 1. placing operators who are directly employed by the applicant in a different workgroup from operators who are engaged through a contractor is arbitrary and will result in different representation for workers who are performing the same functions; 2. placing one out of three maintenance and engineering workers into one workgroup which is separate from the other two maintenance and engineering workers will result in different representation for workers who are performing the same or similar functions; 3. the decision has failed to determine a workgroup for two of the three maintenance and engineering workers resulting in no HSR representation for those two workers; 4. the decision has failed to determine the number of HSRs for each workgroup, resulting in uncertainty as to how to implement the decision; and 5. the division of this small workforce of 14 employees into three workgroups will undermine an approach to the management of health and safety which has regard to the totality of the operations of this small and integrated worksite. 1. To put those five contentions into context, I note the following evidence given by Mr de Brabander. He deposes at par 22 of his affidavit that the worksite is a small one with a total of 20 workers that work together and move throughout the site. He concludes as follows: "25. I am concerned that the introduction of multiple workgroups on-site will have an adverse impact on the management of health and safety matters at the Worksite. This is a small worksite of 20 people, all of whom move around the site regularly and are affected by potential safety issues as well as having the capacity to impact on and help manage potential safety issues. 26. Any step which moves away from a whole-of-site approach to health and safety and focusses in on health and safety by reference to one part of the Worksite will undermine the whole-of-site approach to safety which is currently in place and allows us to achieve high levels of health and safety performance." 1. Based on the evidence and submissions that have been put forward by Elgas, I am satisfied that there is a serious question to be tried as to whether the option chosen by the inspector was the correct one for this site. I hasten to add that, at this stage, I only indicate that there is a serious question to be tried. That is not to say that the application is necessarily destined for success. 2. In relation to the balance of convenience, Elgas relies primarily upon two arguments. The first is that there is no pressing need for the implementation of the decisions, as safety on site is currently well regulated and that a delay in the implementation of the decisions will have no adverse effect on site safety. Once again, Mr de Brabander has given evidence of the existing work health and safety consultation arrangements on site, including by Elgas holding monthly health and safety meetings with the workers. Other evidence was put forward which suggests that Elgas enjoys a reasonably good relationship with SafeWork NSW. 3. Second, Elgas submits that the implementation of the decisions would have the effect of creating a risk by undermining the management of work health and safety at the worksite. Mr de Brabander has given evidence that steps have been taken by some workers at the worksite to give effect to the decision by organising elections of HSRs. These elections were for two HSRs in one of the workgroups. Elgas submitted: "This situation will create confusion and division in which some workers have the mechanisms to engage in the process of electing HSRs and others do not. In a small and integrated area such as the Worksite where workers in different groups interact with each other regularly and where the integrated approach to the management of safety issues has been effective in the past, the introduction of a change which undermines the current approach to the management of health and safety which has regard to the totality of the operations of this small and integrated worksite should be avoided." 1. Clearly, this passage is drawn from the evidence of Mr de Brabander to which I have already referred. 2. There is nothing before me to indicate that any delay in the implementation of the inspector's decision would create any health and safety risks for workers at the site, which in these sorts of proceedings are obviously my paramount consideration. I am satisfied that the balance of convenience favours the granting of the stay. In the circumstances, it is appropriate that orders under s 229(3) be made and in forming that view I am cognisant that SafeWork NSW does not oppose the application which is before the Commission. 3. For these reasons I make the following orders: 1. The operation of the decision by Daniel Leo, SafeWork NSW Inspector, dated 23 September 2021 be stayed in accordance with s 229(3) of the Work Health and Safety Act 2011 (NSW) pending the outcome of the application for external review filed on 11 November 2021. 2. The operation of the internal review determination made by Rod Kammel, Reviewable Decisions Coordinator of SafeWork NSW, dated 28 October 2021 be stayed in accordance with s 229(3) of the Work Health and Safety Act 2011 (NSW) pending the outcome of the application for external review filed on 11 November 2021. Damian Sloan Commissioner