New South Wales Nurses and Midwives’ Association v Mid North Coast Local Health District (WHS Right of Entry Dispute) [2023] NSWIRComm 1099

Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Nurses and Midwives' Association v Mid North Coast Local Health District (WHS Right of Entry Dispute) [2023] NSWIRComm 1099 Hearing dates: 30, 31 August 2023 and 14 September 2023 Date of orders: 6 October 2023 Decision date: 06 October 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: (1) Mid North Coast Local Health District is to provide copies of the following documents to Ms Megan May and Ms Zoe-Anne Guinea within 14 days of the date of these orders: (a) the most recent Security Improvement Audit and resultant Security Improvement Plan for the Coffs Harbour Acute Mental Health Unit (CHAMHU) and Coffs Harbour Community Mental Health (CHMH), and the policies and procedures relating to risk assessments conducted and how controls are determined, provided that the names or other details of any employees contained in those documents shall be redacted; (b) to the extent they are able to be produced by running an existing report or reports in a database and exporting that report or reports to a spreadsheet or other suitable software program, VPM/PMVA training records for nursing staff of the CHAMHU and CHMH for a period of 12 months prior to the 8 November 2022, including dates of training, mode of delivery, each training component, and number of employees who have not completed the training, with staff names redacted; (c) daily allocation sheets for the CHAMHU for the six months prior to 8 November 2022, with staff names, patient names/numbers, and other patient and health information redacted; (d) the risk register applicable to the CHAMHU and in place at the time of entry, that is, 8 November 2022, to the extent it has any information relating to the risks of being physically injured by violent and aggressive patients and of psychological injury, with employee names, titles and email addresses redacted; (2) The Amended Application for orders under s 142 of the Work Health and Safety Act 2011 (NSW) is otherwise dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — WORK HEALTH AND SAFETY – Rights of WHS entry permit holders to inspect and make copies of documents pursuant to ss 118(1)(d) and 120(2) – Orders sought pursuant to s 142(3) of the Work Health and Safety Act 2011 (NSW) for the production of documents – Whether WHS entry permit holders reasonably suspected that a contravention of the Work Health and Safety Act 2011 (NSW) had occurred or was occurring and whether they entered the workplace for the purpose of inquiring into a suspected contravention - Effect of failure to comply with notice requirements stipulated in ss 120(3) and 120(4) and reg 29 of the Work Health and Safety Regulations 2017 (NSW) - Extent of particulars of contravention required in a Notice of Entry – Relevant PCBU not required to create bespoke documents in order to comply with ss 118(1)(d) or 120(2) – Whether documents sought under s 118(1) (d) were kept at, or were accessible from a computer that is kept at, the workplace – Where disclosure of documents could contravene the Privacy and Personal Information Protection Act 1998 (NSW) and/or the Health Records and Information Privacy Act 2002 (NSW) – Whether documents requested were directly relevant to a suspected contravention – Whether the Commission should exercise its discretion and not make orders requiring production of documents – limited orders for production made Legislation Cited: Fair Work Act 2009 (Cth), ss 494, 501, 502, 518 Health Records and Information Privacy Act 2002 (NSW), s 6, Sch 11, Item 11 Industrial Relations Act 1996 (NSW), s 163 Interpretation Act 1987 (NSW), s 3(3) and Sch 4 Privacy Act 1988 (Cth), s 6 Privacy and Personal Information Protection Act 1998 (NSW), ss 3(1), 4, 18, 25 Work Health and Safety Act 2011 (NSW) ss 3, 4, 8,17,19,117 – 147 Work Health and Safety Act 2011 (Qld) Work Health and Safety Regulation 2017 (NSW), regs 27, 28 and 29 Work Health and Safety Regulations 2011 (Qld), reg 27 Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570 Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; 251 FCR 470 Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065; 280 IR 47 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Primo Foods Pty Ltd; Primo Foods Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch [2023] NSWIRComm 1076 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd & Anor [2017] NSWIRComm 1000 Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] QIRC 188 Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] ICQ 15 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 National Tertiary Education Industry Union v Central Queensland University [2009] FWA 780 Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305 R v Rondo [2001] NSWCCA 540; 126 A Crim R 562 Ramsay v Menso [2018] FCAFC 55; 260 FCR 506 Ramsay v Sunbuild Pty Ltd [2014] FCA 54 Texts Cited: Macquarie Dictionary, online edition, 2023 Category: Principal judgment Parties: NSW Nurses and Midwives' Association (Applicant) Mid North Coast Local Health District (Respondent) Representation: Counsel: M Gibian SC (Applicant) D Fuller (Respondent) Solicitors: Minter Ellison (Respondent) File Number(s): 2023/138770 Publication restriction: Nil