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

Industrial Relations Commission New South Wales Medium Neutral Citation: Chit Chit Than v SafeWork NSW & Anor [2023] NSWIRComm 1122 Hearing dates: 8-9 May 2023; 4 August 2023. Last submissions filed 18 August 2023. Date of orders: 22 December 2023 Decision date: 22 December 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: The decision arising from an internal review request by Ms Than undertaken by Ms Joanne Cocks, SafeWork NSW, dated 30 September 2022, which confirmed the original decision of Inspector Farmer to cancel the provisional improvement notice issued by Ms Than, issued 27 June 2022, is confirmed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW - work health and safety – cancellation of provisional improvement notice – external review – principles to the approach of the review – point of time for review – whether inspector on review of a provisional improvement notice has a general discretion to cancel, vary or confirm – Commission may consider contemporaneous factual circumstances in an external review – the LHD's compliance with provisional improvement notice is relevant to the Commission's exercise of discretion – improvement notice issued at the time of the cancellation of the provisional improvement notice is relevant to the Commission's exercise of discretion – variation sought would be significant departure from the provisional improvement notice - decision to confirm the internal reviewers decision to confirm the cancellation of the provisional improvement notice Legislation Cited: Administrative Appeal Tribunal Act 1975 (Cth) s 43 Industrial Relations Act 1996 (NSW) ss162, 163 Mental Health Act 2007 (NSW) Ch3 Pt 2 Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 78, Schedule 3 cl 9 Work Health and Safety Act 2011 (NSW) ss 3, 17- 19, 90, 93, 99-102, 152, 160, 191-194, 223, 224, 226, 228, 229 Work Health and Safety Regulation 2017 cl 38 Cases Cited: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (on behalf of its member Mick Amarasinghe) and WorkCover Authority of New South Wales [2012] NSWIRComm 143 Frugtniet v Australian Securities and Investments Commissions (2019) 266 CLR 250 George v Rockett [1990) HCA 26; (1990) 170 CLR 104 Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002 Killen v SafeWork NSW and NSW Rural Fire Service (No 3) [2022] NSWIRComm 1017 NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4; (2016) 257 IR 467 R v Australian Broadcasting Tribunal exparte Hardiman [1980] HCA 13; (1980) 144 CLR 13 Razorback Glass v SafeWork NSW [2018] NSWIRComm 1074 Safework NSW v Lipman Pty Ltd [2023] NSWIRComm 1034 SafeWork v Buddco (2022) NSWDC 549 Sedco Forex International Inc v NOPSEMA [2016] FWCFB 2066 Shi v Migration Agency Registration Authority [2008] HCA 31; (2008) 235 CLR 286 Somerville v Chief Executive of Office of Environment and Heritage [2020] NSWCCA 93 Sydney Trains v SafeWork NSW [2017] NSWIRComm 1009; (2017) 266 IR 276 Transport Workers' Union of Australia, New South Wales v SafeWork NSW [2022] NSWIRComm 1050 Category: Principal judgment Parties: Chit Chit Than (applicant) SafeWork NSW (first respondent) Hunter New England Local Health District (second respondent) Representation: Counsel: L Saunders (applicant) M Moir (first respondent) D Fuller (second respondent) Solicitors: MinterEllison (second respondent) File Number(s): 2022/307331 Publication restriction: Nil