Industrial Relations Commission New South Wales Medium Neutral Citation: Simon Anthony Green Wilkeen Pty Ltd T/as Razorback Glass v SafeWork NSW [2018] NSWIRComm 1074 Hearing dates: 19 November 2018 Date of orders: 26 November 2018 Decision date: 26 November 2018 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC Decision: Order that: (1) The external review is upheld. (2) The decision on internal review is revoked. (3) Improvement Notice 7–328779 is revoked Catchwords: WORK HEALTH AND SAFETY – improvement notice – confirmed on internal review – external review – contravention admitted – work ceased - new systems immediately introduced - delay before issuing improvement notice – existence of reasonable belief that contravention will continue or be repeated Legislation Cited: Work Health and Safety Act 2011 (NSW) 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 George v Rockett (1990) 170 CLR 104 Growthbuilt v SafeWork NSW [2018] NSWIRComm1002; 274 IR 317 NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4; 257 IR 467 Sydney Trains v Safework NSW [2017] NSWIRComm 1009; 266 IR 276 Category: Principal judgment Parties: Simon Anthony Green Wilkeen Pty Ltd T/as Razorback Glass (Applicant) SafeWork NSW (Respondent) Representation: Solicitors: Christopher White Director, Legal Department of Finance, Services and Innovation File Number(s): 2018/00185757 Judgment 1. This is an application for an external review under s 229 of the Work Health and Safety Act 2011 (NSW) (the "WHS Act"). The applicant accepts that a contravention occurred but seeks revocation of an improvement notice issued under s 191 of the WHS Act. Evidence 1. For the applicant, a statutory declaration of its principal, Mr Simon Green was read. Mr Green stated: 1. this is the first improvement notice ever issued to the applicant; 2. a new system had been put in place by the applicant whereby every new employee is fully inducted and trained on all areas of safety; 3. the applicant "had an extremely good previous work safety record"; 4. the applicant is continually conducting Tool Box talks to always improve its safety standards. 1. From the bar table Mr Green, who appeared on behalf of the applicant, also asserted: "Measures by the company were immediately put in place to try and prevent this from happening again with Safework methods, statements and employee education. I would personally like to say that I've been working in the building industry for 35 years and this is the first improvement notice that I've personally received as a small business employer of 18 years it is the first improvement notice. So we do, as a company and personally, pride ourselves on safe work and conducting continual audits, ongoing employee training of safety measures. … Just to clarify what happened on that day, I received a phone call about the incident immediately and‑‑ HIS HONOUR: From whom? APPLICANT: From my employee on the site, the tradesman on the site. My immediate instruction was to stop using the scaffold and dismantle it until appropriate measures were put in place, educating the guys on use and access to the scaffold and those measures were taken. … There's no real questions in that we fully accept guilt on this occasion. As I repeat immediate measures were taken by the company to overcome them and hopefully ongoing training. 1. Mr Green was not required for cross-examination and his assertions from the bar table on questions of fact were not traversed. 2. The respondent led evidence from Inspector Michael Kent. In his affidavit the Inspector stated that on Friday, 27 April 2018 he had received information alleging contraventions of the WHS Act at a construction site at Penrith. He attended the site later that day but found no evidence of the alleged contravention. 3. During his inspection, and unrelated to the information which took him to the site, the Inspector observed a worker working on a mobile scaffold. He saw that the scaffold was missing handrails and mid-rails. He asked the worker to come down from the scaffold and saw that worker climb over the end of the scaffold. There was no internal ladder permitting access to and from the scaffold. 4. The Inspector identified himself and spoke to the worker. He obtained the worker's name, contact details, and details of his employment. He then spoke to another worker who identified himself as an employee of the applicant and said that he had directed the first worker to use the scaffold. 5. Inspector Kent then took measurements of the height of the scaffold and formed the view that it did not have an adequate system to manage the risk to health and safety associated with a fall from one level to another. He also concluded that the worker was at risk of falling a minimum of 2.4 m to the concrete path below. 6. As a result of his observations and assessment of risk the Inspector, as he deposed: "formed the view that section 19 of the WHS Act, and clause 79 of the [Work Health and Safety] Regulation [2017] had been contravened and would continue to be contravened without remedial action being taken." (Emphasis added) 1. The Inspector issued, on Monday, 30 April 2018, Improvement Notice 7 – 328779. He returned to the site on 1 May 2018 to undertake a follow-up inspection. He saw no Razorback Glass workers, or the subject scaffolding, on the site. He formed the view, and duly reported, that there had been compliance with the Improvement Notice. 2. On 3 May 2018 the Inspector issued a penalty notice to the applicant imposing a penalty of $3600. I observe in passing that these proceedings do not involve a consideration of the penalty notice. If the applicant wishes to challenge the imposition of that penalty that will need to be done through an appropriate court proceeding. 3. The Inspector was not required for cross-examination. I was concerned, however, that there did not appear to be, in the evidence before the Commission, any material supporting that part of the inspector's conclusions emphasised in [10]. That part of his conclusions seemed to be at odds with the evidence and assertions of Mr Green as to the immediate introduction of systems to avoid repetition. Ms Bramley, solicitor, who appeared on behalf of the respondent, sought leave to ask additional questions of the Inspector. Mr Green did not object. 4. The following evidence was then led: "Q. Can you tell the Court what you made you think that the contravention that you'd seen on that day was likely to be continued or repeated? A. The fact that they were using the scaffold, he was unsupervised, he was a young worker. It ‑ I just formed the opinion if I didn't write a notice they would continue to use the scaffold in similar situations. Q. Did you make any inquiries in relation to that point? A. Not that I recall. Q. Can you explain how you formed the belief that was to continue? Did you know the work was to continue? Did you speak to the workers about how they had previously been‑‑ A. The work wasn't finished, because from what I observed I observed that the young chap was working up there. I asked him to come straight down, so he stopped and came down. So I assumed the work wasn't finished and I assumed that they would possibly use the scaffold again, once I'd left the site." (Emphasis added) 1. The Inspector was then asked some questions about the contravention. I then asked some questions about his investigations. In particular whether he had any further conversations with the workers. He said: "A. I think they said they'd lay the scaffold ‑ "we're going to climb up the scaffold and start altering". I said, "You can't do that because you'll put yourself at risk again." Then they said that they'd lay it down and do some work on it. And I said, "Fine" and left the site. I went to find the builder, I think. Q. They indicated to you that they would attempt to remedy the scaffold to make it safe? A. Yes. Q. And you accepted that? A. Well, I left the site ‑ well, I didn't leave the site, sorry, I went to find the builder to talk to the builder about the issue. Then I came back to make sure that it wasn't being done again, but I can't remember ‑ sorry, what was the question again? Q. You were satisfied that they were going to remedy the [scaffold] to make it safe? A. I don't wish to sound cynical but I've been doing this job for a long time, so I must ‑ please give me a little bit of leeway here ‑ but unless you see it you don't believe it. So every time that I have an issue on a workplace I always go back and reinspect it to make sure that they are not contravening or continuing to contravene. So I went ‑ from memory ‑ I went to the builder, I had a discussion with the builder and I came back pass it because my car was parked not far from there. So I went and checked that the scaffold ‑ from memory it wasn't there, but I don't know if they had finished the work or not because they weren't there. … Q. I understand the basis of your formation of the belief of the contravention. What I'm troubled about is the basis of your belief that they would continue to contravene. A. Well, the scaffold wasn't there, so I don't know, but I based it on experience, a long time in this job that if there isn't some form of notice people will continue, because that's the way it happens." (Emphasis added) 1. The Inspector, in response to further questions from Ms Bramley, added that he formed the view that the workers did not fully appreciate the risk to health and safety and that his experience led him to believe that the behaviour would continue if he did not issue a notice. He accepted that the improvement notice was not issued until the following Monday. He did not issue a notice of any kind on the Friday. When last he passed the site there was no sign of the workers or the scaffold. The Legislation 1. Relevant provisions of the WHS Act are: 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 or from specified types of substances or plant, … (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 … (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 or from specified types of substances or plant as is reasonably practicable. 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. 229 Application for external review (1) An eligible person may apply to the Industrial Relations Commission for review (an external review) of: (a) a reviewable decision made by the regulator, or (b) a decision made, or taken to have been made, on an internal review. (2) The application must be made: (a) if the decision was to forfeit a thing (including a document), within 28 days after the day on which the decision first came to the applicant's notice, or (b) in the case of any other decision, within 14 days after the day on which the decision first came to the applicant's notice, or (c) if the regulator is required by the Industrial Relations Commission to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided. (3) The Industrial Relations Commission may stay the operation of a decision that is the subject of an external review pending a decision on the review. (4) The Industrial Relations Commission may, on an external review, confirm, vary or revoke the decision concerned. 1. It is apparent that the Inspector relied upon s 191(1)(b) in issuing the improvement notice. That paragraph requires satisfaction to the level of reasonable belief as to two matters: 1. whether a contravention has occurred; and 2. whether circumstances exist which make it likely the contravention will continue or be repeated. 1. The evidence of the inspector and the admission on behalf of the applicant establish the first matter. The second is the subject of consideration below. 2. No issue arises as to the Commission's jurisdiction under s 229. Ms Bramley acknowledged that a decision had been made confirming the decision of the inspector following an internal review and the application made to the Commission was within time. The Authorities 1. In Sydney Trains v Safework NSW [2017] NSWIRComm 1009; 266 IR 276 Commissioner Newall held at [28]: "Consistent with the conduct of a de novo hearing, I proceed on the basis that the Commission is to come to the decision that it thinks correct and preferable in relation to the initial decision made by the inspector. That will in practical terms mean that the Commission decides the issue between the parties agitated under, in this case, s 72 of the Act. I now turn to that section." 1. Similar formulations were applied by Staff J in 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 at [50]; and by me in NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4; 257 IR 467at [70]; and in Growthbuilt v SafeWork NSW [2018] NSWIRComm1002; 274 IR 317 at [34] – [36]. 2. Also in Growthbuilt I held that: 1. at [55], the test of "reasonable belief" was objective in relation to s 195 of the WHS Act; 2. at [57], the test requires the existence of facts "which are sufficient to induce that state of mind in a reasonable person": applying George v Rockett (1990) 170 CLR 104; 3. at [95], while an Inspector is not required to undertake a full investigation there is a requirement to make reasonable inquiries to establish or clarify the facts; and 4. at [96], "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." 1. I see no reason to depart from these conclusions in relation to s 191 of the WHS Act. The respondent accepted the authority of Growthbuilt applied. Consideration 1. The issue in this case is whether circumstances existed to permit the formation of a reasonable belief that the contravention would continue or be repeated. With the greatest respect to the Inspector I think not. 2. Once the Inspector drew the attention of the workers to the contravention they readily accepted his views and set about remedying the situation. While their first suggestion was rejected by the Inspector their second was accepted. He was sufficiently satisfied that he left the scene to speak to the builder without issuing any notice, either prohibition or improvement. When he returned the workers and the scaffold had gone. 3. At the time of issuing the notice, three days later, the Inspector had no information as to whether the applicant was continuing to perform work at the site or, if it was, how it was doing that work. He made no inquiries of the principal of the applicant either on the Friday or the Monday before issuing the notice. Lest it be thought that the Inspector may have been concerned about activities of the applicant at other sites, it should be noted that the Inspector was sufficiently satisfied by the absence of the workers and the scaffold on his follow-up visit on 1 May to record compliance with the notice. That indicates he was not concerned about other sites. Moreover it indicates that his knowledge of the state of affairs at the time he issued the notice was the same as when he recorded compliance with it. 4. I accept that the Inspector has many years of experience and it is appropriate to apply that experience in the execution of his duties. The experience, however, must be applied to evaluate the information before him. It is not reasonable to apply a "one size fits all" approach. 5. In this case the applicant had operated in the industry for 18 years. The applicant's principal had worked in the industry for 35 years. Neither had a record of prior contraventions. As Mr Green put it, they had an excellent safety record. That is a vastly different proposition to someone who is known to the Inspector, or the regulator, to have a prior record of non-compliance. 6. Moreover the workers were readily and immediately cooperative and compliant with the requests and suggestions of the Inspector. When he returned, "to make sure they [were] not contravening or [continuing] to contravene", he found that the workers and the scaffold were gone and therefore there was no evidence they were continuing to contravene. 7. As I have already observed, that was exactly the situation that allowed him to conclude that there had been compliance with the notice. 8. I find that the circumstances known to the Inspector or reasonably discoverable by him did not permit the formation of a reasonable belief that made it likely that the contravention would continue or be repeated. Orders 1. I make the following orders: 1. the external review is upheld. 2. The decision on internal review is revoked. 3. The decision to issue Improvement Notice 7- 328779 is revoked ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2018