Byrne Demolition Pty Ltd v SafeWork NSW [2019] NSWIRComm 1008

Industrial Relations Commission New South Wales Medium Neutral Citation: Byrne Demolition Pty Ltd v SafeWork NSW [2019] NSWIRComm 1008 Hearing dates: 26 November 2018 Date of orders: 06 February 2019 Decision date: 06 February 2019 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: Order that: (1) The external review is upheld (2) Prohibition Notice 60196 is revoked Catchwords: WORK HEALTH AND SAFETY – Prohibition Notice – confirmed on internal review – external review – reasonable belief Legislation Cited: Work Health and Safety Act 2011 Work Health and Safety Regulation 2017 Cases Cited: Simon Anthony Green Wilkeen Pty Ltd T/as Razorback Glass v SafeWork NSW [2018] NSWIRComm 1074 Category: Principal judgment Parties: Byrne Demolition Pty Ltd (Applicant) SafeWork NSW (Respondent) Representation: Counsel: Mr I Latham (Applicant) Ms M Carpenter (Respondent)

Solicitors: KP Carmody & Co (Applicant) Ms A Wong, Department of Finance, Services and Innovation (Respondent) File Number(s): 2018/00170279

DECISION 1. The applicant, Byrne Demolition Pty Ltd ("Byrne"), has made an application pursuant to section 229 of the Work Health and Safety Act 2011 ("WHS Act") for review of a decision by Daniel Galea, an inspector with SafeWork NSW, to issue Byrne with a Prohibition Notice pursuant to section 195 of the WHS Act on 13 March 2018. 2. Section 195 of the WHS Act is in the following terms: 195 Power to issue prohibition notice (1) This section applies if an inspector reasonably believes that: (a) an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, or (b) an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard. (2) The inspector may give a person who has control over the activity a direction prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied. (3) The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the person as soon as practicable. 1. Section 229 of the WHS Act is in the following terms: 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. A typed version of Prohibition Notice 60196, which was issued with respect to demolition work which was being undertaken by Byrne at 166 Brisbane Street, Dubbo, in western New South Wales, and which was tendered into evidence without objection, contained the following: Details of serious risk: Site location: 166 Brisbane Street, DUBBO NSW, 2830 I, Daniel Galea reasonably believe on 13/03/2018 at 3:20:00PM that an activity is occurring at the workplace that involves a serious risk to the health or safety of a person emanating from an immediate exposure to a hazard and that this activity is contravening, a provision of the Work Health and Safety Act 2011, section 19 and Work Health and Safety Regulation 2017, clause 78. I direct the person with control over the following activity of: Working at heights removing asbestos sheeting stop the carrying on of the activity in the following way To stop all high-risk construction work were a person can fall more than 2 metres on this site. until an inspector is satisfied that the following matters that give rise to the risk have been remedied. Basis for inspector's belief: Workers/Other persons are exposed to a serious risk to their health or safety as there is no system in place to prevent a person falling: - Over 3 metres to the ground from the roof of the building at 166 Brisbane Street Dubbo NSW 2830. Directions on the measures to be taken to remedy the risk, activities or matters or the contravention or likely contravention: (it is mandatory to comply with these directions) 1. You must eliminate the risk of falls from the roof of the building, where this is not reasonably practicable you must minimise the risk of falls as far as is reasonably practicable by providing a safe system of work which complies with clause 79 of the Work Health and Safety Regulation 2017. 2. You must before carrying out any further high risk construction work at the workplace where a person can fall more than 2 metres ensure that a safe work method statement is prepared for this work. 3. When this direction has been completed contact the Inspector who issued this notice who will determine compliance. 1. The original handwritten Prohibition Notice contained the following notation by Mr Galea: "Complied 8.44am 14-3-18". 2. Regulations 78 and 79 of the Work Health and Safety Regulation 2017 are in the following terms: 78 Management of risk of fall (1) A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person. Note. WHS Act—section 19 (see clause 9). (2) Subclause (1) includes the risk of a fall: (a) in or on an elevated workplace from which a person could fall, or (b) in the vicinity of an opening through which a person could fall, or (c) in the vicinity of an edge over which a person could fall, or (d) on a surface through which a person could fall, or (e) in any other place from which a person could fall. (3) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that any work that involves the risk of a fall to which subclause (1) applies is carried out on the ground or on a solid construction. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (4) A person conducting a business or undertaking must provide safe means of access to and exit from: (a) the workplace, and (b) any area within the workplace referred to in subclause (2). Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (5) In this clause, solid construction means an area that has: (a) a surface that is structurally capable of supporting all persons and things that may be located or placed on it, and (b) barriers around its perimeter and any openings to prevent a fall, and (c) an even and readily negotiable surface and gradient, and (d) a safe means of entry and exit. 79 Specific requirements to minimise risk of fall (1) This clause applies if it is not reasonably practicable for the person conducting a business or undertaking at a workplace to eliminate the risk of a fall to which clause 78 applies. (2) The person must minimise the risk of a fall by providing adequate protection against the risk in accordance with this clause. Maximum penalty: (a) in the case of an individual—$6,000, or (b) in the case of a body corporate—$30,000. (3) The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including by: (a) providing a fall prevention device if it is reasonably practicable to do so, or (b) if it is not reasonably practicable to provide a fall prevention device, providing a work positioning system, or (c) if it is not reasonably practicable to comply with either paragraph (a) or (b), providing a fall arrest system, so far as is reasonably practicable. Examples. 1 Providing temporary work platforms. 2 Providing training in relation to the risks involved in working at the workplace. 3 Providing safe work procedures, safe sequencing of work, safe use of ladders, permit systems and appropriate signs. Note. A combination of the controls set out in this subclause may be used to minimise risks, so far as is practicable, if a single control is not sufficient for the purpose. (4) This clause does not apply in relation to the following work: (a) the performance of stunt work, (b) the performance of acrobatics, (c) a theatrical performance, (d) a sporting or athletic activity, (e) horse riding. Note. Clause 36 applies to the management of risk in relation to this work. (5) In this clause, fall prevention device includes: (a) a secure fence, and (b) edge protection, and (c) working platforms, and (d) covers. 1. On 25 March 2018, Byrne lodged an application with SafeWork's Governance and Appeals Unit for an internal review of the decision to issue the Prohibition Notice, pursuant to Part 12, Division 2 of the WHS Act. The letter setting out the outcome of that internal review was provided to Byrne on 1 May 2018 and included the following: Prohibition Notice 60196 6. The basis for the inspector belief to issue prohibition notice 60196 was that "Workers/Other persons are exposed to a serious risk to their health and safety as there is no system in place to prevent a person falling over 3 metres to the ground from the roof of the building at 166 Brisbane Street Dubbo NSW 2830." 7. Inspector clearly identified that the risk of fall was present due to the "harness that was attached to a long rope that would not prevent a person hitting the ground as the rope was so long." 8. Evidence provided by the inspector supports the Inspectors reasonable belief that the system used would not prevent a fall from one level to another. 1. The application presently before the Commission was filed by Byrne on 15 May 2018 and came before the Commission for hearing on 26 November 2018.