Byrne Demolition Pty Ltd v SafeWork NSW

Industrial Relations Commission (NSW)|2018-11-26

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

DECISION

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.
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.

Case for Byrne

Byrne relied upon the following written outline of submissions: Reasonable belief 5. While the sections have only been examined on occasion, the law as to reasonable belief is relatively settled. As the Chief Commissioner held in Growthbuilt: The issue for determination as identified by both advocates, was whether the Inspector had a "reasonable belief" as required by s 195 (1) of the Act on which to base his decision to issue the Prohibition Notice. Again, it was common ground that it is not a question of whether I, as external reviewer, would have formed that belief. Moreover, the question in this case is not whether the Inspector held a belief but whether such a belief was reasonable in the circumstances. 6. The test in George v Rockett applies that is to say: When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. The test of reasonable belief is objective. 7. An inspector is however required to balance the objective information available to him, and is obliged to make reasonable inquiries ...The Inspector is not bound by the responses but must take them into account in forming his view. 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. The exercise of the discretion 8. Section 195 clearly involves the exercise of a discretion. There is no express or implied limitation upon the power of the Commission to deal with the exercise of that discretion. 9. Relevant to the exercise of the discretion are the scope and object of the statute. Section 3 of the Act states that (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: ... (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 10. It appears clear that the discretion must be exercised appropriately. It would not be appropriate to exercise the discretion capriciously, disproportionately or unreasonably. 11. While the power to re exercise the discretion clearly exists, the Commissioner will not have to exercise that power if the Commission makes a finding that the Inspector did not have a reasonable belief. The nature of the hearing 12. The nature of the hearing is more unsettled. Section 229 provides little guidance as to the exercise of the power. The external review is an administrative merits review to be undertaken following the normal arbitral processes of the Commission. While the reasons for decision on the internal review would be relevant and accorded due weight the Commission is intended to make a decision based on all the material before it at the date of the decision. Given the nature of administrative review, there is no onus of proof and the respondent normally runs their case first. 13. There is an unresolved question as to whether it is necessary to show error in the decision of the Inspector before the Commission may confirm, vary or revoke the decision concerned. That question is answered only by the nature of the review undertaken. The meaning of review is taken from the context in which it appears. However, as Cmr Newall stated in Sydney Trains at [11]: "The nature of the external review proceedings is left to conjecture; that is, is such a review an administrative review or a de novo merits review? And if the Commission is indeed at large on external review, how is it that its powers are notionally limited to confirmation, revocation or variation of the internal review decision?" 14. The Commissioner went on to find that the hearing was a de novo hearing at [23]. As the Commissioner rightfully held at [23] - [24], that would indicate that the Commission is at large. That power would be contrary to the requirement to find error (as is generally the case in an appeal). 15. The issue is important in the sense that if the hearing is de novo; then the result of the internal review is of no relevance to the external review: see Sydney Trains at [25] and [26]. 16. That intriguing question as to whether error needs to be found does not need to be answered here given the clear errors made by the Inspector. What will the evidence show 17. The evidence will show that the prohibition notice was not based upon a reasonable belief that there was a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard. The evidence will show that the harness system had eliminated the risk. The evidence will show that the discretion to issue the notice was not exercised appropriately. The prohibition notice should not have been issued. 18. There is one further issue. There was a second inspector at the site. He has not been called to give evidence. The Applicant asks the Commission to make the inference arising under Jones v Dunkel. The meaning of this inference was explained in Manly Council in this way: "Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn." 19. The applicant seeks the following orders: (i) The external review is upheld. (ii) The decision to issue Prohibition Notice 60196 is revoked.
John Byrne, the sole director of Byrne, affirmed an affidavit which was tendered into evidence. It contained the following: 5. On 13 March 2018 in the late afternoon I was on site at 166 Brisbane Street, Dubbo when I observed two persons come up to the gate where I was standing observing a workman, Troy Loader, on the roof of the building at the site, removing asbestos sheeting from the gable end of the building. 6. I recognized one of the two persons to be from the Dubbo SafeWork NSW office but did not know the other person who started calling out in a very loud and demanding voice. He appeared to be directing his voice towards Troy shouting "come down from there" a number of times. Neither of these persons identified themselves nor were they wearing SafeWork identifying clothing. Troy commenced to come down off the roof. I observed that he used the brake to let him move from the point where he was working on the roof to the ladder leaning on the side of the building. 7. Troy was wearing an approved harness which was attached to a length of safety rope via a carabiner. There was a certain amount of working slack. I observed him come a distance of approximately 2 metres towards the ladder and then activate the brake release. I saw him use his hand to activate the brake release at this point and further on as he moved towards the ladder. 8. When he reached the ladder I saw him remove the brake and rope from his harness. 9. I then walked to the ladder to 'foot' it so as to stablise it as Troy descended the ladder. My understanding and practice that this is used extensively through the building industry. My understanding is that it is not necessary to tie off the ladder as long as it is supported whilst being used by a worker. 10. The person who I learnt to be Daniel Galea said to me "The reason I am visiting the site is that I have had a complaint regarding 'dodgy' demoliton and having to move a gold coloured car". I responded "That can't be true as demolition has not yet commenced". He then said "Who took the iron off" to which I replied "I don't know. It was off when we got here". We had started on the site the day before when we removed asbestos from the buildings to the rear of the building we were now working on. 11. Prior to Troy commencing work on the roof he and I had a 'tool box' talk. Coates Hire did not have a suitable Elevated Work Platform ("EWP") available I, as the Person Conducting Business ("PCBU"), formed the opinion that the work could be safely carried out by utilising an approved secure harness and safety rope fitted with a mechanical brake. Troy has been working with Byrne Demolition for the last 6 years and is experienced working with a harness and rope. I emphasised to him the necessity to not allow too much slack. I saw no issue due to the work area of a pendulum fall. I had also inspected the work site before hand and was aware that there were extensive ceiling timbers which would negate the chance of Troy falling through the roof structure directly to floor level. ……………………………….. 13. The rope was attached to a strap which was wrapped around a main roof timber… 14. After Troy had descended to the ground he came over to the two men who were still standing at the gate. From this point to where Troy had been working on the roof was at least 15 metres. 15. The inspector argued that harnesses were not legal to use. I responded that they are legal as long as the other alternative nominated was not available or practical. Inspector Galea was not taking extensvie notes whilst we were talking. I did not amend the Safe Work Method Statement ("SWMS") as I was of the opinion that the Tool Box Talk document in fact was the amendment… Inspector Galea asked where it was and I responded that it had been taken back to the motel by other workers who had already knocked off for the day. I offered for Troy to go and get it but the inspector declined.
Annexed to Mr Byrne's affidavit was a photo of taken by the SafeWork inspector of Troy Loader, an employee of Byrne, on the roof of the building being demolished, a photo taken by Mr Byrne of the exposed roof timbers and ceiling and a Byrne document entitled "Record of Tool Box Talk" dated "13.3.18" with some handwritten notations including "Harness required with spotter".
Mr Loader gave the following evidence: 4. On 13 March this year I was working for Byrne Demoliton on a site 166 Brisbane Street, Dubbo. 5. At about 3 pm on the above date I was working on the roof timbers removing a gable. I was secured by a harness which was attached to a rope which in tum was attached to the roof timbers. 6. The slack of the rope was restricted by the brake attached to the harness. The rope passed through the brake and as I required more slack I would adjust the brake. 7. At no stage was there more slack than two and one half metres. The fall to the ground directly underneath me was about 4 metres. The harness I was in was a cradle harness which means it would not have cut off my circulation. 8. It was almost impossible for me to fall straight through the roof because of the quantity and spacing of roof and ceiling timbers. The furtherest I could fall was one and one half metres to the ceiling timbers which were spaced 300 mm apart. 9. The inspector may have been confused by the tangled rope shown n the photo which was in fact the excess rope the other side of the brake. The rope was at least 30 metres. As I worked on the roof the excess became tangled. However, the rope was still attached to the roof timbers and to me as described above. 10. The distance between where the rope was attached to the roof and the facia line was about 4 metres. The fall to the ground from the facia line was about 3 metres. 11. I have seen the photos taken by the Workcover Inspector. The length of rope shown in that photo was the other side of the brake not the side which was fastened to the roof timbers… The rope was secured to the roof via a strap which is choked around the roof timber and the rope is fastened to the end of the strap by a carabia so that it cannot come undone or move… 12. I was asked to come down from the roof by the inspector who was on the ground about 7 metres from the building I was working on. He didn't indentify himself. 13. I lowered myself down by adjusting the brake… I am holding the brake in my left hand and manipulating it to give more slack on the rope. When I got to the ground he told me that harnesses are not to be used anymore. My employer John Byrne was there. He disagreed with the inspector regarding the lawful use of harnesses. The inspector said "you are liable for a fine individually and so is John's company. He left indicating no action would be taken but returned the next day with a prohibition notice. 14. Before I started the job John Byrne had a tool box meeting about the use of the harness emphasising not to allow too much slack. At no point did I feel at risk.
Annexed to Mr Loader's affidavit were two photos taken by the SafeWork inspector of Mr Loader on the roof wearing a harness.

Case for SafeWork NSW

SafeWork relied upon the following outline of submissions: The Respondent's Evidence 1. The evidence relied on by the respondent is: a) Affidavit of Inspector Daniel Galea sworn on 14 August 2018; b) Outcome letter dated 12 April 2018, sent to the applicant on 1 May 2018; c) Typed version of the Prohibition Notice 60196 (handwritten version is annexure "H" to Inspector Galea's affidavit); and d) Unsigned but legible version of Safe Work Method Statement (signed version is annexure "E" to Inspector Galea's affidavit). The Application for External Review 2. The Application is confined to the Prohibition Notice and does not seek external review in respect of two Improvement Notices. ………………………………. 5. The inspector issued the Prohibition Notice under s 195(1) of the WHS Act. The applicant bears the burden of proving, on the balance of probabilities, that the inspector did not have a reasonable belief that Mr Loader's work on the roof involved a serious risk to his safety emanating from an immediate or imminent exposure to a hazard. The Decision on Internal Review 6. The internal review determined that the inspector had a "reasonable belief that the system used would not prevent a fall from one level to another": Outcome letter, 12.4.18 at [8]. 7. This wording reflects that of cl 78(1) of the Work Health and Safety Regulation 2017 (WHS Regulation): 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... 8. Clause 78(3) provides: A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that any work that involves risk of a fall to which subclause (1) applies is carried out on a solid construction. 9. "Solid construction" is defined in cl 78(5). 10. The boom lift prescribed by the SWMS was such a solid construction. To balance on the roof trusses of a sloping roof is not to work on a solid construction. 11. The applicant says that it was not 'reasonably practicable' to hire a boom lift (Elevated Work Platform) on 13 March 2018. Mr Byrne says that Coates Hire in Dubbo did not have one available. He does not say when he made the enquiry of Coates Hire. Mr Byrne does not say whether or not he enquired of alternative hirers, such as Kennards in Dubbo or the Dubbo equipment hire business from which he hired the boom lift the next day. The fact that the applicant was able to hire a suitable boom lift the next day without apparent difficulty militates against a finding that it was not reasonably practicable to hire one the previous day. 12. The internal reviewer at [6] repeated the statement in the Prohibition Notice that "there is no system to prevent a person falling." Fall prevention is different from fall arrest. 13. The safety harness was part of a fall arrest system, which included the ladder, evacuation procedures, training and supervision. The inspector formed the belief that the fall arrest system in use was inadequate in the circumstances to eliminate the serious risk to safety. 14. The grounds for the Application are that the safety harness was "legal" and that the rope was not too long but "complied with applicable regulation" (unspecified). 15. A safety harness system (other than a system that relies entirely on restraint technique system) is included in the definition of "fall arrest system" in clause 5(1) of the WHS Regulation. Whether or not a particular harness system is adequate on any given site will depend on all the circumstances. 16. Under s 195 (1) (a) of the WHS Act, a prohibition notice may be issued if an inspector "reasonably believes" that the work on the roof involved "a serious risk to the health or safety" of the worker emanating from an immediate or imminent exposure to a hazard. 17. In short, the inspector believed that Mr Loader was working in a place where there was an immediate risk of his falling and that the safety harness was not adequate to eliminate that risk. 18. Even on the applicant's evidence, the harness was used by Mr Loader with up to 2.5 metres of "slack". This would not prevent him from falling through the roof trusses and crashing into the ceiling 1.5 to 2 metres below. The applicant's case is essentially that the rope would have prevented him from hitting the ground - even if he crashed through the ceiling plaster. The risk of injury in such an approach is obvious. 19. In terms of cl 79 of the WHS Regulation, it was 'reasonably practicable' to eliminate (or minimise) the risk of fall by using the boom work platform described in the applicant's own SWMS. Conclusion 20. The applicant has not demonstrated that the inspector lacked the requisite reasonable belief to issue a Prohibition Notice under s 195 WHS Act. The decision on the internal review that Mr Loader was at serious risk of falling between the roof trusses onto (at least) the ceiling level was clearly correct. 21. Pursuant to s 229(4) of the WHS Act, the Commission should confirm the decision made by the respondent on internal review.
SafeWork also relied upon an affidavit sworn by Mr Galea which contained the following: 2. On 13 March 2018, I attended a workplace located at 166 Brisbane Street, Dubbo in the State of New South Wales ("the workplace") together with Senior Inspector Todd Park. SafeWork NSW had, on 13 March 2018, received an anonymous complaint from a member of the public about workers working on the roof with the risk of falling and workers not wearing appropriate personal protective equipment ("PPE") at the site. 3. On 13 March 2018, Inspector Parks and I arrived at the workplace to investigate the complaint. We both wore orange high-visibility vests with a SafeWork NSW logo printed on the front of the vest. 4. As we arrived at the workplace I observed a worker, who I now know to be Troy Loader, standing on the top of roof trusses removing what appeared to be asbestos material. I could not see any other workers. 5. At this time, John Byrne walked out from the inside of the building at the site. I asked Mr Byrne what the name of the worker was and Mr Byrne stated, "Troy, do you want him to get down." 6. I observed that Mr Loader was using an individual fall arrest system ("fall-arrest system"). He was wearing a harness attached to a rope. The rope was attached to a timber roof batten which was the anchorage point ("the anchorage point"). I observed that that the approximate size of the roof batten was 50mm x 25mm. I observed that the roof batten was attached to the roof truss by nails. A copy of a photograph taken by me on 13 March 2018 is annexed to this affidavit and marked with the letter "A". The photograph shows Mr Loader standing on the roof. 7. Annexure A shows ceiling timbers on the roof. I observed that these ceiling timbers were attached to the plaster ceiling of the roof and had gaps of approximately 600mm apart. Based on my observations of the ceiling timbers, the plaster ceiling and the width of the gaps between the ceiling timbers, I believed that a person standing on the roof could fall through the gaps as I believed that the plaster would not support the weight of a falling person. 8. I am aware of, and have read, the SafeWork NSW Code of Practice Managing the Risk of Falls at Workplaces ("the Code") which provides practical guidance to persons conducting a business or undertaking, on how to manage health and safety risk arising from falls (Annexure B). The Code provides, on page 24, that anchorage points should comply with the requirements in AS/NZS 1891:4 Industrial fall-arrest systems and devices - selection, use and maintenance ("the Australian Standard")… 9. I am aware of, and have read, the Australian Standard, which provides that as far "as practicable, all single-point anchorages for single-person attachment should have an ultimate strength of 15 kilonewtons... " on page 25. I understand this to mean that the anchorage point should be able to hold up to 15 kilonewtons of mass. 15 kilonewtons is approximately 1,529.57 kilograms... Based on my observations of the anchorage point, the size of the roof batten and the timber material in which the roof batten was made of, I believed that the anchorage point would not be able to hold the weight of a falling person. 10. On 13 March 2018 I observed a ladder leaning against the building used to access the roof. I observed that the ladder was not secured to the building… The Code, on page 29, provides that ladders should be secured against displacement. The ladder should have been installed with the top attached to the building with rope or straps and the bottom of the ladder should also be secured into place. 11. During my inspection of the site I asked Mr Byrne to produce the Safe Work Method Statement ("the SWMS") for the asbestos removal work that was being done at the workplace. Mr Bryne provided me with a SWMS dated 12 March 2018. I took photographs of the SWMS… 12. I saw on page two of the SWMS that the hazards of "falling" and "working with heights" were identified for the task of removing asbestos roof sheeting ("the task"). The SWMS identified that the control measure to be implemented for the task was "An all-terrain knuckle boom will be used to access elevated asbestos roof sheeting." It appeared that the SWMS was signed by Mr Byrne and Mr Loader. I observed that the SWMS was not being followed as there was no knuckle boom lift at the workplace for Mr Loader to perform the task on 13 March 2018. 13. After observing Mr Loader's use of an individual fall-arrest system to perform the task, I had a conversation with Mr Byrne using words to the following effect: I said: "Why is there no other fall prevention being used?" Mr Byrne said: "There is no facility for a boom lift and it's not high enough for extender straps to put on the harness and stretch lanyards. It's too shallow to the ground to use a harness so we are using a harness that restricts movement to the edge of the building." I said: "Why are you not following the SWMS?" Mr Byrne said: "There is no area available to use the boom lift." I said: "So why didn't you amend the SMWS?" Mr Byrne said: "I'm lazy. Off the record, I forgot. It was an oversight. We did discuss it in a toolbox talk but the guys have gone back to the hotel room and they have it. Do you want me to call them to get a copy". I said: "No. A tool box talk isn't a Safe Work Method Statement." …………………………….. 15. On 13 March 2018, I had a conversation with Mr Loader using words to the following effect: I said: "Why didn't you follow the SWMS?" Mr Loader said: "Because I thought the safest way to do it was with a harness to stop me falling off and through the roof." I said: "Have you seen the SWMS?" Mr Loader said: "Yes. I signed it and read it yesterday at lunchtime." I said: "Do you have an emergency plan?" Mr Loader said: "No, we did talk about it." I said: "Have you done any working at heights training?" Mr Loader said: "No, just experience. I've been doing it for a few years." ……………………………….. 17. I am aware of clause 80(2) of the Work Health and Safety Regulation 2017 ("the Regulation") which requires an emergency procedure to be established, including rescue procedures, in relation to the use of a fall arrest system. 18. Annexure B, on page 26, provides that a person conducting a business or undertaking who implements a fall-arrest system as a control measure must establish emergency and rescue procedures. The Code provides that the rescue of a worker who is suspended in a full body harness must occur promptly to prevent suspension intolerance. Based on my conversation with Mr Loader and the lack of evidence of any emergency and rescue procedures, I believed that the fall-arrest system used on 13 March 2018 involved a risk to the health and safety of workers at the workplace. 19. Annexure B, on page 21, provides that users, including supervisors, should undertake a competency based training course in the use of a work positioning system that enables a person to work supported in a harness. 20. I am aware of clause 299 of the Regulation which requires a person conducting a business or undertaking that includes high risk construction work, to ensure that a SWMS for the proposed work is prepared or has been prepared by another person, before high risk construction work commences, 21. I am aware that clause 291 of the Regulation "High risk construction work" means construction work that involves a risk of a person falling more than 2 metres. 22. I am aware that clause 289 of the Regulation "construction work" means any work carried out in connection with the construction, alteration, conversion, fitting-out, commissioning, renovation, repair, maintenance, refurbishment, demolition, decommissioning or dismantling of a structure. 23. During my inspection of the workplace I formed the view that the continued work on the roof involved a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, which was falling over 3 metres to the ground from the roof of the building at the workplace. 24. I formed the view that the serious risk emanated from an immediate exposure to a hazard and that the activity was contravening section 19 of the Work Health and Safety Act 2011 and Clause 78 of the Work Health and Safety Regulation 2017. 25. I issued Prohibition Notice 60196 ("the Notice) on Byrne Demolition Pty Ltd while still at the workplace and handed the notice to Mr Loader… The Notice directed the cessation of any further high risk construction work at the workplace where a person could fall more than 2 metres until a SWMS is prepared for this work. The Notice directed that Byrne Demolition must eliminate the risk of falls from the roof of the building, and where this is not reasonably practicable, that it must minimise the risk of falls so far as is reasonably practicable by providing a safe system of work which complies with clause 79 of the Regulation . At the time of issuing the Notice, I explained the contents of the Notice to both Mr Loader and Mr Byrne and explained the requirements of clause 79 of the Regulation. I did not tell Mr Byrne that the use of harnesses was not legal. 26. On 14 March 2018, at 7:54am, I received a text message from Mr Byrne with a photograph of a boom lift situated at the workplace… 27. On 14 March 2018, I returned to the workplace and met Mr Byrne on site. I observed a boom lift at the workplace. Mr Byrne produced the same SWMS dated 12 March 2018... I deemed that the Notice was complied with by Byrne Demolition Pty Ltd and informed Mr Byrne as such. 28. In forming my view that there was a serious risk to health and safety unless all high risk construction work ceased at the workplace, I relied on my experience as an Inspector with SafeWork NSW, as well as over 20 years experience in the construction industry, and work health and safety across a broad range of worksites and working environments. I also based it on my knowledge of the work health and safety legislation the requirements as set out in the legislation, the Code of Practice and the Australian Standards. I have studied Certificate Ill in Mechanical Engineering and Refrigeration Air Conditioning and Certificate II in Electrotechnology. I have a Diploma of Government (Workplace Inspection).
Under cross-examination, Mr Galea gave the following evidence: Q. Now I then just want to ask you some questions about the site itself. Now I think you've just said at one stage you were over the other side of the street and at the other stage you were outside the fence of the site? A. Mm. Q. You never actually went up onto the roof did you? A. No because there was the danger of asbestos and we weren't wearing PPE to-- Q. I see and for the same reason you actually never went inside the house either did you? A. Not until the following day. Q. And it's your allegation isn't it that you were concerned about the risk of a fall by Mr Loader? A. Yes. Q. And in fact you said to the, what's called the internal review, that the risk of the fall was due to the harness being attached to a long rope that would not prevent a person hitting the ground? A. That's correct. Q. When we talk about the long rope that is the rope that we can see on attachment A isn't it? A. Yes. Q. Now of course you know don't you that there is a blue belt in the middle of the photo just to the left of Mr Loader? A. Yes, green belt, yes. Q. And that's in fact the harness that attached Mr Loader to the rope, isn't it? A. So the blue strap if you like? Q. Yes? A. Went around the battens but then it was attached to the rope. Q. Yes? A. And that rope went up to Mr Loader's harness. Q. Yes and then coming from Mr Loader's harness was the slack rope that we see draped all over the rest of the roof there don't we? A. Yes. Q. Yes and you don't have any, you make no suggestion that there was anything faulty about the harness itself? A. The harness alone, no the harness was fine-- Q. Okay and you don't make-- CARPENTER: Let him finish. LATHAM Q. Sorry? A. But it wasn't being worn correctly or used correctly. Q. Sorry it wasn't being worn correctly? A. No, so that rope that goes between his legs, if he had fallen would have made him flip and if you're using a harness, that is a fall arrest harness, you would never allow it to go in between your legs like that. Q. I'm sorry and where does this new allegation come from? A. That's how harnesses are used. Q. I see, have you got a copy of the prohibition notice there Mr Galea? A. Yeah sure. Q. Can you show me where you refer to this allegation? A. What do you mean allegation, I'm not - I'm saying there was no system in place, there was a risk to his health and safety. Q. Yes but apart from these very generic complaints that you make, you've got an obligation in relation to these prohibition notices to tell people clearly what is the error that they are making, don't you? A. Yeah, there's only so much room you can put in, so much wording and that's why we explain it to-- Q. No, no, no but Mr Galea you in fact put exactly what your complaint was in the basis for inspector's belief, didn't you? A. I'm sorry, I'm misunderstanding what you mean. Q. Well you said, see the box, "Basis for inspector's belief"? A. Yes. Q. That is a basis for your belief at the time wasn't it? A. Yes. Q. And you said, "There is nothing to prevent a person falling over 3 metres to the ground from the roof of the building"? A. Yes, that's correct. Q. And that is what you say is the reasonable belief you had at that stage wasn't it? A. Yes. Q. It wasn't anything to do with how Mr Loader was wearing the harness was it? A. No, that was just in relation to your question. Q. Yes and the first you ever thought about Mr Loader wearing his harness was today wasn't it? A. No, that's not correct. Q. You certainly didn't raise it on the day did you? A. (No verbal reply) Q. Did you? A. Yes. Q. Well that's just not true is it? A. Okay, that is not correct. Q. Well okay you took notes on the day didn't you? A. Yes. Q. And you would have put something like that in your notes wouldn't you because that's important? A. You put in what you think is relevant at the time. Q. Yes okay you thought it was relevant at the time wouldn't you, a safety breach, you would have thought a safety breach was relevant at the time wouldn't you? A. Yeah I'd suspect, I felt that Mr Loader was at risk of falling. Q. Yes you thought he was at risk of falling okay now but you didn't refer in your notes to what would clearly have been a relevant failure to use a harness properly, did you? A. I'd have to look at my notes. Q. Certainly. COMMISSIONER: I think it was wear the harness properly rather than use it properly but-- LATHAM Q. I'm sorry, wear the harness properly, yes? A. So just so we've got this right, I'm not saying the harness itself wasn't on correctly, I've said that it was on correctly. Q. Right? A. However the rope going between the legs is something that you know you shouldn't do. Q. I see, all right, well you tell me where the rope going between the legs is referred to in your notes? A. I don't know that it is. Q. Well it isn't is it? A. No it's not. Q. And see what you were told on the day and what you knew to be the case was that Mr Loader had a rope of no more than 2.5 metres between himself and the anchorage point where the harness was attached to the beam. You knew that didn't you? A. That it was about two and a half metres? Q. Yes? A. No I didn't know exactly however as per code of practise should never be more than 2 metres. Q. Well you presumably asked Mr Loader how long that distance was didn't you? A. I may have, I don't know. Q. You don't know. You've got an obligation don't you as an inspector to make reasonable enquiries don't you in relation to potential safety breaches? A. Yes. Q. Don't you think that would have been a reasonable enquiry to make? A. It may have. Q. Well it may have, would have because if it was true it would have meant that he could not have fallen for example off the front edge of the building that you see there and he couldn't have hit the ground, that's correct isn't it? A. No that's not correct. Q. Sorry, explain to me why it's not correct? A. Because he could have fallen through the trusses. Q. I know that and I will get to that in a moment-- A. So that's a fall positioning system-- Q. Just wait, just wait Mr Galea. If he had fallen, so just use the photo in front of you, towards us, sorry is attachment F, had he fallen towards us and the rope between his harness and the anchorage point was 2.5 metres he could not have hit the ground that way could he? A. To be honest I don't, can't even say that it was definitely 2.5 metres with the tangled rope, I actually suspect that it was a bit more. Q. Well you suspect, right? A. Yeah. Q. But on the basis of what you know, you know that the distance from him to the ground, over the front of the building, is more than 2.5 metres, don't you? A. I would say it's about more than 2.5 metres. Q. Yes quite a lot more than 2.5 metres isn't it? A. It's 12, no only just, so each one of those battens is roughly 600 apart, so that's 1200, that's 2400, he's probably in between two and half and 3 metres maximum. Q. I'm talking about to the ground? A. The fall off the edge is the same thing, depending on what type of harness system he is using. Q. Right, just so I'm clear, I'm saying if the rope was 2.5 metres and he had fallen towards us, he would not have hit the ground from there would he? A. That's if it was two and half metres. Q. Correct and you've got no basis to say it was any more than two and half metres do you? A. I believe it was. Q. Yes do you-- A. Yeah, I-- Q. --and on what basis do you believe that? A. Only by as I said those battens at 600 apart roughly, so if you go down there's 1200 and then back up to Mr Loader is another 1200 and then with the slack as well, I would say it's over two and a half metres. Q. That's just a guess isn't it? A. It's an educated guess from history of working in construction.
Mr Galea was then cross-examined about the possibility of Mr Loader falling through the roof. The cross-examination then continued as follows: Q. Now, if I can then just take you to some of the observations that you make in your affidavit. You state at paragraph 7 that based on your observations of the ceiling timbers, the plaster ceiling and the width of the gaps between the ceiling timbers, you thought that somebody could fall through the plaster. Do you see that there? A. Mmm. Q. Well, in fact you hadn't seen the plaster ceiling or the width of the gaps between the ceiling timbers, had you? A. So I'm going off the picture A with that ceiling that you can see. Q. But just to answer my question, you hadn't even seen the plaster ceiling or the width of the gaps between the timbers that held up the plaster ceiling? A. Do you mean directly below Mr Loader? No. Q. Yes. Right. So you have no basis to conclude that the plaster would not support the weight of a falling person, do you? A. Only that history in looking at plaster and knowing what plaster ceilings are like. Q. Yes, yes. You have no basis to reach that conclusion that you reach in paragraph 7, do you? A. No, I disagree. Q. And in paragraph 9 you refer to "my observations of the anchorage point, the size of the roof batten and the timber material in which the roof batten was made," that that wouldn't be able to hold the weight of a falling person. Did you inspect the roof batten as you describe it? A. Only from my photo and standing at the bottom, and knowing that there was - it was around a batten. Q. Do you know what sort of timber material it was? A. It'd be hardwood, from looking at it. Q. And did you look at the anchorage point beyond looking through the fence from where you were? A. No. Q. You see, you don't have any basis to make the conclusion that you make at paragraph 9 there either, do you? A. In my opinion, there is no way that a small bit of timber would hold 1 and a half tonne. Q. It's not a-- A. Which is roughly the size of an average sized car. Q. It's not a small piece of timber, is it? A. It's roughly, what, 40 mm by 25-- Q. You didn't measure it, did you? A. I know roughly what a batten size is. Q. You couldn't even see the other side of it, could you? A. No, I can't, no.

Determination

A Prohibition Notice may be issued pursuant to section 195 of the WHS Act if "an inspector reasonably believes that" an activity of the type described in subsections 195(1)(a) or (b) is occurring or may occur at a workplace. The concept of "reasonable belief" was recently discussed by Chief Commissioner Kite in Simon Anthony Green Wilkeen Pty Ltd T/as Razorback Glass v SafeWork NSW ([2018] NSWIRComm 1074) in the following terms: The Authorities 20 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." 21 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]. 22 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." 23 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.
The basis for Mr Galea's belief that a contravention of the WHS Act was occurring at the demolition site at 166 Brisbane Street, Dubbo, on 13 March 2018 was stated by him in the following terms: 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.
During cross-examination, Mr Galea expanded upon the basis for his "reasonable belief": Q. And it's your allegation isn't it that you were concerned about the risk of a fall by Mr Loader? A. Yes. Q. And in fact you said to the, what's called the internal review, that the risk of the fall was due to the harness being attached to a long rope that would not prevent a person hitting the ground? A. That's correct. Q. When we talk about the long rope that is the rope that we can see on attachment A isn't it? A. Yes. Q. Now of course you know don't you that there is a blue belt in the middle of the photo just to the left of Mr Loader? A. Yes, green belt, yes. Q. And that's in fact the harness that attached Mr Loader to the rope, isn't it? A. So the blue strap if you like? Q. Yes? A. Went around the battens but then it was attached to the rope. Q. Yes? A. And that rope went up to Mr Loader's harness. Q. Yes and then coming from Mr Loader's harness was the slack rope that we see draped all over the rest of the roof there don't we? A. Yes
This was confirmed in the letter setting out the outcome of the internal review which was provided to Byrne on 1 May 2018 as follows: 7. The 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."
The photograph of Mr Loader on the roof of the building, which is annexure "A" to the affidavit of Mr Galea, shows a length of rope attached to Mr Loader's harness which is "draped all over the rest of the roof" but this is not the piece of rope between the anchor point and the brake on Mr Loader's harness which he claimed was no longer than two and a half metres, including the strap which was attached to a roof timber. The length of rope which was "draped all over the rest of the roof", which was identified by Mr Galea during the internal review and during these proceedings as being "a long rope that would not prevent a person from hitting the ground as the rope was so long", was the rope that was on the inactive side of the brake on Mr Loader's harness. This was not the length of rope between the anchor point and Mr Loader's harness.
Mr Galea's belief that there was no system in place to prevent a person falling over three metres to the ground from the roof of the building was based on a misconception. For the reasons set out in his affidavit, about which I make no criticism, Mr Galea did not climb up onto the roof to more closely inspect the rope and harness arrangement that was being utilised by Mr Loader.
In my assessment, the 2.5 metre length of rope (including the strap) from the anchor point to the brake on Mr Loader's harness was not so long that it would not prevent Mr Loader from falling from the roof and hitting the ground. It follows that, in my opinion, Mr Galea's belief to the contrary was not a "reasonable belief".
During the proceedings, a number of matters were raised by SafeWork in support of the decision by Mr Galea to issue the Prohibition Notice.
Mr Byrne was criticised for not ensuring that an elevated work platform or an "all-terrain knuckle boom" was on site from which Mr Loader could have performed his work removing the asbestos sheeting, in accordance with Byrne's Safe Work Method Statement for the job. I accept Mr Byrne's evidence that, on the day in question, Coates Hire did not have such a device available for hire. In the circumstances, the decision to use a rope and harness, which is an individual fall-arrest system approved for use in the SafeWork NSW Code of Practice Managing the Risk of Falls at Workplaces, was reasonable and did not constitute an activity that involved a serious risk to the health or safety of Mr Loader or anyone else.
At paragraph 11 of SafeWork's outline of submissions, reproduced at [14] above, reference was made to the fact that Mr Byrne was able to hire a stable boom lift on 14 March 2018. His evidence under cross-examination, which was not challenged, was to the effect that, on 14 March, he was able to borrow the device from another contractor. This does not lead to the conclusion that it was reasonably practicable for Mr Byrne to have had such a device on site on 13 March 2018.
Further, the reference at paragraph 13 of the outline to the safety harness being part of a fall arrest system, which included the ladder, evacuation procedures, training and supervision, is not a matter which is mentioned in the Prohibition Notice as forming any part of the inspector's "reasonable belief".
At one point during cross-examination, Mr Galea suggested that Mr Loader was not wearing or using the harness correctly by having the rope going between his legs. Mr Galea conceded that he had not referred to this issue in his contemporaneous notes and it is certainly not mentioned in the Prohibition Notice. I give this suggestion no weight.
Criticism was also levelled at the capacity of the roof timber, to which the harness was anchored, to bear Mr Loader's weight in the event that he fell off the roof. Given that Mr Galea did not climb onto the roof to inspect the anchorage point on the day in question and did not refer to this issue in his contemporaneous notes or in the Prohibition Notice itself, I give it no weight.
Mr Galea also observed that the photo annexed to his affidavit showed ceiling timbers attached to the plaster ceiling of the roof which were approximately 600mm apart. He stated that he believed that a person standing on the roof could fall through the gaps as the plaster would not support the weight of a falling person. Again, given that Mr Galea did not climb onto the roof to inspect the ceiling timbers or go into the building to inspect the ceiling itself, these are not matters that could support the "reasonable belief" necessary for a Prohibition Notice to issue.
At paragraph 20 of SafeWork's outline of submissions it is stated that the decision on the internal review that Mr Loader was at serious risk of falling between the roof trusses onto (at least) the ceiling level was clearly correct (see [14] above). The letter setting out the outcome of the internal review refers to the absence of a "system in place to prevent a person falling over 3 metres to the ground from the roof of the building…" and to the risk of a fall being 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" (see [7] above). The reference in the letter to the "inspector's reasonable belief that the system used would not prevent a fall from one level to another", omits any mention of the presence of the roof trusses which, in my opinion, would have assisted in preventing Mr Loader from falling onto the ceiling of the building.
Lastly, Mr Galea stated that the ladder used by Mr Loader to access the roof was not secured to the building. He claimed that it should have been installed with the top attached to the building with rope or straps and that the bottom of the ladder should also have been secured into place. Mr Byrne gave evidence that he physically steadied the ladder when Mr Loader used it. The SafeWork NSW Code of Practice Managing the Risk of Falls at Workplaces states: "When a ladder is used, you should check that:… the ladder is secured against displacement (ie slipping or sliding) and/or there is another person holding the base of the ladder". Again, this matter is not referred to in Mr Galea's contemporaneous notes and it is not mentioned in the Prohibition Notice. I give this matter no weight.
Taking all of the abovementioned matters into account, it is my determination that the Prohibition Notice should be revoked.
I make the following orders: 1. The external review is upheld. 2. Prohibition Notice 60196 is revoked. John Murphy Commissioner

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: 06 February 2019

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