Catholic Healthcare Limited v SafeWork NSW [2025] NSWIRComm 1046

NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4; (2016) 257 IR 467

Ruddock v Taylor [2005] HCA 48; 222 CLR 612

SafeWork NSW v Lipman Pty Ltd [2023] NSWIRComm 1034

State of New South Wales v Bouffler [2017] NSWCA 185; 95 NSWLR 521

Sydney Trains v SafeWork NSW [2017] NSWIRComm 1009

Visscher v SafeWork NSW [2024] NSWIRComm 1012; 328 IR 400

Visscher v Safework NSW [2025] NSWSC 489

Tooma's Annotated Work Health and Safety Act 2011 (2nd Ed, 2017, Thomson Reuters)

M Smith (SafeWork NSW, Department of Customer Service) (Respondent)

1. On 17 July 2024 Inspector Chigofito of SafeWork NSW issued an Improvement Notice to Catholic Healthcare Limited pursuant to s 191 of the Work Health and Safety Act 2011 (NSW) (WHS Act). The Improvement Notice stated that the Inspector reasonably believed that on 15 July 2024 Catholic Healthcare was contravening s 19 of the WHS Act and reg 44 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation). The Improvement Notice gave the following particulars of the suspected contraventions:

"Workers and others may be exposed to a risk to their health and safety from potential inhalation of airborne contaminants, such as the SARS-CoV-2 virus and other respiratory illnesses, in the workplace. This risk arises from the PCBU's failure to ensure that the Respiratory Protective Equipment (such as P2/N95 respirators) provided is of suitable size and fit and reasonably comfortable for the worker who is to use or wear it. On Monday, 15 July 2024, I visited the Catholic Healthcare Head Office. During this visit, PCBU reps informed me that workers at Catholic Healthcare Limited had not undergone fit testing for P2/N95 masks. This was despite my recommendation during a visit to St Anne's - Hunters Hill on 22 Feb 2023, advising incorporation of fit testing in accordance with clause 44 of the WHS Reg 2017 and AS/NZS 1715:2009. Furthermore, St Anne's experienced COVID-19 outbreaks on three occasions: 1 May -29 May 2023, 26 Nov - 22 Dec 2023, and 5 May - 26 May 2024, during which workers contracted the virus."

1. Fit testing is a process for determining the type and size of a particulate filter respirator (respirator), also known as a P2 or N95 face mask, that achieves a seal on an individual's face so that the individual does not inhale airborne contaminants. Respirators are designed to be tight fitting and rely on a tight seal between the respirator and the wearer's face. To achieve the necessary seal, the respirator must be a suitable size and shape for the wearer's face.
2. There are two types of fit testing: qualitative and quantitative fit testing. For qualitative fit testing, the wearer puts on a respirator, then a hood is placed over their head. The fit tester then introduces a flavoured spray into the hood, and the wearer must identify whether they can smell or taste the spray. If they do taste or smell the spray, this indicates there is an air leak between the mask and the wearer's face and the process is repeated using a different size and/or style of respirator until a seal is established. Qualitative testing takes around 30 to 45 minutes.
3. For quantitative fit testing, the wearer puts on a respirator and has a machine connected to it that pushes air into and sucks air out of the respirator to detect whether there is an air leak. The machine measures the actual amount of leakage from the respirator. The process does not rely upon the wearer's senses to detect leakage. Quantitative testing takes around 20 to 30 minutes.
4. Both qualitative and quantitative fit testing must be done by a person trained to perform the test. The objective of fit testing is to ensure that users know the size and style of respirator which best suits their face so that they can use that particular size and style of respirator whenever they are required to wear a respirator.
5. Catholic Healthcare operates 39 residential aged care facilities in NSW, as well as two facilities in southeast Queensland and home care services. It provides accommodation, meals, personal care, medical care and social and recreational activities within residential homes as well as home care to older people living in the community. As of October 2024, it had approximately 4,263, full-time equivalent, resident-facing staff employed in its NSW facilities. It also regularly engages agency workers in those facilities.
6. The wearing of respirators was and is part of Catholic Healthcare's infection control processes in place at all of its facilities, including St Anne's Aged Care at Hunters Hill. In the event of an outbreak of respiratory illness, including COVID-19, amongst other measures, the affected resident is isolated, and a 'red zone' established. Anyone entering the red zone is required to don personal protective equipment (PPE) including gowns, gloves, face shields and respirators. Catholic Healthcare did not, and does not, require the respirators to be fit tested. Rather, it employs a process known as fit checking.
7. Fit checking involves performing a visual check whenever a respirator is donned, to ensure that a seal is formed, that there is no air leakage and is comfortable to wear. After putting on the respirator the wearer exhales to ensure that the mask fills up with air. If the wearer detects there is leakage during a fit check, they adjust the respirator to close the gap and properly seal the respirator or they try another style and/or size of respirator. Fit checking should occur every time a respirator is donned, even if the user has previously been fit tested and has confirmed the size and style which best suits their face.
8. It was not a matter of controversy that the seal between the user's face and the respirator can break when the user talks or moves their head in a certain way, even where the mask has been fit tested for that user and the user is properly wearing the mask. It is also the case that the user must be clean shaven for a seal to be formed.
9. The Improvement Notice issued by Inspector Chigofito set out the following mandatory directions that Catholic Healthcare was required to take "to remedy or prevent the contravention or likely contravention":

"1. You must provide workers with personal protective equipment (PPE), such as P2/N95 respirators, to minimize the risk of contracting the SARS-CoV-2 virus and other respiratory illnesses during exposure or outbreaks at your facilities.

2. When directing workers to wear or use P2/N95 respirators for protection against airborne contaminants, you must ensure that they are fit-tested to confirm a suitable size and fit, ensuring that the respirator is reasonably comfortable for the wearer or user.

3. You must engage a competent person (e.g., trained in-house individual, manufacturer, supplier, consultant, or occupational hygienist) to conduct the fit testing.

4. You must provide workers with information, training, instruction, and supervision on the selection, correctly used, fit-checking and donning and doffing of P2/N95 respirators to ensure workers are adequately protected when wearing or using P2/N95 masks.

5. You must maintain records and provide them to the Inspector as evidence that workers at your facilities have been fit-tested.

6. I draw your attention to clause 44 of the Work Health and Safety Regulation 2017."

1. The Improvement Notice stipulated that the contravention was to be remedied before 25 October 2024. Pursuant to s 193 of the WHS Act a failure to comply with an Improvement Notice within the specified period carries a maximum penalty for a corporation of $333,960.
2. The Improvement Notice also set out the following "Recommendations":

"In complying with the direction, you may give consideration to further guidance available from:

- SafeWork NSW Code of Practice: "How to manage work health and safety risks."

- SafeWork NSW letter sent to all PCBU's responsible for Residential Aged Care Facilities: "WHS laws and respiratory protective equipment" - dated 12 December 2023

- SafeWork NSW webpage: Respiratory protective equipment and requirements for fit testing workers."

1. Catholic Healthcare maintains that the Improvement Notice should not have been issued because the objective facts as at the date of the Improvement Notice would not have induced in the mind of a reasonable person a belief that Catholic Healthcare was contravening reg 44 of the WHS Regulation or s 19 of the WHS Act. According to Catholic Healthcare:

(1) reg 44 of the WHS Regulation did not apply to Catholic Healthcare's operations;

(2) it had extensive, documented infection control processes in place at all its facilities, including St Anne's;

(3) it took steps to ensure that respirators were of a suitable size and fit and reasonably comfortable for the worker who was to use or wear it including by:

(a) providing at least five different sizes and shapes of N95 masks so that staff may choose which best fits their face and bone structure, in accordance with principles published by NSW Health's Clinical Excellence Commission;

(b) facilitating staff conducting a fit check of their respirators after donning;

(c) allocating a PPE spotter on each shift to check all staff were wearing PPE correctly, including respirators; and

(d) providing continuing education and competency checking for staff as to how to properly apply respirators;

(4) risk assessments that it performed in May 2023 and again in July 2024 concluded that the level of risk associated with acute respiratory infections in its facilities was not sufficiently significant to warrant implementing fit testing in addition to Catholic Healthcare's existing infection control procedures;

(5) the available scientific evidence does not support a conclusion that fit testing has demonstrable clinical or safety benefits over fit checking; and any benefits that may exist are likely to be negated or at least minimised by complimentary mitigation strategies such as PPE spotters and the use of face shields; and

(6) the costs of implementing fit testing are prohibitive.

1. Catholic Healthcare asserted that the Inspector did not make reasonable enquiries and/or did not give proper consideration to the above-mentioned matters and had expressed a belief as to Catholic Healthcare's compliance with s 19 of the WHS Act and reg 44 of the WHS Regulation in relation to all of its 39 aged care facilities, in circumstances where the Inspector only inspected one facility, being St Anne's.
2. Accordingly, Catholic Healthcare applied for an internal review of the Improvement Notice, pursuant to s 224 of the WHS Act. On 15 August 2024 the internal reviewer, Maree Davidson, delivered her decision in respect of the review (Internal Review Decision). Ms Davidson noted that Catholic Healthcare "provides a rigorous process [to ensure workers' safety in respect of airborne contaminants] which includes Fit Checks" however, she determined to only vary the decision made in relation to the issue of the Improvement Notice by deleting the last sentence of the brief description within the Improvement Notice, namely: "Furthermore, St Anne's experienced COVID-19 outbreaks on three occasions: 1 May - 29 May 2023, 26 Nov - 22 Dec 2023, and 5 May - 26 May 2024, during which workers contracted the virus." Other than that amendment, the Improvement notice remained in the form issued by Inspector Chigofito.
3. On 28 August 2024, Catholic Healthcare applied to the Commission, pursuant to s 229(4) of the WHS Act, for an external review of the Internal Review Decision (Application for External Review). The Application also sought a stay of the Internal Review Decision until a determination of the external review. A stay was granted on 5 September 2024.
4. For the reasons developed below I have determined that the Improvement Notice, to the extent it concerned a purported contravention of s 19 of the WHS Act, should be set aside, as the Inspector did not as a matter of fact, hold a reasonable belief that Catholic Healthcare was contravening that provision and therefore he had no power to issue the Improvement Notice in so far as it concerned that provision. While I have found that the Inspector did hold a reasonable belief that reg 44 of the WHS Regulation was being contravened, and therefore he was empowered to issue the Improvement Notice in respect of that provision, I have also found that, as a matter of law, reg 44 did not apply to Catholic Healthcare. In those circumstances, the Notice, to the extent it concerned a purported contravention of reg 44 of the WHS Regulation, must also be set aside.
5. It is important that I stress that the reason I have determined that the Inspector did not hold a reasonable belief that s 19 of the WHS Act was being contravened by Catholic Healthcare is because, as a matter of fact the Inspector, at the time of issuing the Improvement Notice, did not turn his mind to whether fit testing was reasonably practicable within the meaning of ss 18 and 19 of the WHS Act. It is clear from the evidence that the Inspector's entire focus at the relevant time was on the requirements of reg 44, which he reasonably considered required fit testing of masks, and which did not require any consideration as to whether the protective measure referred to in that provision, was reasonably practicable and that the only reason he considered s 19 had been breached was because Catholic Healthcare had "failed to ensure that workers have been fit tested under clause 44".[1] That was not a reasonable ground on which to believe that s 19 had been breached. It may well be that the objective facts as at the date of the Improvement Notice would have justified a reasonable belief that s 19 was being contravened, however the Inspector simply did not turn his mind to those facts and in particular, did not make an assessment on the strength of those facts, as to whether fit testing of P2/N95 masks was reasonably practicable to ensure the health and safety of workers and other persons working at Catholic Healthcare's residential aged care facilities (RACF), including at St Anne's.

Statutory Framework, the Applicant's Case and Proposed Amendment to the Improvement Notice

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.

192 Contents of improvement notices

(1) An improvement notice must state -

(i) is contravening a provision of this Act, or

(ii) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated, and

(b) the provision the inspector believes is being, or has been, contravened, and

(c) briefly, how the provision is being, or has been, contravened, and

(d) the day by which the person is required to remedy the contravention or likely contravention.

(2) An improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates.

(3) The day stated for compliance with the improvement notice must be reasonable in all the circumstances.

193 Compliance with improvement notice

The person to whom an improvement notice is issued must comply with the notice within the period specified in the notice.

Maximum penalty -

(a) for an individual - 607 penalty units, or

(b) for a body corporate - 3,036 penalty units.

1. Pursuant to the definition provided for in s 4 of the WHS Act, "this Act" includes the regulations.
2. Part 12 of the WHS Act sets out the regime by which certain decisions made under the WHS Act may be reviewed. The first section in the Part, s 223, prescribes the decisions that may be reviewed and who may apply for a review. There is no dispute that the decision to issue Catholic Healthcare with an Improvement Notice under s 191 is a 'reviewable decision' within the meaning of s 223(1) and that Catholic Healthcare, as the person conducting a business or undertaking (PCBU) to whom the Improvement Notice was issued, was and is an 'eligible person', entitled to seek an internal review of Inspector Chigofito's decision to issue the Improvement Notice pursuant to s 224.
3. It not necessary to set out the sections in Division 2 of Part 12 which provide the regime for an internal review of a reviewable decision.
4. Section 229 is the sole provision within Division 3 of Part 12 - External Review. It provides:

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.

(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. As already noted, Catholic Healthcare have applied for a review of the decision made on the internal review, pursuant to s 229(1)(b) and seeks to have that decision varied to a decision to set aside the Improvement Notice.
2. As Commissioner Webster explained in Chit Chit Than v SafeWork NSW [2023] NSWIRComm 1122 (Than) (in the context of a provisional improvement notice (PIN), which is also a 'reviewable decision'):

48. An external review under s 229 of the WHS Act is a merits review, which requires the Commission to determine the correct and preferable decision standing in the shoes of the relevant decision-maker ... : 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]; NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4; (2016) 257 IR 467 ("Rural Fire Service") at [70]; Sydney Trains v SafeWork NSW [2017] NSWIRComm 1009; (2017) 266 IR 276 at [28] ("Sydney Trains"); Transport Workers' Union of Australia, New South Wales v SafeWork NSW [2022] NSWIRComm 1050 ("TWU") at [44]. ...

49. The Commission conducts a hearing de novo: a fresh hearing, with the capacity to receive evidence that was not before the original decision-maker: Sydney Trains at [16]; Rural Fire Service at [68]. The Commission's powers under ss 162 and 163 of the Industrial Relations Act 1996 (NSW) ("IR Act") apply.

...

93. ... the Commission can take into account the contemporary factual circumstances in conducting the review. The circumstances as they existed at the time the PIN was issued are relevant to the determination of whether the HSR had jurisdiction to issue the PIN at all. ...

94. Finally, the decision to issue a PIN or IN necessarily involves the exercise of a discretion. If an HSR or inspector reasonably believes that that there is a breach of s 19 of the WHS Act that is likely to continue, they are not obliged to issue a PIN or IN. Similarly, the Commission is reposed with a discretion. The utility of the Commission's decision in either confirming, varying or revoking the decision is a relevant matter to consider in the context of the Commission's exercise of its review function."

1. In this matter the "relevant decision maker" is Ms Davidson, the internal reviewer, and the Commission is required to decide whether her decision to only vary the Improvement Notice in a minor respect should be confirmed, revoked or varied. In conducting a merits review of her decision the Commission must conduct, as Ms Davidson was required to do, a review of the merits of the original reviewable decision rather than a review directed to the identification and correction of error in the Internal Review Decision, although the Internal Review Decision may be relevant and should be accorded appropriate weight: Visscher v SafeWork NSW [2024] NSWIRComm 1012; 328 IR 400 at [24]; NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4; (2016) 257 IR 467 at [70] (Kite AJ), c.f. Sydney Trains v SafeWork NSW [2017] NSWIRComm 1009 (Newall C) and Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002; 274 IR 317 (Growthbuilt) at [36] (Chief Commissioner Kite SC).
2. The Application for External Review seeks that the Internal Review Decision be varied to a decision to set aside the Improvement Notice on the ground that the Inspector did not have a reasonable belief that the Applicant was contravening s 19 of the WHS Act or cl 44 of the WHS Regulation in relation to Catholic Healthcare's alleged failure to conduct fit testing of respirators in its residential aged care facilities.
3. The principles relevant to the Commission's determination of this ground of review were accurately summarised in the Respondent's Outline of Submissions dated 14 November 2024 (RS) at [7]:

(1) first, for a reasonable belief to be held, objective circumstances must exist to induce the belief in the mind of a reasonable person. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition: Growthbuilt [57]; SafeWork NSW v Lipman Pty Ltd [2023] NSWIRComm 1034 (Lipman) [41];

(2) secondly, the grounds which can reasonably induce an inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture: Growthbuilt [57]; Lipman [41];

(3) thirdly, the objective circumstances sufficient to show a reason to believe something need to point more clearly than a suspicion. But there is no need for the circumstances to establish on the balance of probabilities that the subject matter in fact occurred or exists: Growthbuilt [57]; Lipman [41];

(4) fourthly, sufficient evidence to hold a reasonable belief requires a lesser standard than evidence that is objectively capable of proving the fact beyond reasonable doubt, or on the balance of probabilities: Than [85];

(5) fifthly, the Commission is limited in its consideration to the circumstances that existed at the time that the improvement notice was issued: Than [85]-[86]; Lipman [65]-[66];

(6) sixthly, though the Commission may take into account additional inquiries that an inspector may have undertaken, an inspector is not required to conduct a full investigation, nor is the inspector required to satisfy themselves to the level of proof of a breach of the Act: Growthbuilt [94].

1. The first four of these principles can be sourced to the High Court decision of George v Rockett [1990] HCA 26; 170 CLR 104. As the Court (Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) succinctly stated at 112:

"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."

1. Section 191 does not prescribe that there must be "reasonable grounds" for the Inspector's belief, but it does require that the inspector "reasonably" believes that a person has contravened the WHS Act, and the decisions referred to at [28] above, and others, have confirmed that this requires the existence of facts sufficient to induce the required state of mind. However, this requirement does not mean that the inspector must know and correctly understand in absolute terms all of the relevant facts and law. As will be revealed, this is a matter of some significance in the present proceeding.
2. In Growthbuilt at [56] - [61] Chief Commissioner Kite (as his Honour then was) considered that an inspector's perceptions must be "soundly based", on an "objective analysis", and he did not accept "that the test is subjective and to be judged from the perception of an inspector". In his view "parliament surely would not have intended that a notice issue on the clearly held but completely mistaken perception of an inspector." It is important to understand however, that the starting point is nevertheless the perceptions of the inspector, and that if those perceptions were objectively reasonably in all the circumstances, albeit mistaken, the notice will nonetheless have been validly issued.
3. As the High Court's confirmed in Ruddock v Taylor [2005] HCA 48; 222 CLR 612, what constitutes reasonable grounds has to be judged against what was known or reasonably capable of being known at the relevant time, such that a belief or suspicion is capable of being reasonable even though it is founded on a mistake of fact or law. Thus, the question of whether an inspector reasonably believed that a provision of the WHS Act had been contravened is to be judged from what the inspector actually knew, or was reasonably capable of knowing, at the time the relevant notice was issued. It may transpire that the things known to the inspector were wrong, but if those things, viewed objectively, could have induced a belief in a reasonable person that a provision of the WHS Act had been contravened, the notice will have been validly issued. If it is established upon an internal or an external review that the foundation for the belief was erroneous, the reviewer has the power to, and should, set the notice aside.
4. In Ruddock v Taylor the High Court had to consider whether a British subject, Mr Taylor, had been unlawfully detained, and so entitled to damages for false imprisonment. Mr Taylor had been imprisoned, twice, by immigration officers purportedly pursuant to s 189 of the Migration Act 1958 (Cth). That provision provided:

"(1) If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.

(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:

(a) is seeking to enter the migration zone; and

(b) would, if in the migration zone, be an unlawful non-citizen; the officer must detain the person."

1. Mr Taylor had twice had his visa cancelled on that the ground that he did not satisfy the character test under the Migration Act. The decision to cancel his visa was twice quashed by the High Court. Following each decision to cancel his visa, Mr Taylor was detained in immigration detention as an unlawful non-citizen. Mr Taylor argued that since each decision to cancel his visa was quashed, meaning that as a matter of law at the time he was detained he was not in fact an unlawful non-citizen, his detention was unlawful. The majority (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ, McHugh and Kirby JJ dissenting), disagreed, holding that at the time he was detained his visa had been cancelled so there were reasonable grounds for the arresting officers to suspect that Mr Taylor was an unlawful non-citizen in the migration zone, with the result that they were obliged to detain him. Consequently, his detention had not been unlawful. Gleeson CJ, Gummow, Haye and Heydon JJ said at [40]:

" ... what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time. ... what were reasonable grounds for effecting the respondent's detention did not retrospectively cease to be reasonable upon the Court making its orders [in the decision quashing the cancellation] or upon the Court later publishing its reasons in that case."

1. Their Honours went on to confirm, at [41] - [46], that a belief or suspicion is capable of being reasonable even though founded on a mistake of fact or law.
2. Callinan J's remarks at [228] - [230] explain the correct approach, which is readily transferrable to s 191 of the WHS Act, save that an inspector must hold a belief, rather than a suspicion:

"[228] ... section [189] does not require for its operation that persons act under it only upon the basis that they know and correctly understand in absolute terms all of the relevant facts and law. All it requires for its operation is that persons acting under it, hold a reasonable suspicion of a particular state of affairs, that is, that the person in question is an unlawful non-citizen. And as to that, the evidence and inferences from it are all one way, and in the appellants' favour. It can be seen therefore that much of the argument in the courts below was advanced with insufficient attention to the language of the Act and missed the point.

[229] True it may be, with hindsight, that the respondent can be seen to have been detained upon a basis that has turned out to be erroneous, but the basis was nonetheless a lawful one, because it did not require for its lawfulness, absolute certitude of the precise legal status of the respondent. In this regard, the respondent's position is not unique. Many people, who subsequently are acquitted of criminal charges are lawfully held in detention without bail pending that event, upon the basis of reasonable suspicions and available evidence as to possible guilt. The analogy is not of course a complete one. Aliens are not criminals, and appropriately, s 191 of the Act is directed to their release from detention if officers have mistaken their true status once evidence is available as to that status.

[230] The notion, that conduct based upon a mistake of law cannot be regarded as reasonable is patently absurd. Almost daily the courts assess, and often find such conduct to be reasonable. The trilogy of cases, including the respondent's earlier case in this Court, demonstrate just how uncertain the law, and therefore the outcome of cases, can be. Indeed mistake of law can now of itself found a claim for recovery of money or property."

(Footnote citation omitted.)

1. The approach taken in Ruddock v Taylor is consistent with the approach taken and views expressed by the Court of Appeal (Beazley ACJ, Ward and Gleeson JJA) in State of New South Wales v Bouffler [2017] NSWCA 185; 95 NSWLR 521, to which both parties referred in closing submissions.
2. The application of this approach to the powers of WHS inspectors was recently acknowledged by McHugh JA in Visscher v Safework NSW [2025] NSWSC 489, a judicial review from my decision in Visscher v SafeWork NSW [2024] NSWIRComm 1012; 328 IR 400. That matter concerned a review of a Prohibition Notice issued by an inspector pursuant to s 195 of the WHS Act. Like s 191, s 195 empowers an inspector to issue such a notice if the 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."

1. In that matter the person to whom the notice had been issued argued, inter alia, that the construction site of his house was not a "workplace". On that basis, he said that the power in s 195 was not engaged. McHugh JA made the following observation at [26]:

"It might be noted that the words in s 195(1), "if an inspector reasonably believes that ...", invoke familiar concepts. See, e.g., George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 116. The parties appear to have proceeded on the footing that the "workplace" issue was to be determined objectively upon the proper construction of the WHS Act, rather than by reference to whether the Inspector reasonably (even if mistakenly) believed that the place where the scaffold was located was or might be a workplace. It is at least arguable that that was not the correct approach; cf. Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [41]- [46] per Gleeson CJ, Gummow, Hayne and Heydon JJ; [228]-[230] per Callinan J. But neither party pursued the issue when it was raised in argument, and it is by no means clear that it would have resulted in a different outcome below in any event, in light of the information imparted by the plaintiff to the Inspector before he exercised his s 195 powers."

1. In summary, if the circumstances as known to Inspector Chigofito, or as reasonably capable of being known by him, at the time the Improvement Notice was issued, viewed objectively, could have induced a belief in a reasonable person, that a provision of the WHS Act had been contravened, the notice will have been validly issued. If it transpires that those circumstances were factually or legally incorrect, the Commission may then decide to set aside or vary the Improvement Notice to ensure that the correct and preferable decision is made.
2. While the Commission, in conducting an external review concerning an improvement notice, 'stands in the shoes' of the relevant decision maker, if the Commission finds that the Inspector who issued the improvement notice did not reasonably believe that a contravention of the WHS Act (which includes the Regulations) had occurred or was occurring, the Improvement Notice must be set aside as having been issued without authority, even if the circumstances as proved on review would have justified the issue of the notice. In other words, the Commission cannot substitute its own reasonably formed belief, based on the evidence put before it, for that of the infirm belief of the inspector, in order to 'save' the notice. So, while the Commission will consider what was "reasonably capable of being known" by an inspector at the time a notice was issued, in order to determine whether, in all the circumstances the inspector's belief was reasonable, any matter that did not form part of the inspector's belief can only operate to undermine the reasonableness of the inspector's belief - it cannot operate to found the basis for a belief when it was not in fact part of the inspector's belief.
3. The Commission can on the other hand, as already mentioned, set aside an otherwise validly issued notice. This is what Catholic Healthcare urges the Commission to do, if the Commission finds that the Inspector reasonably held his belief that a provision of the WHS Act was being contravened. It says, in the alternative to its primary ground, that the Improvement Notice should be set aside as a matter of discretion for the following reasons:

(1) the matters relied upon by Catholic Healthcare in its challenge to the Inspector's "reasonable belief"- which relevantly include that reg 44 did and does not apply to Catholic Healthcare;

(2) the contemporary factual circumstances support the Improvement Notice being set aside;

(3) the directions in the Improvement Notice go beyond what is reasonable or appropriate in the circumstances to remedy any alleged contravention of s 19 of the Act or reg 44 of the Regulation, including in that:

(a) the directions extend to all residential aged care facilities operated by Catholic Healthcare in circumstances where the Inspector inspected only one facility;

(b) Catholic Healthcare already takes the measures set out in paragraphs 1 and 4 of the directions; and

(c) as for paragraphs 2, 3 and 5 of the directions, their cost and the difficulty of implementing them is disproportionate to any (minimal) reduction in risk that would result in their implementation; and

(4) the time for complying with the Improvement Notice is unreasonable having regard to the cost and difficulty of implementing paragraphs 2, 3 and 5 of the directions.

1. The matter was heard over two days. All of the evidence was received on the first day. At the beginning of the second day, counsel for SafeWork NSW handed up an amended version of the Improvement Notice (Amended Improvement Notice) and submitted that it reflected SafeWork's "current position, which is to amend to vary the improvement notice rather than to affirm it."[2] Counsel for SafeWork NSW submitted that such position "follows on from the evidence that was provided to the Commission yesterday".[3] As I apprehend it, SafeWork NSW was concerned that the evidence may have established that Inspector Chigofito could not have formed the requisite reasonable belief in respect of all of Catholic Healthcare's facilities, at least in respect to s 19 of the WHS Act, in circumstances where he had only inspected, and asked for information about outbreaks of COVID-19 in respect of, St Anne's.
2. The proposed amendments to the Improvement Notice restricted the alleged contraventions and the remedial steps to be taken to the St Anne's facility, whereas the Notice had previously purported to apply to all of Catholic Healthcare's operations. Thus, the "site location" was amended from "15 Talavera Road, Macquarie Park, NSW, 2113", which I understand is Catholic Healthcare's head office, to "Catholic Healthcare Limited, St Anne's Aged Care Hunters Hill 1 De Milhau Rd, Hunters Hill NSW 2110." The brief description of the asserted contravention was amended to read (as shown in mark-up):

"Workers and others may be exposed to a risk to their health and safety from potential inhalation of airborne contaminants, such as the SARS-CoV-2 virus and other respiratory illnesses, in the workplace. This risk arises from the PCBU's failure to ensure that the Respiratory Protective Equipment (such as P2/N95 respirators) provided is of suitable size and fit and reasonably comfortable for the worker who is to use or wear it. On Monday, 15 July 2024, I visited the Catholic Healthcare Head Office. During this visit, PCBU reps informed me that workers at Catholic Healthcare Limited had not undergone fit testing for P2/N95 masks (including the St Anne's facility). This was despite my recommendation during a visit to St Anne's - Hunters Hill on 22 Feb 2023, advising incorporation of fit testing in accordance with clause 44 of the WHS Reg 2017 and AS/NZS 1715:2009."

1. Directions 1, 2 and 4 were amended so that they were directed to "Catholic Healthcare St Annes Aged Care" and direction 6 was deleted.
2. Catholic Healthcare maintained that the proposed amendments did not address their concerns in the absence of "any assurance [by SafeWork] that it won't come back and try and fix it, for want of a better expression, in relation to the rest of Catholic Healthcare's facilities".[4]
3. As noted at [1] above, the Improvement Notice (and the Amended Improvement Notice) under the heading "Details of Contravention" states:

"I, Cossam Chigofito reasonably believe on 15/07/2024 that you are contravening a provision of the Work Health and Safety Act 2011, section 19 and Work Health and Safety Regulation 2017, clause 44."

1. Section 19 of the WHS Act relevantly provides:

19 Primary duty of care

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of -

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable -

(a) the provision and maintenance of a work environment without risks to health and safety, and

(b) the provision and maintenance of safe plant and structures, and

(c) the provision and maintenance of safe systems of work, and

(d) the safe use, handling, and storage of plant, structures and substances, and

(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

1. What is "reasonably practicable" is of some importance in this proceeding. The phrase is defined in s 18 of the WHS Act:

18 What is "reasonably practicable" in ensuring health and safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including -

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about -

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

44 Provision to workers and use of personal protective equipment

(1) This clause applies if personal protective equipment is to be used to minimise a risk to health and safety in relation to work at a workplace in accordance with clause 36.

(2) The person conducting a business or undertaking who directs the carrying out of work must provide the personal protective equipment to workers at the workplace, unless the personal protective equipment has been provided by another person conducting a business or undertaking.

Maximum penalty -

(a) for an individual - 73 penalty units, or

(b) for a body corporate - 364 penalty units.

Example.

Equipment that has been provided by a labour hire company.

(3) The person conducting the business or undertaking who directs the carrying out of work must ensure that personal protective equipment provided under subclause (2) is -

(a) selected to minimise risk to health and safety, including by ensuring that the equipment is -

(i) suitable having regard to the nature of the work and any hazard associated with the work, and

(ii) a suitable size and fit and reasonably comfortable for the worker who is to use or wear it, and

(b) maintained, repaired or replaced so that it continues to minimise risk to the worker who uses it, including by ensuring that the equipment is -

(i) clean and hygienic, and

(ii) in good working order, and

(c) used or worn by the worker, so far as is reasonably practicable.

(4) The person conducting a business or undertaking who directs the carrying out of work must provide the worker with information, training and instruction in the -

(a) proper use and wearing of personal protective equipment, and

(b) the storage and maintenance of personal protective equipment.

Maximum penalty -

(a) for an individual - 73 penalty units, or

(b) for a body corporate - 364 penalty units.

Note.

A person conducting a business or undertaking must not charge or impose a levy on a worker for the provision of personal protective equipment (see section 273 of the Act).

1. Pursuant to reg 44(1), the application of reg 44 is contingent upon the application of reg 36, that is, reg 44 applies only "if personal protective equipment is to be used to minimise a risk to health and safety in relation to work at a workplace in accordance with clause 36". Regulation 36 provides:

36 Hierarchy of control measures

(1) This clause applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety.

(2) A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this clause.

(3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following -

(a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk,

(b) isolating the hazard from any person exposed to it,

(c) implementing engineering controls.

(4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls.

(5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.

Note.

A combination of the controls set out in this clause may be used to minimise risks, so far as is reasonably practicable, if a single control is not sufficient for the purpose.

1. Regulation 36 is located in Part 3.1 of the WHS Regulation. The first regulation in Part 3.1 is reg 32 which provides:

32 Application of Part 3.1

This Part applies to a person conducting a business or undertaking who has a duty under this Regulation to manage risks to health and safety.

1. Catholic Healthcare maintains that Part 3.1 of the WHS Regulation did not and does not apply to its operations because it does not have a duty under the Regulation (as opposed to the Act) to manage risks to health and safety and consequently reg 44 did not and does not apply to its operations. I will explain this argument in more detail below.

Relevant Facts and the Matters in Dispute According to the Parties

1. Catholic Healthcare tendered in evidence a Statement of Agreed and Disputed Facts and Issues, signed by representatives for both parties. Pursuant to that document the following facts are agreed.

"A. Visits by SafeWork NSW

1. On 22 February 2023, SafeWork NSW inspector Cossam Chigofito (Inspector) attended Catholic Healthcare's St Anne's Residential Aged Care Home in Hunters Hill, NSW (St Anne's) and conducted a workplace visit (22 February 2023 visit).

2. During the 22 February 2023 visit, the Inspector met with representatives of Catholic Healthcare including Linda Silman (Residential Manager for St Anne's).

3. The Inspector and Catholic Healthcare representatives discussed a range of matters including COVID-19. In discussion, the Inspector said words to the effect that fit testing should be done when providing P2/N95 masks to ensure wearers / users are adequately protected.

4. On 23 February 2023, the Inspector sent an email to Ms Silman that stated, among other things, that "you are to review systems of work concerning implementing the fit testing program at your workplace" and the Inspector would be conducting a follow-up visit to "assess progress with the implementation of the fit testing program at your workplace".

5. On 15 July 2024, the Inspector attended Catholic Healthcare's head office and met with representatives of Catholic Healthcare including Amanda MacDonald (Catholic Healthcare's Health, Safety and Wellbeing Manager) and Susan Oliver (Senior Clinical Lead) (15 July 2024 meeting).

6. The focus of the discussion at the 15 July 2024 meeting was on fit testing of P2/N95 masks. Among other things, the Inspector said words to the effect that:

(a) the obligation was on the organisation to ensure workers are adequately protected from COVID-19 and respiratory illnesses by ensuring that fit testing is incorporated to the suite of controls available;

(b) clause 44 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation) required Catholic Healthcare to conduct fit testing;

(c) because Catholic Healthcare advised that they have not fit tested workers and do not consider it essential to fit test, he was considering issuing an Improvement Notice; and

(d) he would make a final decision about whether to issue an Improvement Notice after reviewing information he had requested about the last three COVID-19 outbreaks at St Anne's.

B. Improvement notice, decision and applications for review

7. On 17 July 2024, the Inspector issued Improvement Notice 7-484048 (Improvement Notice).

8. On 1 August 2024, Catholic Healthcare made a request for an internal review of the decision to issue the Improvement Notice pursuant to Part 12 of the Work Health and Safety Act 2011 (NSW) (WHS Act).

9. On 15 August 2024, the internal reviewe[r] decided to vary the Improvement Notice by removing the last sentence of the brief description within the Improvement Notice (Internal Review Decision).

10. On 28 August 2024, Catholic Healthcare filed an Application in the Industrial Relations Commission of New South Wales for external review of the Internal Review Decision.

C. Catholic Healthcare's infection control measures

11. At all material times, Catholic Healthcare's control measures to prevent the transmission of, and to protect workers from, COVID-19 have included the following:

(a) staff change masks and fit check regularly throughout a shift, including after every break and after showering residents;

(b) a PPE spotter is allocated each shift to check all staff are wearing PPE correctly, including N95 masks;

(c) all staff follow NSW Health's Guidance for residential aged care facilities on the public health management of acute respiratory infections;

(d) staff are required to complete ongoing PPE competency, hand hygiene competency and infection control modules, as well as ongoing education regarding fit checking of masks in open learning sessions, outbreak calls, daily staff huddles and Outbreak Management Team meetings in the event of a COVID-19 outbreak;

(e) each residential aged care facility has a dedicated Infection Prevention and Control Lead who supports the facility to maintain compliance with the Outbreak Management Plan and relevant regulatory standards for infection prevention and control;

(f) any COVID-19 positive resident(s) are isolated in their room and all residents are regularly tested in the event that a resident test positive;

(g) staff conduct clinical screening for COVID-19 or other respiratory illnesses if there is any risk identified, e.g. if a visitor says that they are close contact of a positive case or a resident is displaying any symptoms of an infectious disease;

(h) in the event of an 'outbreak' (two or more positive cases within 72 hours):

(i) staff complete RAT / PCR tests on entry to the facility for the duration of any outbreak;

(ii) signage is installed at the site, identifying risk areas as 'red zones' in which staff must wear PPE. A risk assessment is conducted to consider whether the red zone is limited to the resident's room or extended to the relevant wing of the facility;

(iii) additional signage is installed at the entrance to red zones to assist staff to undertake a fit check of their mask, so they may select the N95 mask that best fits and check there is no air leak;

(iv) staff conduct risk assessments and contact tracing to identify all the residents or staff members that could have come into contact with the infected person or that should be isolating;

(v) PPE is provided on entry to the red zone, including gowns, gloves, face shields and at a minimum, three different sizes and shapes of N95 masks so that staff may choose which best fits their face and bone structure (in accordance with the Clinical Excellence Commission principles of fit checking);

(vi) in red zones, eye protection is also mandatory. Staff are provided with a face shield in addition to a N95 mask, and only wear googles if they cannot wear a face shield;

(vii) all visitors complete an online module to show them how to use PPE followed by a demonstration onsite prior to entry to a red zone;

(viii) in the event of an outbreak, the Outbreak Management Team is activated and a meeting convened;

(ix) Catholic Healthcare follows its comprehensive 'Acute Respiratory Infection Outbreak Management Plan' for the duration of an outbreak;

(x) meetings are convened by the management staff and clinical staff for the relevant home to discuss updates in relation to outbreak, and staff conduct handover between shifts;

(xi) infected rooms are cleaned daily with a focus on touch point cleaning and using chemicals made for infection control cleaning and using specific equipment; and

(xii) infected laundry is placed in alginate bags and laundered at a temperature necessary to kill infections, the washing machine is then run on a de-contamination cycle.

(together, the Infection Control Measures).

12. Catholic Healthcare's Infection Control Measures do not include fit testing of masks."

1. The parties identified the following as facts and issues in dispute in the proceeding:

"(a) whether cl 44 of the WHS Regulation applies to Catholic Healthcare in relation to its provision and use of PPE;

(b) whether the Inspector held a belief that Catholic Healthcare was contravening cl 44 of the WHS Regulation and/or s 19 of the WHS Act, particularly as to fit testing being a reasonably practicable measure in Catholic Healthcare's circumstances;

(c) whether any such beliefs held by the Inspector was reasonable, including having regard to:

(i) the extent of Catholic Healthcare's Infection Control Measures;

(ii) the extent (if any) to which fit testing would reduce risks to health and safety, especially in a work environment that had in place the Infection Control Measures;

(iii) the financial impost to Catholic Healthcare of implementing fit testing across all of its facilities in NSW; and

(iv) the fact that the Improvement Notice extends to all of Catholic Healthcare's residential aged care facilities in NSW when the Inspector only visited the St Anne's facility;

(d) alternatively, whether the Improvement Notice should be set aside or varied as a matter of discretion."

1. Catholic Healthcare tendered in evidence copies of the Inspector's notebook which it had obtained via summons and led evidence from five lay witnesses:

(1) Amanda MacDonald, Health, Safety and Wellbeing Manager for Catholic Healthcare;

(2) Susan Oliver, Senior Clinical Lead and Manager for Infection Prevention and Control for Catholic Healthcare;

(3) Daniel Tinker, Regional Housekeeping Manager for Catholic Healthcare;

(4) Linda Silman, the Residential Manager at the St Anne's Residential Aged Care Home and the St Joseph's Residential Aged Care Home; and

(5) Christopher Todd (CT) Johnson, Chief Financial Officer for Catholic Healthcare.

None of the lay witnesses were cross examined and their evidence was otherwise unchallenged by SafeWork.

1. The only aspect of Catholic Healthcare's evidence that was challenged was the evidence of its expert witness, Professor Paul Griffin, who was briefly cross examined.
2. SafeWork NSW led evidence from Inspector Chigofito; a solicitor, Madeline Smith, who annexed material produced under summons by Catholic Healthcare; Ms Davidson, the internal reviewer; and Michael Weller, a State Inspector of Safework NSW who gave expert evidence. Both Inspector Chigofito and Inspector Weller were cross examined.

1. As most of the essential facts in this matter are agreed it is unnecessary for me to recount in depth all of the extensive evidence given by Catholic Healthcare's lay witnesses. It suffices to record the following additional relevant facts as established by the evidence.
2. On 4 May 2023, (arising from Inspector Chigofito's visit to St Anne's in February 2023, during which the Inspector had advised that Catholic Healthcare must implement fit testing) Amanda MacDonald, Sarah Robson, Catholic Healthcare's Injury Management Specialist and Susan Oliver, met to discuss and review Catholic Healthcare's risk assessment relating to Covid-19 and the infection control measures already in place, including (but not limited to) employees fit checking their masks to confirm they were properly sealed; the provision of five different mask options; and the allocation of a 'PPE spotter' to every shift to check all staff were wearing PPE correctly, including fit checking masks, and concluded "[i]n light of robust control measures in place at Catholic Healthcare reducing the likelihood of employees contracting COVID-19 in the workplace .., the lower severity of COVID-19 in March 2023, the high cost of fit testing and the difficulties associated with the practicality of implementing fit testing, ... that the risk was not significant enough to warrant implementing fit testing in addition to the existing procedures Catholic Healthcare already had in place." Included in their risk assessment was the fact that neither Ms MacDonald nor Ms Oliver had been able to find any research to support the contention that fit testing of masks reduced COVID-19 (or other similar respiratory disease) infection rates.
3. Over a year later, on 8 July 2024, arising from Inspector Chigofito's request for a meeting, Ms MacDonald and Susan Oliver conducted a further risk assessment. Her undisputed evidence of the matters discussed, and the conclusion reached, was as follows:

"43 We discussed the relaxing of public health restrictions including that individuals with COVID-19 were no longer required to isolate and the public no longer had to wear masks in certain indoor locations. All Public Health Orders relating to COVID-19 have been rescinded. I had become aware of this in my role at Hornsby Council which included monitoring of NSW COVID Health Orders. Further, by this time COVID-19 had been formally downgraded from a pandemic to an endemic and was no longer a public health emergency.

44 We reviewed data about the number of residential aged care homes that had a COVID-19 outbreak since March 2023, and the data indicated there had not been an increase of outbreaks or an increase in employees becoming infected with COVID-19. Further, our workers compensation data indicates that no employees had become gravely ill or had experienced 'long COVID' as a result of contracting COVID-19 in the workplace. At the time of this statement, there are no open workers' compensation claims related to COVID-19 infections acquired in the workplace.

45 We considered that the likelihood of employees contracting COVID-19 in the workplace continued to be low, in light of Catholic Healthcare's stringent infection control protocols (as detailed in paragraph 21 above). We also considered that the practicality and cost of fit testing remained prohibitive.

46 On the basis of the above factors, Susan and I decided that there was no reason to change Catholic Healthcare's position on fit testing at the time."

1. On 9 July 2024 at 1:52pm, Ms MacDonald emailed to Inspector Chigofito Catholic Healthcare's infection control procedures (113 pages of material) for him to consider in advance of the meeting. Her email also contained the following:

"As stated in my initial email, we would attempt to update you via email on actions taken since your visit in February 2023. A risk assessment of CHL infection control procedures relating to COVID-19 was undertaken. It was determined that the risks presented by COVID-19 at the time did not support the implementation of fit testing across the organisation. Furthermore, implementing fit testing across the forty two RCF was not reasonably practicable and was cost prohibitive.

In August of 2023 your colleague, SafeWork Principal Inspector, Bruce Coffee made enquiries regarding fit testing of masks at the CHL RCF at Coffs Harbour. I had a detailed conversation with him around our protocols relating to COVID-19 infection control. He was satisfied with the approach of fit checking, rather than fit testing, being undertaken by CHL, so satisfied that he did not proceed with the visit to the RCF. I have attached the relevant emails for your information.

Catholic Healthcare remain vigilant with their protocols around fit checking, including the provision of PPE, signage and training. Should any of our RCF experience an infectious outbreak we trigger outbreak protocols as follows:

• Infection identified within the home

• Resident is isolated in their room, PPE set up and GP contacted for assessment and antivirals if eligible

• Signage applied to all zones including mask wearing, selection of masks and face shields (protective googles for those who find it difficult to wear a face shield)

• RN in charge notifies Regional Manager, Regional Support Manager+ Senior Clinical Lead in Head Office Line list completed and sent to PHU+ MAC portal updated

• All staff onsite follow the CHL ARI Outbreak Plan+ NSW Health racf guidance

• We have a first 24-hour checklist which is a summary of sequence of events to check off plus the more detailed outbreak plan

• All protocols incorporate NSW Health advice and CDNA guidelines and are kept up to date

• All PPE is provided, we have an annual PPE competency and annual hand hygiene competency (also mandatory Infection Control annual elearning modules).

• The PPE competency includes how to apply the PPE and wear a mask correctly and refers to the Clinical Excellence Commission Principles of Fit checking Principles of fit checking· how to don and fit check P2 and N95 masks (Version 2.0) (nsw.gov.au) (Attached)

• At the commencement of each outbreak there is a formal Outbreak Management Team meeting followed by an email with comprehensive notes to support the home - see example attached. This includes advice around fit checking masks

• A PPE spotter is allocated each shift to check everyone is wearing their PPE correctly including masks

• On entry to the affected wing there is signage to warn entrants of the Red Zone plus the PPE Fit Check sign and a range of N95 masks - staff members have preference to which fits best and suitable when fit checked. We always wear a face shield in addition to N95 mask in red zones.

• We have ongoing education regarding Fit Checking of masks including open learning sessions and reminders during outbreak calls, 9@9 meetings, OMT meetings."

1. On 9 July 2024 at 3:30pm, Ms MacDonald received an email from Inspector Chigofito (which I will refer to as the 9 July Chigofito Email) which stated, inter alia:

"Thank you once again for your email and the information provided.

I want to acknowledge that I have not been able to complete the follow-up visits within the advised three-month timeframe. However, SafeWork NSW has recently released additional guidance on fit testing obligations for PCBUs. For your reference, I have attached a letter distributed to RACFs in December last year. Please review this letter if you haven't done so already.

Following the release of this guidance, we are actively conducting follow-up visits to monitor compliance with the Fit Testing program, as initially advised during my visit in February 2022. This is in alignment with WHS Regulation 2017 clause 44 and AS/NZS 1715:2009, which covers the selection, use, and maintenance of respiratory protective equipment.

I am committed to completing this follow-up visit as initially planned. To facilitate this, I would appreciate your assistance in coordinating with the relevant individuals within your organisation to participate. I had previously suggested meeting at your Head Office to ensure that all necessary parties are available, considering the potential implications of any compliance actions on your organisation."

1. The letter attached to Inspector Chigofito's email (which I will refer to as the SafeWork December Letter and which I understand is the letter referred to in the 'Recommendations' contained in the Improvement Notice), which Ms MacDonald confirmed had not been previously received by Catholic Healthcare, was on SafeWork NSW letterhead and read as follows:

"To all PCBUs responsible for Residential Aged Care Facilities

WHS laws and respiratory protective equipment

SafeWork NSW is the regulator for Work Health and Safety (WHS) in NSW and is responsible for administering WHS legislation including the Work Health and Safety Act (NSW) 2011 and the Work Health and Safety Regulation (NSW) 2017.

Between 2022 and 2023, SafeWork NSW Inspectors conducted visits to residential aged care facilities in NSW to monitor compliance with the WHS legislation and provide advice and education as part of various programs including the management of risks associated with COVID-19 in the workplace.

Workers in residential aged care can be exposed to airborne contaminants such as microorganisms at work which can be hazardous to their health. This can include bacteria and viruses such as the SARS-CoV-2 virus that causes COVID-19.

Under WHS laws, a person conducting a business or undertaking (PCBU) must ensure the health and safety of workers and other persons at the workplace. A PCBU must apply a risk management approach, in consultation with workers and/or their health and safety representatives (HSRs), to determine the control measured used to eliminate and/or minimise the risk of COVID-19 exposure and transmission in the workplace so far as is reasonably practicable.

A PCBU may provide personal protective equipment (PPE) to workers to manage risks to health and safety in accordance with the hierarchy of control measures. Where PPE is used to minimise a risk to health and safety, Clause 44 of the WHS Regulation places obligations on a PCBU to ensure that the PPE selected and provided is:

• suitable for the nature of the work and any hazard associated with the work

• a suitable size and fit and reasonably comfortable for the worker who is to use or wear it

and

• maintained, repaired or replaced so that it continues to minimise risk to the worker who uses it by ensuring it is clean and hygienic and in good working order.

Clause 44 also requires a PCBU to provide workers with information, training and instruction in the proper use and wearing of PPE and storage and maintenance.

Respiratory protective equipment (RPE) is a form of PPE used to protect workers from breathing in hazardous airborne contaminants. RPE can minimise exposure when used with other higher order control measures such as isolation and engineering controls. The correct selection, fit and proper use of RPE is crucial to its effectiveness as a control measure.

Where a risk assessment has determined that close or tight-fitting RPE such as P2/N95 respirators are to be used as a control measure to minimise the risk of exposure to airborne contaminants, workers must be consulted about RPE selection and undergo respirator fit testing so far as is reasonably practicable.

Respirators come in different shapes and sizes. The purpose of fit testing is to ensure that the respirator selected (i.e. type, style, size, etc) is a suitable fit for each worker to ensure it provides adequate protection. It detects for air leaks around the seal between the respirator facepiece and the face of the worker. Fit testing must be carried out by a competent person such as a trained inhouse person, manufacturer, supplier, consultant or occupational hygienist.

Further guidance on RPE, fit testing and fit checking is available on the SafeWork NSW website at https://www.safework.nsw.gov.au/resource-library/hazardous-chemicals/respiratory-protectiveequipment-and-requirements-for-fit-testing-workers.

If you require further information, please contact Danny Kilpatrick, Acting Director Health and Safe Design on 02 8867 2843 or danny.kilpatrick@safework.nsw.gov.au"

1. Ms MacDonald also gave evidence about the meeting with Inspector Chigofito on 15 July 2024 at Catholic Healthcare's head office. Importantly she gave the following unchallenged evidence:

52 During the meeting, the Inspector did not appear to be interested in Catholic Healthcare's infection control measures and focused only on fit testing. I concluded this because, during the meeting, he continually referred back to clause 44 of the Work Health and Safety Regulation 2017 (NSW) (clause 44) and the letter dated 12 December 2023. Whenever I tried to speak to our infection control processes, and on other occasions, he cut me off. He also asked no questions regarding the infection control measures that Catholic Healthcare had in place, the materials I had sent him on 9 July 2024 or the materials Susan Oliver brought to the meeting which were substantially the same as the materials I had sent the inspector on 9 July.

53 Clause 44 relates to the provision of personal protective equipment, and the Inspector kept asserting that the clause mandated fit testing of N95 masks irrespective of other control measures in place.

54 Throughout the meeting I said to the Inspector, "In Catholic Healthcare residential aged care facilities, during a COVID-19 or other respiratory disease outbreak, at least five different N95 masks are provided for workers, workers are educated about how to properly check the seal of their masks and there are PPE spotters on every shift to confirm that employees are fit checking and wearing their PPE correctly."

55 The Inspector responded by saying, "Other control measures are irrelevant. You are not complying with clause 44."

1. In her evidence in reply, Ms MacDonald explained that the cost of training staff to be competent fit testers, "is only a small part of the cost." As she explained:

"The more significant costs are associated with having an accredited fit tester available on every shift to fit test staff across Catholic Healthcare's 39 homes in NSW, and rostering more staff to accommodate time spent on fit testing. Given what I understand about the high staff turnover and high utilisation of agency staff at Catholic Healthcare, I believe it would be necessary to have an accredited person on each shift to ensure that all workers are fit tested for their shift."

1. In response to Inspector Chigofito's evidence about the cost of fit testing (which I set out below) she said:

"The costs that Inspector Chigofito has set out in this paragraph do not take into account the significant costs of fit testing beyond the initial outlay. For example, Inspector Chigofito has not considered:

a. the geographical disbursement of Catholic Healthcare's homes meaning that it is not simply a matter of training a few individuals to become competent in fit testing;

b. the 24/7 nature of our operations and the need to have a fit tester available on every shift ;

c. the high turnover in employees meaning that fit testing has to be done regularly; and

d. the expense to Catholic Healthcare for the time it takes for staff to perform quantitative or qualitative fit testing."

1. Lastly, Ms MacDonald gave unchallenged evidence that:

"Inspector Chigofito did not ask me or Susan Oliver any questions about Catholic Healthcare's financial position or the work, health and safety budget. Throughout the meeting I told Inspector Chigofito several times, "We are a not-for-profit organisation, so fit-testing is cost prohibitive for us".

1. Ms Susan Oliver gave evidence as to what is involved in fit testing and fit checking respirators and outlined the (extensive) mitigation procedures and processes in place at Catholic Healthcare facilities to address preventing and managing infections, PPE, vaccination programs and delivery of anti-viral medications, environmental cleaning measures and training.
2. Ms Oliver's undisputed evidence regarding what would be required to implement fit testing of masks at Catholic Healthcare's facilities, was as follows:

94 If Catholic Healthcare was to implement fit testing, it could either employ competent fit testers to perform the tests or engage and pay a third party.

95 If Catholic Healthcare employed competent fit testers, I estimate that we would have to initially employ nine fit testers and purchase nine fit testing machines to service the staff employed at all 41 residential aged care facilities and all new starters at head office, and also based on the amount of people that can be tested in one day. Realistically I believe we could only fit test two staff members per hour, 14 staff members each day. It takes ten minutes to explain the process, show how to put on and take off the PFR then additional 15 to 20 minutes to conduct the test and provide the data to the staff member.

96 This would be to complete the initial fit testing of all CHL staff who may be required to enter an infectious red zone. This would need to be completed quickly to comply with any Safe Work directions. As we have not completed this to date the process will take longer as each staff member needs to try potentially 3-4 masks. Subsequent years would be quicker as the individual staff member would simply need to check the one mask that had been chosen for them to see if it is still fit for purpose.

97 I estimate that a fit tester could at Catholic Healthcare complete 2 quantitative fit tests or 1 qualitative fit test in one hour, based on the time it takes to explain the procedure and ensure the individual understands. Many of CHL staff do not have English as their first language and more time may be needed.

98 For quantitative fit testing, I have spoken to a number of companies and obtained a quote for a machine which is $31,000. These machines also require a service and calibration yearly and I obtained a quote for $2000.

99 For qualitative fit testing, instead of machines, Catholic Healthcare would need to purchase hoods and the chemical solution for employees to detect. Based on my estimation, we would require 9 hoods totalling $5,442 and 219 units of chemical solutions on a yearly basis costing $22,222 per year (not including indexation). Each bottle of solutions is 55ml and can test 100 staff members. Two bottles are required at each test, one bitter and one sweet.

100 For both quantitative and qualitative fit testing, the tester should have three types of masks available for the test, to confirm the correct fit. This is based on the advice from Fit Test Australia. Masks have different costs depending on the manufacturer and Catholic Healthcare would require three available per employee to correctly perform the fit test.

101 For quantitative and qualitative fit testing, the fit tester must clean the equipment down with a wipe in between each use. A packet of Clinell 2:1 disinfectant wipes costs $13.42 for a packet of 200.

102 A professional fit tester can conduct a quantitative fit test in 20 minutes, if the person follows instructions and understands English well and does not have a beard. Catholic Healthcare employs many employees who have English as a second language.

103 To conduct a fit test, the person cannot have eaten food, chewed gum or smoked or vaped for at least an hour before the test. This is because these actions create molecules in the mouth that interfere with the testing. If a person has done this, they will need to have their test rescheduled and be tested later. The fit tester may not have another individual ready to be fit tested if this is the case.

104 While administrative and other staff can be fit tested and do not require another person to do their job while they are being tested, there is a requirement at residential aged care facilities that a registered nurse is on duty 24/7 and that each resident receives 200 care minutes each day. As a result, to conduct fit testing on registered nurses only, Catholic Healthcare would need to backfill their role so that another person is working while they are being tested or pay them to come in on a separate shift. In both instances, Catholic Healthcare would require the employee to work for a minimum of four hours, because as I understand it, that is the minimum amount of time we can ask someone to come in under the enterprise agreements that cover us.

105 Catholic Healthcare uses a high number of agency staff to fill roster gaps. I asked the Catholic Healthcare procurement team to contact our labour hire agencies to confirm if they would conduct fit testing on their staff. I was advised by Andy Norton, Procurement Manager, that the team had contacted all 26 labour hire agencies that we use. Ten agencies had responded as at September 2024, and five confirmed they would conduct fit testing and the other 5 confirmed they would not.

106 As such, Catholic Healthcare cannot be sure that the agency contractor it has engaged will be fit tested when they arrive at a residential aged care home and will need the homes to fit test agency staff, that could be engaged to work at any home, at any time, at short notice, which could be in an outbreak.

107 Further, Catholic Healthcare has a high rate of turnover of staff and would need to fit test all new staff.

108 I contacted Sandy Ferguson, HR Partnering Manager at Catholic Healthcare to enquire about the salary Catholic Healthcare would offer a fit tester, and she advised me that we would offer $110,000 (not including superannuation).

109 I have been consulting with Fit Test Australia to understand the costs they would charge us. They have informed me that they offer a deal to train 10 fit testers for $1,650 per person, which is cheaper than engaging them to train 9 people individually, even though I estimate Catholic Healthcare would only require 9 fit testers.

110 Fit testers also require re-accreditation every 3 years. After the initial training, it would cost $750 for the fit tester to be re-accredited at years 3, 6 and 9.

111 If Catholic Healthcare engaged a third party to conduct fit testing, Fit Test Australia provided a quote to confirm they would charge $1,500 per day to conduct fit testing.

112 Following having provided the above information to the finance team, the professional fit tester from Fit Test Australia attended the Catholic Healthcare office on 9 October 2024. They gave me the below details that have not been taken into account by the finance team in their modelling.

113 During this session, Fit Test Australia informed us that additional consumables are required for quantitative fit testing, such as salt tablets that need to be mixed with water and used in a particle generator to create a mist that the machine can pick up during mask test readings. A particle generator is a separate machine and has a separate cost associated with it that I am not aware of.

114 Fit Test Australia informed me that the salt tablets cost $110 for 100 tablets. Based on the number of Catholic Healthcare staff that would need to be tested, this would last one and a half to two weeks of testing each day.

115 Other consumables (of which we were previously unaware) that would need to be purchased include push nuts and probes, which are used on the mask to attach the tubing used to push air into the mask. Fit Test Australia informed me that these come in packs of 500 and cost $330 and would last for 500 fit tests.

116 Fit Test Australia also informed me that it can take 6-8 weeks to calibrate a fit test machine each year, during which time the machine is not available for use. Further, the machines break down regularly and repairing them can take several weeks to months, because in some cases the machines need to be sent to the USA to be repaired or replaced. This means that if we implemented a fit test program ourselves, additional machines may need to be purchased to cover machines undergoing repairs and replacement.

117 Fit Test Australia always tests 4-5 masks per person during the initial testing. We have costed for 3 masks per person. The costs of each mask varies depending on style and supplier.

118 During this session, Fit Test Australia conducted a fit test on a staff member with a heavy beard (which a number of our staff have). After 45 minutes, Fit Test Australia had not found a mask that passed the fit test and stopped the process. A beard sling was used and several PFR were tested. This is relevant because Catholic Healthcare employs over 200 men from the Sikh community who have large beards.

119 Throughout the process, this staff member took off the mask a number of times as it was too tight, too uncomfortable and made him feel lightheaded. My colleagues who work in clinical settings have commented that with some very tight-fitting masks, some people can become breathless and record oxygen desaturation which is where someone's oxygen levels drop and they may become faint, dizzy and breathless."

1. Ms Oliver annexed 207 pages of supporting documents to her statement. Of particular note, is a document published by the Australian Government, Department of Health and Aged Care, titled "Infection Prevention and Control Expert Group - Guidance on the use of personal protective equipment (PPE) for health workers in the context of COVID-19", dated 14 October 2022 (DHAC Guidance). The document relevantly contained the following (with emphasis added):

"Background

This document from the Infection Prevention and Control Expert Group (ICEG) has been endorsed by the Australian Health Protection Principal Committee. It provides guidance on the use of personal protective equipment (PPE) for health workers during the COVID-19 pandemic.

The recommendations in this document were developed with advice from the National COVID-19 Clinical Evidence Taskforce Infection Prevention and Control Panel (IPC Panel) and are consensus recommendations based on the combined expertise and experience of the IPC Panel and ICEG members. They reflect emerging evidence concerning all potential modes of viral transmission and the increased transmissibility of SARS-CoV-2.

The recommendations contained in this document describe the minimum national standard for PPE for health workers in the context of COVID-19.

Given the variability across and within health care settings, decisions around the use of PPE may require a nuanced and flexible approach, guided by evidence, contextual factors, and consideration of health worker preferences. This guidance is not meant to be exhaustive but aims to supplement detailed guidance available at a state, territory and institutional level.

PPE is a critical part of infection prevention and control. However, PPE should be considered the last line of defence within a broader 'hierarchy of controls' framework, which includes minimisation of risk through the implementation of administrative and engineering controls and other interventions in combination with appropriate PPE.

These consensus recommendations will be revised as new research evidence and information emerges. This guidance should be read in conjunction with the Australian Guidelines for the Prevention and Control of Infection in Healthcare (2021), whilst acknowledging the unique circumstance of COVID-19 and requirements for additional PPE in some circumstances.

Scope

This document provides guidance on the use of PPE by health workers who work in a health care setting. This may include in hospitals, non-inpatient settings, managed quarantine facilities, residential care facilities, COVID-19 testing clinics, in-home care and other environments where clinical care is provided.

...

Risk assessment to inform use of PPE

...

Health workers providing direct care or working within the patient/client/resident zone for individuals with probable or confirmed COVID-19 should use particulate filter respirators (PFR), e.g. a P2 or N95 and protective eyewear in line with standard and transmission-based precautions, as specified in the Australian Guidelines for the Prevention and Control of Infection in Healthcare (2022).

Health workers who wear a PFR should undertake a fit test prior to first use and perform a fit (seal) check each time a PFR is put on. See guidance on fit testing and fit checking below. In situations where fit testing has not yet been carried out, and a PFR is recommended for use, a fit-checked PFR is preferred to a surgical mask.

...

Types of PPE

...

Particulate filter respirators (PFRs)

Health workers who use PFRs (P2 or N95 equivalent) should be trained in their correct use and undergo a fit test to select the most suitable PFR for their face, prior to first use. Health workers should perform a fit (seal) check each time a PFR is put on. PFRs must be used correctly to provide protection against airborne pathogen transmission. A respiratory protection program should be developed to guide the selection, testing and use of PFRs, to determine which staff require fit testing and to manage the logistics of timely fit testing.

...

Fit testing and fit checking

Health workers who wear PFRs should complete fit testing before first use and perform a fit check each time they are used. A range of styles and sizes of PFRs may need to be fit tested to find one that achieves a protective seal.

Fit testing:

• should be performed by an appropriately trained person

• is a validated method for matching PFRs with an individuals facial shape

• ensures the PFR fits the users face snugly (i.e., creates a seal) to minimise the number of particles that can bypass the filter through gaps between the users skin and the respirator seal. A fit check is performed by gently inhaling and exhaling. If the mask is not drawn in towards the face, or air leaks around the face seal, readjust the mask and repeat process or check for defects in the mask.

o If a suitable PFR cannot be found, an alternative (e.g., elastomeric or Powered airpurifying respirators (PAPRs) should be considered.

When a PFR is worn with facial hair, an airtight protective seal is difficult to achieve, which may allow infectious airborne particles to leak in and out of the PFR.

• The face must be smooth and/or clean-shaven to achieve a good airtight seal.

• Facial hair should be removed or an alternative type of PFR be considered.

• The NSW Clinical Excellence Commission provides resources on beard wrapping techniques.

In situations where fit testing has not yet been carried out, and a PFR is recommended for use, a fit checked PFR is preferred over a surgical mask if airborne precautions are required.

Fit testing does not guarantee a respirator will not leak, particularly if a different type or size is used to one previously fit tested.

A repeat fit test is required for each different PFR utilised."

1. The evidence established that at the time the evidence for Catholic Healthcare was prepared, the most recent outbreak of COVID-19 at St Anne's had been in May 2024 when eight residents and two staff members tested positive, with the previous outbreak being in November - December of 2023.
2. Christopher Todd (CT) Johnson, Chief Financial Officer for Catholic Healthcare, exhibited to his statement an Excel spreadsheet he had prepared which modelled the costs to Catholic Healthcare if fit testing needed to be introduced. The estimates and assumptions used in the model were based on information provided by Catholic Healthcare staff, including Senior Clinical Lead, Susan Oliver, as a subject matter expert.
3. The initial financial model prepared by Mr Johnson contains six different sub-models:

(1) Sheet 1 - Quantitative fit testing - minimum costs;

(2) Sheet 2 - Quantitative fit testing - non-minimum costs;

(3) Sheet 3 - Qualitative fit testing - minimum costs;

(4) Sheet 4 - Qualitative fit testing - non-minimum costs;

(5) Sheet 5 - Third Party fit testing - minimum costs; and

(6) Sheet 6 - Third Party fit testing - non-minimum costs.

"'Minimum cost' refers to the cost incurred if Catholic Healthcare is able to arrange testing in the most efficient way. 'Non-minimum' refers to the cost if testing cannot be arranged in the most efficient way. This mostly relates to whether testing of Catholic Healthcare staff can be completed during a regularly scheduled shift for that staff member, or whether they are required to come in outside of their regularly scheduled shifts for the purpose of undergoing fit testing."

1. All of the sub-models were based on fit testing being implemented across all of Catholic Healthcare's residential facilities, as required by the Improvement Notice when it was issued. As explained above, SafeWork's position is now that the Improvement Notice should be varied so that it refers only to St Anne's. The financial model did not identify the costs of fit testing at each facility. While counsel for Catholic Healthcare accepted that the cost of implementing fit testing only at St Anne's would be substantially less than the total costs shown in Mr Johnson's models, he also submitted:

"...if the outcome of this proceeding is that Catholic Healthcare has been told that it is contravening the Work Health and Safety Act and regulation in relation to St Anne's because it's not fit testing, it's hard to see how, on SafeWork's position, the same conclusion would not apply across Catholic Healthcare's other facilities. So, in my submission it wouldn't be correct or it wouldn't be appropriate at least to focus solely on the cost consequences for St Anne's in this context."[5]

1. Notably, sub-models 1 to 4 of the financial model assumed that the fit testing would be undertaken by nine permanent and full-time dedicated fit testers in the first year and four such fit testers over the next nine years.
2. Mr Johnson annexed to his statement in reply a table which summarised the annual costs and the cost over 10 years as predicted by the financial model. I set out this table below.
3. Mr Johnson also gave the following uncontested evidence:

"46 Over the past three fiscal years, Catholic Healthcare has a cumulative operating loss of $33.2 million.

47 This poor financial performance has impacted on the amount Catholic Healthcare has been able to invest in capital infrastructure, such as new residential aged care facilities. It also places ongoing stress on quality of care.

48 The additional costs associated with fit testing will exacerbate these financial challenges, with knock-on impacts to the older Australians being served by Catholic Healthcare."

1. The Respondent tendered in evidence Catholic Healthcare's Statement of Profit or Loss for the year ended 30 June 2024 (P & L Statement), which it had obtained pursuant to summons. It was not a document that Inspector Chigofito asked for as part of his investigations and there is no evidence that he considered the fiscal position of Catholic Healthcare before issuing the Improvement Notice.
2. The P & L Statement showed that for the year ended 30 June 2024 Catholic Healthcare had revenue and other income of $555,555,000 and had made an operating profit of $29,061,000. However, it also showed that after accounting for finance costs and the revaluation of property, plant and equipment, it made an overall loss of $7,191,000. It also showed the results for the previous two financial years, which confirmed Mr Johnson's evidence that Catholic Healthcare had made a cumulative operating loss of $33.2 million.
3. In his reply evidence Mr Johnson gave an unchallenged explanation of Catholic Healthcare's financial position as shown in the P & L Statement and explained why "taking any one year in isolation gives a distorted view of Catholic Healthcare's true financial capacity."
4. Based on the P & L Statement and information in Mr Johnson's statement I am satisfied that Catholic Healthcare has made a cumulative loss of $48m in the period 2020/21 to 2023/24.
5. In response to a criticism in the RS that Catholic Healthcare had not modelled training existing employees to perform fit testing, but instead had assumed that it must employ dedicated fit testers, Mr Johnson prepared four additional sub-models which replicated the data from sub-models 1 - 4, but which "replaced the cost associated with employing and training new employees as fit testers with the cost of training existing clinical staff in fit testing." Mr Johnson gave a detailed explanation of the assumptions used in the sub-models and the foundation for those assumptions, including that the "consequence of using existing staff is that, in additional to the need to backfill for staff and agency staff being fit tested, the roles of existing staff must also be backfilled whilst they are performing fit testing and cannot undertake their usual duties."
6. The table annexed to Mr Johnson's reply statement which summarised the financial models prepared by Mr Johnson was as follows:

(per year on average of 10 years including up front and annual costs)

(total cost of 10 years including up front and annual costs)

This model is based on Catholic Healthcare purchasing 9 fit testing machines and hiring new employees as full- time fit testers that visit Catholic Healthcare's 41 homes to conduct quantitative fit testing when needed.

This model shows 'minimum costs' being achieved, ie the costs that would be incurred if Catholic Healthcare is able to arrange testing in the most efficient way whilst staff are on a regularly scheduled shift (on shift).

As above, this model is based on Catholic Healthcare purchasing 9 fit testing machines and hiring new employees as full-time fit testers that visit Catholic Healthcare's 41 homes to conduct quantitative fit testing when needed.

However, this model shows 'non-minimum costs', ie the costs that would be incurred if testing cannot be arranged in the most efficient way and is based on asking staff to attend a separate shift for fit testing and not whilst they are on shift (off shift).

This model is based on Catholic Healthcare purchasing 9 fit testing machines and hiring new employees as full- time fit testers that visit Catholic Healthcare's 41 homes to conduct qualitative fit testing when needed.

This model shows 'minimum costs' being achieved by testing staff whilst they are on shift.

As above, this model is based on Catholic Healthcare purchasing 9 fit testing machines and hiring new employees as full-time fit testers that visit Catholic Healthcare's 41 homes to conduct qualitative fit testing.

This model shows 'non-minimum costs' calculated by testing staff whilst off shift.

This model is based on Catholic Healthcare outsourcing fit testing to an external provider that visits Catholic Healthcare's 41 homes to conduct quantitative fit testing when needed.

This model shows 'minimum costs' being achieved by testing staff on shift and does not require Catholic Healthcare to purchase fit testing machines.

As above, this model is based on Catholic Healthcare outsourcing fit testing to an external provider that visits Catholic Healthcare's 41 homes to conduct quantitative fit testing when needed.

This model shows 'non-minimum costs' by testing staff off shift and does not require Catholic Healthcare to purchase fit testing machines.

Quantitative fit testing by existing employees - minimum cost

This model is based on Catholic Healthcare purchasing 36 fit testing machines and using internally employed staff who will be trained to conduct quantitative fit testing for employees within a home or closely located pair of homes This model shows 'minimum costs' being achieved by conducting testing whilst staff on shift.

Quantitative fit testing by existing employees - non-minimum cost

As above, this model is based on Catholic Healthcare purchasing 36 fit testing machines and using internally employed staff who will be trained to conduct quantitative fit testing for employees within a home or closely located pair of homes.

This model shows 'non-minimum costs' with staff being tested off shift.

Qualitative fit testing by existing employees - minimum cost

This model is based on Catholic Healthcare purchasing 36 fit testing machines and using internally employed and trained staff to do qualitative fit testing for employees within a home or closely located pair of homes

This model shows 'minimum costs' being achieved with staff being tested whilst on shift..

Qualitative fit testing by existing employees - non-minimum cost

As above, this model is based on Catholic Healthcare purchasing 36 fit testing machines and using internally employed and trained staff to do qualitative fit testing for employees within a particular region or 'cluster' (rather than having a trained employee in each of Catholic Healthcare's 39 NSW homes and having a machine in each home).

This model accounts for some employees having to travel to a home with a trained employee and machine to do fit testing.

However, this model shows 'non-minimum costs' with staff being tested off shift.

1. In short, the minimum projected cost of implementing fit testing across all of Catholic Healthcare's facilities is $1,191,720 per year, based on using third party fit testers, but could be as high as $2,557,740 per year using third party fit testers.

1. SafeWork's principal witness was of course, Inspector Chigofito. He gave evidence via a statement dated 12 November 2024 and was cross examined.
2. Inspector Chigofito has worked as a registered nurse and has a Diploma in Nursing, a Graduate Diploma and a Masters of Workplace Health and Safety from the University of Newcastle, a Diploma of Government (Workplace Inspection) and is currently completing an Advanced Diploma of Government (Workplace Inspection). He has worked for over five years as an inspector and senior inspector at SafeWork. He was the Lead Inspector on SafeWork's "Residential Aged Care Facilities COVID-19 Compliance Campaign".
3. Inspector Chigofito explained that in late 2022 and early 2023, SafeWork NSW conducted a "Residential Aged Care Facilities COVID-19 Compliance Campaign" and that the objective of the campaign "was to monitor compliance with the WHS legislation and to provide advice and education as part of various programs including the management of risks associated with COVID-19 in RACFs."
4. It is not necessary for present purposes to set out all of Inspector Chigofito's evidence regarding the Compliance Campaign. It suffices to record that:

(1) a questionnaire for PCBUs and a Compliance Campaign Checklist and Ready Reckoner for use by inspectors were prepared by SafeWork NSW;

(2) the Ready Reckoner was to provide guidance to inspectors "on addressing non-compliance issues" and indicated that if P2/N95 respirators were being used as a control to protect against COVID-19, an improvement notice should be issued, referring (only) to cl 44 of the WHS regulation, if the PCBU had not implemented fit testing;

(3) SafeWork inspectors conducted visits to 25 separate RACF sites across the Sydney metropolitan and Greater Sydney areas, and out of those 25 sites:

(a) 22 had implemented a Respiratory Protection Program, but 18 of these did not include fit testing of P2/N95 respirator masks;

(b) 4 RACFs had either implemented or were about to begin a fit testing program for P2/N95 respirator masks;

(c) 21 RACFs were provided with guidance and education on adequately managing COVID-19 risks in the workplace;

(d) those 21 RACFs were advised to implement fit testing of P2/N95 respirator masks based on the assessed risk of COVID-19 exposure, ensuring workers are properly protected while using these respirators; and

(e) these 21 RACFs were instructed to establish a system of work that ensures the risk of COVID-19 is minimised effectively within the workplace;

(4) 15 spot checks were subsequently conducted between January and June 2024, revealing 13 providers had begun fit testing, four improvement notices were issued and as at the date of his statement, two had complied with the requirement to fit test, with the third working toward compliance; and

(5) "Spot checks will continue until 100% compliance [with the need to fit test] is achieved by the facilities visited during the compliance campaign."

1. Inspector Chigofito gave evidence of his first visit to St Anne's on 22 February 2023 when he met with Ms Silman, Samikha Dhakal, the Quality Education Manager and Nabin Thapa, a registered nurse.
2. Inspector Chigofito stated that he "conducted a review of the systems of work at the RACFs to manage and control the spread of COVID-19 in the workplace", however in cross examination, by reference to the Inspector's contemporaneous notebooks, it was established that he "flipped through" the documents provided to him during his discussions with the representatives from St Anne's and I am satisfied that his "review" was principally to determine whether respirators were being used and if so, whether fit testing of the respirators was occurring.
3. Inspector Chigofito explained in cross examination that the purpose of the inspection in 2023 was to "ensure that the employer representatives have been provided with the information and they understand their obligations." To that end he explained in his statement that during the meeting:

"a. I advised Ms Silman and other attendees at the meeting on the critical role of fit testing as a key control measure to ensure workers receive adequate protection when using P2/N95 masks, commonly referred to as half respirators.

b. I explained that while fit checking is essential for verifying that the respirator is worn correctly each time, fit testing is crucial for determining if the respirator is the correct size and shape to create an effective seal against the user's face. This seal is vital for achieving the intended protection level, as it eliminates gaps between the mask and the face, thereby significantly reducing the risk of inhaling or exhaling airborne contaminants that can lead to respiratory illnesses.

c. I clarified that fit checking and fit testing serve different purposes and cannot be used interchangeably: fit checking ensures correct positioning each time the respirator is worn, while fit testing confirms that the respirator fits the user's facial structure, allowing for a secure seal. Only with the right size and shape can the respirator effectively block airborne contaminants, including the COVID-19 virus, enhancing protection against exposure."

1. According to Inspector Chigofito, in December 2023, SafeWork issued a letter to all RACFs, notifying them of their obligation to conduct fit testing for workers using P2/N95 masks as a control measure against COVID-19 risks. This is the SafeWork December letter referred to in paragraph [64] above. As noted above, according to Ms MacDonald's unchallenged evidence, the first time Catholic Healthcare received this letter was in July 2024, although ultimately nothing turns on that.
2. Inspector Chigofito gave evidence of his meeting at Catholic Healthcare's head office on 15 July 2024 with Ms MacDonald, Susan Oliver and David Moore. He stated that the "purpose of the meeting was to discuss the implementation of a fit testing program for RACFs as an enhancement to the existing controls implemented to protect workers from COVID-19 risks in the workplace."
3. It is clear from this evidence and from:

(1) Ms MacDonald's evidence that "the Inspector did not appear to be interested in Catholic Healthcare's infection control measures and focused only on fit testing";

(2) various answers given by Inspector Chigofito during cross examination, which I discuss below; and

(3) the agreed facts that the "focus of the discussion at the 15 July 2024 meeting was on fit testing of P2/N95 masks" and that during the meeting Inspector Chigofito said words to the effect that:

(a) "the obligation was on the organisation to ensure workers are adequately protected from COVID-19 and respiratory illnesses by ensuring that fit testing is incorporated to the suite of controls available"; and

(b) "clause 44 of the Work Health and Safety Regulation 2017 ... required Catholic Healthcare to conduct fit testing"; and

(c) "because Catholic Healthcare advised that they had not fit tested workers and do not consider it is essential to fit test, he was considering issuing an Improvement Notice",

that Inspector Chigofito attended the meeting on 15 July 2024 with a fixed view that Catholic Heallthcare had to agree to implement fit testing at St Anne's and at all of its RACFs, or he would issue an Improvement Notice.

"In my meeting with representatives from Catholic Healthcare, they cited cost as a prohibitive factor for conducting fit testing. I provided additional information about RESP-FIT, a fit testing training and accreditation program offered by the Australian Institute of Occupational Hygienists (AIOH), which offers an affordable solution for implementing a cost-effective fit testing program within their organization."

1. I pause to note that Ms MacDonald, gave evidence in reply that she does not recall Mr Chigofito mentioning RESP-FITor raising anything about the costs associated with fit testing at that meeting. For reasons developed below, I do not accept Mr Chigofito's evidence that he provided information about RESP-FIT at the 15 July 2024 meeting or that he expressed any opinion at that meeting about the cost of implementing fit testing. Rather, the evidence indicates that information about RESP-FIT was provided to Catholic Healthcare in the Insepctor's email to Ms Silman dated 23 February 2023. Further, both Ms MacDonald and Mr Johnson gave evidence of having conducted their own subsequent inquiries into RESP-FIT and identified that it is not a body that provides fit testers, fit testing services or fit test training for workplaces. Rather, RESP-FIT accredits fit testing training courses and training providers which in turn providing training and accredits fit testers who have completed training with a training provider or otherwise complete an assessment administered by RESP-FIT.
2. The power to issue an improvement notice pursuant to s 191(a) of the WHS Act is enlivened when an inspector reasonably believes that a person is contravening a provision of this Act (which incorporates the WHS Regulations). Inspector Chigofito's evidence in chief as to the basis for his belief that Catholic Healthcare was "in breach of s 19 of the Act and was committing an offence against section 33 of the Act, and clause 44 of the Regulation due to their failure to fit test workers who were wearing or using P2/N95 masks as a control measure against COVID-19, a virus that is spread as an airborne contaminant" was as follows:

"a. On 22 April 2022, Safe Work Australia released information on masks as a control measure for COVID-19. Under the subheading "What are respirator masks? How should they be used?" it provided details that a respirator mask is a P2/N95 (or equivalent) medical-grade mask that offers protection against airborne contaminants, such as viruses and bacteria in aerosols or respiratory droplets. Further information under the subheading "Fit testing" clarified the requirements for fit testing when using a P2/N95 mask to ensure the correct size and style of the respirator fits the individual.

b. On 15 July 2024, I was informed by representatives of Catholic Healthcare that fit testing had not been conducted at St Anne's and across the Catholic Healthcare RACFs.

c. On 15 July 2024, I reviewed the infection control policies and procedures of Catholic Healthcare, which were similar to those I had reviewed on 22 February 2023, along with the system of work for managing risks related to COVID-19 and other respiratory viruses. Despite my prior advice during the initial visit to St Anne's, these policies and procedures had not been updated to incorporate fit testing as a control measure to ensure workers' adequate protection when using P2/N95 masks.

d. On 15 July 2024, Ms Macdonald stated, in effect: "COVID-19 is considered a very low risk on the organisational risks, and she would not hesitate to recommend to the organisation's leadership that fit testing is unnecessary, given that Catholic Healthcare has a robust system of work in place to mitigate COVID-19 risks across Catholic Healthcare facilities in NSW." These comments were particularly concerning, given that the Health, Safety, and Wellbeing Manager's role primarily focuses on safeguarding the health, safety, and wellbeing of workers within the Catholic Healthcare organisation.

e. I considered that the likelihood of the hazard or the risk concerned occurring was high because:

i. COVID-19 and other respiratory infections are prevalent in RACFs, including St Anne's, posing a frequent risk to both staff and residents.

ii. the history of COVID-19 outbreaks, especially within RACFs, shows a high likelihood of respiratory viruses spreading in these environments. This is particularly relevant given the close-contact nature of care work, which inherently involves frequent interaction with residents, many of whom are elderly and susceptible to infections. Between February 2023 and September 2024, a number of RACFs implemented fit testing, evidencing recognition of this high-risk environment.

f.I considered that the degree of harm that might result from the hazard or the risk was high because:

i. the potential harm from respiratory virus exposure, especially COVID-19, includes severe illness or long-term health impacts, such as Long COVID for workers, and life-threatening consequences for residents.

ii. many residents in RACFs, including St Anne's, are elderly and have underlying health conditions, making them highly vulnerable to severe outcomes from respiratory infections. For staff, exposure to COVID-19 and other respiratory illnesses carries the risk of Long COVID, which can result in long-term respiratory, neurological, and cardiovascular issues, potentially affecting their quality of life and ability to work.

g. I considered that Catholic Healthcare knew, or ought reasonably to have known, that:

i. respiratory viruses pose a serious risk within aged care facilities, and that fit testing of RPE is an effective measure for reducing such risk and ensuring that RPE is used effectively.

ii. airborne transmission of respiratory viruses, including COVID-19, can be mitigated through appropriate use of RPE. Indeed, RACFs implementing fit testing since early 2023 supports the widespread recognition of this risk and the effectiveness of fit testing in mitigating it. Further, there is a wealth of information from health authorities (e.g., NSW Health, Department of Health and Aged Care, Clinical Excellence Commission (CEC), World Health Organisation (WHO), Australian Technical Advisory Group on Immunisation (ATAGI), WHS Regulatory authorities including SafeWork NSW) and industry standards demonstrating that airborne transmission of respiratory viruses, including COVID-19, can be mitigated through appropriate use of RPE.

h. I considered that the availability and suitability of ways to eliminate or minimise the risk included fit testing for RPE, which was readily available, suitable, and effective measure to minimise respiratory virus transmission in RACFs and could also be implemented through certified providers.

i. I considered that after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, was not grossly disproportionate to the risk because:

iii. the cost of implementing fit testing was reasonable and proportionate to the potential risk, especially considering the health and safety obligations of RACFs.

iv. fit testing costs are relatively low compared to the cost of COVID-19 outbreaks, which can lead to staff shortages, increased patient care demands, and potential legal liabilities if RACFs are found noncompliant with their WHS duties. When weighed against the high likelihood and severity of harm from respiratory viruses, the costs of fit testing are not grossly disproportionate, making it a reasonable and justifiable investment in risk management. Outsourcing quantitative fit testing typically costs between $88.00 and $125.00 per person. Training an individual to become a competent person for conducting qualitative fit testing generally ranges from $600.00 to $1,250.00 per person. Additionally, the cost of purchasing a qualitative fit testing kit is approximately $400.00 per kit.

v. It appeared to me that Catholic Healthcare is a large, well-resourced provider of aged care services, where the costs of implementing fit testing would likely be relatively minor compared to its overall operating expenses and work health and safety budget. Other facilities of similar size have successfully conducted fit testing within their residential aged care facilities."

1. For reasons developed below I do not accept that prior to issuing the Improvement Notice Inspector Chigofito in fact engaged in the task of considering, in the context of Catholic Healthcare's facilities, including specifically St Anne's, the matters set out at (e) to (i) above. In particular, it is clear from the evidence that prior to issuing the Improvement Notice Inspector Chigofito did not consider the ways in which Catholic Healthcare was eliminating or minimising the risk of infection from airborne diseases (beyond confirming that they were using respirators) and the cost of implementing fit testing relative to the risk posed at that time from airborne diseases.
2. For completeness I note that the document referred to in (a) above, being a Safe Work Australia document, was not tendered in evidence, so it is unknown precisely what that document said. I also note that Ms MacDonald in her reply evidence disputed that she said during the 15 July meeting that "she would not hesitate to recommend to the organisation's leadership that fit testing is unnecessary". Her evidence was that she said words to the effect that:

"a . On my analysis of the risk, taking into account the likelihood of the risk and the potential consequences of the risk, the implementation of an additional control, that being fit testing, is not warranted.

b. Catholic Healthcare has a comprehensive suite of protocols in place to manage outbreaks of respiratory disease , and there is no evidence to suggest that fit testing would be of any added benefit.

c. Given the practical challenges it poses, and the cost of implementing it, I have no basis on which to recommend to management that we should implement fit testing given there is no evidence to support its effectiveness in reducing infection numbers in a COVID-19 outbreak."

1. Both parties relied on expert evidence to support their respective positions as to the effectiveness of fit testing of respirators as a means of reducing airborne infection. Such evidence was directed toward addressing whether the Improvement Notice should be set aside, or not, in the event that the Commission were to otherwise find that it was validly issued. As I have ultimately concluded that the Notice was not validly issued with respect to a purported contravention of s 19 and that the balance of the Notice should be set aside on the basis of an error of law, I do not need to consider the expert evidence. However, at a high level the expert evidence bolsters my finding, which is otherwise available on the other evidence, that Inspector Chigofito's belief that Catholic Healthcare was breaching reg 44 by not conducting fit testing, was reasonable. It also demonstrates that any belief that s 19 of the WHS Act had been breached due to a failure by Catholic Healthcare to ensure the health and safety or workers and others arising from potential inhalation of airborne contaminants, such as the SARS-CoV-2 virus and other respiratory illnesses, must be based on an assessment of all the relevant circumstances, including the nature and likelihood of the risk posed, at a particular workplace.
2. Catholic Healthcare relied on an expert report prepared by Professor Paul Griffin dated 10 October 2024. Professor Griffin is a Professor in Medicine and Director of Infectious Disease at the University of Queensland and Mater Hospitals, South Brisbane. His resume is extensive and I have no hesitation in accepting that he is an expert in infectious disease and was well qualified to answer the questions posed to him by Catholic Healthcare's instructing solicitors. That said, for reasons I do not need to go into in great depth, I did not find the answers he gave to the questions to be entirely satisfactory.
3. Professor Griffin was asked the following:

"1. To what extent is there a clinical or safety benefit, if any, of fit testing as compared with fit checking?

2. Taking into account the practical and operational implications of carrying out fit testing, to what extent does the clinical or safety benefit, if any, of fit testing, outweigh the use of fit checking in combination with the Infection Control Measures listed at 1.4 above?

3. How has the COVID-19 landscape in Australia changed since 2020, in light of the emergence of new variants of the virus, their varying virulence, and the impact and availability of vaccination? What is the current situation in relation to COVID-19 in respect of these matters?

4. In light of your response to question 3 above, is there a basis to say that fit testing is an absolute requirement for effective infection control?"

1. In respect of the first question Professor Griffin concluded:

"I could find no robust evidence to suggest there is a demonstrable clinical or safety benefit of fit testing as compared with fit checking and in fact relevant guidance at both a national and relevant state level does not outline that fit testing is actually required. While fit testing is outlined as something that may be considered in one of the guidelines discussed above, there are important considerations in terms of the risk profile of COVID-19 overall that has declined significantly and in terms of the level of patient acuity in residential aged care that is lower in terms of risk of transmission."

1. Curiously, while Professor Griffin identified and referred to numerous "guidance documents" he did not refer to the DHAC Guidance, nor did he refer to the AS/NZS 1715:2009 - Selection, use and maintenance of respiratory protective equipment (referred to in the Improvement Notice), both of which state that fit testing is required.
2. Professor Griffin's answer to the second question, in summary, was:

"Given there are essentially no clinical or safety benefits that I could find, any practical or operational implications need to be carefully considered in that context."

1. Professor Griffin provided a lengthy and detailed response to the third question, the conclusion of which was:

"While not encouraging complacency, the landscape of COVID-19 has changed significantly since 2020 with inherent reductions in risk due to changes in the virus itself that have lowered its severity coupled with several important interventions including high levels of natural immunity, improved vaccines as well as access to both oral and intravenous antivirals. Taken together and as outlined by many sources of data above, the risk from COVID-19, particularly of severe disease, has reduced significantly over time and this needs to be considered in terms of requirements for ongoing mitigation strategies. As evidenced by the implementation of the national plan that included the removal of the majority of broader mitigation strategies some time ago and the iterative removal of other requirements including those necessitating vaccination even in high-risk health care settings, the reduced risk now makes it increasingly challenging to enforce mitigations for COVID-19. The costs and risks of any mitigation need to be carefully considered in terms of the additional benefit in what is now a much lower risk situation than it was in 2020."

1. Professor Griffin's response to the final question, in summary, was:

"... as outlined in detail in response to the previous 3 questions, a robust evidence base for a clinical or safety benefit of fit testing as compared to fit checking is lacking and this is further exemplified by the notable omission of fit testing in the major Australian and some international guidelines as reviewed in question 1. Given the absence of evidence of a clinical or safety benefit, the practical and operational implications of fit testing, of which there are many, therefore cannot readily be justified. The risk of COVID-19 has declined both due to changes in the properties of the SARS-CoV-2 virus responsible and due to interventions available to further mitigate the risk including vaccination and antivirals. A comprehensive infection control plan, as in place in this case, further mitigates the risk of COVID-19 and reduces the prospect for benefit of additional strategies like fit testing. Hence, my opinion is that there is not a basis to say that fit testing is an absolute requirement for effective infection control in this context."

1. It seems to me that Professor Griffin attempted to downplay or qualify any references in the papers he referred to (which were not annexed to his report) that suggested that there was a safety benefit in, or at least a preference for, fit testing rather than fit checking, and he gratuitously attempted to explain why he considered that Catholic Healthcare's procedures (about which he had no personal knowledge) would overcome any failure to fit test, and that the "costs and risks of any mitigation need to be carefully considered in terms of the additional benefit", such that I consider he verged on being an advocate for Catholic Healthcare rather than a truly independent expert.
2. SafeWork NSW relied on a statement prepared by Michael Weller dated 14 November 2024. Mr Weller is a State Inspector for SafeWork in the Hygiene and Toxicology Team primarily focusing on legislative compliance, policy advice and education with respect to hazardous chemicals. He is a Certified Occupational Hygienist with the Australian Institute of Occupational Hygienists and has written and presented numerous scientific papers on assessing and controlling exposures to hazardous chemicals and airborne contaminants, some of which have included the use of respiratory protection. Given his position as an inspector for SafeWork, Mr Weller could not be regarded as a truly independent expert either.
3. Mr Weller's evidence, while not objected to by Catholic Healthcare, was challenged on the basis that he was not an expert in infectious airborne disease, but rather "hazardous chemicals and nonliving airborne contaminants like dust and silica". Mr Weller accepted that his expertise was so limited.
4. Mr Weller referred to four scientific papers to support the view that respirators can reduce the infectious disease risk for workers and four scientific papers which indicated that, "when fit checking is conducted without fit testing, users of respiratory protection are unable to accurately assess if their respirators have formed an adequate seal between the respirator and the wearer's face." Mr Weller also referred to, and attached, five "examples of Australian and international legislation or standards where respirator fit testing is required or recommended when workers are provided with RPE for protection against airborne contaminants". One of those examples was AS/NZS 1715: 2009 - Selection, Use and Maintenance of Respiratory Protective Devics", which was the standard referred to in the Improvement Notice. That document relevantly provided:

"2.6 FITTING OF RPE

For RPE with a close fitting facepiece to provide its designed protection, it is essential that an adequate face seal is achieved, i.e. it be properly fitted to the wearer.

There are two types of facial fit test-qualitative and quantitative. Qualitative tests are usually simple and fast but may be influenced by the wearer. The quantitative test is not subjective but requires the purchase of special equipment, and a trained operator.

Clause 8.5 describes the various types of fit test. The program administrator shall ensure a suitable fit test is carried out for all users of RPE with a close fitting facepiece."

1. Professor Griffith prepared a supplementary report in response to Mr Weller's statement. It is not necessary for me to explain in detail the matters discussed in Professor Griffith's supplementary report; his conclusion will suffice:

"In summary, the witness statement of Michael Weller does not change my opinion as expressed in my initial report. While it does provide some evidence suggesting that fit testing may be superior to fit checking when using mask fit or leakage as the outcome and as determined by fit testing, many pieces of evidence even for this were poor quality in terms of limitations in study design and particularly subject number. However, no evidence was provided to demonstrate that fit testing was superior to fit checking in the matters relevant to this case which is in the mitigation of infectious diseases risk. Conversely, I have included a selection of studies that, in addition to content in my initial report, further demonstrate there is no significant difference able to be demonstrated in respiratory tract infection rates between the qualitatively fit-tested and not-fit-tested N95 respirators. This is not to suggest fit testing does not have a role; it should be utilised where practical in a risk based, considered manner and the context including other preventative measures should be considered. This includes other risk mitigating strategies such as the comprehensive set of infection control measures utilised by Catholic Healthcare in the event of/to prevent COVID-19 or other respiratory disease outbreaks at their residential aged care facilities. Whilst still considering risks versus costs, resources and limitations, fit tested N95's should typically be more firmly recommended in settings where exposure to more highly transmissible and or pathogenic organisms is likely such as those who care for patients with measles or tuberculosis in the acute care setting, as well as in settings where the exposure risk is increased for example those who perform aerosol generating procedures such as bronchoscopy."

1. As I have already stated, the expert evidence is ultimately not relevant to my review. However, the expert evidence, taken as a whole, establishes that:

(1) as at July 2024 there were numerous scientific papers that show fit testing is superior to only fit checking to ensure that there is no leak in a respirator;

(2) as at July 2024 there were many "guidance" documents issued, including AS/NZS 1715: 2009, which indicated that a fit test should be undertaken before using a respirator;

(3) neither party has located a peer reviewed study which demonstrates that there is a significant demonstrable difference in respiratory tract infection rates when using a fit-tested respirator compared to a not-fit-tested respirator; and

(4) fit testing of masks to reduce the risk of respiratory tract infection should be included in any assessment of how best to reduce the risk, after assessing the nature of the risk, including the likelihood of it happening and when taking into account other risk mitigating strategies and cost.

1. Catholic Healthcare contends that the Internal Review Decision should be varied to a decision to set aside the Improvement Notice on the ground that the Inspector did not have a reasonable belief that the Applicant was contravening s 19 of the WHS Act or reg 44 of the WHS Regulation in relation to Catholic Healthcare's alleged failure to conduct fit testing of respirators in its residential aged care facilities.
2. The first matter for determination is whether the Inspector had to have a reasonable belief that Catholic Healthcare had contravened either s 19 or reg 44, not both, as submitted by SafeWork.
3. Sections 191 and 192 refer to "a provision" of the WHS Act in the singular. That in itself begs the question whether an Improvement Notice that refers to more than one provision is valid. Assuming that it is, in circumstances where Catholic Healthcare did not contend otherwise, I consider that s 191 plainly requires the inspector to hold the requisite belief in respect of each provision he or she considers is being, or has been, contravened. However, I do not consider, particularly in light of the objects of the WHS Act as set out in s 3_,_ that there is any good reason to hold that a finding that an inspector did not hold a reasonable belief in respect of one provision, would invalidate the whole of the notice.
4. Thus, the Commission must be satisfied in this case, that Inspector Chigofito held a reasonable belief that Catholic Healthcare had contravened s 19 and reg 44, but should set aside that part of the notice that concerns either provision if Inspector Chigofito did not hold the requisite belief with respect to that provision.
5. The balance of the issues for determination are:

(1) Did Inspector Chigofito believe that Catholic Healthcare was contravening reg 44 of the WHS Regulation and if so, was that belief reasonable?

(2) If Inspector Chigofito did reasonably believe that Catholic Healthcare was contravening reg 44, should the Improvement Notice nevertheless be set aside on the basis that reg 44 did not apply to Catholic Healthcare, or for any of the reasons set out in paragraph [42] above?

(3) Did Inspector Chigofito believe that Catholic Healthcare was contravening s 19 of the WHS Act and if so, was that belief reasonable?

(4) If Inspector Chigofito did reasonably believe that Catholic Healthcare was contravening s 19, should the Improvement Notice nevertheless be set aside for any of the reasons set out in paragraph [42] above?

Did the Inspector reasonably believe that reg 44 was being contravened?

1. Although s 19 of the WHS Act is the first provision mentioned in the Improvement Notice, it is convenient to first address whether Inspector Chigofito reasonably believed that reg 44 was being contravened, for reasons that will become apparent.
2. Catholic Healthcare submitted in its Outline of Submissions (AS) that reg 44 did not and does apply to Catholic Healthcare and "therefore there was no objective basis on which the Inspector could have reasonably believed Catholic Healthcare had contravened cl 44". However, for the reasons explained at [30] to [40] above, if reg 44 did not and does not apply to Catholic Healthcare, this will not necessarily mean that Inspector Chigofito did not reasonably believe that it did and that Catholic Healthcare was contravening the provision.
3. The first question to answer though is, did reg 44 apply to Catholic Healthcare?
4. As I noted at [51] - [52] above, reg 44 applies only "if personal protective equipment is to be used to minimise a risk to health and safety in relation to work at a workplace in accordance with clause 36". Regulation 36 is located in Part 3.1 of the WHS Regulation. Part 3.1 only applies to PCBUs who have a duty under the Regulation to manage risks to health and safety.
5. Catholic Healthcare submitted at AS [17] - [18]:

"17. The WHS Regulation does not impose a general duty to manage risks to health and safety. Rather, it imposes duties to manage risks to health and safety in particular contexts: for example, when workers are undertaking remote or isolated work (cl 48), where there is a 'hazardous atmosphere' at the workplace (cl 51), when workers are engaging in a 'hazardous manual task' (cl 60), and in relation to electrical risks (cl 147), the management or control of plant (cl 203), and construction work (cl 297).

18. None of these provisions, or any others in the WHS Regulation that impose a duty to manage risks to health and safety, applies to Catholic Healthcare's general operations, including the infection control processes in its facilities. It follows that Part 3.1, and therefore cl 36 of the WHS Regulation, do not apply to Catholic Healthcare in that regard. Because the application of cl 44 is contingent on the application of cl 36, it also does not apply. It follows that there was no objective basis on which the Inspector could have reasonably believed Catholic Healthcare had contravened cl 44."

1. This submission is consistent with commentary contained in Tooma's Annotated Work Health and Safety Act 2011 (2nd Ed, 2017, Thomson Reuters) at [17.20] (with emphasis added):

"Clauses 32-38 of the Regulation prescribe a consistent process of risk management which applies wherever an express risk management duty is imposed on a person conducting a business or undertaking in the Regulation: cl 32. That process is not a general risk management obligation as existed in all predecessor regulations (with the exception of Victoria). Rather, the process applies only to hazards specifically identified in the Regulations.

The process requires hazards to be identified: cl 34. Any risks arising from those hazards must then be eliminated so far as reasonably practicable, or minimised so far as is reasonably practicable if it is not reasonably practicable to eliminate them: cl 35. Any control of risk for that purpose is to be done in accordance with the hierarchy of control measures set out in cl 36. That hierarchy is as follows. The duty holder must minimise risks, so far as is reasonably practicable, by doing one or more of the following:

• substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk: cl 36(3)(a)

• isolating the hazard form any person exposed to it: cl 36(3)(b);

• implementing engineering controls: cl 36(3)(c).

If a risk remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls: cl 36(4).

If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, be ensuring the provision and use of suitable personal protective equipment: cl 36(5)."

1. That reg 36 (and hence reg 44) only have application to "hazards specifically identified in the Regulations" is supported by the fact that where the Regulations expressly require a PCBU to manage risks arising from an identified hazard, the words "in accordance with Part 3.1" are used. For example, reg 48(1) provides:

(1) A person conducting a business or undertaking must manage risks to the health and safety of a worker associated with remote or isolated work, in accordance with Part 3.1.

Note.

WHS Act - section 19 (see clause 9).[6]

1. Further support for this construction can be seen from the fact that if the regulations in Part 3.1 applied generally to PCBU's with a duty to manage risk, surplusage would result, as reg 35 would cover the same territory as s 17 of the WHS Act. Reg 35 provides:

35 Managing risks to health and safety

A duty holder, in managing risks to health and safety, must -

(a) eliminate risks to health and safety so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety - minimise those risks so far as is reasonably practicable.

17 Management of risks

A duty imposed on a person to ensure health and safety requires the person -

(a) to eliminate risks to health and safety, so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

1. Clearly reg 35 (and similarly reg 36) is directed only to those PCBU's who have a duty under the Regulation to manage risks to health and safety.
2. Tellingly, SafeWork made no written submissions in response to Catholic Healthcare's submissions that reg 44 did not apply, or indeed any substantive submission in writing to support the contention that Inspector Chigofito held a reasonable belief that reg 44 was being contravened. In closing oral submissions counsel for SafeWork, Mr Pen, accepted that a duty to manage risks to health and safety had to be identified in the Regulation for Part 3.1 to apply, but then submitted that such a duty could be a "general duty" as opposed to a specific duty. Counsel submitted that such a general duty could be found reg 40(e) which provides:

A person conducting a business or undertaking at a workplace must ensure, so far as reasonably practicable, the following:

(a) ....

...

(e) ventilation enables workers to carry out work without risk to health and safety,

...

1. I had the following exchange with Mr Pen regarding this submission:

"COMMISSIONER: And do you say that then that is how and the only way you'd get to cl 44 being operative?

PENN: Indeed and it is in fact not that clause for example 40 (e) is being breached, that is not the submission. Clause 40 (e) is simply the gateway to 44 which is and has always been the subject provision."[7]

1. I do not consider that reg 40 is a provision which engages reg 36, and through that provision, reg 44. Regulation 40 imposes a duty, on all PCBUs, to ensure that certain things are done, so far as it reasonably practicable, e.g. ensure safe ventilation; ensure safe working spaces, etc. It does not, in terms, impose a duty to "manage risks to health and safety" as other regulations expressly do, which regulations also refer to managing such risks "in accordance with Part 3.1". Further, it would not make sense for reg 36 to apply to reg 40. Reg 36 prescribes a hierarchy of risk control measures to help minimise risk, whereas reg 40 is directed to achieving a particular condition. To illustrate: the provision of PPE for instance, being the last measure in the hierarchy of controls, will not affect one way or the other, the ventilation, that is the availability of fresh air, in the workplace and would not assist the PCBU in meeting is obligation under reg 40(e).
2. In circumstances where SafeWork has identified no other regulation by which reg 44 might have been engaged, and I have not identified one, I conclude that reg 44 did not apply to Catholic Healthcare. In those circumstances the Improvement Notice must be set aside, as Counsel for SafeWork conceded,[8] even if Inspector Chigofito reasonably believed that reg 44 did apply and was being breached by Catholic Healthcare's failure to implement fit testing.
3. For completeness, and perhaps surprisingly in the circumstances, I consider that Inspector Chigofito did reasonably believe that reg 44 applied and had been breached.
4. Counsel for Catholic Healthcare submitted in closing oral submissions that:

"a reasonable person in the inspector's position is not just any person on the street. An inspector is a person whose functions and powers under the Work Health and Safety Act include providing information and advice about compliance with the Act and the regulation and so when we're talking about a reasonable person, we're talking about a reasonable person with knowledge, experience and expertise in the Work Health and Safety Act and regulations and regulation."

1. In those circumstances, Catholic Healthcare submitted, that Inspector Chigofito could not have reasonably believed that reg 44 was being contravened, because he could not reasonably have believed that reg 44 applied to Catholic Healthcare. Alas, I have to disagree with this submission as the evidence indicates that SafeWork NSW itself and it seems other work, health and safety regulators across Australia, have regarded reg 44 as having general application. Such evidence includes:

(1) the Ready Reckoner providing guidance to inspectors "on addressing non-compliance issues" as part of SafeWork's Residential Aged Care Facilities COVID-19 Compliance Campaign, which contained references throughout to Regulations 34 - 38 of the WHS Regulations and which specifically indicated that if P2/N95 respirators were being used a control to protect against COVID-19, an improvement notice should be issued if the PCBU had not implemented fit testing, referring only to reg 44 of the WHS Regulation;

(2) the SafeWork December Letter which expressly stated that reg 44 applied;

(3) Inspector Chigofito's submission to the internal reviewer which stated:

"To ensure workers' protection from bacteria and viruses, including SARS-CoV-2, the virus responsible for COVID-19, inspectors advised RACFs to incorporate fit testing as part of their safety measures, in compliance with clause 44 of the Work Health and Safety Regulation 2017 and AS/NZS1715:2009 which covers the selection, use and maintenance of respiratory protective equipment.

SafeWork NSW's Position on Fit Testing

In November 2023, SafeWork NSW HSD Directorate senior leadership met with the Minister of Workplace Health and Safety and the New South Wales Nurses and Midwives Association (NSWNMA) to address the lack of fit testing in RACFs. It was agreed that SafeWork NSW should take a compliance approach to ensure RACFs meet their obligations to fit test workers using P2/N95 masks according to WHS legislation. Consequently, in December 2023, SafeWork NSW released a position statement and resources on its website, highlighting the necessity of fit testing. A letter was sent to RACFs to communicate this position."

(4) the Internal Review Decision which set out the terms of reg 44 and stated:

(Under the heading "SafeWork NSW position on Fit testing and Fit Checking) "Where PPE is used to minimise a risk to health and safety, Clause 44 of the WHS Regulations (NSW) 2017 applies.

...

In December 2023, SafeWork NSW released a position statement and resources on its website (https://www.safework.nsw.gov.au/resource-library/hazardous-chemicals/respiratory-protectiveequipment-and-requirements-for-fit-testing-workers) which explains the necessity for fit testing to meet legislative requirements under clause 44 of the Regulation. This position was also communicated by way of a letter to numerous Residential Aged Care Facilities (RACF).

...

The PCBU provides a rigorous process which includes Fit Checks however the position of SafeWork NSW along with multiple other Work Health and Safety Regulators across Australia for the requirements of ensuring a suitable size and fit as required by clause 44 of the Regulation for respiratory protection of workers is that a Fit Test is required."

1. It must also be noted that I too, took some time to comprehend how and when Part 3.1 of the WHS Regulation applies and hence when reg 44 applies. Counsel for Catholic Healthcare took quite a while in closing oral submissions to explain the schema of the Regulation to me. It is not straightforward. Further, I could find no decision that explained whether reg 44 applies whenever PPE is used to minimise risk to health and safety, as suggested in the SafeWork materials, or only when an express risk management duty is imposed on a PCBU in the Regulation, as explained by Tooma.
2. In all the circumstances, and despite Inspector's Chigofito's knowledge, experience and expertise, I consider it was reasonable for the Inspector to believe that reg 44 applied to Catholic Healthcare.
3. The next question then is, was it reasonable for Inspector Chigofito to believe that Catholic Healthcare had breached the reg 44 by failing to fit test, in circumstances where the regulation does not stipulate fit testing, but rather that the PPE provided must be "a suitable size and fit and reasonably comfortable for the worker who is to use or wear it."
4. I consider that it was reasonable for Inspector Chigofito to believe that to be of a "suitable size and fit" a respirator must be fit tested. While it may be the case, as Professor Griffith opined, that there is limited or no evidence that fit-tested respirators significantly reduces the rate of respiratory tract infections when compared to non-fit-tested respirators, the evidence clearly showed that as at July 2024 there were numerous scientific papers that show fit testing is superior to only fit checking to ensure that there is no leak in a respirator; and there were numerous "guidance" documents issued by authoritative bodies, including the DHAC Guidance and AS/NZS 1715: 2009, which indicated that fit testing was required to ensure a suitable size and fit. The Internal Review Decision included the following:

Other jurisdictions and reputable authorities that have identified as a position the need for a Fit Test include:

•WorkSafe Victoria which identifies Fit Testing and Fit Check requirements for P2/N95 respirators. (https://www.worksafe.vic.gov.au/managing-covid-19-risks-healthcare-andsocial-assistance-industry-respiratory-protective-equipment)

•SafeWork SA explains what a Fit Test and a Fit Check is and why these are required. https://www.safework.sa.gov.au/workers/respiratory-protective-equipment/fit-testing-andfit-checking-of-rpe

•WorkSafe Queensland also identifies that a fit test is required. https://www.worksafe.qld.gov.au/safety-and-prevention/creating-safe-work/managingrisks/personal-protective-equipment-ppe/respiratory-protective-equipment-rpe

•WorkSafe WA provides clear information on the requirements for Fit Testing https://www.commerce.wa.gov.au/publications/information-sheet-respiratory-protectiveequipment-fit-testing-requirements

•SafeWork Australia has also incorporated a position on the requirement for Fit Testing and Fit Checking https://covid19.swa.gov.au/covid-19-information-workplaces/industryinformation/general-industry-information/masks?tab=tab-toc-employer#heading--1--tab-tocmasks\_as\_a\_control\_for\_covid-19

•South Australia Health requires an approved fit testing method in accordance with the Australian Standards

https://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/clinical+resources/clinical+programs+and+practice+guidelines/infection+and+injury+management/healthcare+associated+infections/prevention+and+management+of+infections+in+healthcare+settings/staff+protection+from+infections#:~:text=Personal%20protective%20equip

•The Centre Disease Control (CDC) also identifies Fit Testing requirements

https://www.cdc.gov/niosh/npptl/topics/respirators/disp\_part/respsource3fittest.html#:~:text=Yes.,using%20it%20in%20the%20workplace.

•The Australian Government Department of Health and Aged Care, Therapeutic Goods Administration, have released "Guidance on Personal Protective Equipment: health professionals" on the 29 May 2024 which identifies the need for Fit Testing to ensure proper facial seal to the wearer." https://www.tga.gov.au/resources/resource/guidance/guidancepersonal-protective-equipment-health-professionals

...

•Health Care Workers Australia has identified Fit Testing as an essential component to ensure the safe use of respirators and provided detail reasoning to the Fit Testing requirements. https://healthcareworkersaustralia.com/fit-testing/

1. In the circumstances I consider that it was reasonable for Inspector Chigofito to have believed that the requirements of reg 44 would not be met if fit testing had not taken place.
2. Catholic Healthcare submitted (at AS [27]) that reg 44 does not entail "any absolute obligation to implement a particular measure irrespective of the circumstances of the particular case that would affect the reasonable practicability of doing so." It said this was the case because:

"26. ... cl 44 is conditional on the operation of cl 36, and in any event is contextualised by that clause. Clause 36 provides for a hierarchy of control measures which apply in circumstances where 'it is not reasonably practicable for a duty holder to eliminate risks to health and safety'. Implementing PPE is the last measure in the hierarchy, with the measure expressed as (emphasis added):

(5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment.

27. In other words, the provision of suitable PPE, including in accordance with cl 44, is in service of the duty holder minimising a risk which cannot be eliminated so far as is reasonably practicable."

1. However, it seems to me that what reg 44 does is oblige a PCBU (to whom the regulation applies) who uses PPE to minimise risk, (if a risk remains after the implementation of the control measures higher in the hierarchy of control measures, as were reasonably practicable), to ensure that the PPE meets the attributes stipulated in reg 44(3)(a) and (b), come what may. Notably reg 44(3)(c) provides that the PCBU must ensure that the PPE provided is "used or worn by the worker, so far as reasonably practicable". That qualification is not included in reg 44(3)(a) or (b). In short, if Part 3.1 were to apply to Catholic Healthcare, (which it does not) and if Catholic Healthcare used PPE, so far as reasonably practicable, as part of its hierarchy of control, the requirement to ensure it is a suitable size and fit and reasonably comfortable for the worker who is to use or wear it, would be an absolute obligation. The evidence indicates that to obtain a "suitable size and fit" in the case of respirators, fit testing may be required. However, I do not need to make a finding about that.
2. In conclusion, I consider that while Inspector Chigofito reasonably believed that Catholic Healthcare was contravening reg 44, as reg 44 did not apply to Catholic Healthcare, that part of the Improvement Notice must be set aside.

Did the Inspector reasonably believe that s 19 was being contravened?

1. I am satisfied from the preponderance of the evidence, that Inspector Chigofito did not reasonably believe that Catholic Healthcare was contravening s 19 because only after issuing the Improvement Notice did he turn his mind to the elements that would make up a contravention of s 19. As was submitted by Catholic Healthcare, it was necessary, in order for the Inspector to reasonably believe that Catholic Healthcare was contravening s 19, for the Inspector to give genuine consideration to the particular circumstances of Catholic Healthcare and its facilities to determine whether fit testing was a reasonably practicable measure to minimise the risk posed by airborne contaminants, such as the SARS-CoV-2 virus and other respiratory illnesses, to ensure the health and safety of workers and others. It is clear that the Inspector did not do this from the following matters.
2. The evidence established that in late 2022 and early 2023, SafeWork had formed the view that fit testing of respirators was an absolute requirement in order to comply with reg 44 and that it had devised and commenced conducting a COVID-19 Compliance Campaign for RACFs in NSW during which it insisted that fit testing be implemented, or an Improvement Notice would be issued. In cross examination Inspector Chigofito accepted this this was an "agency position."[9] The issue of the Improvement Notice to Catholic Healthcare was part of that compliance campaign.
3. The Ready Reckoner issued by SafeWork NSW to Inspectors as part of the Compliance Campaign referred to the issue of an Improvement Notice if respirators were being used, but fit testing was not taking place, but referenced reg 44 only, not s 19.
4. Inspector Chigofito gave evidence that "Spot checks [by SafeWork] will continue until 100% compliance [with the need to fit test] is achieved by the facilities visited during the compliance campaign" and in cross examination agreed that fit testing needed to be part of the infection control measures at RACFs "in every case"[10], "regardless of the individual circumstances of the facility"[11] and "irrespective of other infection control measures it might have in place."[12] From this evidence I infer that SafeWork NSW, and consequently its inspectors, and certainly Inspector Chigofito in respect of Catholic Healthcare, were paying no regard to the individual circumstances of the RACF, in insisting on fit testing. This may have been appropriate if reg 44 in fact applied, but plainly is not appropriate, when considering whether the failure to fit test results in a contravention of s 19, given the terms of s 19 and s 18 of the WHS Act.
5. At the meeting at St Anne's on 22 February 2023 Inspector Chigofito only "flipped through" or "browsed" the documents evidencing St Anne's control measures to ensure health and safety of workers with respect to airborne contaminates, including COVID-19, which were provided to him during his discussions with the representatives from St Anne's and it is clear that that his "review" of those documents was principally to determine whether respirators were being used and if so, whether fit testing of the respirators was occurring. He did not undertake any kind of assessment as to whether those measures ensured, so far as reasonably practicable, the health and safety of workers and others.
6. In the 9 July Chigofito email, sent only an hour and half after receiving 113 pages of material detailing Catholic Healthcare's infection control procedures, the Inspector emailed Ms MacDonald attaching the SafeWork December Letter and advising: "Following the release of this guidance, we are actively conducting follow-up visits to monitor compliance with the Fit Testing program, as initially advised during my visit in February 2022. This is in alignment with WHS Regulation 2017 clause 44 and AS/NZS 1715:2009, which covers the selection, use, and maintenance of respiratory protective equipment." It is clear that Inspector Chigofito had no regard to the material sent to him or the content of Ms MacDonald's email for the purposes of making the multifactorial assessment required by ss 18 and 19, but rather was focused upon the need to fit test in order to comply with reg 44.
7. As I have found at paragraph [96], Inspector Chigofito attended the meeting on 15 July 2024 with a fixed view that Catholic Heallthcare had to agree to implement fit testing at St Anne's and at all of its RACFs, or he would issue an Improvement Notice. While Inspector Chigofito said in his statement that on 15 July 2024 that he reviewed Catholic Healthcare's infection control policies and procedures along with the system of work for managing risks related to COVID-19 and other respiratory viruses, it is clear from what he admits he said during the meeting and his answers in cross examination that his review was directed only toward establishing that Catholic Healthcare was still not implementing fit testing of respirators. Such answers included:

"Q. And irrespective of any risk assessments that the PCBU might have conducted themselves?

A. So as I say, as part of the inquiries that I made, I reviewed whatever the PCBU would have considered and things like risk assessments were part of the information that we were asking for and were reviewing when we were making our decision. However, if your risk assessment provided that you would use P2 and N95 mask as a control measure, then you would need to fit test.

Q. So long as - if I can put it this way. For any PCBU that uses P2 or N95 masks as a control measure, under clause 44 you believed they needed to conduct fit testing?

A. Yes.

...

Q. But even in 2023 it was your view, wasn't it, that if a residential aged care facility was using P2 or N95 masks in relation to a risk of Covid-19, they had to implement fit testing?

A. Yes.

Q. And that was required by clause 44 of the Work Health and Safety Regulation. That was your view, wasn't it?

A. Yes.

Q. Irrespective of matters such as their existing infection control measures, their existing risk assessments or the cost?

A. Yes.

Q. And you still had that belief, didn't you, at the time you issued the improvement notice in this case? That is, July 2024?

A. Yes."[13]

...

"Q. Am I right in thinking that all you were looking for when you browsed the documents was whether Catholic Health Care's protocols included fit testing?

A. Yes that's correct."[14]

1. While it is the case that Inspector Chigofito, at the meeting on 15 July 2024, requested and was subsequently provided with, the dates of outbreaks and numbers of staff infected at St Anne's, which would have given him some information about the likelihood of the hazard or the risk occurring, these being matters that inform what control measures might be "reasonably practicable" (noting however, that there is no evidence that the Inspector was given any information as the health outcomes of the infected staff or residents), it is clear from Inspector Chigofito's evidence in cross examination that he had already formed the view that an improvement notice should be issued before he received the information.[15]
2. As already indicated, Inspector Chigofito gave numerous answers during cross examination that indicated that his firm belief was that reg 44 of the WHS Regulation required fit testing of masks and that this was the only provision he had in his mind at the time he issued the Improvement Notice. Such answers included:

Q. At the time of issuing the improvement notice to Catholic Healthcare, am I right in understanding that you believed clause 44 of the Work Health and Safety Regulation made it mandatory for a PCBU to conduct fit testing if it was using PPE?

A. Probably I wouldn't use the word "mandatory". However, it's enshrined in clause 44 that the wearer of a mask or the user of a mask, which is a respirator, it must be of a suitable size and fit and reasonably comfortable. So how I formed that view, it was for you to achieve or to be able to know the size of the mask that you need to wear. You can only do that through a fit testing."[16]

1. That Inspector Chigofito was concerned only with reg 44 at the meeting on 15 July 2024 is confirmed by Ms MacDonald's unchallenged evidence, including her evidence that Inspector Chigofito said during the meeting: "Other control measures are irrelevant. You are not complying with clause 44."
2. While Inspector Chigofito said in his statement that he considered, before issuing the Improvement Notice, that the cost of fit testing was not grossly disproportionate to the risk, I do not accept this evidence. It is the case that the cost of implementing fit testing was raised by Catholic Healthcare's representatives at the 15 July 2024, however it is clear that Inspector Chigofito was of the view that reg 44 of the WHS Regulation required Catholic Healthcare to fit test masks regardless how much it cost, and any discussion of the cost of fit testing (which seems occurred in February 2023 rather than in July 2024) was directed to helping Catholic Healthcare find ways to limit the cost, rather than to form a view as to whether the cost of fit testing was grossly disproportionate to the risk. I do not accept that Inspector Chigofito considered whether the cost of fit testing was grossly disproportionate to the risk due to a number of exchanges in cross examination such as the following:

"Q. ... your view is that under clause 44 a PCBU that uses P2 or N95 masks is required to fit test, irrespective of the cost of fit testing?

A. I would say yes.[17]

...

"Q. But you've told the Commission that as - irrespective of the cost, it was your view that clause 44 required the PCBU to implement fit testing if it was using PPE?

A. I would say yes, I say that. However, we had two interactions that I had with the employer representative. The first one was in 2023 and the second one was in 2024. In the 2023 interaction that I had with the employer, I did provide advice and I also provided advice on the other mechanisms available which were affordable for the PCBU to implement the fit testing programme."[18]

...

"Q. Do you not accept that in working out whether it's reasonably practicable for a particular PCBU to do something you need to understand something about the financial circumstances of that particular PCBU?

A. Yes I understand that.

Q. But you didn't take that into account in relation to Catholic Health Care did you?

A. I did consider it as I said as part of the conversation that I had with them, I provided some information as to other options available that they ought utilise which would assist them to do this fit testing program, it's an affordable price if I can state that.

Q. But if Catholic Health Care's representatives had told you it's going to cost us ten million dollars to implement fit testing you would still have formed the view that they needed to implement fit testing would you?

A. To me the reason for forming the view viz a viz the costs it was more the legislative requirements that PCBU had to adhere to, to ensure that their workers and others within their workplace are protected so like I said earlier on, clause 44 talks about suitable size and fit and reasonable comfort and for you to achieve that, you would need to do the fit testing. As well if you go back to the other information that's available, it's only fit testing which would assist the PCBU to be able to comply with the legislative requirements.

Q. So fit testing has to be done, whatever the costs?

A. I would say from the other facilities that I had visited which are pretty much the same size as Catholic Health, they'd implemented the program successfully.

Q. Just focussing on my question, in terms of your understanding of the legislative requirements, fit testing had to be done whatever the costs, isn't that right?

A. I would say fit testing had to be done and that's where we're saying that there's a couple of mechanisms available for fit testing to be done and that was up to the discretion of the business to know which process they would utilise to comply with their legislative requirements."[19]

1. It is the case the Inspector Chigofito gave evidence to the effect that he did not consider the cost to be grossly disproportionate to the risk because other RACF of similar size had implemented fit testing. While I accept that to hold a reasonable belief the Inspector did not require evidence that is objectively capable of proving the fact beyond reasonable doubt, or on the balance of probabilities, however as I have already highlighted, the issue of an Improvement Notice has potentially very serious consequences for the recipient, including that the cost of compliance may be considerable, as the evidence shows would be the case here. If it is asserted by an Inspector that he or she believes the recipient has breached s 19 of the WHS Act, which obliges the PCBU to ensure the health and safety of workers and others, "so far as reasonably practicable", the Inspector must have at least considered the cost implications to the subject PCBU, particularly where the PCBU expressly raises the issue of cost, relative to the risk, as being a significant factor, rather than merely assume that because a control measure is taken by one or more PCBU's, that measure can reasonably practicably be implemented by another. In re-examination Inspector Chigofito confirmed that he did not ask Catholic Healthcare for any information from Catholic Healthcare, "on the financial perspective."[20]
2. Critically, Inspector Chigofito gave the following evidence which I consider unequivocally establishes that the only foundation Inspector Chigofito had for considering that s 19 had been breached, at the time he issued the Improvement Notice, was the fact that he believed reg 44 had been breached and that he had not considered the factual matrix necessary to found a reasonable belief that s 19 had been breached:

"Q. Your view, is this right, is that if Catholic Health Care was in breach of clause 44 by not conducting fit testing, it necessarily followed that it was also in breach of Section 19, is that your reasoning?

A. My reasoning is because they failed to ensure that workers have been fit tested under clause 44 therefore under Section 19 they were in contravention of the legislation because they hadn't undertaken the proper processes that were needed to be done to ensure workers and others in the workplace are protected."[21]

1. Consistent with this reasoning, the Inspector's subsequent communications with Catholic Healthcare as to his reasons for issuing the Improvement Notice, referred only to reg 44 and the Notice itself provides no details as to how s 19 is said to have been contravened, beyond the reference to reg 44 being contravened.
2. Lastly, I do not consider that Inspector Chigofito was capable of forming a reasonable belief that the whole of Catholic Healthcare was in breach of s 19 in circumstances where he had only visited St Anne's and had no specific information as to the likelihood of the hazard or the risk of COVID-19 or other respiratory disease occurring, or the degree of harm that might result, at other of Catholic Healthcare's facilities; the specific control measures at those facilities; or the cost that might be involved in implementing fit testing at those facilities. That this is so appears to be implicitly accepted by SafeWork given its proposal that the Improvement Notice be varied so that it only refers and applies to St Anne's. The difficulty with that is that if the Inspector did not hold the requisite belief as referred to in the Notice at the time the Notice was issued, he had no jurisdiction to issue the Notice, and it must be set aside.

1. In summary, Inspector Chigofito had a reasonable basis to believe that Catholic Healthcare was required to comply with reg 44 of WHS Regulations in light of the seemingly universal, but erroneous approach to the application of Part 3.1 of the WHS Regulation, and that Catholic Healthcare was in breach of the provision given the publication of conclusory material issued by various authorities, that fit testing is required to ensure a 'suitable fit'. However, for the reasons given, I do not consider that reg 44 applied to Catholic Healthcare in the circumstances, and consequently to the extent the Improvement Notice was founded on a contravention of reg 44, it must be set aside.
2. The balance of the Improvement Notice, which asserted a contravention of s 19 of the WHS Act, must also be set aside as the Inspector did not have a reasonable belief that that provision had been breached as he did not turn his mind to and properly assess all of the facts necessary to establish a breach of s 19. In circumstances where the Inspector did not hold the belief required to issue a notice pursuant to s 191, the Notice must be set aside.
3. As I said at the outset, it may well be that the objective facts as at the date of the Improvement Notice would have justified a reasonable belief that s 19 was being contravened due to Catholic Healthcare's failure to implement fit testing at St Anne's or at other of its facilities. However, in circumstances where the Notice in this respect was invalidly issued, it is not my role to determine whether that was in fact the case.

(1) The external review is upheld.

(2) The internal review decision of Maree Davidson dated 15 August 2024 varying the original decision to issue Improvement Notice 7-484048 to Catholic Healthcare Limited, is varied to a decision to set aside Improvement Notice 7-484048.

11 July 2025 - Corrections made in Paragraphs [32], [58], [63], [96] (3) and [100].

08 October 2025 - Corrections made in Paragraphs [7], [30], [61] (43), [146] & [160].

[1] Tcpt, 17 December 2024, p 54(46) - (47).

[2] Tcpt, 18 December 2025, p 1(23)-(24).

[3] Tcpt, 18 December 2025, p 1(24)-(25).

[4] Tcpt, 18 December 2025, p 2(39)-(41),

[5] Tcpt, 18 December 2024, p 36(40)-(46).

[6] Reg 9 of the WHS Regulation provides: "If a note at the foot of a provision of this Regulation states "WHS Act" followed by a reference to a section number, the clause provision sets out the way in which a person's duty or obligation under that section of the Act is to be performed in relation to the matters and to the extent set out in the clause provision." Thus, for example, to avoid a breach of s 19 of the WHS Act, a PCBU must manage risks associated with remote or isolated work in accordance with the process outlined in reg 36.

[7] Tcpt, 18 December 2024, p 43(23) - 928)

[8] Tcpt, 18 December 2024, p 40(17), (31) - (33).

[9] Tcpt, 17 December 2024, p 30(29) - 31(3).

[10] Tcpt, 17 December 2024, p 32(25)-(26).

[11] Tcpt, 17 December 2024, p 32(35) - (37).

[12] Tcpt, 17 December 2024, p 35(38) - (42). See also p 45(29) - (35).

[13] Tcpt, 17 December 2024, p 36(1)-(13); (29) - (44).

[14] Tcpt, 17 December 2024, p 50(37)-(39).

[15] Tcpt, 17 December 2024, p 51(41)- (44).

[16] Tcpt, 17 December 2024, p 34(42) - (50)

[17] Tcpt, 17 December 2024, p 35(47)-(49).

[18] Tcpt, 17 December 2024, p 37(13) - (20).

[19] Tcpt, 17 December 2024, p 53(18) - 54(3).

[21] Tcpt, 17 December 2024, p 54(44) - 55(1).