George v Rockett and Another

Serious question to be tried 17The applicant relies on three matters to demonstrate on the stay application that there is a serious question to be tried. Its primary contentions in this regard were set out in written submissions. These are extracted below: The Applicant (further) contends that the Internal Review Officer, Victor Larobina erred in confirming the Improvement Notice under section 224 of the WHS Act in finding that: (1) the Applicant had a relevant duty to Mr Sweeney under section 19 of the WHS Act; (2) Mr Sweeney was a relevant worker of the Applicant, for the purposes of section 19 of the WHS Act; and (3) the Applicant relevantly breached section 19(1) of the WHS Act. 18The reasons of the Internal Review Officer, Mr Larobina, are attached to Mr Mulligan's affidavit sworn on 24 May 2012. Subject to recommending that two corrections of a minor nature be made to the Improvement Notice (including deleting the words "employees"), Mr Larobina confirmed Inspector Johnson's decision to issue the Notice. In summary, his reasons were that Ronin, although engaged by a third party, was a "subcontractor", which falls within the definition of "worker" in s 7 of the WHS Act. Therefore, Mr Larobina reasoned, Ronin workers "would be considered workers of ... (the applicant) as a PCBU" ("person conducting a business or undertaking"). Mr Larobina also found that the applicant had direct involvement with the works carried out by Ronin because it isolated and de-energised two of the power supplies and issued the Access Permit and Low Voltage Authority to Work. 19These matters were considered by reference to s 19(1) of the WHS Act, s 19 being the section Inspector Johnson reasonably believed had been contravened when he issued the Improvement Notice. Mr Larobina also appeared to consider that ss 19(2) and (3) provided a relevant basis upon which the Notice could be issued. Sub-sections 19(1) to (3) are extracted, in full, below: 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. 20In oral submissions the applicant descended into considerable detail describing its system in place at the time of the accident. In summary, it was the applicant's contention that, in accordance with its system, the parameters of the work site were determined by Ronin and the applicant advised accordingly. Acting on that information the applicant generated the Access Permit and the Low Voltage Authority to Work. An employee of the applicant then attended the site and formally handed over control of the site to Ronin. This was effected by the handing over of the two documents referred to above. Under the system, Ronin then became the "work site controller" with attendant responsibilities to continue to ensure that the work was performed within the isolated work site. The applicant, therefore, could not have anticipated that Mr Sweeney would ascend pole 149 because pole 149 was outside the designated work site. Moreover, as pole 149 was outside the work site, it was outside the scope of the applicant's safety responsibilities. Instead, under the applicant's Electrical Safety Rules, it was Ronin's responsibility to test all wires on pole 149 to ensure they had been de-energised before Mr Sweeney began his ascent. 21Mr Mulligan, in his affidavit sworn on 24 May 2012, made the following additional points, which are summarised below: (i) the applicant had no contractual relationship with Ronin; (ii) at all material times the applicant was not in control of, or directing, the activities of Ronin; (iii) the work was being conducted by Ronin as part of its business or undertaking; (iv) the work being performed was "contestable work" in relation to which Ronin, not the applicant, was engaged to undertake; (v) the applicant's involvement with Ronin was limited to permitting Ronin access to the network in accordance with the applicant's procedures. 22The respondent contended that the applicant did not have an arguable case. The obligations found in s 19 of the Act it was said are not confined to "workers" as defined under s 7 of the Act. Section 19(2), for example, creates an even wider obligation in respect of "other persons" who are put at risk from work carried out as part of the conduct of a person's business or undertaking. On the present facts, Ronin was carrying out work as part of the applicant's business or undertaking. This is so because the applicant as a network service provider (the "business or undertaking"), was required to give access to its network to allow work to be performed. It also laid down operating procedures to be applied once access was granted. 23The applicant contends that Mr Larobina erred in finding that Mr Sweeney was a worker of the applicant. In the Court's view, given the material available, it was open to conclude that Mr Sweeney was a "relevant worker" under s 19 of the Act. Under s 7 of the WHS Act, "worker" is broadly defined. It includes employees, contractors, subcontractors, outworkers and volunteers who "carry out work in any capacity for a person conducting a business or undertaking". The Court also agrees with the respondent's contentions on the issue of whether Ronin was carrying out work as part of the applicant's undertaking. It also appears to the Court on the material available that Mr Sweeney could fall within the wider definition of "other persons" to whom a duty is owed in accordance with the terms of s 19(2), on the basis that "other persons" includes persons put at risk from work carried out as part of the conduct of a person's business or undertaking. 24It should be borne in mind that when Mr Larobina conducted his internal review of the Inspector's decision to issue the Improvement Notice, the matters referred to above only required his assessment in the context of whether or not the Inspector held a reasonable belief that the applicant had contravened s 19, "in circumstances that make it likely that the contravention will be repeated". In accordance with the orthodox approach, the Inspector's reasonable belief is to be assessed objectively: see George v Rockett and Another (1990) 170 CLR 104 at 112. 25There is material in relation to the second and third errors, however, upon which an arguable case can be mounted by the applicant, that is, that on the balance of probabilities, Mr Larobina erred in confirming Inspector Johnson's decision to issue the Notice. That decision, in turn, was based upon the Inspector's reasonable belief that the applicant had contravened s 19, in circumstances that, "make it likely that the contravention will continue or be repeated". In the Notice, the Inspector's reasonable belief was directed to the applicant's duty under s 19 in relation to persons being exposed to a risk to their health and safety from electric shock or electrocution, "from being able to access installations containing live electrical components". 26This material raises an issue of significance to the parties on this application, namely, the precise location of the work area at the site. 27Attached to the Inspector's affidavit is an extract of an interview with David Ferguson, an employee of Ronin, who was the foreman in charge of the site at the time of the incident. Mr Ferguson gave the following account of events which immediately preceded the incident: Q1. Dave, tell me what happened when Matthew was injured? A1. I was standing the pole - operating the crane. I thought there was a possibility to break a wire lifting the pole. I instructed one of the boys to bring the cherry picker into untangle the conductors. At that point Matt offered to climb the corner pole and shake the tangled wires free. My reply was "yeah mate". He still had his harness on. Matt then climbed the pole & he reached the top of the ladder & must have grabbed two live conductors. Q2. Were you aware that there were live conductors on the pole? A2. No. I understood that under the access permit there was no live conductors on the pole. Usually, when there is something alive we are told about it. 28According to the applicant, the information delineating the work area was received from Ronin. Acting on that information, the applicant isolated the high voltage and low voltage conductors within that work area. The applicant's understanding of the work area was the space between pole 149 and pole 150, that is, exclusive of the poles. Mr Ferguson, based on the passage extracted from his interview with Inspector Johnson, appeared to hold a different understanding, that is that the operation of the Access Permit extended, at least to pole 149. According to the applicant, its system contemplated that anything outside the work area was to be assumed live by persons working on the network (Ronin) and had to be tested. The applicant's Electrical Safety Rules (CEOP8030) set out Ronin's responsibilities as the person signing on the Low Voltage Authority to Work form. A "basic safety rule" at 5.1 of the document cautioned: "All low voltage exposed conductors and electrical apparatus must be regarded as alive, until isolated and proved de-energised by approved means". The designated responsibilities of Ronin set out in the document (at 5.3.2) were that it, "Be informed of, and understand the limits of the work area and the control measures applicable". 29The Court had placed before it, on the application, the applicant's extensive safety procedures governing the issue of the Access Permit and the Low Voltage Authority to Work form. A document (CEOP2509) outlined the instructions and procedures to be followed when de-energising low voltage conductors. In the introductory section of the document the following words appear with regard to the use of the Low Voltage Authority to Work form: The correct use of the form will ensure a safe work environment for persons working on or near de-energised low voltage exposed conductors up to the connection point. 30The document also outlined the delineation of responsibilities between the applicant and the ASP (here Ronin) with regard to the necessary steps to be undertaken for the completion of the form: The Low Voltage Authority to Work form is a step by step process highlighting the order in which the form should be completed. Step 1 Enter the Switching Request Register number or the Switching Log number as reference to the Operating Work Step 2 Determine if a bridging diagram is required and record in the space provided Step 3 Enter a description of the work to be carried out Step 4 List the details of where the low voltage conductors have been de-energised NOTE: Where the work is being completed by Accredited Service Providers, the Essential Energy employee will pass the responsibility of the form to the authorised representative at this point Step 5 Identify the method of low voltage control Step 6 If applicable nominate the location where the low voltage bonds have been erected Step 7 List any special precautions Step 8 The Worksite Controller will print their name and sign, also noting the time and date Step 9 All persons working on or near the de-energised low voltage exposed conductors shall print their name and sign onto the form prior to the commencement of work and shall sign off the form on completion of work Step 10 When the Worksite Controller is satisfied that all work is completed or otherwise, all persons and tools are clear of the exposed low voltage conductors, all bonds have been removed and that the conductors are serviceable or not serviceable, the Worksite Controller is to cancel the Low Voltage Authority to Work form and notify the Network Operator or Essential Energy representative of the situation Step 11 Provides for the transfer of the Low Voltage Authority to Work form if required 31Mr Mulligan's affidavit attached the completed Low Voltage Authority to Work form which was signed by Mr Ferguson as the "Worksite Controller". Under Step 7 (which formed part of Ronin's responsibilities in accordance with the procedures), appears the following: Special precaution: (Pole 0627/149) Termination is still live on other circuit discussed at 1220 32The Court's attention was not directed to this entry or when it was made, that is, before or after the incident. If before, the entry suggests that Ronin was aware of the presence of a live low voltage conductor on pole 149 when it undertook the work. 33The resolution of the issue as to what was the work area impacts on the ambit of the applicant's duty under s 19 to ensure the health and safety of Mr Sweeney, so far as is reasonably practicable. In his affidavit, Inspector Johnson recorded his visit to the site after the incident and his observations. He ascertained, he said, in relation to the live low voltage wires grasped by Mr Sweeney that: Essential Energy's switching instructions which were performed prior to the issuing of an access permit to the Hofman crew contained no mention of this supply intruding into the work zone covered by the access permit. The switching instructions required an Essential Energy operator to attend this pole and ascertain the status of a set of low voltage links installed to supply an underground feeder which had never been placed in service. The operator did not note the presence of this alternate supply to this pole. 34The Access Permit dealt only with the high voltage conductors. It was the Low Voltage Authority to Work that dealt with the low voltage conductors. What the above passage demonstrates, however, is that Inspector Johnson's reasonable belief that s 19 had been contravened in accordance with the terms of s 191(1)(b), was based on his understanding that the live low voltage conductors intruded into the work area (referred to by him as the "work zone"). According to the applicant, they did not. They ran through an area outside the applicant's designated work area, before terminating at pole 149, which also was outside the designated work area. 35A further issue raised by the applicant concerns that part of the Notice that informs the applicant that the contravention has occurred "in circumstances that make it likely that (it) will continue or be repeated". According to the applicant, because the work being undertaken by Ronin finished (the precise date of completion is unknown), the only way this aspect can be properly assessed is by reference to its system in place at the time of the incident. None of the documentation which was placed before the Court, which sets out the applicant's procedures and instructions was brought to Mr Larobina's attention when he made his decision. According to the applicant, this omission means that Mr Larobina could not have confirmed the issue of the Notice on the basis of the Inspector's reasonable belief in the likelihood of a continuation or repetition of the contravention because he did not have recourse to this documentation. 36In the Court's view, there is force in the applicant's submissions. The documentation, to which the Court has had access, reveals a detailed set of procedures and instructions and a clear demarcation of duties and responsibilities between the network provider (the applicant) and the person undertaking the work on the network (here Ronin). This material is of direct relevance to the issue whether the Inspector's reasonable belief was soundly based, that is, that there was a likelihood that the contravention would continue or be repeated. 37These matters suggest that the applicant has an arguable case that Mr Larobina, on the balance of probabilities, erred in confirming the Notice. The applicant's case is that it did not have a relevant duty under s 19 to ensure Mr Sweeney's health and safety because there were no live conductors within the work area. In addition, in reliance upon the integrity of its system, the applicant contends that it had discharged its responsibilities, so far as is reasonably practicable, under s 19 of the WHS Act.

Balance of Convenience 38It remains for the Court to consider whether the balance of convenience favours the granting of a stay of the proceedings. In this regard, the parties each advanced several factors in support of their respective positions. 39The applicant first raised the prospect of hardship which it would suffer if the requirement to comply with the Notice is not stayed because it would be exposed to prosecution under s 193 of the Act. 40In the Court's view, this is not a relevant consideration. Under s 193 of the Act, non-compliance with a Notice incurs a penalty. Here, the person to whom the Notice is issued is a corporation. The maximum penalty is $250,000: s 193(b). An application for external review under s 229 does not, unlike an application for an internal review, automatically stay the operation of a decision. In accordance with s 229, if a stay is not granted by the Court pending a decision on the external review, s 193 may be utilised against an applicant in the event of non-compliance. 41The applicant also contended that the respondent would not suffer any prejudice of a stay were to be granted. The respondent did not contend to the contrary on this particular issue, but did make the point that the applicant had failed to identify as a factor in its favour any relevant prejudice or hardship it may suffer if it were to be unsuccessful in its application for a stay. 42The applicant relied on the integrity and safety of its system as a factor in its favour. It was submitted in this regard that there was no warrant to introduce into that system a requirement that the applicant bring to the attention of Ronin as an accredited service provider live apparatus which is adjacent to a work area which was so designated by Ronin. Its system broke down, the applicant contended, because Ronin did not operate in compliance with that system. Otherwise, it was contended, the system operated to minimise or control the risk. 43The applicant also relied upon the form of the directions in the Notice in relation to which it said the measures to be taken were neither adequately identified, nor did they constitute reasonably practicable measures to eliminate or mitigate the risk. According to the respondent, the measures identified and said not to be "reasonably practicable" could not be clearer. Further, the applicant has not led any evidence to support the contention. 44The directions set out in the Notice require the following measures to be taken:

1. You must ensure that electrical work undertaken under an access permit has been assessed by all parties and all possible live areas adjacent to the area covered by the access permit have been identified and brought to the attention of all concerned. 45The measures proposed, which incorporate all "possible live areas adjacent to the area covered by the access permit" would, on a reasonable construction, include at least the high voltage conductors on pole 149. What is not clear, given the facts available here is whether the measures were intended to extend to the low voltage conductors. What is also not clear, given that the work finished, is whether the measures were intended to extend to other electrical work, in general, which may be undertaken on the applicant's network. 46The respondent relied on the public interest factor as being of particular relevance to the issue of the balance of convenience. In written submissions, the respondent contended: Its should be borne in mind that the application here is for a stay in the context of machinery concerned with social legislation which is designed to achieve safety for workers and others affected by work place undertakings. In that sense wider questions of public interest are relevant and important to the issue of a stay. It is of some importance that Inspector Johnson is a public official entrusted with the superintendence of the Act (see, for example, section 160 of the Act). Further, the risk identified is a serious one (the risk, amongst other things, of death caused by electrocution). The Commission should be slow to disturb the measures sought to be implemented by the Improvement Notice given the grave consequences that may follow. 47The Court agrees with the respondent that the public interest is a factor of particular significance in the context of legislation primarily focused on achieving safety in the workplace. If anything were needed to support this proposition it is found in s 3 of the WHS Act which sets out the objects of the Act: (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and (b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and (d) promoting the provision of advice, information, education and training in relation to work health and safety, and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and (g) providing a framework for continuous improvement and progressively higher standards of work health and safety, and (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection (1) (a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable. 48Nevertheless, the public interest factor must be considered by reference to the facts and circumstances arising in any particular case. Here, the work being undertaken by Ronin on the applicant's network on the day of the incident has been completed, and there is no longer any immediate exposure to the risk to Ronin's employees. The relevance of the factor of public interest therefore falls to be considered by reference to the particular facts and circumstances relevant to the likelihood of a continuation or repetition of the contravention. This brings into focus the applicant's system and whether it is, or was, adequate to ensure safety, that is, that there are, or were, no deficiencies or defects in the system which may expose persons to risks to their safety arising from installations containing live electrical apparatus. Given that there is no identifiable immediate risk to the safety of any persons who may be working on the applicant's network this factor assumes less weight when regard is had to the applicant's system, in particular the respective roles and responsibilities of the network provider and the accredited service provider under that system. 49The respondent also contended that a stay of the matter would be futile because the Notice was spent on 11 May, the date by which time the applicant was required to comply with the terms of the Notice. Moreover, Mr Larabina did not extend the time for compliance when he confirmed the Inspector's decision to issue the Notice. 50For reasons which follow, the contentions of the respondent cannot be accepted. Under s 226(1) of the WHS Act the internal reviewer has 14 days after the application for internal review is lodged to make a decision. Under s 226(3) the 14 day period may be extended pending the provision of further information sought from the applicant. During this period, under s 228, the operative decision under review is stayed. The point of the statutory scheme providing for a stay of the operative decision is to protect an applicant from prosecution under s 193 of the WHS Act by reason of non-compliance with the Notice while the review process takes its course. If the respondent's contentions were correct, these provisions would have no work to do in the event the date for compliance stipulated in the Notice were to expire before the internal reviewer's decision is made, which is, in fact, what occurred here, the date of Mr Larobina's decision being 14 May 2012. It should be added for completeness that s 192(1)(d) of the WHS Act requires, as part of the contents of an Improvement Notice, the inclusion of the date by which the person, the subject of the Notice, is required to remedy, "the contravention or likely contravention". 51The factors considered by the Court on the balance of convenience are finely balanced. When added to that balance is the Court's conclusion that the applicant has an arguable case, the balance falls in favour of granting the application for a stay. 52Accordingly, the Court orders: (1) That the requirement to comply with the Improvement Notice be stayed in accordance with s 229(3) of the Act pending the outcome of the external review application. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 August 2012