The applicant, Lipman Pty Ltd ("Lipman"), a construction company, has made an application pursuant to ss 229(1) of the Work Health and Safety Act 2011 ("WHS Act") for an external review by this Commission of an internal review decision made by the respondent, Safe Work NSW ("SafeWork"), on 13 April 2021. The internal review decision was made by the SafeWork reviewer, Jim Allison, Manager, Governance and Appeals Unit, following an application by Lipman pursuant to ss 224(1) of the WHS Act which was lodged with the SafeWork on 29 March 2021.
The internal review application related to the issuing by SafeWork Inspector, Jason Croke, pursuant to ss 191(1) of the WHS Act, of Improvement Notice No. 7-130-4YWYRR on Lipman on 18 March 2021. Section 191 of the WHS Act is in the following terms:
191 Issue of improvement notices
(1) This section applies if an inspector reasonably believes that a person:
(a) is contravening a provision of the 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.
The Improvement Notice was issued following the tragic death of a subcontractor who fell from an upper floor of a building at 9-15 Northumberland Street, Liverpool, which was being constructed by Lipman for Anglicare Community Services ("Anglicare"). The Improvement Notice contained the following:
Details of contravention:
…
I, Jason Croke reasonably believe on 18/03/2021 that you have contravened a provision in circumstances that make it likely that the contravention will continue or be repeated of the Work Health and Safety Act 2011, section 19 and Work Health and Safety Regulation 2017, clause 38.
Brief description of how the provision is being or has been contravened:
Workers/Other persons are exposed to a serious risk to their health or safety as the fall arrest/rope access anchor points installed on level 8 have been involved in an incident where they have failed.
Directions as to the measures to be taken to remedy or prevent the contravention or likely contravention: (it is mandatory to comply with these directions)
1. You must review all safe systems of work in relation to the installation and use of fall arrest/rope access anchor points.
2. You must ensure that the nature of the work, nature of risks associated with the use of fall arrest/rope access anchor points (i.e. Rope Access Activities) and the control measures to be implemented are reviewed and taken into account when providing information, training and instruction to workers and complies with Clause 39 of WHS Reg 2017.
3. You must also ensure all control measures are reviewed and identify the high-risk construction work, specify the hazards and a risk to health and safety from these hazards, describe the measures to control risks and describe how control measures will be implemented, monitored and reviewed and complies with Clause 299 of WHS Reg 2017.
4. When all directions have been completed contact Inspector Croke who will determine compliance.
Section 19 of the WHS Act is in the following terms:
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.
(4) If -
(a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking, and
(b) the occupancy is necessary for the purposes of the worker's engagement because other accommodation is not reasonably available,
the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.
(5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.
Note -
A self-employed person is also a person conducting a business or undertaking for the purposes of this section.
Clause 38 of the Work Health and Safety Regulation 2017 ("WHS Regulation") is in the following terms:
38 Review of control measures
(1) A duty holder must review and as necessary revise control measures implemented under this Regulation so as to maintain, so far as is reasonably practicable, a work environment that is without risks to health or safety.
(2) Without limiting subclause (1), the duty holder must review and as necessary revise a control measure in the following circumstances -
(a) the control measure does not control the risk it was implemented to control so far as is reasonably practicable,
Examples -
1The results of monitoring show that the control measure does not control the risk.
2 A notifiable incident occurs because of the risk.
(b) before a change at the workplace that is likely to give rise to a new or different risk to health or safety that the measure may not effectively control,
(c) a new relevant hazard or risk is identified,
(d) the results of consultation by the duty holder under the Act or this Regulation indicate that a review is necessary,
(e) a health and safety representative requests a review under subclause (4).
(3) Without limiting subclause (2)(b), a change at the workplace includes -
(a) a change to the workplace itself or any aspect of the work environment, or
(b) a change to a system of work, a process or a procedure.
(4) A health and safety representative for workers at a workplace may request a review of a control measure if the representative reasonably believes that -
(a) a circumstance referred to in subclause (2)(a), (b), (c) or (d) affects or may affect the health and safety of a member of the work group represented by the health and safety representative, and
(b) the duty holder has not adequately reviewed the control measure in response to the circumstance.
At the same time as the Improvement Notice was issued, Mr Croke also issued Lipman with Prohibition Notice No. 7-130-EJIEDT pursuant to s 195 of the WHS Act. The Prohibition Notice contained the following:
Details of serious risk:
…
I, Jason Croke reasonably believe on 18/03/2021 at 2:15:00PM that an activity may occur at the workplace that will involve a serious risk to the health or safety of a person emanating from an imminent exposure to a hazard and that this activity is likely to contravene, a provision of the Work Health and Safety Act 2011, section 19 and Work Health and Safety Regulation 2017, clause 113.
I direct the person with control over the following activity of: the use of ALL installed fall arrest/rope access anchor points to stop the carrying on of the activity until an inspector is satisfied that the following matters that will give rise to the risk have been remedied.
Basis for the inspector's belief:
Workers/Other persons are exposed to a serious risk to their health or safety as the fall arrest/rope access anchor points installed on level 8 have been involved in an incident where they have failed.
Directions on the measures to be taken to remedy the risk, activities or matters or the contravention or likely contravention: (it is mandatory to comply with these directions)
1. You must cease the use of all installed fall arrest/rope access anchor points across the site.
2. You must ensure that all installed fall arrest/rope access anchor points being used at the workplace are inspected and load tested in accordance with 1891.4 by a competent person to ensure they are in a safe condition.
3. You must have a competent person assess all anchors and provide a Load Test Certificate to verify the safety integrity of each.
4. When this direction has been completed contact the Inspector who issued this notice who will determine compliance.
Lipman has made no application for review of the Prohibition Notice and it is not the subject of these proceedings.
[2]
Background
The background to this matter is set out in an Agreed Statement of Facts which was part of a bundle of documents which was tendered into evidence and became Exhibit 2 in the proceedings. The Agreed Statement of Facts is set out below:
1. On 12 August 2019, Anglican Community Services ABN 39 922 848 (Anglicare) entered into a design and construct contract (D&C) with Lipman Pty Ltd ACN 001 548 830 (Lipman/Applicant) titled "SAHF Phase 2 - Social and Affordable Housing Fund at 9 - 15 Northumberland Street, Liverpool" (Site) contract No. 4902-2000 (Anglicare Contract).
2. Lipman was appointed as the D&C Contractor, with the additional duties of principal contractor under part 6.4 of the Work Health and Safety Regulations 2017 (WHS Regs), to deliver the project, which consists of the following:
a. Two level basement;
i. Ground floor including Function Room, Lounge, Dining, Amenities and Building Management back of house areas; and
ii. Levels one to eleven consist of 137 residential apartments of a building on the Site under the Anglicare Contract.
3. As part of the Anglicare Contract, Lipman were required to install a height access system for the building including a compliant fall arrest roof safety system.
4. Safety Anchors Pty Ltd who trade as 'Safemaster Height Safety Solutions' ABN 39 104 705 320 (Safemaster) is a specialist contractor in the Height Safety Industry and in particular in respect to the design, development, manufacture and installation of superior fall arrest, fall restraint and rope access safety systems.
5. Safemaster supplies systems that are designed to comply with the requirements of Australian Standards AS/NZS 1891.4:2009 Industrial Fall arrest systems and devices. Among other things, this Standard specifies requirements and sets out recommendations for the selection, safe use and maintenance of industrial fall-arrest systems and devices based on the use of safety harnesses, horizontal life lines and rails, fall-arrest devices, and associated lanyards, connectors, anchorages and fittings.
6. In or about 2019, Lipman identified Safemaster as an appropriate specialist sub-contractor to design, fabricate, manufacture, supply, deliver, install and certify a proprietary permanent fall arrest roof safety system for the project.
7. On 1 October 2019, Lipman engaged Safemaster under a minor works subcontract agreement to, amongst things, design, fabricate, manufacture, supply, deliver, install and certify a proprietary permanent fall arrest roof safety system for the project (Contract).
8. Schedule 2 of the Contract provides for and prescribes Safemaster's specific scope of works for the Site as follows:
a. The design and construct works shall comprise of coordination, supply, delivery, installation/construction, testing, certification and warranties for the following components of work:
i. Design, supply and install a compliant fall arrest roof safety system to the project (the FARS System);
ii. Design, supply and install Davit base floor mount, masts and abseil equipment;
iii. Signage required for compliant installation;
iv. Certification, warranties, training and manuals to be provided at completion of works;
v. Shop drawings and final as-built plan provided at completion;
vi. Supply and install 1 PPE Harness Kit including all necessary equipment to use roof access system and 1 PPE storage cabinet;
vii. System to all full safe access across all roof area;
viii. 6-week interim certificate allowed for to allow for any construction access prior to practical completion;
ix. Two-year warranty to be provided on installation; and
x. Five-year written warranty to be provided on all components provided by Safemaster.
(Safemaster Scope of Works).
9. The Safemaster Scope of Works also included the requirement that Safemaster obtain certification of the FARS System installed as complying with the Work Health and Safety Act 2011 (WHS Act) and relevant Australian Standards, Codes of Practice and Industry Standards.
10. On 30 March 2020 design drawings showing the details of the building to which the roof access system was to be installed were supplied to Safemaster by Lipman. The design identified the concrete slab thickness, including waterproofing thickness, falls thickness that was to be integrated on top of the concrete slab and final anticipated finish.
11. In the period from April 2020 to August 2020, Safemaster prepared the design of the FARS System. These were prepared by Safemaster's engineer.
12. On 23 July 2020 Safemaster provided to Lipman the product specification for the concrete fixing anchors.
13. On or about 31 July 2020, the Final Design drawing for the roof access system for Level 8 were prepared by Safemaster's Engineer, and who signed the certificate of compliance after completion of the work.
14. Between mid-August 2020 and 13 October 2020 two of Safemaster's workers undertook the installation of the FARS System and other roof access systems required under the Safemaster Scope of Works.
15. On 13 August 2020, Safemaster provided a Safe Work Method Statement (SWMS) to Lipman (Safemaster SWMS) in respect to the installation work at the Site.
16. The Roof Safety System included the installation by Safemaster of a number of systems on Level 5, Level 8 and the roof area of the Building.
17. Work on the installation of the anchors commenced on or about 28 September 2020 and continued until on or about 13 November 2020.
18. On Level 8, Safemaster installed a number of anchor points for single point fall arrest (rope access) purposes. In addition, Safemaster installed two Davit Arms at the edge of the building from which access can be obtained to the façade of the building by temporary platforms or industrial rope access for the purposes of building maintenance/cleaning.
19. The design of the anchor points by Safemaster was such that, to prevent the eye bolts causing a trip hazard to residents using the area, the eye bolts were intended to be removed when not in use. When removed, the insert/hole was protected by means of a screw in metal cap. When the anchor points were needed to be used the cap could be removed and an eye bolt inserted, by screwing it into the thread in the insert of the anchor point.
20. The installed anchor points were required to undergo load testing (Pull Test) to demonstrate that they could sustain a load up to 50% of their rated capacity. This is required under Australian Standard 1891.4: 2009.
21. On 13 October 2020, Safemaster undertook the Pull Test of the installed anchors and other access systems equipment (Davit arm brackets etc). The Pull Test was undertaken with the use of a calibrated Hydrajaws Testing device that was calibrated on 16 July 2020. A Pull Test Record of the installed anchors was completed by Safemaster on 13 October 2020.
22. Safemaster was required to provide Lipman with an Inspection Test Plan (ITP) covering the whole installation of the FARS System and other roof access systems required under the Safemaster Scope of Works.
23. ITPs are a type of document widely used in the construction industry to control the various steps involved in construction to ensure the relevant inspections and tests are conducted, specifications achieved, and relevant hold and witness points released by the persons with the appropriate competence and authority.
24. Safemaster completed the installation ITP on 15 October 2020, which was provided by Safemaster to Lipman on 4 March 2021 (Safemaster ITP).
25. The Safemaster ITP was used by Safemaster to manage the various aspects of the installation of the roof access equipment.
26. Amongst other things, the Safemaster ITP provided the following relevant information in relation to:
a. Safety
b. Materials
c. Documentation
d. Setout
e. Installation
f. Testing
g. Completion.
27. In respect to 'Testing' the Safemaster ITP specified that the surface mounted anchor points had been load tested to 50% of their rated capacity.
28. The Safemaster ITP identified that 97 anchors were installed to the roof, level 8 and level 5. All of the items within the Safemaster ITP were marked "Pass" by Safemaster. No comments were made for any of the items, as would be required if there were any issues encountered during the work.
29. Safemaster provided Lipman with two different certifications for the roof access safety system, the FARS System:
a. A Compliance Certificate & Product Warranty for the FARS System for the Roof Level, Level 5 and Level 8 dated 30 November 2020 (Compliance Certificate and Product Warranty); and,
b. An Installation Certificate dated 16 December 2020 (Installation Certificate).
30. The Compliance Certificate & Product Warranty was issued by Eric Chan, Safemaster's Engineer. This Certificate enabled use of the FARS System during the construction phase.
31. The Compliance Certificate and Product Warranty includes the statement that the system "has been designed and installed in accordance with":
a. Australian Standards 1891.4:2009 - Industrial Fall-Arrest Systems & Devices;
b. Australian Standards 1657: 2018 - Fixed Platforms, Walkways, Stairways & Ladders;
c. Safe Work Australia Code of Practice -Managing The Risk Of Falls At Workplaces.
32. The Compliance Certificate and Product Warranty also includes the statement that "the system is warranted against defects in materials and workmanship for 5 years, from the date of this Certificate, subject to Safemasters Conditions of Warranty".
33. On 16 December 2020, Eric Chan, certified the FARS System as being relevantly compliant and issued the Installation Certificate to Lipman. The Installation Certificate certifies the FARS System and includes the final user manual/information for use during the occupation/maintenance phase.
34. The Installation Certificate includes the following statements of compliance "I Eric Chan of Safemaster Height Safety Solutions hereby certify that:
a. the design, location and type of 'fall protection system' provided to the building is in accordance with the Work Health and Safety Act 2011 and relevant SAA Codes and Standards;
b. the design & installation of the fall arrest system allows provision of window cleaning by a method complying with the BCA and the Work Health and Safety Act 2011 and regulations made under that Act has been provided;
c. I am an appropriately qualified and competent person practicing in the relevant area of work. I have recognised relevant experience in the area of work being certified. I / my employer hold/s appropriate current professional indemnity insurance to the satisfaction of the building owner or the principal authorising the design work being certified;
d. certifies the system and includes the final user manual/information for use during the Occupation/maintenance phase.
35. Safemaster also provided to Lipman the Safemaster "Guide to Height Safety Systems" as part of the manuals/maintenance documentation.
36. Lipman had a number of procedures relevant for work required to be conducted at heights, including:
a. Working at Height procedure (Procedure 44, Revision 9, dated 22/7/2020);
b. Work Permits procedure (Procedure 45, Revision 8, dated 8/10/2020);
c. Section 2.4 of the Project Plan and Procedure 9 Safe Work Method Statements;
d. A site-specific Working on Roof Procedure/Induction.
37. In or about March 2021, as part of the approaching completion and handover of the project, Lipman needed to undertake final cleaning and minor repairs to the external façade of the structure. This included cleaning and making minor repairs/adjustments to flashing and window frames/sills of the external façade of the Building from Level 8 to ground floor level on northwest corner of the structure.
38. This work necessitated the use of working at heights equipment and techniques to allow this work to take place from the exterior. As certain areas of the façade were inaccessible to an elevating work platform, the use of the Safemaster installed anchor points and Safemaster building façade access systems were decided to be used and a specialist industrial rope access contractor was identified as being required to be engaged by Lipman's site team.
39. Benz Height Access Solutions (BHAS) provides rope access services and specialist height access services.
40. BHAS had undertaken previous rope access work of a similar nature to that required at the Project on another Lipman project in July 2020. Mr Andre Benz of BHAS (Mr Benz) had also undertaken other height access work using an elevating work platform on another project for Lipman. Lipman where aware that BHAS and Mr Benz were able to provide rope access and other specialist height access services.
41. Mr Benz was both a director and employee of BHAS. Mr Benz held a Level 2 Industrial Rope Access competency card, issued by TRAC International, Sydney.
42. On 16 March 2021, Mr Benz attended at the Site to undertake an inspection of the Site and the relevant FARS System prior to undertaking the work.
43. Mr Benz underwent a Site Induction on 16 March 2020 prior to commencing the inspection at the Site.
44. The inspection included an inspection of the various locations where Mr Benz would need to be provided access to enable him to undertake his rope access from, and the relevant Safemaster installed anchor points and Safemaster building façade access systems. This included the use of the Safemaster installed anchors on the Level 8 common access balcony area.
45. On 16 March 2021, BHAS provided Lipman with:
a. a Safe Work Method Statement for the rope access work to be undertaken at the Site (BHAS SWMS); and
b. a Work Specific Emergency Plan.
46. On 16 March 2021, Lipman conducted:
a. a SWMS Checklist in relation to the BHAS SWMS; and
b. a Working at Height Checklist for BHAS.
47. On Thursday, 18 March 2021, Mr Benz attended at the Site with another competent rope access worker engaged by BHAS, Mr Jarrad Fehlberg, who was to work with Mr Benz as his safety observer/rope access support team member.
48. Mr Fehlberg holds a Level 1 certificate of competence in rope access, issued by the Industrial Rope Access Trade Association.
49. On 18 March 2020, Mr Fehlberg underwent a Site Induction prior to commencing work at the Site.
50. On 18 March 2021, Lipman prepared a Working at Heights Access Permit for BHAS.
51. Around 12.20pm on 18 March 2021, a workplace incident occurred at the Site, where Mr Benz fell from the Level 8 common access balcony area and was fatally injured (Incident).
52. At the time of the Incident, Mr Benz was undertaking abseiling work in reliance on the work systems specified in the BHAS SWMS and utilising the FARS System installed by Safemaster.
53. At approx. 2:15pm on 18 March 2021, in response to the Incident, Inspector Jason Croke attended Site, accompanied by fellow inspectors Jamie Hinton, Michael Holder and Phillip Estreich (Inspectors).
54. Grant Nelson (Senior Project Manager of Lipman) accompanied the Inspectors around the Site.
55. During Inspector Croke's attendance, he was told by Lipman representatives that Safemaster were the company who designed, fabricated, manufactured, supplied, delivered and installed the system (being the FARS System) at the Site, including the anchor point suspected of being used by Mr Benz.
56. Inspector Croke and the other Inspectors left the Site at approximately 6:30pm to 7:00pm.
57. On 18 March 2020 (sic 2021) and after Inspector Croke's attendance at Site, he issued the following notices to Lipman:
a. Improvement Notice No. 7-130-4YWYRR (Notice) pursuant to section 191 of the Work Health and Safety Act 2011 (WHS Act); and
b. Prohibition Notice 7-130-EJIEDT pursuant to section 195 of the WHS Act.
58. Lipman took immediate steps to take out of service the FARS System in compliance with the Prohibition Notice.
59. On 18 March 2021, Inspector Phillip Estreich issued a Non-disturbance Notice pursuant to section 198 of the WHS Act (Notice number 7-394372). That notice expired on 25 March 2021.
60. On 19 March 2021, Inspector Croke sent Lipman a copy of his Inspection Report detailing his attendance to Site on 18 March 2021.
61. On 24 March 2021, Inspector Phillip Estreich issued a further Non-disturbance notice (Notice number 7-394574) in relation the FARS System. That notice expired on 30 March 2021.
62. On 29 March 2021, the Applicant applied to SafeWork NSW for an internal review of the decision to issue the Notice.
63. SafeWork NSW (ABN 81 913 830 179) is a Regulator under the WHS Act (Regulator/Respondent).
64. The Regulator received the Applicant's application for internal review on 30 March 2021 (Internal Review Application).
65. On 12 April 2021, Sam Dekker, solicitor for the Applicant, received a letter from Jim Allison, Manager, Governance and Appeals Unit, on behalf of the Regulator requesting further information in relation the Internal Review Application.
66. On 13 April 2021, Mr Dekker replied to Mr Allison's letter with the requested information.
67. On 14 April 2021, Mr Allison sent an email to Mr Dekker attaching a letter confirming the decision by Inspector Croke to issue the Notice (Internal Review Decision).
68. Lipman do not have any expertise relating to the Safemaster Scope of Work or the FARS System, particularly in relation to the installation and use of fall arrest/rope access anchor points.
69. Lipman do not have any expertise relating to the safe systems of work BHAS used while setting up for and then performing abseiling work at the Site, in particular the nature of the work, the nature of the risks associated with the use of the fall arrest/rope access anchor points and the control measures that BHAS or others should implement when undertaking rope access activities (Rope Access Activities) of that kind.
70. Lipman do not have any expertise relating to the Rope Access Activities to provide information, training and instruction to workers undertaking Rope Access Activities and the control measures that workers should implement when undertaking Rope Access Activities.
[3]
Internal Review
On 29 March 2021, Lipman, pursuant to ss 224(1) of the WHS Act, applied to SafeWork for an internal review of the decision of Mr Croke on 18 March 2021 to issue Lipman with the Improvement Notice. The outcome of that internal review was conveyed to Lipman by way of correspondence dated 13 April 2021 from Mr Allison to Sam Dekker of Mills Oakley, Lipman's solicitor. The content of that correspondence is set out below:
Dear Mr Dekker
Re: Internal review of the decision to issue improvement notice 7-130-4-YWYRR to Lipman Pty Ltd
I refer to your application for an internal review of the above decision which was received by the Governance and Appeals Unit on 30 March 2021.
As per Part 12 of the Work Health and Safety Act 2011 (the Act), an internal review was conducted by SafeWork NSW. The reviewer, Jim Allison, has carefully considered your submissions and the issues raised in your application for review, including the material available at the time of making the decision and any additional information provided during the course of the internal review.
You are informed that the above decision by Inspector Croke is confirmed for the following reasons, please note the new compliance date is 4:30pm Tuesday 20 April 2021.
1. Part 2 of the Work Health and Safety Act 2011 (The Act) Division 2 19 Primary Duty of Care sets out in part:
(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
2. Section 16 of the Act More than one person can have a duty sets out that
(1) More than one person can concurrently have the same duty.
(2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.
(3) If more than one person has a duty for the same matter, each person
(a) retains responsibility for the person's duty in relation to the matter, and
(b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.
3. Section 18 of the Act What is "reasonably practicable" in ensuring health and safety sets out in part:
'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.'
4. Section 191 of the Act allows an Inspector to issue an Improvement notice if the Inspector reasonably believes that a person is contravening a provision of that Act, or has contravened in circumstances that make it likely that the contravention will continue or be repeated.
5. The Work Health and Safety Regulation 2017 (the Regulation) clause 39 Provision of information, training and instruction sets out in part:
(1) This clause applies for the purposes of section 19 of the Act to a person conducting a business or undertaking.
(2) The person must ensure that information, training and instruction provided to a worker is suitable and adequate as far as reasonably practicable.
6. Clause 299 of the Regulation Safe work method statement required for high risk construction work sets out:
(1) A person conducting a business or undertaking that includes the carrying out of high risk construction work must, before high risk construction work commences, ensure that a safe work method statement for the proposed work-
(a) is prepared, or
(b) has already been prepared by another person.
7. On 18 March 2021 a notifiable incident occurred at 15 Northumberland Street Liverpool NSW (the site), concerning a report of a fatality involving a worker abseiling from top of the building fixing flashing on the side of the building. It was reported that the worker was wearing full harness, helmet ropes which had failed and that the worker felI approximately 26 metres from level 8 to the ground floor level (Incident Notification 2-166560).
8. Inspector Croke in the company of Inspectors Jamie HINTON & Michael HOLDER attended the site that day and Inspector Croke made enquiries and observations which were recorded in contemporaneous notes and he formed a reasonable belief to issue improvement notice 7-130-4YWYRR (7-394359) and prohibition notice 7-130-EJIEDT (7-394360), which were both issued electronically at 2:15pm that day.
9. On 1 October the applicant had sub contracted Safety Anchors Pty Ltd T/A SafeMaster Height Safety Solutions to design, fabricate manufacture, supply, delivery and instal proprietary Fall Arrest Roof Safety System (FARS system). This included certification of the FARS system as being in compliance with the WHS Act and relevant SAA Codes and Standards.
10. On 16 December 2020, Eric Chan of SafeMaster Height Safety Solutions certified the FARS system.
11. Subsequently on approximately 16 March 2021 the applicant engaged Benz High Access Solutions (BHA) to carry out rope access works to the external facade on the northwest comer from the level 8 terrace area anchor points. Benz High Access Solutions was the trading name of the deceased who was a sole trader.
12. In summary the applicant's submission included in relation to the improvement notice that:
a) 'In issuing an Improvement Notice, an Inspector is required to balance the objective information available to him/her and is obliged to make reasonable inquiries to inform their beliefs. A reasonable and balanced approach does not allow an Inspector to make assumptions and act on them without, at least, attempting to test, in a timely and practical manner, the validity of those assumptions.'
b) 'There was (and is) therefore no proper basis for the inspector to form a reasonable belief that Lipman was contravening or had contravened the Act in circumstances where the contravention will continue or be repeated.'
c) 'The Notice was issued to the incorrect PCBU.'
d) 'There was (and is) no proper basis for the inspector to form a reasonable belief that the measures specified in the Directions were ones that were reasonably able to be done by Lipman in relation to ensuring health and safety, taking into account and weighing up all relevant matters specified in section 18 of the WHS Act, and therefore it was not reasonably practicable for Lipman to take those measures.'
e) 'Third, given the above, even if the Notice was validly issued to Lipman (which is denied) Lipman are not able to comply with the Directions as it is not within their expertise or business and undertaking to do so.'
f) 'The Direction, specifically Directions 1, 2 and 3 can only be effectuated by Safety Anchors given their expertise as was the basis for Lipman's engagement of them to perform the Scope of Work. Given this, the Notice should not have been issued to Lipman.'
13. The application of section 16(3)(b) of the Act only required the applicant to discharge their duty to the extent to which they had the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity. As the principal contractor in control of the site the applicant did have the capacity to influence and control those with that expertise, who could help to prevent a reoccurrence and make the site safe and so comply with all directions of the notice.
Please direct any enquiries you may have in regard to the original decision to Stephen Kwok, Manager Construction Metro South on 02 9618 8416. If you have any enquiries regarding the outcome of the internal review please contact me on 02 4724 4920.
Right of review
Pursuant to section 229 of the Act, an eligible person may apply to the Industrial Relations Commission (IRC) for an external review of this decision. That application must be made within 14 days of receipt of this letter. You can contact the Industrial Relations Commission of NSW for information regarding the application process by phoning 02 8688 3516 or via the website at www.irc.nsw.gov.au.
Alternatively, you may wish to seek independent legal advice to assist with the lodgment of an external review application.
On 27 April 2021, pursuant to ss 229(1) of the WHS Act, Lipman applied to this Commission for an External Review of the decision of Mr Allison set out above ("Application"). In the Application, Lipman claims the following:
1. the Notice and the Internal Review Decision is stayed pending the outcome of this Application;
2. that improvement notice no. 7-130-4YWYRR and internal review decision dated 13 April 2021 be set aside and no other action be taken; and
3. the respondent pay the applicant's costs.
[4]
Grant Nelson
Grant Nelson is employed as a Senior Project Manager by Lipman. Mr Nelson was on site at 15 Northumberland Street, Liverpool, on 18 March 2021, the day of the incident that led to the issuing of the Improvement Notice. He gave evidence of a conversation he had with the SafeWork inspectors who attended the site after the incident, including Mr Croke.
Mr Nelson gave the following evidence:
14. I recall that I told the Inspectors on 18 March 2021 that:
a. the rope access system at the Site was installed by Safemaster; and
b. the anchor points will be taken out of service and would not be used until they were re-checked and re-certified and we could get an understanding on how the Incident happened.
15. I made it clear to the Inspectors that the rope access system would not be used on that day or in the near future until it was re-checked and certified and we [Lipman] had an understanding on how the Incident happened.
Mr Nelson was not required for cross-examination by counsel for SafeWork.
[5]
Mark Holliday
Mark Holliday is employed as a Construction Manager by Lipman. He gave the following evidence:
4. I am aware that an incident occurred on 18 March 2021 at 15 Northumberland Street, Liverpool NSW (Site) in which Mr Andre Benz is said to have fallen from height while performing cleaning work on the external facades of the building from Level 8 and suffered fatal injuries (Incident).
5. I am aware that Mr Benz was a director and an employee of Benz Height Access Solutions (BHAS). BHAS was engaged by Lipman to perform specialist rope access work at the Site.
6. I have been involved in the project at the Site since September 2019, but my involvement does not require me to attend the Site on a frequent or routine basis. I only attend Site when I am required.
7. I was not at the Site on 18 March 2021 when the Incident occurred, but I did attend the Site after the Incident at approximately 4pm.
8. Since 18 March 2021, I have assisted the Applicant with corresponding with third parties as necessary in relation to the Incident. This has included corresponding with:
a. SafeWork NSW, the Respondent in this matter; and
b. Safety Anchors Pty Ltd as Safemaster (Safemaster), the designer, fabricator, manufacturer, supplier, deliverer, installer and certifier of the proprietary roof safety access system (System) for the building at the Site.
9. I am aware that Inspector Jason Croke issued the improvement notice to the Applicant, the subject of these proceedings on 18 March 2021 (Notice).
10. Lipman have been unable to comply with the Notice because Lipman have no expertise, knowledge or relevant skills in which to comply with the directions under the Notice, for example:
a. Lipman did not develop the safe systems of work in relation to the System (described in the Notice as the 'fall arrest/rope access anchor points') or the works BHAS were engaged to perform;
b. Lipman are not in the business of providing information, training and instructions in relation to the use of the System, Safemaster are; and
c. Lipman were not performing any work in relation to the System, whether it be its design, fabrication, manufacture, supply, delivery, installation, certification or use. Insofar as it applies, Safemaster and BHAS were.
11. Since the issuance of the Notice on 18 March 2021, I have been corresponding intermittingly with Inspector Croke regarding its status, primarily that Lipman are challenging the Notice and it has been stayed.
12. On or about 20 April 2021, Inspector Croke phoned me in relation to the Notice where we had a conversation to the following effect:
Me "we do not know why the improvement notice was issued to Lipman with regards to this incident"
Inspector Croke "It's routine to issue an improvement notice after an incident like this"
13. I am aware that Inspector Croke also issued a prohibition notice on 18 March 2021…
14. Lipman was not in a position itself to undertake the measures specified in the prohibition notice to remedy the risk. However, Lipman took steps to facilitate or arrange for other persons to take the measures specified in the prohibition notice.
15. In respect to Direction 1 - Lipman had not, and was not in a position to use, the installed fall arrest/rope access anchor points across the Site.
16. However, while the prohibition notice was in force Lipman did not engage, or permit, any specialist height access contractors to access or use the installed fall arrest/rope access anchor points across the Site.
17. In respect to Direction 2, Lipman did not have the expertise to ensure that the installed fall arrest/rope access anchor points across the Site were inspected and load tested.
18. On 18 March 2021, I am aware that Inspector Estreich, who I know was in attendance at Site with Inspector Croke on 18 March, issued a Non-disturbance Notice (Notice number 7-394372). That notice expired on 25 March 2021.
19. On 24 March 2021, I am aware that Inspector Estreich issued a further Non-disturbance notice (Notice number 7-394574). That notice expired on 30 March 2021.
…
21. Both non-disturbance notices prevented access to the level 8 balcony at Site, the area in which Mr Benz was working prior to the Incident and which the abseiling/rope equipment was set up. No other areas on the Site were being used for any other rope access/abseiling works. I verily believe that the Lipman Site team complied with both non-disturbance notices at all times.
22. After the Incident, Lipman took immediate steps to prohibit access and all works (not just abseiling/roof access works) from occurring on level 8 balcony area and all works using the System at the Site.
23. On 26 March 2021, I wrote to Safemaster directing them to, among other things, "Urgently do all thing necessary to engage an independent expert to inspect, test and recertify all anchor points installed [at the Site]" once the non-disturbance notice of 25 March preventing access to level 8 balcony area was lifted.
…
25. On 29 March 2021, I wrote to Inspector Croke informing him of, among other things, the actions that could be taken by Lipman in compliance with the prohibition notice and the direction given to Safemaster to "attend Site and conduct and/or arrange for an independent third-party assessment and re-certification of all anchor points at the Site", noting that the non-disturbance notice of 25 March was still in place.
…
27. Per my instruction to Safemaster and after the issuing of the prohibition notice and after the non-disturbance notice was lifted, Safemaster engaged an independent expert, Laboratories for Materials Advanced Testing Services (LMATS), to inspect and load test the fall arrest/rope access anchor points on Levels 5, 8 and 11 (Roof top) at the Site.
28. On or about 19 April 2021, Safemaster provided to Lipman copies of the 'Anchor Point Load Testing' reports prepared by LMATS in respect to the inspection and load testing of the fall arrest/rope access anchor points on Levels 5, 8 and 11 (Roof top) at the Site.
…
30. I understood that the 'Anchor Point Load Testing' reports prepared by LMATS were 'Load Test Certificates' for the purpose of Direction 3 of the prohibition notice.
31. On 4 May 2021, I sent an email to Inspector Croke attaching the 'Anchor Point Load Testing' reports prepared by LMATS were 'Load Test Certificates' seeking confirmation of compliance with the prohibition notice.
32. On 7 May 2021, Inspector Croke sent me an email indicating that the prohibition notice has been complied with.
…
Mr Holliday was not required for cross-examination by counsel for SafeWork.
[6]
Jason Croke
Jason Croke, the SafeWork inspector who issued Lipman with the Improvement Notice and the Prohibition Notice, gave the following evidence:
2. On 18 March 2021 at approximately 2:15pm I attended 15 Northumberland Street, Liverpool NSW (the Site ) in the company of my fellow Inspectors Jamie Hinton, Michael Holder and Phillip Estreich. I attended the Site at the direction of my manager following an incident that had occurred at the Site at approximately 12:20pm the same day in which Mr Andre Benz fell from a common access balcony area on Level 8 at the Site while performing finishing work on the facades of the building under construction at the Site. As a result of the fall Mr Benz was fatally injured (the Incident ).
3. As the Incident involved the use of abseiling and other height safety equipment, and on the basis of my observations at the Site, I became concerned about the safety systems and procedures in place at the Site, relating to working at heights.
4. I was informed by Mr Chris Parkes, a Safety Officer employed by the Applicant in these proceedings and verily believed that the anchor points located on Level 8 at the Site, including the one to which the abseiling equipment used by Mr Benz had been attached at the time of his fall, had been installed in October 2020.
5. I went to, and observed, the terrace area on Level 8 of the site where Mr Benz had rigged his abseiling ropes prior to falling down the north-west corner of the building under construction at the site…
6. I observed the third anchor point from the entrance door to the terrace area (Anchor Location 3) that had been screwed into an M16 internally threaded bolt. Attached to the M16 anchor I observed a carabiner that was also connected to rope with a figure 8 to terminate the end… I was informed by Constable Scott Ambrose that the portion of rope connected to Anchor Location 3 had been put in place for use by Mr Benz as his back-up line.
7. I was further informed by Constable Ambrose that the nearest anchor location from the entrance door, being that which I subsequently labelled as Anchor Location 1, was the anchor location that Mr Benz had allegedly been attached to immediately prior to the anchor coming out and the Incident occurring. On inspection of Anchor Location 1, I saw a hole left by the anchor's departure… I also observed a large amount of waterproof membrane built up on top of the actual internal thread of this anchor location.
…
9. I observed on the other side of the glass balustrade the majority of the ropes that were not in use were located in an area where there was a risk of falling from Level 8 to ground level. Access to this area was through a glass door within the balustrade… Within this area I saw two other M16 Anchor points. I examined one of them and noted that an internally threaded anchor had been installed into it. On further examination I found that the anchor had been installed to an extent that was finger tight.
…
11. During my inspection of the Site on 18 March 2021 and my observations and examinations of the anchor points at the Site, I formed a belief that the use of abseiling equipment by attaching it to any of the anchor points on the Level 8 terrace area presented a serious risk to health and safety of workers at the Site and working at height.
…
13. During my inspection of the Site I spoke with police officers who were in attendance. One of the forensic police officers, informed me that the distance of the rope from the anchor point that had been dislodged to the location of the descending device attached to Mr Benz via his harness at the time of his fall was 4.15 metres.
14. On 18 March 2021, having observed the Site, including the failed anchor at Anchor Location 1 on Level 8, I formed a belief that an activity was occurring at the Site that involved a serious risk to the health and safety of one or more persons. I also formed a belief that the serious risk emanated from an immediate exposure to a hazard and that allowing the facade work in progress to continue without reviewing the applicable safe systems of work was contravening section 19 of the Work Health and Safety Act 2011 (the Act) and Clause 38 of the Work Health and Safety Regulation 2017 (the Regulation).
15. I also formed a belief that there was a serious risk to health and safety in relation to the facade work at the Site. This was based on all my observations set out in this Affidavit including the presence of workers at the site, the dislodged anchor from Anchor Location 1, the obvious risk of falling from Level 8 and the manifestation of this risk through the Incident, as well as the ongoing presence of anchor points and abseiling equipment at the site.
16. In forming my beliefs described in this Affidavit, I relied on my training, skills and experience as an Inspector with SafeWork NSW as well as my 14 years' experience within the Height Safety Industry in managing risks of falls from height…
17. My beliefs set out in this Affidavit were also based on a concern that abseiling work at the site, including in the vicinity of Level 8 would continue and that a contravention of the Act and the Regulation would continue or be repeated by the Applicant. The basis for my concern in this regard was that I saw the ongoing presence of abseiling equipment at the Site and in particular at Level 8. Furthermore, Constable Ambrose while at the Site said to me words to the effect that at the time of the incident a second worker had been with Mr Benz and assisting him with the facade work at the time of the Incident and that that worker had been taken to Liverpool police station for questioning about the Incident. It was my understanding and belief that that worker, and/or other workers would be likely to return to the Site and attempt to continue the facade work that Mr Benz had been conducting at the time of the Incident and thereby be exposed to the same risk of falling from height to which Mr Benz had been exposed. It was my belief that if this were to occur, in the absence of a review of the applicable safety systems in place at the Site, there would be a continued or repeated contravention of the Act and the Regulation.
18. As a result of the beliefs that I formed and have outlined in the paragraphs above, issued Improvement Notice No. 7-130-4YWYRR (the Notice)... The Notice required the Applicant in these proceedings to, amongst other things, conduct a review of its safe systems of work in relation to the installation and use of fall arrest/rope anchor points and to ensure that the nature of the work and risks associated with the use of fall arrest/rope access anchor points are reviewed and taken into account when providing training, information and instruction to workers at the Site and complied with legal requirements.
19. At the time of issuing the Notice I also issued Prohibition Notice No 7-130-EJIEDT under section 195 of the WHS Act.
Mr Croke was not required for cross-examination by counsel for Lipman.
[7]
Michael Holder
Michael Holder is one of the SafeWork inspectors who attended the site on 18 March 2021. An affidavit affirmed by Mr Holder was admitted into evidence. Annexed to the affidavit were a number of photographs taken on the day by Mr Holder, including photographs of the failed anchor point. Mr Holder was not required for cross-examination by counsel for Lipman.
[8]
SafeWork
On 13 August 2021, SafeWork filed a document in the Office of the Industrial Registrar titled "Outline of the Respondent's Submissions" ("SafeWork's Submissions"). SafeWork's Submissions contained the following (footnotes omitted):
Introduction
1. The Applicant seeks an external review and the setting aside of:
(1) an Improvement Notice issued on 18 March 2021 (the Notice) by Inspector Jason Croke (the Inspector): and
(2) an internal review decision in respect of the Notice, dated 13 April 2021 (the Decision).
2. The Applicant has also sought a stay of the Decision.
3. The Notice was issued under s. 191 of the Work Health and Safety Act 2011 (the Act).
…
21. In assessing whether an inspector 'reasonably believes' the matters set out in s. 191(1)(a) and/or s. 191(1)(b), the approach necessarily requires the reasonableness of the belief to be considered in the context of the functions of the Regulator (under whose delegated power the inspector was acting) under the Act. These functions include "to monitor and enforce compliance with" the Act (s. 152 (b)).
22. The assessment of whether an inspector reasonably believes the matters in section 191 of the Act also entails a consideration of the functions and powers of an inspector under the Act. These include the express function and power to require compliance with this Act through the issuing of notices (section 160(d)). Further, it is also relevant to the consideration of the reasonableness of the belief that the power of an inspector to issue an improvement notice is contained within Part 10, which provides the specific enforcement measures of the Act.
23. Accordingly, the reasonableness of an inspector's belief under section 191 of the Act must be assessed against the primary objective of ensuring compliance with the Act, and in particular, whether it would achieve the objective of securing the highest level of protection for workers against harm to their health, safety and welfare from hazards and risks arising from work.
Did the Inspector reasonably believe that a person was contravening a provision of the Act or had contravened a provision in circumstances that make it likely that the contravention will continue or be repeated?
24. It is expressly agreed between the parties that:
(1) the Applicant was both the design and construction contractor and also the principal contractor for the construction of a multi-storey building at 9-15 Northumberland Street, Liverpool in the state of New South Wales (the Site) (Agreed Statement of Facts (ASOF): paragraph [2]).
(2) as part of its own contractual obligations to Anglicare at the Site, the Applicant was required to install a height access system for the building under construction at the Site, including a compliant fall arrest roof safety system (ASOF, [1] and [3]);
(3) the Applicant, on 1 October 2019 engaged Safety Anchors Pty Ltd, trading as SafeMaster Height Safety Solutions (Safemaster) as a subcontractor to design, manufacture, supply, deliver, install and certify a fall arrest roof safety system for the work being done at the Site (ASOF:[6]);
(4) SafeMaster, as a subcontractor of the Applicant, installed on Level 8 of the building under construction at the Site, a number of anchor points for single point fall arrest (rope access) purposes (ASOF: [17]).
25. There appears to be no issue that the anchor points referred to in paragraph 24(4) above included the particular anchor point on Level 8 of the Site that failed when Mr Andre Benz was undertaking abseiling using the system installed by SafeMaster (ASOF, [51], [52])).
26. On 18 March 2021 the Inspector formed a reasonable belief that the Applicant, as the principal contactor at the Site, had contravened s. 19 of the Act in circumstances that made it likely the contravention would continue or be repeated. The basis of the belief included the information he had available to him at the time of issuing the Notice, including the fact that Mr Benz had fallen from Level 8 at the site while relying on an anchor point which had failed at that level and that on Level 8 he observed the ongoing presence of rope access works set up and rigged to other anchor points located in the building's concrete substrate (Inspection Report dated 19 March 2021, Annex D to Affidavit of the Inspector) relating to the observations recorded in that Report on page 2 at section 2 of the Inspection Details.
27. There can be no doubt that both the subjective and the objective dimensions of the belief formed by the Inspector are established on the evidence. Firstly, the belief was clearly formed and held (Affidavit of the Inspector: [49]). Secondly, and equally clearly, that belief was reasonably formed and held by the Inspector as at the time he issued the Notice. His belief was formed in circumstances which included:
(1) a fatal incident (the Incident) had occurred at the Site a short time prior to the Inspector's inspection at the Site (ASOF: [51]; Affidavit of the Inspector: [14]);
(2) he had been made aware that the Incident involved the use of abseiling and other height safety equipment. As he inspected Level 8 of the Site he observed the ongoing presence of ropes and abseiling equipment along with clear scope for falling from Level 8 and the hole left by an anchor having detached from an anchor point (Affidavit of the Inspector: [3],[4],[5],[6], [7]) and as a result of at least some of these observations he became concerned about the safety procedures in place at the Site in relation to working at height (Affidavit of the Inspector: [3]);
(3) he was told by representatives of the Applicant that the Applicant's subcontractor had designed, fabricated, manufactured, supplied, delivered and installed the anchor points on Level 8 at the Site including the one involved in the relevant incident (ASOF: [55]; Affidavit of the Inspector: [4]);
(4) from his observations and examinations of anchor points at the Site, the Inspector formed the view that the use of any abseiling equipment involving attachment to any of the anchor points on Level 8 at the site presented a serious risk to health and safety of workers working at height at the Site (Affidavit of the Inspector: [11]); and
(5) the ongoing presence of abseiling equipment on Level 8 together with a reasonable likelihood that one or more other workers may attempt to use the equipment and rely on an unsafe anchor point (Affidavit of the Inspector: [17]) formed a valid, justified and entirely reasonable belief that unless a review of the safety systems by the Applicant as the principal contractor was to be undertaken it was, and remained, likely that a contravention of the Act would continue or be repeated.
28. The evidence shows that as he undertook the inspection on 18 March 2021 the Inspector observed an ongoing unaddressed risk of falling from height at Level 8. The risk was apparent to the Inspector from the height at Level 8 along with the unprotected edge on the northwest corner of the building under construction at the Site and the continuing presence of rope access working equipment rigged to anchor points which it was open to the inspector to conclude may be individually or collectively unsafe (Affidavit of the Inspector: [9]; Affidavit of Inspector Holder: [2],[3]).
29. The Inspector's observations of the Site justifiably contributed to his belief that rope access work relying on one or more of the anchor points on Level 8 may continue, be allowed to continue and/or not be prevented from continuing at the Site. The basis for this belief included the ongoing presence of abseiling equipment and his awareness of the possibility that Mr Benz's co-worker, or another person tasked by Mr Benz's organisation, might attend the site to continue the facade work commenced by Mr Benz prior to the incident. A reasonable inference that was available to the Inspector was that the Applicant, as the principal contractor, had not ensured, and was not likely to ensure, that reasonably practicable measures were in place to ensure that any ongoing facade work could be done safely in accordance with the Applicant's duty under s. 19 of the Act.
30. It is apparent that based upon the circumstances as the Inspector perceived them to be, he had a reasonable basis to form a belief that facade work was likely to continue at the Site.
31. At the time of the inspection, it was apparent to the Inspector that the facade work needed to be completed. His belief that this would necessarily involve the use of rope access equipment either being that already present at the Site or other similar equipment necessarily requiring connection to, and reliance on, the anchor points he had assessed as likely to be unsafe, was reasonable having regard to all the circumstances.
32. The Inspector therefore formed the belief that should rope access work be permitted to continue at the Site before all the applicable systems of work, risk assessments and control measures were reviewed, it was likely that a contravention of section 19(1) of the Act would continue or be repeated. Reliance on the anchor points, one of which had clearly failed, would give rise to a serious risk of injury to workers relying on anchor points of dubious safety levels.
33. The resulting scope for continued or repeated contravention of the Act is supported by the evidence that at the time of issuing the Notice the rope access equipment and anchor points had not been isolated from potential use by other workers at the Site, or who may come into the Site.
34. In the light of the above it is plain that as at the date upon which the Inspector issued the Notice there were sound grounds for him to form and retain the belief that a contravention of the Act had occurred in circumstances that made it likely that the contravention would continue or be repeated.
35. A further basis upon which it is clear that the Inspector's belief was held reasonably is that he brought to bear, on each and every of his observations made at the time of issuing the Notice, a considered and experience-based belief as to a contravention of section 19(1) of the Act by the Applicant and the likelihood of the contravention being repeated or continuing in the absence of a review being undertaken by the Applicant as the Principal Contractor of all its systems of work pertaining to the installation and use of fall arrest/rope access anchor points and the other measures directed in the Notice. The Inspector, clearly on the evidence brought to bear to the formation of his belief a solid combination of his training, skills and experience acquired from his employment by the Respondent, along with fourteen years of directly relevant experience in the height safety industry (Affidavit of the Inspector: [16] including Annexure H).
36. The evidence of Grant Lucas (Mr Luca, Outline of Evidence: [15]) to the effect that he does not recall the Inspector accessing Level 8 at the Site that require access through a glass balustrade door on 18 March 2021 cannot, with respect, be found to be a proper basis on which to discount the evidence of the Inspector as to the observations he made on Level 8 nor the role those observations had in the Inspector forming the beliefs upon which the Notice was issued.
37. The evidence of Mark Holliday (Mr Holliday, Outline of Evidence:[10], [12], [14], [17]) to the effect that the Applicant did not itself possess expertise that would enable it to attend to the remedial measures prescribed in the Notice, is, with respect, not relevant to the validity of the Notice nor the belief held by the Inspector at the time it was issued.
38. As the principal contractor at the Site, the Applicant has a non-delegable duty under s. 19(1) of the Act. The non-delegable nature of the duty of the Applicant in this regard arises from the ordinary interpretation of s. 14 of the Act which provides that a duty under the Act cannot be transferred to another person.
39. It is well established that when sub-contractors fail to ensure safety of their employees this will often reflect a failure on the part of the principal contractor: Inspector Chadwick v. Denbur Constructions Pty Ltd [2004] NSWIRComm 195 (at 18) per Boland J.
40. The delegation of responsibility to maintain a safe system of work by a principal contractor to a sub-contractor has been held, in the context of section 8(1) of the Act's predecessor (the Occupational Health and Safety Act 2000 (NSW)) that the duty to ensure safety cannot be transferred or delegated either consciously or unconsciously to some other entity: WorkCover Authority of NSW v. Siemens Dematic Pty Ltd (No. 2) [2003] NSWIRComm 45.
41. The rule in Seimens Dematic plainly applies in the same way to the Applicant's duty to ensure safety at the Site under section 19 of the Act in the present case. Its engagement of Safemaster to provide the roof safety access system at the Site cannot, and does not, have the effect of taking the Applicant outside of the ambit of its duties under the Act as a whole nor its duty under section 19(1) of the Act in particular.
42. Finally, by the operation of section 16 of the Act, the Applicant's duty under section 19(1) of the Act - as well as its other duties under the Act - can each be held concurrently with other duty holders - including Safemaster along with any other duty holders at the site. Each duty holder is required to comply with concurrent duties to the standard required by the Act, even if another duty holder has the same duty (s. 16(2) of the Act).
43. The Applicant cannot therefore purport to validly assert that by having engaged Safemaster, even as an entity with clear specialist expertise, its own duty as the Principal Contractor has thereby in some way been extinguished. This would be contrary to the operation of both s.14 and s.16 of the Act.
44. For the above reasons, it is clear the Applicant at all times has retained a non-delegable and non-transferrable duty as the Principal Contractor and was validly issued with the Notice.
Conclusion
45. The Commission would be satisfied that the Inspector at the time of issuing the Notice had made direct observations and reasonable enquiries, and that his belief that there had been breach of the Act in the circumstances prescribed by section 191(1) of the Act was soundly based.
46. The Commission would therefore find that the correct or preferable decision is that the requirements for the issuing of an Improvement Notice pursuant to section 191 of the Act were met as at the date of the issuing of the Notice on 18 March 2021.
47. The Commission should uphold the Notice and the Decision.
[9]
Lipman
On 20 August 2021, Lipman filed an extensive document titled "Outline of the Applicant's Submissions" ("Lipman's Submissions"). On the issue of whether Mr Croke, at the time he issued the Improvement Notice on Lipman, reasonably believed that Lipman had "contravened a provision in circumstances that made it likely that the contravention will continue or be repeated…" as was stated in the Improvement Notice (see [3] above), Lipman's Submissions contained the following (footnotes omitted):
23. The External Review is not an appeal. It is not a matter in which the Commission has to determine whether there was error in the Internal Review decision.
24. In determining what order to make the Commission stands in the shoes of the decision maker - in this case Inspector Croke. The Commission therefore has to determine the 'correct or preferable' decision having regard to all the evidence before it.
25. Further, the Commission's determination of whether the original decision maker could have formed a 'reasonable belief is based on evidence:
a. that was viewed and/or considered by an inspector at the time they issued an improvement notice: and
b. which is relevant to the issues in the matter and is not evidence based on opinion or hearsay.
26. Accordingly, material relied upon by the Respondent in making their argument at this External Review in an attempt to justify the Inspector's decision to issue the Notice, where that material:
a. came into existence after the issuance of the Notice; and/or
b. was not known, considered and/or used by the Inspector at the time the Notice was issued,
is irrelevant for this External Review and should not be considered.
27. Therefore, the primary issue for determination by the Commission is whether on the objective evidence before the Commission, the Inspector had a proper basis to form a reasonable belief at the time of issuing the Notice that Lipman was contravening a provision of the WHS Act or WHS Regs, or had contravened the provision in circumstances that made it likely that the contravention would continue to be repeated, to permit the issuing of the Notice (see: s 191(1)(a) & (b) of the WHS Act).
…
39. Lipman contends that the objective evidence that was available to the Inspector at the time he issued the Notice does not demonstrate any actual 'contravention' of any provision of the WHS Act or the WHS Regs on its part at the time of the issuing of the Notice, nor circumstances in which a prior contravention had occurred which was continuing or likely to be repeated.
40. Lipman contends that the only basis in which the Inspector issued the Notice is:
a. The Inspector considered it "routine" to issue an improvement notice to a principal contractor following an incident involving a contractor worker (Holliday Statement at [12).); and/or
b. The belief held by the Inspector was solely influenced by the occurrence of the Incident and nothing else.
41. Accordingly, it is contended that on that basis the decision of the Inspector to issue the Notice was not one that the provisions of s 191 of the WHS Act empowered him to do. ln those circumstances it is contended that the Notice is invalid as it was not issued in accordance with law. Lipman seeks that the Commission should therefore revoke the Internal Review decision and set aside the decision to issue the Notice.
42. Further, the use of the word 'may' in s 191(2) of the WHS Act, makes it clear that even if the Inspector formed a 'reasonable belief', the issue of an improvement notice is discretionary.
43. Therefore, even if the existence of facts upon which a reasonable person could objectively form a reasonable belief that there was a contravention of the WHS Act or WHS Regs were found by the Commission (which is denied), it would be open to the Commission, standing in the shoes of the Inspector, to exercise the discretion held by the Inspector in s 191(2) of the WHS Act to determine it was not appropriate in all the circumstances to issue the Notice, or if the Commission considers a Notice was appropriate, it should have been issued to another person conducting business or undertaking (PCBU) not Lipman.
…
What was the specific evidence as to the belief which Inspector formed in relation to the alleged breach by Lipman of a duty under s 19 of the WHS Act and cl 38 of the WHS Regs?
Under s 19 of the WHS Act
49. The affidavit of the Inspector dated 2 August 2021 (Croke Affidavit) sets out the basis upon which he asserts that he formed the reasonable belief that Lipman contravened the WHS Act and the WHS Regs.
50. In particular, the Inspector asserts that he formed the following beliefs during his inspection of the Site on 18 March, and from his observations of the Site, that:
a. the use of abseiling equipment by attaching it to any of the anchor points on the level 8 terrace area represented a serious risk to health and safety of workers at the Site and working at height (Croke Affidavit at [11]);
b. an activity was occurring at the Site that involved a serious risk to health and safety of one or more persons (Croke Affidavit at [14]);
c. the serious risk emanated from an immediate exposure to hazard and that allowing the façade work in progress to continue without reviewing the applicable safe system of work was contravening section 19 of the WHS Act and clause 38 of the WHS Regulation (Croke Affidavit at [14]);
d. there was a serious risk to health and safety in relation to the façade work at the site (Croke Affidavit at [14]);
51. The Inspector contended that his 'beliefs' were also based on a concern that abseiling work at the Site, including in the vicinity of Level 8 would continue and that a contravention of the WHS Act and the WHS Regs would continue or be repeated by the Applicant (Croke Affidavit at [171).
52. The Inspector contended (Croke Affidavit at [17]) that the basis of the above 'concern' was due to:
a. the ongoing presence of abseiling equipment at the Site and in particular at Level 8;
b. that at the time of the Incident a second worker had been with Mr Benz and assisting him with the façade work at the time of the Incident;
c. that the second worker had been taken to Liverpool Police station for questioning about the Incident; and
d. that the worker and/or other workers would likely to return to the Site and attempt to continue the façade work that Mr Benz had been conducting at the time of the Incident;
53. The Croke Affidavit fails to expressly state the basis upon which he formed the belief that it was Lipman (as opposed to some other duty holder) that had failed to comply with a duty under s 19 of the WHS Act. This is a significant failure.
54. To the contrary, it is contended that the information in the possession of the Inspector at the time, would have identified to a reasonable person, that Lipman was not the relevant duty holder.
55. The decision in Watpac Construction Ply Ltd v The Regulator under the Work Health and Safety Act 2011 [2021] QIRC 257, involved an application for external review of a decision to issue an improvement notice under the identical provisions of the Work Health and Safety Act 2011 (Qld).
56. As in this matter, the applicant in the Watpac matter was a principal contractor in respect to construction works. In Watpac O'Connor VP considered at [78] the approach that an inspector must take in order to enliven the power to issue an improvement notice. In particular O'Connor VP noted that the anterior question to be determined by the inspector in order to enliven the power to issue an improvement notice is whether or not the relevant provision of the WHS Act for WHS Regs has been contravened. The inspector must have formed a reasonable belief that the section has been contravened in order to issue an improvement notice.
57. It is this anterior step that is missing in the Croke Affidavit. Whilst the Inspector may have formed a reasonable belief from the fact of an incident having occurred that there was a hazard and risk existing in relation to the use of the FARS system and in respect to the Rope Access Works (which is not admitted), the Inspector has not articulated how it is said that Lipman has contravened s19 of the WHS or cl 38 of the WHS Regs (discussed further below).
58. In issuing the Notice the Inspector has misdirected himself by referring to his belief as to the existence of a hazard or risk at the Site, but not as to how it is that he formed a reasonable belief that Lipman (as opposed to some other duty holder) had contravened s 19 of the WHS or cl 38 of the WHS Regs.
59. The Commission would find that the Inspector could not have formed the requisite belief in the circumstances and material that he had at the time he issued the Notice. The basis for this contention is discussed later in these Submissions.
60. The Inspector must establish that he held the belief on reasonable grounds.
61. The question of whether the Inspector held such a belief, and whether the Inspector did so on reasonable grounds is discussed below.
62. A matter that goes to whether the Inspector had reasonable grounds for holding the relevant 'beliefs' is that at the time of issuing the Notice:
a. the Inspector also issued a prohibition notice (Notice No: 7-130-EJIEDT) under section 195 of the WHS Act to Lipman on 18 March 2021 (Prohibition Notice); and
b. Inspector Phillip Estreich, who accompanied the Inspector on Site on 18 March 2021, issued on 18 March 2021 a Non-disturbance Notice (Notice number 7-394372) to Lipman (Non-disturbance Notice (ASOF at [591).
63. The Prohibition Notice detailed the 'Serious Risk' as arising from the 'activity of the use of ALL installed fall arrest/rope access anchor points'. The Prohibition Notice recorded the basis for inspector's belief as being:
Workers/Other persons are exposed to a serious risk to their health or safety as the fall arrest/rope access anchor points installed on level 8 have been involved in an incident where they have failed.
64. The Prohibition Notice included the following directions on the measures to be taken to remedy the risk, activity or matters for the contravention or likely contravention:
1. You must cease the use of all installed fall arrest/rope access anchor points across the site.
2. You must ensure that all installed fall arrest/rope access anchor points being used at the workplace are inspected and load tested in accordance with 1891.4 by a competent person to ensure they are in a safe condition.
3. You must have a competent person assess all anchors and provide a Load Test Certificate to verify the safety integrity of each.
4. When this direction has been completed contact the Inspector who issued this notice who will determine compliance.
65. The Non-disturbance Notice stated:
Measures to be taken to preserve the site or prevent disturbance of the site:
1. Prevent access to level 8 balcony.
66. The Non-disturbance Notice had the effect of preventing all workers and other persons access to the level 8 balcony at Site, the area in which Mr Benz was working prior to the Incident and which the abseiling/rope equipment was set up (Nelson Statement at [21]).
67. It was mandatory for Lipman to comply with the directions contained in the Prohibition Notice and the Non-disturbance Notice.
68. The content and/or effect of the Prohibition Notice and the Non-disturbance Notice demonstrates that the basis upon which the Inspector formed the belief that that abseiling work at the Site, including in the vicinity of Level 8 would continue and that a contravention of the WHS Act and the WHS Regs would continue or be repeated by the Applicant (Croke Affidavit at [17]), was not a reasonable or well-founded belief. That is on the basis that the Prohibition Notice and the Non-disturbance Notice had the effect of prohibiting the very conduct that gave rise to the 'concern' that a contravention of the WHS Act and the WHS Regs would continue or be repeated by the Applicant.
69. The basis for the Inspector holding the 'belief is also contrary to that outlined in the Nelson Statement. Mr Nelson stated that he informed the Inspector, during his inspection of the Site on 18 March 2021, that
a. the anchor points would be taken out of service and would not be used until they were re-checked and re-certified and that Lipman could gain an understanding of how the Incident had occurred (Nelson Statement at 14): and
b. that the rope access system would not be used on that day or in the near future until it had been re-checked and certified, and Lipman have an understanding in respect to how the Incident had occurred (Nelson Statement at [151).
70. Therefore, upon the issuance of the Prohibition Notice and the Non-disturbance Notice to Lipman, the Inspector could no longer have any objective basis for a belief that:
a. there would be any ongoing use of the FARS system or the Rope Access system at the Site;
b. that workers from BHAS would return to the Site and attempt to continue the façade work that Mr Benz had been conducting at the time of the Incident.
71. The objective evidence demonstrates that the Inspector had no sound basis to form a reasonable belief that Lipman was contravening a provision of the WHS Act at the time he issued the Notice, as no activity involving the FARS system or the Rope Access Works at the Site was being undertaken at the time of the issuing of the Notice.
72. The objective evidence demonstrates that the Inspector had no sound basis to form a reasonable belief that Lipman had contravened a provision in circumstances that made it likely that the contravention would continue or be repeated at the time he issued the Notice, as the issuing of the Prohibition Notice and the Non-disturbance Notice meant that no activity involving the FARS system or the Rope Access system at the Site could be undertaken at the time of the issuing of the Notice nor until such time the Prohibition Notice has been complied with.
…
[10]
SafeWork's Reply Submissions
On 25 August 2021, SafeWork filed a document in the Office of the Industrial Registrar titled "Outline of the Respondent's Submissions in Reply" ("SafeWork's Reply Submissions"). SafeWork's Reply Submissions contained the following:
1. This Outline of Submissions in Reply addresses the Outline of the Applicant's Submissions (OAS) filed on 20 August 2021.
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3. The Respondent respectfully acknowledges that the resolution of the present application before the Commission in the present proceedings involves a merits review of the decision by the Respondent to issue the Improvement Notice issued by Inspector Croke on 18 March 2021 (the Notice) under s191 of the Work Health and Safety Act 2011 (the Act).
4. The Respondent also acknowledges that by the operation of s229 of the Act the Commission has the power to confirm, vary or revoke the decision made to issue the Notice and/or the decision deemed to have been made pursuant to the internal review decision on 13 April 2021.
5. The Respondent agrees that the Commission, as stated in paragraph 24 of the OAS "stands in the shoes of the decision maker in this case Inspector Croke" and that the task of the Commission is to "determine the 'correct or preferable' decision having regard to all the evidence before it".
6. There continues to appear to be no issue that the anchor point on Level 8 of the Site that failed when Mr Andre Benz fell were part of a safety system installed by Safety Anchors Pty Ltd (Safemaster). Nevertheless, the work undertaken by Safemaster in its specialist role was undertaken at the request, and ultimately under the control, of the Applicant in its capacity as the principal contractor.
7. The Respondent does not seek to rely on any material that either came into existence after the Notice had been issued, nor material that was not known, considered or used by the Inspector at the time the Notice was issued, in the manner suggested by the Applicant in paragraph 26 of the OAS.
8. The evidence establishes clearly that on 18 March 2021 the Inspector formed a reasonable belief that the Applicant, as the principal contactor at the Site, had contravened s19 of the Act in circumstances that made it likely the contravention would continue or be repeated. The basis of the belief included the information the Inspector had available to him at the time of issuing the Notice, including the fact that Mr Benz had fallen from Level 8 at the site while relying on an anchor point which had failed at that level and that on Level 8 there was an ongoing presence of rope access work set up and rigged to other anchor points located in the building's concrete substrate...
9. Both the subjective and the objective aspects of the belief formed by the Inspector are established on the evidence. Firstly, the belief was clearly formed and held... Secondly, and equally clearly, that belief was reasonably formed and held by the Inspector as at the time he issued the Notice. His belief was formed in circumstances which included:
(1) a fatal incident (the Incident) having occurred at the Site a short time prior to the Inspector's inspection at the Site…
(2) he had been made aware that the Incident involved the use of abseiling and other height safety equipment. As he inspected Level 8 of the Site he observed the ongoing presence of ropes and abseiling equipment along with clear scope for falling from Level 8 and the hole left by an anchor having detached from an anchor point… and as a result of at least some of these observations he became concerned about the safety procedures in place at the Site in relation to working at height…
(3) he was told by representatives of the Applicant that the Applicant's subcontractor had designed, fabricated, manufactured, supplied, delivered and installed the anchor points on Level 8 at the Site including the one involved in the relevant incident…
(4) from his observations and examinations of anchor points at the Site, the Inspector formed the view that the use of any abseiling equipment involving attachment to any of the anchor points on Level 8 at the site presented a serious risk to health and safety of workers working at height at the Site…; and
(5) the ongoing presence of abseiling equipment on Level 8 together with a reasonable likelihood that one or more other workers may attempt to use the equipment and rely on an unsafe anchor point… formed a valid, justified and entirely reasonable belief that unless a review of the safety systems by the Applicant as the principal contractor was to be undertaken it was, and remained, likely that a contravention of the Act would continue or be repeated.
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11. It cannot be an answer to the Notice that the Applicant had, in effect, delegated or transferred its responsibility under the Act to a specialist sub-contractor in Safemaster. Such a transfer is clearly prohibited by s14. Moreover, to the extent that Safemaster may well have duties under the Act as a subcontractor at the site, the operation of s16 of the Act plainly allows the same duties to be held concurrently by Applicant.
12. The Inspector's observations at the site, as reflected in his Affidavit, at the time of issuing the Notice justifiably contributed to, and were available to him as objective evidence sufficient to enable him to form, his reasonable belief that the duties of the Applicant as the builder under s19(1) of the Act, were being contravened within the meaning of s191(1)(a) of the Act or that a contravention had occurred in circumstances where it may continue or be repeated within the meaning of s191(1)(b).
13. It was clear to the Inspector that facade work was likely to continue at the site. In this regard, there is no timeframe prescribed in s.191(1)(b) during which a contravention might be repeated or may continue. For this reason it is submitted that the reference to there being no evidence of an actual contravention, in the manner set out at paragraph 39 of the AOS does not remove the presence of a clear basis for the Inspector reasonably believing that, for example, the contravention will be repeated later that day or on a subsequent day. It is submitted that the wording of s191 in this respect is necessarily expansive, and demands a liberal and beneficent interpretation, in order to afford the optimum protection to workers who are at a site or may come onto a site, consistently with the protective object of the Act in s3(1)(a).
14. The reference to "routine" and the "occurrence of the Incident" per se in paragraph 40 of the AOS is, it is submitted not a comprehensive reflection of the totality of factors on which the Inspector reasonably formed his belief that supported the issue of Notice. The evidence as a whole as set out in the Affidavit of the Inspector and includes the visual observations he made as set out in his Affidavit and as recorded in the photographic evidence obtained by Inspector Holder at the Inspector's request. This evidence demonstrates that the Inspector's belief was based on a much broader set of facts and circumstance than those purported to be summarised in paragraph 40 of the AOS.
15. The Respondent submits that the Notice was validly issued to the Applicant and was within the legitimate exercise of the discretion provided to the Inspector by the operation of s191(1). At the time of the inspection, the belief he formed was reasonably supported by a range of considerations over and above the fact that the incident had occurred. These included, but were not limited to, the objective fact that facade work needed to be completed and that this would necessarily involve the use of rope access equipment either being that which was at the time present at the site and/or or other similar equipment necessarily requiring connection to, and reliance on, the anchor points he had assessed as likely to be unsafe based on his direct observations of one such anchor point having demonstrably failed.
16. The Inspector's belief can be summarised as being that if rope access work was to be allowed to continue by the Applicant, without regulation at the site, before all the applicable systems of work, risk assessments and control measures had been reviewed, a contravention of section 19(1) of the Act by the Applicant as the lead builder would continue or be repeated. Allowing anyone to carry out fa9ade work in reliance of any of the anchor points, one of which had already clearly failed, would give rise to breach of the Applicant's non-transferable duty under s19 to ensure, so far as is reasonably practicable, the health and safety of:
(1) Workers engaged or caused to be engaged by the Applicant, and
(2) Workers whose activities in carrying out work are influenced or directed by the Applicant.
17. On the above basis the Inspector, on behalf of the Respondent as the regulator, acted in the exercise of his discretion under s191(2) and, it is submitted quite appropriately issued the Notice.
18. The Inspector, in issuing the Notice, did not misdirect himself in the manner suggested in paragraph 58 of the AOS. Rather, he considered the full spectrum of facts and circumstances applicable to the existence of the duty held by the Applicant and the basis for his belief that a contravention had been perpetrated by the Applicant and may continue or be repeated.
19. The test proposed by the Applicant in paragraph 60 of the AOS is not, with respect, the correct test. The reference there to having held a belief on reasonable grounds is a different test to the one applicable in relation to s191 of the Act. The reasonable grounds test applicable in George v. Rocket (1990) 170 CLR 104, involved a belief on reasonable grounds in the context of the legislation there under consideration. That case involved consideration of the basis for it appearing to an authorised justice, based on a complaint made on oath, that there are reasonable grounds for believing evidence may be in existence to justify issuing a warrant to police. The correct test in the present case is, it is submitted, different in that the reasonable belief may be formed directly by an Inspector having regard to all the factual and situational matters applicable to the situation. The inspector, as envisaged by s191 was making the applicable assessment at an operational worksite within tight timeframes aimed to optimise protection of workers. He was doing so based on the best possible inspection and making the observations and inquiries immediately available to him at the time. It is submitted that these actions afforded sound grounds for him forming and retaining the belief that a contravention of the Act by the Applicant had occurred in circumstances that made it likely that the contravention would continue or be repeated.
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Conclusion
29. The Respondent maintains that the Commission would be satisfied that:
(1) the Inspector at the time of issuing the Notice, having made observations and reasonable enquiries, reasonably believed there had been a contravention of the Act by the Applicant in the circumstances required and prescribed by section 191(1) of the Act; and
(2) The Notice was validly issued to the Applicant.
30. The Commission would therefore find that the correct or preferable decision is that the requirements for the issuing of an Improvement Notice to the Applicant pursuant to section 191 of the Act were met as at the date of the issuing of the Notice on 18 March 2021.
31. The Commission should uphold the Notice and the Decision made to issue it.
[11]
Lipman's Reply Submissions
Lipman also relied upon a document dated 1 September 2021, titled "Applicant's Submissions in Response to the Respondent's Submissions in Reply" ("Lipman's Reply Submissions").
1. These submissions are filed in response to the outline of the Respondent's Submissions in Reply (Reply Submissions).
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11. In response to paragraph [8] of the Reply Submissions, the fact that Lipman, as the builder, had the additional duties imposed by Part 6.4 of the WHS Regulation, does not provide a proper and objective basis for the formation of a 'reasonable belief' that it had contravened s.19 of the WHS Act in circumstances that made it likely the contravention would continue or be repeated. There is nothing in the WHS Act or WHS Regulations that provides that the additional duties imposed on a person as a 'principal contractor' means that they are liable for a potential contravention of the Act by another duty holder.
12. That an incident occurred at a construction site in which a person had additional duties in its role as the principal contractor is not of itself sufficient to form a reasonable belief that it was responsible for any failures that may have given rise to the risk the subject of the incident. There must be some objective evidence that points to the likelihood that there was a failure on the part of that person to comply with its duties under the WHS Act.
13. The Reply Submissions at paragraph [9] demonstrate the Respondent's reliance on an incorrect approach to determining whether there has been a contravention of a provision of the WHS Act by 'a person', in this case Lipman. That is rather than addressing whether objectively there is a basis to reasonably believe that the particular 'person' to whom the improvement notice is to be issued is contravening or has contravened a provision in circumstances that make the contravention will be continued or repeated, the Respondent simply relies on a series of circumstances that indicate that there may have been a contravention by another 'person' or 'persons' that hold a duty under the WHS Act.
14. In essence the Respondent is focusing on section 191(2) of the WHS Act - that is how to remedy or prevent a contravention - without recognising that section 191(1) of the WHS Act provides a threshold which has to be met before consideration can be given to the steps in s191(2) of the WHS Act.
15. It is not a sufficient basis to issue an improvement notice to form a reasonable belief that a person who has not contravened a provision of the WHS Act may be able to take some steps to prevent a likely contravention by others from occurring.
16. Further, the Respondent's submission that the "subjective…aspects of the belief formed by the Inspectors are established on the evidence" is erroneous. Subjective beliefs held by the Inspector are irrelevant in this External Review.
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18. The basis upon which the Inspector is asserted to have formed the belief at paragraph 9 of the Reply Submissions clearly indicates that the Inspector considered there to be a serious risk for which he issued a Prohibition Notice.
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23. In this matter the Inspector has adopted the 'one size fits all approach' that was specifically rejected by Chief Commissioner Kite in the Razorback Glass matter (at [27]). That is, he has simply formed the view that the Applicant, as the builder with additional duties as a principal contractor, was responsible for any and all contraventions of the WHS Act by specialist subcontractors performing work at the site.
24. Further, there was no objective basis for the Inspector to form a reasonable belief that Lipman would not co-operate and comply with the Prohibition Notice and the Non-Disturbance Notice, so as to the permit the formation of a reasonable belief that made it likely that any alleged contravention would continue or be repeated.
25. At paragraph [11] of the Reply Submissions the Respondent again mis-states the test. It is not a matter of a transfer of 'responsibility' under the WHS Act. It is a question of whether the relevant 'person' contravened a provision of the WHS Act. Just because more than one person can have the same duties in respect to a matter does not mean that if one person breaches their duties all duty holders breach the duty. Nor does it mean that every party has the same duty.
26. Section 14 of the WHS Act has the effect of preventing a duty from being transferred. It does not prevent the undertaking of 'activity' or a 'matter' the subject of duty from being allocated to a different party. That is the entire basis of contracting. If section 14 of the WHS Act had the effect of preventing the contractual allocation of an 'activity' or 'matter' the subject of duty from one party to another then every party in a contracting chain would retain all the responsibilities of every sub-contractor. The correct characterisation is that the responsibility to take control of tasks can be contractually allocated to another duty holder. The scope of the duty of the principal contractor in respect to the particular 'activity' or 'matter' changes when a specialist contractor is engaged - from having responsibility for the 'activity' or 'matter' to the selection, engagement and management of the contractor undertaking the 'activity' or 'matter'. That becomes the 'business or undertaking' of the principal contractor as a person conducting a business or undertaking. That is not a delegation of a duty and therefore does not breach the provisions of section 14 of the WHS Act.
27. As to paragraph [13] of the Reply Submissions there was no objective basis for the Inspector to form the belief that, in light of the issuance of the Prohibition Notice and Non-disturbance Notice, that façade work was likely to continue at the site. There was nothing in the Inspector's observations of the Site, that would give rise to a reasonable belief that a contravention had occurred in circumstances where it may continue or be repeated.
28. The Inspector has not referred to any evidence or knowledge to the effect that Lipman had a poor safety record, a record of prior contraventions, or evidence of a prior record of non-compliance, such that he could form such a belief (see: Kite CC in Razorback Glass at [28] - [31]).
29. As to paragraph [15] of the Reply Submissions, there is no evidence that the façade work needed to be completed, or that it would necessarily involve the use of the Rope Access equipment. In the circumstances of the issuance of the Prohibition Notice and Non-Disturbance Notice no work could be undertaken at the site involving the FARS system or involving Rope Access Works.
30. As to paragraph [19] of the Reply Submissions the test of "reasonable belief" is objective and requires the existence of facts "which are sufficient to induce that state of mind in a reasonable person" having made reasonable inquiries to establish or clarify the facts. The test requires a reasonable and balanced approach, and does not allow an inspector to make assumptions and act on them without, at least, attempting to test, in a timely and practical manner, the validity of those assumptions.
31. It does not permit the Inspector, as was the circumstances in this matter, to issue the Notice based upon a superficial and limited 'observations and inquiries immediately available to him at the time'.
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The parties supported their written submissions with extensive oral submissions at the hearing of the matter on 1 September 2021. I have given careful consideration to all of the evidence and submissions of the parties, including those that I have not fully canvassed above.
[12]
Determination
In Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002, former Chief Commissioner Kite SC had cause to consider the test of "reasonable belief" in the context of a prohibition notice issued by a SafeWork inspector pursuant to ss 195(1) of the WHS Act.
Subsection 195(1) of the WHS Act is in the following terms:
195 Power to issue prohibition notice
(1) This section applies if an inspector reasonably believes that -
(a) an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, or
(b) an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.
The Chief Commissioner stated:
Consideration
Test of Reasonable Belief
55. I accept Mr Tooma's (solicitor for the applicant, Growthbuilt) submission that the test is objective. That is consistent with the authorities to which he referred and the decision of the Industrial Court in Essential Energy. As Backman J noted in that case, it is the orthodox approach. The use of the word reasonable introduces objectivity into the consideration of whether the Inspector has acted appropriately. Were it otherwise, as suggested by Mr Magee (counsel for the respondent, SafeWork), the legislation need not use the adjective "reasonable". It would depend solely on whether an Inspector forms a belief. Even the respondent's submissions do not go that far.
56. Mr Magee says the belief must be soundly based. I find, with due respect to Counsel, the distinction elusive if not illusory. How does one determine whether the belief is soundly based if not by an objective analysis? The suggested answer was that it depends upon the perceptions of the particular inspector. Again, even if that be correct, those perceptions must be soundly based. The parliament surely would not have intended that a notice issue on the clearly held but completely mistaken perception of an inspector.
57. In George v Rockett the Court observed at p 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. That was the point of Lord Atkin's famous, and now orthodox, dissent in Liversidge v. Anderson … That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers... Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist …
It follows that the issuing justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind.
(References and citations omitted)
I can identify no good reason to depart from that approach. The fact that a decision of this kind is subject to a merits review strengthens the argument that the test must be objective.
58. Nor do I find a basis for distinction in the fact that George v Rockett and Halley v Kershaw are cases which involved criminal proceedings. The former is concerned with a prosecution but only indirectly. It is about the circumstances which justify the issue of a search warrant which is an administrative step in the course of an investigation and prosecution. In any event the context informs what may be reasonable in any particular case.
59. In connection with that the respondent points, quite correctly, to the Object of the Act. Mr Magee draw particular attention to s 3(1)(a) and s 3(2) of the Act which I have earlier set out. There is no doubt those provisions identify an important public interest, the health and safety of persons at work. The law often grapples with competing public interests - in this case the health and safety of persons at work and the right of a PCBU to conduct its business lawfully and efficiently. No doubt that is why the Object refers to a "balanced …framework". Competing public interests were identified in George v Rockett. At p 110 the Court said:
A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s. 679, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, A History of English Law, vol. 10 (1938), pp. 668-672. Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier: Leach v. Money ; Entick v. Carrington . Historically, the justification for these limitations on the power of entry and search was based on the rights of private property: Entick. In modern times, the justification has shifted increasingly to the protection of privacy: see Feldman, The Law Relating to Entry, Search and Seizure (1986), pp. 1-2.
State and Commonwealth statutes have made many exceptions to the common law position, and s. 679 is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation. It will be convenient to consider the relevant conditions prescribed by s. 679 under three headings: the justice's function, the material to ground the issue of a warrant and the facts to be established.
(Citations and references omitted)
(Emphasis added)
60. While I accept the submission of the respondent that the Object of the Act informs the determination of what is reasonable, that does not involve an acceptance that the test is subjective and to be judged from the perception of an inspector. Further, I observe that Backman J, in the passage cited at [52], referred to the need to consider the identified public interest by reference to the particular facts of the case.
61. The construction is reinforced by the availability of internal and external reviews of the decision. The respondent submitted, as noted at [35], that this review is a hearing de novo and a process in which the Commission stands in the position of the decision maker. Such a review is not consistent with a subjective test. It is entirely consistent with an objective test.
I accept that the test of "reasonable belief" is an objective test. Mr Croke in the Improvement Notice stated, "I, Jason Croke reasonably believe on 18/03/2021 that you have contravened a provision in circumstances that make it likely that the contravention will continue or be repeated of the Work Health and Safety Act 2011, section 19 and Work Health and Safety Regulation 2017, clause 38". There are two elements that need to be satisfied in order to form the basis of a "reasonable belief". The first element is that the inspector must reasonably believe that Lipman has contravened s 19 of the WHS Act and cl 38 of the WHS Regulation. The second element is that the inspector must reasonably believe that the contravention occurred in circumstances that make it likely that the contravention will continue or be repeated.
It is not apparent on the face of the Improvement Notice how it is said that Lipman contravened cl 38 of the WHS Regulation. However, it is sufficiently clear that the alleged contravention by Lipman of s 19 of the WHS Act was a failure to ensure, so far as was reasonably practicable, the health and safety of "Workers/Other persons" by exposing them to " a serious risk to their health or safety as the fall arrest/rope access anchor points installed on level 8 have been involved in an incident where they have failed". Lipman denies that it has contravened the WHS Act or the WHS Regulation. For the reasons that follow, I have found it unnecessary to determine this aspect of ss 191(1)(b) of the WHS Act.
I have determined this matter on the basis that, objectively, Mr Croke could not have held a reasonable belief that the contravention occurred in circumstances that make it likely that the contravention will continue or be repeated. I certainly do not hold such a belief.
The basis of what Mr Croke claims to be his reasonable belief that the contravention occurred in circumstances that make it likely that the contravention will continue or be repeated, appears to be what is set out at paragraphs 7-18 of his affidavit (at [16] above) which I summarise as follows:
1. anchor points, including a failed anchor point, and ropes were observed on level 8 of the building;
2. the use of abseiling by attaching it to any of the anchor points presented a serious risk to the health and safety of workers;
3. the presence of workers at the site;
4. concern that abseiling work at the site would continue; and
5. Mr Benz's co-worker had been taken to Liverpool police station for questioning but he and/or other workers would be likely to return to the site and attempt to continue the façade work that Mr Benz had been conducting.
I note that, in his internal review decision, Mr Allison did not directly address any of the matters set out immediately above (at [9] above).
The matters which have led me to determine that a reasonable belief could not be held that the contravention occurred in circumstances that make it likely that the contravention will continue or be repeated include:
1. the Prohibition Notice that was issued to Lipman on 18 March 2021(at [6] above);
2. paragraph 58 of the Agreed Statement of Facts which states, "Lipman took immediate steps to take out of service the FARS System in compliance with the Prohibition Notice" (at [8] above);
3. the two Non-disturbance Notices issued by Mr Estreich on 18 and 24 March 2021 respectively (see paragraphs 59 and 61 of the Agreed Statement of Facts at [8] above);
4. the unchallenged evidence of Mr Holland that he told the SafeWork inspectors on 18 March 2021 that "the anchor points will be taken out of service and would not be used until they were re-checked and re-certified and we could get an understanding on how the Incident happened" and "that the rope access system would not be used on that day or in the near future until it was re-checked and certified and we [Lipman] had an understanding on how the Incident happened" (paragraph 14 at [12] above);
5. the unchallenged evidence of Mr Holliday that "while the prohibition notice was in force Lipman did not engage, or permit, any specialist height access contractors to access or use the installed fall arrest/rope access anchor points across the Site" and "Both non-disturbance notices prevented access to the level 8 balcony at Site, the area in which Mr Benz was working prior to the Incident and which the abseiling/rope equipment was set up. No other areas on the Site were being used for any other rope access/abseiling works. I verily believe that the Lipman Site team complied with both non-disturbance notices at all times" and "After the Incident, Lipman took immediate steps to prohibit access and all works (not just abseiling/roof access works) from occurring on level 8 balcony area and all works using the System at the Site" (paragraphs 16, 21 and 22 at [14] above).
I accept, without repeating them, the contents of paragraphs 67-72 of the Lipman's Submissions (at [20] above) and paragraphs 24 and 27-30 of the Lipman's Reply Submissions (at [22] above). It follows that I do not reasonably believe that, as at 18 March 2021, Lipman had contravened any provision of the WHS Act or of the WHS Regulation in circumstances that made it likely that the contravention would continue or be repeated (my emphasis).
It follows that Lipman's application for external review must succeed.
[13]
Orders
The Commission makes the following orders:
1. The external review is upheld.
2. The internal review decision made by the SafeWork reviewer following the application made by Lipman on 29 March 2021 is revoked.
3. The decision to issue Improvement Notice No. 7-130-4YWYRR is revoked.
Commissioner John Murphy
[14]
Amendments
31 March 2023 - Correction made in paragraph 35 (3)
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Decision last updated: 31 March 2023